I ((nrttfll Slam ^rtinol Hthtaty KF2289.R3Tl858"""''"'"'^ MllRmSii'S,'''''* "P°" •"« 'aw of rai 3 1924 019 221 419 DATE DUE fiM ^ /' ^^ ^ ' ' CAYLOnO PNINTfcDINUB A. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019221419 PRACTICAL TREATISE UPON THE LAW OF RAILWAYS. ISAAC F. EEDFIELD, LL.D. CHIEF JUSTICE OF VERMONT. SECOND EDITION. BOSTON: LITTLE, BROWN AND COMPANY. M.DCCC.LVIII. Entered according to the Act of Congress, in the year 185Y, by Isaac F. Redfeeld, in the Clerk's Office of the District Court of the United States, for the Vermont District. Entered according to the Act of Congress, in the year 1858, by Isaac F. KEDFiELD,"in the Clerk's Office of the District Court of the United States, for the Vermont District, ns2 niVBESIDE, cambeidge; rjlINTED BY H. O. HOUGHTON AND COMPANY. PREFACE TO TEE SECOND EDITION. The short time which has intervened, since the first pub- lication of the work, has not afforded as much opportunity for thorough revision, as was anticipated at that time. But all has been done, which the time would allow. All the decisions which have since appeared, both in England and Amei|Ga,.\a,n'(^\t^rey are more numerous and important than could have been anticipated, in so short a period, have been carefully collated, and every point de- cided inserted in its appropriate place in the work. And where the subject was deemed of special interest, to the profession and the public, the 'leading views maintained, in some of the most thoroughly reasoned opinions, have been inserted. These extracts are chiefly confined to the subjects of railway investments, and the rights of attach- ing and levying creditors of railway companies ; and while they do not add many pages, do add, it is believed, very considerably, to the value of the work. The present edition is more complete and more correct, in some particulars, than the former one, and is not enlarged to an inconvenient size. It is commended, with renewed assurances of the most sincere gratitude for past favors, to the patronage of a profession proverbially liberalized by its learning, and made indulgent by its practical wisdom, and the extent and variety of its attainments. Windsor, Vt , May 26, 1858. PREFACE This work was undertaken with the purpose of supply- ing, what seemed to the writer, a want, if ngt a neces- sity, to the profession in this country ; a book upon the law of railways, which should present, within reasonable compass, and in a properly digested form, the whole law, upon the subject, both English and American. No trea- tise had attempted this. And the attempt has confirmed the expectation, that the accomplishment of such an un- dertaking, would be attended with labor and perplexity. It seems desirable, that such a work should present every case, which has been decided, in both countries, in such a form, as to make the point of decision, plain and obvious, and at the same time, not convert a treatise into a mere digest. A mere treatise too, upon the principles, involved in the several departments of the law, brought under discussion in such a work, would be of little ben- efit, except to the student. This, too, will be found in the approved treatises, already published, upon these sev- eral subjects. On the other hand, a digest of the cases upon any plan, however comprehensive, or philosophical, might be the analysis, would appear an unsatisfactory labor, when we have already so much of the kind. It is the endeavor of this undertaking to combine the two, in such a manner, as to render the work intelligible, and interesting, as an exposition of the principles involved ; and at the same time present, a thorough analysis, and VI . PREFACE, digest, of all the important cases upon the subject, in such a manner, as to enable the reader, at once, to know the result of all the decisions, upon the several topics discussed. The plan of the work is mainly new, and the effort has been, to render it natural, simple, and comprehensive. The manner of arranging the heads to the several sub- divisions, has been adopted chiefly, with a view to enable the profession to find, at once, whatever the work con- tains, upon any topic, or question. • How fai; the design of the author has been accom- plished, he submits to the indulgent judgment, of his pro- fessional b'nethren, who have hitherto shown* him so. much forbearance. In justice to himself, perhaps it should be here mentioned, that the work has been prepared,, under some disadvantages, from the constant pressure of ofi&cial duties, which could not be required to accommodate themr selves, in any respect, to the demands of this- subordinate labor. It has thus happened, that although a considerable time has elapsedj since the, work was seriously taken, in hand, it ha? of necessity been done, to a great extent, at such intervals, more or less extensive, as circumstances would allow the writer to command, and always, in haste, If some . mistakes should; be discovered, therefore, and some graver faults even, it is hoped that, the profession will bear with them ; with the assurance, that if the work should be found of sufficient importance, to require an- other edition, they will be corrected ; and that if no such demand should be made, the work has probably received as much liabor as it deserves. Windsor, Vt., November 20, 1857. CONTENTS. H^ The citations to other portions of the work are thus expressed, § — pi. — n. — . and the §^ are placed in the inner margin of the pages, for convenience of reference. The original paging is preserved in this edition. CHAPTER I. INTKODUCTION. 1. Origin of reiilways in England ..... 2. First built upon one's own land, or by special license from the owner 3. Questions in regard to private railways .... 4. Railways in America, public grants ..... 5._ Use of steam-power on railways ..... CHAPTER n. PUBLIC RAILWAYS. 1 1,2 2 PEELIMINAST ASSOCIATIOKS. [Eor this chapter, § 2-16, see Appendix A] .CHAPTER in. RAILWAYS ORDINARILY PRIVATE GOEPORATIONS. 1. Private corporations where stock is private property 2. Public corporations where stock is owned, and the management retained, by the staie ....... 3. Public corporations have no rights beyond the control of legislative authority ........ CHAPTER IV. PROCEEDINGS UNDER THE CHARTER. SECTION I. ORGANIZATION OF THE COMPANY. ■• 1. Conditions precedent must be performed 2. Stock must all be subscribed, ordinarily 3. Charter, location of road, condition precedent 4. Colorable subscriptions binding at law 5. Conditions subsequent, how enforced 6. Stock distributed according to charter 7. Commissioners must all act 8. Defect of organization must be plead 9. Question cannot be raised collaterally . 10. Records of company, evidence SECTION H; ACCEPTANCE OP CHARTER, OR OP MODIFICATION OF IT. 1. New or altered charter must be formally accepted 8,9 9 9 9 9 10 viii CONTENTS. 10. 11 PAGE 2. Subscription for stock sometimes sufficient ■ • ' ' ]^ 3. Inoperative unless don^ as required . . • • ' ]n 4. Assent to beneficial grant presumed . • • 'mil fi. Matter of presumption and inference . • ■ • J J 6. Organization or acceptance of charter may be shown by parol . 11 SECTION III. OKDINAET POWERS — CONTKOL OF MAJOEITT. 1. Ordinary franchises of railways . . • • .11 3. Majority control, unless restrained . . • • • ^ 4. Cannot change organic law . . • • • .12 5. Except in the prescribed mode . . . • • 12 6. Cannot accept amended charter . . • . .12 7. Or dissolve corporation . . . . . • 12 8. May obtain enlarged powers . . . • ■ .13 9. Courts of equity will not restrain the use of their funds for that purpose 13 But will, if to convert canal into railway . . . .13 _„ Right to interfere lost by acquiescence . . . .13,14 12. Acquiescence of one plaintiff, fatal , . . . .' .14 13. Railway a public trust . . . • . . ^ . 14 14. Suit maintained by rival interest . . . . .15 SECTION IV. MEETINGS OF COMPANY. 1. Meetings, special and general ..... 15,16 2. Special, must be notified as required . . . . .16 3. Special and important matters, named in notice . . . 16 4. Notice of general meetings need not name business . . .16 5. Adjourned meeting, still the same . . . . . 16 6. Company acts by meetings, by directors, by agents . . .16 7. Courts presume meetings held at proper place . . .16,17 SECTION V. ELECTION OF DIRECTORS. 1. Should be at general meeting, or upon special notice . . .17 2. Shareholders may restrain their authority . . . . 17, 18 3. Company bound by act of directors, de facto . . . .18 4. Act of officer de facto binds third persons .... 18 SECTION VI. 4 MEETINGS OF DIREOTOKS. 1. All should be notified to attend . . . , . .19 2. Adjourned meeting still the same . . . . . 19 3. Board not required to be kept fiiU . . . . .20 4. Usurpations tried by shareholders or courts ... 20 5. Usage often will excuse irregularities . . . . .20 6. Decisions of majority valid ...... 20, 21 n. 8. Records of proceedings evidence . . . . .21 SECTION vn. QUALIFICATION OF DIRECTORS. 1. One cannot be a contractor and director .... 22 2. May be their banker and director . . . . .22 3. May be director by'"%irtue of stock mortgaged ... 22 4. Bankruptcy or absence will not vacate office . . . .22 5. Company compelled to fill vacancies in board ... 22 CONTENTS. IX CHAPTER V. PREROGATIVE FRANCHISES. PAGE 1. Control of internal communication, in a state, a prerogative franchise 23 2. Such a grant confers powers pertaining exclusively to sovereignty, as taking tolls, and the right of eminent domain . . .23 CHAPTER VI. BY-LAWS AND STATUTES. SECTION I. • POWEK OF MAKING BY-LAWS, OK STATUTES. 1. May control conduct of passengers . . . . .24 2. Must be reasonable and not against law .... 24 3. Power may be implied, where not express ... 24, 25 4. Not required to be in any particular form unless by special provision . 25 6. Model code of by-laws framed by board of trade in England . 25, 26 7. Company may demand higher fare, if paid in cars . . .26 8. Public statutes control by-laws . . . . . 26, 27 9. Cannot impose penalty . . . . . . .27 10. Cannot refuse to be responsible for baggage ... 27 SECTION II. BY-LAWS KEGIJLATING THE USE OF STATIONS AND GROUNDS. 1. May exclude persons without business . 2. May regulate the conduct of others 3. Superintendent may expel for violation of rules 4. Probable cause will justify .... 6. In civil'suit must prove violation of rules Section hi. ■ BY-LAWS, AS TO PASSENQBES. 1. By-laws as statutes ..... 2. As mere rules, or regulations .... 3. Requiring larger fares, for shorter distances 4. Requiring passengers to go through in same train . 6. Arrest of passenger, by company's servants 7. Company liable for act of servant 8. By-law must be published .... 9. Excluding merchandise from passenger trains . 10. Discrimination between fares paid in cars, and at stations 11. Liability for excess of force .... CHAPTER VII. CAPITAL STOCK. SECTION I.. LIMITATIONS. 1. General rights of shareholders . . . . • .36 2. Capital stock not the limit of property . . . . 36 3. Cannot mortgage, unless on special license of the legislature . 36, 37 SECTION II. CONDITIONS PBBCEDENT, WHICH THE PUBLIC AUTHOKlTIEg MAT ENFOECE. 1. Stock if limited, must all be subscribed . . . . S7 2. Payments at time of subscription . . . . 37,38 27, 28 28 . 28 ,' 28 28 29 . 30 31 31 . 31 32 32 . 32 33 33 . 33 34 34 . 34 35 36 X CONTENTS. SECTION III. SHAKES PEKSONAL ESTATE. PAGE 1. Railway shares personal estate at common law . , . . 38, 39 2. Not an interest growing out of land, or goods, wares, and merchandise 39 3. Early cases treated such shares as real estate ... 39, 40 CHAPTER VIII. TRANSFER OF SHARES. 'SECTION I. EESTEIOTIONS UPON TKANSFER. 1. Express provisions of charter to be observed .... 41-43 2. If not made exclusive, held directory merely . . . 42-44 3. Unusual and inconvenient restrictions void .... 43, 44 4. But a lien upon stoi'k for the indebtedness of the owner is valid . . 44 5. Such lien is not implied ...... 44 6. Where transfer is wrongfully refused, vendee may recover value of the company ........ 44. SECTION II. CONTRACTS TO TKANSFEK STOCK. 1 . Transfer under English statutes. Registered companies . . 45 2. Contracts to transfer stock valid, where bond fide . . .45 3. Vendor must have the stock, when due . . . . 45, 46 n. 3. Vendor must procure the consent of directors, where requisite . 45 SECTION III. , INTERVENING CALLS, OR ASSESSMENTS. 1. Vendor must pay calls, if that is requisite to pass title . . 46,47 2. Generally it is matter of construction, and inference . . 47,48 ji. 2. Calls paid by vendor after executing transfer . . . 47, 48 SECTION IV. TRANSFER BT DEED IN BLANK. 1 and 2, Blank transfer formerly held invalid in England . . .48 3 . Rule different in America . . . . . . 43 SECTION V. SALE OF SPURIOUS SHARES. 1. Vendor, who acts ftona/r/e, must refund money . . . 49 50 3. No imjjlied warranty in such case, which will entitle the vendee to special damage ...... 50 4. Rule of the stock exchange, made after the sale, not binding upon par- *'^^ • •••... 50 SECTION VI. READINESS TO PERFORM. CUSTOM AND USAGE. 1. Vendor must be ready and offer to convey . . . .50 2. Vendee must be ready to pay price . . .'.'.' 51 3. General custom and local usage . . . . ' _ ' si-ss 4. The party taking the initiative, must prepare the writings . . 52 53 n. 3. Oral evidence to explain memoranda of contract . . 51-53 CONTENTS. XI SECTION VII. DAMAGES. SPECIFIC PERFORMANCE. PAGE 1. Damages, difference between contract price and price at time of de- livery ......... 54 2. Equity will decree specific performance of contract for sale of shares 54 SECTION VIII. SPECIFIC PEKFORMANCE. 1. Specific performance decreed against the vendee . . . 54,55 2. This was denied in the early cases ..... 55 3. Owner of original shares may transfer them ... 55 4. Will not decree specific performance where not in the power of the party . . . . . . . . 55, 56 SECTION IX. TRUSTEE ENTITLED TO INDEMNITY AGAINST FUTURE CALLS. 1. Trustee entitled to indemnity, on general principles . . 56 2. English courts hesitated, in regard to railway shares . . .56 3 and 4. Cases reviewed . . . . . .56,57 5. Mortgagees liable, as stockholders, for the debts of the company 57-59 SECTION X. FRAUDULENT PRACTICES TO RAISE THE PRICE OF SHARES. 1. Courts of equity will vacate sales SO procured . . . .60 2. Necessary parties . . . . . . . 60, 61 3 and 4., Dividends declared, when none are earned, will vacate sales, and subject directors to indictment . . . . .61 5. Equity will not interfere where vendor acted honajide, unless the shares were valueless . . . . . . . 61 6. Managers of company liable in tort to party injured . . 61,62 SECTION XI. LIABILITY OF COMPANY FOR NOT REGISTERING TRANSFERS. 1. The company liable to action . . . . . 62, 63 2. May be compelled to record transfers by mandamus . . .63 3. But not compellable to record mortgages of shares ... 63 SECTION XII. WHEN CALLS BECOME PERFECTED. 1. Calls are made when the sum is assessed, notice may be given after- Wards . ...... 63, 64 2. Directors the proper authority to make calls . . . .64 SECTION XIII. TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 1. Mandamus lies to compel the registry of successor . . . 64,65 3. In case of death, personal representative liable to calls . . .65 4. Notice requisite to perfect the title of mortgagee ... 65 5. Stock in trust goes to new trustees ..... 65 6. Assignees of insolvents not liable for the debts of the company . 65,66. SECTION XIV. LEGATEES OF SHARES. 1. Entitled to election, interest, and new shares .... 66 XU CONTENTS. 2. Sharea owned at date of will paas, although converted into consolidated page stock . . . . _• • ■ • 66 3. Consolidated stock subsequently acquired will not pass . . .66 SECTION XV. SHARES IN TKUST. 1 and 2. Company may safely deal with registered owner . . 66, 67 3. But equity will protect the rights of eestuis qne trust . . .67 CHAPTER IX. ASSESSMENTS OK CALLS. ' SECTION I. PAETT LIABLE FOR CALLS. 1. The party upon the registry liable for calls . , . ■ 68 2. Bankrupts remain liable for calls . . . . .68 3. Cesluis que trust not liable for calls, in law or equity . . 69 SECTION II. COLOKABLE SUBSCKIPTIONS. * 1. Colorable subscriptions valid . . . .69 2. Directors may be compelled to register them . . .69, 70 3. Oral evidence to vary the written subscription inadmissible . . 70 SECTION III. MODE OE ENPOKCING PAYMENT. 1. Subscription to indefinite stock, raises no implied promise to pay the amount assessed . . . . . . . 70, 71 2. If shares are definite, subscription implies a promise to pay assessments. Right of forfeiture a cumulative remedy . . . 71-73 3. Whether issuing new stock will bar a suit against subscriber, quwre 73, 74 4. It would seem not ....... 74 5. But the requirements of the charter and general laws of the state, must be strictly pursued, in declaring forfeiture of stock . . .74 SECTION IV. CEEDITORS MAT COMPEL PAYMENT OF SUBSCRIPTIONS. , 1. Company compelled, to collect of subscribers, by mandamus . 75 2, 3, and 4. Amount due from subscribers, a trust fund for the benefit of creditors ........ 75 5. If a state own the stock it will be the same . , ., . 76 6 and 7. A diversion of the funds from creditors is a violation of contract on the part of the company, and a state law authorizing it invalid 75, 76 8 and 9. The general doctrine above stated found in many American cases 76 10. Judgment creditors may bring bill in equity . . . .77 11. Promoters of railways liable, as partners, for expenses of proeurinw charter . . . . > . , . ° 77 SECTION V. , CONDITIONS PRECEDENT TO MAKING CALLS'. 1. Conditions precedent must be performed before calls . . 77,78 2. But collateral, or subsequent conditions not . . . .78 3. Definite capital must all be subscribed before calls ... 79 4. It is the same where defined by the company, as in the charter . 79 CONTENTS. xiii PAGE 5. Conditional subscriptions not to be reckoned ... 80 6. Legislature cannot repeal conditions precedent . . . .80 SECTION VI. CALLS MAT BE MADE PAYABLE BY INSTALMENTS. 81 SECTION VII. PAETT LIABLE POK CALLS. 1. Subscribers liable to calls . . . . . .81 -2 and 6. What constitutes subscription to a capital stock . . 81-83 3. How a purchaser of stock becomes liable to the company . . 82 4. One may so conduct as to estop him from denying his liability . 82, 83 5. The register of the company evidence of membership . . .83 SECTION VIII. RELEASE FROM LIABILITY FOE CALLS. 1 and 2. Where the transfer of shares, without registry, will relieve the proprietor from calls ...... 84 3. Where shares are forfeited by express condition, subscriber no longer liable for calls . . . . . . . 85 SECTION IX. DEFENCES TO ACTIONS POK CALLS. 1. Informality in organization of company insufficient . . . 85,86 2. Slight acquiescence stops the party in some cases . . .86 3 and 4. Default in first payment insufficient . . * . . 86, 87 5. Company and subscriber may waive that condition . . 87, 88, 89 6. Contract for stock, to be paid, in other stock ... 89 7 and 8. Infancy. Statute of limitations and bankruptcy . . 89,90 SECTION X. FUNDAMENTAL ALTERATION OF CHAKTBK. 1. Will release the subscribers to stock .... 91 2. Railway company cannot purchase steamboats ... 91, 92 3. 7. Majority may bind company to alterations, not fundamental . 92, 94 4. DiiBfctors cannot use the funds for purposes foreign to the organization 94 5. S. But where the legislature or the directors, make legal alterations in the charter, or the location of the road, it will not release subscri- bers . . . . . . ._ .94, 95, 96 6. But if subscriptions are made upon condition of a particular location , it must be complied with .."... 95 8. 9. Consideration of subscription, being location of road, must be sub- stantially performed. Express conditions must be performed 95, 96 SECTION XI. SUBSCEIPTIONS BEFORE DATE OF CHARTER. 1. Subscriptions before date of charter good . . . .97 2. Subscriptions upon condition not performed . . .97, 98, 99 n. 4. Where the condition is performed . . . . 97, 98, 99 • SECTION XII. SUBSCRIPTION UPON SPECIAL TBRMS. 1. Subscriptions not payable in money .... 99 2. Subscriptions at a discount, not, binding _. . . 99, 100 n. 2. Contracts, to release subscriptions, not binding . • 99, 100 b XIV CONTENTS. SECTION XIII. EQUITABLE EELIEF FROM SUBSCEIPTIONS OBTAINED BT PEAUD. PAGE 1. Substantial misrepresentations in obtaining subscriptions will avoid them ........ 100, 101 2. But for eircumstantial misconduct of the directors, in the matter, they alone are liable ....... 101 3. Directors cannot make profit for themselves . . . 101 SECTION XIV. FOKFEITUKE OT SHAKES. RELIEF IN EQUITY. 1. Requirements of charter and statutes must be strictly pursued . 102 2. If not, equity will set aside the forfeiture .... 102 3. Must credit the stock, at full market value .... 102 4. Provisions of English statutes ..... 102, 103 5. Evidence must be express, that all requisite steps were pursued . 103 104 104, 105 105 . 105 105 105 106 106 106 106, 107 CHAPTER X. EIGHT OF WAT BY GRANT. SECTION I. OBTAINING LANDS BT EXPKES8 CONSENT. 1. Leave granted by English statute . 2. Persons under disability 3. n. 2. Money to take the place of the land . 4. Consent to pass railway 5. Duty of railway*in all cases 6. License to build railway. Extent of duration 7. Company bound by conditions in deed 8. Parol license good till revoked . 9. Sale of road no abandonment 10. Deed conveys incidents ; not explainable SECTION II. SPECIFIC PERFORMANCE IN BQUHTT 1. Contracts before and after date of charter . 2. Contracts where all the terms not defined Contracts for land", umpire to fix price Where mandamus also lies Contracts not signed by company . Where terms are uncertain Contracts giving the company an option 8. Contracts not understood by bbth parties 9. Order in regard to construction of highways, may be 'enforced at the suit ot the municipality ..... -^qq j.q CHAPTER XL EMINENT DOMAIN. SECTION 1. GENERAL PRINCIPLES. * k 107 '. 107 107, 108 . 108 108 108 198, 109 109 1. Definition of the right . 2. Intercommunication 8. Necessary attribute of sovereignty 4. Antiquity of its recognition . HI 111, 112 . 112 112 CONTENTS. 6. Limitations upon its exercise 6. Resides principally in.the states 7. Duty of making compensation . 8. Navigable waters ...*.■ 9. 10, and H. Its exercise in rivers, above tide water SECTION n. TAKING LANDS IN INVITCM. 1. Legislative grant requisite . 2. Compensation must be made 3. Consequential damages 4. Extent of such liability . 5. These grants strictly construed 6. Limitation of the power to take lands . 7. Interference of courts of equity 8. Rule of construction in American courts 9. Strict, but reasonable, construction 10. Rights acquired by company 11. Limited by the grant SECTION ni. CONDITIONS PRECEDENT. 1. Conditions precedent mu?t be complied with . 2. That must be alleged in petition 3. When title vests in company . SECTION IV. PRELIMINAET SUBVETS. 1. May be made without compensation 2. Company not trespasser 3. For what purposes company may enter upon lands 4. Company liable for materials. . 5. Right to take materials .... 6. Location of survey .... PAGE 112, 113 113 . 113 113 113, 114 114, 116 . 115 115 . 115 116 . 116 116 116, 117 117 117 117 . 118 118 118, 119 119 120 120 120, 121 121 121 SECTION V. POWEB TO TAKE TEMPOEABY POSSESSION OF PUBLIC AND PBIVATE WATS SECTION VI. LAND FOR ORDINARY AND EXTRAORDINARY USES. 121 1. By English statute may take land for all necessary uses 2. Companies have the same power here 3. So also of companies connecting at state lines SECTION VII. TITLE ACQUIRED BY COMPANY. 1. Company have only right of way 2. Can take nothing from soil except for construction 3. Deed in fee-simple to company 4. For what uses may take land 6. Right to cross railway, extent of . . . 6. Conflicting rights in different companies 7. 8. Rule in the American states 9. Right to use streets of a city 10. Law not the same in all the states 11. Rule in Massachusetts .... 122 122, 123 123 . 124 124 124, 126 125 . 125 126, 126 . 126 126, 127 . 127 127 XVI CONTENTS. 12. 13. Land reverts to the owner . . • 14. True rule stated . . . . • l§. Conditions must be performed . • » 19. Further assurance oftitle . . • " . 1 7. Condemnation cannot be impeached SECTION VIII. CORPORATE FKANCHISES COKDEMNED. 1. Koad franchise may be taken 2. Compensation must be made . 3. Railway franchise may be taken 4. Rule defined 5. Constitutional restrictions . 6. Not well defined 7. Must be exclusive, in terms 8. Legislative discretion 9. Highways and railways compared 10. Extent of eminent domain 11. Exclusiveness of the grant, a subordinate franchise 12. Legislature cannot create a franchise, above the reach of domain '...... SECTION IX. COMPENSATION. MODE 01- ESMMATINO. 1. General inquiry simple ..... 2. Remote damage and benefits not to be considered 8. General rule of estimating compensation 4. Prospective damages assessed . , 5. In some states value, " in money," is required 6. 7. Damage and benefits cannot be considered in such cases 8. Rule of the English statute . . . 9. Farm accommodations ..... 10. Benefits and damage, if required, must be stated . n. 10. Course of the trial, in estimating land damages SECTION X. MODE OF PROCEDURE. 1. Legislature may prescribe ... 2. Must be upon proper notice 3. Formal exceptions waived, by appearance 4. Unless exception is upon record 5. Proper parties, those in interest 6. Title may be examined . 7. Plaintiffs must show joint interest . 8. Jury may find facts and^refer title to the court 9. Land must be described in verdict . 10. Distinct finding on each claim , 11. Different interests .... 19. What evidence competent 18. Proof of value of land 14. Opinion of witnesses 13. Testimony of experts 16. Matters incapable of description 17. Costs ..... 18.' Expenses .... 19. Commissioners' fees 20. Appellant failing must pay costs 21. Competency of jurors PAGE 127, 128 _ 128 , 128 . 128 • 129 129 129, 130 130 130 130, 131 131 131 131 181, 182 132 132 eminent 132, 133 13S, 134 135 135 . 185, 136 . 186 , , 136 186, 137 . 137, 138 138 . 138, 139 138, 139 . 139, 140 140 140 , 140 . 140, 141 141 141 141 141, 142 142 1.42 142 . 142 143 143 143 143 144 . 144 145 145 145 145 145 CONTENTS. Xvii PAGE 22. Power of court to revise proceedings ..... 145 23. Debt will not lie on conditional report .... 145 24. Excessive damages, ground of setting aside verdict . . . 146. n. Other matters of practice ...... 146,147 SECTION XI. WHEN COMPENSATION MUST BE MADE. 1. Opinions conflicting ....... 147 2. Chancellor Kent's definition . . . . . 147, 148 3. That of the Code Napoleon ...... 148 4. Most state constitutions require it to be concurrent with the taking 148, 149 5. English cases do not require this ..... 149,150 6. Adequate legal remedy sufficient . . . . .150 7. Where required, payment is requisite to vest the title . . 150, 151 8. Some states hold that no compensation iS requisite . . . 151 SECTION XII. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 1. Ct^psequential damage barred . . . . . 152 2. Such as damage, by blasting rock .... 152,153 3. But not where other land is used unnecessarily . . . • 153, 154 4. But loss by fires, obstruction of access, and cutting ofi" springs is baj'red 1 54 5. Loss by flowing land, not barred ..... 154 6. Damages, from not building upon the plan contemplated, are barred 154, 155 7. Special statutory remedies reach such damages . . . 155 8. Exposure of land to fires ...... 155 SECTION xm. ACTION FOR CONSEQUENTIAL DAMAGES. 1. Statute remedy for lands " injuriously affected ". . . . 155,156 2. Without statute not liable to action .... 156,157 3. Are4iable for negligence in construction, or use . . . 157 4. Statute remedy exclusive . . . . . .157 5. Minerals reserved . . . . . . .157, 168 SECTION XIV. EIGHT TO OCCUPY HIGHWAY. 1. Decisions conflicting . . . . • ■ .158 2. First, held that owners of the fee were entitled to additional dam- ages .....■•■ 1,58-160 8. Principle seems to require this ..... 159, 160 4. Many cases take a different view . . . . . 161 5. Legislatures may and should require such additional compensation 161, 162 6. Courts of equity will not enjoin railways from occupying streets of a city 162 7. Some of the states require such compensation . . . 162,163 n. 9. All do not. But the English courts, principle, and many of the state courts, do require it, as matter of right . . 163, 164 SECTION XV. CONPLICTING RIGHTS IN DIFFERENT COMPANIES. 1. Railway company subservient to another, can only take of the other, land enough for its track . . • . • 164, 165 2 Where no apparent conflict, in route, first located, acquires superior right 165 6* XVUl eONTENTa. SECTION XVI. EIGHT TO BUILD OVER NAVIGABLE WATERS. 1. Legislature may grant the right . - . ' 2. Biparian proprietor owns only to the water . . 3. His rights in the water subservient to public? use . 4. Legislative grant paramount, except the national rights 5. State interest in flats where tide ebbs and flows 6. Eights of adjoining owners in Massachusetts . 7. Railway grant to place of shipping .... 8. Principal grant carries its incidents 9. Grant of a harbor includes necessary erections 10. 11. Large rivers held navigable in this counti'y 12. Land being cut off' from wharves is " injuriously affected " 13. Paramount rights of Congress infringed creates a nuisance. specially injured may have action . . 165 166 . 166 . 166 167 167 167 167 168 168 , 168 168 168, 169 169 Party 169, 170 SECTION XVIL OBSTRnCTION OF STREAMS BT COMPANY'S WORKS. Cannot divert stream, without compensation . . . .170 Company liable for defective construction . , . . • 1 70 So also if they use defective works, built by others . .. 170,171 Company liable to action, where mandamus will not lie . . 171 Company liable for defective works, done according to their plans . 171 When a railway " cuts off " wharves from the navigation . . 171,172 SECTION XVIII. OBSTRUCTION OF PRIVATE WAYS. 1. Obstruction of private way matter of fact, need not be illegal . 172 2. Farm road, on one's own land, not private way . . • . 172 3. But railway may lawfully pass along public street . . 172,173 SECTION XIX. STATUTE REMEDY EXCLUSIVE. 1. Remedy for land taken, exclusively under the Statute . . 173 174 2. But if company do not pursue statute are liable as trespassers. Lia- ble for negligence also . . . , , . j 74 3. Courts of equity often interfere by injunction . . 1 74 1 75 SECTION XX. LANDS INJURIOUSLY AFFECTED. 1. Obstruction of way, loss of custom . . , 2. Equity will not enjoin legal right 3. Liable for building railway, so as to cut off wharf . 4. '^t liable for crossing highway on level . . 6. English statute only includes damages by construction 6. Equity will not enjoin even a doubtful claim . 7. Damages unforeseen, at the time of the appraisal, may be recov- ered, m England . . . _ / 8. Injuries to ferry, and towing-path compensated 9. 10. Remote injuries not within the statute 11. Damages compensated, under statute of Massachusetts ' 12. Damages not compensated as beiog tojo remote 13. For negligence in construction, remedy at common law , 176 4 176 . 176 . . 176 . 176 177 rppnv- 177 XCLUV" 177 178 178 ■ t 178 . 178 179 179 . 179 CONTENTS. xiX SECTION XXI. DIFFERENT ESTATES PROTECTED. PAGE 1. Tenant's good-will, and chance of renewal protected . . . 180 2. Tenants entitled to compensation for change of location . . 180,181 3. Church property in England, how estimated . . . 1>1 4. Tenant not entitled to sue, as owner of private way . . 181 5. Heir should sue for compensation . . . . i8i 6. Lessor and lessee both entitled to compensation . . . 181 7. Right of way,. from necessity, protected . . 181 182 8. Mill-owner entitled to action for obstructing water . . ' 182 9. Occupier of land entitled to compensation . . . .182 10. Tenant, without power of alienation, forfeits his estate, by license to company ........ 182 SECTION XXII. ARBITJiATION. 1. Attorney, without* express power, may refer disputed claim . 182, 183 2. Award binding, unless objected to in court .... 183 SECTION XXIIL STATDTE OF LIMITATIONS. 1. General limitation of actions, applies to land claim . . .183 2. Filing petition will not save bar . . . . . 183, 184 CHAPTER XII. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. CHAPTER XIII. ENTKY UPON LAND, BBFOKE COMPENSATION IS ASSESSED, UNDER THE ENG- LISH STATUTE. CHAPTER Xir. THE MODE OF ESTIMATING COMPENSATION UNDER THE ENGLISH STATUTE. [For these three chapters, § 86-104, which contain the proceedings uuder the English statute, with the decisions in regard to them, and occasional references to the decisions of the American courts, upon analogous provisions, see Appen- dix B] CHAPTER XV. CONSTRUCTION OF RAILWAYS. SECTION I. LINE OF RAILWAY. EIGHT OF DEVIATION. 1. Manner of defining the route in English charters . . . 186-189 3. Question involved stated ..... 187-189 3. Plans only binding, when and for the purpose referred to, in the act 189 4. Contractor bound by deviation, unless he object . . 189,190 5. Courts of equity will not enforce contract against public security . 190 6. Right to construct accessory works .... 190,191 7. 8. Company may take lands designated, in their discretion . 191 9. Equity cannot enforce contract, not incorporated into the act . . 191 10. Right of deviation lost by election ..... 191,192 11. Railway between two towns, exiunt of grant . . . 192 13.* Grant of land for railway, includes acceasoriea . . .192,193 XX CONTENTS. fAge 13. Route designated need not be followed literally • , • '193 14. Terminus being a town, is not extended, as the town extends . 1»<> SECTION II. DISTANCE, HOW MEASHKED. 1. This is affected by subject-matter . . . • • ^^^' Jg* 2. Contracts to build railway, by rate per mile . • • ' 3. General rule to measure by straight line . ■ •. • 4. Same rule in regard to turnpike roads . . . ■ SECTION III. MODE OF CONSTKUCTION, TO BE DONE WITH LEAST DAMAGE. 1. Does not extend to form of the road, but the mode of construction . 195 2. Special provisions of act not controlled by this general one 194 194 194 195 3. Works interfered with, to be restored, for all uses . • .195 SECTION IV. MODE OF CROSSING HIGHWAYS. 1. English statutes require it should not be at grade . . . 196 2. Or if so, that gates should be erected and tended . . .196 3. And if near a station, railway train not to exceed four miles an hour 196 4. Cannot alter course of highway . . ■ • 196,197 5. Mandamus does not lie where company have an election . . 197 SECTION V. RIGHTS OF TELEGRAPH COMPANIES. 1 Right to " pass directly across a railway," does not justify boring under it . . . ■ . • • • 197,198 ■2. Exposition of the terms " under" and "across" . . .198 SECTION VI. • DUTY IN REGARD TO SUBSTITUTED WORKS. 1. Bound to repair bridge, substituted for ford, or to carry highway over railway . . . . . . .198 2. The same rule has been applied to drains, substituted for others . 198 SECTION VII. CONSTRUCTION OP CHARTER IN REGARD TO NATURE OF WORKS, AND MODE OF CONSTRUCTION . . . 199 SECTION VIII. TERMS OF CONTRACT. MONET PENALTIES. EXCUSE FOE NON- PEEFOUMANCE. 1. Contracts for construction assume unusual forms . . 199, 200 2. Estimates made by engineer ..... 200 3. Money penalties, liquidated damages. Full performance . 200, 201 4. Excuses for non-performance ..... 201 5. Penalty not incurred, unless upon strictest construction . 201, 202 6. 7. Contractor not entitled to any thing, for part performance . 203 8. Contract for additional compensation must be sl;rictly performed . 203 n. 2. Proper construction of the terms used in these contracts . 200, 201 SECTION IX. FORM OP EXECUTION. EXTRA WORK. DEVIATIONS. 1. No particular form of contract requisite generally . . 20Si*203 CONTENTS. xXi PAGE 2. But the express requirements of the charter must be complied with 203, 204 3. Extra work cannot be recovered of the company, unless done upon the terms specified in contract ..... 204 4. If the company have the benefit of work, are liable . ' .204 SECTION X. IP ONE PARTY REPUDIATE THE CONTRACT, THE OTHER MAT SHE PRESENTLY. 1. Party repudiating excuses the other ..... 205 2. New contract valid . . .....' 205 3. President cannot bind the company ..... 205 SECTION XI. DECISIONS OF REFEREES AND ARBITRATORS IN REGARD TO CON- STRUCTION CONTRACTS. 1. Award valid if substantially correct .... 206 2. Court will not set aside award, where it does substantial justice 206, 207 SECTION XII. DECISIONS OF company's ENGINEERS. 1. Estimates for advances, mere approximations, under English practice . 207 2. But where the engineer's estimates are final, can only be set aside, for partiality or mistake . . • . . . . 207,208 3. Contractor bound by practical construction of the contract . . 208 4. Estimates do not conclude matters, not referred . . . 208 6. If contractor consent to accept pay in depreciated orders, he is bound . by it . . . . . . . . 208, 209 6. Right of appeal lost by acquiescence .... 209 7. Engineer cannot delegate his authority .... 209 8. Arbitrator must notify parties, and act bona Jide . . . 209 SECTION XIII. RELIEF- IN EQUITY FROM DECISIONS OB COMPANY'S ENGINEERS. 1. Facts of an important case Stated .... 209-215 2. Claim of contractor in the bill ..... 215 3. Bill sustained. Amendment alleging mistake in estimates . 215,216 4. Relief only to be had in equity . . . . . 216 5. Proof of fraud must be very clear .. . . . .216 6. Engineer being shareholder, not valid objection . . . 216 7. Decision of engineer conclusive as to quality of work, but not as to quantity ........ 216 8. New contract condonation of old claims .... 216 9. Account ordered after company had completed work . . .216 10. Money penalties cannot be relieved against unless for fraud . 216 n. 1. Review of the cases upon this subject . . . 210-215 SECTION XIV. FRAUD IN CONTRACTS FOR CONSTRUCTION. 1. Relievable in equity upon general principles . . . 217 2. Statement of leading cases upon this subject ... 21 7-221 3. Where no definite contract closed, no relief can be granted . 221 SECTION XV. engineer's ESTIMATE WANTING THROUGH FAULT OF COMPANY. 1. In such case contractor may maintain bill in equity . . 221, 222 XXU CONTENTS. PAGE 222 2. Grounds of equitable interference . • ' • ■ a f 3. After company terminate contract, contractor will be enjoinea *rom^^ ^^^ interference . . • • ■ ' ' ' nos 4. Stipulation requiring engineer's estimate, not void • .'/ji, ' 5. Not the same, as an agreement, that all disputes shall be decided by ^^^ arbitration . . ■ • • ' ' „„„ 6. Engineer's estimate proper condition precedent • • ■ ^f^ ■ 7. Same as sale of goods, at the valuation of third party . ; -^^a, ^^'i 8. The result of all the English cases seems to be, that only the question of damages is properly referable to the engineer . • • 224 9. The rule in this respect different, in this country . • • 224, 225 SECTION XVI. CONTRACTS FOE MATERIALS AND MACHINERY. 1. Manufacturer not liable for latent defect in materials . • 225 2. Contract for railway sleepers, terms stated . . • 225, 226 3. Construction of such contract ..•••• 226 4. Party may waive stipulation in contract, by acquiescence . . 226 5. Company liable for materials, accepted and used . . . 227 SECTION XVII. CONTRACTS TO PAY IN THE STOCK OF THE COMPANY. 1. Breach of such contract generally entitles the party to recover the nominal value of Stock ...... 227 2. But if the party have not strictly performed on his part, can only re- cover market value ..... 227,228,229 3. Cash portion overpaid, will only reduce stock portion, dollar for dollar 229 n. 2. Lawful incumbrance on company's property, will not excuse con- tractor from accepting stock ..... 228, 229 SECTION XVIII. TIME AND MODE OP PAYMENT. 1. No time specified, payment due only, when work completed . . 230 2. Stock payments pust ordinarilj' be demanded . . , . 230 3. But if company pay monthly, such usage qualifies contract . . 230 4. Contract to build wall, by cubic yard, implies measurement, in the wall 230 SECTION XIX. REMEDY ON CONTRACTS, POR RAILWAY CONSTRUCTION. 1. Eecovery on general counts ...... 231 2. Amount and proof governed by contract .... 231 SECTION XX. mechanic's lien. 1. Such lien cannot exist in regard to a railway . . . .231 1 Opinion of Scott, J. . . . . . . .231 CHAPTER XVI. COMMON CAEKIBRS. SECTION I. DUTY AT COMMON LAW. 1. Inevitable accident ...... 232 233 2. To excuse carrier, force must be above human control, or that of public enemy ....... 233 CONTENTS. Xxiii * PAGE 3. Are insurers against fire, except by lightning .... 233 4. Instances of perils which excuse carrier .... 233 234 5. If carrier expose himself to perils, he must bear the loss, but not of de- lay from unknown peril ...... 234 6. Is liable for loss in price, during delay, caused by his fault . . 234 SECTION II. BAILWAT COMPANIES COMMOU CAKKIEES. 1. Common carriers, those who carry for all who apply . . 234, 235 2. Under the English statute entitled to notice of claim . . ' 235 3. Railways liable, as common carriers of passensers' bai"Tafe. and of '"■P-'gl't •■•.... 235, 236 SECTION III. LIABILITY FOK PARCELS CARRIED BT EXPRESS. 1. Carriers, who allow servants to I'arry parcels, are liible for loss 236-238 2. Importance of making railways liable for acts of agents . . 238 3. Allowing perquisites to go to agents will not excuse company . 238 4. Owner of parcels, carried by express, may look to company . 238, 239 5. May sue subsequent carrier, who is in fault .... 239 6. European railway companies are express carriers . . . 239 SECTION IV. EIGHTS AND DUTIES OF EXPRESS CARRIERS. 1. Liable for not making delivery to consignee . . . 239, 240 2. Contract of company with local carriers only temporary . . 241 3. Cannot charge in proportion to value of parcels, and restrict their lia- bility . . . . . . . .241 4. Not responsible beyond their routes .... 241 5. Company, where statute prohibits discrimination, cannot charge express carriers higher than others, or give one such carrier exclusive privi- leges .' . . • . . . . 241,242 SECTION V. RESPONSIMLITT FOR BAGGAGE OP PASSENGERS. 1. Liable as common carriers for baggage .... 242 2. Liability where different companies form one line . . 242, 243 3. Company liable for actual delivery to the owner . . . 243 4. Company not liable unless baggage given in charge to their ser- vants ...... 243, 244, 245 5. Liability results from duty, and not from contract . . . 245 SECTION VL WHEN THE carrier's RESPONSIBILITY BEGINS. 1. Begins, in general terms, upon delivery of the goods . . . 246 2. Delivery at the usual place of receiving goods, with notice, sufficient 246 8. Where goods are delivered to be carried, carrier liable from delivery 246, 247 4. But not responsible till they receive the goods, on a continuous line 247 6. Acceptance by agent sufficient, without payment of freight . 247 6. Question of fact, whether carrier took charge of the goods . 247, 248 7. Sufficient to charge company, that goods are put in charge of their ser- vants . . . . . . . • 248 8. Whether goods are left for immediate transportation, matter of infer- ence often 248,249 X3»V CONTENTS. SECTION vn. TERMINATION OF CARKIEb's EESPONSIBII-ITT. ^^'^^ 1. Responsibility of carrier of parcels for delivery . . - 249 3. Company not bound to make delivery of ordinary freight 249, 250, ^51 3. The duty, as to delivery, affected by facts, and course of business . 251 4. Railway company not bound to deliver goods, or give notice of arrival 251.252 5. Rule, in regard to delivery, in carriage by water . . 252 6. Only bound to keep goods reasonable time after arrival . 252, 253 7. Consignee must have reasonable opportunity to remove goods 253, 254 8. After this, carrier only liable for ordinary neglect . . 254, 255 9. If goods arrive out of time, consignee may remove, after knowlege of arrival ,,..•••• 255—258 10. So if company's agent misinform the consignee . . . 259 11. Carrier excused, when consignee assumes control of goods . 259 12. Eifect of warehousing, at intermediate points, in route . 259, 260 13. If carrier has place of receiving goods, responsibility attaches on de- livery there . . . . . - . 260 14. Warehousemen, who are carriers, held responsible aa carriers, on receipt of goods generally ...... 260 SECTION vm, OENERAL DUTY 0¥ CAKKIERS. EQ0ALITT OP CHARGES. SPECIAL DAMAGE. 1. Bound to carry for all who apply ..... 261 2. May demand freight in advance. Refusal to carry excuses tender 261, 262 3. Payment of freight, and fare, will be presumed, sometimes . . 262 4. What will excuse carrier, from carrying, or delivery . . ^62-265 SECTION IX. NOTICE RESTRICTING CARRIER'S RESPONSIBILITY. 1. Special contract, limiting responsibility, valid . 2. Notice, assented to by consignor, has same effect . 3. But as matter of evidence, it is received with caution . 4. Carrier must show that consignor acquiesced in notice 5. Decided cases. Carriers' Act . . . . 6. New York courts held, at one time, that express contract will not ex- cuse the carrier . . . • , • 7. American cases generally hold notice, assented to, binding 8. But in New Hampshire, knowledge of such notice is not bind the owner ..... 9. Will not excuse for negligence 10. Cases in Pennsylvania .... 11. General result of all the cases . SECTION X. NOTICE, OR EXPRESS CONTRACT, LIMITING CARRIERS* LIABILITY. 1. Written notice will not affect one, who cannot read . . 270 2. Carrier must see to it, that his notice is made effectual . . 270 3. Must be shown that knowledge of notice came to consignor . 270, 271 4. But former dealings with same party may be presumptive evidence 271, 272 5. Carrier cannot stipulate for exemption from liability for negligence . 272 6. But carrier may be allowed to stipulate for exemption from responsi- bility as an insurer ••.... 272 7. 8, 9, 10, U, and 12. Review of the cases favoring this proposition 272-276 13 and 14, and n. 17. Review of English cases bearing in opposite direc- tion <••-.... 276-280 264 265 , 265 265 266 266 , 266 267 will not ex- • 267 268 268 sufficient to. , 269 , , 269 269 269 CONTENTS. XXV SECTION XI. NOTICES AS TO ORDINARY AND EXTKAOKDINART RESPONSIBILITY OE CAERIEKS. 1. American writers and eases adopt this distinction . . .280 281 2. The English cases do not seem to recognize it . . . ' 281 SECTION XII. RESPONSIBILITY FOR CARRIAGE BEYOND COMPANY'S KOAD. 1. English rule to hold first company liable to the end of the route . 281, 282 2. This rule not followed in the American courts . . 282-284 3. But company may undertake for whole route . . . 283 284 4. This is presumed when they are connected in business . 284-286 5. Case of refusal to pay charges demanded, and return of goods before reasonable time ....... 286 287 SECTION xin. POWER OF COMPANY TO CONTRACT TO CARRY BEYOND ITS OWN LIMITS. 1. No doubt existed in regard to this power until very recently . 287, 288 2. Receiving freight across other lines, and giving ticket through . 288 3. 4, and 5. Cases reviewed upon this point . . . 288-290 SECTION XIV. AUTHORITY OP THE AGENTS AND SERVANTS OP THE COMPANY. 1. Board of directors have same power as company, unless restricted 290, 291 2. Other agents and servants cannot bind the company beyond their sphere . . . . . . . . 291 3. Owner may countermand destination of goods, through proper agent . 291 4. But an agent who assumes to bind the company beyond his sphere, cannot . . . . . . . . 291, 292 5. Batification of former similar contracts, evidence against company . 292 6. Notice by company of want of authority in servants, if known, wiU excuse them ....... 292 7. Elustrations of the rule . . . ... . 292 293 8. Servant may bind company, even when he disobeys their directions 293 9. Company responsible for the servants of other companies . . 293 SECTION XV. LIMITATION OF DUTY BY COURSE OF BUSINESS. 1. Carriers bound only to the extent of their usage, and course of busi- ness ........ 293, 294 2. This question arises only, when they refuse to carry . . 294, 295 3. Carriers and some others are bound to serve all who apply . . 295 4. Duty under English Carriers' Act ..... 295 SECTION XVI. STRANGERS BOUND BY COURSE OF BUSINESS AND USAGES OF TRADE. 1. Those who employ railway companies, bound to know the manner of transacting their business ..... 295, 296, 297 2. General usages of trade presumed to be familiar to all . . ^ 269 3. Contracts for transportation contain, by implication, known usages of the business . , ■ . . . . . 296, 297 SECTION XVII. CASES WHERE THE CARRIER IS NOT LIABLE FOR GROSS NEGLIGENCE. 1. Extent of English Carriers' Act ..... 297,298 2. Must give specification, and pay insurance .... 299 c XXVi CONTENTS. int. liable unleaa bv carrier's ' 299 3. Loss by felony of servants excepted. But not liable unless by carrier's page 4. Not liable in such case,' where the consignor uses disguise in packing 299 5. Carrier is entitled to have an explicit declaration of contents . /!a», iuu 6. But refusal to declare contents will not excuse the carrier tor retusal ^^^ to csrrv .••■■''* .7." This statute does not excuse carrier for delay in the delivery . 300-302 , SECTION XVIII. INTERNAL DECAT. BAD PACKAGE. STOPPAGE IN TBANSITIT. CLAIM BY SITPERIOK RIGHT. 1. Internal decay. Defective package .... ^^^"^^^ 2. Right to stop in transitu ■ ■ ■ ' . ' • i, ' 3. Carrier liable, if he do not surrender the goods, to one having right to stop in transitu . . • • • • • "^^ 4. Carrier may detain until right is determined . . _ ■ 304, 305 5. Eight exists, as long as the goods are under control of carrier . 304, 305 6. Most uncertainty exists, in regard to capacity of intermediate con- signees . . . ■ • _ •_ •_ ■ 305 7. As long as goods are in the hands of mere carriers, right exists, but not when they reach the hands of the consignee's agent for another purpose .■■..... 305, 306 8. Company compellable to solve question of claimant's right, at their , peril . . . . . ■ • ■ • 306 9. Conflicting claims of this kind may be determined, by replevin, or interpleader ....... 306, 307 10. Or the carrier may deliver the goods to rightful claimant, and defend against bailor . . . . . . .307 SECTION XIX. EFPECT op BILL OP LADING UPON CARRIER. 1. Between consignor and carrier the bill of lading is prima facie evi- dence . . . . . ... . 307, 308 2. But questions of quantity and quality of goods cannot be raised where intermediate carriers are concerned .... 308 3. Bill of lading may be explained by oral evidence . . . 308, 309 4. Express promise to deliver goods, in good order, by a day named . 309 5. Effect of stipulation for deduction from freight, in case of delay . 309 6. If carrier demand full freight, in such case he is liable to refund . 309 7. Must be forwarded according to bill of lading . . . 309 SECTION XX. TO WHAT EXTENT THE PARTY MAT BE A WITNESS. 1. At common law the party could not be a witness in such cases . 310 2. Some of the American courts have received this testimony from neces- sity _ _ . . . . . . . . 310, 311 3,4,5. Decisions in different states ..... 311 6. Agents and servants of the company admitted to testify, from neces- fity ••...... 311 ere the party's oath is not received, the jury are allowed to go upon reasonable presumption .... 311,312 SECTION XXI. EXTENT OP EESPONSIBILITT POR BAGGAGE. ■ 1 and 5. Not liable for merchandise, which passenger carries covertly 312, 313 2. And it makes no difference, that the passenger has no other trunk 312 CONTENTS. XXvii 3. Jewelry, being female attire, and a watch in a trunk, proper bag- page , ^g^gf ^ •, 312,313 4 ana n. 6. bo also are, money for expenses, books for reading, clothing, spectacles, tools of trade, and many other similar things . . 313 • SECTION xxir. carriee's lien for I'REIGHT. 1. Lien exists, but damage to goods must be deducted, and freight must be earned ....... 314, 315 2. But if freight be paid through, to first carrier, lien does not attach, ordinarily . . . . . . ' . . 315 3. A wrongdoer cannot create a valid lien against the real owner . 315 4. 5, 6, 7, 8. Illustration of the point last stated . . . 315,316 9. Passenger carrier heis lien upon baggage for fare . . . 317 10. Carriers have no lien for general balance of account . . .317 11. Lien may be waived, in same modes, as other liens . . 317 12. Delivery obtained by fraud, goods will be restored by replevin . 317 13. Last carrier in the route may detain goods, till whole freight paid 317 14. Carrier cannot sell goods in satisfaction of lien . . . 317 15. Owner may pay freight, and sue for goods lost . . .317 16. Carrier is bound to keep gjods reasonable time if refused by con- signee . . . . . . . . 317 SECTION XXIII. TIME OF DELIV|:KT. 1. Carrier must deliver goods in a reasonable time, or according to his contract ........ 318 2. Delay caused, by unusual press of business, will not make carrier liable . ... . . . . . 318, 319 3. Or by the loss of a bridge, from an unusual freshet . . . 319 4. Carriers excused by the custom and course of the navigation . 319 SECTION, XXIV. CARRIERS HAVE AN INSURABLE INTEREST IN THE GOODS . 319 SECTION XXV. RULE OF DAMAGES, AND OTHER INCIDENTS OF ACTIONS AGAINST CARRIERS. 1. Damages for total loss are the value of the goods at the place of desti- nation . . . . . . . .320 2. Goods only damaged, owner bound to receive them, and the amount of damage ....... 320, 321 3. Upon evidence of servant's uhfaithfulhess or negligence, some expla- nation must be given, or the company held liable . . . 321 4. Company liable, for special damages, where they act mala fide 5. But not ordinary liable for special damage 6. Consignor owning the goods the proper party to sue 7. Consignor in such case not estopped, by. the act of consignee 8. Actions may be brought in the name of bailee, or agent . 9. Recovery in such cases bars the claim of general owner 10. Where general property in consignee, he should sue 11. Preponderating evidence must be given 321, 322 . 322 322 . 322 322 . 322 322 . 322 XXviii CONTENTS. CHAPTER XVn. COMMON CARRIERS OF PASSENGERS. SECTION I. • DEGREE OF CARE REQUIRED. PAGE 1. Are responsible for the utmost care and watchfulness . . . 323 2. Duty extends to every thing, connected with the transportation 323-327 3. But will not extend to an insurance of safety . . 327,328 4. Will make no difi'erenee, if passenger does not pay fare . 328, 329 5. So too where the train is hired for an excursion, or is under control of state officers ....... 329 SECTION n. LIABILITY, WHERE BOTH PARTIES ARE IN FATTLT. 1. Company not liable unless in fault ..... 329, 330 2. Not liable where plaintiff's fault contributes directly to injury . 330 3. Company liable, for wilful misconduct, or such as plaintiff could not avoid ........ 330,331 4. Plaintiff may ifecover for gross neglect of company, although in fault himself ........ 331 5. But not where he knew his neglect would expose him to injury . 331 6. May recover although riding in baggage car . . . 331, 332 7. Company do not owe such duty to wrongdoers . . . 332 8. May recover although out of his place on the train . . 332 9. Plaintiff affected by negligence of those who carry him . . 332 10. Fault on one part will not excuse the other, if he can avoid commit- ting the injury . . ... . . 333 11. Negligence to be determined by the jury, where evidence conflicts . 333 12. Plaintiff must be lawfully in the place, where injured . . 333 13. Passengers bound to conform to regulations of company, and direc- tions of conductors ....... 333 SECTION III. INJURIES BT LEAPING FROM THE CARRIAGES. 1. Passengers may recover, if they have reasonable cause to leap from carriage, and sustain injury ..... 334 2. But not where their own misconduct exposes them to peril . 334, 335 3. But may recover if injured, in attempting to escape danger . . 335 4. Cannot excuse leaping from cars, because train passes station . 335 5. Must resort to their action for redeess . ■ . . 385 6. Rule of law, where train passes station .... 335 336 SECTION IV. INJURIES PRODUCING DEATH. 1. Redress, in such cases, given exclusively, by statute . . . 836 2. Form and extent of the remedy, under the English statute . 336 337 3. Where the party is in fault, no recovery can be had . . .837 4. By English courts no damages allowed for mental suffering . ' 337 5. In Pennsylvania, damages measured by probable accumulations 338, 339 «7-^^^^^'^ "®' <=°™Pany subjected to fine not exceeding $5,000 339 ■7. Wife cannot maintain the action, for death of husband, or father, for death of child ... 039. 8. Form of the indictment . ' ' ' ' " qoq o Tf ti,„„„ 1 : _i /■ ■ . ■ • • 03'' ■ 9. If those having charge of passengers, not sui juris, leave them' ex- posed, company not liable . 340 CONTENTS. XXIX 10. No action lies if death caused by neglect of fellow-servant or by ma- page chinery, ....... 340,341 11. bervant liable for consequences of using defective machinery . 341 SECTION V. SUITS WHEKE THE INJnEED PARTY IS A MARKIED WOMAN . 341 SECTION VI. LIABILITY, WHERE TRAINS DO NOT ARRIVE IN TIME. 1. Company liable to deliver passenger according to contract . , 342 2. May excuse themselves, by special notice . . . . 342 3. Liable for damages, caused by discontinuance of train . . 342 4. Not liable for injury, caused by stage company, connecting with railway 843 SECTION vn. WHAT WILL EXCUSE COMPANY tROM CARRYING PASSENQBRS. 1. Company not bound to carry, where carriages full . . . 344 2. But must carry according to terms which they advertise . . 344 3. Not bound to carry disorderly passengers or those otherwise offen- sive . . . . . . _ . . 344, 345 SECTION vin. RULE OF DAMAGES FOR INJURIES TO PASSENGERS. 1. All damage, present and prospective, is recoverable . . . 345 2. But these should be obvious, and not merely conjectural . . 345, 346 3. New trials allowed for excessive damages .... 346 4. But this only allowed, in extreme cases .... 346 5. Counsel fees not to be considered ..... 346 6. Some English judges doubt if damages should be claimed as compen- sation for pain ...... 346, 347 7. Not so viewed generally . . ... . . 347 8. Plaintiff may show value of his time lost . . . .347 9. Generally rests very much in discretion of jury . . . 347,348 10. In actions for loss of service, cannot include mental anguish . , . 348 SECTION IX. CAKBIEES OF PASSENGERS AND GOODS CANNOT DRIVE WITHIN THE PRECINCTS OF A RAILWAY STATION . . . 348, 349 SECTION X. DUTY RESULTING FROM THE SALE OF THROUGH PASSENGER TICKETS, IN THE FORM OF COUPONS. 1. Not the same, as where goods and baggage are ticketed through . 349 2. It is to be regarded, as a distinct sale of separate tickets for different roads . * 349,350 3. The first company are to be regarded, as agents for the others . 350 4. If the business of the entire line is consolidated, it is different . 350 5. But in general it ts not regarded, as a case of partnership ' . . 350 SECTION XI. HOW FAR THE DECLARATIONS OF THE PARTY ARE COMPETENT EVIDENCE. 1. Are competent to show state of health, in connection with other facts 351 2. But not to show the manner in which the injury occurred . 351 c * XXX CONTENTS. SECTION XII. PASSENGERS WEONGPULLT EXPELLED PKOM CAES. 1. Company were not held liable for exemplary damages unless they rati- page ■^ fied the expulsion . • •.,,„" .', , ' „^i W'2. But upon principle the company should be liable for special damage 352 3. Are trespassers if they refuse to deliver baggage in such cases . 352 SECTION XIII. PAYING MONET INTO COUKT, IN ACTIONS AGAINST PASSENGER OAKRIEBS. 1. Payment into court in general count, and tort, only admits damages to extent of sum paid ...... 352, 353 2. But in cases of special contract, admits the contract and breach al- leged ........ 353 SECTION XIV. LIABILITY WHERE ONE COMPANY USES THE TRACK OF ANOTHER. 1. Statement of the facts of a case . ... . . 353 2. Company not liable to passengers for torts committed by strangers 354 3. Same liability towards passengers coming from other roads, as in other cases ........ 354 CHAPTER XVIII. EXCESSIVE TOLLS, FARE, AND TKEIGHT. 1. English companies created sometimes, for maintaining road only . 355 2. Where excessive tolls taken may be recovered back . . 355 3. So also may excessive fare and freight .... 355 4. By English statute, packed parcels must be rated in mass . 356 5. Nature of railway traffic requires unity of management and control . 356 6. Tolls upon railways almost unknown here. Fare and freight often limited . . . . . . . . 356 7. Guaranty of certain profit on investment lawful . . . 356 8. Restriction of freight to certain rate per ton, extends to whole line 356 9. Need^not declare for tolls . . ■ . . . . 357 10. Itlode of establishing, and requisite proof • . . . . 356 CHAPTER XIX. LIABILITY FOR FIRES, COMMUNICATED BY COMPANY'S ENGINES. 1. Fact of fires being communicated evidence of negligence . . 357 2. This was at one time questioned in England . ° . . 357 3. Opinion of Tindal, Ch. J., upon this point . . 357, 358 4. English companies feel bound to use precautions against fire 358, 359 5. Rule of evidence, in this country, more favorable to companies . 359 6. But the company are liable for damage by fire through w^nt of care on their part ••..... 359 7. One is not precluded from recovery, by placing buildings in an ex- posed situation . . . . _ _ ggg 8. Where insurers pay damages on insured property may have action against company ...... 359 360 9. Where company made liable for injury to all property, are allowed to ' ' '°s"^e ggO CHAPTER XX. INJURIES TO DOMESTIC ANIMALS. 1. Company not liable unless bound to keep the animals off the track . 361 CONTENTS. XXXI PAGE 2. Some cases go even further, in favor of the company . . 361 3. Not liable where the animals were wrongfully abroad , 361, 362 4. Not liable for injury to animals, on land, where company not bound to fence ........ 362 5. Where company bound to fence are prima facie liable for injury to cattle . ^ . . . . . 362 6. But if owner is in fault, company not liable . . . 362, 363 7. In such case company only liable for gross neglect, or wilful injury 363 8. Owner cannot recover, if he suflfer his cattle to go at large, near a rail- way . . . . . . . 363,364 9. Company not liable in such case, unless they might have avoided the • injury ........ 364 10. Where company are required to keep gates closed, are liable to any party injured by omission ..... 364 11. Opinion of Gifison, Justice, on this subject . . . 364,365 12 and 17. Not liable for consequences of the proper use- of their en- gines ...... 365,367 13. Questions of negligence ordinarily to be determined by jury . 365, 366 14. But this is true only, where the testimony leaves the question doubtful 366 15. Actions may be maintained sometimes, for remote consequences of negligence ....... 366 16 and 18. Especially where a statutory duty is neglected by company 366, 367 CHAPTER XXI. FENCES. SECTION I. UPON WHOM BESTS THE OBLIGATION TO MAINTAIN FENCES. 1. By the English statute, there is a separate provision made for fenc- ing . 368, 869 ( 2. This provision is ttere enforced against the companies by mandamus 369 3. But where no such provision' exists, the expense of fencing is part of the land damages ....... 369 4. And where that is assessed, and payment resisted by the company, the land-owner is not obliged to fence ..... 369 5. In some cases it has been held the fencing is to be done equally, by the company and the land-owner . . . . .370,371 6. Assessment of land damages, on condition company build fences, raises an implied duty on their part . . • . .372 7. In some states, owners of cattle not required to confine them upon their own land . . . ■' • • • 372 ' 8. Lessee of railway bound to keep up fences and farm accommodations 373 9. Company bound to fence land acquired by grant . . .373 10. Farm-crossings required wherever necessary . . . 373 11. Where land-owner declines farm accommodations . . . 373 12. Fences and farm accommodations not required for safety of servants and employees . . . • • _ • 373, 374 13. Requisite proof where company liable for all cattle killed . . 374 SECTION II. AGAINST WHAT CATTLE THE COMPANY IS BOUND TO FENCE. 1. At common law every owner bound to restrain his own cattle . 374 2. And if bound to fence, against others' land, it extends only to those cattle rightfully upon such land . . . . • ... ■ 374, 375 3. Company may agree with land-owner to fence, and this will excuse damage to cattle ■'"''' a'^r IIr n. 5. Review of cases upon this subject .... 875, d7b XXXU CONTENTS. CHAPTER XXn. LIABILITIES IN REGARD TO AGENTS, SUB-AGENTS, AND CONTRACTORS. SECTION I. LIABILITY FOR ACTS AND OMISSIONS OF CONTRACTORS AND THEIR AGENTS. 1. Company not ordinarily liable for the act of the contractor, o.r his ser- page vant .....•••.• 377 2. But if the contractor is employed to do the very act, company is liable ' 378 3. American courts seem disposed to adopt the same rule . . 378 4. Distinction attempted' between liability for acts done upon movable and immovable property, not maintainable . . ■ 378,^79 6. Cases referred to where true grounds of distinctions are stated . 379 6. No proper ground of distinction, in regard to mode of employment 379 7. Proper basis of company's liability explained . . . 379 SECTION n. LIABILITY OF THE COMPANY FOR THE ACTS OP THEIR AGENTS AND SERVANTS.. 1. Courts manifest disposition to give such agents a liberal discretion - . 380 2. Company liable for torts, committed by agents, in discharge of their duties ........ 380 3. May be liable for wilful act of servant, in the range of his employment 381 4. Some of the cases hold it necessary to show the assent of the com- pany . . . . . . I . . 381-384 n. 6. Cases upon this subject reviewed .... 381-384 5. Most of the cases adhere to the principle of respondeat superior 382-384 6. But it seems not to have been considered, that the company is pres- ent . . . . . ■ . . . 384, 385 7. The cases seem to regard the company, as always absent . . 385 8. In cases where the company owe a special duty, the acj: of the servant is always that of the company ..... 385 9. It seems more just and reasonable to regard the .company as always I . present, in the person of their agent .... 385, 386 SECTION m INJURIES TO SERVANTS, BY NEGLECT OF FBLLOW-SEKVANTS, AND nSE OP MACHINERY. 1. In general no such cause of action exists against company . . 386 2. But if there is any fault, in employing unsuitable servants or machin- ery, are liable . . . . . . . gg? 3. But not liable, for deficiency of help, or for not fencing road . . 887 4. Has been questioned whether rule applies to servants of different grades •.•■.... 387 388 5. Rule not adopted in some states. Case of slaves. Scotland . 388-390 6. No implied contract, by ship-owners, that ship is sea-worthy . 889, 390 7. But rule does not apply, where servant has no connection with the particular work . . . . ... 390 n. 9. Cases reviewed in England, Scotland, and America' . ' . 388-390 SECTION IV. INJURIES BY DEFECTS IN HIGHWAYS, CAUSED BY COMPANY'S WORKS. 1. Liable for injuries caused by leaving streets in insecure condition . 391 2. MunicipaUties liable primarily to travellers suffering injury 391 392 3. They may recover indemnity of the company . . . '392 4. Towns liable to indictment. Company liable to mandamus, or action" 392 CONTENTS. XXxiii SECTION V. LIABILITY rOR INJtTRT IN THE NATURE OP TOETS. PAGE 1. Railway crossings upon a leyel always dangerous . . . 393 2. Company not excused, by use of the signals required by statute 393, 394 3. Party cannot recover, if his own act contributed to injury . . 394 4. But company liable still," if they might have avoided the injury . 394 6. If company omit proper signals, not liable, unless that produce the in- jury . . . ... . . . .394 6. Not liable for injury to cattle trespassing, unless guilty of wilful wrong 394 7. General definitions of company's duty .... 395,396 8. Action accrues from the accruing of the injury . . . 396 9. Where injury is wanton, jury may give exemplary damages . 396 : ' SECTION VI. MISCONDUCT OF EAILWAT OPERATITES SHOWN BY EXPERTS. 1. The management of a train of cars is so far matter of science, and art, that it is proper to receive the testimony of experts . . 396, 397 2. In cases of alleged torts company not bound to exculpate . . 397 5. So, too, the plaintiff is not bound to produce testimony from experts . 397 4. The jury are the final judges in such cases. But omission to produce testimony of expert# will often require explanation . . 397,398 n. 5. General rules of law in regard to the testimony of experts . . 398 CHAPTER XXIII. RAILWAY DIRECTORS. SECTION I. EXTENT OP THE AUTHORITY OP RAILWAY DIRECTORS. 1. Notice to one director, if express, sufficient . . . 399,400 2. Applications to the legislatuiH for enlarged powers, and sale of com- pany's works, require consent of shareholders . . . 400 8. Constitutional requisites must be strictly followed . . . 400 4. Directors, or shareholders, cannot alter the fundamental business of the company ........ 400 5. Inherent difficulty of defining the proper limits of railway enterprise 400, 401 n. 7. Opinion of Lord Langdale, and review of cases, on this sub- ject ........ 401-404 SECTION n. WHEN DIRECTORS BECOME PERSONALLY LIABLE. 1. Not liable personally, for any lawful act done as directors . 402-404 2. But are liable upon express undertaking, to be personally holden 404, 405 3. Are liable personally, if they assume to go beyond their powers . 405 4. Extent of powers affected often, by usage and course of business . 405 6. But if contract is beyond the power of company, or not in usual form, directors personally liable ...... 405 6. Statement of case illustrating last point .... 405 SECTION III. COMPENSATION POR SERVICE OP DIRECTORS. 1. In England, directors of railways not entitled to compensation for services . . . _ . ■ • . • 406 2. But the company may grant an annuity to a disabled officer . 406 3. In this country are entitled to compensation, in conformity to the order of the board ...... 406 XXxiv CONTENTS. SECTION IV. i'A<5^ KECOKDS OF THE PROCEEDINGS OP DIEECTOKS, 40" SECTION V. ■ ATJTHOKITT OP DIRECTORS TO BORROW MONET, AND BUT GOODS. 1. Authority of directors to bind company, express or implied • 407 2. General agent will bind company within scope of his duties. ■L'"^ec- tors presumed to assent to his contracts . • • • 407, 408 3. Contracts under seal of company ;)nma/acie bind them . . 40S, 4Ua 4. Strangers must take notice of general want of authority in directors, but not of mere informalities ...•■• 409 5. Cannot subscribe for stock of other companies . • • 409 6. May borrow money if requisite . . . • ■ 409 SECTION VI. DUTT OP RAILWAY DIRECTORS TO SBRTE THE INTERESTS OP COMPANT. 1. General duty of such office defined ..... 410 2. Claim for secret service and influence with directors . . 410 3. Opinionof Justice Hoffman upon the legality of such contracts 410-415 n. 3. Cases reviewed upon the subject of secret services . .- 411,414 SECTION VII. RIGHT TO DISMISS EMPLOYEES. RULE OP DAMAGES WHEN DONE WRONGPULLT. 1. Some cases hold that if wrongfully dismissed, may recover salary 415, 416 2. English courts do not favor this view. Case stated by English judges 416 3. The American cases have sometimes taken the same view . 417 4. Where the contract provides for a term of wages, after dismissal, it is to be regarded as liquidated damages . . . .417 5. Statute remedy, in favor of laborers of contractors, extends to laborers of sub-contractors . . . % • • • 417 CHAPTER XXIV. ARRANGEMENTS BETWEEN DIPPEEENT COMPANIES. SECTION I. LEASES, AND SIMILAR CONTRACTS, REQUIRE THE ASSENT OP LEGISLATURE. 1. By English statutes one company may pass over road of another, but contract binding . . . - . . . . 418 2. But cannot transfer duty of one company to another, without legislative grant ....... 418, 419 3. Original company liable to public after such lease . . . 419 4. Courts of equity enjoin companies from leasing, without legislative consent ........ 420 5. But such contracts, made by legislative grants, are to be carried into effect ... . . . . . . 420 6. Majority of company may obtain enlarged powers, with new funds 420, 421 7. So the majority may defend against proceedings in legislature . 421,422 8. Legislative sanction will not render valid, contracts ultra vires . 422 9. Railway company cannot assume duties of ferry, without legislative grant ••■..... 422 CONTENTS. XXXV SECTION II. KEOESSITY OF CONTRACTS OF COKPOEATION8 BEING UNDER SEAL. 1. The English courts manifest great reluctance to abandon the former page rule of law on this subject ...... 423 n. 2. Extended review of the English and some of the American cases 423-428 SECTION in. D0TT OF THE RESPECTIVE COMPANIES TO PASSENGERS AND OTHERS. 1. Company bound to keep road safe. Act of other companies no ex- cuse . . . . . . . . 424 428 2. Some cases hold that passengers can only sue the company carrying 'licm ........ 429, 430 3. Passenger carriers bound to make landing-places safe . . . 430 4. But those who ride upon freight trains, by favor, can only require such security as is usual upon such trains .... 430 5. Owners of all property bound to keep it in state, not to expose others to injury . . . . . . . .430 6. This rule extends to railways, where persons ara rightfully upon them . . _ . . . . . . 430, 431 n. 3. Cases, as to the necessity of privity of contract existing, reviewed 430 SECTION IV. EXTENT OF THE POWERS AND DUTIES OF LESSEES OF RAILWAYS. 1. Statement of the points in an important English case . . 431-434 2. Lessees of railway liable for- their own acts, and for many acts of lessors ........ 434, 435 SECTION V. CONTRACTS BETWEEN DIFFERENT COMPANIES REGULATING THE TRAFFIC 435, 436 SECTIOJN VI. WHAT IS REQUISITE TO CONSTITUTE A PERPETUAL CONTRACT, BETWEEN DIFFERENT RAILWAY COMPANIES . . . 436 SECTION VII. CONTRACTS BY RAILWAYS ULTRA VIRES, AND ILLEGAL. 1. Contracts to make erections not authorized by their charter . 436,- 437 2. Contracts to indemnify other companies against expense . . 437 3. Contracts to divide profits ...... 437 SECTION vni. COMPANIES EXONERATED FROM CONTRACTS, BY ACT OF THE LEGIS- LATURE .... 437, 438 SECTION IX. WIDTH OP GAUGE. JUNCTION WITH OTHER ROADS. 1. Where the act requires broad gauge, does not prohibit mixed gauge 438 2. Permission to unite with other road, signifies a road de facto . 438 3. Equity will enjoin company against changing gauge sometimes 438, 439 4. Contract to make gauge of the companies the same, although contrary to law of state, at its date, may be legalized by statute . . 439 XXXVl CONTENTS. CHAPTER XXV. MANDAMUS. SECTION I. GENERAL EtTLES OE LAW GOVERNING THIS REMEDY. PAGE 1. Regarded as a supplementary remedy . . - . • 440 2. Mode of procedure ; 1. Matter of discretion. 2. Alternative writ . 440, 441 3. Proceedings in most of tha American courts .... 441 4. English courts do not allow application to be amended . . 442 5. Recent English statute has essentially simplified proceedings . . 443 6. Mode of trying the truth of the return . . . . 443,444 7. Costs rest in the discretion of court ..... 444 8. Mode of service ....... 444, 445 9. By late English statutes, mandamus effects specific performance . 445 SECTION II. PARTICULAR OASES WHERE MANDAMUS LIES TO ENEOROE DUTY OP * CORPORATIONS .... 445 SECTION III. MANDAMUS TO COMPEL COMPANY TO COMPLETE THEIR BOAD. 1. English courts have required this upon a general grant . 446-453 2. But these cases overruled. Not required now, unless under peculiar 'circumstances ....... 453 SECTION IV. IN WHAT CASES THIS IS THE PROPER REMEDY. 1. Where the act is imperative upon the company to build road 453, 454 2. Mandamus more proper remedy than injunction . . . 454 454 . 455 455 .' 456 456 . 456 456 456, 457 457 Commissioners of public w6rks not liable to this writ • 4. Public duties of corporations may be so enforced 5. Facts tried by jury. Instances of this remedy 6. Cannot be substituted for certiorari, when that is taken away 7. Requiring costs to be allowed .... 8. Other instances of its application * . 9. Lies where the duty is clear, and no other remedy 10. Not awarded to control legal discretion 11. Does not lie to try the legality of an election SECTION V. PROPER EXCUSES, OR RETURNS TO THE WRIT. 1. Company may return that powers had expired at date of writ 457, 458 2. May show want of funds to perform duty .... 458 3. But cannot show that road is not necessary, or would not be remuner- ative . . . . . . . .458 4. May quash part of return, and require answer to remainder . 458-459 5. Counsel for writ entitled to begin and close .... 459 6. Cannot impeach the statute, in reply to the writ . . " . ' 459 7. Peremptory writ cannot issue till whole case tried ... 459 8. Will not quash return summarily . . . . ' _ ' 459 9. No excuse allowed for not complying with peremptory writ . " . 459 SECTION VI. WHERE THE ALTERNATIVE WRIT REQUIRES TOO MUCH, IT IS BAD, FOR THAT WHICH IT MIGHT HAVE MAINTAINED . ' ' . ieO CONTENTS. XXXvii SECTION VII. ENFORCING PAYMENT OP MONET AWARDED AGAINST RAILWAYS. PAGE 1. The enforcement of payment of money against corporations by man- damus ........ 460 2. Where debt will lie, the party not entitled to mandamus . . 461 3. Mandamus proper to compel payment of compensation under statute 461 4. Mandamus not allowed in matters of equity jurisdiction . . 461,462 5. Contracts of company not under seal enforced by mandamus . . 462 6. Where a statute imposes a specific duty, an action will lie . . 462 SECTION vni. THE WRIT SOMETIMES DENIED IN MATTERS OP PRIVATE CONCERN. 1. Mandamus denied to compel company to divide profits . 462, 463 2. Allowed to compel production and inspection of corporation books 463 3. Will compel the performance of statute duty, but not to undue, what is done ........ 463, 464 4. Allowed to compel the production of the register of shares, or the registry of the name of the owner of shares, and in other cases . 464 5. It is the common remedy for restoring persons to corporate offices of ' • which they are unjustly deprived .... 464, 465 SECTION IX. THIS REMEDY LOST BY ACQUIESCENCE. PROCEEDING MUST BE BONA PIDE. 1. Remedy must be sought at earliest convenient time . . . 466 2. Courts will not hear such case, merely to settle the question . 466 3. In New York may be brought any time, within statute of limitations 466 SECTION X. MANDAMUS ALLOWED WHERE INDICTMENT LIES. 1. Party may have mandamus sometimes where act is indictable . 467 2. Allowed to compel company not to take up their rails . . 467 3. Will not lie where there is other adequate remedy . . .467 SECTION XL JUDGMENT UPON PETITION FOR MANDAMUS REVISABLE IN ERROR . 468^ CHAPTER XXVI. "WRtT OP CERTIORARI. SECTION I. TO REMOVE PROCEEDINGS AGAINST RAILWAYS. 1. Lies to bring up unfinished proceedings, or those not according to the common law ....... 469 2. This writ is one of very extensive application, unless controlled by statute ......... 469 3. Where the cause is fully heard on the application, judgment may be entered ....... 470 SECTION II. WHERE THERE IS AN EXCESS OF JURISDICTION . . 470 SECTION m. JURISDICTION AND MODE OP PROCEDURE. 1. Lies in cases of irregularity, unless taken away by statute . . 471 d xxxviii CONTENTS. ^^^^ 2. Inquisitions before officers not known in the law . ' , , , " 471 3. Granting the writ is matter of discretion. Befects not amendable . CHAPTER XXVII. INFORMATION IN THE NATURE OF QUO WARKANTO. 1. General nature of the remedy . ■ '. ., . '■*^-t-' ^7, 2. Its exercise confined to the highest court of ordmary civil jurisdiction 472 3. In the English practice, this remedy not extended to private corpora^-^^ ^^^ tions . ■ ■ • • • . ■ ■ ' ^79 4. In this country it has been extended to such corporations . . 4 (d 5. This remedy will only remove an usurper, but not restore the one rightfully entitled . ...... 473 CHAPTER XXVIII. EQUITY JURISDICTION IN EEGAKD TO RAILWAYS. SECTION I. INJUNCTIONS AGAINST RAILWAT COMPANIES. * 1. Courts of equity will not assume the control of railway construction 474 2. Will restrain company from taking lands byindirection . 474,475 3. Will restrain railway company, when exceeding its powers . . 475 4. If company have power to pass highways, board of surveyors cannot stop them ...... 475,476 '5. Board of surveyors should apply to the tribunals of the country 476 6. Equity will restrain company, from exceeding powers, or if they have ceased . . . • . • . • ^^^ 7. Injunctions to enforce the payment of compensation for land . 476 8. Injunction suspended on assurance of payment, by short day 476, 477 9. Course of equity practice must conform to change of circumstances 477 10. The course of proceeding in American courts of equity is the same 477 n. 11. Review of the cases upon this subject . . . 477-479 SECTION II. INJUNCTIONS TO PROTECT THE RIGHTS OP LAND-OWNERS, AND OP THE COMPANY. 1. Company restrained from taking less land than specified in notice 478-480 2. Sometimes injunction refused; where great loss will ensue . . 480 3. Will not enjoin company to try constitutionality of their act . 480 . 4. May be restrained trom carrying^assengers beyond their limits . 481 5. So also from taking land beyond the reasonable range of deviation 481 6. But not where the company have the right to take the land . 481 SECTION III. EQUITABLE INTERFERENCE IN REGARD TO THE WORKS. 1. No universal rule upon the subject of equitable interference . . 481 2. These matters often arranged, by mutual concessions, and an issue at law . . . . . . . . 481,482 3. Cases illustrating the mode of proceeding in courts of equity 482-484 4. Where company required to do least possible damage . . 484 SECTION IV. PtTRTHER INSTANCES OF EQUITABLE INTERFERENCE AS TO WORKS. 1. In a clear case equity will direct the mode of crossing highways . 484, 485 2. JVlandamusthe more appropriate remedy in such cases . . 485 3. Towns may maintain bill in equity to protect highways . . 485, 486 CONTENTS. XXxix SECTION V. INJUNCTIONS TO CARRY INTO EFFECT ORDERS OF RAILWAY COMMISSIONERS. PAGE 1. Railway companies perform important public functions . . 486,487 2. Courts of equity will enforce order of railway commissioners, without revislgl ........ 487 SECTION VI. EQUITABLE INTERFERENCE WHERE COMPANY HAVE NOT FUNDS. 1. English courts will not allow company to take land, when their funds fail ....... . 487,488 2. This has been qualified by later eases, and is very questionable . 488 3. Equity will not interfere where company propose to complete but part of works ....... 489 n. 4. Cases reviewed, and result stated ..... 489 SECTION VII. ' EQUITABLE CONTROL OF THE MANAGEMENT OF RAILWAY COMPANIES. 1. Courts of equity will not interfere in matters remediable by share- holders ....... 490 2. Will not restrain company from declariiUg dividend till works are fin- ished ........ 490 3. Will interfere to enforce public duty rather than a private one . 490 4. Will restrain such companies from diverting funds to illegal use . 490 5. Interference of court of equity cannot be claimed upon the assumption of the practical dissolution of company . . . 491-493 6. Directors liable to same extent, as other trustees . . 493, 494 7. Managing committee not chargeable with the fraudulent acts of its members . . ' . . . . . 494 8. Courtstof equity will not enforce resolutions of directors or com- pany . . _ . . . . . 494,495 9. Suits in equity in favor of minority against majority . . 495 10. Minority may insist upon continuing the business till charter expires . 495 11. M>noi"ity ^^y have bill against directors for not resisting illegal tax 495 12. Company may expend funds in resisting proceedings in parliament 495 13. Equity will not compel directors to declare dividend, unless they,wil- fully refuse ....... 495 14. Directors only liable for good faith and reasonable diligence . . 495 SECTION VIII. APPLICATIONS TO LEGISLATURE FOR ENLARGED POWERS. 1. Equity will not restrain railway companies from petition for enlarged powers ........ 496 2. The early English cases favored such applications . . 496,497 3. The proper limitations stated . . . . .497 SECTION IX. SPECIFIC PERFORMANCE. 1. Courts of equity will often hold control over railway contracts, refer- ring the question of law to the courts of law . . 497, 498 2. But where the legal right is clear, equity will not interfere . 498 3. And where the affidavits are conflicting, court declined interfering . 498 4. So, too, where the company agreed to stop at a refreshment station 498 5. So also, if there is doubt of the legality of the contract, or its char- acter . . . . . . . . 499 6. A contract between different companies for the use of each other's track is permanent, and will be enforced in equity . . 499 7. Will decree specific performance in regard to farm accommodations 499 xl CONTENTS. SECTION X INJUNCTIONS KESTRAINING ONE COMPANY PROM INTEKFERING WITH EXCLUSIVE PRAN0HISE3 OP ANOTHER. PAGE 1. Equity exercises a preventive jurisdiction in such cases . 499, 500 2. Will not interfere where the legal right is doubtful . . 500 3. Unless to prevent irreparable injury, multiplicity of suits, or^here legal remedy is inadequate . . . ' . . ▼ . 500 4. Statement of facts and mode of procedure in such a case . . 500 5. Injunction against different lines, so connecting, as to create compet- ing linci- ........ 501 6. Many cases take similar view ..... 501 7. Railway not regarded as an infringement of the rights of a canal 501, 502 8. But will be restrained from filling up the canal . . . 602 SECTION XI. INJUNCTIONS AGAINST THE INFRINGEMENT OF CORPORATE FRAN- CHISES, IN THE NATURE OP NUISANCE. 1. Allowed to prevent multiplicity of suits, collisions, and riots . 502 2. Lord Brougham's definition of the jurisdiction . . 502 603 3. Definition of same by Chief Justice Shaw . . , 503 4. Statement of the general grounds of equitable interference . 503 SECTION XII. INJUNCTIONS TO PRESERVE PROPERTY PENDENTE LITE. 1. Will not decree specific performance, where mere question of dam- „r?S^^ . . ■ . • ■ • ■ . . . 503, 504 2. Where injunction might operate harshly, parties put under terms . 504 n. 2. Review of cases upon this subject .... 504 505 SECTION xni. • INJUNCTIONS RESTRAINING PARTIES FROM PETITIONING LEGIS- LATURE. 1. Right claimed to exist, but rarely exercised, bv courts of equity . 505 2. Not sufficient, that it will interfere with rights'of other parties 505 506 3. Where right doubtful may be sent to court of law for determination ' 506 SECTION XIV. INTERFERENCE OF COURTS OF EQUITY IN THE SALE AND DISPOSITION OP THE EFFECTS OF INSOLVENT COMPANIES. 1. Will interfere to save costs and, litigation ... 50$ 2. All parties interested may come in . . ' . " ' gog SECTION XV. MANNER OP GRANTING AND ENFORCING EX PART^ INJUNCTIONS. 1. Such injunctions especially liable to abuse . . 507 2. In important cases not allowed except upon notice to other partv ' 507 3. Injunction commonly dissolved, upon answer denying equity " 507 4. Remarks of Lord Cottenham upon this subject ■' ^ ^ ■' 607-509 5. Party who obtains such injunction on imperfect state of facts liable to "^"^ ' ■ ■ ■ • • • • . .509 SECTION XVI. RIGHT TO INTERFERE BY INJUNCTION LOST BY ACQUIESCENCE. 1. AcquieBcence to extinguish right, must have operated upon other ^ ■••••. 510 CONTENTS. xli FAGB 2. Delav, to learn the extent of injury, will not estop the party . 510 3. Acquiescence has been held not always perfectly to express the idea 510,511 SECTION XVII. MANDATOKT INJDNCTIONS SOMETIMES ALLOWED. 1. Injunctions may produce mandatory effect, but must be specific . 511 2. A decree for specific performance is a mandatory injunction . 511, 512 SECTION XVIII. EEMEDT PKOVIDED IN CHAKTER BOES NOT SUPEKSEDE KESOKT TO EQUITY. 1. Special provisions of charter, do not commonly affect the jurisdiction of courts of equity . . . . . . 512 2. Recent English statutes supersede such jurisdiction chiefly, in suits at law ......... 512 SECTION XIX. WILFUL BREACHES OP INJUNCTIONS. 1. Statement of case ....... 513 2. Opinion of Vice-Chancellor ..... 513, 514 SECTION XX. QUESTIONS OP COSTS IN EQUITY. 1. Costs most commonly awarded to prevailing party - . . . 514 2. If parties compromise merits, court will not decide question of costs 514 CHAPTER XXIX. INDICTMENT. SECTION I. INDICTMENTS AGAINST RAILWAY COMPANIES. 1. Are liable to indictment for obstructing public highway . . 515 2. Corporations liable to indictment for misfeasance, as well as non- feasance . . . . . . . . 516, 517 3. Not liable to indictment for disturbing quiet, by proper use of loco- motives . . . . . . . .517 4. Where the company have the right to divert highways, it is for the jury to determine, whether it is done in a reasonable manner . 517,518 5. All that is requisite is, that it produce no serious public inconvenience 518 6. Order, or conviction of company, in relation to repair of highways, may be general ....... 518 7. Signals required to be given, at highway crossings, on level . 518, 519 n. 2. Review of the cases upon the subject . . . 515-517 SECTION II. HOW FAR RAILWAYS MAY BECOME A PUBLIC NUISANCE. 1. Use of public streets of a city, by permission of city authorities, by railway, not a nuisance ...... 519 2. But the use of locomotives, in vicinity of a church, on Sunday, may become a nuisance • . . . . . 519 3. City authorities may grant railway leave to use streets, or to tunnel 519, 520 4. But company must not unnecessarily interfere with comfort of others in such use ....... 520 6. The slight obstruction of navigable waters, by railway company, authorized by act of legislature, not a nuisance . . . 520 d* xlii CONTENTS. PAGE 6. Such grants construed strictly. Any excess of authority becomes a nuisance . . • • • ' r^ ■' %. 7.^,Company not justified in building stations, for passengers, or freight, _ in highway . . . SECTION HI. INDICTMENT FOK OFrENCES AGAINST RAILWAYS. 1. Railway tickets chattels. Railway pass subject of forgery . .521 2. Under the English statute, indictments for obstructing railway car- riages, or endangering persons therein .... 522 n. 4. Loss of railway ticket. Negotiability of same . . . 621, 522 CHAPTER XXX. TAXATION. SECTION I. ASSESSMENTS UPON RAILWAY WORKS, AND UPON STOCK, OR SHARES. 1. Under English statutes, company assessed for net profits, in each parish ........ 523 2. This may be increased by the traffic, or by smallness of repairs,, in the parish ....... 524 3. Depreciation of road by time, to be taken into account . . 524 4. Mode of estimating yearly net profits .... 524, 595 5. Rule stated in several of the Ameripan states . . . 525-527 . 6. Liability to taxation, on railway stock, same as other personal property . . . . . . . 527,528 n. 10. Right of legislature, to exempt company, or stock, from taxation 526, 527 7. Railways not generally held liable to taxation, as a fixture, under gen- eral laws ........ 528 8 . Such erections, as are necessary to the use of a railway, are not tax- able separate from the road ..... 528, 529 9. But erectfcns of mere convenience, for profit, may be . . . 529 10. Or such, as are without the limits of land, allowed to be taken, com- pulsorily ........ 529 section; .11. LEGISLATIVE EXEMPTION PROM TAXATION. 1. General nature of such exemptions stated . . . 529, 530 2. General exemption from taxation includes stock . . . 530 3. Qualifications of the general rule .... 530 531 4. Exemption of the capital stock, includes all property of the company, necessary to its business ...... 531 5. Exemption, with exception, includes all modes of taxation, but that pne . . . . . . . . .531 6. Union of companies, where some are exempted from taxation and some not ........ 531 7. Construction of a qualified exemption from taxation . . . 531 8. Such exemptions declared unconstitutional . . . 531 532 9. Where railway works are taxed indirectly, they cannot be taxed directly also ....... 532 10. Qualified exemptions held valid, and inviolable . . ' . 532 533 11. Exemptions from taxation should be held temporary, where they will ' bear that construction . . . _ _ cog SECTION III. COUNTIES TO SI STOCK. 1. Such subscriptions held valid, if authorized by legislature . 533, 534 RIGHTS OF TOWNS AND COUNTIES TO SUBSCRIBE FOR RAILWAY STOCK. CONTENTS, xliii PAGE 2. Such subscriptions, in another state or province, held valid . . 535 3. Lateral railway acts in Pennsylvania constitutional . . 535 4. and n. 2. Some courts and judges have dissented from the general <( <5 T^ . ,. • ■ . ■ 535,536 0. ftucli acts have received a very strict construction . . . 536 n. 1. Case^eviewed ....... 533 534 CHAPTER XXXI. CONSTITUTIONAL QUESTIONS. SECTION I. WHEN KAILWAT GRANTS AKB PAEAMOTJNT AND EXCLUSIVE. 1. In the English Constitution there is no restriction upon the legislature 537 2. Limitation in United States Constitution, upon the subject . 637, 538 3. Essential requisites to constitute an exclusive franchise, or grant . 539 4. Construction of such. grant by the tribunal of last resort . . 539, 540 5. Opinion of Massachusetts Supreme Court upon the subject . . 540 6. Grants of the use of navigable v?aters, for maqjifaeturing, revocable 541-543 7. Forfeiture, for the benefit of a county, may be remitted by legislature 544-546 8. Where the legislature repeal the charter of a corporation. Presump- tions . . . . . . . . , 547 9. Statement of an important case in Louisiana . . . ,547,648 SECTION II. POWER OF THE LEGISLATUKE TO IMPOSE RESTRICTIONS UPON EXISTING CORPORATIONS. 1. Are subject to legislative control in regard to police . . . 549 2. n. 1. Opinion of court ift a case, as to railways . . . 549 3. Important early case in Maryland .... 550-554 4. Extent of a reserved power to repeal charters of corporations* 555-558 5. Where the charter is expressly exempted from legislative control 569, 560 6. Efi'ect of public patronage in regard to legislative control . 560 SECTION III. CONSTRUCTION OP EXCLUSI^ RAILWAY GRANTS. 1. Such grants are to receive a strict construction in favor of the com- pany ......... 561 2. How far such companies can claim under implied grant . . 661 3. Ambiguous terms construed most strongly against the company . 562 CHAPTER XXXII. BAILWAY INVESTMENTS. SECTION I. POWER OP COMPANY TO DO ACTS AFFECTING THE VALUE OF THEIR STOCK AND BONDS. OVERISSUE OF STOCK. 1. The importance and unsettled state of the law upon the subject . 563 2. The English statute requires the stock subscriptions to precede the grant . . . . . . . • 563, 564 3. Duty of railway directors in regard to speculations in shares . 564 4. Nature and effect of desperate financial expedients in building rail- ways ........ 564-568 4. (1.) Issuing stocks in railways, at different prices, fraudulent . 664-567 4. (2.) Mode of issuing bonds and mortgages objectionable . . 567,668 xliv CONTENTS. PAGE 6. Difficulty of preventing this by legislative restrictions, no excuse . 568 6. Something might be effected by legislation . . ■ _„„ -nl 7. These losses fall severely upon small owners . . . oGS, obi) 8. Overissue of stocks somewhat of a similar character . . 569 9. Case of New York & N. H. Railway before Superior Court . ■ 569 10. Same case before the Court of Appeals . ' . ' #' ^^^'^^^ 11. The principles involved in similar cases . . .^ 570,571 12. Eight of canal company to mortgage tolls, without consent of legis- lature ........ 571 SECTION II. KIGHTS .AND BEMEDIES OF BOND-HOLDERS AND MOKTGAGEES. 1. Under English statutes tolls only mortgaged. Ejectment will not lie 572 2. But if priority of lien is created, ejectment will lie . . 572,573 3. The English acts allow no covenant to refund the money, in railway mortgages . . . . . . • 573 4. But bond creditors, and mortgagees, where there is no restriction, may ' have covenant against company . . . . .573 5. All parties, standing in sarlle right, necessary parties to bill . 573 6. After appointment of receiver by court of equity, counter claimants cannot contest his rights, except in court of equity, or by their per- mission . . . a . . . . 573,574 7. Priority of right determinable only, upon motion to discharge the order of appointment ...... 574 8. Where charter creates a lien in favor of bill-holders, this is subject to the lien of contractors for construction .... 574 9. Some American cases hold railway companies may mortgage franchise, without consent of legislature ..... 574,575 10. Power to buy and sell real estate, and to borrow money, implies the power to mortgage for its security . . . . .575 11. Company ^receiving benefit of money, estopped to deny authority of agent ........ 575 12. The mortgage of the property or of the franchises, by the corporation, does not transfer the title to the corporate franchise . 575, 576 13. Statement of a leading case in New Hampshire . . . 577-589 14. The right to mortgage subsequently acquired property maintained in equity in Kentucky . w . . . , . 590 15^ Similar decision in equity in New Jersey .... 590, 591 16. And in the Circuit Court of United States . . . 590, 591 SECTION III. WHAT DEFENCES ALLOWED THE COMPANY, IN KEGAED TO BOK- KOWED CAPITAL. 1. Where the transaction is illegal, no estoppel will preclude its defence 592 2. Company may contract, beyond present powers, on future contin- gency of obtaining enlarged powers .... 592 593 3. Company cannot allege their own fraud in defence . . . '593 SECTION IV. RIGHT TO ISSUE PREFERRED STOCK. CONVERTING LOAN INTO CAPITAL, 1. The company may issue new stock, and give it preference, as a bona jide means of borrowing money . . ■ . 503 2. By English statutes, loan may be converted into capital." Terms of statute must be strictly pursiied. Courts of equity cannot dispense with them . . . . . . • Koa CONTENTS. xlv SECTION V. INVESTING TEtrST FDNDS IN BAILWAT SECBKITIES. PAGE 1. General duty of trustees, in regard to making investments . 594 2. English courts have regarded railway securiues too uncertain for such purpose ........ 594 8. Statemant of a case, upon the subject, in New Hampshire . 597 SECTION VI. BONA FIDE HOLDER OP HAILWAT BONDS, WITH COUPONS, MAT EN- rOKCE THEM. 1. Railway bonds payable to bearer, with coupons, negotiable securities . 595 2. This rule extends both to the bonds and coupons for interest . 595 3. Same rule extended to bonds issued by municipal corporations . 596 CHAPTER XXXin. DIVIDENDS. SECTION I. WHEN DIVIDENDS ARE DECLARED, AND HOW PAYABLE. 1. Dividends should be declared only from net earnings of company . 597 2. Right of .shareholders to dividends declared, is several, but joint, be- fore declared ...'... 597, 598 3. Lien upon shares creates a lien upon dividends . . . 598 4. Surety on bank-note or bill may restrain transfer of principal's stock 598 5. Action will not lie against company for dividends till demand . 598 SECTION II. PARTY ENTITLED TO DIVIDENDS WHERE STOCK HAS BEEN FRAUD- CLENTLY TRANSFERRED. 1. Fraudulent transferree not entitled to dividends, but subsequent hona fide purchaser may be . . . . . . 598, 599 2. But the hona fide owner may so conduct as to forfeit his claim 600, 601 3. One who buys stock in faith of the title on company's books may hold as against company ....... 601 n. 1. Review of English decisions .... 599-601 SECTION III. GUABANTT OF DIVIDENDS. 1. Guaranty of dividends upon stock for period of years . . 601 2. Rule of damages, in such case ...... 601 CHAPTER XXXIV. RIGHTS OF CREDITORS AND CORPORATORS. SECTION I. DISSOLUTION OF RAILWAYS. 1. Different modes in which railway companies may be dissolved — . 602, 603 (1.) By act of the legislature . • . . . . ■ 602 (2.) By surrender of franchises and acceptance by legislature . 602, 603 (3.) By forfeiture, from abuse or disuse of franchises . . > . 603 2. Shareholders not generally liable to creditors . . . 603 3. Shareholders entitled to proportionate share of net profits . 603, 604 4. Liability of subscribers, when scheme is abandoned . . 604 xlvi CONTENTS. ' PAGE 5. Commonly liable for share of expenses . . . 604, 605 6. Party receiving shares bound by terms of association . . 605 7. Not being informed, that deposits not paid, no fraud . . . 605 8. Shareholders cannot exonerate themselves by contract with directors 605 9. Corporations cannot give away effects, to prejudice of creditors . 605 10. If charter is repealed, by virtue of power reserved, courts presume it was rightfully done ...... 605, 606 , SECTION II. LEVY UPON PKOPEKTT OF COMPANY. 1. Where charter creates lien, is paramount to all others . . 606 2. Koad, or tolls, not subject to levy of execution . . . 606 SECTION III. EXECUTION AGAINST SHAREHOLDERS. 1. Mode of obtaining execution under English statute . . 606-608 2. Remedy, in this country, by distinct action, more commonly . 608 3. May proceed in equity .'...... 608 4. Payments in land valid ...... 608, 609 5. How stockholders may transfer personal liability . . . 609 SECTION IV. ASSIGNMENTS BY RAILWAYS IN CONTEMPLATION OF INSOLVENCY 609 CHAPTER XXXV. BOARD OF TRADE. RAILWAY COMMISSIONERS. SECTION I. SUPERVISION OP RAILWAY LEGISLATION . . 610, 611 SECTION II. SUPERVISION OP RAILWAYS BY EOAED OF TRADE AND RAILWAY COMMISSIONERS. 1. Proceeding in England, in opening railways . . .61] 612 2. Establish rules for connection . . . . ^ '. 'g]2 3. Connection of branch railways . . . ' ' ' gj2 4. Courts of equity will not interfere with decisions of Railway Com- missioners . . . . _ eiaeis 5. English courts regulate railways for public accommodation . '613 SECTION III. RETURNS TO BE MADE TO THE BOARD OF TRADE, OR RAILWAY COMMISSIONERS. I' ^fy/^l"'""^ companies to return traffic and accidents . . 613 2. J hird class trains and mail trains .... ' gio 3. Time of completing roads . . . _ ' " g , „ CHAPTER XXXVI. LEGISLATIVE SUPERVISION. POLICE OF RAILWAYS. SECTION I. OBLIGATIONS AND HESTkIctIONS IMPOSED BY STATUTE. 1. The benefits, and necessity of legislative control . . . 514 CONTENTS. xlvii PAGE 2. Provisions of English statute, in regard to traffic . . 614, 615 3. Control of the gauge. Right of public to use railway . . 615 SECTION II. REGULATION OP EUNNING CARS OR TBAaNS, BY MUNICIPAL AUTHORITY. 1. May prohibit the use of Steam-power in Streets . . 615,616 2. May do this by virtue of their general control of police . . 616 3. Police during construction of railways in England . . . 616 4. Right of municipalities to make railway grants . . . 616-618 SECTION III. CAEKTING MAILS AND TROOPS AND MUNITIONS OP WAE. 1. In England this is controlled by legislation of the nation . . 619 2. The division of sovereignty creates difficulty on that point . 619 3. But it would seem that the state and national legislatures may con- trol it ......;. 619 4. Mail agents may sue company for injury, in England . .619, 620 6. Same rule adopted in this country ..... 620 CHAPTER XXXVn. THE CONSOLIDATION OR AMALGAMATION OF COMPANIES. SECTION I. THE POWEE OF THE LEGISLATURE TO COMBINE COMPANIES 621, 622 SECTION II. WHAT AMOUNTS TO AN AMALGAMATION OP RAILWAY COMPANIES. 1. Mere association or alliance not sufficient . . . 622, 623 2. Agreement to amalgamate from a day past . . . 623 SECTION III. WHAT CONTRACTS MADE BEFORE AMALGAMATION ENFOECED AFTER- WARDS. 1. Where the amalgamation is legal, all prior contracts may be enforced 623 2. But where any formalities are not complied with, it is otherwise . 623, 624 3. Admissions by the company contracting, good against consolidated company ........ 624 4. Consolidated company may apply funds to pay debts of former com- panies . . ..... 624 5. Instance illustrating the right to amalgamate . . . .624 CHAPTER XXXVm. MISCELLANEOUS MATTERS. SECTION I. JTIEISDICTION OP THE UNITED STATES COUETS . 625,626 SECTION II. LIABILITY FOE DOING AN ACT PROHIBITED BY THE COMPANY'S CHAETEE, WITH- OUT SPECIAL DAMAGE TO THE PAETY INTEEESTED. SECTION III. MODE OF RECKONING TIME . . 627 SECTION IV. SERVICE OF PROCESS UPON NON-EESIDENT COMPANIES. xlviii CONTENTS. APPENDIX A. CHAPTER II. PUBLIC RAILWAYS. PBELIMINAET ASSOCIATIONS. SECTION I. PAGE MODE OF INSTITUTING RAILWAY PROJECTS . . . 631-634 SECTION n. CONTRACTS OF THE PROMOTERS NOT BINDING AT LAW, UPON THE COMPANY ........ 634, 635 SECTION III. SUBSCRIBERS TO THE PRELIMINARY ASSOCIATION INTER SESE . 635-638 SECTION IV. CONTRACTS OF THE PROMOTERS ADOPTED BY THE COMPANY . 638 SECTION V. HOW CONTRACTS OF THE PROMOTERS MAY BE ADOPTED BY THE COMPANY ........ 638, 639 SECTION VI. CONTRACTS BETWEEN THE PROMOTERS AND OPPOSERS OF A BILL FOR THE CHARTER OF A RAILWAY .... 639 641 SECTION VII. CONTRACTS OF THE PROMOTERS ENFORCED IN EQUITY . . 641-644 SECTION VIII. CONTRACTS OF THE PROMOTERS BINDING UPON THE COMPANY AT LAW ......... 644-646 SECTION IX. WHAT CONTRACTS, BETWEEN THE PROMOTERS OF RAILWAYS AND OTHERS, WILL BE ENFORCED, EITHER IN LAW, OR EQUITY AGAINST THE CONTRACTING PARTIES, OR THE COMPANY . ' 646-647 SECTION X. COURTS OF EQUITY WILL ENFORCE CONTRACTS WITH THE PROMOTERS 647 SECTION XI. SUCH CONTRACTS ENFORCED WHERE THE RAILWAY 18 ABANDONED 648-659 CONTENTS. xlix SECTION xn. PRACTICE OF COURTS OP EQUITY IN DECREEING SPECIFIC PERFORM- PAGE -^CE ........ 658-661 SECTION xin. SPECIFIC PERFORMANCE IN COURTS OF EQUITY . . . 661,662 SECTION XIV. COURTS OP EQUITY WILL RESTRAIN A PARTY FROM OPPOSITION, OR PETITION IN PARLIAMENT ...... 662 663 SECTION XV. CONTRACTS TO WITHDRAW OPPOSITION TO' RAILWAY PROJECTS, AND TO KEEP THIS SECRET, AGAINST SOUND POLICY, AND WOULD SEEM TO BE ILLEGAL ; . . . » . . 663-666 APPENDIX B. CHAPTER xn. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. SECTION I. COMPANY BOUND TO PURCHASE THE WHOLE OF A HOUSE, ETC. 667,668 SECTION II. THE COMPANY COMPELLABLE TO TAKE INTERSECTED LANDS, AND THE OWNER TO SELL ....... 665 SECTION III. EFFECT OF NOTICE TO TREAT FOR THE PURCHASE OF LAND . 669, 670 SECTION IV.* REQUISITES OF THE NOTICE TO TREAT . . . .671,672 SECTION V. THE NOTICE MAY BE WAIVED, BY THE PARTY ENTERING INTO NE- GOTIATION . ....... 672, 673 SECTION VI. TITLE OF THE CLAIMANT MUST BE DISTINCTLY STATED . 673,674 SECTION vn. THE CLAIM OF THE LAND-OWNER MUST CORRESPOND WITH THE NOTICE ........ 665 ' 1 CONTENTS. CHAPTER Xni. ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. fa SECTION I. LANDS TAKEN OB INJURIOUSLY AFFECTED, WITHOUT HATING PRE- PAGE VIOUSLY MADE COMPENSATION TO THE PARTIES . . 676-678 SECTION 11. THE PROCEEDINGS REQUISITE TO ENABLE THE COMPANY TO ENTER UPON LAND ....... 678, 679 SECTION III. MODE OF OBTAINING COMPENSATION UNDER THE STATUTE, FOR LANDS TAKEN, OK UjIJURIOUSLY AFFECTED, WHERE NO COMPEN- SATION IS OFFERED ...... 680 SECTION IV. THE ONUS OP CARRYING FORWARD PROCEEDINGS . . 680, 681 SECTION V. EQUITY WILL NOT INTERFERE, BY INJUNCTION, BECAUSE LANDS ARE BEING INJURIOUSLY AFFECTED, WITHOUT NOTICE TO TREAT, OR PREVIOUS COMPENSATION . . . . . 682 SECTION VI. sheriff's JURY, OE ARBITRATOR, CANNOT DETERMINE THE QUES- TION OF RIGHT IN THE CLAIMANT, BUT ONLY THE AMOUNT OF DAMAGES ........ 683, 684 SECTION vn. THE EXTENT OF COMPENSATION TO LAND-OWNERS, AND OTHER IN- CIDENTS BY THE ENGLISH STATUTES .... 684-686 SECTION VTII. RIGHT TO TEMPORARY USE OF LAND TO ENABLE THE COMPANY TO MAKE ERECTIONS UPON OTHER LANDS .... 686, 687 SECTION IS. RESERVATIONS TO LAND-OWIJERS TO BUILD PRIVATE RAILWAY ACROSS PUBLIC RAILWAY ...... 687 CHAPTER XIV. THE MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES. SECTION I. BY JUSTICES OP THE PEACE ..... 688 SECTION II. * BY SURVEYORS ....... 689 CONTENTS. li SECTION m. PAGE BY ARBITRATION ...... 689-691 APPENDIX C. NOTES OP LATER CASES .... . 692-697 TABLE OF CASES. ■ Page A. & S. Railway t>. Baugh 372 A. & S. Railway Co. v. Carpenter 135 Abbot D. Goodwin 591 Aberdeen Railway v. Blakie 22 Abraham v. Great Northern Railw. 166 Ackley v. Kellogg 284, 286 Adair v. Shaw 76 Adams v. Clark 315 V. Frye 49 V. London and Blackwall Railway 485, 680 V. Saratoga & Wash. Rail- way 157, 159 Adderly v. Storm 58 Adley v. Whitstable Co. 24 Agar V. Athenasum Life Ass. Co. 408 ■: V. Regent's Canal Co. 93, 475, 478, 488 Agricultural Bank v. Burr 44 V. Wilson 44 Alabama & Tenn. Rivers Railway V. Kidd 380 Albany Northern Railway Co. v. Lansing 135, 138, 156 Albany & Schenectady Railway r. Osborn 525 Albany & West Stockbridge Railw. V. Canaan 525 Albright v. Penn 326 Alden v. Pearson 235 Alder v. Keighly 264 Aldred v. North Midland Railway Co. 191, 662 Aldrioh v. Cheshire Railway 154, 173 Aldridge v. Great W. Railway 357 Alexander v. Greene 267 Algeo V. Algeo 417 Alleghany v. Ohio & Pennsylvania Railw. 163 Alleghany City v. McClurkan 404 Allen V. Hay ward 379 V. Knight 583 i;. McKeen 560 Page Allen V. Montgomery Railway Co. 73, 674, 575 V. Sewall 237 V. Talbot 490 Alton Railway v. Northcot 208 Ambergate Railway v. Norcliffe 81 Ambergate N. & Boston and E. J. Railway v. Coulthard 81, i 74 V. Midland Railway 1 74 V. Mitchell 64 Amelung v. Seekamp 477 Ammant v. New Alexandria and Pittsburgh Turnpike 591, 60B Andover, The case of, 442 Andover Turnpike Co. v. Gould 71 Andover Turnpike v. Hay 71 Andrews v. City of Portland 201 Androscoggin R. u. Richards 692-697 & Kenn. Railw. v. Ste- Andros. vens Anonymous Anstruther v. East Fife Railway Anthony Street, Matter of 526 464 454 141 457 Appleford's case Applegate v. Lexington & Ohio Railway 159 Armington v. Barnet 112, 129, 538, 540, 555 Armory u. Delamirie 310 Armstrong v. Waterford, &c. Railw. Co. .«■ 678 Armsworth v. Southeastern Rail- 338 182, 424, .427 V. Ruggles 40 Arthur v. Commercial & Railroad Bank 125, 588 Ashby V. Eastern Railway 140, 141, 176 Ashpitel V. Sercombe 604 Ashton V. Longdale 38 Assop V, Yates 387 Astley V. Man. Sh. & Lin. R. 692-697 Aston V. Boore 109 way Arnold v. Mayor of Poole liv TABLE OF CASES. Page Aston V. Heaven ' 323 Asylum v. Phenix Bank 456 Atkinson v. Pooock 605 Atlantic Cotton Mills v. Abbott 79 Atlantic, St. Lawrence Railroad Co. V. Commissioners 145 Atlee V. Backhouse 355 Attala County v. Grant 457 Attorney-General v. Birmingham Junct. Railway 473 V. Birmingham & Oxf. JunctI Eailw. and two other companies 454,"489 V. Davy 20 V. Detroit & Erie Plank Road Co. 197 V. Eastern Counties Railway 4B3, 504 V. The Eastern Counties & N. & E. Railway 483 V. Great Northern Railway 513 V. Hudson R. Railway 167, 520 V. Leaf 472 V. London and Southampton Railway 199 V. London and South W. Rail- way ' 485, 513 V. Manchester and Leeds Railway 506, 510 V. Mayor of Liverpool 507, 509 V. Nichol 502 ■ V. Norwich 496 V. Oxford, Worcester, & Wol- verhampton Railw. 487, 611 V. Petersburg & Roanoke Railway 603 — : — u. Sheffield Gas Consumers Co. 502 V. Stevens 168 ' V. Wilson 494 Attorney-General of New York v. Mayor & Aldermen of N. Y. 616 Atwood V. The Reliance Con^any 269, 276 Aurop, Branch Railw. v. Grimes 366 V. West 692-697 Austin V. The Manch. S. & L. Railway 276, 277 Australian Royal Mail Co. v. Mar- zetti 425, 426 Aveson v. Kinnaird 351 Aylesbury Railway Co. v. Mount 83, 84 Railway v. Thompson 68 B. Babcock v. The Western Railway 105, 168, 562 Page Backus V. Lebanon 130, 133 Bacon v. Charlton 351, 353 Ex parte Bagge 42 Bagshawe v. The Eastern Union Railway 490, 632, 649, 653 Bailey v. Birkenhead, Lancashire & Ch. J. Railway 493 V. Mayor of New York 171 V. Phil. & Wil. Railroad Corp. 167, 559 V. Western Vt. Railway 226 V. Wilkins 51 Baker v. Boston 560 t;. Brinson 276 ■ V. Johnson 124, 150 Baldwin v. Collins 276 V. Western Railway 396 Balfe V. Lord 581 Baltimore v. Baltimore & Ohio Railw. - 531 Baltimore & Ohio Railw. v. Thomp- son 398, 155, 182 Baltimore & Ohio Railw. v. Wheel- ing 96 B. & S. Railway Co. v. Compton 155 Baltimore & Susquehanna Railw. u. Nesbit 118,151,560 Baltimore & Susqueh. Railway v. Woodrufi' 359, 396 Bancroft v. Peters 6^92-697 Banet v. Alton & Sangamon Railw. 72, 78, 95 Bangor Bridge Co. v. McMahon 71, 73 Bangor & Piscataqua Railway v. Harris 128, 527 Bank v. M'Chord 49 V. Trimble 603 Bank of Columbia v. Patterson 202 Bank of Commonwealth v. Curry . 49 Bank of Manchester v. Allen 11 Bank of the Metropolis v. Gutts- chlick 203 Bank of Penn. v. The Common- wealth 192, 666 Bank of the State w.-Bank of Cape Pear 560 Bank of Toledo v. City of Toledo 532 Bank of; U. S. u. Dandridge 11,203 V. The Planters Bank of Geor- gia 6 Bank of Utlca v. The City of Utioa 627 V. Smalley 44 Bank of Waltham 11. Waltham 39 Barber v. Essex 391 Barclay v. CucuUa-Y-Gana 262 w. Howell's lessee 126 Bargate v. Shortridge 42 Bark Oregon v. Newburg's Adm. 321 TABLE OF CASES. Iv Barker v. Midland Railway Co. 28, 348 V. N. Staffordshire R. Co. 667 V. Troy & Rutland Railw. 194, 204, 228 Barnard v. Poor 346 V. Wallis 3, 114 Barned v. Hamilton 54 Barnes o. Cole 330 V. Ward 430 Barney v, Prentiss -Barnsley Canstl Co. v. Twibill ■ Barrett v. Stockton & D. Railway Barrington v. Miss. Central • Rail- way _ 692-697 Barron v. Baltimore 113 Barry v. Merchant's Exchange Co. 36 Barton v. Port Jackson, &c. Plank Road Co. Bassett V. Norwich & Worcester Railway I V. Great Northern & Great Midland Railways Bartram v. MrKee Bastard v. Bastard Bates V. New York Ins. Co. Bath Nav. Co. v. Willis Batson v. Donovan 273, Battley v. Faulkner Batty V. Duxbury Battyeu. Gresley Baxendale v. Eastern Counties Railw. 265 V. Hart 299 V. North Devon Railway 265 Bayliffe v. Butterworth 51 Bayntine v. Sharp 358 Bazin V. Richardson 309 Bean v. Green 268, 271 Beardmer v. London & Northwest- ern Railway 189 Bcaty i'. Knowler 117 Beaulien v. FInglam 358 Beck V. Evans 273 Beckitt V. Bilbrough 632 Beckwith v. Sydebotham 398 Beekman v. Saratoga & L. Railway 111, 560 V. Shouse 271 Beene v. Cahawba & Marion Rail- way Co. . 72 Beers v. Housatonic Railway 330, 365 Belknapp v. Belknapp 478 Bell V. Francis ^ 634 u. Gough 166 V. The Hull & Selby Railway 169, 176,482, 509 V. London & N. W. Railway 400 ^ i>. The Ohio & Pennsylvania Railway 478 »267 •^^175 117 404 389 613 314 261 43 119 , 274 600 391 21 Page Beman v. Rufford 13, 420, 494, 579 Bend v. Susquehanna Bridge Co. 7, 83 Benedict v. Coit 161 Benett v. Peninsular & Oriental Steamboat Co. 261 Bennett, ex parte ■ 74,605 V. Camden & Amboy Rail- way 470 0. Dutton 32, 242, 295, 345 V. Filyaw 284, 286, 321 V. Railway 140, 145 Benson, ex joaWe 457 V. The City of Albany 536 V. Heathorn 494 V. New York City 558 Bentinok v. Norfolk Estuary 191 Beverly v. Lincoln Gas-Light & Coke Co. 202, 423, 427 503 317 627 429 276 577 39 331 480, 481 330, 331 Bigelow V. Hartford Bridge V. Heaton V. Willson Bill V. Darenth "Valley Railway 269, Bingham v. Rogers V. Weiderwax Binney's case Bird w. Holbrook V. W. & M. Railway Birge v. Gardiner Birkenhead, L. & C. J. Railway v. Pilcher 89, 90 Birkenhead, L. & Ch. R. v. Webster 81 Birkett v. Willan 273 Birmingham, Brist. & Thames J. R. Co. V. Locke 68, 73, 83, 632 Birmingham Canal Co. v. Lloyd 510 Birmingham & Oxford J. Railway Co. V. Regina 670 Bishop V. North 2 Bissell w. Price 308,309,314 Black V. Baxendale 234 V. Carrollton Railway 326, 345, 348 Blackwell u. Wiswall 379 Blake, adm'r, v. The Midland Rail- way 264, 337 Blake u. Ferris 378 V Rich 126, 344 Blakemore v. Bristol & Exeter Railw. g| 430 V. The Glmiorganshire Canal Nav. 192, 449, 450, 451, 488, 512 Blanchard v. Isaacs 232 Bland v. Crowley 650, 659 Bligh V. Brent 38 Bliss V. Passumpsic Railway 172 V. Hosmer 120 Blodgett u. Morrill 69,70 Blood V. Nashua & Lowell Railw. 182 Ivi TABLE OF CASES, Page Bloodgood V. Mohawk & Hudson R. 112, 119, 140, 148, 150, 380, 517 Blossom V. Griffin 248 Bbunt V. Hipkins . 65 Blundell v. Winsor 41 Boardman'i;. Gore et al. 49 Bodenham v. Bennett 272, 273 Bodington p. Great W. Railw. 485 Boehm v. Combe 247 Bogardus i: Rosendale Man. Co. 608 Boggs u. Martin 314 Bolokow V. Heme Bay Pier Co. 573 Bomar v. Maxwell 313 Bonaparte v. C. & A. Railway 6, 140, 148,477,540 Boner «. Merchants Steamboat Co. 318 Bonner v. State 465 Boody V. Rut. & Bur. Railw. 229, 230 Booker, ex parte Bordentown & South Amboy Turn- pike V. Camden & Amboy Rail- way Bosanquet v. Shortridge Bostock V. N. StaiFordshire Railw. Co. Boston, Concord & Montreal Rail- way V. State Boston & Lowell Railway v, Boston & Maine p,ailway 436,561 V. Salem & Lowell & other R. 131, 501, 503, 540, 548 Boston & Maine Railw. w. Baboock 108 Boston V. Bartlett 98, 109 Boston & Prov. R. o. Midland R. 149 189, 191 Boston Type & Stereotype Foun- dery v. Spooner 9 Boston Water Power Co. v. Bos. & W. Railw. Co 129, 130, 166, 582 70 367 41 125 549 Bothlink V. Inglis 304 Boughton V. Carter 170 Boulton V. Crowther 161 Boulton, ex parte v. Skelehley 67 Bourne v. Freeth 604 Bowdoin College case 560 Bowen, ex parte 636 V. Lease 609 Bowlin V. Nye 320 Bowlby V. Bell t 51 Bowman v, Hilton 314 V. Teall 233 321 V. Wathen 168, 576 587 Boyce v. Anderson 324 V. Chapman 321 Boynton v. Peterborough & Shirley Railway 148, 181 Boys V. Pink 299 Bracken v. William & Mary College 560 Bradford v. South C. Railway 284 Bradley v. Boston & Maine Railway 393 V. Holdsworth 38 V. London & N. W. Railway Co. 690 V. New York & N. H. Railw. 6, 112, 117, 157, 161-561 . V. Waterhouse 299 Bradshaw in re 146 Bradshaw & The E. & W. I. Docks &<|Birmingham Junction Rail- way 674 Bradshaw w. Rogers 113' Brainard v. Conn. River Railway 109, 160 Brainerd v. Clapp 127 Bramhall v. Lee 339 Brand v. Troy& Sch. Railway- 330, 332 Brandt v. Bowlby 320 Braynton v. London & North W. Railway 190 Brenner v. Williams 324 Bretherton u. Wood 236,261,345 Brewster v. Hough 133, 527, 552 Bridge v. Grand Junction Rail- way 331, 354 Bridgeport v. The Housatonic Rail- way 533, 534 Bridges v. Wilts, Somerset & Wey. Railway Co. 679 Brig May Queen 319, 464 Briggs V. Ferrell 420, 576 V. Taylor 325, 333 V. Vanderbilt 350 Bright V. Hutton 637 V. North 495 Brightwell v. Mallory 39 Brinson v. Baker 279 Briscoe v. The Bank of tlfb Com- monwealth of Kentucky 134 Bristol V. Chicago & Aurora Railw. 526 V. Rensselaer & Saratoga Rail- way 309 Broadwell w. Butler 318,319 Brocket o. Railway 192, 561 Brooke v. Pickwick 242, 261, 313 Brookville & G. Turnp. Co. v. Mc- Carty 603 Brooks V. N. Y. & Erie Railw. 362, 375 Broughton v. Manchester Water Works 409 Brown v. Bellows 107 V. Byrne 52 V. Cayuga % Susquehanna Railway 157,171,435 V. Cincinnati 135 V. Eastern Railway 268 V. Hammond , 560 V. Howard •600 V. Maxwell 386 TABLE OF CASES. Ivii Page Brown v. Monmouthshire Railway & Canal Co 490, 597 V. Overbury 224 V. Prov. Warren, & Bristol Railway 143, 153 Brownell v. Flagler 331 Browning v. Camden & Woodbury Railway 477 Bruner v. Planters Bank 506 Bryan v. Lewis 45 Brvson V. Warwick & Birm. Canal Co. 632 Buck V. Squiers 159 Buckeridge v. Ingram 39 Buckfield Branch Railway v. Irish 73 Buckman v. Buckman 160 Buffalo V. HoUoway 391 V. Webster 558 V. Corning & N. Y. Railway V. Pottle 96 & Niagara Falls Railway v. Buffalo 616 Bull V. Chapman 638 Buncombe T. Co. v. McCarson 9 Burgess v. Gray 379 Burkinshaw v. Bir. & Ox. J. Rail- way 671, 681 Burmester v. Norris 1 3 Burnes v. Pennell 61, 399 Burnett w. Lynch 47,59 V. M'Biscoe " 78 Burnside v. Steamboat Company 360 Burrell v. Jones 405 V. North 247 Burroughs v. Housatonic Railw. 359 Burt V. Caledonia County Grammar School 560 V. Farrar 7 ^urton, ea; ;)ar. City of Erie 438 Cleveland & Pittsburgh Railw. v. Ball 692-697 V. Kelley Clipper (The) v. Logan Clough V. Bond Clunnes v. Pezzey Coakley v. North Pennsylvania R. Coates V. The City of New York 484, 229 308 594 310 348 112, 556 512 43 Coats V. Clarence Railway Cockburn, ex parte Cockerell v. Van Dieman's Land Co. 103 Coe V. Pennock, &c. Railway 591 Coffin V. Collins 11, 692-697 Coggs K. Barnard 328,411 Cohen V. Frost 243 V. Gwinn 601 V. Wilkinson 489 Colcoek V. Louisville Railway 205 Cole V. Goodwin 267, 276 Colegrove v. Harlaem & N. Y. and New Haven Railway 332 Coleman u. Southwick 346 Coles V. Bank of England 597 CoUett V. London & Northwestern Railway ■ 620 Collins V. Albany & Sch. Railway 330, 346 V. Blantern V. Boston & Maine Railway 408 312, 313 284 574 — V. Bristol & Exeter Railway — V Central Bank — V. South Staffordshire Railw. Co. 690 Page Collinson v. Newcastle & Darling- ton Railway 181 Colman v. Eastern Counties Railw. 93, 94, 115, 401, 435, 652 Colt V. McMechen 233 Columbia Iris. Co. v. Wheelwright 468 Columbine v. Chichester et al. 56 Columbo (The) 308 Columbus, Piqua & Ind. Railway v. Ind. & Bellefontaine Railw. 421, 439 V. Simpson 136 Colvin V. The Turnpike Co. 94 Commercial Bank v. The State 560 Commissioners v. Jarvis 560 Commonwealth v. Alger 167 V. Arrison 465, 473 V. Boston & Maine Railway 145, 167, 674 w. Boston & Worcester Railw. 339 V. Canal Commis. 20 V. Clarkson 208, 209 V. Commercial Bank 472 V. Cullen 94, 559, 560 V. Erie & Northeast Railw. 117, 163, 193,520 V. Fisher 150, 161 V. Fitchburg Railw. 193, 666 V. The German Society 465 V. Guardians of the Poor of Philadelphia 442 V. Mayor of Lancaster 7 7 V. Nashua & Lowell Rail- way 515, 520, 221 V. New Bedford Bridge 615, 520, 521 V. Penn. Benevolent Insti- tution 465 V. Pittsburgh & Connellsville Railw. 502 V. The Philanthropic Society 465 V. Power 28, 29, 30, 236 u. Ritcher 114 M. Roxbury 692-697 V. St. Mary's Church 17 V. St. Patrick's Benevolent Society 465 V. Susquehanna R. 119, 150 V. Tenth Mass. Turnpike Co. 603 V. Tewksbury 112 V. The Union Fire & Marine Ins. Co. • 465, 473 V. Vermont & Mass. Railway 520, 521 V. Worcester 558 Conant v. Van Schaick 608 Concord Railway v. Greely 135, 143, 144, 172 Conn. & Pass. River Railway v. Bailey 70, 73, 95, 98 Ix TABLE OF CASES. Page Conn. & Pass. Rivers K. v. Cooper 526 Conn. River Railw. v. Clapp. 138 Connop V. Levy 637 Conro V. Port Henry Iron Co. 1 7 Const t). Harris 496 Contocook Valley Railw. Co. v. Barker 79 Cook V. Champ. Transportation Co. 359 V. Parham 390 Cooke V. Oxley 78, 98, 99 Cooling, in re 178 Coon V. Syracuse & Utica Railway 386, 387 Cooper V. Berry 268, 269, 297 V. Kane 317 V. The Shropshire Union B. & C. Co. 624 Cope V. Cordova ' 252 V. Thames Happen Dock and Railway 425 Copes V. Charleston 535 Copper Miners Co. v. Fox 427, 428 Coppin V. Braithwaite 33 Corby u. Hill 692-697 Corey v. Buifalo, Corning & N. Y. Railway 163 Cork & Bandon Railw. v. Cazenove 89 V. Goode 90 Cork & Youghal Railw. v. Patterson 91, 624 Corning v. McCullough 608 Cornwall v. Sullivan Railway 375 Corpe w'. Glyn 461 Corregal v. London and Blackwall Railway 466-461 Cort V. Ambergate, Nottingham, &c. Railway 205 Corwin v. New York & Erie Railw. 365 Cory V. Yarmouth & Norwich R. 500 Coster !). New J. Railway 127, 147 Costigan v. Mohawk & Hudson R. 415 Cother ?;. Midland Railway 190,511 Cotterill v. Starkey 331 Cotton V. County Commissioners 534 Couch V. Steele 390 County ?>. Leidy 311 Covell V, Hitchcock 306, 692-697 Covington & Lexington R. v. Ingles 312 V. Kenton Co. Ct. 533, 560 Cox V. Midland Counties R. Co. 292 Coxe V. Heisley 262 Coy V. Utica & Sch. Railway 366, 367 C, P. & A. Railw. 0. City of Erie 9 Craig V. The City of Vicksburg 596 Cram v. Bangor House 20 Crawford v. Chester & Holyhead Railway 191 Crawfordsville R. v. Wright 385 Crawshay v. Homfray 317 Page Creed v. Lancaster Bank 38 Crewe v. Edleston 573 Crocker v. Crane 8, 9, 88, 146 V. New London, W. & P. Rail- way 34, 384 Croft V. Alison 381 V. Waterhouse 324 Cromford Canal Co. v. Cutts 178 & High Peak R. Co. v. Lacey 83,86 Cromford & High P. Railway v. S. D. & W. Railw. ' 647 Crosby v. Fitch . 233 V. Hanover 123 135 Cross V. Law 607 V. Mill Co. 74 Crosse v. Smith 469 Croton Turnpike v Ryder 501 582 Crouch V. Great North R. Co. 263, 285, 286 321 356 V. Great Western R. 317 V. London & N. W. R. 236, 279, 282, 300, 356 Cruger v. Hudson R. Railway 146 Culbertson v. Wabash Nav. Co. 625 Cumberland Marine R. v. Portland 528 Cumberland Valley R. Co. v. Baab 78, 663 V. Hughs 431 Cummings v. Prescott 22, 65 Cunliff 0. Manchester and Bolton Canal Co. 13, 92, 497 Curran o. State of Arkansas 75, 560 Currier v. Lowell 391 Curtis V. Auber 591 V. Drinkwater 323 ■ V. Harlow 608 V. Leavitt 408, 609 V. Roch. & Sy. R. 327, 345-347 V. Vt. Cent. Railway 141, 370 Cushman v. Smith 119, 137, 147 Cutbill V. Kingdom 16 Cuthbertson v. Parsons 244 Cutler V. Middlesex F. Co. Tl D. Dale V. Hall 236, 246 Daley v. Norwich & Worcester Railw. 330 Dalton -v. Midland Railway 63 V. Southeastern R. 692-697 Daly V. Thompson 633 Damont v. New O. & CarroUton Railway 336 Dana v. Bank of U. S. 17 Danbury & Norwalk Railway v. Wilson 72, 73, 89, 94, 95, 97 Dance v. Girdler 635, 644 Dand v. ELingscote 2 TABLE OF CASES. hi Danforth v. Smith 6»5 Daniels v. Flower Brook Man. Co. 1 7 Banner v. South Carolina Railw. 364, 695 Danville Bridge Co. v. Pomeroy 228 Dart !>. West 692-697 Dartmouth Coll. v. Woodward 5, 6, 11, 131, 537, 550, 558 Dater v. Troy Turnpike & Railway 380,517 Dauchy v. Brown 43 Davey v. Mason 248, 297 David u. Moore 311 Davidson v. Boston & Maine Rail- way 113,141,148,150,168,690 V. Graham 279 V. Gwynne 314 V. Seymour et al. 410 Davies v. Mann 263, 330 Davis v. Bank of England 597,599 V. Cayuga & Susque. Eailw. 313 V. Charles River Branch Rail- way 140, 141 V. Combermere 660 V. Lamoille Co. Plank Road Co. 431 V. London &Blaokwall Railw. 174 • V. Lowell Meeting-House • 24 V. Willan 270 Dawson v. Kittle 317 . V. Paver et al. 484 Deaii v. Sullivan Railway 125, 126, 174, 372 Dearborn v. Boston, C. & Montreal Railway Co. 6, 136,-152 Deere v. Guest Deering v. York & Cumberland Railway Degge V. Midland Railway De Grave v. Mayor of Monmouth Delafield v. State of Illinois Delaware Canal Co. v. Lampson Del. & Atlantic Railway v. Irick 480 480 387 429 595 73 94, 97 Del. & Maryland Railway v. Stump 503 De Mott V. Laraway 259 Den I'. Foy 560 Denny v. Trapnell 471 Denton v. Great Northern Railway 342, 343 V. Livingston 39 De Ruyter v. St. Peter's Church 686, 603, 609 Derwort v. Loomer 324 Devereux v. Kilkenny & G., S., & W. Railway 607 Devoe v. Penrose Ferry Bridge Co. 167 Dewevs v. Pike 404 De Wint v. Wiltse 370 / Dibble w. Brown 311,312 Dickinson v. Valpy 634 Dietrechsen v. Cabburn 512 Diggle V. The London & Blackwall Railway 203, 425, 428 Dill u. Railway Co. 242,310,312 Dimes v. Grand Junction Canal Co. 211 Dimick v. Brooks 145 Directors of the Poor v. Railway 141, 142 305 388 49 a Dixon V. Baldwin V. Ranken Dbbson, ex parte Dodge V. County Commrs. of Essex 152, 153, 154 r. Woolsey 495, 532, 560 Dodson V. Wentworth 304, 305 Doe u. Beebe 113 V. Georgia Railway & Bridge Co. 151 d. Armistead v. N. Staff. Rail- way Co. 190, 670, 681 d. Banks v. Boot 572 d. Chandler v. Ford 592 d. Hudson v. Leeds & B. Railw. 677 d. Hutchinson v. Manch., Bury, & Rosendale Railway Co. 676 d. Jones v. Jones 593 d. Levy v. Home 572, 592 d. Myatt v. St. Helen's Runcorn Gap Railway 572 d. Payne v. Bristol & Exeter Railway 1 90 d. Thompson v. Lediard 572 . London and Southwest- ern Railway 104, 682 Hyatt V. Phil. & R. Railway^ 155, 349 Hyde v. Great Western Railway 476 V. Moffatt 353 V. Trent & Mersey Nav. Co. 233, 249, 257, 258 Illidge V. Goodwin 330 Illingworth v. Manchester & Leeds Railway 509, 510 Illinois Central Railway v. County of McLean 528 V. Reedy 375, 397 V. Rucker 603 V. United States 113 Illinois & Mich. Canal v. Chicago & Rock I. Railway 134, 502 Ilott V. Wilkes 331 & Ebensburgh Turnpike Co. V. Phillips 92 Ixviii TABLE OF CASES. Page Indiana & Cinn. R. v. Caldwell 692-697 Indiana Central R. v. Hunter 136, 137 Indianapolis & Cen. R. v. Kinney 362, 374 Ingalls 0. Bills 325, 334 Inge V. Birmingham, W. & S. V. Railway Co. 54 Inglis V. Great Northern Railw. 74, 407 Innocent v. The North Midland Railway 510 Insurance Co. v. Ind. & Cinn. Railw. 233 V. Smith 44 Irvine v. Turnpike Co. 92, 95, 130 Isham V. Bennington Iron Co. ^40, 575 V. Granham 215 J. Jackson «. Brown 586 V. Cocker 41, 55, 564 — — V, Lamphire 117 V. North Wales Railway 221 !'. Rogers 261 V. Rut. & Bur. Railway 126, 362, 374, 551 Jacob w. City of Louisville 136 Jacobs «. Peterborough & Shirley Railway 108 Jacques v. Chambers 55, 65, 66 James v. Woodrufi' 63 Jameson v. Planters & Merchants Bank 538 !.. Ware 228 James River & Kanhawa Co. u. Turner 135 Jarden v. Philadelphia W. & B. Railway 477,479 Jarrett v. Kennedy 604, 636 Jencks v. Coleman 32, 236, 261, 345 Jenkin v. Row 581 Jenkins v. Biddulph 346 V. Union Turnpike Co. 86 Jenneson v. Camden & Amboy Rail- • way 282 Jennings, ex parte 443 in re V. Broughton 101 Jerome v. Ross 47 7 Jewett V. Stead 194 Joel V. Morrison 384 Johns V. Johns 40 Johnson, ex parte 400 V. Anderson 160 V. At. & St. Law. Railway 154 V. Bank of United States 49 V. Bentley 603 V. Midland Railway 294 V. Shrewsbury & B. R. 419, 499 Page Johnson v. Stone 311, 313 Johnston v. S. W. R. K. Bank 8 Jones V. Boyce 334 Jones & Dow v. Bradley 229 V. Great Western Railw. 477,504 V. Harrison 605 t). Pearle 317 V. Portsmouth & Concord R. 229. V. Rose 494 V. Voorhies 267, 313 V. Western Vermont Railway 235 Jordan v. Fall River Railway 243 Jorden v. Phil. Wil. & Baltimore Railw. 313 Josephs V. Pebrer 55 Jouitt V. Lewis 586 Jiibb V. Hull Dock Co. 180, 470 Justices Clark Co. Ct. . N. Y. & N. H. R. 569,570,595 Mechanics & Traders Bank v. De- bolt 532, 551, 552, 560 V. Thomas 532, 560 Meeting-House Society in Lowell V. Lowell 530 Mellen v. Western Railway 1 70 Mellish V. Brooks 573 Mer. Mutual Ins. Co. v. Chase 284 Mercer v. Mc Williams 149 V. Whall m 138 Mercer County v. Pittsburgh & Erie Railway 229, 536 Ixxii TABLE OF CASES. Page 246 309 34 231 105 233 431 Merriam v. Hartford & New Haven Railway Co. Merrick v. Webster Merrihew v. Milwaukie & Missis- sippi E,. Merrill v. Ithaca & Oswego Eailw. Merritt v. Northern Eailway Mersham v. Hobensack ^ Metcalfe v. Hetherington V. London & Br. & So. Coast , R. 692-697 Methodist Epis. Church v. Jacques 56 Mexborough (Earl of) v. Bower 511 Michigan Central Railw. v. Mich. So. B. 692-697 V. Ward 255 Micklethwait u. Winter 138 Middlesex Turnpike Cor. v. Lock. 92 V. Walker 92 V. Swann 71, 92 Middletown Bank M.Magill 44 Midland Counties Railway Co. «. Oswin 104, 685 Midland Great Western Railway v. Benson 309 Midland Great Western Railway Co. V. Gordon 68, 6'31, 633 Midland G. W. E. of Ireland v. Leech 623, Midland Railw. v. Bromley V. Daykin Mifflin 0. Harrisburg, Portsmouth M. & L. Railroad Co. Miles V. Bough V. Cattle 248, Milhau K. Sharp Mill Dam Co. v. Dane Miller v. Auburn & Syracuse Rail- road 106, V. Illinois Central Railw. V. New York & Erie Railw. V. Steam Nav. Co. Milligan v. Wedge Milliman v. Osw. & Syracuse Railw. 55 Milner v. Field 224 Milnes v. Gerry 107, 223, 485 Milnor V. Geo. R. & Banking Co. 208 V. The New Jersey Railway 135, 167 Milon & Rut". Plank Road Co. u. Husted Milwaukie & Mis. Railw. v. Eble 147, 370, M. & M. Railw. u. Hodge 692-697 Mims V. Macon & W. Railway 674 Miner v. McWilliams Miner's3ank v. United States Minor unVIechanics' Bank of Alex- andria 624 322 362 161 407 263 162 94 159 56 558 319 377 ,561 532 137, 372 119 6 Page Minturn v. Seymour 479 Missouri & Ohio Railway v. State 602 Mitchell V. Crassweller 384 — ■■ — V. Newhall 52 u. Rome Railway 87,91 Mitehel v. Rockland 692-697 V. Winslow 591 Mitchil V, Alestree 358 Mitford V. Mitford « 591 M'Laughlin v. Pryor 385 M'Manus v. Crickett 381 Mobile & Cedar Point Railway v. Talman 574 Moers v. The City of Reading 533 Mohawk Bridge Co. v. The Utica &Sch. Railw. 131,478,501,540 Mokawk & Hudson Railway 18 V. Artcher 478 u. Clute 526,527 Money v, Macleod 411 Moneypenny v. Hartland 634 Monypenny w. Monypenny 660 Monkland & Kirkland R. v. Dixon 687 Monmouth Canal Co. v. Harford 3 Monongahela Nav. Co. v. Coons 114, 115, 156, 543, 560 Montgomery & West Point v. Var- ner 143 Monteomery & West Point Railw. V. Walton 480 Moody V. Wright 591 Moore u. Central Railway 331 V. Evans 267 u. Garwood 564 V. Hudson River Railw. 227, 229 V. Michigan Central Railw. 287 Moor V. Veasie 552 Moore's Ex. u. Patterson 317 Moorehead v. Little Miami Railw. 117, 192, 479, 561 Morgan v. Birnie 208 V. King 170 V. Mil man 485 V. New York & Albany Rail- way 479, 608 Morris Canal & Banking Co. u. Fisher 595 V. Townsend 23 Morris v. Mechanics Bank 189 Morris & Essex Railw. v. Blair 165 Morris v. Newark 157, 162 Morrison v. Davis 238, 234 V. Steam Nav. Co. 494 Morse, Petitioner 138, 444, 457 V. Auburn & Sy. Railway 345, 385 V. Rut. & Burl. Railway 374 V. Slue 262 Morss r. Boston & Maine Railway 372, 553 Mortimer v. McCuUon 46 TABLE OF CASES. Ixxiii Morton V. Barrett 56 Morville v. Great Northern Railw. 279 Moses V. Boston & Maine Railway Co. 248, 255, 269, 311 Moss V. M'CuUough 608 Mozieru. Utica & Sch, Railway 366 V. Oakley 608 Mott V. Blackwall Railway 510 Mouchet V. Great W. Railway Co. 476, 480, 682 Mowatt, ea; parte 636 V. Londesborough 636 Mozley v. Alston 22, 420, 492, 493 Mumma o. Potomac Co. 76 Munger v. Tonawanda Railw. 127, 128, 376 Munn V. Barnum 61 Munt V. Shrewsbury & Chester R. Co. 94, 497 Muroh V. The Concord Railw. 420, 430 Murdock's Appeal 457 Murray v. De Rottenham 56 V. Railway Company 197, 333, 365, 398 V. South Carolina Railway 386 Muschamp w. Lancaster Railw. Co. 235, 282, 283, 286, 289 Mutual Savings Bank v. Meriden Agency Co. 409 Myers v. Myers 66 V. Perigal . 38 N. 'M± ex parte 467 Nash, ex parte 463 Nashville Railways. Cowardin 123, 193, 562 Nashville & Chat. R. v. Messino 327, 328 . — '■ — V. Peacock 374 Nathan I'.. W hillock . 76 Natiisch V. Irving et al. 92, 93 Naugatuck R. V. Waterbury But- ton Co. 288 Neal V. Gillett . 330 Nelson V. Vermont & Canada Rail- 419, 654 _, C. & C. Railway 205, 208 Nettles u. S. C. Railway Co. 234,318 Neville v. Wilkinson 640, 663 Nevins v. Henderson 638 Nevitt V. Bank of Port Gibson 76 New Albany & Salem Railway v. Connelly 174,481 .T- — V. Grooms _ 692-697 New Albany Railway w.'Pickens 72 Newark Plank Road Co. v. Elmer 520 New Bedford Turnpike Co. v. Adams 71 way Nesbitt V. L. Page Newburg & Cocheoton Turnpike Co. u. Miller , 501, 582 Newbury v. Conn. & Pas. River R. 392 Newburyport Bridge Co v. Story 71 Newburyport Turnpike Co. v. East- ern Railway Co. 478 Newcastle Railw. v. P. & J. Railw. 130 Newhall V. The Chicago & Galena Railway 479 N. H. Central Railw. v. Johnson 73, 79 N. J. Railway v. Kennard 325, 333 V. Suydam 139 N.. J. Steamboat Co. v. Tiers 233 N. J. Steam Nav. Co. v. Merchants Bank 238, 240, 267, 268, 274, 294 Newland v. Paynter 591 New London i). Brain'ard 117 New Orleans, &c. Railway i>. Har- ris 12, 560 New Orleans & CarroUton Railway u. Second Municipality of N. O" 192 New Orleans Op. & G. W. Railway V. Succession of John McDonough 633 Newry & Enniskillen R. v. Coombe 90 64 613 Newry, W. & R. Railway v. Moss 69 Newstadt v. Adams 276 Newton v. Belcher 634 V. Bridgeport Turnpike Co. 44 r V. Liddaird 634 New York Central Railway 128 V. Marvin 146 New York & Brie Railway v. Sa- bin 631, 532 V. Skinner 333, 364, 371, 372, 376 New York & N. H. Railroad v. Pix- ley New York & Sharon Canal Co. u Fulton Bank New York Printing & Dyeing Estab lishment v. Fitch Niagara Falls & Lake O. Railw. v. Hotchkiss Nichol V. Nashville Nicholson v. N. York & N. Haven Railway 139, 160, 162 V. Edmonds ■ V. The Ulster Railway 479 622 479 117 533 127, V. Willan NicoU V. New York & Erie R. Nightingale's case Nixon V. Brownslow V. Taff Vale Railway Nockels V. Crosby Nolin V. Mayor of Franklin Noltou V. Western Railw. Corp. 328, 620 Norman v. London & Brighton R. 303 Norris v. Abington Academy 560 0. Androscoggin Railw. 367, 560 V. Smithville 605 266 128 558 91 204, 213 604 559 Ixxiv TABLE OP CASES. Page Norris V. The Irish Land Co. 65 V. Verm. Central Railw. 106, 199 Northam Bridge and Koads Co. v. The London & Southampt. R. 196, 504 North Amer. Col. Assoc, of Ireland V. Bentley 64 North British Railw. v. Home 616 North British Railw. Co. v. Tod 186, 452 North Carolina Railw. v. Leach 692, 697 Northeast Railway v. Payne 192 Northwestern Railway v. Martin 213 V. Sineath 371, 372 Northern Railway v. Concord and . Claremont Railway 112, 133 Northern Railway Co. v. Miller 72, 94 Northern Railway v. Page 32 Northern Ind. Railway v. Michigan Central Railway 625, 626 North Kent Railway v. Badger 235 North Staffordshire Railway Co. v. Landor 673 U.Wood 675 North Union Railway v. Bolton & Preston Railway 503 North W. Railway v. MoMichael 89 Norton v. Volentine 171 Norwalk Plank Road v. Husted 532 Norway Plains v. Boston & M. Railway 252, 253, 254, 256 Norwich & Lowestoft Nav. Co. v. Theobold 38, 79 Norwich & Worcester Railway Co. u. Cahill 203, 292 Noyes v. Rutland & Burl. Railway 235, 250, 284, 289, 380, 429 — V. Smith 390 V. Spalding , 43, 46 Nugent V. Riley 585 Nulbrown v. Thornton 55 Nutting V. Conn. River Railway, 282, 283, 286 O. 66 Oakes V. Oakes O'Brien v. Norwich & Worcester Railway V. Philadelphia, Wilm. & B. Railway 394, 396 O'Connor v. Pittsburgh V. Spaight O'Donnell v. Bailey Ogden V. Gibbons 167, 501 V. Kip Ogd., Ro. & CI. Railway v. Frost 8, 72 Ogle V. Atkinson 306 O'Harra v. Lexington Railway 148 Ohio Life Insurance & Trust Co. V. Debolt 630, 532, 533, 560 503 161 213 552 503 479 Ohio, &c. Railway Co. v. Ridge 6 Ohio & Penn. Railway v. Wallace 138 Oldfield V. New York & H. R. 339, 340 Old Town & Lincoln R. v. Veazie 80 O'Neal V. King 79 Opinion of the Judges, Matter of the Western Railway 528 Oppenheimer v. Edney 31 1 Orange Co. Bank «. Brown 248, 313 Orr V. Bank of U. S. 33 Osborn v. The Bank of the United States 92, 503 Ostrander v. Brown 262 Oswego Falls Bridge Co. v. Fish 1 1 7, 501 Ottawa Plank Road Co. ». Murray 575 Overmyer v. Williams 125 Overton o. Freeman 377 Owens V. Burnett 297 Owen V. Van Uster 405 Oxford Turnpike Co. v. Bunnell 44 Oxford, Worcester, & Wolverhamp- ton R. V. South Staffordshire R. 1 25 P. Pacific Railway v, Renshaw 94 — : — V. Hughs 95 Pack V. Mayor of New York 341, 378 Packard v. Gitman 248 Paine v. Wright & The Ind. & B. Railway . 525 Palmer v. Grand Junction Railway 235 (Matter of) v. Hungerford Market 180 V. Lawrence 72 V. Lorilard 315 Palmer Co. v. Ferrill 137 Pardee v. Drew 236, 312 Pardington v. South Wales Railw. 302 Pardoe v. Price 461, 573 Parker v. Adams 394 V. B. & Maine R. 141, 142, 155, 691 V. Bristol & Exeter R. Co. 355 V. The Dun Nav. Co. 496 V. Great Western R. 235, 263, 355, 356 V. Perkins 108 V. Rensselaer & Sar. R. 419 V. Scogin 584 Parkes, fx parte 466 V. Great Western R. 210 I!. City of Boston 136,181 Parmalee v. Oswego & S. R. 603, 674 Parnoby v. Lancaster Cond. Co. 431 Parrott v. C, H. & D. R. 520 V. Eyre 405 Parsons v. Gingell 294, 295 0. Hardy 233, 318 TABLE OF CASES. Ixxv Parsons y. Howe 692-697 V. London & Croydon R. 593 y. Monteith 267,275,319 Paterson v. Gandasequi 239 Patterson v. Wallace 333 Pauling V. London & N. W. R. 227 Paxson V. Swett 558 Paxton V. Popham 408 Peachey v. Rowland 377 Pearce v. Wycombe R. 189 Peavey y. Calais R. 116,168 Pendergrast v. Turton 102 Penn v. Mc Williams 533 Penn. Canal Comm. v. Penn. R. 531 Penn. Railway y. Heister 146 y. Keiffer 145 y. McCloskey 146, 276, 332, 339 y. McClure 146 V. Riley 146 Penobscot R. y. Dummer 73, 79, 80 y. White 79, 80, 692-697 Penobscot & Kennebec R. v. Dunn 70, 73,80 People y. Beebe 443 V. Benton 207 u. City of St. Louis 167 y. Collins 457 V Columbia C. P. '457 y. Comm. of Hudson 443 V. Corp. of N. Y. 456, 465 y. Everett 443 y. First Judge of Columbia 145 y. Hayden 150 V. Manhattan Co. 560 w. Mayor of Brooklyn 112, 136, 137,525, 533 y. Michigan Southern R. 150, 692-697 y. Rensselaer & Sar. R. . 167 y. Supervisors of Niagara 525 y. Supervisors of W. Ches- ter 466, 560 — ' — y. Thompson 465,473 V. Throop 443 V. White 126, 127, 135 Peoria & O. Railw. v. Etting 74, 95 Perine y. Dunn V. Swain Perkins y. Eastern R. and B. & M. R. 362, y. Hart V. Pritchard Perren y. Monmouthshire R. &. Canal Co. y. Fireman's Ins. Co. Perrine v. Ches. & Del. Canal Co. 1 1 7, 562 Perry y. Marsh 390 Peter y. Kendall 510 514 , 375 417 573 353 598 679 Page Peters v. Iron Mountain R. 41 7, 560 y. Ryland 329 Phelps y. Lyle 22 Phene y. Gillan 57 Philadelphia, Germantown, & Nor- ristown R. v. Wilt 33, 381, 383 Philadelphia & Reading R. y. Derby 293, 328, 380, 383 y. Yeizer 150, 154, 155 Philadelphia & Trenton R.. 115, 156, 159 Philadelphia & West Ch. R. y. Hickman 87, 99 Philadelphia & Wil. R. v. State of Maryland 531 Philadelphia, Wilm. & Bait. R. v. Cowell 100, 598 y. Bayless 528,531 y. Howard 213, 370, 429, 624 U.Trimble 141,370 Phillips V. Clark 302 V. Earle 248 ■ y. Veazie 392 Phillips et al. c. Winston 591 Pianciani y. London & S. W. R. 300 Pickford v. Grand Junction R. 235, 242, 261, 263, 349 Pier y. Finch 32 Pierce y. Emery 577, 580, 588, 591 y. Somersworth 540 Piggott y. Eastern Coumties Rail- way Co. ' 357 Pingry v. Washburn 538 Pinkett y. Wright 67 Piscataqua Bridge y. N. Hamp. Bridge 133, 540, 545 Pitehford v. Davis 604 Pittsburgh v. Scott 150 Pittsburgh & Steuben Railway v. Hall 142 Pittsburgh & Steubenville Railw. v. Clark 44 Pittsfield & North Adams Railway V. Foster 140, 147 Planche y. Colburn 205, 416 Plank Road y. Buf. & P. Rail- way 126, 149 Plank y. Payne 72 Plant y. L. I. Railw. Co. 156, 159, 161 Planters' Bank y. Merchants' Bank 39 y. Sharp, and Baldwin y. Payne 538 Plate Glass Insurance v. Sunley 85 PlaU y. Hibbard 248 Playfair y. Birmingham, Bristol, and Thames J. Railway 498 Plum y. City of Newark 161 Pollard y. Hagan US u. Maddox 576 Ixxvi TABLE OV CASES. 601 51 119 193 647 573 479 653 429 206 18 Pollock V. The National Bank V. Staples Polly V. S. & W. Railway Co. Pontohavtrain Railway v. Lafayette and Pont. Railway ^-'■^ V. New Orleans & Car. & Lake P. Railway Pontet V. 'Basingstoke Canal Co. Poor !'. Carleton Porcher v. Gardner Porter ;;. Androscoggin & Kenne- bec Railway — — V. Buckfield Branch Railw. Port of London Assurance Com- pany's Case Portland, Saco & Portsmouth Rail- way V. Graham 74, 86 Portman v. Nichol 692-697 Portzman v. Indiana & Cin. Rail- way '692--697 Pothonier v. Dawson 317 Pott V. Flather ' , 54 Potts V. The Thames Haven Dock Railw. Co. 660 Povey V. Brown 591 Powell V. Evans 594 ^ „. Mills 295 V. Myers 242, 243, 267 — u. Wright 583 Powles V. Page 400 Poynder v. Great N. Railway Co. 120, 678, 679 Pozzi V Shipton 236 Presbyterian Brick Churchyafd v. City of New York Presbyterian Society of Waterloo V. Auburn & Roch. R.- Preston V. Eastern Counties Railty. V. Grand Collier Dock Com- pany 69, V. Liverpool, Manchestel- & Newcastle-upon-Tyne Junction Railway Co. 639, 654, 659, 666 Price V. Great Western Railway 573 V. Powell 252, 308, 398 V. Price 39 Prichard v. La Crosse & Milwaukie Railway 365 Priestly V. Foulds 198 -^ V. Fowler ^86, 889 Priestley v. M. & Leeds Railw. Co 1 74, 687 Propeller Cleveland 321 Pl-oprietors of Locks & Canals v. Nashua & Lowell Railway 141, 179 Providence Bank v. Billings & Pitt- man 117, 528, 551, 553, 560 JProvidence & Worcester Railway i). Wright 526 656 160 171 ,494 Page Pudor V. Boston cfc Maitie Railway 311 Pulsford V. Richards 100, 101 Quarman v. Burnett 377, 379 Quimby v. Vermont Cent. Railway 333, 369, 371, 396, 397, 553 Quincy Canal v. Newcomb 160 Quiner v. Marblehead Ins. Co. 43 R. Radcliffw. Mayor of Brooklyn 166, 163, 171 Railroad v. Berks Co. et vite versa 528, 530 ^ V. Boyer 142 V. Kucher 141 Railroad Company, ex paHe 160 V. Aspell 325, 335 V. Johnson 145 V. Skinner 364, 371 Railroad v. Davis 126 3). Roderigues 70, 74, 97 Railway v. Gilson 1 36 x\ Legarde 136 V. Norton 395 Railsback ». Liberty and Abington Turnpike Co. 9, 95 Railstone v. York, N. & B. Railw. Co. «81 Raleigh & Gaston Railway Co. v. Davis 6, 151 Ramsden v. Manchester & S. J. & A. Railway 147, 159, 668 Ramsdall v. Craighill 479 Rand V. Townsend 686 Randall v. Cheshire Turnpike Co. 430 V. Roper 692-697 Randleson v. Murray 379 Ranger v. Great Western Railway 190, 200,207,210,217 Ranken v. East & W. India Docks 678 Ranney u. The Huntress 247 Ralisfbrd v. Bosanquet 6^7 Bansome v. Eastern Co. Railway 265 Raphael v. Pickford 318 Rapsom v. Cubitt 377 Rastrick v. Derbyshire, Staff, and Worcestershire Railway 608 Rathbun v. Payne 330 Rathbone v. Tioga Navigation t!o. lt)6, 125, 203 Rawson V. Johnson 261 Ex parte Reaveley 90 Eiedmond v. Dickerson 410 TABLE OF CASES. Ixxvii Reedie v. London & North W. Railway 377, 379 Regina v. Abrahams 464 V. Ambergate, &c. R. Co. 452, 458 V. Baldwin 459 V. Beecham 521 V. Bingham 466 V. Birmingham & Gloucester Railway 199, 380, 455, 458, 459, 515 V. Birmingham & Oxford Rail- way 445 V. B. & Ox. Junction Railway ,Co. V. Boult V. Boulton ^ V. Bowring t>. Bristol Dock Co. V. Bristol & Exeter R. 670 521 521 522 455, 467 442,462, 469, 470 V. The Blackwall Railway 466 u. The Caledonian R. 190,452, 455, 460 V. Comm. of Norfolk Co. 421 V. Comm. of Woods & Forests 454, 672 V. Cottle 669 V. Dean & Chapter of Chester 457 V. Dean & Chapter of Roch- ester 457 V. Deptford Pier & Improve- ment Co. V. Derbyshire, S. & W. R. 460 443, 608 469 444 443 - V. Dixon - V. East Anglian R. - V. East Lancashire R. - u. E. & W. I. Docks & Birm. . R. 195,196,460 - V. Eastern Counties R. 115, 157, 176, 199, 442, 443, 444, 452, 455, 489, 684 V. Ely 198 V. Fall 444 V. Frere 31 V. Gamble & Bird 467 V. Gen. Cemetery Co. 63 V. Grand J. R. 525 ,615 V. Gt. North of Eng. R. 382, 515, 517 V. Great Western R. 442, 453, 458 525 V. Greene 444 V. Grimshaw 19 V. Hopkins 443 u. Hu 1 & Selby R. 461 V. Jones 443 V. Justices of Middlesex 444 V. Justices of Warwickshire 443 V. Pedley 379 Regina v. Lancashire & Preston Railw. 470 V. Lancashire & Yorkshire R. 446,453,458,466 V. Ledgard et als. & Mayor, «EC. of Poole 442 V. Leeds & Liverpool Canal Co. 466 V. Liverpool, M. & N. "R. 62, 466 — - V. London & Birm. R. 199, 455 V. London & Blackw. R. 444 w. London & Br. & South Coast R. 524 ti. Londonderry & Coleraine R. Co. 64, 464 V. Lond. & Greenwich R. 667, 668 V. London & N. W. R. 458, 466, 683 V. London & Southampton R. 181, 518 V. London & Southw. R. 523, 615, 668 V. Manchester & Leeds R. 442, 455,467,468,471, 673 V. Man., South J. & A. R. 524 444 444, 459 457 444 459 462 V. Mayor of Bridgenorth V. Mayor of Cambridge V. Mayor, &c. of Chester 1'. Mayor of Dartmouth V. Mayor of Poole V. Mayor of Stamford V. Mayor & Assessors of Ro Chester 457 V. Metropolitan Co. Sewers 683 V. Midland R. 525 V. Mile End Old Town 524 u. Musson 166 V. Newcastle-upon-Tyne 455 V. Newmarket R. 525 V. North Midland R. 178,461 y. North Union R. 178,442 V. Norwich 442 V. Norwich & Brandon R. 440, 441 I'. Payn 459 V. Pickles 443 u. Rigby 199,515 u. Rochdale & Halifax 466 V. Saffron 194 V. Scott et al. 615 V. Sharpe 199 V. Sheffield, A. & M. R. 470, 471 V. Sheriff of Middlesex 667 V. Sheriff of Warwickshire 456 V. South-Eastern R. 179, 197, 525 V. South Holland Drainage 471, V. South Wales R. V. St. Margaret's Leicester V. St. Peter's College 672 125 459 444 Ixxviii TABLE OF CASES. Kegina v. St. Saviour, Southwark Ch. Wardens 444 • V. Thames & Isis Comm. 444 V. Thorpe 518 V. Tovrasend . . 46fi — - V. Trustees of Balby & Work' sop Turnpike *^1 ■^^— V. Trustees of Louton Roads 454 V. Trustees of Swansea Har- bol- '«72 V. Victoria Park Co. 75, 461, 467 V. Waterford & L. R. 122 V. Wilson -^65 V. Wing 43 V. Worcestershire & Staiford fe. . "4-64 ^-^- V. York, Newcastle & Berwick R. 458 V. York & North Midland feailw. 369, 452, 454, 458, 460 Reitenbaugh v. Chester Va;Iley R. 118, 136, 137, 138 Relfu. Rapp 262 Renou. Hogan 267,273 Rensselaer & Sar. R. (In the mattftT •of the) 371,372 Reuter v. Electric Telegraph Com- pany , 429 Renthorp v. Bang 126 Revere v. Boston Copper Co. 12, 92 Rex V. Allgood 463 u. Amory 10,537 V. Archb. of Canterbury 440, 457 V. Bagshaw 672 V. Bank of Englahd 456, 463 V. Barker 440 V. Bishop of Chester 441 I'. Bishop of Ely 457, 464 V. Bishop of London 44 1 V. Brecknock & Abergavenny Canal Navigation 441 V. Breton 464, 473 -T^ — V. Bristol Dock Company 178 -i-^ — V. Chester ^442 V. Chipping-Norton 38 V. Church Wardens of TauntoTi 442 V. Cola St. Andrews 21 V. Commissioners of the C. In- closure 466 V. Cora, of, Dean Inclosure 441 V. Commissioners of London "Dock Act 685 — — u. Comm. of Manchester 671 V. Comm. of the Nene Outfall 178 — ^ — V. Coopers of Newcastle-upon- Tyne 443 V. Doncaster 16 V. Fell • "470 V. Favershalm 16 Page Rex v. Gardner 516 - V Dr. Gower 456 V. Gray's Inn 464 *'. Great Marlow 21 V. Guardians of Thame -442 V. Hertford 4-64 V. Highmore 473 V. Hostmen in Newcastle-upon- Tyne 463 V. Hungerford Market Go. 1 80, 461, 671 V. The Inhabit, of Barnes 524 „. Inhab. of the Co. of Kent 198 -^ — I). Inhabitants of the parts of Lindsey in Lincolnshire 198 -..^^_ „. Inhabitants of Penaegoes & Town of Mackyrilleth 469 -^ V. Inhabitants of St. Nicholas 590 V. Jeyes 441 -■^ — V. Justices of Kent 470 -: — V. The Justices of the City of York 456 -'^ — V. The Justices of West Riding of Yorkshire 456,469 ■ ■ ■ V. Kerrison 198 ■ — — V. Kingston 442 V. KingswinfoTd 524 V. Kirke 444 V. Langhorn 16, 19 V. Leeds & Selby Railway 1 78 V. Lincoln's Inn 464 V. Liverpool & Manch. Bailw. 180 V. London Assurance Co. 463 V. London Dock Co. 1 78 V. Marquis of Stafford 461 V. Martin ^ V. May 16 V. Mayor of Cambridge 459 -^ — V. Mayor of Colchester 464 ^ «. Mayor Liverpool 516, 672 ^ 'V. Mayor, &c. of Stratford- upon-Avon ^16 1.'. Mayor of York 442,459 V. Medley SM V. Merchant Tailors' Co. 468 V. M'Kay 473 V. Montacute 442 I'. Mol-ris 199, 517 V. Mott 50 u.Mousley 473 ^ — - V. Newcastle-upon-Tyne 455 V. Northleach & Witney 'Rofids441 V. Nottingham Old Water- works 456,460,-686 V. Ouse Bank Commissioners 45^ V. Pagham 161 V. Passmore 10, 537 -^ — V. Pease 517 -^- V. Pedley 379 TABLE OP CASES. Ixxix Kex V. Proprietors of the Binning' ham Canal 451 V. Round 459 -' — V. Russell 517 ■■^ — ^ V. Ssmnders 470 V. Severn & Wye R. 3, 441, 467, 615 V. Shelley 463 V. Sir William Lowther 473 ■ V. St. Catherine's Hall 464 V. St. Catherine's Dock Co. 461 V. St. Pancras 459 «, Stainforth & Keadby Canal Co. 466 — ' — V. Tappenden 443 V. Thames & Isia Navigation Coram. 178 V. Thatcher 464 — — )'. Theoderick 16 ^ V. Toyiev _ 463 — ' — V. Tregony 464 ■^ — V. Trustees of Norwich Roads 672 " — ■— V. Trustees of Swansea Harbor 460 V. Turkey Co. 464 ^^ V. Vice-Chancellor of Cam- bridge 10, 464 '-'^^— V. Whitaker 20 -v. Williams 464, 473 V. Wilts & Berks Canal Nav. 441 V. The King v. Winwick 21 V. Worcester Canal Co. 62, 65 .Rexford v. Knight 127, 128, 137, 149 Reynolds v. Dunkirk & State Line Railway 110 ■^ — w. Tappan 237 Rice V. Turnpike Go. 136 Rich u. Basterfield 379 Richards v. Fuqua 245 V. London Brighton & South ■Coast Railw. 243 " V. Scarborough Public Market Co. 191 Richardson v. South E. Railway Co. ' 681 . V. Vt. Cen. R. Co. 156, 161 V. The Wil. & R. Railw. 330 Richmond, F. & P. Railw. v. Louisa Railw. 130, 539, 546, 552, 553 Richmond & Pittsburgh Railway v. Jones 364 Eieker v. Fairbanks 207 Ricketts v. East & West India Docks & Bir. J. Railw. * 362, 374 Ridley v. Kingsbridge Flour Mill 400 V. Plymouth Banking Co. 407 Rigby V. Great Western Railw. 498 Riley v. Home 266 Ringgold ^. HaTen 320 Page 441 71 5J)2 303 Rioter's case, The Ripley v. Sampson Ripon, Earl of, v. Hobart Ritz & Pringle u. Penn. Central Railway River Dun Nav. Co. v. North Mid. Railw. 93, 475, 476, 478 Robbins, ex parte 461 Roberts v. Button 404, 405 V. Mobile & Ohio R. 692-697 V. Price . 1 9 V. Read 396 V. Smith 389 Robertson v. Great Western Rail- way 47,6 V. New York & Erie Railw. 332 Robinson v. Austin 320 V. Baker 239, 315 u.-^Cone 263, 330 V. Dunmore 242, 248 V. Smith 494 Rooh. & Sy. Railw. v. Budlong 136, 142, 144 Rochester White Lead Co. v. The CityofRoch. 171 Roe V. Birkenhead E^ilw. 32, 293 Rogers, ex parte 443 V. Bradshaw 130, 148, 149, 159 V. Head 261 V. Huntington Bank 44 V. Kennebec & Portland Rail- •way 157, 166 V. West 692, 697 Roman v. Fry 38, 44 Rome Railw. v. Rome 530, 631 V. Sullivan 255, 320 Rood V. New York and Erie Rail- way 359 Rooke I'. Midland Railw. 291, 292 Root V. Goddard V. Wallace Rosevelt v. Brown Roskell V. Waterhouse Ross V. The Eliz. & Som. R. 596 58,68 271 140, 142, 147 V. Lafayette & Ind. Railw. 81 V. Madison 384 V. Paige 477 Roiich V. Great Western Railw. 212 Rounds u. Mumford , 161 Rowe V. Pickford 305 V. Shilson 199 Rowley v. Home 271 Roxbury v. Boston & Providence Railw. 109, 110, 560 Royal British' Bank, v. Brockwell's case 100, 101 V. Turquand 408, 409 Rubottom V. McClure 149 Ixxx TABLE OF CASES. Page Bundle v. Delaware and Earitan Canal Co. 6, 134, 543 331 317 285 574 388 235 Runyon v. Central Railw. Kushforth v. Hadfleld Eussell V. Austwick V. The East Anglian Railw, V. Hudson River R. V. Livingston Rust V. Low 126, 374 Ryan v. Cum. Valley Railw. 387 Ryder v. Alton & Sangamon Railw. 72 82, 533 S. Sabin v. Bank of Woodstock 601 — — V. Vermont Central Railway 152, 154 Sadd V. Maldon, Witham & Brain- tree Railway 190, 672 Sage V. Dillard 560 Sager v. P., S. & P. Railway Co. 262, 268, 269, 275 Sagory v. Dubois 72 Sagory Mill-Dam Corp. u. Ropes 37, 71, 79, 638 Salmon v. Randall 488 Salomons v. Laing 400, 403, 490, 652 Saltmarsh v. Planters & Merchants Bank 603 Saltus V. Everett 316 Sampson u. Bowdoinham Steam Mill Co. _ _ 18 San Antonio v. Lewis 203 Sandback v. Thomas 346 Sanders v. St. Neot's Union 427 Sanderson v. Cockermouth & Wash- ington Railway 107 V. Lamberton 239 Sandford u. The Catawissa, &c. Rail- road Co. 242,478 Sanford v. Housatonic Railway 322 Sangamon & Morgan Railway v. County of Morgan 526 V. Henry 318 Sanquer v. London & Southwest Railw. 249 Sargeant v. Franklin Insurance Co. 43, 44, 62 Sargent v. Webster 20 Sater v. Burlington & Mt. Pleasant Railw. 361 Satterlee o. Mathewson 548 Saunderson v. Cockermouth & W. Railw. 485 Savings Bank v. Davis 16 Sawyer v. Joslyn 806 V. Rut. & Bur. Railway 419, 430 Page Sayles u. Blane 47,68 Sayre v. North W. Turnpike Co. 6 Sohopman v. Boston & Worcester Railway 354 Schroeder v. Hudson River R. 290, 291 Schuler v. Northern L. Railway 129 Schuylkill Co. V. Thoborn 135 Scogm V. Bait. & Wash. Railw. 408 Scotrtiorn v. South Staffordshire Railway 282, 287, 291 Scott V. Avery . 223, 224 V. Eagle Fire Co. 17 V. Morgan 442 V. W. & R. Railw. 366, 692-697 V. Liverpool 692-697 Scoville V. Griffith 320 Scudder v. Woodbridge 388, 390 Sea, Fire & Life Assurance Co. 77 Sears v. Boston 512 Seddon v. Connell 60 Seeden v. Plvmouth R. R. Co. 691 Selma & Term. Railway v. Hall 87 V. Tipton 8, 97 Selway v. HoUoway 248 Semmes v. Mayor, &c. of Colum- bus 414 Semple v. London & Birmingham Railway 123, 503, 509, 510 Seneca Railway v. Aub. & Roch. Railway 156, 159, 161 Serrell v. Derbyshire, Staffordshire & Wor. J. Railway 405 Sewall 17. Allen 237,294 Sewell V. Lancaster Bank 44 Seymour v. Milf. & Chilllcothe Turn- pike Co. '591 Shand v. Henderson 1 74 Sharp V. Grey 323 Sharpe v. Great Western Railway 225 Sharpless u. Mayor of Philadelphia 383, 548 Sharrod v. London & N. W. R. 361, 383 Shaw V. Boston & Worcester Rail- way 340, 394, 396 V. Dennis 533 V. Fisher 54, 65 V. Holland Shaw et al. v. N. C. Railway 582, Shaw V. Perkins V. Rowley V. South Carolina Railway Sheffield v. Rochester & Syracuse 54 583 443 47 320 331 Railway Sheffield Ashton-under-Lyne & Man- chester Railway Co. v. Woodcock 22, 45, 82, 632, 634 Shepherd v. Naylor 309 Sherman v. Mayor of New York 208 TABLE OF CASES. Ixxxi Sherman v. New York Central K. V. Rochester, &c. R. 384 V. Vt. Central Railway Shields V. Davis Shipley v. Mechanics Bank Shirley v. Ferrers Shoenberger v. MulhoUan Page 429 , 886 204 314 456 640, 663 142, 535, 640, 674 600 134 42 Short V. M'Carthy Shorter v. Smith Shortridge v. Bosanquet Shrewsbury & Birm. R. v. Lond. & N. W. R. & Shropshire Union R. 419, 421, 429, 435, 437, 498, 579, 654 V. Stour Valley & The London & Nofthwestern Railw. 623 Shrewsbury & (Chester R. v. The Shrewsbury & B. Railway 504 Shunk 0. Schuylkill Nav. Co. 114, 161 Shyle V. Auburn & Rochester Rail- way 368 Sifffried v. Levan 49 Sills V. Brown -^ 398 Simkins v. Norwich STNew London Steamboat C^o. 286 Simons v. Great Western Railway 269, 301, 306, 491 Simpson v. Denison 356, 418, 437 V. Hand 330 — — I). Howden 644, 646, 656 V. Lancaster & Carlisle R. 671 Simsw Bond 239 ' V. Commercial Railway Co. 671 Sinclear v. Eldred 346 V. Pearson 383 Sir John Lade v. Shepherd 160 Sisson V. Matthews 604 Skerratt v. North Staffordshire R. 369 - — V. Housatonic Railw. 339 V. London, B. & S. R. 326, 329 ■ V. Upshaw 314 Skip V. Eastern Counties R. 386, 387 V. Harwood 591 Slack V. Maysville & Lexington Railway S33, 534, 560 Slade V. Rigg 681 Slater v. Emerson 202 SI ay maker v. Gettysburg Bank 39 Sleat V. Fagg 273 Sleath V. Wilson 383 Slim V. Great Northern Railw. Co. 292 Slocum V. Fairchild 279 Small V. Herkimer M. & H. Co. 73 Smart v. The Guardians of the Poor of the West Ham Union 425 Smith V. Atkins 590 V. Birmingham Gas Co. 284 -. i). Boston 160, 456 V. Crocker *3 Page Smith V. Uarley 19 V. Eastern Railway 862 V. Erb 442 V. Helmer 150 V. Home 273 V. Hull Glass Co. 408 V. London & Birmingham R. 303 V. McAdam 150 — — V. Maryland 167 V. Nashua & L. Railw. 253, 254 V. Pelah 358 V. Prattville Man. Co. 495 V. Steamboat Co. 602 Smyrl v. Niolon 233 Snodgrass v. Gavit 224 Snow V. Carruth 314 V. Eastern Railway Co. 311 Snowden v. Davis 335 Society of Practical Knowledge v. Abbott 38, 494 Somerville & Eastern Railway v. Doughty 135, 136, 139 Soper V. Buffalo & Roch. R. 399, 400 South Bay Meadow Dam Co. v. Gray ' 36, 73, 95 S. C. B,., ex parte 192 South Carolina Railw. v. Blake 122, 184, 192 Southcote's case 265 Southeastern Railw. v. Brogden 213 V. European & Am. Telegraph Co. 198, 383 V. Jortin 572 V. Knott 485 V. Regina 196 Southmayd v. Russ 44, 608 South Staffordshire Railw. v. Burn- side ■ 68 V. Hall 485, «82 S. Wales Railw. Co. ex parte 677 V. Richards, in re 369, 470 Southwestern Railw. v. Coward 681 Southwick V. Estes 380 V. Stevens 346 South Yorkshire R. v. Great N. R. 419, 579 South Yorkshire & Goolo Railw. in re 442 Spade V. Hudsoh River Railw. 247 Sparks v. Liverpool Waterworks 102 Sparling v. Parker 38 Sparrow v. Evansville & Crawfords- viUe Railw. 9« V. Oxford, Worcester & W. Railw. Co. 116, 667, 668, 670 Spear v. Crawford 72 V. Richardson 144 Spear & Carlton v. Newell 417 Spencer v. London & B. Railw. 504, 512 Ixxxii TABLE OF OASES. Page Spencer v. Utica & Sch. Railw. 330 Spiller V. Spiller 504 Spooner v. McCbnnell 167, 477 Spottiswoode's case 638 Sprague v. Trustees of Vermont Central Railway 354 v. Whittemore 350 Springfield v. The Conn. River R. 117, 121, 130, 159, 160, 486, 515, 561 Spry V. Emperor 355 Squire v. Campbell 187 St. James's Club, in re 637 St. John V. St. John 663 V. Van Santvoord 285, 286, 296 St. Louis County Ct. w. Sparks 465 St. Luke's Church v. Slack 465 St. Mary's Church 12 Stacy V. Vermont Cen. Railw. Co. 118, 119, 151 Stadhecker v. Combs 240, 312 Stahl V. Berger ' 49 Stainbank v. Pernley 60 Stamps V. Bir., Wolv. & Stour Val- ley Railw. Co. 671, 678 Standish v. Mayor of Liverpool 677 Stanhope v. Manners 587 Stanley v. Chester & Birkenhead Railway Co. 646 V. Stanley 58, 538 Stanton v. Wilson 97 Stapleton v. Nowell 353 Starr v. Child 160 Startup V. Macdonald 240 State V. Ashley 465, 472 V. Baltimore & Ohio Railw. 115, 546, 561, 598 V. Bank of Louisiana 1 7 V. Bank of Md. 603 V. Bently 528 y. Berry 531 V. Boston, Concord & Montreal Railway Co. 23, 123, 465, 473 V. Bosworth 538 V. Branin 528, 530 V. Buchanan 465 . V. Chester & Evesham 442 V. Comm. Bank of Manchester 588 V. Commissioners of Mansfield 193, 530 V. Curran 605 V. Danser 528 V. Dawson 151 !). Digby 135 V. Directors of Bank 459 V. Fourth N. H. Turnpike Co. 603 V. Franklin Bank 39 u. Gilmore 519 V. Gorham 392 V. Great W. M. & Man. Co. 384 Page State V. Holiday 456 V. A. P. Hunton et al. _ 473 V. Lagrange & Memphis Rail- way V. McBride « V. Merry Mexican Gulf Railw. 606 472 472 588, 590 V. Merchants Ins. Co. . 472 U.Miller 137 V. Minton 531 V. Morris & Essex Railway 381, ■ 517, 520 V. Norwalk & Danbury Turn- pike Co. 192 V. Overton 31, 32 u. Rives 11.2,128,579,391,603 V. Ross 35, 530 V. St. Louis P. M. & Life Ins. Co. 472 V. Tunis . 528, 531 V. Tupper 616 V. Turk 472 V. Vermont Central Railw. 382, ' 515, 521 V. Wilm. & Manch. Railway 422 V. Bank of Ohio v. Knoop 527, 530, 531, 532, 560 State of New Jersey v. Wilson 529, 552 State of Penn. i^. Wheeling Bridge Co. 167, 169 Steamboat Co. v. Atkins & Co. 239 Steamboat Cr. Palace v. Vanderpool 243 Steamboat Lynx v. King 234 Steamboat New World v. King 328 Steamer H. M. Wright 313 Stebbins v. Phoenix Fire Insurance Co. 601 Steel u. Southwestern Railway 171, 377, 379 Steele v. Harnier Steigenberger v. Carr Stein V. Mobile Steiner's Appeal Stephens v. De Medina Stephenson v. Hart V. N. Y. and Harlaem Railroad 292 Stetson V. Faxon Steub^nville and Ind. Railway v. Trustees of Jackson V. Tr. of North Township Stevens v. Buckman V. Boston & Maine Railw. V. Rutland and Burlington Rail- way 92 V. South Devon Railway 14, 421, 438,496, 597 Stewart's Estate, in re 105 • 409 634 528, 533 571 51 249 160 536 533 477 259 'TABLE OF CASES. Ixxxiii Stewart v. Anglo California Gold Min- ing Company 102 V. Cauty ' 51, 53 V. Hamilton College 97 V. Little Miami Railway 479 — — V. Raymond Railway 151, 674 Stikeman v. Dawson 90 Stiles V. The Western Railway 203 Stilphin M. Smith 27 Stocker v. Wedderburn 512, 514 Stockbridge. u. West Stoukbridge 3 Stocker & White v. Sullivan Railw. 303 Stockton u. Prey 324, 327 Stockton & Hartlepool Railw. v. Leeds & Th. & Clar. Railw. 505, 662 Stoddard v. L. L Railway 267, 275 V. Onondaga Annual Confer- ence 9 Stokes V. Grissell 194 V. Lebanon & Sparta Turnpike Co. 73 V. Saltonstall 324, 334 Stone V. Cambridge 121 V. The Commercial Railway 1 74, 476,480,667,671 Stoneham Branch Railw. v. Gould 74, 79 Stoney v. American Life Ins. Co. 695 Storer v. Great Western Railway 499 Stormfeltz v. Manor Turnpike Co. 117 Story V. Finnis 353 Straffon's Executors, ex parte 42 Strasburgh Railway v. Etchternact 660 Stratford and Moreton Railway v. Stratton 79, 81 Stratton V. New York and New Ha- ven Railway 242, 350 Straus V. Eagle Ins. Co. 692-697 Strickland v. Mississippi Railway 534 Strong, Petitioner, &c. 442 Strong V. Ellsworth 635 Struthers v. Clark 601 Stuart, Lord, v. The London and Northwestern Railway 649, 656, 659 Stubbs V. Lister 102 Sullivan v. Ph. & Reading R. 354, 864 Sunbury & Erie Railw. v. Hummel 155 Susquehanna Bridge Co. v. General Insurance Co. . 575 Susquehanna Canal Co. w. Bonham 591, 606 u. AVright 114,543 Sutton V. Clark 161 V. Latham 51 V. Louisville 137 Sutton H. Improvement Compan y V. Hitchins 682 Suydam v. Moore & Loren 362, 394, 557 Page Swan V. Williamson 558 Swatara Railway v. Brune 89 Sweet V. Harney 240 Swift V. Dean 307 Swindler v. Hilliard 267 Syeds v. Hay 304 Symonds v. City of Cincinnati 112, 135 T. 293, Tafif Vale Railway v. Giles V. Nixon Talbot V. Dent Talmadge v. Rensselaer & Saratoga Railw. Tanner v. Tanner V. Trustees of the Village of Albion Tar River Nav. Co. v. Neal Tarrant v. Webb Tate V. Ohio & Miss. Railway Tattersall v. Groote Taunton v. South B. Turnpike Co. V. Whiting Tawney v. Lynn & Ely Railway . Taylor v. City of St. Louis — u. Clerason 114, V. Cole V. Day «. Hughes V. Monnot • V: Newbern V. Salmon V. Shay V. Southeastern Railway Taylor & York North Midland Rail- way, In re 6 73 Teall V. Sears 260 Tempest v. Kilner 39, .54 Terry v. New York Central Railw. 363 Tew V. Harris 690 Thames Haven Dock & Railway Co. V.Hall 18,182,492 Thames Haven Railway Co. v. Rose 18, 20, 22 Thames Steamboat Co. v. Housatonic Railway . 384 Thames Tunnel Co. v. Sheldon 44, 82 Thayer v. Vermont Central Railw. 204 Theobald v. Railway Passenger's As. Co. 347 Thicknesse v. Lancaster Canal Co. 461, 489, 685 Thigpew y.Miss. Central Railw. 692-697 Thomas v. Boston & Prov. Railway 254, 258 V. Daniel 560 333 213 533 363 66 558 72 387 164 223 71 671 161 191 511 323 43 313 534 477 53 358 ■ V. Winchester 430 Ixxxiv TABLE OF CASKS: Thompson, ex parte V. Brown V. Charnock V. Ebetts V. Grand Gulf R. •■ V. Kelly Page 442 594 223 527 147, 151 534 . New Orleans & CarroUton Railway 379 V. New York & H. Railway I'l 7, 501, 540 V. Thompson 38 V. West Somerset Railway 163 Thomson v. Wells 292 Thome v. Taw Vale Railway 3 Thorogood v. Bryan 332, 337, 354 Thorp V. Hughs 86 Thorpe v. The Rut. & Burlington Railway 6, 131, 526, 527, 538, 549, 560 Tillotson V. Hudson River Railway 172 Tilson V. Warwick Gas-Light (^o. 462 Timmons v. Central Ohio R. 340, 391 Tinsman v. Belvidere Del. Railw. 157, ■560 Tippetts V. Walker 39, 591 Todd V. London & Southwestern R. 524 Toledo Bank «. Bond 6,117,551,562, 560 Tombs V. Rochester & Syracuse R. 373 Tomhnson v. Manch. & Birm. R. 116 V. Tomlinson 38 Tonawanda Railway v. Hunger 363, 375 Tooke, ex parte, in re. The London- derry, &c. Railway 64 Tooker v. Oakley 494 Tooney t'. London, B. & South Coast R. 430 Tower v. Eastern Counties Railw. 514 V. Prov. & Worcester R. 363, 376 V. Utica & Sch. Railwav 243, 248 Towle V. The State " 467 Town V. Bank of R. Raisin 603 Towns V. Cheshire Railway 361, 3 75 Townsend v. Ash 39 Townshend v. Susquehanna Turn- pike Co. 430 Tracy v. Yates 87 Travis u. Waters 5 1 4 Tremain v. Cohoes Co. 152 Trent & Mersey Nav. Co. u. Wood 233 Trinity (;huroh case 560 Trow V. Vermont Central Railway 333, 364, 394, 554 Trowbridge v. Chapin 248 Troy )'. Cheshire Railway 159, 174 Troy & Boston Railway v. Lee 135, 139 V. Northern Turnpike Co. 139, 142, 146 W.Warren 97 Page Troy & Boston Railw. v. Tibbits 72, 88, 97 Troy & But. B. v. Kerr 72, 98, 419, 679 Troy Turnpike Co. v. M'Chesney 72 Trueman v. Loder 52 Trustees of the Presby. Society of Waterloo V. Auburn & Roch. Railw. 5, 158, 160 Tuckahoe Canal Co. v. T. & J. River Railway 117, 540 Tucker v. Chaplin 327 V. The Cheshire Railway 478 Tunnel v. Pettijohn 295 Thurnell v. Balbirnie 223 Turner v. Goodrich 307 V. Sheffield & Roth. R. 152, 174 Turnpike Co. «. Brosi 181 V. Hosmer 192 V. Wallace 6 Tyley v. Morrise 274 Tyron v. Fairclough 691 Tyrrell v. Woolley 405 U. TJnderhill v. N. Y. & Harlaem R. 366 V. Saratoga & Wash. R. 106 Underwood v. Hart 203 Union Bank v. Jacobs 575 V. Laird 44 Union Bank of Tennessee v. State 39 Union Branch Railw. v. E. Tenn. & Geo. Railw. 603 Union Lock & Canal Co. v. Towne 91 United States v. Arredondo 116 V. Harris 125, 127 V. New Bedf Bridge Co. 167 V. Railw. Bridge Co. 113, 169 V. Robeson . 224 V. Thomas Swan 354 V. Vaughan 44 University v. Foy 560 V. Louisville 560 University of Alabama v. Winston 560 University of Maryland v. Williams 560 Unthank v. Henry Co. Turnp. Co. 74 Upfill's case 73, 604, 637 Upton V. So. Reading B. Railw. Co. 135, 142 Utica Bank u. Smalley 44 Utica & Sch. R. v. Briukerhoff 78, 98 Vail V. Morris & Essex Railw. 140, 441, 146 Vandegrift v. Railw. 385 V. Rediker 364, 376, 394 Vanderbilt v. Adams 560 V. Richmond T. Co. 384 TABLE OF CASES. Ixxxv Page Vanderkar v. Rens. & Sara. R. 370, 375 Vanderwerker v. Vermont Central Railw. 204 Vandine's case 558 Vane v. Cobbold 605 Van Santvoord v. St. John 258, 882, 283, 286 Van Wickle v. Railw. 119, 140, 145, 470 Varick v. Edwards 56 Varriok v. Smith « 112 Varillat v. New O. & Car. Railw. 396 Vaughn v. Taff Vale Railw. 692-697 Vauxhall Bridge Co. v. Earl of Spencer, et al. 639, 643, 663 Vayne v. Hanham 581 Vermont Cen. Railw. Co. w. Baxter 120, 123,420 U.Burlington . 193,529 V. Clayes 97 V. Hills 107 Vermont & Mass. Railw. v. Fitch- burg Railw. 560 Vicks. & Jackson Railw. v. Patton 692-697 86 534 174 396 679 564 13 76 Vicks. S. & Texas Railw. V. Ouachita Victory v. Fitzpatrick Violet V. Simpson Viseher v. Hudson River Railw. VoUans v. Fletcher Von Schmidt v. Huntington Vose V. Grant W. Wainwright v. Ramsden 181 Waite V. Gilbert 321 Waitman, ex parte 65 Waldo V. Martm 411 Waldron !i. Portland, Saco, & Ports- mouth Railw. 363 V. Rensselaer & Saratoga Rail- way 362, 557 Wales V. Stetson 560 Walker, ex parte - 65 V. Bartlett 47, 56, 58 V. Boiling 390 V. Boston & Maine RaUw. 113, 139, 140, 167 V. Devereaux 8, 70 V. Eastern Counties Railw. Co. 107, 485 V. Jackson 271 V. London & Blackwall Railw. 455, 671 . V. London & Southwestern Railw. 303 h Page Walker v. Mad River Railw. 479 V. Milne 38 V. Sherman 590 V. York & North M. Railw. Co. 278 Wallingford M. Co. v. Fox 635 Walworth v. Holt 477, 4^4 Walstab v. Spottiswoode 604, 636 Walter v. Belding 443 II. Brewer 237 Warburton v. London & Blackwall Railw. 480, 507 Ward V. Griswoldville M. Co. 72 V. Londesborough 636 u. The Society of Attorneys 497 Warden v. Greer Ware v. Gay V. Grand Junction Water Co. 303 327 13, 92 690 , 540 79 85 V. Regent's Canal Co. Waring V. Manchester, Sheffield, & Lin. Railw. 213 Warner v. Mower 16, 609 Warring v. Williams 49 Washington Bridge v. State 540, 559, 560 Washington & Bait. Tump. Co. n. Bait. & Ohio Railw. 538, Waterford, Wexfdrd W. &D. Rail- way V. Dalbiac Waterford, Wex. & Wic. Railw. & D. Kailw. V. Piddock Waterman v. Troy & Greenfield R. 100 Water Power Co. v. Chamber 106, 109 Watertown v. White 576 Watkins v. Great Northern Railw. Co. 122, 173, 174 Watson V. The Ambergate, Not. & B. Railw. Co. 282, 283 V. Reid 109 Watts V. Salter 604, 636, 637 V. Watts 56 Webb, In re 258 V. Direct Lond. & Ports. Rail- way Co. 648, 649, 656, 658-660 Webb V. Man. & Leeds R. 116, 120, 398,474, 671 Webber v. Nicholas 346 Weber v. Eastern R. 143 Webster i'. Southeastern R. 498 Weed i;. Saratoga & S. R. 235, 239, 284, 285, 286, 289 V. Panama Railway 293 Weeden v. L. Erie & Mad River R. 100 Welles V. Cowles 39 Welling V. Western Vt. R. • 235 Wells V. Bridge 48 V. Howell 374 liKxxvi TABLE OF CASES. Page Wells V. Steam Nav. Co. 267 Wentworth v. Outhwaite 305 West Branch Bank v. Chester 587 West Cornwall R. v. Mowatt 68, 592 West London E. v. London & N. W. R. 431 West Philadelphia Canal Co. v. In- nes 83, 84 West V. Rensselaer & Sara. E. 290 West River Bridge Co. ». Dix 129, 132, 538, 540, 546, 556 " ' 109 205 527 126 50 162 536 390 625 627 Western Railway v. Babcock Weston V. Bennett ^^ — V. City of Charleston ■ V. Foster Westroop V. Solomon Wetmore v. Story Wetumpka v. Winfer Weyant v. N. Y. & Harlaem E. Wheedon v. Camd. & Amb. R. Wheeler v. N. Y. & Harlaem R. V. Moulton V. Eocb. & Sy. E. V. Young & Pratt Whipple V. Walpole Whitcombw. Vermont Central R. 40, 575, 635 127, 156, 370 120 144 105, 15'7 B22 174 323 135 White V. Bascom V. Boston & Prov. R^ V. Boulton V. Charlottesville & S. C. R. V. Concord R. 144, 371 V. Fitchburg R. 143 -^ V. Great Western E. 280 V. South Shore R. 155 V. Syracuse & Utica R. 535 V. Vann 314 V. Winnisimmet Co. 245 Whiteman v. Wilmington & Sus. Railw. 381,517 White Mountain Road Co. (Petition of) 137 White Mountain R. v. Eastman 21, 70, 73, 80 White River Bank, In re 465 White River Turnpike Co. u. Ver- mont Cent. R. 129, 130, 159, 538, 540, 561 Whitesell u. Crane 311 Whitesides v. Russell 279 Whitfield V. Southeastern Rail- way 692-697 V. Zellnor 201 Whitmarsh Township v. Railw. Co. 466 Whitmore v. Steamboat Caroline 313 Whitney v. Clarendon 845 Whittier v. Portland & Ken. R. 157 Whitwell et al. v. Warner et al. 399, 609, 688 Page Wibert V. New Yofk & Erie Railw. 262, 285, 318 Wiggett V. Fox et al. 389 Wiggin V. Free Will Bapt. S06. 16 Wight V. Shelby R. '35, 70, 88 Wigmore v. Jay 386 Wilcocks, ex parte 20 Wilcox V. Parmelee 284 Wiley u. Moore 49 Wilkie ». Bolster 325 Wilkinson v. Anglo Gal. Gold Co. 62 V. Lloyd 41, 45, 53 Willard V. Newbury 391 Willetts V. N. Y. & Erie R. 340 Willey V. Parratt 564> 605 V. Southeastern ^.% 678 V. The West Cornwall Railw. 286 Williams p. Andros. & Ken. R. 202 V. Archer 54 -- — K. Bank of 111. 603 V. Chester 8e Holyhead E. 203 V. Gibbs 583 V. Grant 233 V. Great W. E. 27 V. Hartford & New H. E. 118 V. Jones 461 — V. Mich. Cent. E. 363, 364^ 375 V. Nat. Bridge PI. Road Co. 160 V. New Alb. R. 374 -^ — V. Piggott 638 V. St. George's Harbor Com- pany 662 V. South Wales E. 485, 671 Williamson, Trustee, v. New Alb. & Salem E. 591, 595 Williamson v. N. Y. Cent. E. 112, 159, 160, 372 Willing V. Baltimore R. 146 Willink V. Morris Cansd & Banking Co. 590, 591 Willoughby v. Horridge 279 Wills V. Murray 16, 19, 20 Willyard v. Hamilton 149 Wilmington & Raleigh R. v. Eobison 79 & Man. E. v. Saunders 11 Wilmot V. Corp. of Coventry 409 Wilson V. Mina. 4ns. Co. 223 V. Anderson 3 V. Andertou 306, 307 V. Blackbird Creek Marsh Co. 167 «. Cunningham 3 V. Goodman 405 V. Hamilton 245 V. Eailway 865 ' V. Eooh. & Sy. Eailway 618 V. Wilson 22 V. York & Md. Railway 209, 291 TABLE OF CASES. Ixxxvii Wilson V. York, Kewcastle, and ' Berwick Railway 282, 318 Winch V. Birkenhead,*,. & C. Kail- way 420, 579 Winchester and Lexington Turn- jpike Co. V. Vimont . 591 Winter v. Muscogee Railway 91, 94 Winterbottom v. Wright 430 Wisej|. Great Western Railway 278 Witrfir V. Schlatter 638 Wolfe V. Covington & Lexington Railway 157, 159 Wolf u. Summers 317 Wontner v. Shairp 604 Wood V. Auburn & Roch. Railw. 404 V. Duke of Argyle 634 V. Dummer 76 V. JVorth Stafford Railway 199 J!. Vermont Central Railway 230 Woodbury v. Frink 321 Woodfolk V. N. & C. R. 134, 136, 137 Woods V. Devin 245 Woods,tock V. Gallup 440, 469 Wookey v. Pole 505 Wooley V. Constant 49 Woolsey v. Dodge 533, 626 Woolson V. Northern Railway 374 Worcester v. Western Railway 530 Worcester & Nashua Railw. v. Hinds 79 Works V. Junction Railway 169, 625 Worley i'. Cin. H. & Day. Railway 339 Wormwell v. Hailstone 462 Worrall o. Judson 58 Worsley v. S. Devon Railway 670 W. & P. Railw. V. Washington 145, 155 Wright V. Caldwell 245, 311 V. Fawcett 442 V. Petrie 76 V. Scott 168 V. Wilcox 381 Wryley Nav. v. Bradley 158 Wyld V. Pickford 266, 274 Wyman v. Lexington & West Cambridge Railway 142, 690 Wynn v. AUard ^4 V. Macon 536 V. Shropshire Union Railway & Canal 438 Wynne v. Price 55, 58 Y. Yarborough v. The Bank of Eng- land 380, 516 Yarmouth v. North Yarmouth 560 ■Yetts V. Norfolk Railway 495 Yeiger's case 155 York V. Grenaugh 315 York & Cumberland Railway v. Pratt 79 York & Maryland Line Railway v. Winans 420, 603 York, Newcastle & Berwick Railw. V. Crisp 278, 279 York & N. M. Railway v. Hudson 494 York & North Midland R. v. Milner 460 V. Regina 445, 453 Young V. JHarrison 150, 608 V. Hunter 239 V. Smith 245 Zabriskie v. Cleveland, Columbus & Cincinnati Railw. 9, 16, 404, 596 Zemp V. Wilm. & Manch. Railw. 334 Zimmerman v. The Union Canal Co. 114, 150, 161 THE LAW OF RAILWAYS. CHAPTER I. INTRODUCTION. 1. Origin of railways in England. I 3. Questidns in regard to private railways. 2. First built upon one's own land, of by 4. Railways in America, public grants. special license from the owner. \ 5. Use of steam-power on railways. § 1. 1. Although some of the Roman roads, like the Appian "Way, were a somewhat near approach to the modern railway, being formed into a continuous plane surface, by means of blocks of stone fitted closely together, yet they were, in the principle of construction and operation, essentially different from railways. The idea of a distinct track, for the wheels of car- riages, does not seem" to have been reduced to practice until late in the seventeenth century. In 1676, some account is given of the transportation of coals near Newcastle, upon the river Tyne, upon a very imperfect railway, by means of rude carriages, whose wheels ran upon some kind of rails of timber.' About one hun- dred years afterwards, an iron railway is said to have been con- structed and put in operation at the colliery near Sheffield. From this time they were put into very extensive use, for conveying coal, stone, and other like substances, short distances, in order to reach navigable waters, and sometimes near the cities, where large quantities of stone were requisite for building purposes. 2, These railways, built chiefly by the owners of coal-mines and stone quarries, either upon their own land or by special 1 Roger North's Life of Lord Keeper North, vol. 2, p. 281 ; Ency. Americana, Art. Railway, vol. 10, p. 478. 1 1 * 2 THE LAW OP RAILWAYS. [§ !• license; called -way-leave, upon the land of others, had become numerous * long before the application of steam-power to railway- transportation. 3. Some iew questions in regard to the use of these rail-ways, or tram-ways, at common la-w, have arisen in the Enghsh courts.^ But as no such rail-ways exist in this country, it would scarcely be expected we should here more than allude to such cases.^ a Walford on Railways, 2 ; Keppell v. Bailey, 2 My. & K. 517 ; Hemingway V. Fernandes, 13 Simons, 228. These cases seem to establish the rule, that a covenant to erect a railway across the land of another, and to use the same exclusively for a given transportation, is binding upon the assignees of the interest. But a mere covenant to use an adjoining railway, and pay a specified toll, does not run with the land then used by the covenantor, and from which he derives the material transported. Id. 3 Walford, 3-10. The points chiefly discassed in the reported cases in refer- ence to private railways, and railways at common law, are : — 1. That these way-leaves, or reservations, by which one man has the right to build a railway upon the land of others, or in the rightful occupation of others, are not to be limited to the kind of railway in use at the date of the reservation or grant, but will justify the building of a railway, suitable and convenient for the use for which the reservation or grant is made, and with all such* needful or useful improvements, as the progress and improvements of art and science will enable the grantee to avail himself of Dand v. Kingscote, 2 Railw. C. 27 ; s. c. 6 M. & W. 174. Hence it was considered that such railways might, upon the general application of steam-power to railways, adopt that as an improvement, coming fairly within the contemplated use of their grant or reservation, although wholly unknown at the date of their grant. Bishop u. North, 3 Railw. C. 459. 2. That this will not justify the grantee of a way-leave for a railway, for a special purpose, to erect one for general purposes of transporting merchandise and passengers. Dand t. Kingscote, 2 E^ilw. C. 27 ; Farrow t. Vansittart, 1 Railw. C. 602 ; Durham & Sunderland R. v. Walker, 3 Railw. C. 36. In this last case, which was a decision of the Exchequer Chamber, the way-leave was retained by the landlord in leasing the land, and the court say, it is not an ex- ception, for it is not parcel of the thing granted, and it is not a reservation, as it did not issue out of the thing granted, but it is an easement, newly created, by way of grant, from the lessee. And that it was to be presumed the deed was executed by both parties, lessor and lessee. But it was held, that where by a canal act, (32 Geo. 3, c. 100, § 54,) the propri- etors of coal-mines, within certain parishes, are empowered to make railways to convey coal over the land of others, by paying or tendering satisfaction, that this power was not limited to such persons as were the proprietors, at the date of the act, but extended to subsequent proprietors. Bishop v. North, 3 Railw. C. 459. 3. That if the railway was such a railway as the company, at the time when it was made, might lawfully make, for the purposes for which, when made, they § 1.] INTRODUCTION. * 3 * 4. All railways and other similar corporations in this country exist, or are presumed to have originally existed, by means. of an express grant from the legislative power of the state or sover- eignty.* 5. The first use of locomotive engines upon railways for pur- poses of general transportation, does not date further back than October, 1829 ; and all the railways in this country, with one or two exceptions, have been built since that date.^ might lawfully use it, the plaintiff, as reversioner, had no ground of complaint, t>y reason of the intention of the company to use it for other purposes, for which they had no right to use it, until such intentions were actually carried into effect. Durham & Sunderland R. v. Walker, 3 Eailw. C. 36. But where other parties have acquired the right to use a railway originally erected by private enterprise and for private purposes, the English courts at an early day restrained the owners of the railway by mandamus from taking up their track, and required them to maintain it in proper condition for public use. Rex V. Severn R. 2 B. & Aid. 646. But see Thorne v. Taw Vale R., 13 Bea- van, 10. 4. That such way-leaves, for the erection and use of railways upon the land of others, may exist by express contract; by presumption or prescription; from necessity, as accessory to other grants ; and by acquiescence, short of the limit of prescription. Barnard v. Wallis, 2 Railw. C. 162 ; Monmouth Canal Co. v. Har- ford, 1 C. M. & R. 614. These railways, at common law and by contract, impose certain burdens upon the proprietors, as the payment of rent sometimes for the use of the land, tenant's damages, and the keeping their roads in repair, so as not to do damage to the occupiers of the adjoining lands. Wilson v. Anderson, 1 Car. & K. 544 ; Walford, supra. 4 2 Kent, Coram. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. K. 400 ; Hagerstown Turnpike Co. v. Creeger, 5 Har. & J. 122 ; Greene v. Dennis, 6 Conn. R. 302 ; Hosmer, Ch. J., Franklin Bridge Co. v. Wood, 14 Ga. R. 80. But from the case of Wilson v. Cunningham, 3 California R. 241, it seems that the municipal authorities of San Francisco did assume to grant a private railway within the limits of the city. The court held the proprietor liable for the slightest neglioence in its use, whereby third parties were injured. 5 The celebrated trial of locomotive engines upon the Liverpool and Manches- ter Railway, for the purpose of determining the relative advantage of stationary and locomotive power upon such roads, and which resulted in favor of the latter, was had in October, 1829. The Quincy Railway, for the transportation of granite solely by horse-power, was constructed about two years before this. But the Boston and Lowell Railway, one of the first railways in this country for general transportation of passengers and merchandise, by the use of steam-power and locomotive engines, was incorporated in June, 1830. And railways for pur- poses of generkl traffic were constructed about the same date in most ot the oiaer states, and very soon throughout the country. *4-5 THE LAW 0¥ BAILWATS. [§17. * CHAPTER II. PUBLIC RAILWAYS. PRELIMINARY ASSOCIATIOSTS. [For this chapter, § 2-16, see Appendix A.] * CHAPTER III. RAILWAYS ORDINARILY PRIVATE CORPORATIONS. 1 . Private corporations where slock is private property. 2. Public corporations where stock is owned, and the management retained, by the State. 3. Pvhlic corporations have no rights beyond the control of legislative authority. § 17. 1. Railways in this country, although common carriers of freight and passengers, and in some sense regarded as public works, are ordinarily private corporations.^ By private corpora- tions nothing more is implied, than that the stock is owned by private persons. 2. If the stock is owned exclusively by the state, the corpo- ration is a public one. And such public corporations are under the control of the legislature, the same as municipal corporations, and ordinarily acquire no such vested rights of property as are beyond the control of legislative authority.^ The American cases 1 There is no necessity for these public functions being confined to aggregate corporations, as is the universal practice in this country. The same franchises and immunities might be conferred upon any private person, at the election ot the legislature, as was done by the legislature of New York upon Fulton and Livingston, in regard to steamboat navigation, which grant was held valid but for the United States Constitution. And whoever was the grantee, the same rights, duties, and liabilities would result from the grant, whether to a natural person or to a corporation. 8 Dartmouth College v. Woodward, 4 Wheaton, E. 668 ; 2 Kent's Comm. 7th ed. (275) 305 and notes. If the question were entirely new, it might be re- 4 § 17.] RAILWAYS OEDINARILT PRIVATE CORPORATIONS. * 5 going to confirm this proposition, and to show that railways are private corporations, are numerous.^ garded as admitting of some doubt, perhaps, how far the American States could •with propriety undertake such extensive public works, whose benefit enures almost exclusively to private emolument and advantage. But the practice is now pretty firmly established. And there seems to be no proper tribunal to determine such questions between the states and the citizens. Public opinion is the only practical arbiter in such eases. And that is so much under the con- trol of interested parties ordinarily, that its admonitions are not likely to be much dreaded by those who exercise the state patronage. 3 8 Smedes & M. 661. By the court, Trustees of the Presbyt. Society of Waterloo v. Auburn & Rochester Railway, 3 Hill, 570; Dartmouth Coll. v. Woodward, 1 New H. 116; Eustace v. Parker, 1 New H. 273; Dearborn v. Boston, C. & Montreal R. R. Co. 4 Foster, 190 ; Ohio, &o. Railroad Co. v. Ridge, 5 Blackf. 78 ; Bonaparte v. Camden & Amboy R. 1 Baldwin's C. C. R. 205, 222 ; Rundle v. Delaware & Raritan Canal Co. 1 Wallace, Jr. R. 275 ; R. & G. R. V. Davis, 2 Dev. & Batt. 451 ; Thorpe v. R. & B. R. 27 Vt. R. 140. This last case discusses at some length the right of legislative control over private corporations, whose functions are essentially public, like those of banks and rail- ways. The importance of such control, within reasonable limits and under proper restrictions, both to the public interest and that of these corporations, will be ob- vious when we consider the magnitude of the interests committed to such corpo- rations, and the vast amount of capital invested in such enterprises. We make no account of the banking capital of the country, most of which is occupied in business more or less connected with railway trafiic. But the capital and busi- ness of railways is almost incalculable. The length of railway in the United Kingdom of Great Britain and Ireland, in 1857, was 8635 miles, and the cost, in round numbers, £311,000,000 sterling, being more than one and one half billion of dollars. The amount invested in this country was about half as much, in 1851, and the number of miles in opera- tion nearly twice as great, and almost as much more then in progress, a large portion of which is now complete. When it is considered that these private cor- porations, possessing such vast capital, have engrossed almost the entire travel and traffic of the country, and that their powers and functions come in daily con- tact with the material interests of almost every citizen of this great empire, the importance of their being subjected to a wise and just supervision can scarcely be overestimated. This can only be permanently secured, by wise and prudent legislation. And to be of much security to public interests, it must be by general acts, as it is in many of the states, and in England, since 1845. It is worthy of remark, we think, that while in the United States, a large proportion of the cap- ital invested in railways, has proved, hitherto, wholly unproductive, and much of it has already proved a hopeless loss, and a very small proportion of the whole can be said to have been at all remunerative ; in Great Britain the whole amount of their loan and preference stock, secured virtually by way of mortgage, has produced, upon an average, more than five per cent, and the ordinary stock has produced an average dividend of more than three per cent. ; and in France rail- 1 « 6 * 6-7 THE LAW OF KAILWAYS. [§ 1^- * 3. It does not alter the character of a private corporation, that the state or the United States own a portion of the stock.* But a turnpike company or other corporation, managed exclusively by state officers, and at the expense and for the benefit of the state at large, is a public corporation.^ * CHAPTER IV. PROOBBDINGS UNDER THE CHARTER. SECTION I. ORGANIZATION OF THK COMPANY. 1. Conditions precedent must be performed. 2. Stock must all be subscribed, ordinarily, 3. Charter, location of road, condition prece- dent, i. Colorable subscriptions binding at law. 5. Conditions subsequent, how enforced. 6. Stock distributed according to charter. 7. Commissioners must all act. 8. Defect of organization viust be plead. 9. Question cannot be raised collaterally. 10. Records of company, evidence. § 18. 1. To give the corporation organic life, the mode pointed out in the charter must ordinarily be strictly pursued. Condi- tions precedent must be fairly complied with.' Thus, where a given amount of capital stock is required to be subscribed or paid in before the corporation goes into operation, this is to be regarded as an indispensable condition precedent.^ But if the ways have proved still more productive, making average dividends throughout the empire, for the year 1857, of nine per cent, upon the whole investment, some as high as 16. per cent., and one, the Lyons 8e Marseilles line, 23 per cent. It is difficult to account for the difference in results, without suspecting something wrong somewhere. 4 Bank of the United States v. The Planters' Bank of Georgia, 9 Wheaton, 904 ; Miners' Bank v. United States, 1 Greene, (Iowa,) 553 ; Turnpike Co. v. Wallace, 8 Watts, 316. 5 Sayre v. North W. Turnpike Co. 10 Leigh, 454. But see Toledo Bank v. Bond, 1 Ohio State Reports, 657. Opinion of Storrs, J., in Bradley v. New T. & New H. R. 21 Conn. R. 304, 305. 1 Angell & Ames on Cor. ch. 3, § 95-112 ; 2 Kent's Comm. 293 et seq. 2 Post, § 51, and cases cited. Bend v. Susquehannah Bridge, 6 Har. & Johns. § 18'] PROCEEDINGS UNDER THE CHARTER. * 8 charter is in the alternative, so that the stock shall not be less than one sum or greater than another, the company may go into operation with the less amount of stock, and subsequently in- crease it to the larger.^ S. And where business corporations are created, with a defi- nite capital, it is regarded as equivalent to an express condition, that the whole stock shall be subscribed before the company can go into full operation ; and, in the case of banks, it must be paid, in specie, in the absence of all provision to the contrary, before they can properly go into operation.^ * 3. In some cases it is a condition of the charter, or of the sub- scriptions to the stock, that the track of a railway shall touch certain points, or that it shall not approach within certain dis- tances of other lines of travel. This class of conditions, so far as they can practically be denominated conditions precedent, must be strictly complied with, before the company can properly go into operation so as to make calls. 4. But it has been held, that colorable subscriptions to stock, in order to comply with the requisites of the charter, are not to be regarded as absolutely void. They are binding upon the subscribers themselves. And they are binding upon the other subscribers unless, upon their first discovery, they take steps to stay the further proceedings of the corporation, which may be 128 ; Gray v. Portland Bank, 3 Mass. R. 364 ; Minor v. The Mechanics Bank of Alexandria, 1 Peters, (U. S.) R. 46. Opinion of Story, J. And where a cor- poration is formed, or attempted to be formed, under general statutes, the in- choate proceedings do not ripen into a corporation, until all the requirements of the statute, even the filing of the articles in the office of the secretary of state, are complied with. And until this is done, the subscription of any one to the articles is a mere proposition to take the number of shares specified, of the cap- ital stock of the company thereafter to be formed, and not a binding promise to pay. The obligation is merely inchoate and can never become of any force, unless the corporation goes into effect in the mode pointed out in the statute. And until that time, the subscriber may revoke the offer, and if the articles are in his possession or control, erase his name. Burt v. Farrar, 24 Barb. 518. 3 King u. Elliott, 5 Sm. & Mar. 428 ; post, § 51. But a requirement in the charter of a railway company, that SI, 000 per mile shall be subscribed, and ten per cent, paid thereon in good faith, does not require ten per cent to be paid by each subscriber, in order to the performance of the condition. It is a suflicient compliance with such requirement, if that proportion on the whole subscription be paid. Ogdensb., Rome, & Clay. R. v. Frost, 21 Barb. 541. ^9 THE LAW OF RAILWAYS. [§ 18. done in a court of equity. If there has been unreasonable delay, in opposing the action of the corporators, upon the faith of such subscriptions, or if matters have progressed so far, before the discovery of the true character of the subscriptions, by the par- ties liable to be injuriously affected by them, as to render it diffi- cult to restore the parties to their former rights, the corporation will stUl be allowed to proceed, notwithstanding the fraud upon the charter.* 5. Conditions subsequent in railway charters, by which is to be understood such acts as they are required to perform after their organization, will ordinarily form the foundation of an action at law, in favor of the party injured; or they may be spe- cifically enforced in courts of equity, in cases proper for their interference in that mode ; or, if the charter expressly so provide, proceedings, by way of scire facias, to avoid the charter may be taken.^ 6. Where a statute declares certain persons by name, and such other persons, as shall hereafter become stockholders, a cor- poration, * the distribution of the stock, in the mode pointed out in the statute,' is a condition precedent to the existence of the corporation.^ 7. Where the charter of a railway company appoints a certain number of commissioners, to receive subscriptions and distribute the ?tock, in such manner as they shall deem most conducive to the interests of the company, making no provision in regard to a quorum, all must be present, to consult, when they distribute the stock, although a majority may decide, this being a judicial act. Receiving subscriptions is a merely ministerial act, and may be performed by a number less than a majority.^ * Walker v. Devereaux, 4 Paige, Ch. R. 229. The entire ground of chancery jurisdiction in regard to the conduct of commissioners or corporations in making colorable subscriptions of stock is here very fully discussed by the learned Chan- cellor. And. the conclusion arrived at seems the only practicable one, that color- able subscriptions or fraudulent distribution of stock will not defeat the legality of the organization of the corporation, unless the thing is arrested in limine. Johnston v. S. W. K. R. Bank, 3 Strob. Eq. R. 263 ; Selma & Tenn. R. R. v. Tipton, 5 Alabama R. 787 ; Hayne v. Beauchamp, 5 Sm. & M. 515. The decis- ion of the commissioners is conclusive upon the company and shareholders at law certainly. Crocker v. Crane, 21 Wendell, 2U. 5 2 Kent, Comm. 305 and notes. 6 Crocker v. Crane, 21 Wendell, 211 ; s. c. 2 Am. Railw. C. 484. 8 § 19.] PROCEEDINGS UNDER THE CHARTER. * 10 8. Questions in regard to the organization, or existence of the corporation, can only be raised ordinarily upon an express plea, either in abatement or in bar, denying its existence.^ 9. But all the cases concur in the proposition, that the exist- ence of the corporation, the legality of its charter, and the ques- tion of its ^Forfeiture, cannot be inquired into, in any collateral proceeding, as in a suit, between the company and its debtors, or others,,against whom it has legal claims.^ 10. The records of the corporation are primd facie, but not indispensable evidence, of its organization and subsequent pro- ceedings.^ But the authenticity of the books, as the records of the corporation^ must be shown by the testimony of the proper officer entitled to their custody, or that of some other person cog- nizant of the fact.^" ♦SECTION II. ACCEPTANCE OF CHAKTER, OK OF MODIFICATION OF IT. 1 . Neio or altered charter must be formally accepted. 2. Subscription for stock sometimes sufficient. 3. Inoperative unless done as required. 4. Assent to beneficial grant presumed. 5. Matter of presumption and inference, 6. Organization or acceptance of charter may be shoum by parol. § 19. 1. It is requisite to the binding effect of every legislative charter (or modification of such charter) of a joint-stock com- ' Boston Type and Stereotype Foundry v. Spooner, 5 Vt. R. 93, and cases cited ; Railsback v. Liberty & Abington Turnp. Co. 2 Carter, 656. But some cases seem to require such proof to establish the contract. Stoddard v. The Onondaga Annual Conference, 12 Barb. 573. / 8 Duke V. Cahawba Nav. Co. 16 Alabama R. 372 ; post, § 242, note 6. But in an action against a stockholder for the debt of the company under the statute, the existencelnd organization of the company must be proved ; and judgment against the company is not evidence against the stockholder. 20 Law Rep. 216 ; d P. & A. Rail. V. City of Erie, 27 Penn. R. 380. 9 Ang. & Am. § 513 ; Grays v. Lynchb. & Salem T. Co. 4 Rand. (Va.) R. 578 ; Buncombe T. Co. v. McCarson, 1 Dev. & Bat. 306 ; Greenl. Ev. § 492 ; Rex V. Martin, 2 Camp. 100 ; Hudson v. Carman, 20 Law Rep. 216. All that a corporation is called upon to prove, to establish its existence in a litigation with individuals dealing with it, is its charter and user under it. This constitutes it a corporation de facto, and this is sufficient, in ordinary suits, between the corpo- 10 Highland Turnp. Co. v. McKean, 10 Johns. 154. * 11 THE LAW OP RAILWAYS. [§ 19. pany, that it should be accepted by the corporators.' This ques- tion more commonly arises, in regard to the modification of a charter, or the granting of a new charter, the company in either case, whether under the old or the new charter, going forward to all appearance much the same as before. In such case, it has usually been regarded as important to show some de'fimte act of at least a majority of the corporation.^ 2. The question of acceptance becomes of importance often, where a partnership, or some of its members, obtain an act of incorporation. But ordinarily, in the first instance, the assent of the stockholders, or corporators, is sufficiently indicated by the mere subscription to the stock. 3. Where a statute in relation to a corporation required acceptance, in a prescribed form, and that is not complied with, the corporation can derive no advantage from the act.^ 4. It has been held, that grants beneficial to corporations may be presumed to have been accepted by them, the same as in the case of natural persons.* 5. And in the majority of instances, perhaps, the acceptance is * rather to be inferred from the course of conduct of the company than from any express act.^ 6. It may always be proved by oral testimony, as may also the organization of the company ordinarily.^ ration and its debtors. The validity of its corporate existence can only be tested by proceedings in behalf of the people., Mead v. Keeler, 24 Barb. R. 20. Be- tween the company and strangers, the records of the company will ordinarily be held conclusive against them in regard to such matters as it is their duty to per- form, in the manner detailed in the records. Zabriskie v. €. C. & C. Railw. 10 Am. Railw. Times, No. 15. 1 The King u. Pasmore, 3 T. R. 200, 240 ; Ellis v. Marshall, 2 Mass. R. 269. This is a charter to certain persons by name, for the purpose of making a street, and subjecting them to assessment for the expense, and it was held not to bind a person named in the act, unless he assented to it. 8 Wilmot, J., in Rex v. Vice Ch. of Cambridge, 3 Bur. R. 1647 ; Rex v. Amory, 1 T. R. 575; Falconer v. Campbell, 2 McLean, R. 196. 3 Green v. Seymour, 3 Sand. Ch. R. 285. 1 Charles River Bridge v. Warren Bridge, 7 Pick. R. 344, by Parker, Ch. J., and Wilde, J. 5 Bank of U. S. v. Dandridge, 12 Wheat. R. 64, opinion of Story, J., and cases cited. 6 Coffin V. Collins, 17 Maine, 440 ; Bank of Manchester v. Allen, 11 Vt. R. 302 ; Angell & Ames, Corp. § 81-87 ; Dartmouth College U.Woodward, 4 Wheat. 688 ; Wilmington & Manchester R. «. Saunders, 3 Jones (N. C.) 126. 10 20.] PROCEEDINGS UNDER THE CHARTER. *11 SECTION HI. ORDINARY POWERS — CONTROL OF MAJORITY. 1. Ordinary franchises of railwaj/s. 3. Majority control, unless restrained. 4. Cannot change organic law. 5. Except in the prescribed mode. 6. Cannot accept amended charter. 7. Or dissolve corporation, 8. May obtain enlarged powers. 9. Courts of equity will not restrain the use of their funds for thai purpose. 10. But will, if to convert canal into railway. 1 1 . Right to interfere lost by acquiescence. 12. Acquiescence of one plaintiff, fatal. 13. Railway a public trust. 14. Suit maintained by rival interest. § 20. 1. The ordinary powers of a railway company are the same as those pertaining to other joint-stock aggregate corpora- tions, unless restricted by the express provisions of their charter, or by the general laws of the state. These are perpetual succes- sion, the power to contract, to sue and be sued by the corporate name, to hold land for the purposes of the incorporation, to have a common seal, and to make its own by-laws or statutes, not inconsistent with the charter, or the laws of the state.^ 2. The right of the majority of a joint-stock company, whether a copartnership or a corporation, to control the minority, is a con- sideration of vital importance, and will be more extensively dis- cussed hereafter.^ 3. There can be no doubt the general principle of the right of the majority to control the minority, in all the operations of the company, within the legitimate range of its organic law, is im- plied in the very fact of its creation, whether expressly conferred or not.^ 1 Walford, 69; 1 Black. Comm. 475, 476; 2 Kent, Comm. 277; where the power of amotion of members for just cause is added. 2 Post, §56, 212. 3 Louisville, Cincinnati, & Charleston Railw. v. Letson, 2 Howard (U. S.) 497 ; 15 Curtis, Cond. 193. The very definition of a corporation, that it is an artifi- cial being composed of difierent members, and existing and acting as an abstrac- tion, and having its habitation where its functions are performed, presupposes that it must act in conformity with its fundamental law, which is according to the combined results of its members, or the will of the majority. But this will can- not change its fundamental law without changing the identity of the artificial being, to which we apply the name of the corporation. See also St. Mary's Church, 7 S. & R. 517; New Orleans, Jackson, &c. Railroad v. Harris, 27 Miss. R. 517; Ex parte Rogers, 7 Cowen, 526, which holds, that if the charter 11 12 THE LAW OF RAILWAYS. [§ 20. *4. And perhaps it is equally implied in the fundamental com- pact, that the majority have no power to change the organic law of the association, except in conformity to some express provis- ion therein contained. 5. This principle lies at the foundation of all the political organizations in this country, which, in theory certainly, are not liable to be changed by the will of the majority, except in the mode pointed out in the constitution of the state or sovereignty. And corporations are not subject to the ultimate right of revolu- tion, which is claimed to exist in the state, and which may be exercised by the law of force, which is a kind of necessity, to which all submit, when there is no open way of escape. This could have no application to a commercial company, whose movements are as much under the .control of the courts of jus- tice as those of a natural person. 6. And in this country it has been held, that the acceptance, by the majority of a corporation, of an amendatory act, does not bind the minority.* 7. And a contract of a manufacturing corporation to employ the plaintiff, a stockholder, during the time for which the corpo- ration is established, that being indefinite, is not released by a majority of the company voting to dissolve the corporation and wind up its concerns, discharging the plaintiff from his employ- ment, and transferring the property to trustees, to pay the debts and distribute the surplus among the stockholders, and giving notice to the executive department of the state, that they claimed no further interest in their act of incorporation.^ requires a certain number to be present, in order to the performance of a certain act, it is requisite that the number remain till the act is complete, and if one de- part before, although wrongfully, it will defeat the proceedings. i New Orleans, &c. Railroad c. Harris, 27 Miss. R. 517. But this rule will be understood with some limitations. If it be an amendment within the ordinary range of the original charter, giving increased facilities for the accomplishment of the same objects, it may be accepted by the majority, so as to bind the whole company. But if it be a fundamental alteration of the constitution of the com- pany, it must have either the express or implied assent of all the corporators, to make it binding. Post, pi. 8, § 56, pi. 3, 7. 6 Revere v. Boston Copper Co. 15 Pick. 351. This case, although put mainly' upon the ground of plaintiff's rights being independent of the law of the associa- ion, yet incidentally involves the right of the majority of the corporators to change its constitutional law. See also Von Schmidt v. Huntington, 1 Cal. 55, 12 § 20.] PROCEEDINGS UNDER THE CHARTER. * 13 * 8. But the English cases seem to suppose, that it is incident to every business corporation to obtain such extension and en- largement of its corporate powers, as the course of trade, and enterprise, and altered circumstances, shall render necessary or desirable, not altogether inconsistent with its original creation.^ 9. Hence it was' held that a court of equity will not, at the instance of a shareholder, restrain a joint-stock incorporated company, whose acts of incorporation prescribe its constitution and objects, from applying, in its corporate capacity, to parlia- ment, and from using its corporate seal and resources, to obtain the sanction of the legislature, to the remodelling its constitu- tion, or to a material extension and alteration of its objects and powers.^ 10. In one case where the purpose of the company was to apply to parliament for leave to convert part of its canal into a railway, the vice-chancellor granted the injunction against ap- plying any of its existing funds to the proposed object.'' This is the more common view of the subject in this country, and to a great extent in England.^ 11. But this right of the minority of the shareholders to inter- fere, by way of injunction, to restrain the majority from obtaining permission to alter the constitution of the corporation, may un- doubtedly be lost by acquiescence.^ Thus where the share- and Kean v. Johnson, 1 Stockton, Ch. R. 401, where it is held, that where the charter is granted for a limited time, it must continufi in operation till the term expires, ifnless, perhaps, in case of serious loss, or with the consent of all the cor- porators, and others having any legal interest in the question. 6 Ware v. Grand Junction Waterworks, 2 Russ. & My. 470 ; (13 Eng. Ch. Rep. 126.) Lord Brougham seems here to suppose, that the right of petition to parliament, for enlargement of powers, is an implied incident of all business cor- porations, by which the subscribers are bound, unless some expness prohibition is inserted in their charter. But the more common implication in this country cer- tainly is, that the original shareholders are not bound by any such alteration, unless such power exists, in terms, in the original charter. 1 CunliflF V. Manchester & Bolton Canal Co. 2 Russ. & My. 470, in note. But it is here stated, that a few days afterwards, one Maudsley filed a bill against the same company and for a similar object. The cause was heard on its merits, and the suit dismissed with costs. Any act beyond the scope of the constitution of the company requires the consent of all the members. Burmester v. Norris, 8 Eng. L. & Eq. R. 487. 8 Post, § 56, 181, 212. 9 Graham v. Birkenhead, &c. Railway, 6 Eng. L. & Eq. R. 132; Beman v. 2 13 * 14 THE LAW OF RAILWAYS. [§ 20. * holders knew of the purpose of the directors to apply the funds of the company to the construction of part only of the road, to the abandonment of the remainder, and remained passive for eighteen months, while the directors were applying large sums to the completion of this part only, the court refused to interfere by injunction.^ 12. And if one of the shareholders, who has acquiesced in the diversion of the funds, be joined in the suit with others who have not, no relief can be afforded.^*' And there can be no doubt of the soundness of this principle, although the effect of its application may be to produce a funda- mental alteration of the constitution of a corporation, and thus to enable them to do what they had no power before to do. But this is only applying to the case the principle of implied consent of all the shareholders, resulting from silence, which is all that is requisite in any case, to legalize the alteration of the charter of a private corporation. 13. It is said in a late case by an eminent equity judge, Vice- Chancellor Stuart :^^ "Although, generally speaking" — "there can be no doubt of the soundness of the principle, that the di- rectors and the majority of the company may be restrained from employing money, subscribed for one purpose, for another, how- ever advantageous," — " and although this is the law as to joint- stock companies, unincorporated and unconnected with public duties or interests, it has not been applied to corporate com- panies for a public undertaking, involving public interests and public duties under the sanction of parliament ; in suQh cases the court of chancery has permitted the use of the corporate seal, and the moneys of the company, to obtain the sanction of parlia- ment to purposes materially altering the interests of the share- holders, according to the contract inter se. This was done in the case of Stevens v. South Devon Railway Company." ^^ The Eufford, id. 106. Lord Cranworih says : " This court will not allow any of the shareholders to say, that they are not interested in preventing the law of their company from being violated." Pfooks v. London & S. W. R. 19 Eng. L. & Eq. R. 7. 10 Ffooks V. London & S. W. R. 19 Eng. L. & Eq. R. 7, opinion of Stuart, V. C. and cases cited. 11 Efooks V. London & S. W. R. supra. 12 13 Beavan, 48 ; s. o. 12 Eng. L. & Eq. R. 229. U § 21.] PROCEEDINGS UNDER THE CHARTER. * 15 learned judge therefore concludes, that, although the principle first stated by him may apply to the case of public railway com- panies in general, " it must be taken to be subject to many qual- ifications, and requiring much caution and consideration " in its application. * 14. The same learned judge further adds, upon the important subject of such proceeding being taken by one in the interest of a rival company : " It has been suggested that this suit is consti- tuted to serve the purposes of another set of shareholders. If it had been established that the real object of seeking this injunc- tion had been to serve the interests of a rival company, I should have considered that a circumstance of great importance in de- termining the rights of the plaintiffs to any relief. No doubt it has been held in several cases, that the mere fact that the plain- tiffs are shareholders in a rival company is no reason for the court, in a proper case refusing its aid, to prevent the violation of contracts. But when the fact is established, that, under the pretence of serving the interest of one company, the shareholders in a rival company, by purchasing shares for the purpose of liti- gation, can make this court the instrument of defeating or injur- ing the company into w^hich they so intrude themselves, in order , to raise questions and disputes on matters as to which all the other members of the company may be agreed, I cannot consider that in such a case it is the province of this court ordinarily to interfere. In questions on the law of contracts, where there is a discretionary jurisdiction in this .court, circumstances affecting the condition of the contracting parties, and the origin and situ- ation of their rights in relation to the subject-matter of the con- tract, deserve great consideration." SECTION IV. MEETINGS OF COMPANY. 1. Meetings, special and general. 2. Special, must be notified as required. 3. Special and important matters, named in notice. 4. Notice of general meetings need not name business. & 21. 1. By the English statutes meetings of railway com- panies are distinguished as " ordinary " and " extraordinary." 15 5. Adjourned meeting, still the same. 6. Company acts by meetings, by directors, by agents. 7. Courts presume meetings held at proper place. * 16 THE LAW OF RAILWAYS. [§ 21. That distinction, in this country, is expressed by the ternas, general and special. Ordinary meetings are the annual and semi-annual meetings of the company, and such others as are held at stated times, and for defined objects, according to the provisions of the charter and by-laws ; and extraordinary meet- ings are such as are held by special call of the directors, or other officer, whose duty it is made * to call meetings of the company, , in certain contingencies usually defined by the statutes.' 2. Notice of special meetings must be issued in conformity to the charter and statutes of the corporation, and where no special provision exists, must be given personally to every member.^ 3. Notice of special meetings should ordinarily specify the general purpose and object of the call. But it is said this is not indispensable, when it is for the transaction of ordinary business, and that giving security for the debt of a bank, by mortgage of its real estate, is of this character.* But where the business is unusual and important, as the election, or amotion, of an officer, the making of by-laws, or other matter affecting the vital interests and fundamental operations of the corporation, and on a day not appointed for the transaction of business of this character, or of all business of the corporation, the notice must state the business, or the action upon it will be held illegal , and void.* i 8 & 9 Vict. c. 16, § 66. ® Wiggin V. Freewill Baptist Society, 8 Met. R. 301. This view seems to be eo^iutenanoed by Lord Kenyan, in Rex v. Faversham, 8 T. R. 352 ; Rex v. May, 5 Burrow, 2681 ; The King v. Langhorn, 4 Ad. & Ellis, 538. See, also, oases cited in the argument of this case. But all the cases agree, that if the members attend even without notice, it is sufficient ; The King v. Theoderic, 8 East, 543. A meeting may be general for most purposes, and also special for a particular purpose ; Cutbill v. Kingdom, 1 Exch. R. 494. 3 Savings Bank v. Davis, 8 Conn. 191. * Rex V. Doncaster, 1 Burrow, R. 738 ; Angell & Ames, § 488-496. In the case of Zabriskie v. C. C. & C. Railw., before the District Court for the Northern District of Ohio, 10 Am. Railw. Times, No. 15, this subject is discussed by Mr. Justice McLean, and he concludes, that where the question to be determined by the company was the guaranty of Ijhe bonds of a connecting railway to a large amount, under the statute of the state, which required the consent of a meeting of the shareholders, in which two thirds of the capital stock should be represented, it was indispensable, that the call for the meeting should state the business to be transacted, and should be given long enough before the time of the meeting to enable the remotest shareholders in the country to obtain notice and be able to attend, or communicate with their agents, or proxies, and also to enable the resi- 16 ^ ^^-J PROCEEDINGS UNDER THE CHARTER. * 17 4. But, as a general rule, it may be safely affirmed, perhaps, that m regard to general meetings of the company, which are for the transaction of aU business, no notice of the particular busmess to be done is necessary .^ 5. The adjournment of a general meeting is not a special meetmg, but the mere continuance of the general meeting, and . requires no notice of the business to be transacted.^ 6. Ey the English statutes, railways may act in either of three modes : First, By the general assembly of the shareholders, which, as between them and the directors and other agents of the company, has supreme control of its affairs. Second, By Its durectors. Third, By its duly constituted agents." The same general principle is applicable in this country, and at common law. 7. And where the by-laws require the meetings of the com- pany *to be held at a particular place, as the counting-house of the company, and the record, or evidence, does not show that the meetings were held at a different place, it will be presumed they were held at the place designated.'^ SECTION V. ELECTION OP DIRECTORS. 1 . Should be at general meeting, or upon spe- cial notice. 2. Shareholders may restrain their authority. 3. Company bound by act of directors, de facto. 4. Act of officer de facto, binds third persons. § 22. 1. The election of directors is regarded as more impor- tant to the interests of the company than most other business, inasmuch as, when duly elected, they hold office for a consider- able term, and have all the powers of the corporation in regard to the transaction of its ordinary business, unless specially re- strained. They should, therefore, be elected at the regular meet- ings of the company, and even vacancies should not properly dent agents of foreign shareholders to communicate with the owners. This seems but a just and reasonable limitation upon the power of corporations, in regard to special meetings. 5 Warner v. Mower, 11 Vt. R. 385 ; Wills v. Murray, 4 Exch. R. 843. " Walford on Railways, 70. 7 Daniels v. Flower Brook Man. Co. 22 Vt. R. 274. 2* 17 * 18 THE LAW or KAIL-WATS. [§ 22. be filled at special meetings, unless special notice of that particular business had been given according to the laws of the company, ■which include its charter and statutes, and the general laws of the state applicable to the subject. 2. The shareholders may, in a proper assembly, pass statutes, general or special, which shall control the directors, as between them and the company.' Where the by-laws of the company * require notice of the meeting for electing directors, but do not specify the time or mode of such notice, it must be given accord- ing to the requirements of the general statutes of the state upon the subject.^ 3. But the company cannot object that its directors who have acted as such, were not elected at a meeting properly notified.^ 1 But where the charter vests the control of the concerns of the company in a select board or body, the shareholders at large have no right to interfere with the doings of these, their charter agents. Commonwealth v. Trustees of St. Ma- ry's Church, 6 Serg. & R. 508 ; Dana u. Bank of the United States, 5 Watts & Serg. 223, 247 ; Conro v. Poi-t Henry Iron Co. 12 Barb. 27. And courts are always reluctant to interfere with the conduct of directors of a corporation, even at the instance of a majority of the shareholders, and ordinarily will not, when such directors have acted in good faith. State v. The Bank of Louisiana, 6 Louis. E. 745. But in Scott V. Eagle Fire Co. 7 Paige, R. 198, it was held, that the directors of a joint-stock corporation may be compelled to divide the actual surplus profits of the company among its stockholders from time to time, if they nei^lect or refuse to do so, without any reasonable cause. But if they abuse their power to make dividends of surplus profits, by dividing the unearned premiums received by them, without leaving a sufficient fund, exclusive of the capital stock, to satisfy the probable losses upon risks assumed by the company, it seems they will be per- sonally liable to such creditors of the company, if, in consequence of extraordi- nary losses, the company should become insolvent so as to be unable to pay its debts. 2 Matter of Long Island Railroad, 19 Wend. 37 ; 2 Am. Railw. C. 453. 3 Sampson v. Bowdoinham Steam Mill Co. 36 Maine, 78. Where persons have acted as directors of a railway company, the court will not summarily in- quire into the vaUdity of their appointment. Tindal, C. J., said, " If the share- holders allow parties to act as directors, it may be they have no right to turn round in a court of justice and say, that such parties were not properly elected." The Thames Haven Dock & R. Co. v. Hall, 6 Man. & Gr. 274-286. In a late case, Port of London Assurance Company's case, 35 Eng. L. & Eq. E. 178, one registered insurance company, agreed to sell its business to another registered insurance company, and a deed of assignment was accordingly executed, whereby the latter company covenanted to indemnify the former against all claims. After the business had been carried on for some time by the purchasing company, that IS §23.] PEOCBBDINGS UNDER THE CHARTER. '19 Where the charter fixes the number of directors, and vacancies occur, the act of the board is not thereby invalidated, provided a quorum still remains.* 4. An election of directors will not be set aside, because the inspectors of the election were not sworn as required by the statute. This statute is merely directory, and so far as third persons are concerned, it is sufficient that the inspectors were elected and entered upon the duties of the office, and became officers de facto? *SECTION VI. MEETINGS OF DIKECTOK^. 1 . All should be notified to attend. 2. Adjourned meeting still the same. 3. Board not required to be keptfuU. 4. Usurpations tried by shareholders or courts. 5. Usage will often excuse irregularities. 6. Decisions of majority valid. n. 8. Records of proceedings, evidence. § 23. 1. As a general rule, where corporate powers are vested in certain members, whether the whole body of the shareholders, the directors, or a committee, and the general laws of the state, the charter of the company, or the corporate statutes, contain no directions in regard to assembling the body, it is requisite to give due legal notice to each member. Accordingly, when, by the company failed, and both companies were wound up under the Winding-up Acts. On the official manager of the selling company tendering a proof against the purchasing company, in respect of claims satisfied by the selling company, one part of the deed of assigliment was produced having affixed to it the seal of the purchasing company, but another part, alleged to have been executed by the selling company, was not forthcoming. Held, first, that after what had taken place, it was unnecessary to determine whether the selling company had executed the purchase-deed, or whether its directors had exceeded their powers in making the sale. Secondly, that where a purchaser has enjoyed the subject-matter of a contract, every presumption must be made in favor of its validity. Thirdly, that if all the proceedings on the part of the directors of the pur- chasing company, with reference to the purchase, had not been in strict accord- ance with their own deed of settlement, still, if the contract with the othe^ company was the means of the purchasing company coming into existence, they could not act in contravention of that contract. * Walford on Kailw. 71, 72 ; Thames Haven R. v. Rose, 4 M. & Gr. 552. 5 Matter of Mohawk & Hudson R. 19 Wend. 135 ; 2 Am. Railw. C. 460. 19 * 20 THE LAW OB RAILWAYS. [§ 23. rules of a friendly society, the power of electing officers was vested in a committee of eleven, at a meeting of the committee, where ten of the members were present, the eleventh not having received notice, and the defendant was removed from the office of treasurer, and the plaintiff appointed in his stead by a major- ity of votes, it was held that the election was void, although the absent committee-man had, for a considerable period, absented himself from the meetings, and intimated an intention not to attend any more, and although the defendant himself had de- •manded a poU at the election, and was now objecting to its validity.! 2. But an adjourned general meeting of directors, which is provided for by the general regulations of the board, and is for the transaction of the general business of the company, requires no special notice of eith,er time or place, or of the business to be transacted.^ * 3. But where the charter of a railway provides that its busi- ness shall be carried on under the management of twelve direc- tors, to be elected in a particular mode, pointed out, and that where vacancies shall occur it shaU be lawful for the remaining directors to fill them, it was held that this provision did not require that the board should be always full ; but was merely directory, as to the mode of filling vacancies.^ 4. Where it is complained that the existing board of directors have usurped their places in violation of the wishes of the ma- jority of the shareholders, the question should be referred to a 1 Roberts v. Price, 4 C. B. 231. In the course oi.the argument, Cresswell, J., referred to The King v. Langhorn, 4 Ad. & Ellis, 538, and in giving his opinion said : " This case seems to me directly apphcable." In a late case in the House of Lords, Smith u.'Darley, 2 H. L. Cases, 803, it is said : " The election being by a definite body, on a day, of which, till summons, the electors had no notice, they were all entitled to be specially summoned ; and if there were any omission to summon any of them, unless they all happened to be present, or unless those not summoned were beyond summoning distance, as, for instance, abroad, there could not be a good electoral assembly ; and even an unanimous election by those who did attend, would be void." Post, § 211 ; Great Western K. v. Rushout, 10 Eng. L. & Eq. R. 72. a Ante, § 21. Wills v. Murray, 4 Exoh. 843. But see Reg. v. Grimshaw, 10 Q. B. 747. 3 Thames Haven Dock and Railway Co. v. Rose, 4 Man. & Gr. 652 ; ante, § 21 ; Wills V. Murray, 4 Exch. 843. 20 § 23.] PROCEEDINGS UNDER THE CHARTER. * 21 meeting of such shareholders,* or it may be tried upon a quo warroMto.^ 5. But in practice, in this country, it is believed that most of the routine business of railway and other joint-stock commercial companies is transacted through the agency of sub-committees of the board of directors, and that, where the voice of the board is taken, it is more commonly done without any formal assembly of the board. And long established usage as to particular com- panies, in regard to the mode of conducting an election, has been held of binding force in regard to such company.® And the same course of reasoning might induce courts to sanction a practice, which had become universal from its great convenience, although not strictly in accordance with the principles of the decided cases upon analogous subjects, or the results of a priori reasoning. 6. The decision of a majority of the board of directors is usually regarded as binding upon the company ; and the assem- bling of a majority, as a legal quorum for the transaction of business, unless the charter or by-laws contain some specific provision upon the subject ; ^ and that notice to the absent *direc- tors will be presumed unless the contrary appears. The general rule upon this subject is, that the act of a majority of a body of public officers is binding ; but that if they be of private appoint- ment, all must act, and, in general, all must concur, unless there is some provision to accept the decision of a majority. In this respect, railway directors come under the former head certainly. The proper distinction upon the general subject seems to be, * Post, § 211. 5 Post, § 204. 6 Attorney-General v. Davy, cited 1 Vesey, sen. 419. It would savor of bad faith to allow the business of the company to be transacted in a particular mode, and then to attempt to repudiate the acts of their agents, because the transaction proved disadvantageous, when they were in a condition to take the benefit of it if it proved successful. ' Cram v. Bangor House, 3 Fairfield, 354 ; Sargent v. Webster, 13 Met. 497 ; 2 Kent's Comm. 293 and notes ; The King v. Whitaker, 9 B. & C. 648 ; Com- monwealth V. Canal Commissioners, 9 Watts, 466 ; Ex parte Wilcocks, 7 Cowen, 402 ; Field v. Field, 9 Wend. 394, 403, where it is held, that in regard to the body of the stockholders, any numBer who attend is a quorum for doing business, .if the others be properly summoned. But as to the directors, it is requisite that a majority attend. 2 Kent, Comm. 293 ; Cahill v. Kalamazoo Ins. Co. 2 Doug. (Mich.) K. 124 ; Holcomb v. N. H. D. B. Co. 1 Stockton, Ch. E. 457. 21 * 22 THE LAW OF EAILWAYS. [§ 24. that where the matter is of public 'concern, and of an executive or ministerial characterj the act of the majority of the board wUl suffice, although the others are not consulted. But where the function is judicial, involving a determination of some definite question, the whole body must be assembled and act together. If the matter is of public concern, the decision of a majority will bind ; but in private concerns, as arbitrations, all must concur.^ ♦ SECTION VII. QUALIFICATION OF DIRECTORS. 1 . One cannot be a contractor and director. 2. May be their banker and director. 3. Mai/ be director by virtue of stock mort- 4. Bankruptcy or absence will not vacate office. 5. Company compelled to Jill vacancies in board. § 24. 1. By the Companies' Clauses Consolidation Act,' it is provided, that no person interested in any contract with the com- pany shall be a director, and no director shall be capable of being interested in any contract with the company ; and if any director, subsequent to his election, shall be concerned in any such contract, the office of director shall become vacant, and he shall cease to act as such. Under this statute it was held, that, if a director enters into a contract with the company, the con- tract is not thereby rendered void, but the office of director is vacated.^ 8 Green v. Miller, 6 Johns. R. 38 ; The King v. Great Marlow, 2 East, 244 ; Battye v. Gresley, 8 East, 319 ; Rex v. Coin. St. Aldwins, Burr. Settl. Cas. 136 ; The King v. Winwick, 8 T. R. 454. But it has never been held that the entire board of directors must assemble ; it is enough if all be summoned, and a major- ity attend. See note 7. Edgerly v. Emerson, 3 Foster, 555. If the doings of directors are not recorded, they may be proved by parol. lb. The president has a right to vote upon all questions to be determined by the president and directors. McCullough v. Annapolis & Elk Ridge R. 4 Gill, 58. The records of the clerk of a railway company, of the proceedings of the directors, in making calls, may be used as evidence by the company in suits for calls, against one who subscribed for shares, and was one of the grantees of the charter and a director at the time of making such calls, and who had exercised the rights of a shareholder from the first. White Mountain R. v. Eastman, 34 N. H. R. 124. 1 8 & 9 Vict. c. 16. 2 Foster v. Oxford W. & W. R. 14 Eng. L. & Eq. R. 306. This case is dis- 22 § 25.] PREROGATIVE FRANCHISES. * 23 2. But it has been held, that being a member of a banking company, who were the bankers and treasurers of the railway, and who, as such, received and gave receipts for calls, and paid checks drawn by the directors, wiU not disqualify one from act- ing as director, but that this clause only applied to such con- tracts as were made with the company in the prosecution of its enterprise.^ 3. Where the qualification of a director consisted in owning a certain number of the shares, the qualification is not lost by a mortgage of the shares.^ 4. Neither the bankruptcy nor absence of a director, and vol- untarily ceasing to act as such, will put an end to his character of director, unless it be so provided in the deed of settlement.^ 5. K shareholders are dissatisfied with the board of directors not being fuU, that may be a ground of applying for a manda- mus to compel the company to complete the number.^ * CHAPTER V. PREROGATIVE FRANCHISES. 1. Control of internal rommunication in a slate a prerogative franchise. 2. Such a grant confers powers pertaining exclusively, to sovereignty, as talcing tolls, and the right of eminent domain. § 25. 1. Railways possess also many extraordinary powers or franchises which partake more or less of the quality of sover- eignty, and which it is not competent for the legislature even, to delegate to ordinary corporations. These are sometimes called cussed in a later case in the House of Lords. Aberdeen Railway v. Blakie, 23 Law Times, 315. 3 Sheffield, Ash. & Man. Bailw. v. Woodcock, 7 M. & W. 574 ; 2 RaUw. C. 522. 4 Gumming v. Prescott, 2 Y. & Coll. Eq. Exch. 488. 5 Phelps V. Lyle, 10 Ad. & Ellis, 113. But if one abscond from his creditors the office is thereby vacated. Wilson v. Wilson, 6 Scott, 540. 6 Thames Haven Dock & Railway v. Rose, 3 Railw. C. 177, 4 Man. & Gr. 552. Maule, J. Mozly v. Alston, 1 Phillips, 790. By the Lord Chancellor. 23 * 24 THE LAW OF EAILWAYS. [§ 26. the prerogative franchises of the corporation. They exist in banks, which practically supply the currency of the country, or its representative, and railways, which have already engrossed the chief business of internal communication in this country, and almost throughout the civilized world. And both currency and internal communication between different portions of a state are exclusively the prerogatives of sovereignty. 2. In saying that it is not competent for the legislature to con- fer prerogative fi-anchises upon all corporations, nothing more is intended than that these prerogative franchises do not appertain to all the operations of business, and must therefore of necessity be limited to those persons, whether natural or artificial, which are occupied in matters of a sovereign or prerogative character, and which thus render an equivalent for the franchises conferred.^ This subject vdll be discussed more in detail under the titles of Tolls and Eminent Domain. * CHAPTER VI. BY-LAWS AND STATUTES. SECTION I. POWER OF MjyCING BY-I.AWS OR STATUTES. 1. May control conduct of passengers. 2. Must be reasonable and not against law. 3. Power may be implied, where not express, i. Not required to be in any particular form unless by special provision. 6. Model code of by-laws framed by board of trade in England. 7. Company may demand higher fare, if paid in cars. 8. Public statutes control by-laws. 9. Cannot impose penalty. 10. Cannot refuse to be responsible for bag- gage. § 26. 1. It is incident to all corporations to enact by-laws or ^ 1 State V. Boston, Concord, & Montreal R. Co. 25 Vt. R. 442, 443. But the right to build and use a railway, and take tolls or fares, is a franchise of the pre- rogative character, which no person can legally exercise without some special grant of the legislature. But it ia competent for the legislature to confer this 24 § 26.] BT-LAWS AND STATUTES. * 25 statutes for the control of its officers and agents, and to regulate the conduct of its business generally. And in the case of rail- ways this includes the regulation of the conduct of passengers and others who are in any way connected with them in business, although not their agents. 2. This power is subject to some necessary limitations. Such by-laws must not infringe the charter of the company or the laws of the State, must not be unreasonable, and must be within the range of the general powers of the corporation.' 3. By-laws in violation of common right are void.^ The power to make by-laws is usually given in express terms in the charter. And where such power to make by-laws is given in the charter upon certain subjects to a limited extent, this has been regarded as 'an implied prohibition beyond the limits expressed upon the familiar maxim, Expressumfacit cessare taciturn.^ 4. By-laws, unless by the express provisions of the charter or general statutes of the state, are not, in this country, required to be enacted or promulgated in any particular form, but only to be enacted at some legal meeting of the corporation. But in Eng- land it is generally considered requisite that by-laws be made under the common seal of the corporation, and that in regard to railways, by-laws affecting those who are not officers 'or servants of the company should have the approval of the Board of Trade or Railway Commissioners.* 5. By many of the special railway charters in England, and by the Companies' Clauses Consolidation Act of 1845, it is provided that railway companies may make by-laws under their common franchise upon a foreign corporation, so as to enable it to take land for the pur- pose of constructing a public improvement in the state. Morris Canal & Banking Co. V. Townshend, 24 Barb. R. 658. And -what title shall be acquired by such foreign corporation, and -whether the proposed amendment will be likely to prove beneficial to the citizens of the state, is a question solely within the discretion of the legislature. lb. 1 Elwood V. Bullock, 6 Q. B. 383 ; Calder Navigation Co. v. Pilling, 14 M. & W. 76 • Child V. Hudson Bay Co. 2 Peere Wms. 209 ; Angell & Ames, c. 10 ; 2 Kent, Coram. 296; Davis v. Meeting H. in Lowell, 8 Met. 321. 2 Hayden v. Noyes, 5 Conn. 391 ; Adiey v. The Whitstable Co. 17 Vesey, 315; Clark's case, 3 Coke, 64. When the penalty of a by-law is imprisonment, it is void as against Magna Charta. But such power may be given by statute. 3 Child V. Hudson B. Co. 2 Peere Wms. 209. 4 Walford, 249 ; Hodges, 552, 553. 3 25 * 25 *HB LAW OF RAILWAYS. [§ 26. seal " for the purpose of regulating the conduct of the officers and servants of the company, and for the due management of the affairs of the company in all respects whatever." And they have power to enforce- such by-laws, by penalty, and by imprisonment for the collection of such penalty. But a by-law requiring a pas- senger, not producing, or delivering up his ticket, to pay fare from the place of the departure of the train, was held not to be a by-law, imposing a penalty, and therefore not justifying the imprisonment of such passenger.® 6. The statute requires a copy of such by-laws to be furnished every officer and servant of the company, liable to be affected thereby. The code of by-laws framed by the Board of Trade in England, for the regulation of travel by railway, and generally adopted there, is certainly very judicious ; and if some similar one could be adopted, and enforced here, it would accomplish very much towards security, sobriety, and comfort, in railway travelling, and tend to exempt the companies from much annoy- ance and very often from loss.^ 5 Chilton V. London & Croydon K. 16 M. & W. 212 ; 5 Railw. C. 4. Parke, B., says, " This is not the case of a penalty, but the mere demand of a fare. Any passenger wlio does not, at the end of his journey, produce his ticket, may have broken his contract with the company, and be liable to pay his full fare from the most remote terminus. But this is not a penalty or forfeiture, under sectibn 163, giving a right to arrest for non-payment of a penalty or forfeiture." See, also, the opinion of Rolfe, B., from which it appears that the by-law was considered valid. 6 Hodges, 553. " 1. No passenger will be allowed to take his seat in or upon any of the company's carriages, or to travel therein upon the said railway, with- _ out having first booked his place and paid his fare. Each passenger booking his place will be furnished with a ticket, which he is to show when required by the guard in charge of the train, and to deliver up before leaving the company's premises, upon demand, to the guard or other servant of the company duly au- thorized to collect tickets. Each passenger not producing or delivering up his ticket will be required to pay the fare from the place whence the train originally st-arted. " 2. Passengers at the road stations will only be booked conditionally, that is to say, in case there shall be room in the train for which they are booked ; in case there shall not be room for all the passengers booked, those booked for the longest distance shall have the preference ; and those booked for the same distance shall have priority according to the order in which they are booked. " 3. Every person attemping to defraud the company, by riding in or upon any gf the company's carriages, without having previously paid his fare, or by riding in or upon a carriage of a higher class than that for which he has booked his place, or by continuing his journey in or upon any of the company's carriages, 26 § 26.] . BT-LAWS AND STATUTES. * 26-27 * 7. In a recent case in Vermont, it was held, that railway com- panies have the power to make and enforce all reasonable regu- lations, in regard to the conduct of passengers and to discriminate between fares paid in the cars, and at the stations, and to remove all persons from their cars, who persist in disregarding such reg- ulations, in a reasonable manner and proper place, although between stations. 8. But this may be controlled as to existing railways even,' by * general legislation of the state. And where a statute gave all railways the power to remove those who violated any of the by- laws or regulations of the company from their cars, at the regular stations, this was held to carry an implied prohibition from re- moving such persons at other points.'' 9. But it has been held, that a general power to make by- laws for the regulation of the use of a canal, will not justify the proprietors in closing the navigation of the canal on Sundays,^ beyond the destination for which he has paid his fare, or by attempting in any other manner whatever to evade the payment of his fare, is hereby subjected to a penalty not exceeding forty shillings. " 4. Smoking is strictly prohibited both in and upon the carriages, and in the company's stations. Every person smoking in a carriage is hereby subjected to a penalty not exceeding forty shillings ; and every person persisting in smoking in a carriage or station, after being warned to desist, shall, in addition to incurring a penalty not exceeding forty shillings, be immediately, or, if travelling, at the first opportunity, removed from the company's premises, and forfeit his fare. " 5. Any person found in the company's carriages or stations in a state of intox- ication, or committing any nuisance, or otherwise wilfully interfering with the comfort of other passengers, and every person obstructing any of the company's officers in the discharge of their duty, is hereby subjected to a penalty not ex- ceeding forty shillings, and shall immediately, or, if travelling, at the first oppor- tunity, be removed from the company's premises and forfeit his fare. " 6. Any passenger cutting the linings, removing or defacing the number- plates, breaking the windows, or otherwise wilfully damaging or injuring any of the company's carriages shall forfeit and pay asum not exceeding £5 in addition to the amount of damage done." "Note. Persons wilfully obstructing the company's officers, in cases where personal safety is concerned, are liable, under the 3 & 4 Vict. c. 97, section 16, to be apprehended and fined £5 with two months imprisonment in default of pay- ment. '' Stilphin V. Smith, 29 Vt. R. See late case in New Hampshire, in which it is held railways may lawfully discriminate between fare paid in the cars and at the stations. Hilliard u. Goold, 84 N. H. K. 230, joosi, n. 1 7. Post, % 160. 8 Calder Nav. Co. v. Pilling, 14 M. & W. 76 ; 3 Railw. C. 735. But it is ques- 27 *28 THE LAW OP RAILWAYS . [§27. nor in making by-laws subjecting the shares to forfeiture for non- payment of calls, unless that power is expressly given by the charter or by statute.^ 10. And a by-law declaring that the company would not be responsible for a passenger's baggage, unless booked and the car- riage paid for, is bad, as inconsistent with the general law, allow- ing railway passengers to carry a certain amount and kind of baggage.io SECTION II. BY-LAWS EEGULATINa THE USE OP STATIONS AND GROUNDS. 4. Probable cause will justify. 5. In civil suit must prove violation of rules. 1 . May exclude persons without business. 2. Mai/ regulate the conduct of others. 3. Superintendent may expel for violation of rules. § 27. 1. Questions have sometimes been made, in regard to the right of railway companies. to exclude persons from their grounds, who had no business to transact there, connected with the * company, or to establish regulations or by-laws to govern the conduct of such persons as had occasion'to come there, and to exclude others. But, upon the whole, there seems little ground to question the right.' 2. A railway corporation has authority to make and carry into effect reasonable regulations for the conduct of all persons using the railway, or resorting to its depots, without prescribing such regulations by formal by-laws ; and the superintendent of a rail- way station, appointed by the corporation, has the same author- ity, by delegation. 3. Such superintendent may exclude from the stations and tionable whether this case is maintainable, in this oountiy, upon any such grounds. 9 Matter of Long Island Railw. 19 Wend. 37 ; 2 Am. Railw. C. 453. w Williams v. Great Western Railway, 28^Eng. L. & Eq. R. 439. But it seems somewhat questionable, whether the principle of this decision can ulti- mately be maintained. It seems to be no unreasonable abridgment of the right of a passenger to carry a certain weight and kind of baggage, to require it to be booked and carriage paid. i Barker v. Midland Railw. 36 Eng. L. & Eq. R. 253 ; Commonwealth v. Power, 7 Met. R. 596 ; 1 Am. Railw. C. 389 ; Hall v. Power, 12 Met. 482. 28 § 27.]' BY-LAWS AND STATUTES. *29 grounds persons who persist in violating the reasonable regula- tions prescribed for their conduct, and thereby annoy passengers, or interrupt the officers and servants of the company in the dis- charge of their duty. Thus, where the entrance of innkeepers and their servants into a railway station to solicit passengers to go to their houses, produces such effect, they may be excluded from coming within the station ; and if after notice of a regula- tion to that effect, they attempt to violate it, and after notice to leave, refuse to do so, they may be forcibly expelled by the ser- vants of the company, using no unnecessary force. 4. And where an innkeeper had been accustomed to annoy passengers in this manner, and had been informed by the super- intendent of the station that he must do so no more, but still continued the practice, and afterwards obtains a ticket for a pas- sage in the cars, with the bona fide intention of entering the cars as a passenger, and goes into the station on his way to the cars, and the superintendent believing he had entered for his usual purpose, orders him to go out, and he does not exhibit his ticket, nor give notice of his real intention, but pushes forward towards the cars, and the superintendent and his assistants remove him from the station, using no unnecessary force, the removal is jus- tifiable,^ and not an indictable offence.^ 5. But the superintendent cannot remove a person from the stations and grounds of the company, merely because such per- son, in the judgment of the superintendent, and without proof of the fact, violated the regulations of the company, or conducted himself * offensively towards the superintendent.^ And it was said if such person is removed for an alleged violation of the regulations of the company, and it finally is shown that he did not in fact violate any of such regulations, he may recover dam- ages of the superintendent of the station by whose order he was removed, notwithstanding such superintendent acted in good faith.^ And in such case, it is not competent to show that the plaintiff had been guilty of former violations of other regulations of the company.' 2 Commonwealth v. Power, 7 Met. K. 596 ; Markham v. Brown, 8 N. Hamp. R. 523. 3 Hall V. Power, 12 Met. E. 482, 1 Am. Railw. C. 410. There is an apparent discrepancy in the manner of stating the point of the decision of this case, and that of The Commonwealth v. Power, 7 Met. R. 596, in regard to defendant 3* 29 ' 30 THE LAW OF RAILWAYS. [§ 28. ♦ SECTION III. BY-LAWS, AS TO PA8SENGEKS. 1 . By-laws as statutes. 2. As mere rules, or regulations. 3. Requiring larger fares, for shorter dis- tances. i. Requiring passengers to go through in same tfain. 5. Arrest of passenger, by company's ser- vants. 7. Company liable for act of servant. 8. By-taw must be pMished. 9. Excluding merchandise from passenger- trains. 10. Discrimination between fares paid in cars and at stations. 11. Liability for excess of force. § 28. 1. A distinction is sometimes made between by-laws, being justified, if he acted in good faith, upon probable cause, which does not seem to be warranted, by any recognized distinction, between a civil suit, for damages, and a public prosecution for assault and battery, but the court evidently intend no distinction in the cases. The law is well stated, by Shaw, Ch. J., in the former case, 7 Met. 60*2 : " We are therefore of opinion, that upon the evidence detailed in the judge's report, the jury should be instructed in a manner some- what as follows : That if Power had been placed in charge of the depot by the corporation, as superintendent, he had all the authority of the corporation, both as owners and occupiers of real estate, and also as carriers of passengers, inci- dent to the duty of control and management : That this power and authority of the corporation extended to the reasonable regulation of the conduct of all per- sons using the railroad, or having occasion to resort to the depots, for any pur- pose : That this power was properly to be executed by a superintendent, adapting his rules and regulations to the circumstances of the particular depot under his charge ; and that it was not necessary that such regulations should be prescribed by by-laws of the corporation : That the opening of depots and platforms for the sale of tickets, for the assembling of persons going to take passage, or landing from the cars, amounts in law to a license to all persons, prima facie, to enter the depot, and that such entry is not a trespass ; but that it is a license conditional, subject to reasonable and useful regulations ; and, on non-compliance with such regulations, the license is revocable, and may be revoked either as to an indi- vidual, or as to a class of individuals, by actual or constructive notice to that effect : That if the platform, as part of the depot, is appropriated to and con- nected with the entrance of passengers into the cars, and the exit of passengers from the cars, and for the accommodation of their baggage, and if the soliciting of passengers to take lodgings in particular public-houses, by the keepers of them or their servants, is a purpose not directly connected with the carriage of passen- gers by the railroad, on their entrance into or exit from cars ; that if, when urged with earnestness and importunity, it is an annoyance of passengers, and interrup- tion to their proper business of taking or leaving their seats in the cars, and procuring or directing the disposition of their baggage ; or if the presence of such persons, for such a purpose, is a hinderance and interruption to the officers 30 § 28.] BY-LAWS AND STATUTES. * 31 and orders, or regulations, the former being supposed, in strict- ness of language, to have reference exclusively to the government of their own members, and of their corporate officers.^ And it is true that such other ordinances, as any owner of the buildings and grounds, * about a railway station, employed in carrying pas- sengers, might find it convenient to establish, are certainly not what is ordinarily understood, by the by-laws, or statutes, of the corporation. 2. But in the English cases they are both called by-laws.^ and servants of the corporation, in the performance of their respective and proper duties to the corporation, as passenger-carriers ; then the prohibition of such persons from entering upon the platform, is a reasonable and proper regula- tion, and a person who, after actual or constructive notice of such regulation, violates or attempts to violate it, thereby loses his license to enter the depot ; that such license as to him may be revoked ; and if, upon notice to quit the depot, he refuses so to do, he may be removed therefrom by the superintendent and the persons employed by him ; and if they use no more force than is necessary for . that purpose, such use of force is not an assault and battery, but is justifiable : that aa to the circumstances of the present case, if the superintendent had issued a circular, giving notice to all innkeepers and landlords, that he had prohibited them from entering the depot to solicit persons to go to their respective houses as guests, and if this notice came to Hall, and he afterwards, and after special notice to him personally, had attempted to violate this prohibition, and solicit passen- gers ; and if, upon the particular occasion, he gave no notice of coming for any other purpose ; and if the defendant Power met him on his way to the platform, told him he must not go there, laid his hands on him, and ordered him to leave the depot, without any inquiry as to the purposes of Hall, and Hall made no reply, but pressed forward and attempted to reach the platform, in spite of the efforts of Power ; this was strong prima facie evidence that he was going there with intent to solicit passengers, in violation of the notice and revocation of license ; and that if he gave no notice of his intention to enter the car as a pas- senger, and of his right to do so ; and if Power believed that his intention was to violate a subsisting reasonable regulation ; then he and his assistants were justified in forcibly removing him from the depot : That if Hall gave no notice of his having a ticket, of his intention and purpose to enter the cars as a passenger, and of his right to do so, and that Power had no notice of it, then Hall could not jus- tify his conduct, and make Power a wrongdoer, by proving the possession of such a ticket, or of his intent to go in the cars to Richmond, as a passenger ; and that he was to be considered as standing on the same footing as if he had not possessed such ticket." 1 Shaw, Ch. J., in Commonwealth v. Power, 7 Met. 601. 2 Chilton V. The London & Croydon Rail. 5 Railw. C. 4. It would seem from the opinion of Parke, B., that the by-law was regarded as vahd, but as imperfect, in not subjecting the passenger to a penalty in terms. The other judges doubted whether the act was intended to give the company power to imprison the plaintiff, 31 * 31 THE LAW OE KAILWAYS. [§ 28. Thus a by-law, that each passenger, on booking his place should be furnished with a ticket, to be delivered up before leaving the company's premises, and that each passenger, not producing or delivering up his ticket, should be required to pay fare from the place, whence the train originally started, was held not to be a by-law imposing a penalty.'' And that therefore the non-produc- tion of the ticket, with which a passenger had been furnished, and his refusal to pay fare from the place, whence the train started, did not justify his arrest, but only rendered him liable to pay fare from the place whence the train started. • 3. But in a late English case,^ where the company had made a legal by-law, that any passenger, who should enter a carriage of the company, without first having paid his fare, should be subjected to a penalty not exceeding 405., a passenger, desiring to go to Diss station, where the fare was Is., procured a ticket for Norwich, a more distant station on the line, but where the fare was but 5s., in consequence of competition, and entered the carriage accordingly, and at Diss offered to surrender his ticket, but refused to pay the difference in fare, he was prosecuted for the penalty, and a majority of the Court of Queen's Bench held he was not liable, on the ground that he had paid his fare before entering the carriage. Lord Campbell said, " I cautiously abstain from expressing any opinion, as to the power of the company to make special regulations, or by-laws, so as to enforce larger fares, for shorter distances." " Had not Frere, within the meaning of the by-law, paid his fare, before he entered the carriage ? I think he had. He had paid the full fare from Colchester to Norwich, all that was required of him ; and he cannot be said to be a per- son who had entered the company's carriage without payment of fare." « or any one, except for some offence against the act. But all seemed to concur in the opinion that the passenger was bound to comply with the regulation, or sub- mit to the alternative. State v. Overton, 4 Zab. 435. 3 Reg. V. Frere, 29 Eng. L. & Eq. R. 143. 4 But the argument of Lord Campbell on this point does not seem altogether satisfactory. Whether the passenger had paid his fare depended upon the valid- ity of the by-law, and could not be fairly determined upon any other basis, it would seem. Erere had paid fare to Norwich, but had not paid fare to Diss, unless the by-law was void ; so that the validity of the by-law did seem to be necessarily involved in the decision. And the decision of the court, although not professing to do so, did virtually disregard it. For if the by-law was valid, Frere 32 §28.]^ BY-LAWS AND STATUTES. * 32 *4. It has been held that a regulation requiring passengers to go through, in the same train, and that if one do not, requiring fare for the remainder of the route is valid.^ had no more paid his fare, than if he had taken a ticket to a station short of his destination. And if the by-law meant any thing sensible, it could only mean, having paid fare to his destination. Any other construction looks like an evasion. 5 Cheney v. Boston & Maine EaiLw. 11 Met. 121 ; 1 Am. Railw. C. 601. In this case the passenger, when he bought his ticket, did not know of the regulation, but was informed of it in the cars, and his money oiFered to be refunded, deduct- ing what he had travelled ; but he refused to make the arrangement, and de- manded his ticket, in exchange for the check which had been given him, marked' " good for this trip only." He stopped by the way, and went on the same day in the next train ; and when he presented his check, it was refused, and fare de- manded, which he was obliged to pay. The court held the passenger could not recover the money of the company, and that it made no difference whether the plaintiff were aware of the regulation or not, at the time he purchased his ticket. He was bound to inform himself, or accept of the ticket, for what it entitled him to demand, by the rules of the company. This subject is j good deal discussed in a late case in New Jersey, and a sim- ilar result arrived at. It is there said that the company may discriminate between way and through fare, unless prohibited by law. State v. Overton, 4 Zab. 434. In Pier v. Finel, 24 Barb. 514, where a person was put off the cars of a railway company, for refusal to pay fare, having, and offering to the conductor, a ticket of the company, dated a few days before, and marked " good for this trip only," but unmutilated, as was the practice of the conductors, upon that road, where a ticket had been used ; it was held, that the ticket was prima facie evidence that the holder had paid the regular fare for it, and of his right to be transported, at some time, between the places specified, on some passenger train ; and if unmu- tilated, the presumption was, that it had never been used, and that it imposed upon the company the duty to so transport the holder. It was also held that the indorsement, " good for this trip only," had reference to no particular trip, or any particular time, but only to some one continuous trip. That the passenger might demand a passage, as well on a subsequent day, as the one upon which the ticket bore date, and was issued. . This decision seems to us, not precisely to meet the whole question involved in the case, that is, whether such a regulation, as was claimed to be evidenced by the ticket, and the indorsement, was a valid and binding regulation. There can be no doubt such a regulation exists, upon many of the roads, in this country, and that such a ticket is .understood, by the community generally, as entitling the holder only to a passage on that day, at most, if not in the very next train. We very readily perceive that the form of the ticket is susceptible of the con- struction put upon it by the court. But as we are satisfied, that is not the inten- tion of those who issue such tickets, or of those who buy them, as a general thing, we should have been gratified to see the main question grappled with. We do not intend to intimate any question of the general soundness of the views expressed in this case, upon what we regard as the true construction of the 33 * 32 THE LAW OF RAILWAYS. J§ 28, 5. In one case," where the plaintiff, upon the information of the station-clerk that he might return at a given hour upon an ticket. We are inclined to think they are sound. For it seems to us to be con- trary to the first principles of justice and equity, that if the passenger is, for suf- ficient cause delayed, or hindered from going, according to his expectation, at the time he pays his fare, that he should thereby lose all benefit of the payment, when he does desire to go. The company may not be bound to refund the money, but they certainly are bound, upon general principles, to allow the holder of the ticket the benefit of his unused portion of it, deducting of course any loss, or in- convenience to them, by reason of the contract not being carried into effect, according to its terms. And any regulation of the company, which should deprive the passenger of this benefit, would operate a forfeiture, which no court of justice will favour, where the passenger is not in fault. It seems, in principle, to be con- trolled by the rule of law applied to work done upon the company's road, but not according to the contract, and which nevertheless the company are benefited by, to a certain extent. In such cases the company must pay for the work, at its value to them, that is, deducting all losses, in consequence of it not being done as stipulated. Post, § 113, pi. 4, p. 204. So also if the passenger refuse to surrender his ticket in ej:f tange for the con- ductor's check, according to the regulations of the company, and at any point of the route leave the cars, without surrendering his ticket, he is liable to pay fare for the distance he rode, or upon his refusal to surrender his ticket, or to pay fare, the conductor is justified in expelling him from the cars. Northern Rail- road V. Page, 22 Barb. 130. In Hibbard v. New York & Erie Railway, 1 Smith, 455, New York Court of Appeals, it was held, that a regulation, made by a rail- way company, requiring passengers to exhibit their tickets, whenever requested by the conductor, and directing those who refused to do so, to be expelled from the cars, was reasonable and valid, and that passengers were bound to conform to it, and forfeited all right to be carried further, by refusal to do so. And it was further held, that the binding force of such a regulation was matter of law to be decided by the court, and that under such a regulation, where a passenger refused, on request, to exhibit his ticket a second time, the train having in the mean time passed a station, it was error in the court to charge the jury, that the passenger was bound to exhibit his ticket, when reasonably requested, and that if the con- ductor knew he had paid his fare he had no right to expel him from the cars. It is intimated in this case, that one who has thus forfeited his right, cannot regain it, by exhibiting his ticket after the train is stopped for the purpose of puttmg him off. And also, that the company would not be liable if the conductor put a wrong construction upon the regulation, and thus wrongfully expelled a passenger, or if he were guilty of an excess offeree. But-see § \&^,post. 1' Roe V. Birkenhead, Lancashire, and Cheshire Junction Railw. 7 Eng. L. & Eq. R. 546 ; 6 Railw. C. 795. And it has been held that a steamboat proprietor might exclude one from his boat, while employed in carrying passengers, if such person was the agent of a rival line of stages to that whichj by contract with the proprietor, carried in connection with his boats, the plaintiff's object being, at the time, to solicit passengers to go by the rival line of stages; and the jury having 34 § 28.] BY-LAWS AND STATUTES. * 33 ' excursion-ticket, purchased such ticket and took the train named by such clerk to return, but the train did not pass through ; and at the place where it stopped the station-clerk demanded 2s. 6rf. more, saying he should not have taken that train, payment being refused, the superintendent took the plaintiff into custody. The plaintiff's attorney having written the secretary of the company, asking compensation, he requested to be furnished wdth the date of the transaction, and promised to make inquiries. He also stated verbally that it was an awkward business, and the blame would fall upon the station-clerk who gave the plaintiff the false information, and offered to return the 2s. 6d. It was held that, as there was no evidence of the authority of the defendants to make the arrest, and none of their having expressly or impliedly authorized or ratified it, it must be regarded as the mere tortious act of the servant.^^ 6. But in a somewhat similar case,^^ in the Exchequer Cham- ber, where the plaintiff below had been taken into custody by a railway inspector of the defendants, charged with having no ticket, refusing to pay fare, intoxication, and assaulting the in- spector, at the hearing before the magistrate, the solicitor of the company attended to conduct the proceedings ; and it was held that such attendance was no ratification by the company, it not appearing that the facts were known to the company. These cases afford more latitude for corporations to escape from lia- bility for the acts of their agents and servants, while employed in the prosecution of their business, than is common in this country.^^ 7. But there are many cases in this country where it has been found that the contract was bona fide and reasonable, and not entered into for the purpose of an oppressive monopoly, and that the regulation excluding plaintiff was necessary in order to carry the contract into effect. Jencks i: Coleman, 2 Sumner, 221. But a contract not to carry passengers coming by a particular line will not excuse the carrier from carrying such passenger. Bennet v. Button, 10 N. H. 481. 12 The Eastern Counties Railway v. Broom, 2 Eng. L. & Eq. R. 406 ; 6 Railw. C. 743. 13 Post, § 225 and notes. See also post, §§ 160, 169. And in Coppin w. Braithwaite, 8 Jurist, 875, it is said to have been ruled by Rolfe, B., at Nisi Prius that a carrier having received a pickpocket as a passenger on board his vessel, and taken his fare, he cannot put him on shore at any intermediate place, so long as he is guilty of no impropriety. 35 * 34 THE LAW OF RAILWAYS. [§ 28. held that trespass will not lie against a corporation for the act of their agents ; '* but this is not the prevailing rule here, where the servant acts within the apparent scope of his authority, and where his acts would bind the principal, being a natural person. 8. An English railway company '^ having power by statute to * make by-laws which were to be painted upon a board and hung up at the stations, and to be binding upon all parties, made, among others, a by-law that " first class passengers shall be allowed one hundred and twelve pounds, and second class pas- sengers fifty-six pounds luggage each, and that the company will not be responsible for the care of the same unless booked and paid for accordingly." It did not appear that the plaintiff knew of the by-law, or that it had been posted up as required. The plaintiff became a passenger, and gave his luggage to the ser- vants of the company, and it had been stolen. It was held that the company were liable, unless they showed the by-law hung up at the stations, as required by the statute, or else brought home to the knowledge of the plaintiff. 9. A by-law excluding merchandise from the passenger-trains, and confining its transportation to the freight-trains, was held reasonable. The company are not bound to carry a passenger daily upon his paying fare, when his trunk, or trunks, contain merchandise, money, and o-^her valuable matter known as " ex- press matter." '^ 10. In a very recent case "" in Connecticut, it was held, by a 1* Philadelphia G. & N. Kailw. Co. v. Wilt, 4 Wharton, 143 ; 2 Am. Railw. C. 254 ; Orr v. Bank of U. States, 1 Ohio, 36 ; Foote v. City of Cincinnati, 9 Ohio, 31. 15 Great Western E. v. Goodman, 11 Eng. L. & Eq. R. 546. 16 Merrihew v. Milwaukie & Mississippi R. (Wis.) 5 Law Reg. 364. 17 Crocker v. New London, Willimantic & Palmer Railw. 24 Conn. R. 249. The court were so nearly equally divided in the decision of this case, that it can- not be regarded as much authority, in itself. The leading propositions in the text were maintained, by the Chief Justice and one other judge, and dissented from by two other judges. The only point of doubt seems to be the duty of the company, in making such discrimination, to give reasonable opportunity to passengers to obtain tickets, at the lowest rate of fare, which seems just and i"easonable, and in accordance, we believe, with the generally received opinion upon the subject, and the one we should have been inclined to adopt. In Hilliard v. Goold, 34 N. H. R. 280, it was held, that a uniform discrimination between fares paid in the cars, and at the stations, not exceeding five cents, was reasonable and legal, and a passenger who §28.] BY-LAWS AND STATUTES. * 35 divided court, that where a railway company established and gave notice of a discrimination of five cents, between fares paid in the cars, and at the stations, the regulation was valid, and that where a passenger refused to pay the additional five cents in the cars, the conductor might lawfully put him out of the cars, using no unnecessary force. Upon the trial of an action, for such expulsion, it was held that the plaintiff was not entitled to re- cover upon proof, that he went to the ticket-office of the com- pany, a reasonable time before the train left, to procure a ticket ; that the office was closed, and so remained tiU the train departed, and that he so informed the conductor, before his expulsion from the cars. * The following propositions are maintained in the opinion of the court : — 1. That the defendants, as common carriers, were under "no legal obligation to furnish tickets, or to carry passengers for less than the sum demanded, if the fare was paid in the cars. 2. That the plaintiff"'s claim rested solely upon the assumption, that the defendants had undertaken to carry for the less sum, on certain conditions, which they had themselves defeated. 3. That the regulation did not constitute a contract, but a mere proposal, which they might suspend, or withdraw at any time. 4. That such proposal was withdrawn by closing the defend- ant's office, and the retirement of their agent therefrom. 5. The proposition being withdrawn the parties were in the same condition as before it was made; the defendants cpntinu- ing common carriers were bound to carry the plaintifl" for the usual fare, paid in the cars, and not otherwise. 6. That the plaintiff, refusing to pay such fare, was properly removed from the cars. It was further held by aU the judges that if the plaintiff was wrongfully removed from the cars, he might lawfully reenter them, and if in attempting to do so he received the injury com- plained of, he was entitled to recover, unless he was himself guilty of some want of care, which produced, or essentially con- tributed to produce, the injury. had not procured a ticket, and refused to pay the additional five cents demanded of him, for fare paid in the cars, was liable to be expelled. 4 37 * 36 THE LAW OF RAILWAYS. [§ 29'. But if the expulsion was lawful, or if the plaintiff was guilty of want of care, as stated, he could not recover. The majority of the court also held, that if any of the defend- ant's employees, which the conductor called to his aid, in putting and keeping the plaintiff off the cars, intentionally kicked . the plaintiff in his face, without the knowledge or direction of the conductor, the defendants are not liable for the act, in trespass. 11. There is no question upon general principles, in an action, or indictment, against the conductor of a railway train, for unlaw- fully expelling a passenger, where the evidence shows a right to make the expulsion, the conductor may nevertheless become liable for the manner of doing it. This is a question to be de- termined by the jury, and cannot ordinarily be decided, by the court, as matter of' law. If there be an excess of force, or it be applied in an unreasonable and improper manner, the conductor is liable for such excess, to respond in damages, to the party, and also to public prosecution, for a breach of the peace.^^ CHAPTER VII. CAPITAL STOCK. SECTION I. LIMITATIONS. 1. General rights of shareholders. I 3. Cannot mortgage, unless on special license 2. Capital stock not the limit of property. | of the legislature. § 29. 1. All joint-stock companies are allowed to raise a cer- tain amount, and sometimes an indefinite amount of capital, by the subscription of the members ; the corporation, in fact, gener- ally consisting of the contributors of stock, and their assignees, which is divided into shares, transferable according to the by- 18 Hilliard v. Goold, 34 New H. R. 230. State v. Ross, 2 Butcher, 224. In this last case the principal evidence of excess was, that the conductor isicked a passenger who, in a state of intoxication, persisted in attempting to get upon the train, and the court held the conviction proper. 88 §30.] CAPITAL STOCK. * 37 laws and charter of the corporation, entitling the owner, for the time being, to the rights of voting, either in person or by proxy, as a general thing, and to a participation in the profits of the enterprise.^ 2. The capital stock of a corporation is not necessarily the limit of .its property .^ It is not uncommon for charters of stock companies to contain restrictions and limitations in regard to their right or capacity to hold real estate, and sometimes even in regard to personal estate. 3. But railway companies, being created for the purpose of carrying into effect a definite enterprise, must almost of necessity have the power to issue sufiicient stock to -accomplish the under- taking, or to raise the requisite funds in some other mode, as by loan and mortgage. And when the stock is limited, and often where it is not, these corporations have been compelled, either to abandon the enterprise, or to resort to loans and mortgages, which * being in some sense a desperate mode of raising funds, as long as the company have power to issue stock, could only be justified ordinarily by a strict and fatal necessity, and by permis- sion of the legislature, as is generally considered.^ SECTION II. CONDITIONS PKECEDENT, WHICH THE PUBLIC AUTHORITIES MAY ENFORCE. 1. Slock, if limited, must all be subscribed. | 2. Payments at time of subscription. § 30. 1. If, by the charter, the stock of the company is divided into a certain number of shares, that number cannot be changed by act of the company.* And if the charter either expressly or by legal intendment require, that a certain number of shares be subscribed before any assessment is laid, no valid assessment can be laid until that number be bond fide subscribfed, and if it is attempted the company may be dissolved.^ 1 Walford on Railways, 252. 2 Barry v. Merchants' Exchange Co. 1 Sandford's Ch. R. 280; South Bay Meadow Dam Co. v. Gray, 30 Maine R. 547. 3 Post,% 181, 234, 235. 1 Salem Mill-Dam Co. v. Ropes, 6 Pick. R. 23. 8 Salem Mill-Dam Co. v. Ropes, 6 Pick. 23 ; Central Turnpike Co. v. Valen- tine 10 Pick. R. 142. Where the capital stock consists of a given number of 39 . * 38 THE LAW OF RAILWAYS. [§ 31. 2. An^ where the general law of the state, or the particular charter, requires a given proportion of subscriptions to be paid in at the time of subscription, this condition must be complied with, or the subscriptions will not fulfil the condition precedent.^ Where *the charter of a railway company provided that the whole capital stock should be subscribed, before any of the pow- ers and provisions of tAie charter should be put in force, and thg company made a call upon the shares before the subscriptions were completed, and commenced an action after they were so, it was held the action could not be maintained, the completion of the subscription being necessary, to enable the company to make the call.* SECTION III. SHARES PERSONAL ESTATE. 1. Railway shares personal estate at com- mon law. 2. Not an interest ffrowing out of land, or goods, wares, and merchandise. 3. Early cases treated such shares as real estate. § 31. 1. The shares of railway companies are now almost uni- versally regarded as personal estate. The English statute so shares of given amount, no valid assessment for the general purposes of the enter- prise can be made until the whole number of shares is subscribed ; and if any of the subscriptions be made upon conditions precedent, it must be shown that such conditions have been waived or performed. 10 Pick. 142. But assessments to defray the expenses of the incorporation, organization, and preliminary examina- tion, similar to those under the provisional companies in England, have been allowed to be made before the stock of the company is all 'subscribed. 6 Pick. 23. 3 Highland Turnpike Co. v. M'Kean, 11 Johns. R. 98, 1 Gaines's Cas. 85. But see post, §51, where it will appear, that although the public, or the other share- holders, may insist upon the payment, in money, of the sums required by the charter to be paid at the time of subscription, this is a condition which cannot be taken advantage of by the subscriber, as between himself and the company, in an action for calls. And it has been held, that the stock subscriptions to a railway, with banking privileges, cannot be paid in bills of the company, but must all be paid in specie. King v. Elliott, 5 Sm. & M. 428. The charter in this case required $20 paid in specie at the time of subscription. Subscriptions in the name of infants, unless some one is responsible for payment of calls, are not a compliance with the charter. Roman v. Fry, 5 J. J. Marshall, 634. But if the corporation acquiesce in such subscriptions, they cannot afterwards object. Creed V. Lancaster Bank, 1 Ohio St. R. 1. * Norwich and Lowestoffe Navigation Co. v. Theobold, 1 M. & M. 151. It is • 40 §31.] CAPITAL STOCK. * 39 declares them. Hence the transfer of such shares is not required to be in writing, as coming within the acts of mortmain.^ This has been repeatedly decided in regard to shares of canal and dock companies, and bonds secured by an assignment of the rates.2 Such shares may be sold by parol where the contract is executory.^ * And it would seem that the same view would pre- vail in the English courts, even where there is no statutory declaration, that the shares shall be deemed personal estate.^ 2. And the sale of foreign railway shares standing in the name of another person, and a guaranty that such person shall deliver, need not be in writing, either as having respect to an interest growing out of land, or as an undertaking for another, the undertaking being original and not collateral.* Railway shares are neither an interest in land, nor goods, wares, and merchandise, within the statute of frauds.^ 3. Some of the early English cases treated the shares of incor- porated companies as real estate, where the interest grew out of the use or improvement of real estate,^ and a similar view is taken in some of the American states.'^ But the settled rule not competent for all the shareholders to reduce the amount of the capital stock, by mutual consent, below that fixed in the charter. If that is attempted, it will be enjoined upon a bill brought by the company against the shareholders and projectors. Society of Practical Knowledge v. Abbott, 2 Beavan, 559. 1 Ashton V. Lord Longdale, 4 Eng. L. & Eq. R. 80. This case extends the same rule to the debentures of such companies. Neither is railway scrip within the Mortmain Act. But mortgages given by a railway company of the under- taking and tolls may be within the act. So also shares in a bank secured by mortgages. Myers v. Perigal, 16 Simons, 533 ; The King v. Chipping Norton, 6 East, 239. 2 Sparling v. Parker, 9 Beavan, 450 ; Thompson v. Thompson, 1 Coll. C. C. 381 ; Hilton v. Gerard, 1 De G. & S. 183 ; Walker v. Milne, 11 Beavan, 507. But see Tomlinson v. Tomlinson, 9 id. 459. 3 Bradley v. Holdsworth, 3 M. & W. 422 ; Bligh v. Brent, 2 Y. & Coll. 294. This is an elaborate case establishing the proposition that the shares in a corpora- tion, whose works are real estate, are nevertheless personal estate, and this upon general principles of the common law. 4 Hargraves v. Parsons, 13 M. & W. 561. 5 Humble v. Mitchell, 2 Railw. C. 70; s. c. 11 Ad. & Ellis, 205. See also Duncuft V. Albrecht, 12 Simons, 189 ; Tempest v. Kilner, 3 C. B. 249 ; Knight V. Barber, 16 M. & W. 66. 6 Drybutter v. Bartholomew, 2 Peere Wms. 127; Townsend v. Ash, 3 Atk. 336 ; Buckerridge v. Ingram, 2 Vesey, jr. 652. ' Welles V. Cowles, 2 Conn. 567. See also Cape Sable Company's case, 3 #4 41 * 40-41 THE LAW OF RAILWAYS. [§ 32. upon the subject now, both in England and this country, is that before stated.^ * CHAPTER Vni. TRANSFER OF SHARES. SE.CTION I. RESTRICTIONS UPON TRANSFER. 1 . Express provisions of charter to be ob- served. 2. If not made exclusive, held directory merely, 3. Unusual and inconvenient restrictions void. 4. But a lien upon stock for the indebtedness of the owner is valid. 5. But such lien is not implied. 6. Where transfer is wrongfully refused, ven- dee may recover value of the company. § 32. 1. We cannot here attempt to show in detail all the inci- dents of the transfer of stock in railway companies. It is trans- Bland's Ch. E. 670; Binney's case, 2 id. 99 ; Price v. Price, 6 Dana, 107; Mea- son's Estate, 4 Watts, 346. 8 Walford, 254 ; ante, § 31, and cases cited in notes 1, 2, 3, and 4 ; Tippets v. Walker, 4 Mass. R. 596, opinion of Parsons, Ch. J., speaking of a turnpike com- pany, he says : " When the road is made, the corporation is entitled to demand and receive a toll of travellers for the use of it, in trust for the members of the corporation, in proportion to their respective shares. The property of every member is the right to receive a proportional part of the tolls, which is consid- ered as personal estate." In Howe v. Starkweather, 17 Mass. R. 243, Parker, Ch. J., says : " Shares in a turnpike or other incorporated company, are not chattels. They have more resemblance to choses in action, being merely evidence of property." In 1 Greenleaf 's Cruise, 39, 40, the subject is very fully and fairly presented, and the following conclusion ai'rived at, in regard to the state of the law in the United States: "Latterly it has been thought that railway shares were more properly to be regarded as personal estate." The same view is held in Bank of Waltham v. Waltham, 10 Met. 334 ; Hutch- ins, Adm'r, v. The State Bank, 12 Met. 421 ; Denton v. Livingston, 9 Johns. R. 100 ; Planters Bank v. Merchants' Bank, 4 Alabama, 753; Union Bank of Ten- nessee V. The State, 9 Yerger, 490 ; Brightwell v. Mallory, 10 id. 196 ; Heart v. State Bank, 2 Dev. Ch. Ill; State v. Franklin Bank, 10 Ohio, 91, 97 ; Slay- maker * V. Gettysburgh Bank, 10 Barr, 373 ; Gilpin v. Howell, 5 Barr. 57 ; Johns V. Johns, 1 Ohio St. R. 351 ; Arnold v. Ruggles, 1 Rhode Island Rep. 165. A distinction has sometimes been attempted between the shares of a bank or 42 § 32.] TRANSFER OF SHARES. '41 ferable much the same as other personal property, excepting only that any express provision of the charter upon that subject must be regarded as of paramount obligation.' manufacturing corporation, and a turnpike or railway, in regard to their partak- ing of the realty. But the slightest examination will satisfy us, that there is no substantial ground for any such distinction. The one may be more intimately connected, in its existence or operation, with real estate, but both must have some connection, more or less intimate, and in both the shareholders have no title to the land, that residing altogether in the corporaiion, while the shares are merely a right to the ultimate profits of the company, and are as really and un- questionably choses in action as promissory notes, bills of exchange, or bonds and mortgages, of natural or corporate persons. Wheelock v. Moulton, 15 Verm. K. 519 ; Isham v. Ben. Iron Co. 19 Verm. R. 230. See also Johns v. Johns, supra. 1 Strictly speaking, perhaps no shares in any joint enterprise are transferable so as to introduce the assignee into the association, as a member, unless it be joint-stock companies and corporations, formed in pursuance of legislative au- thority. And in the case of legislative incorporations, the shares are transfer- able only under the charter, and according to its terms. Duvergier v. Fellows, 5 Bing. R. 248, 267, opinion of Best, Ch. J. A mere partnership cannot be so constituted, as to release the assignor of a share frpm all liability to third persons, and introduce the assignee at once, and completely, into his place. Blundell v. Winsor, 8 Simons, 601, opinion of Shadwell, V. C. ; Jackson v. Cocker, 4 Bea- vau, 68. In the English courts it has been held, that where the charter of a corporation or the deed of settlement required the assent of the directors to complete the title of the purchaser of shares, that it was the duty of the seller to procure this assent, in order to comply with his contract to convey. Wilkinson v. Lloyd, 7 Q. B. 27 ; Bosanquet v. Shortridge, -4 Exch. 699. And all corporations may, in self-defence, require all calls made upon their stock to be paid, before they will substitute the name of the purchaser of shares upon their books, for the original subscriber, as after this substitution they have no longer any claim upon such subscriber, and it would be liable to defeat many public enterprises of moment, and after large expenditures had been incurred, if the subscribers could, at will, relieve themselves from all liability to pay calls, by transferring their shares to irresponsible persons. Hall v. Norfolk Estuary Co. 8 Eng. L. & Eq. R. 351. But the assignee of a share may always insist upon becoming a member upon paying all calls. Questions of some difficulty often arise between shareholders and the company, in regard to an informal transfer having, been confirmed by acquiescence. In Shortridge v. Bosanquet, 17 Eng. L. & Eq. R. 331, and in ex parte Bagge, 4 Eng. L. & Eq. R. 72, it is held that if the entry of the transfer is made upon the books of the company, and especially where the company have dealt with the shareholder claiming under the transfer, they cannot treat the transaction as void, for any want of form in the transfer, though in a matter specially required by the charter and not immaterial, but which their own irregularities had rendered it im- possible to observe. And where the secretary of a joint-stock company fraudu- ' 42 THE LAW OP RAILWAYS. [§ 32. * 2. In many cases, however, where the charter only provides a mode of transfer, and does not declare this mode exclusive of all others, the provision has been regarded as merely directory, and lently transferred shares, and the proprietor of the shares treated the transaction as being valid against the transferree, but filed a bill against the company for damages, it was held he was not entitled to relief. Duncan v. Luntley, 2 McN. & Gord. 30 ; 2 Hall & Twells, 78. In ex parte StrafFon's Executors, 10 Eng. L. & Eq. K. 275, the lord chancel- lor, St. Leonards, thus characterizes these transactions, which, although informal in some respects, are constantly acquiesced in by both parties, until there comes some crisis in the affairs of the company, perhaps, or the transferree becomes insolvent. " There would be no safety for mankind in dealings of this kind, ex- tensive as they are, with so much money embarked in them, if the courts had ever held, as they never have "held, that every minute circumstance must be obeyed, which the directors themselves ought to have obeyed; but if they disre- gard them, if the shareholders do not call them to account for doing so, if a course of action has been adopted in the particular company, without complaint, although they may have arrived at making a. man a shareholder, by what I should call a short cut, instead of going through all the necessary formalities, they may be per- fectly good as between parties thus dealing with the directors, and the directors themselves, so as to bind them." * And in Bargate w. Shortridge, 31 Eng. L. & Eq. R. 44, (May, 1855,) in the house of lords, upon elaborate argument and great consideration, it seems to have been definitively settled in England, that where the deed of a joint-stock company required the certificate of consent of three directors to the transfer of the shares of the company, and in practice this had never been given, but, for ten years, transfers had continually been made upon the verbal assent of the man- aging director upon the spot, and about nine tenths of the original shares had been transferred in this manner, and S. having transferred his shares in the same mode to T., and his name having been entered upon the books of the company, they could not afterwards refuse to regard T. as a member. And in such case, where the directors afterwards cancelled the name of T. in their share register-book, on the ground that the consent of the directors was wanting, it was held that S. had ceased to be a member of the company, and was entitled to an injunction against^a scire facias prayed out against him'by a cred- itor of the company, as a shareholder. It was said by Lorrf St. Leonards, who delivered the leading opinion : " Where the directors of a company do acts in a matter in which they have no authority, such acts are altogether null and void. But where the acts are within their power and duty, and are either omitte'd or improperly done, and thereby third parties are damaged, neither a court of law nor of equity will allow the company to take advantage of their neglect." This, it seems to us, is a sound distinction, and one which will have an impor- tant bearing upon the fraudulent over-issue of stock by the directors of a com- pany whose capital is limited, and all issued and in the hands ononafde owners. This IS the same case in 4 Exoh..699. See also Taylor v. Hughes, 2 Jones & 44 § 32.] TRANSFER OP SHARES. '43-44 * not indispensable to the vesting of title in the assignee. And this has generally been so regarded, where the express provisions, in relation to the transfer of shares, exist only in the by-laws of the corporation- 3. And any unusual restriction in the by-laws of a corporation upon the transfer of stock, as that it shall be made only upon the books of the corporation, in person, or by attorney, and with the consent of the president, or other officers of the corporation, has been regarded as void, as an unreasonable restraint upon trade,^ unless as a provision to secure the indebtedness of shareholders. * In such case it is sometimes said the assignee need only make La Touche, 24 ; Humble v. Langston, 2 Eailw. C. 533 ; Ex parte Cockburn, 1 Eng. L. & Eq. K. 139. But where the charter, or the general law, requires all debts of the owner to be paid the company before transfer of shares, the company are' not bound to accept a transfer otherwise made. Reg. v. Wing, 33 Eng. L. & Eq. R. 80. 2 Sargeant v. Franklin Ins. Co. 8 Pick. R. 90 ; Quiner v. Marblehead Ins. Co. 10 Mass. R. 476 ; Noyes v. Spalding, 27 Vt. R. 421 ; Bates v. New York Ins. Co. 3 Johns. Cas. 238 ; Chouteau Spring Co. v. Harris, 20 Missouri Rep. 382. In this last case the charter of the company provided that the stock might be " transferred on the books of the company," and the company were authorized " to regulate the transfer of stock," by by-laws. And a provision in the charter authorized the company, in certain cases, to make assessments of stockholders beyond their shares of stock. It was held that no such assessment could be made on a party, after he had ceased to be a member, by a transfer of his stock. That the power " to regulate the transfer " did not include the power to restrain transfers, or to prescribe to whom they might be made, but merely to prescribe the formalities to be observed in making them, and that the company could not prevent a party from selling his stock, even to an insolvent person. That an assignment " upon the books of the company " was sufficient to effect a change of ownership, without taking out a new certificate in the name of the assignee ; and that any transfer in writing was valid against the company, if, being notified, they refused to allow it to be made according to their by-laws. And in Dauchy v. Brown, 24 Vt. R. 197, which was an action against stock- holders, upon the proper debt of the corporation, where the charter provided, that the persons and property of the corporation shall be holden to pay its debts, and that any execution, which should issue against the corporation, might be levied upon the person, or property, of any individual thereof, it was held, that the stockholders were only liable, in default of the corporation, and that judg- ment should first be recovered against the corporation, and the statute remedy strictly pursued. See, also, in regard to the remedy against stockholders, who are by statute made personally liable, Southmayd v. Russ, 3 Conn. 52 ; Middle- town Bank v. Magill, 5 Conn. 28 ; Child v. Coffin, 17 Mass. R. 64 ; Roman v. Fry, 5 J. J. Marshall, R. 634. 45 "44 THE LAW OF RAILWAYS. ' [§ 32. his right known to the company, and require the transfer entered upon the books and his title becomes perfected.^ 4. But if the former owner was indebted to the corporation, and the charter required all such indebtedness to be liquidated, before transfer of stock, such indebtedness will remain a lien upon the stock, in the hands of the assignee.* 3 Sargeant v. Franklin Ins. Co. 8 Pick. 90 ; United States v. Vaughan, 3 Bin- ney, K. 394 ; Ellis v. Essex Bridge Co. 2 Pick. 243 ; Chester Glass Co. v. Dewey, 16 Mass. R. 94; Agricultural Bank v. Burr, 11 Shepley, 256 ; Same v. Wilson, id. 273. * Union Bank v. Laird, 2 Wheaton, E. 390 ; Bank of Utica v. Smalley, 2 Cowen, R. 770 ; Rogers v. Huntington Bank, 12 Serg. & R. 77 ; Downer v. Bank of Zanesville, Wright (Ohio) R. 477; Farmers Bank of Maryland v. Iglehart, 6 Gill, R. 50; Hall v. U. S. Insurance Co. 5 Gill, 484. See Angell & Ames, § 355 and note! In _Marlborough M. Co. v. Smith, 2 Conn. 579, it was said the transfer of shares to constitute the assignee a stockholder must be in strict con- formity to the charter and by-laws. And in the recent case of Pittsburg & Steu- benville Railw. v. Clark, 9 Am. Railway Times, 51, Ch. J. Lewis goes into an elaborate review of the cases to show, that under the Pennsylvania statutes, which provide, that no transfer of shares shall be made while the holder remains indebted to the company, except by consent of the board of directors, and no transfer shall discharge any liabilities before incurred, that both the stock and the holder remain liable for all calls due before the transfer, and that the original subscriber, who promised to pay fifty dollars on a share, is indebted to the com- pany, before calls made, within the meaning of the statute ; and even where the transfer is made with the consent of the directors, will remain liable until all calls are paid, notwithstanding the statute subjects the transferee also to a like liability. The following extract from the opinion of the learned judge places the points decided in a clear light : " Is an original subscriber who has bound himself in writing to pay fifty dollars per share, but who has only paid five dol- lars per share on his subscription, 'indebted ' to the company within the mean- ing of the act ? Why should this question receive a negative answer ? His engagement to pay money is as much a debt as any other engagement for the payment of money. A debt may be contracted for stock in a railroad company as readily as for any thing else. It is true that the debt is payable by instalments when required from time to time by the directors. But it is none the less a debt on that account. It is deUtum in presenti solvendum in futuro.. It is a present debt payable at some future day. It is well settled that the lien given by statute to a corporation, upon the shares of stockholders ' indebted ' to it, extends to ell debts, whether payable presently or at a future time, except where the statute limits the lien to debts actually due and payable, and that a stockholder indebted to the corporation, although the debt may not be due, cannot transfer his stock without the consent of the corporation. Rogers v. Huntingdon, 12 S. & R. 77 ; Grant v. Mechanics' Bank of Philadelphia, 15 S. & R. 140 ; Sewell v. Lancaster Bank, 17 S. & R. 285. It is very clear that the defendants, at the time of the 46 § 32.] TRANSFER OF SHARES. *44 5. A corporation has no implied lien upon stock for the lia- bilities of the stockholders to the company.^ alleged transfer of their stock, were ' indebted ' to the company to an amount nearly equal to the whole of their subscription. They had, therefore, no right whatever to transfer their stock without the consent of the board of directors. It is true that as between them and the purchaser, if the latter thought proper to contract for a contingent or uncertain interest, the transfer might be good for some purposes. 8 Pick. 90 ; 9 Pick. 202 ; 2 Cowen, 770. But it passes no title to the stock, and confers no ' privileges, immunities, or franchises ' whatever upon the purchaser. The consent of the board of directors is of itself the orig- inating act in the change of title, and does not merely operate to perfect the conveyance previously begun. Marlborough Man. Co. v. Smith, 2 Conn. Rep. 579 ; Northop V. Newtown & Bridgeport Turnpike Co. 3 Conn. Rep. 544 ; Oxford Turn- pike Co. V. Bunnell, 6 Conn. Rep. 552. So long as the stock remains unpaid, the corporation has a right to refuse to receive new members in place of the original adventures. Until the stock is fully paid up, and the stockholders otherwise free from debt to the company, they have no right whatever to introduce strangers into the company in their places. A right which depends upon the consent of others, is no right at all. The transfer to Mr. Stanton was therefore, of itself, a nullity. An attempt was macje to give it vitality by parol evidence, from which the consent of the board of directors was to be inferred by the jury. But there is no evidence tending to show that the question was ever presented to the con- sideration of the board, or that any action was taken by the board in regard to the transfer. In ordinary business transactions between a corporation and stran- gers, the authority of agents and the existence of contracts may be implied from acquiescence and other circumstances. So where the assent of the board is re- quired by a by-law only, the execution of the by-law may be modified by the practice of the corporation. Ins. Co. v. Smith, 1 Jones, 126. But when the act of incorporation grants a power, the mode prescribed by the statute for its exer- cise must be strictly pursued. 5 Barb. Sup. Court Rep. 613, 614 ; 2 Cranch, 127. The question here is whether one member of a corporation has been legally sub- stituted for another. The title of the original stockholder was established by written evidence, and could have no legal existence without it. Thames Tunnel v. Sheldon, 6 B. & C. 341. The title of the substitute must be shown by evidence of the same character. It is the duty of the directors to keep minutes of their proceedings, and the proper evidence of their assent to a transfer is a recorded resolution adopted when the board was in session. Where the transfer is made by a direc- tor, it ought further to appear that the resolution of assent was carried without 5 Mass. Iron Co. v. Hooper, 7 Cush. 183 ; Heart v. State Bank, 2 Dev. Ch. R. ill ; Sargent v. Franklin Ins. Co. 8 Pick. 90, and cases cited supra, note 2. But dividends due and unpaid may be said to be a fund, in the hands of the corpo- ration which they are not obliged to pay to the assignee of the stock, until their debts from the assignor are liquidated. Dividends are strictly due only to the assignor and would not probably pass by a mere sale of the stock, unless there were some special ground for giving the transfer of the stock that operation 47 * 45 THE LAW OF EAILWATS. [§ 33. 6. And where the company wrongfully refuse to record trans- fers of shares on their books, the vendee may recover the price of such shares, the company having caused them to be sold, as the property of the vendor.^ * SECTION II. CONTRACTS TO TRANSFER STOCK. 1 . Transfer under English statutes. Regis- tered companies. 2. Contracts to transfer stock valid, where bon^ fide. 3. Vendor must have the stock, when due. n. 3. Vendor must procure the consent of di- rectors, where requisite. § 33. 1. Questions often arise in regard to transfers of stock in incorporated companies, as to the quantity of interest con- veyed, the title of the person making the conveyance, and many other incidents. The English, statutes in regard to the regis- tration of railway companies are not intended to affect the prop- erty in the shares,' and a transfer is valid, although made before the registration.^ 2. It would seem, too, that a contract to transfer stock in rail- his vote. If the resolution was adopted and entered on the minutes, the loss or destruction of the entry might be supplied by parol proof. But in no other case can parol evidence be received to show that an assignee has been admitted as a member of the corporation in the place of the assignor. There was no legal evi- dence of the assent of the board of directors to the transfer, and therefore no legal evidence of a valid transfer of the stock. If there had been, we do not see how the defendants can claim to be discharged by it from ' liabilities ' pre- viously incurred. Their subscription to the stock of the company created a lia- bility to be called upon for payment in such instalments as the directors required. Conceding that it was not an obligation for present payment, and supposing, for a moment, that it was not strictly a debt, it was certainly a ' liability,' which is a word of more extensive signification than ' debt' The act of assembly is express in its direction that a transfer, even with the assent of the board, shall not have the effect of discharging any liabilities or penalties heretofore incurred by the owner of the stock. We see no reason for restricting this proviso to ' lia- bilities ' which had become due and payable before the transfer. It is suflScient to bring a ' liability ' within the proviso that it had been ' incurred ' by the owner before the transfer. It is not necessary that it should also have become due and payable.'* 1 The London & Brighton Railway Co. v. Fariclough, 2 Railw. Cases, 544 ; s. 0. 2 M. & Gr. 674. 2 The Sheffield, Ashton-under-Lyne, & Manchester Railw. Co. v. Woodcock, 2 Railw. Cases, 522 ; s. c. 7 M. & W. 574. 48 § 33.] TRANSFER OF SHARES. * 46 way companies, at a future time, which the party neither has, nor is about to have, but expects to purchase in the market, for the purpose of fuljfiUing his undertaking, is nevertheless a valid contract, and not illegal, or against the policy of the law,^ and that the intimation of Lord Tenterden,^ that such contracts were illegal, and not to be encouraged by the law or its ministers, is not to be regarded, at this time, as sound law, however good sense, or good morality, it may seem to be. 3. It is clearly not a stock-jobbing transaction within the Eng- * lish statute.^ But to the performance of such a contract it seems to be requisite, that the seller should bond fide procure the stock, by the time appointed for the transfer.^ 3 Hibblewhite v. M'Morine, 5 M. & W. 462. Mr. Walford in his treatise, 256 and note, intimates, that the law of France regards this class of contracts as ille- gal, and cites Hannuic v. Goldner, 11 M. & W. 849, in confirmation. But the case does not expressl)' decide the point. That was pleaded, and the court held the plea bad, as amounting to the general issue, and the party had leave to amend. Perhaps it is charitable both to the pleader and to the country, to sup- pose such is the law there, as Mr. Walford seems to have done. But where the deed of settlement requires the assent of the directors to a transfer of shares, and the vendor did not obtain it, and in the mean time the price of shares fell in the market, held the vendor might recover back his money. Wilkinson v. Lloyd, 7 Q. B. 27. 4 In Byran v. Lewis, Ry. & M. 386, and in Lorymer v. Smith, 1 B. & C. 1. 5 Hewett V. Price, 4 Man. & G. 355 ; Mortimer v. M'Callan, 6 M. & W. 58. 6 Hibblewhite v. M'Morine, 2 Kailw. .C. 51-66 ; s. c. 6 M. & W. 200. The comments of Isham, J., in Noyes v. Spalding, 27 Vt. R. 429, may be regarded, perhaps, as giving the present state of the English law upon this subject. " Con- tracts for the sale of stock of this character on time are valid at common law, and can be enforced by action. The statute 7 Geo. 2, ch. 8, made perpetual by 10 Geo. 2, ch. 8, has rendered some contracts of that character illegal. They are rendered void so far as the public stocks of that country are concerned, when the seller had no stock at the time of making the contract, and none was ever in- tended to be transferred by the parties, but their intention was to pay the differ- ence merely that may exist between the market value of the stock at the time of the transfer, and the price agreed to be paid. Such contrjicts are rendered void by that statute, and are treated as wagering contracts ; ' the seller virtually bet- ting thS,t the stock will fall, the buyer that it will rise.' Chitty on Bills, 112, note (w). It has been held, that railroad stock is not within the att. Hewett v. Price, 4 Man. & Gran. 355 ; 3 Railway C. 175 ; Fisher v. Price, 11 Beav. 194. In the case of Mortimer v. McCullon, 6 M. & Wels. 69, Lord AUnger observed, ' that the act was made for the purpose of preventing what is declared to be illegal trafficking in the funds by selling fictitious stock merely by way of differ- ences ; but it never was intended to affect bona fide sales of stock.' Ellsworth 5 49 '47 THE LAW OF RAILWAYS. [§34. SECTION III. INTEKVENING CALLS, OK ASSESSMENTS. n. 2. Calh paid by vendor after executing • transfer. 1. Vendor must pay calls, if that is requisite to pass title. 2. Generally it is matter of construction, and inference. ' § 34. 1. It has been said, too, that the contractor to transfer stock must see to it that all calls are met, up to the time of the transfer, as in general the charters of such companies, or their by-laws, prohibit the transfer of stock, while calls remain unpaid.' But we have seen, that this is a provision for the protection of the * company, and in which they alone are interested, and which win not ordinarily avoid a sale, between other parties, otherwise valid. 2. And it would seem that the question, upon which party the duty to pay future calls shall rest, is one of construction, in the absence of express stipulation ; at aU events, one of intention. It may perhaps be safe to say that the sale of stock, in the pres- ent tense, ordinarily implies, that it is free from incumbrance of any kind, unless there is some exception, or qualification, in the contract. And that may be the common presumption, in regard to contracts to deliver stock, in future. But in the latter case the presumption is not, by any means, of so conclusive a character, as in the former, and sometimes, in such cases, it has been held not incumbent upon the seller to pay intervening caUs.^ V. Cole, 7 M. & W. 30 ; 2 Kent's Comm. 468, note (b). In the case of Grize- wood V. Blane, 20 Eng. L. & Eq. E. 290, it was held, that a colorable contract for the sale of railroad shares, where no transfer is intended, but merely ' differences^ amounting to the rise or fall of the market, it is gaming within the 8 and 9 Vict, ch. 109, § 18 ; 11 Common Bench R. 538." 1 Walford, 256, 257. 2 Shaw V. Rowley, 5 Railw. C. 47. In this case it was held no impediment to the seller's readiness to convey, the shares, that he had not paid an intervening call, as he might do it, at the moment of executing the transfer, and the court say the call was ultimately to be paid, by the purchaser. In Humble v. Langston, 2 Railw. C. 533, it is decided, that upon the sale and transfer of the shares, where the purchaser's name is not substituted, on the regis- ter of the company, for that of the seller, but the stock still standing in his name, he is thereby subjected to the payment of future calls, he cannot recover the 50 § 35.] TRANSFER OP SHARES. * 48 *SECTION IV. TRANSFER BY DEED IN BLANK. 1 & 2. Blank transfer formerly held invalid | 3. Rule different in America, in England. ' § 35. 1. Ordinarily the transfer of stock, or a contract to trans- fer, is not required to be in any particular form. All that is requisite, is, the same as in any other contract, the meeting of the minds of the parties. But in some cases, the shares are, by money of the purchaser, because there is no implied contract to that effect, re- sulting from the transaction. This is certainly a most remarkable decision, and it is something of a task, to be able to read the opinion of the court, by which this result is reached, with tolerable patience. The conclusion is certainly not forti- fied either by reason or analogy. And in the Cheltenham & Great W. Union Railway Co. v. Daniel, 2 Railw. C. 728, it is decided, that the purchaser of shares may, by way of estoppel in pais be made liable for calls, before his name is actually substituted, for that of the seller, upon the register of shares. If so, both parties are liable for the calls, and the seller, while his name remains upon the register, is the mere surety of the pur- chaser, as to future calls. And what is a more natural oi* necessary conclusion in the mind of any one having the common sense of justice, than to imply, that while the purchaser suffers the seller's name to remain upon the register, and liable to the payment of calls, through his neglect, he does impliedly promise to indemnify him against all loss on that account ? See Burnett v. Lynch, 5 B. & C. 589. But the case of Humble v. Langston is reaffirmed in the subsequent case of Sayles v. Blane, 6 Kailw. C.-79. These cases can only be accounted for, upon rtie principle of discouraging blank unregistered transfers, which have the effect to evade the stamp duties. Shelford, 108, and Report on Railw. 1839, No. 517, p. 4. Since writing the above the late case of Walker v. Bartlett, 36 Eng. L. & Eq. R. 368, has come to hand, where a blank transfer seems to be regarded as per- fectly valid, and that the transfer in this mode does impose upon the vendee the duty of paying calls upon the shares, while they remain his property. We may be allowed to say, that this result of the English decisions, upon this subject, is not altogether without gratification, as the former decisions had so effectually mystified the subject, that it seemed not improbable that the difficulty of com- prehending them might very likely be ultimately found with ourselves, rather than at the door of the eminent jurists, who have so long clung to the now ac- knowledged inconsistency of Humble v. Langston, which pertinacity in error, as a general thing, is far more uncommon in Westminster Hall, than with courts of less experience. Men of the learning and experience of the English judges, generally feel, that they can afford to acknowledge their common share of human fallibility, without serious prejudice. 51 * 49 THE LAW OF RAILWAYS. [§35. the express requirements of the charter, made transferable only, by deed executed by both parties to the transfer. 2. And in such case it was considered, that a deed executed by the seUer, with a blank for the name of the transferree, was no compliance with the statute.^ The opinion of the court seems to rest upon the early cases, in which it is held that the party cannot effectually execute a deed, leaving such important blanks, as the name of the grantee, or obligee, while it is considered that less important ones, like the date, etc., may be supplied, after the execution, by permission of the party executing the same. This seems to have been the undoubted rule of the English law, from the authorities cited, in the last case. 8. But it seems to be rather technical, than substantial, and to found itself, either in the policy of the stamp duties, or the supe- rior force and sacredness of contracts, by deed, both of which \a,\e little importance in this country. And the prevailing cur- rent of American authority, and the practical instincts, and business experience and sense of our people are undoubtedly otherwise. * 4. There is no good reason, why one should not be as much bound, by a deed, executed blank, and filled according to his direction, as by a blank acceptance, or indorsement, of a biU, or note, and accordingly we find a large number of decisions of the American courts, leading in that direction.^ 1 Hibblewhite v. M'Morine, 2 Kailw. C. 51 ; 6 M. & W. 200. It is considered that two or more several owners of shares may join in one deed to convey their shares. Wells v. Bridge, 4 Exch. 193 ; Enthoven v. Hayle, 9 Eng. L. & Eq. R. 434. See ante, § 34, n. 2. 2 Stahl u. Berger, 10 S. & R. 170 ; Sigfried v. Levant, 6 id. 308 ; Wiley v. Moore, 17 id. 438 ; Graham v. Ogle, 2 Penn. 132 ; WooUey v. Constant, 4 Johns. R. 54, 60 ; Ex parte Kerwin, 8 Cow. R. 118 ; Boardman v. Gore et al. 15 Mass. R. 331. And the following certainly incline in the same direction. Smith v. Crocker, 5 Mass. R. 538, and the opinion of Parsons, Ch. J. ; Hunt v. Adams, 6 id. 519 ; Warring o. Williams, 8 Pick. 826 ; Adams v. Frye, 3 Met. R. 103 ; Bank of Commonwealth v. Curry, 2 Dana, 142 ; Bank v. McChord, 4 id. 191 ; Johnson V. Bank of the U. States, 2 B. Monroe, 310; Camden Bank v. Halls, 2 Green, 583 ; Duncan v. Hodges, 4 M'Cord, 239. In the London & Brighton Railway Co. v. Fairclough, 2 Railw. C. 544, the deed of transfer where one name was first inserted, as transferree, and subse- quently that erased, and another inserted, and the deed reexecuted, by the vendor, was held void, because it had not been restamped. 52 §36.] TRANSFER OF SHARES. '50 SECTION V. SALE OP SPURIOUS SHARES. 4. Rule of the stock-exchange, made after the sale, not binding upon parties. 1. Vendor, who acts bond fide, must refund money. 3. No implied icarranty in such case, which will entitle the vendee to special damage. § 36. 1. Where one employed a share-broker to sell in the market what purported to be scrip or certificates of shares in a projected railway company, which subsequently proved to have been forged, and the broker paid the price at which he sold them to the defendant, but being called upon by the purchaser to make good the loss, repaid the money, and a further sura, accord- ing to a * resolution of the committee of the stock-exchange, as to the value of genuine shares in the same railway company, which resolution was passed after the sale of the spurious shares. The defendant declining to pay this further sum, the broker brought an action, claiming to recover, as upon a warranty, that the shares were genuine, with a count for money paid. 2. Upon the latter count the defendant paid into court the money received upon the original sale, with interest. 3. It was held, the plaintiff could not recover upon the ground of the warranty, there being no promise, express or implied, that the certificates were genuine ; and that under the other count, be could only recover the money paid defendant. 4. It was also held, that the resolution of the committee of the stock-exchange, made after the transaction was completed, how- An auctioneer, who sells shares, at public auction, without disclosing the name of his principal, makes himself personally responsible for the fulfilment of the contract of sale. Franklyn v. Lamond, 4 C. B. 637 ; Hodges on Railways, 119. But where one borrowed money, and deposited certificates of railway shares, with blank assignments upon them, as security, and the blanks were not filled up, till the shareholder became bankrupt, it was held, that the depositary had a lien upon the shares, for money advanced by him, or paid on calls upon the shares. Dobson, Ex parte, 2 Mont. D. & De G. 685. And railway bonds issued with the name of the obligee blank, were held negotiable in that form, although not in terms negotiable ; and that any holder for value, before the blanks were filled, miffht maintain an action in his own name against the company. Chapin V. Vermont & Mass. Railway, 20 Law Rep. 650, in Supreme Court of Mass. 5* 53 •51 THE LAW OP RAILWAYS. [§37. ever it might bind the members of that body, could not affect the defendant.' SECTION VI. READINESS TO PERFORM. CUSTOM AND USAGE. 1. Vendor must be ready and offer to convey. 2. Vendee must be ready to pay price. 3. General custom and local usage. 4. The party taking the initiative, must pre- pare the writings. n. 3. Oral evidence to explain memoranda of contract. § 37. 1. The obligation resting upon the vendor of railway shares is to have, at the time specified in the contract for deliv- ery, a good title to the requisite number of shares, and to mani- fest his readiness to convey, which is usually done by tendering the proper conveyance. But this is not necessary. Any other mode of showing readiness is sufficient.' * 2. The corresponding obligations upon the vendee are readi- ness to receive the proper conveyance, at the specified time and place, and to pay the price, and it would seem to prepare a proper conveyance, and tender the same for execution, upon hav- ing a good title made out.^ 3. But the incidents of such contracts are liable to be con- trolled by general, and local customs, and usages of trade, the same, as other similar contracts.^ Hence any general known 1 Westropp V. Solomon, 8 C. B. 345. We think it probable, that the cases, in this country, would be regarded as favoring the view, that upon a sale of this kind, there is an implied warranty, that the article is what it purports to be, and consequently, that the seller is liable to pay its value in the market, at the time its spuriousness is discovered. Post, Chap. XXXn. It would seem that in England it is an indictable oflfeiioe for persons to conspire to fabricate shares, in addition to the limiteS number of shares of which a company consists, in order to sell them, as good shares, not- withstanding any imperfection in the original formation of the company. Rex v. Mott, 2 Car. & P. 521 ; post, § 37, n. 3. 1 Humble v. Langston, 2 Railw. 0. 533 ; Hannuic v. Goldner, 11 M. & W. 849 ; Hare v. Waring, 3 M. & W. 362 ; Hibblewhite v. M'Morine, 2 Railw. C. 51. In Munn v. Barnum, 24 Barb. R. 283, it is held that mere readiness to transfer is sufficient in such cases, and that an actual transfer is never requisite, where the purchaser declines to pay the price. 2 Lawrence w. Knowles, 5 Bing. (N. C.) 399 ; Stephens v. De Medina, 4 Ad. & Ellis, (n. 8.) 422 ; Bowlby v. Bell, 4 Railw. C. 692. 3 Stewart v. Cauty, 2 Railw. C. 616 ; 8 M. & W. 160. And one who employs 54 § 37.] TRANSFER OF SHARES. * 51 usage of those negotiating similar business, and which may be fairly presumed to have been known to the parties, or which a share-broker, at a particular place, to purchase shares, is bound by a usage, affecting the broker, at that particular place. As where the plaintiff, a share- broker in Leeds, bought for defendant ten railway shares to be paid for on deliv- ery. The defendant not being ready to pay the money, the vendor made a resale, at a less price, and called upon the plaintiff for the difference, which he paid, without communicating with defendant, all which was done, according to the custom of the Leeds stock-exchange. It was held the plaintiff might recover of defendant the difference, in an action for money paid. Pollock v. Staples, 5 Kailw. C. 3.i2. And where shares had been purchased by a stock-broker, upon which a call had been made, but not then due, by the rules of the stock-exchange it was the duty of the vendee to pay the call, the vendor having paid it, to enable him to convey, the broker paid the amount to him, and it was held he might recover it of the vendee, as money paid for his use. Bailey v. Wilkins, 7 C. B. 886. And it would seem the party is bound, by such usage, though not cognizant of it. Parke and Rolfe, BB.; in Bayliffe v. Butterworth, 5 Railw. C. 283 ; Sutton o. Latham, 10 A. & E. 27. And where the broker could not obtain the certificate of shares for some months, on account of the delay in having them registered, by the company, and in the moan time a call was made, which he paid, the person for whom he pur- chased having, from time to time, urged the forwarding of the scrip without de- lay, it was held that he could not repudiate the contract, and recover the money, advanced to the broker, to pay the price of the purchase. McEwen v. Woods, 11 Q. B. 13 ; 5 Railw. C. 335. And where the defendant gave the plaintiff, a broker on the stock-exchange, an order to purchase for him fifty shares in a foreign railway company, at a time when no shares of the company were in the market, or had in fact issued, but ktters of allotment were then, according to the evidence of persons on the stock- exchange, commonly bought and sold as shares, and the plaintiff bought for the defendant a letter of allotment of fifty shares, it was held that a jury might weU find that this was a good execution of the order. Mitchell v. Newhall, 15 M. & W. 368 ; 4 Railw.' C 300. And where the broker bought scrip certificates, which were sold in the market, as " Kentish Coast Railway Scrip," and were signed by the secretary of the company, but which were afterwards repudiated by the directors, as having been issued by the secretary, without authority, in an action to recover back from the broker the price paid him by the plaintiff, for the scrip and his commissions, on the around of it not being genuine, it was held that the proper question for the iurv was whether what the plaintiff intended to buy, was not that which went in the market as "Kentish Coa^t Railway Scrip," there being no other form of that scrip in the market at the time. Lamert .. Heath, 15 M. & W. 486 ; 4 Railw. C. 302 ; ante, § 36. . n <• The remarks of Lord Campbell, Ch. J., in the very late case of Hurafrey v. Dale 20 Law Rep. 227, in regard to the necessity of relaxing the rule of the ' 55 * 52 THE LAW OP RAILWAYS. [§ 37. ought to have been, and any local custom, or usage of trade, which was in fact known to both parties, is regarded as if incor- porated into the contract, the parties being presumed to have contracted with reference to it.^ * But it may be questionable, perhaps, whether the custom in regard to sales of stock, in this admissibility of oral evidence to explain the import of commercial terms and memoranda in written contracts between merchants and business men, are cer- tainly worthy of his lordship's eminent reputation for wisdom and learning : — " The only remaining question is, having stated a purchase for a third person as principal, is there evidence on which they themselves can be made liable ? Now neither collateral evidence, nor the evidence of a usage of trade, is receiv- able to prove any thing which contradicts the terms of a written contract ; but subject to this condition both may be received for certain purposes. Here the plaintiff did not seek, by the evidence of usage, to contradict what the tenor of the note primarily imports, namely, that this was a contract which the defendants made as brokers. The evidence, indeed, is based on this. But the plaintiff seeks to show that, according to the usage of the trade, and as those concerned in the trade understand the words used, they imported something more; namely, that if the buying broker did not disclose the name of his principal, it might become a contract with him, if the seller pleased. The principle on which evidence is ad- missible is, that the parties have not set down on paper the whole of their con- tract in all its terms, but those only which were necessary to be determined in the particular case by specific agreement, and which of course might vary infi- nitely, leaving to implication and tacit understanding all those general and unva- rying incidents which an uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly exclude them. To fall within the exception, therefore, of repugnancy, the incident must be such as, if expressed in the written contract, would make it insensible or in- consistent. Brown v. Byrne, 3 Ell. & Bl. 703. [After alluding to several cases, - especially Trueman v. Loder, 11 Ad. & Ell. 589, in which case is found a dictum adverse to admissibility of this evidence, the learned judge continued :] We may refer to Hodson v. Davies, 2 Camp. 530, not as a legal decision opposed to True- man V. Loder— for Lord Denman, in his judgment in the latter case, showed that it could not be supposed to carry with it the weight of Lord Ellenborough's decis- ion—but because both cases, we think, disclose how entirely the minds of lawyers are under a different bias from that which, in spite of them, will always influence the practice of traders which creates the usage of trade. Lawyers desire cer- tainty, and would have a written contract express all its terms, and desire that no parol evidence beyond it should be receivable ; but merchants and traders, with a multiplicity of contracts preparing on them, and meeting each other daily, de- sire to write little, and leave unwritten what they take for granted in every con- tract. It is the business of courts reasonably to shape these rules of evidence so as to make them suitable to the habits of mankind, and such as are not likely to exclude the actual facts of the dealings between parties, when they are to deter- mine on the controversies which grow out of them. The rule to enter a nonsuit must be discharged." See Taylor v. Shay, 29 Law Times, 95. 56 § 38.] TRANSFER OF SHARES. * 53-54 country, would require the purchaser to be 'at the sole expense of preparing the proper conveyance. It is safe, perhaps, to say, that the party tendering a conveyance, or he who demands it, in practice, ordinarily causes the instrument, required to be exe- cuted, to be prepared in the one case and executed in the other. But less will often suffice, where the other party refuses to pro- ceed.* •SECTION VII. DAMAGES. SPECIFIC PERFOEMANCE. 1. Damages, difference hetween contract price | 2. Equity will decree specific performance of and price at time of delivery. I contract for sale of shares. § 38. 1. The damages which either party is entitled to recover, is the difference between the contract price, and the market price at the time for delivery, or, in some cases, a reasonable time after, which is allowed either party for resale or repurchase.^ * Walford, 262, note, where it is said, "It would seem, that if the vendor fails to make out a title, this dispenses with a tender of conveyance." But if stock is to be delivered on demand, it is necessary to show an actual request to deliver, in order to sustain an action for non-delivery. Green v. Murray, 6 Jur. 728. Where the contract is to deliver stock in a reasonable time, or no time be- ing specified, which the law regards as in a reasonable time, or on or before a day named, it is presumed each party is entitled to the whole time, in which to perform. Stewart v. Cauty, 2 Railw. C. 616. It seems that where the deed of settlement required the consent of the directors to the validity of the transfer of shares, it is incumbent upon the vendor to obtain such consent ; and where the transfer was duly made, executed, and delivered, and the money for the price paid, but the directors refused to give their assent, it was held the purchaser might recover back the money paid, and that the return of the transfer was col- lateral to the contract of purchase, and not a condition precedent to the plain- . tiff's right to recover. Wilkinson v. Lloyd, 7 Q. B. 27. And where the charter of the company, or the statute, prohibits the transfer of the shares, while calls remain due, it was held that a deed of transfer made, while calls remained unpaid, was altogether null and void, so that the company may refuse to register such a transfer, although the calls have been subsequently paid. It is said it would be necessary to reexecute the deed, after the payment of the calls, before the company could be compelled to register it. Hodges, 121, 122. But it has been said, that if a deed be delivered as an escrow in such case, to take effect when the calls are paid, it may be good. Patteson, J., in Hall v. Norfolk Estuary Co. 8 Eng. L. & Eq. R. 351. 1 Earned v. Hamilton, 2 Railw. C. 624 ; Humble v. Mitchell, 2 Railw. C. 70 ; Shaw V. Holland, 15 M. & W. 136. But the purchaser is not entitled to recover any advance in the market price of such shares, after a reasonable time for re- 57 *55 THE LAW OP RAILWAYS. [§39. 2. And a court of equity will decree a specific performance of a contract to transfer railway shares, but not for the transfer of stock in the funds, as any one may always obtain that in the market, but railway stock is nolf always obtainable.^ So it was held, that a court of equity will decree a specific performance against a railway company of a contract to take land and pay a stipulated price.^ SECTION VIII. SPECIFIC PEKPORMANCE. 1. Specific performance decreed against the vendee. 2. This was denied in the early cases. 3. Owner of original shares may transfer them, i. Will not decree specific performance where not in the power of the party. § 39. 1. It is considered, under the English statutes, that the purchaser of shares in a railway is bound to execute the assign- ment on his part, procure himself to be registered, pay all calls * intervening the assignment, and the registration of his name as a shareholder, and indemnify the seller against future calls, and upon a bill filed for tha,t purpose, it was so decreed.' purchase. Tempest v. Kilner, 3 C. B. 243, 249. See also Pott v. Flather, 5 Railw. C. 85 ; Williams v. Archer, id. 289. But a broker is not entitled to com- missions, unless he complete the sale, but may be entitled to reimbursement of actual expenses. Durkee v. Vermont Central Railroad, 19 Law Kep. 572. In a recent case in the Common Pleas, Loder v. Kekule, 30 Law Times, 64, it was de- cided, in regard to the subject of damages for breach of contract, by delivery of an inferior article, that if the article was one that could be immediately sold in the market, the rale was, the difference between the market value of the article delivered, and that contracted for. But where the article cannot be immediately resold, as where the resale is delayed by the defendant, the measure of damages is the difference between the value of the article contracted for, at the time and place of delivery, and the amount made by the resale, within a reasonable time of the delivery of the article. 2 Duncuft V. Albrecht, 12 Simons, 189 ; Shaw v. Fisher, 5 Kailw. C. 461. 3 Inge V. Birmingham W. & S. V. Railway Co. 23 Eng. L. & Eq. 601 ; post, §213. 1 Wynne v. Price, 5 Railw. C. 465 ; Shaw v. Fisher, id. 461. These cases were decided by V. C. Knight Bruce, and are obviously somewhat at variance with the principles assumed in Humble v. Langston, 7 M. & W. 517. The learned judge here seems to have felt a just indignation that any defence should have been attempted in such a case. " The defence,'' said he, " was without apology or excuse." And this same learned judge, in the case of Jacques v. Chambers, 4 Railw. C. 499, held, that where a testator, at the time of his death, 58 § 39.] TRANSFER OF SHARES. '56 2. But in some of the earlier cases, very similar in principle, the court of chancery declined to interfere, and the opinion is very distinctly intimated, that the law implied no undertaking on the part of the purchaser of railway shares, to assume the position and burdens of the seller.^ 3. In the case of Jackson v. Cocker, a query is started by the Master of the Rolls, upon the authority of Josephs v. Pebrer, 3 B. & C. 639, whether a contract by which the original subscribers of shares in a railway stipulate to be relieved from their under- taking, and to substitute another party in their place, is to be regarded as legal ? But the case referred to was decided upon the ground that the concern then in question was illegal in itself, within the English statute,^ as having transferable shares, and affecting to act as a body corporate, without authority by charter or act of parliament. 4. The court of chancery will not decree specific performance against a railway company who promised to allot shares to the plaintiff, especially where it appears such shares have been given * to others.* A court of equity will never, it seems, decree specific performance against a party, where it is not in his power to per- form, although such incapacity be the result of his own fault. But wiU, in such case, leave the other party to his remedy at law, by way of damages, which is all that remains.^ was possessed of fifty original shares, and seventj' purchased shares in a railway, calls upon which had not all been made, by his will gave thirty whole shares in such railway to trustees, for the benefit of a married woman for life, without power of anticipation, and thirty shares to B., and twenty-five original and five purchased shares having been allotted by the executors to each of the legatees, the testator's estate was liable to pay the calls upon the shares, and a sum to pay the unpaid calls was ordered to be placed to a separate account, and laid out, and the income meanwhile paid to those entitled to the general residue. This case is decided upon the authority of Blount v. Hipkins, 7 Simons, 43, 51, which, it is here said, " as it regards both sets of shares, cannot be substantially distinguished from Jacques v. Chambers." See also Duncuft v. Albrecht, 12 Simons, 189. But it is well settled, that courts of equity in England will not decree specific per- formance of a contract to sell public stocks, which may always be had in the market. Nulbrown v. Thornton, 10 Vesey, 159. " Jackson v. Cocker, 2 Eailw. C. 368 ; s. c. 4 Beavan, 89. 3 6 Geo. I. c. 18. * Columbine v. Chichester, 2 Phillips, C. C. 27. 6 Greenaway v. Adams, 12 Vesey, 395, 400 ; Varick v. Edwards, 1 1 Paige, 289. In the case of Miller v. The Illinois Central Rail. & Robert & Geo. Schuyler, 24 59 *o6 THE LAW OF RAILWAYS. [§40. SECTION IX. TRUSTBE ENTITLED TO INDEMNITY AGAINST FUTURE CALLS. 1. Trustee entitled to indemnity, on general principles. 2. English courts hesitated, in regard to rail- way shares. 3 and 4. Cases reviewed. 5. Mortgagees liable, as stockholders, for debts of the company. § 40. 1. It seems to be regarded as the general rule of chancery law, that the trustee of property is entitled to indemnity, for ex- penses bond fide incurred, in the management and preservation of the trust-fund, or estate, either out of the property, or as a per- sonal duty, from the cestui que trust, in most cases.' Barb. K. 312, it was held, that where the company, by their treasurer, gave a receipt to the Schuylers for $7,500, to be repaid -with interest on demand, or received in payment of ten dollars on a share of stock, to be issued to them or their assigns, when the directors shall authorize the issue of more stock, this only gave the holder of such receipt an option to take the shares, or the money, and that he could not claim to be a holder of stock, or to have any right thereto, until he had given notice of his election to take stock. And where the holder of this receipt had assigned it as collateral security to the plaintiff, with an agreement, that he should have 300 of the shares, but no notice of any interest of plaintiff had been given the company, and the company made a new issue, beyond what was necessary, and after the 7,500 shares had been issued to Robert Schuyler, and the 300 shares set apart by him for plaintiff, but the 300 shares were not transferred to plaintiff, till after the second new issue, nor had the plaintiff knowl- edge of it at the time he accepted the 300 shares. It was held that the plaintiff had no claim against the company to allot him the proportion of the new issue of shares, which the 300 shares were entitled to receive, they having no notice of his equitable ownership of the 300 shares. And that although certain information came to the president, while acting in some other capacity, that some contract had been made, by which the Schuylers were to transfer a portion of the stock to the plaintiff, yet as this was not given, or understood as notice to the company, or to him as president, it could not affect the company. And that the surrender of the receipt with certain indorsements, showing plaintiff's interest, after the resolution to issue the stock, fixing the mode of distribution, could not bind them to allot shares to the plaintiff upon the 300 shares. 1 Murray v. De Rottenham, 6 Johns. Ch. R. 52, 67 ; Green v. Winter, 1 Johns. Ch. R. 27; Watts v. Watts, 2 M'Cord, Ch. R. 82 ; Myers v. Myers, 2 M'Cord, Ch. R. 264 ; McMillan v. Scott, 1 Monroe, 151 ; Morton v. Barrett, 22 Maine, R. 257 ; Draper v. Gordon, 4 Sand. Ch. R. 210; Egbert v. Brooks, 3 Harring. 110; Methodist Episcopal Church v. Jacques, 1 Johns. Ch. R. 450 ; Story on Bail- ments, § 306, 306a, 357, 358. 60 § 40.] TRANSFER OF SHARES. * 57 2. We apprehend there is no good reason why this principle should not receive a general application to the case of shares in a railway company, held as security for a debt, by way of mort- gage or pledge. And it would seem, that no serious question could ever have arisen, upon the subject, but for the strange in- consistencies into which the English courts and judges have been led, by attempting, for so long a period; to maintain the doctrine, laid down, in Humble v. Langston,^ but which is now effectually overruled, in the tribunal of last resort.^ 3. But we shaU refer briefly to the decisions, upon this point, in regard to railway shares, and stock, in other similar companies. * It was held, by Wigram, vice-chancellor,* that where there was a contract, for retransfer, claimed by the mortgagor, or found, in express terms, in the contract of pledge, or mortgage, or inferable from circumstances, that this was sufficient ground for implying a contract, by the mortgagor, to indemnify the .mortgagee, against liability to the creditors of the company, for debts incurred, while his name remained upon the register of shares, as owner, and a decree was made accordingly. 4. The same learned judge, in the same case, considered, that where the mortgage was made simply, as an absolute transfer, subject to redemption, and nothing had passed, binding the mort- gagor to take a retransfer of the shares, the mortgagor was not bound to indemnify the mortgagee against debts incurred after the transfer made, in the mortgage, and before the mortgage debt was paid off. But it is here maintained, that the mortgagee has not, in such case any right, at law, against the mortgagor, as to payments, which he has been compelled to make, while he re- mained the ostensible owner of the shares, even where a contract for retransfer is shown. But a late English writer upon this sub- ject,^ seems to incline to the opinion that, in such case, an action 2 7M. & W. 517. 3 Walker v. Bartlett, 36 Eng. Law & Eq. R. 368. * Phene v. Gillan, 5 Hare, 1. In this case, it was held, that where the mort- gagor is entitled to claim a retransfer of shares, standing on the register of shares,, in the name of the mortgagee, the debt being paid off, he is entitled to take pro- ceedings to compel such retransfer on the books of the company, in the name of the mortfacee, giving the proper indemnity for costs. And either the company, or the directors, who have prevented the shares from being transferred, are proper parties to the bill, and, it would seem, necessary parties. 6 Hodges, 122. 6 61 •58 THE LAW OF KAILWAYS. [§ 40. of trespass on the case might be maintained, against the pur- chaser of shares, who fails to cause his name to be registered, as owner, or to indemnify the seller against liabilities after the sale. And the same principle will apply to the mortgagee, after the debt is paid. But all. these refinements must now, we think, be regarded as effectually abrogated, by the virtual abandonment, by the English courts, of the rule laid down in Humble v. Lang- ston, and the recognition of the contrary doctrine. 5. It has been held, in this country, that, where B. being in- debted, transferred shares to his creditor, as security, with the power of sale, and upon condition, that the shares should be returned, or accounted for, whenever the debt should be paid, the debt being paid off, and an informal power of retransfer * given the mortgagee, and subsequently a more formal one, the- mortgagees we^je to be regarded as stockholders, until the actual retransfer of the shares, and as such liable to the creditors of the company, under the charter.^ As the case of Humble v. Langston is not in terms overruled, although it is in principle, we think, we here insert the substance of the opinion of the court in Walker v. Bartlett, as showing the present state of the English law on the subject.'^ ^ Adderly v. Storm & Bailey, 6 Hill, 624. Branson, J., argues the liability of the mortgagees to the creditors of the company, while their names remained on the books of the company, as absolute shareholders, on the ground, that " they might receive dividends, vote at elections, and enjoy all the rights pertaining to the ownership of the property, and with the privileges they must take the bur- dens of a stockholder." A query is here started whether a retransfer to the mortgagor of the shares, upon the payment of the debt, might not release the mortgagee. " The assignment, as between the parties to it, would have passed the legal interest in the stock." But are the creditors of the company bound to look beyond the register of shares ? Rosevelt v. Brown, 1 Kernan, 148 ; Worrall V. Judson, 5 Barb. 210; Stanley v. Stanley, 13 Shepley, R. 191. In Adderly v. Storm, it is intimated, that a fraudulent transfer of stock by a solvent owner to an insolvent party, for the purpose of avoiding liability to the creditors of the company, might not avail the party even at law. 7 " The case of Wynne v. Price, 3 De G. & S. 310, shows that in equity the plaintiff would be entitled, under the circumstances of the present ca?e, to indem- nity ; but it was contended for the defendant, that however the case might be in equity, there was no contract for indemnity to be implied by law ; and the case of Humble v. Langston, 7 M. & W. 517, was relied upon as a direct authority against the plaintiff upon this point ; and the Court of Common Pleas, in the judgment appealed against, considered that it was bound by that decision, though it was intimated that but for that express decision their own judgment might 62 § 41.] TRANSFER OF SHARES. * 59-60 •SECTION X. PKAUDULENT PRACTICES TO RAISE THE PRICE OF SHARES. 1. Courts of equity will vacate sales^ so pro- cured. 2. Necessary parties. 3 and 4. Dividends declared when none are earned will vacate sales, and subject direc- tors to indictment. 5. Equity will not interfere where vendor acted bonS, fide, unless the shares were valueless. 6. Managers of company liable in tort to par- ty injured. § 41. 1. All fraudulent practices, either of the shareholders or directors, resorted to for the purpose of raising the price of shares have been different. It must be admitted that, in principle, ijo substantial differ- ence can be taken between that case and the present, except this — that in Hum- ble V. Langston, the plaintiff claimed to be indemnified by the defendant against all future calls, even though made after the defendant had himself transferred the shares to other persons ; and the Court of Exchequer at the end of the judgment observes, that if there were any analogy in principle between the case of Burnett v. Lynch and that before the court, the defendant's implied promise would only be to indemnify against such calls as should be .made while he was beneficially interested, whereas the plaintiff Humble claimed an indemnity against calls made after the defendant had parted with his interest. This, no doubt, is a very important distinction ; and though the Court of Exchequer ex- presses an opinion that there was no contract of indemnity at all, it adverts to the difference between a claim to indemnify during the time the defendant is beneficially interested, and a claim to be indemnified after he has ceased to be interested. The circumstances of the present case are, therefore, distinguishable from those in Humble v. Langston, and it consequently is not so direct an au- thority against the plaintiff's claim in the present case, as at first sight it might appear to be. * " It seems to us, therefore, that the circumstances of this case bring it directly within the principle upon which Burnett v. Lynch was decided. In the present case, the defendant entered into no express agreement to pay calls or indemnify, but he accepted the only transfer the plaintiff could give, and which invested him with full power to become the registered owner of the shares when he pleased. That transfer expressed that the transferree took them subject to the same rules as those under which the plaintiff held them, one of which was, that the registered owner should pay the calls. It could hardly have been the inten- tion of the parties, that if the defendant, for his own benefit, omitted to make a ■ perfect transfer, by registration in the company's books, the plaintiff should still continue to pay the calls ; and if that was not the intention, was it not under- stood between them that the defendant should save the plaintiff harmless from any calls made during the time when he was virtually owner of the shares ? " In Burnett v. Lynch, a lease had" been granted to Burnett, in which he cove- C3 60 * THE LAW OF RAILWAYS. [§ 41. in the market, where sales have been induced in faith of the truth of such representations, will be relieved against in a court of equity. 1 As where the directors of a joint-stock company, in order to sell their shares to advantage, represented in their re- ports, and by their agents, that the affairs of the company were in a very prosperous state, and. declared large dividends, at a time when the affairs of the company were greatly embarrassed. 2. A person who had been induced, by these means, to pur- chase shares of one of the directors; fil6d a bill against that director, praying to be paid his purchase-money and offering to retransfer the shares; a demurrer for want of equity, and be- cause all the other partners in the transaction ought to have been made parties, was overruled. But where a bill was filed against the public officer of a joint-stock bank, charging a simi- lar fraud, through the fraudulent representations of the directors, in their reports, as to the prosperous state of the company's affairs, and that the plaintiff had thereby been induced to pur- chase five hundred shares in the bank, and praying that the sale nanted to pay the rent and repair the premises ; his executors assigned the lease to Lynch, subject to the performance of the covenant, but without any express covenant or contract by him that he would pay the rent or perform the covenant. The executors were called upon by the landlord, and obliged to pay damages for not repairing, according to the covenant, during the time Lynch was assignee ; the executors brought an action on the case against Lynch founded on a breach of duty in not repairing. In giving judgment for the plaintiffs, Abbott, Ch. J., says, ' It is true, the defendant entered into no express covenant or contract that he would pay the rent or perform the covenants ; but he accepted the assignment subject to the performance of the covenants ; and we are to consider whether any action will lie against him. If we should hold that no action will lie against him, the consequence will follow, that a man having taken an estate from another, subject to the payment of rent and performance of covenants, and having thereby induced an undertaking in the other that he would pay the rent and perform the covenants, will be allowed to cast that burden upon the other person. Reason and common sense show that that never-could be intended.' He then goes on to say, that though an action on the case would lie, there might also be an action of assumpsit. " Wiih the distinction of circumstances to which we have already adverted between this case and that of Humble v. Langston, we think that the principle upon which the case of Burnett v. Lynch was decided, is directly applicable to the present case, and that the plaintiff is entitled to make the rule absolute to set aside the nonsuit, and enter a verdict upon the first count of the declaration, and so much of the pleas as may be applicable to that count." 1 Stainbank v. Fernley, 9 Simons, 556. • 64 § 41.] TRANSFER OF SHARES. * 61 might be declared void as between' him and the company, and that they might be decreed to repay the purchase-money, it was held, that as the litigation was between one member of the part- nership and the other members, the public officer was improperly made a party, as representing the company, and a demurrer was allowed.^ * 3. The declaring of dividends by the directors, where none have been earned, if done by them for the purpose of fictitiously enhancing the price of shares, for their own benefit, is regarded as such a fraud as wiU relieve a party who has purchased shares in faith of such facts, at prices greatly beyond their value,^ and the transfer of the shares will be set aside. 4. In this case,8 Lords Campbell and Brougham concurred in saying : " Dividends are supposed to be paid out of profits only, and where directors order a dividend to be paid, when no such profits have been made, without expressly saying so, a gross fraud is practised, and the directors are not only civilly liable to those whom they have deceived and injured, but are guilty of conspiracy, for which they are liable to be prosecuted and pun- ished." 5. Where both parties labored under the same delusion in regard to the value of stock, relief could not be granted, of course, on the ground of fraud in the sale, and a court of equity will not ordinarily interfere to set aside a sale, on the ground of mutual misapprehension as to the state and condition of the subject-matter, unless in extreme cases, as where that is sold as valuable which is wholly valueless, or does not exist.* To con- stitute a fraud in such cases, it is requisite, ordinarily, that the parties 'should have been upon unequal footing in regard to their means of access to the knowledge of the true state of the com- pany's funds and property, and that the party gaining the advan- 2 Seddon v. Connell, 10 Simons, 58. It was further held, in this case, (10 Si- mons, 79,) that it is not competent for the party in such case to file a bill against the company and some of the directors, praying, that if he is not entitled to relief against the company, he may have it against the directors, and that such a bill is demurrable, on the ground that the prayer for relief should be absolute, for relief against the directors, in order to maintain the bill against them. But it is not necessary to make all the parties to a fraud defendants in a bill for relief. 3 Burnes v. Pennell, 2 House of Lords Cases, 497.' 4 1 Story's Eq. Jur. § 142; Hitchcock «." Giddings, 4 Price, R. 135, 141 ; 2 Kent, Comm. 469. »9 65 62 * THE LAW OF KAILWAYS. [§ 42. tage in the bargain should, in some way, participate in giving currency to the false estimate of its condition, beyond the mere fact of repeating the report of the directors, where both parties have equal means of judging of its correctness. 6. It seems to be regarded as settled law, that in case of such false representations to raise the price of stocks, and damage thereby sustained, the suffering party may maintain an action of tort against the party making the false representation, although it were not made directly to such injured party, there being no necessity of any privity between the parties to support an action of tort, for a false representation. But, where the action is ex ' contractu or quasi ex contractu, some privity is indispensable to the maintenance of the action.^ SECTION XI. LIABILITY OF COMPANY FOE KOT KEGISTEEING TRANSFERS. 1 . The company liablS to action. 2. May be compelled to record transfers by mandamus. 3. But not compellable to record mortgages of shares. § 42. 1. It seems to be settled in England, that an action will lie against a joint-stock company, who neglect or refuse, upon proper request, to register shares and deliver new certificates, after the deed of transfer has been sent to the secretary. Dama- ges may be recovered it seems, by reason of such refusal of the company, whereby the party is deprived of the right to attend and vote, at the meetings of the company, and especially where calls are made upon the shares, and in consequence of nonpay- ment, the shares are declared forfeited and sold.^ 5 Gerhard v. Bates, 20 Eng. L. & Eq. R. 129. In this case the defendant was one of the promoters and managing directors of a joint-stock company, and, in offering the shares for sale, had guarantied a certain semi-annual dividend to all who should purchase, but without any other communication with the plaintiff per- sonally, but the plaintiff purchased upon the faith of such general guaranty or representation; and it was held that he could not maintain an action upon the guaranty, but that he might recover in tort, as for a fraudulent representation. Post, § 175, 187. ^ 1 Hodges on Eailways, 123; Catchpole v. Ambergate Railway Co. 1 Ellis & ? M r ; p 7 l'-^ ^^- ^- "'• ^'^ "'^° W'"^'"^°° "■ A°Sl° California Gold Co. 12 Eng. L. & Eq. R. 444. In regard to the right io sustain a writ of 66 § 42.] TRANSFER OF SHARES. * 63 *2. There can be no question probably, in this country, that where the company refuse, on reasonable request, to make the proper entry upon their books of the transfer of shares, whereby the owner is liable to be deprived of any legal right, or pecuniary advantage, the company may be compelled to do their duty, in the premises, by writ of mandamus. 3. But it has been held, that the company are not bound to register trust-deeds, or mortgages, and especially such as contain other property, or the stock of other companies. The mandamus was refused in such a case, in the Queen's Bench, so late as May, 1856, and upon the ground, as stated, by Lord Campbell, Ch. J., that " if the company were bound to register this deed, they must become the custodians of it, and must incur great responsibility, as to its safe custody, and that therefore conven- ience requires that they should only be bound to register mere transfers, passing the legal title, and showing who is the legal owner of the shares." ^ mandamus in England, to compel such transfer, upon the books of the company, see Rex v. Worcester Canal Co. 1 M. & R. 529 ; Regina v. Liverpool, Manches- ter, & Newcastle-upon-Tyne Railway Co. 11 Eng. L. & Eq. R. 408; Sargent v. Franklin Insurance Co. 8 Pick. 90. So also an action on the case will lie for not transferring stpck. The rule of damages, where the stock has been sold, as the property of the vendor, is the value of the shares, at the time of the refusal, 8 Pick. 90, or it has sometimes been held, the highest value, between the time of refusal and the commencement of the action. Kartright v. Bufifalo Commercial Bank, 20 Wend. 91 ; 8. c. 22 Wend. 348. And some cases extend it even to the time of trial. But see ante, § 36, 38. Where stock in a railway is purchased and registered in the name of a mar- ried woman, out of her earnings, she and her husband may sue jointly for divi- dends, and if she sue alone, it is only ground of abatement. Dalton v. Midland Railway Co. 20 Eng. L. & Eq. R. 273. Stock cannot be transferred so as to pass the title after the dissolution of the corporation, the shareholders being then only entitled to a share in the assets. James v. Woodruff, 2 Denio, 574. Where a company have registered a transfer, which is alleged to be a forgery, and are threatened with a suit from both the transferrer and the transferree, the court will not grant an interpleader. Dalton v. Midland Railway Co. 22 Eng. L. & Eq. R. 452. 2 Regina v. General Cemetery Co. 36 Eng. L. & Eq. R. 126. '61 THE LAW OF EAILWATS. [§ '^^■ 1 SECTION XII. WHEN CALLS BECOME PERFECTED. Calls are made when the sum is assessed, I 2. Directors the. proper authority to make notice may he given afterwards. I calls. § 43. 1. The English statute of 1845, called the Companies Clauses Consolidation Act, requires aU calls to be paid before any valid transfer can be made. Under this statute and similar provisions in special charters, it has often been made a question, when a call may be said to be made. It seems to be considered, that the word call, in this connection, may refer to the resolution ' of the directors, by wbich a certain sum is required to be paid to the company, by the shareholders,^ or secondly to the notice to the shareholders of the assessment, and the time and place at which they will be required to make payment, and the amount to be paid. But it seems finally to be settled, that the company are not obliged to regard any transfer, made after the resolution of the directors, making the assessment, which need not specify the time of payment, but that may be determined, by a subse- quent act of the board.^ 2. It seems the directors, and not the company, are the proper parties to make calls, under the English statutes. 3. This seems to have been decided upon the general ground • of the authority of the directors.^ 1 Ex parte Tooke, In re The Londonderry and Coleraine Railway (^o. 6 Railw. C. 1 (1849) ; North American Colonial Association of Ireland v. Bentley, 19 L. J. (Q. B.) 427 ; 15 Jur. 187. 2 Great North of England Railway Co. v. Biddulph, 2 Railw. C. 401 ; 7 M. & W. 243 \ Newry and Enniskillen Railway Co. jj. Edmonds, 5 Railw. C. 275 ; s. c. 2 Exch. 118, 122. Parke, B., in The Ambergate, &c. and Eastern Junction Rail- way Co. u.»Mitehell, 6 Railw. C. 235 ; s. c. 4 Exch. 540 ; Regina v. Londonderry & Coleraine Railway Co. 13 Q. B. 998. 3 Ambergate, N. & B. & Eastern Junction Railway Co. u. Mitchell, 4 Exch. 540. Pollock, Ch. B. " The next objection is, that the directors made these calls ; but they were competent to do so, as they may do all things, except such as are to be done by the shareholders at a general meeting ; and there is nothing in the act, which makes it necessary that the company should make calls at a general meeting." Parke, B. " The directors may exercise all the powers of the company except those which are to be exercised by the company at their general meeting, and the power of making calls is not such a power as is required to be so exercised." 68 § ^^'l TRANSFER OF SHARES. * 65 SECTION XIII. TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 1. Mandamus lies to compel the registry of successor. 3. In case of death, personal representative liable to calls. 4. Notice requisite to perfect the title of mort- gagee. 5. Slock in trust goes to new trustees. 6. Assignees of insolvents not liable for the debts of the company. § 44. 1. The title to shares in a railway is liable to transfer by the death, bankruptcy, or insolvency of the proprietor, or by " mar- riage of the female owner of such shares. In such case the English statute requires a declaration of the change of owner- ship, to be filed with the secretary of the company, and the name of the new owner is thereupon required to be entered upon the register of shareholders. A mandamus will lie to compel the clerk to make the proper entry in such case.^ 2. These incidents are so much controlled by local laws, in dif- ferent jurisdictions, that it would scarcely comport with our object to state more than the general principles affecting them. In most of the United States all property, (especially personal estate, as railway shares,) in the first instance, upon the decease of the proprietor, vests in his personal representative, in trust, first for the payment of debts, and afterwards for legatees, or in default of them, the heirs of such proprietor. 3. And so far as regards voting upon such shares, the title of the executor or administrator will ordinarily be sufficient. Before the name of the executor or administrator is entered upon the books of the company, as a shareholder, the estate only could be held liable for calls probably, and perhaps the same rule of liabil- ity would obtain after that.^ 4. In case of death or insolvency, the title of a mortgagee first ' Rex V. Worcester Canal Company, 1 M. & R. 529. s Fyler v. Fyler, 2 Railw. C. 873, 3 Beav. 550 ; Jacques v. Chambers, 4 Eailw. C. 499. But the administrator or other personal representative of a deceased shareholder, may, under the recent English statute, the Common-law Procedure maintain an action against the company for refusal to register his name, as suc- cessor, to the title to the shares, and after having recovered damage, he is entitled to a mandamus to compel the company t» register his name. He is also entitled to the prerogative writ of mandamus in such cases at common law. Norris v. The Irish Land Co. 30 Law Times, 132. 69 * 66 THE LAW OF EAILWAYS. [§ 45. notified to the company, will commonly have priority.^ Notice to the company is necessary to perfect the title of a mortgagee, in case of bankruptcy or insolvency.* 5. As to the title of the bankrupt, all shares standing upon the register of the company in his name, will be regarded as under his control, order, and disposition, and will, under the English statutes, go to the assignees.^ But stock in any incorporated company standing in the name of the bankrupt, as trustee, is to be transferred by the assignee to the name of new trustees, and a court of chancery will so order.^ 6. The assignees of an insolvent estate, a portion of whose assets consist of shares in a manufacturing corporation, are not * liable under special statutes, making shareholders liable for the debts of the corporation. That is a provision of positive law, and is to be construed strictly.'' SECTION XIV. LEGATEES OP SHARES. 1 . Entitled to election, interest, and newshares. 2. Shares owned at date of will pass, although converted into consolidated stocks 3. Consolidated stock subsequently acquired will notpass. § 45. 1. Legatees of railway shares have the election out of which class of shares their legacy shall be paid, when there is more than one class of the same description found in the will. And they are entitled to the income of the shares, after the death of the testator, and to receive any advantage, by way of new shares resulting from the ownership of the shares.' •2. A bequest of the testator's railway shares, of which he should be possessed at his decease, was held to pass such rail- way shares specifically named in the will, as the testator had at the date of his will, although subsequently converted into con- 3 Gumming v. Prescott, 2 Yo. & Coll. Eq. Exch. 488. * But where all parties are partners, notice will sometimes be implied. Ex parte Waitman, 2 Mont. & Ayr. 364 ; Duncan v. Chamberlayne, U Simons, 123 ; Ettey V. Bridges, 2 Yo. & Coll. 486. 5 Shelford, 118-121. 6 Ex parte Walker, 19 Law J. Bank. 3. 7 Gray v. Coffin, 9 Cush. R. 192. 1 Jacques v. Chambers, 4 Railw. C. 205 ; Tanner v. Tanner, 5 Railw. C. 184. 70 § 46.] TRANSFER OF SHARES. * 67 solidated stock of the same company, by a resolution of the company. 3. But that other consolidated stock of the same company, owned by testator at his decease, did not pass under the will, the same having been purchased after the execution of his will. ^ SECTION XV. SHAKES IN TRUST. 1 and 2. Company may safely deal with reg- 1 3. But equity will protect the rights o/'cestuis istered owner. | que trust. §46. 1. By the English statute, railway companies are not bound to see to the execution of trusts in the disbursement of •their dividends, but are at liberty to treat the person in whose name the shares are registered as the absolute owner. It would seem that in case of the bankruptcy of a shareholder in a joint- stock company, a court of equity will sometimes protect trust funds, although registered in the name of the bankrupt, both from the claim of the assignee and the company, who have made advances to the nominal owner, upon the faith of his be- ing the true owner, but without any pledge of the stock.^ 2. In general, in this country, it is believed railway companies will be protected in dealing bond fide with the person in whose name shares are registered on the books of the company, as the absolute owner, notwithstanding any knowledge they may have of the equitable interest of third parties. 2 Oakes V. Oakes, 9 Hare, 666. 1 Pinkett v. Wright, 2 Hare, 120. This is a very elaborate opinion of the learned Vice-Chancellor Wigram, upon the subject of protecting the- interest of cestuis que trust in the stock of a banking company, standing in the name of a trustee who had become bankrupt. The trustee was also the proprietor of shares in his own right, all standing in his name, without any thing on the books of the company to distinguish which were trust funds. It was held that the trustee must be presumed to have pledged such stock as belonged to himself, and not that of his cestuis que trust, and that shares, which stood in the name of the trustee at the time of the bankruptcy, and thencefor- ward remained in his name, might fairly be presumed to be identical with those in which the trust funds were invested, the number of shares being the same. Notice to the company is indispensable to create an equitable mortgage of rail- way shares. Ex parte Boulton v. Skelehley, 29 Law Times, 71. 71 * 68 THE LAW OF RAILWAYS. -[§ 47. 3. But there can be no question, a court of equity will always protect the interest of a cestui que trust, when it can be done without the violation of prior or superior equities, which have bond fide attached. * CHAPTER IX. ASSESSMENTS OR CALLS.' SECTION I. PARTY LIABLE FOB CALLS. 1. The party upon the register tiaUefor calls. I 3. Cestuis que trust not liable for calls in 2. Bankrupts remain liable for calls. | law or equity. § 47. 1. It seems to be settled law, that the registered owner of railway shares is liable for all calls thereon, so long as his name remains upon the register.^ The effect of the transfer of railway scrip is only to convey an equitable interest in the shares, with the right to have the shares formally assigned to him, and his name entered upon the register as a shareholder.^ 2. In case of bankruptcy, the bankrupt remains liable for all calls, unless the names of the assignees are registered on the books of the company, as this is not regarded, as a debt payable in future, and which may be proved under the commission.^ 1 Midland Great "Western Railw. Co. v. Gordon, 5 Railw. C. 76 ; s. c. 16 M. & W. 804 ; Mangles v. Grand Collier Dock Co. 2 Railw. C. 359 ; Sayles v. Blane, 6 Railw. C. 79 ; West Cornwall R. v. Mo watt, 15 Q. B. 521. In this case it was said, even if the transaction, by which the title to the stock and the registry of defendant's name were made, were illegal, it could not avail him in an action for calls. Seejoosf, § 236. Long Island R. Co. 19 Wend. 37 ; Mann v. Currie, 2 Barb. 294 ; Hartford & N. H. R. V. Boorman, 12 Conn. 530 ; Mann v. Cooke, 20 Conn. R. 178 ; Rosevelt V. Brown, 1 Kernan, 148. The registry-book of shareholders is prima fade evi- dence of the liability of those, whose names appear upon it, to calls, although irregularly kept. Birmingham R. v. Locke, 1 Q. B. 256 ; London Grand J. R. V. Freeman, 2 Man. & Gr. 606 ; Same v. Graham, 1 Q. B. 271 ; Aylesbury R. V. Thompson, 2 Railw. C. 668. This last case holds that the purchaser of shares is only liable for calls made after his name is upon the register. 2 South Staffordshire R. u. Burnside, 2 Eng. L. & Eq. R. 418; s. c. 5 Exch. 129; 6 Railw. C. 611. 72 §48.] ASSESSMENTS OE CALLS. * 69 * 3. The trustee of shares, whose name appears upon the books of the company, is alone liable for calls, and the company have no remedy in equity for calls against the cestui que trust? SECTION II. COLORABLE SUBSCRIPTIONS. 1. Colorable subscriptions valid. I 3. Oral evidence to vary the written subscrip- 2. Directors may be compelled to register them, i tion inadmissible. § 48. 1. Equity will not restrain a railway company from en- forcing calls, by action at law, upon the ground that one of the conditions of the charter, requiring a certain amount of subscrip- tions of stock, before the incorporation took effect, had not been complied with, but that a fraud upon the provision had been practised, by means of colorable subscriptions. The Court of Chancery regards colorable subscriptions, made in the course of getting a bill through the House of Lords, (to comply with one of the standing rules of that house, requiring three fourths of the requisite outlay to be subscribed, before the bill passes,) to be binding upon the directors and managers, who make the same, and that they are in fact valid and binding subscriptions, although such subscriptions were made with the purpose of being subse- quently cancelled, and had never been registered upon the books of the company, orany calls made upon them. 2. It is in the proper range of the powers of a court of equity, to compel the directors to register such shares and enforce the payment of calls upon them.' 3 The Newry, W. &'K. R. u. Moss, 4 Eng. L. & Eq. R. 84 ; s. c. 14 Beavan, 64. But where in winding up the affairs of a company the name of one of the members, who had obtained his certificate since the expenses were incurred, was placed among the contributories, it was held he was not liable. Chappie's case, 17 Eng. L. & Eq. R. 516 ; s. c. 5 De Gex & S. 400. 1 Preston v. Grand Collier Dock Co. 2 Railw. C. 335 ; Mangles v. The Same, id. 359. The principle of these cases is very distinctly recognized in the case of Blodgett V. Morrill, 20 Vt. R. 509, and it lies at the foundation of all fair dealing, that one is bound by his own representations, upon which he had purposely in- duced others to act, although, at the time, he did not intend to be himself bound by them, but expected, through favor, to be relieved from their performance. See also Henry v. Vermilion R. Co. 17 Ohio, 187. But if one obtain shares in a distribution by commissioners, by fraud, he may be compelled, in equity, to sur- 7 73 *70 THE LAW OF RAILWAYS. [§48, * 3. Oral evidence is inadmissible to vary the terms of a sub- scription to the stock of a railway unless it tend to show fraud or mistake.2 g^t where the subscriber is really misled, and induced to subscribe for stock, upon the representation of a state of facts, in regard to the time of completing the road, or its location made by those who take up the subscription, and in good faith, and upon proper inquiry, and the exercise of reasonable discretion, believed render them to other suhscriberg, to -whom they would have been awarded, but for such fraud. Walker v. Devereaux, 4 Paige, 229. A subscription to the stock of a railway made in the common form upon the books of the company, the subscriber at the time of subscription taking the follow- ing writing, signed by the clerk of the company, by order of the directors : — " In consideration that Ebenezer E. will subscribe for thirty shares in the White Mountains Railway, said company agree to release him from twenty-five of said shares, or such portion of said twenty-five shares, as he may within one year elect to withdraw from his subscription, and if he has been assessed, and has paid any thing on said shares, that he elects to be released from, that these payments shall be allowed him, on the shares that he retains, and that the treasurer shall regulate his slock accounts and assessments accordingly," is a valid subscription for the thirty shares, it having been understood, at the time of making the sub- scription, between the subscriber and the directors, that the same was to be held out to the public, as a bond Jide subscription for the thirty shares, and no disclo- • sure made of the writing, given to the subscriber. It was held, that the agreement to release the subscriber, was a fraud upon other subscribers, and void, and the subscription may be enforced. White Moun- tains Railw. V. Eastman, 34 New H. R. 124. See also Conn. & Pass. Kiver R. v. Bailey, 24 Vt. R. 465 ; Mann v. Pentz, 2 Sand. Ch. 257; Penobscot & Kennebec R. v. Dunn, 39 Maine, R. 601. 2 Wight V. Shelby Railw. 16 B. Monroe, 5 , Blodgett v. Morrill, 20 Vt. R. 509 ; Kennebec & Portland R. v. Waters, 34 Maine R. 369. But mere mistake, or misapprehension of the facts, by the subscriber, is no ground of relief, unless it amount to fraud and imposition, brought about by some agent of the company. Hence where one subscribed for shares in a railway, under the mistaken belief that he might forfeit his stock at will, and be no further liable, he was held liable, notwithstanding this belief was the result of assurances made, by the person taking the subscription, at the time of its being made, that such were the terms of sub- scription secured by the charter, such assurances being founded in mistake, and not wilfully false. Railroad Company v. Roderigues, 10 Rich. (S. C.) R. 278; N. C. Railw. V. Leach, 4 Jones Law R. 340. It is here said, that one of the commissioners, in taking subscriptions to the |tock of a railway company, has no right to give any assurances as to the line-of location which will be adopted. And if the location is different from that prolided in the charter of the company, the party may lose the right to object to paying his subscriptions, on that ground, unless he resort to mandamus or injunction, at the earliest convenient time. Booker, ex parte, 18 Ark. 338. 74 §49.] ASSESSMENTS OR CALLS. *T1 by the subscriber, and which constitutes the prevailing motive and consideration for the subscription, and which proves false, it would seem that the contract of subscription should be held void, both in law and equity.^ SECTION III. MODE OF ENFORCING PAYMENT. 1 . Subscription to indefinite stock, raises no implied promise to pay the amount as- 2. If shares are definite, subscription implies a promise to pay assessments. Right of forfeiture a cumulative remedy. 3. Whether issuing new stock will bar a suit against subscriber, quoere. 4. It would seem not. 5. But the requirements of the charter and general laws of the State, must be strictly pursued in declaring forfeiture of stock. § 49. 1. The company may resort to all the modes of enforc- ing payment of calls which are given them by their charter, or the general laws of the state, unless these remedies are given in the alternative. But the principal conflict in the cases seems to arise upon the point of maintaining a distinct action at law for the amount assessed. Many of the early turnpike and manu- facturing companies, in this country, did not create any definite, or distinct * capital stock, to consist of shares of a definite amount, in currency, but only constituted the subscribers a body corporate, leaving them to raise their capital stock, in any mode which their by-laws should prescribe. And in some such cases, the charter, or general laws of the state, gave .the company power to assess the subscribers according to the number of shares, held by each. But the amount of the shares was not limited. The assessments might be extended indefinitely, according to the necessities of the company. In such cases, where the only remedy given, by the deed of subscription, the charter and by-laws, or the general laws of the state, was a forfeiture of the shares, the courts gen- erally held, that the subscriber was not liable to an action in personam for the amount of calls.^ And this seems to us alto- 3 Henderson v. Railway Company, 1 7 Texas R. 560. 1 Franklin Glass Co. o. White, 14 Mass. R. 286 ; Andover Turnpike Co. v. Gould, 6 Mass. R. 40 ; Same v. Hay, 7 id. 102 ; New Bedford Turnpike Co. i;. Adams, 8 id. 138; 3 Fairfield, 388; 2 New Hamp. R. 380. But where there was an express promise to pay assessments, or facts from which such an under- taking was inferable, it was always held, even in this class of cases, that an action 75 * 72 THE LAW OF KAILWATS. [§ 49. gether reasonable and just. For if a subscription to an indefi- nite stock created a personal obligation to pay all assessments made by the company upon such stock, it would be equivalent to a personal liability of the stockholders for the debts and liabil- ities of the company ; as we shall see, hereafter, that the directors of a corporation may be compelled, by writ of mandamus, to make calls upon the stock, for the purpose of paying the debts of the company.^ 2. But where the stock of the company is defined in their char- ter, and is divided into shares of a definite amount in money, a subscription for shares is justly regarded as equivalent to a prom- ise to pay caUs, as they shall be legally made, to the amount of the shares. This may now be regarded as settled, both in this country and in England, and that the power, given the company to forfeit and sell the shares, in cases where the shareholders fail to ' pay calls, is not an exclusive, but a cumulative remedy, unless the charter, or general laws of the state, provide that no other remedy shall be resorted to by the company.^ will lie. Taunton & South Boston Turnpike Co. v. Whiting, 10 Mass. R. 327 ; Ban- gor Bridge Co. v. MoMahon, 1 Fairfield, 478. But a subscriber to the stock of a turnpike company, who promised to pay assessments, when afterwards the course of the road was altered by law, was held thereby exonerated. Middlesex Turn- pike Co. V. Swann, 10 Mass. R. 384. The citation of cases to these points, might be increased indefinitely, but it is deemed useless, as these propositions have never been questioned. 5 Mass. 80. The following cases will be found to confirm the cases cited above. Chester Glass Co. u. Dewey, 16 Mass. E. 94; Newburjport Bridge Co. v. Story, 6 Pick. 45 ; Salem Mill-Dam Co. v. Ropes, 6 Pick. 23 ; Ripley v. Sampson, 10 id. 371 ; Cutler V. Middlesex Factory Co. 14 id. 483. 2 Post, § 50. 3 Hartford & New Haven Railway Co. v. Kennedy, 12 Conn. 499. In this case it was held, that from the relation of stockholder and company thus created, a, promise was implied to pay instalments, that the clause authorizing a sale of the stock was merely cumulative ; and that whether the company resorted to it, or not, the personal remedy against the stockholder remained the same. The same points are confirmed by the same court, in Mann v. Cooke, 20 Conn. 178. And in Danbury Railw. Co. v. Wilson, 22 Conn. 435, the defendant was held liable for calls upon a subscription to the stock of a company whose charter had expired, and been revived, by the active agency of defendant. All the cases, with slight exceptions, hold, that where the subscription is of such a character as to give a personal remedy against the subscriber, in the absence of all other specific redress, the mere fact that the company have thfe power to forfeit the shares for non-payment of calls, will not defeat the right to enforce the pay- 76 § 49.] ' ASSESSMENTS OR CALLS. " * 73 *3. The question in the English cases seems to be, whether after the forfeiture of the shares, and a confirmation of the same by the company, and the issuing of new stock in lieu of the for- meht of calls by action. Goshen Turnpike Co. v. Hurtin, 9 Johns. 217 ; Dutchess Cotton Manufacturing Co. v. Davis, 14 Johns. 238 ; Troy T. Co. u.McChesney, 21 Wend. 296 ; Northern R.u. Miller, 10 Barb. 260 ; Plank Road Co. v. Payne, 17 Barb. 567. In this last case it was held to be matter of intention and construction, whether the remedies were concurrent and cumulative, or in the alternative. And in Troy and Boston E. v. Tibbitts, 18 Barb. 297, it is said to be well settled, that the obligation of actual payment is created, by a subscription to a capital stock, unless plainly excluded by the terms of the subscription, and that the forfeiture is a cumulative remedy. Ogdensburg R. & C. Railway v. Frost, 21 Barb. 541. See also Herkimer M. & H. Co. v. Small, 21 Wend. 273 ; 2 Hill, 127; Sagory v. Du- bois, 3 Sand. Ch. R. 466 ; Mann v. Currie, 2 Barb. 294 ; Mann v. Pentz, 2 Sand. Ch. R. 273 ; Ward v. Griswoldville Manuf Co. 16 Conn. 593; Lexington & West Cambridge R. v. Chandler, 13 Met. 311 ; Klein v. Alton & Sangamon R. 13 Illi- nois, 514 ; Ryder v. Same, id. 516 ; Gayle v. Cahawba R. 8 Ala. R. 586 ; Beene v. Cahawba & M. R. 3 id. 660 ; Spear v. Crawford, 14 Wend. 20 ; Palmer v. Law- rence, 3 Sand. Sup. Ct. R. 161, where Duer, J., says the law must now be consid- ered as settled, " that the obligation of actual payment is created in all cases, by a subscription to a capital stock, unless the terms of a subscription are such as plainly to exclude it." Elysville v. O'Kisco, 5 Miller, 152; Greenville & Colum- bia R. V. Smith, 6 Rich. 91 ; 3 Strob. 245 ; Banet v. Alton & Sangamon R. 13 Illinois R. 504, 514 ; Hightower v. Thornton, 8 Georgia R. 486 ; Freeman v. Win- chester, 10 Sm. & M. 577; Tar River Nav. Co. v. Neal, 3 Hawks, 520; Gratz p. Redd, 5 B. Mon. 103 ; Selina R. v. Tipston, 5 Ala. 787 ; Troy & B. R. v. Kerr, 17 Barb. 581. Where the statute gives an election to the company either to for- feit the shares for non-payment of calls, or to sue and collect the amount of the shareholder, it was held that no notice of such election was necessary to be given before suit brought. New Albany & Salem R. v. Pickens, 5 Ind. 248. The terms of the charter must be pursued where they provide specifically for the redress for non-payment of calls. As if the shareholder is made liable only for deficiency after forfeiture and sale of the stock. Gray v. Turnpike Co. 5 Rand. 578 ; Essex Bridge Co. v. Tuttle, 2 Verm. R. 393. But some of the American cases seem to hold, that a corporation has no power to enforce the payment of calls, against a subscriber for stock, unless upon an express promise, or some express statutory power, and that a subscription for the stock is not equivalent to an express prom- ise to pay calls thereon to the amount of the shares. Kennebec & Portland R. v. Kendall, 31 Maine, 470. But this class of cases is not numerous, and is, we think, unsound. See also Allen v. Montgomery R. 11 Ala. 437. It has been held, that after the forfeiture is declared, the company cannot longer hold the subscriber liable. Small v. Herkimer M. & H- Co. 2 Comst. 380. So if the company omit to exercise their power of forfeiture, as the successive defaults occur, until all the calls are made, it thereby loses its remedy by sale. Stokes u. The Lebanon & Sparta Turnpike Co. 6 Humph. 241. See also Hariaem Canal Co. v. Siexas, 2 Hali, 504 ; Delaware Canal Co. v. Sansom, 1 Binney, 70. 7« 77 * 74 ' THE LAW OP RAILWAYS. " [§ 49. feited shares, the subscriber is still liable for any deficiency. The cases all regard him, as liable, under the English statutes, to a personal action, until the confirmation of the forfeiture of his stock.* *4. But in a late case, in the House of Lords,^ it seems to have The fact that the commissioners have by the charter an option to reject sub- scriptions for stock, does not malse them less binding, unless they are so rejected. Connecticut & Passumpsic R. R. v. Bailey, 24 Verm. R. 465. An agreement made at the time of subscription inconsistent with its terms, and resting in oral evidence merely, cannot be received to defeat the subscription. 24 Verm. E. 465, s. o. In a late case in Kentucky this subject is very elaborately discussed by the counsel, and, as it seems to us, very vi'isely and very justly disposed of by the court. McMillan v. Maysville & Lexington Railway Co. 15 B. Monroe, 218. It was there held, that subscriptions to the stock of a railway company, like other contracts, should receive such construction, as will carry into effect the probable intention of the parties. That the stock subscribed was to be the means, by which the road should be constructed, and hence, that a subscription for stock, on con- dition that the road should be so " located and constructed as to make the town of Carlisle a point," imposed upon the subscribers the duty to pay, upon the loca- tion of the road in that place, and that the construction of the road was not a condition precedent to the right to recover for calls on the stock. See also New Hampshire Central R. v. Johnson, 10 Foster, R. 390 ; South Bay Meadow Dam Co. V. Gray, 30 Maine R. 547 ; Greenville & Columbia R. u. Cathcart, 4 Rich. 89 ; Danbury & Norwalk R. v. Wilson, 22 Conn. R. 435. An agreement to take and fill shares in a railway company, is an agreement to pay the assessments legally made. Bangor Bridge Co. ». McMahon, 10 Maine R. 478 ; Buckfield Br. R. «. Irish, 39 id. 44 ; P. & K. R. v. Dunn, id. 587 ; Penobscot R. v. Dummer, 40 Maine R. 172 ; White Mountains Railw. v. Eastman, 34 N. H. R. 124. * Great Northern R. v. Kennedy, 4 Exch. R. 417. So the allottees of shares in a projected railway company are made liable for a proportionate share of the expense. UpfiU's case, 1 Eng. R. 13 ; 7 id. 28 ; London & B. R. v. Fairclough, 2 Man. & Gr. 674 ; Edinburgh L. & N. H. R. „. Hibblewhite, 2 Railw. C. 237; Birmingham, Burton & Th. J. R. v. Locke, 2. Railw. C. 867 ; Railway Co. v. Graham, 1 Ad. & Ellis (n. s.) 271 ; Huddersfield Canal Co. v. Buckley, 7 T. E. 86. It has been held, that a shareholder cannot absolve himself from calls, by paying the directors a sum of money for his discharge, even though the money be accepted, and the shares transferred. Bennett, ex parte, 27 Eng. L. & Eq. R. 572. See also § 4, pojji, Appendix A. 5 i„giis Great Northern R. 16 Eng. L. & Eq. R. 55. See also Peoria & Oquaka R. v. Ettmg, 17 111. R. 429 ; Cross v. Mill Co. 17 111 R 54 But where the deed of settlement gave the right to forfeit the shares, at once, or to enforce the payment, if they should think fit, it was held, that a judgment for the amount due is a bar to any subsequent forfeiture. Giles v. Hutt, 3 Exch. R 18. And where the charter of the company provided, that the shares of a delinquent shareholder, "shall be liable to forfeiture, and the company may § 49.] ASSESSMENTS OK CALLS. * 74 been settled, upon great consideration, that wh^re the charter or general statutes, give the right to forfeit the shares, or to coUect the amount of the shareholder, and the forfeiture, sale, and can- cellation of the shares, does not produce the requisite amount, the company may issue new shares for the deficiency, and at the same time maintain an action for it, against the former owner. 5. It seems to be well settled, that to entitle the company to sue for calls, the provisions of their charter, and of the general laws of the state, must be strictly pursued. And if the shares have been forfeited and sold without pursuing all the require- ments, in such case provided, no action will lie to recover the balance of the subscription.^ And if the shares be sold for the non-payment of several assessments, one of which" is illegal, the corporation cannot recover the remainder of the subscrip- tion.'^ But where the by-laws of the company prescribe a spe- cific mode of notice to the delinquent, of the time and place of sale, through the mail, this is not to be regarded as exclusive, but other notice, which reaches the party, in time will be suffi- cient.^ declare the same forfeited and vested in the company," it was held the option, in declaring such forfeiture, was in the company, and not in the shareholders. Kailway Company v. Roderigues, 10 Rich. (S. C.) R. 278. 6 Portland, Saco, & Portsmouth Railw. v. Graham, 11 Met. 1. '' Stoneham Branch R. Co. v. Gould, 2 Gray, 277. 8 Lexington & West Cambridge Railw. v. Chandler, 13 Met. 311. And where the charter required notice of the instalment three weeks prior to the same be- coming due, it was held prima fade evidence of compliance by producing the publication, and oral evidence of its being repeated the requisite number of times, without producing all the papers. Unthank u. Henry County Turnp. Co. 6 Porter, (Ind.) R. 125. 79 75 THE LAW OF RAILWAYS. [§ SO- * SECTION IV- CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. 1. Company compelled to collect of subscribers by mandamus. 2, 3, and 4. Amount due from subscribers, a ■ trustfundfor the benefit of creditors. 5. If a state own the stock it will be the same- 6 and 7. A diversion of the funds from credi- tors is a violation of contract on the part of the company, and a state law author- izing it invalid. 8 and 9. The general doctrine above stated found in many American cases. 10. Judgment creditors may bring biU in equity. 11. Promoters of railways liable, as partners, for expenses of procuring charter. § 50. 1. By the present English statute, the creditors of a company may recover their judgment debts, against shareholders, who have not paid the full amount of their shares to the extent of the deficiency.' Before this statute, it was considered, that a writ of mandamus would lie, to compel the company to make and enforce calls, against delinqueiits.^ 2. In this country this question has arisen, not unfrequently, in the case of insolvent companies, no such provision existing, in most of the states, as that of the English statute, just referred to. 3. This subject is very extensively examined, and considered, by the national tribunal of last resort, in a case of much impor- tance and delicacy,^ and the following results arrived at : — 4. On the dissolution of a corporation, its effects are a trust- fund, for the payment of its creditors, who may follow them, into the hands of any one, not a bond fide creditor, or purchaser without notice ; and a state law, which deprives creditors of this right, and appropriates the property to other uses, impairs the obligation of their contracts, and is invalid. 5. The fact, that a state is the sole owner of the stock, in a banking corporation, does not affect the rights of the creditors. 6. The capital stock of a company, is a fund, set apart, by its 1 8 & 9 Vict. c. 16, § 36, 37. 2 Walford, 277 ; Hodges, 106, n. («) ; Reg. v. Victoria Park. Co. 1 Q. B. B. 288, -where the opinion of the court very clearly intimates, that the writ of man- damus will lie, to compel the company to enforce the payment of calls, where it appears, that judgments against the company remain unsatisfied, for want of as- sets. But, under the circumstances of this case, it was not deemed requisite to issue the writ. 3 Curran v. State of Arkansas, 15 How. E. 304. 80 § 50.] ASSESSMENTS OE CALLS. ' * 76 charter, for the payment of its debts, which amounts to a con- tract * with those who shall become its creditors, that the fund shall not be withdrawn, and appropriated to the use of the owner, or owners, of the capital stock. 7. A law, which deprives creditors of a corporation, of aU legal remedy against its property, impairs the obligation of its con- tracts, and is invalid. 8. These propositions, with the exception of the constitutional question, in regard to the impairing of an assumed, or implied contract, with the creditors of the corporation, are all fully sus- tained, by numerous decisions, of the highest authority, in this country. 9. Thus in a case before Mr. Justice Story, in the Circuit Court,* it was held, that the capital stock of a corporation is a trust-fund, for the payment of its debts, and being so, it may, upon general principles of equity law, be followed into other hands, so long as it can be traced, unless the holder show a par- amount title.^ And in cases where the capital stock or assets of a corporation have been distributed to the stockholders, with- out providing for the payment of its debts, a court of equity will allow the creditors to sustain a bill, against the shareholders, to compel contribution to the payment of the debts of the company, to the extent of funds obtained by them, whether directly from the company, or through some substitution of useless securities, for those which were good.^ * Wood i;. Dummer, 3 Mason, 308. 5 Adair v. Shaw, 1 Sch. & L. 243, 261. 6 Nathan v. Whitlock, 9 Paige, 152 ; s. c. 3d Edwards's Ch. R. 215. But it has been held, that the distribution of the capital stock among the shareholders, be- fore the debts of the company are paid, and leaving no funds for that purpose, will not render the shareholders liable to an action of tort, at the suit of the creditors of the company, there being no such privity, as will lay the foundation of an action, at law, even in states where no court of chancery existed. Vose V. Grant, 15 Mass. 505. In equity the suit may be in the name of the receiver, 9 Paiire, 152, or in the name of a creditor, suing on behalf of himself and others, standing in the same relation. Mann v. Pentz, 3 Comst. 415, 422. And all the shareholders, who have not paid their subscriptions, should be made parties to the bill, and compelled to contribute proportionally. lb. The same principle is recognized in numerous other cases. Mumma v. The Potomac Co. 8 Pet. R. 281 ; Wright v. Petrie, 1 Sm. & M. Ch. R. 319 ; Nevitt v. Bank of Port Gibson, 6 Sm. & M. 513 ; Hightower v. Thornton, 8 Georgia R. 486 ; Fort Edward, &c. Plank Road Co. v. Payne, 1 7 Barb. 567; Gillett v. Moody, 81 77" THE LAW OF RAILWAYS. [§51. *10. "Where a corporation have abandoned all proceedings under their charter, from insolvency, and still owe debts, the sub- scriptions to the capital stock not being all paid, a judgment creditor may proceed, in equity, against the delinquent share- owners, there being no longer any mode, by which calls upon the stock may be enforced, under the provisions of the charter, or by action at law, in favor of the company.^ 11. It is held under the English statutes, in regard to fully registered companies, which never go into full operation, but have to be closed under the winding-up acts, that a shareholder, who has paid up the full amount of his shares, is still liable to pay the necessary calls, to defray the expenses of winding up the company, the subscribers to such joint-stock companies, under the statute, being held liable to the same extent as part- ners.^ SECTION V. CONDITIONS PEBCEDBNT TO MAKING CALLS. 1. Conditions precedent must be performed before calls. 2. But collateral, or subsequent conditions not. 3. Definite capital must all be subscribed be- fore calls. 4. It is the same where defined by the com- pany, as in the charter. 5. Conditional subscriptions not to be reck- oned, 6. Legislature cannot repeal conditions prece- dent. § 51. 1. Conditions precedent must be complied with, before any binding calls can be made. Any thing, which, by the ex- press provisions of the charter, or the general laws of the state, is made a condition to be performed on the part of the company, 3 Comst. 479. This case is where the bank, of which the plaintiff was receiver, had transferred specie funds to defendant, in exchange for his own stock in the bank. The transaction was held illegal, and the defendant was compelled to refund, for the benefit of the creditors of the bank. See also Morgan i>. New York & Albany R. 10 Paige, 290. 7 Henry v. The Vermilion & Ashland Railw. 17 Ohio R. 187. See also 11 Ohio R. 27S ; 13 Ohio R. 197. And where the company retains its organization, and officers, it may be compelled by writ of mandamus, to enforce calls against the shareholders, to the extent of their liability, as well as to perform other duties. Commonwealth v. Mayor of Lancaster, 5 Watts, 152. 8 Matter of the Sea, Fire, and Life Assurance Society, 23 Eng. L. & Eq. R. 422. ' 82 §51.] ASSESSMENTS OR CALLS. * 78 or its agents, before, and as the foundation of, the right to make calls, upon the subscriptions to the stock ; or where the thing is required to be done, before calls shall be made, and is an impor- tant element in the consideration of the agreement to take stock in the * company, it should ordinarily be regarded as a condition precedent. 2. But where the matter to be done, is rather incidental to the main design, and only affects the enterprise collaterally, it wiU commonly be regarded as merely directory to the company, or at most as a concurrent or subsequent condition, to be enforced, by independent proceedings, and in the performance of which time is not indispensable.' 1 Carlisle v. Cahawba & Marion Railway Co. 4 Ala. 70; ante, § 18; Banet v. Alton & Sangamon Railway Co. 13 111. 504 ; Utica & Schenectady Railway Co. u. Brinkerhoff, 21 Wend.. 139. This last case is an action upon a special undertak- ing to pay land damages, on condition the company would locate their road so as to terminate at a particular place, which the company alleged they had done, and defendant was held not liable, for want of raut&ality, the company not being bound by the contract. Cooke v. Oxley, 3 T. R. 653. But it admits of some question, we think, whether the case of 21 Wend. 139, comes fairly within the principle upon which it was decided. The case of Cooke v. Oxley, which has been sometimes questioned, is an obvious case of want of consideration on the part of defendant, it being a mere naked refusal of goods, for a fixed time, the plaintiff in the mean time having an election, to take them or not. This class of cases is numerous and sound, resting upon the mere want of consideration. Bur- net V. M. Biscoe, 4 Johns. R. 235. But where such an option is given upon con- sideration, or as a standing offer, and in the mean time the other party proceeds to perform the contract on his part, it is as binding in this form as in any other. And it was so held, in the case of the Cumberland Valley Railway Co. v. Baab, 9 Watts, 458. In this case the inhabitants of one portion of Harrisburgh made a subscription to induce the company to cross the river at a particular point, and to build their depot upon a particular street, which being done, the subscribers were held liable to pay their subscriptions to the company, and, as we think, upon the most obvious and satisfactory grounds. In Henderson & Nashville Railway Co. v. Leavell, 16 B. Monr. 358, it was held, that a subscription to the stock of a railway, conditioned that the road should pass throuirh a certain town, and the money subscribed should be expended in a certain county, was a valid subscription. The Court, Stimpson, J., say : " The stock in this case is not conditional, although the defendant has, in the act of sub- scribing for it, brought the company under certain obligations to him, in relation to it wit^i which they are bound to comply. Such stipulations are not incom- patible with sound policy, or with any of the provisions of the charter. They do not render the subscriptions void, but operate, as it was intended they should, for the benefit of the stockholder. But even if the subscription had been made, 83 79* THE LAW OF BAILWAYS. [§51. *3. It is an essential condition to making calls, in those com- panies, where the number of shares and the amount of capital is fixed, that the whole stock shall be subscribed, before any calls can lawfully be made.^ And if calls are made before the requi- site stock is subscribed, although the subscription is completed before action brought, no recovery can be had.^ But it has been held that the general provision in the charter of a railway act, that so soon as 1,500,000/. shall have been subscribed, it shall be lawful for the company to put in force all the powers of the act, authorizing the construction of the railway, and of the acts there- in recited, being the general railway acts, did not require such subscription to be made before making calls, but only before ex- ercising compulsory powers of taking land.* upon -the express condition that the money should not be paid until certain acts were done by the company, when these acts were done, the stock would then be unconditional, and the subscribers would then be compelled to pay it, as was held in McMillan v. Maysville & Lexington Railway Co. 15 B. Monr. 218." If a sub- scription for stock be conditioned, that the subscriber may withdraw his subscrip- tion, at his election, if the whole stock is not taken, at a given time, and the de- fendant pay part of his subscription after that date, he is liable for the balance, unless he show the failure of the condition, and his own election, in a reasonable time after, to withdraw. Wilmington & Raleigh Railway Co. v. Robeson, 5 Ire- dell, 301. 2 Stoneham Branch Railway Co. v. Gould, 2 Gray, 277 ; Salem Mill-Dam Co. V. Ropes, 6 Pick. 23 ; S. o. 9 Pick. 187 ; Cabot & West Springfield Bridge Co. v. Chapin, 6 Cush. 60; Worcester & Nashua Railway Co. v. Hinds, 8 Cush. 110; Lexington & West Cambridge Railway Co.u. Chandler, 13 Met. 312; N. Hamp- shire Central Railway Co. u. Johnson, 10 Foster, R. 390. But a subscriber for shares in a railway company is liable for calls, although by a subsequent amendment of the charter of the company, the capital stock is lim- ited to four thousand shares, and that number has not been subscribed, there being no such condition, either in the charter of the company, or the terms of subscription, at the time of subscribing. York & Cumberland Railway v. Pratt, 40 Maine R. 447. But the number of shares required by the charter must be subscribed, as stated in the text. Penobscot Railway v. Dummer, 40 Maine R. 172. But the records of the company are evidence of such fact. lb. Same v. White, 20 Law Rep. 689. _ ' 3 Norwich & Lowestoffe Navigation Co. v. Theobold, 1 Moody & M. 151 ; Strat- ford & M. Railway Co. v. Stratton, 2 B. & Ad. 518. And see Atlantic Cotton Mills 11. Abbott, 9 Cush. R. 423, where a condition in a subscription for stock, that the capital stock of the company should not be less than $1,500,000, was held a condition precedent to making calls. 4 Waterford, Wexford, & W. Railway Co. v. Dalbiac, 6 Railw. C. 753-; s. c. 4 Eng. L. & Eq. R. 455. But the American cases will not justify such a construo- 84 § 51.] ASSESSMENTS OR CALLS. * 80 4. And where the charter provides that the members might divide the capital stock into as many shares as they might think proper, and by a written agreement the subscribers fixed the cap- ital stock at $50,000, divided into 500 shares of $100 each, and only one hundred and thirty-eight shares had been subscribed, it was held no assessment for the general purposes of the corpora- tion could be made.^ *5. And where the charter of a railway company requires their stock to consist of not less than a given number of shares, assessments cannot be made before the required number is taken. And in such case conditional subscriptions are not to be reck- oned, even where the condition is acceded to by the company, if the subscriber still repudiates the subscription, on the ground that the condition is not fully performed, by the contract drawn up in form. And the plea of the general issue, is no such ad- mission of the existence of the company, as to preclude subscri- bers from contesting the amount of subscriptions, to enable the company to make calls.*^ tion. It would here be held a condition precedent to the right to make calls, or even to maintain a corporate existence, probably. 5 Littleton Manufacturing Co. v. Parker, 14 N. Hamp. E. 54.? ; Contocook Val- ley Railway Co. v. Barker, 32 N. Hamp. R. (1 Fogg, R.; 363. Where the condition of a bond given for the amount of a railway subscription was, that the same should be paid, when the road was " completed " to a certain village, it was held that the condition was performed, when the road was made to the suburbs of the viUage, in such a manner, as to allow daily trains on it, carry- ing all the freight and passengers, that oflfer, although some portion of the work was only temporary. O'Neal u. King, 3 Jones, 517 ; Chapman v. Mad River & Lake Erie Railway Co. 6 Ohio St. R. 119. 6 Oldtown & Lincoln Railway Co. v. Veazie, 39 Maine R. 571. Any condition the subscriber sees fit to annex to his subscription must be complied with, before the subscriber is liable to assessments. Penobscot & Kennebec Railway Co. v. Dunn, 39 Maine R. 687. A condition, that not more than five dollars on a share, shall be assessed at one time, is not violated, by two or more assessments being made at one time, if only five dollars is required to be paid at one time. Id. Penobscot Railway v. Dum- mer, 40 Maine R. 172. And where the conditions of a subscription required sev- enty five per cent, of the estimated cost of any section of the road to be sub- scribed, by responsible persons, before its construction should be commenced, if the subscriptions were obtained in good faith, assessments will be valid, although some of the subscriptions to make up the amount, prove worthless. Id. Same v. White, 20 Law Rep. 689. And where the charter of the company requires that the capital stock be not 8 8d * 81 THE LAW OF RAILWAYS. ' [§ 52. 6. And where the charter originally required 11,000 shares to be the minimum, and when less than 10,000 were subscribed, the company was organized^ and the subscriptions acceptedi, and assessments made, and afterwards, by an act of the legislature, accepted by the corporation, the minimum was reduced to 8,000 shares, in an action to recover assessments, made on defendant's shares, before and after such alteration of the charter, it was held, 1. That the minimum was a condition precedent, to be ful- filled by the corporation, before the subscribers were liable to assessments. 2. That the alteration of the charter will not affect prior sub- scribers. 3. Nor wiU the defendant be estopped from relying upon this condition, by having acted, as a shareholder, and officer, in the corporation, and contributed towards the expenses of the com- pany. 4. That corporators, by any acts, or declarations, cannot re- lieve the corporation from its obligation, to possess the capital stock, required by its charter.^ *SECTION VI. CALLS MAY BE MADE PAYABLE BY INSTALMENTS. § 52. It was at one time considered that calls made payable by instalments were invalid.' But it seems now to be settled that such mode of making calls, where the directors of the com- pany have an unlimited discretion, as to the time and mode of requiring .payments of the subscriptions, is unobjectionable.^ less than five hundred, nor more than ten thousand shares, of $100 each, and authorizes the directors to assess upon five hundred shares, as soon as subscribed, and from time to time to enlarge the capital.to the maximum amount named in the charter, all the shares to be equally assessed, it is not necessary for the com- pany to define their capital, within the prescribed limits, before making calls. White Mountains Railw. v. Eastman, 34 N. H. R. 124. It is doubtful if the directors of a railway have power to release subscribers to ■ stock, but at all events, where the release is optional with the subscriber, he must make his election to be released, and in a reasonable time. Penobscot & Ken. Kailw. V. Dunn, 39 Maine R. 587. 1 Ambergate, N. & Boston & E. J. R. v. Coulthard, 6 Railw. C. 218; Stratford & M. R. V. Stratton, 2 B. & Ad. 518. 3 London & M. W. R. v. M'Michael, 4 Eng. L. & Eq. R. 459 ; Ambergate R. 86 §53.] ASSESSMENTS OK CALLS. *82 But where the subscription contains a provision, that payment shall be made, at such times and places, as should thereafter be directed, by the directors, and shall be applied to the construction of the road, it was held, that the subscription did not become payable, until the directors, at a regular meeting, had fixed the time and place of payment.^ But it is further held, in this case, that it is not necessary to give notice to the subscribers of the time and place of payment.^ This point in the decision seems not altogether in accordance with the usual practice in such cases, or the general course of decision in regard to calls, which upon general principles must be notified to subscribers, before an action can be maintained. SECTION VII. PAKTT LIABLE FOR CALLS. 4. One may so conduct as to estop him from denying his liability. 5. The register of the company evidence of membershin . 1 . Subscribers liable to calls. 2. 6. What constitutes subscription to a capi- tal stock. 3. How a purchaser of stock becomes liable to the company, § 53. 1. All the original subscribers to the stock in a railway company are usually made liable to calls, by the charter of the company, or by general statute. 2. Some question has arisen in the English courts, as to what *is necessary to constitute one a subscriber. In an earjy case^ upon this subject, it was held, that the word " subscriber " in the act of parliament, constituting the company, applied only to those who had stipulated that they would make payment, and not to aU those who had advanced money j and that one, who was named in the recital of the act, as one of the original pro- prietors, and who had paid a deposit on eight shares, but who had not signed any contract, was not a subscriber within the meaning of the act, and not liable to be sued by the directors for calls on the remainder of such shares. 3. This is the generally received opinion upon that subject, in V. Norcliffe, 4 Eng. L. & Eq. K. 461 ; Birkenhead, L. & Ch. R. i;. Webster, 6 Eailw. C. 498. 3 Koss V. Lafayette & Ind. Railway, 6 Porter (Ind.) R. 297. 1 Thames Tunnel Company v. Sheldon, 6 B. & C. 341. 87 * 83 THE LAW OF RAILWAYS. § 53.] this country. In one case,^ a plea to an action to recover calls on stock subscribed, that another person had agreed to take the stock, and that the commissioners had counted this stock to such other person, is insufficient. The signature of the first subscriber should have been erased, and that of the other substituted, or something done to hold the latter liable. A subscriber for stock cannot subrogate another person to his obligation, without a substitution of his name upon the books of the company, or some other equivalent act recognized by the charter and by-laws of the company. 4. But the principal difficulty, in regard to liability for calls, arises, where there have been transfers, and the name of the transferree not entered upon the books of the company. For whenever the name of the vendee of shares is transferred to the register of shareholders, the cases all agree, that the vendor is exonerated, (unless there is some express provision of law, by which the liability of the original subscriber still continues,) and the vendee becomes liable for future calls.^ And the vendee having made such representation to the company, as to induce them to enter his name upon the register of shares, is estopped to deny the validity of the transfer.* And even where the party has represented himself to the company as the owner of shares, and sent in scrip certificates, which had been purchased by him, claiming to be registered as a proprietor, in respect thereof, and had received from the company receipts therefor, with a notice that they would be exchanged for sealed certificates on demand, he was held estopped *to deny his liability for calls, although his name had not been entered upon the register of shareholders, or any memorial of transfer entered, as required by the act.^ And where one had paid calls on shares, or attended meetings of the company, as the proprietor of shares, he is estopped to deny such membership.^ 2 Kyder v. Alton & Sangamon R. 13 111. R. 516. 3 Sheffield & Aghton-under-Lyne & Man. R. v. Woodcock, 2 Railw. C. 522 ; s. c. 7 M. & W. 574 ; London & Grand J. R. v. Freeman, 2 Railw. C. 468 ; s. c. 2 M. & G. 606 ; post, § 54. * Sheffield, Ash. & M. R. v. Woodcock, supra ; London & Grand J. R. v. Free- man, supra. 5 Cheltenham & Great Western Union R. v. Daniel, and Same v. Medina, 2 Railw. C. 728. And this being matter of estoppel in pais, may be used in evi- dence, in answer to the defence, without being pleaded. 6 London & Grand J. R. v. Graham, 2 Railw. C. 870 ; s. o. 1 Q. B. R. 271. § 54.] ASSESSMENTS OK CALLS. * 84 5. The holders of scrip certificates are properly entered, as pro- prietors of shares, before the passing of the act, although they have neither signed the parliamentary contract, nor been original subscribers ; and the register-book of shareholders, which is re- quired by the statute to be kept, in a prescribed form, by the company, though irregularly kept, is primd facie evidence who are proprietors.'^ 6. The subscription for stock, to be valid, must be made in conformity with the act. So that where it was required to be made in such form as to bind the subscriber and his heirs, it was deemed requisite to be made under seal.^ But such a provision is of no force in this country, simple contracts being of the same force as against heirs, as specialties. 7. If by the act of incorporation the shares are made assign- able without restriction, and no express provision exists in regard to the party liable for calls, it would seem to follow, upon the general principles of the law of contract, that the proprietor of the share, for the time being, is liable for calls. And where cer- tain formalities are requisite, in the transfer of shares, and these have been complied with on the part of the transferree, or waived by the company, at his request, his liability to calls then attaches.^ The liability of the original subscriber often continues, at the election of the company, after that against the vendee attaches, but when the company consent to accept the name of the trans- ferree, that of the subscriber, or former proprietor, ceases.'" *SECTION VIII. RELEASE FROM LIABILITY FOR CALLS. 1.2. Where the transfer of shares, without registry, will relieve the proprietor from calls. 3. Where shares are forfeited, by express condition, subsa'iber no longer liable for calls. § 54. 1. One may relieve himself of his liability for calls, by 7 Birmingham, Boston, & Th. J. R. v. Locke, 2 Railw. C. 867 ; s. c. 1 Q. B. 256. 8 Cromford & High Peak R. u. Lacy, 3 Y. & Jer. 80. See ante, § 18, n. 2. 9 Huddersfield Canal Co. v. Buckley, 7 T. R. 36 ; Aylesbury R. v. Mount, 5 Scott, New R. 127; West Philadelphia Canal Co. v. Innes, 3 Whart. R. 198; Mann v. Currie, 2 Barb. Sup. Ct. R. 294 ; Hall v. U. S. Insurance Co. 5 Gill, 484 ; .Bend o. Susquehannah Bridge Co. 6 Har. & J. R. 128 ; Angell & Ames, oh. 15, § 534. lO.Posi, §54. 8* 89 * 85 THE LAW OF EAILWAYS. [§ 64. the transfer of his shares, and the substitution of the name of his assignee, for his own, upon the books of the company. But un- til this change upon the books of the company is made, they are at liberty to hold the original subscriber liable, if they so elect.' But where the act of incorporation of a joint-stock company de- clared the shares should be vested in subscribers, their executors and assigns, with power to the subscribers to assign their shares, and a committee, to be appointed under the act, were authorized to make calls upon the proprietors of shares, it was held, that an original subscriber, who had transferred bis shares, was no longer liable to calls.^ 2. But this case is determined upon the express provisions of the charter of the company. The general rule, in England, at present, under their consolidated acts, is undoubtedly as stated above. And we see no good reason why it should not equally apply in this country. It woiild seem to be the only mode of securing the ultimate payment of calls. But some of the cases seem to assume, that the mere transfer of the shares, in the mar- ket, does exonerate the subscriber from the payment of future calls. But this depends chiefly upon the provisions of special charters, and the general laws of the state, applicable to the sub- ject.^ * 3. Where shares are allotted to one upon the express con- dition, to be forfeited, if a certain deposit is not paid, in a certain time, and nothing more is done, by the allottee, he is not liable for calls, although the company have entered his name upon the register of shares, as a shareholder.* 1 Ante, § 47, and cases there cited. In Everhart v. West Chester and Phila- delphia Railw. 28 Penu. St. R. 339, it is said that a transfer of stock, made for the purpose of exonerating a subscriber, without the consent of the company, is not a valid defence to an action against him for the purchase-money of the shares subscribed. 2 Huddersfield Canal Company v. Buckley, 7 T. K 36, 42. 3 In West Philadelphia Canal Co. v. Innes, 3 Wharton, 198, it was held, that where the proprietor of shares of the plaintiff's stock, transferred them upon the books of the company, after calls were made, but before they fell due, that the transferree was liable for such calls, although he had never received certificates, or given notice of the acceptance of the transfer. And it was held to make no difference, that the transfer was from an original subscriber, without consider- ation, and that the holder is nevertheless liable for unpaid calls. Mann v. Pentz, 2 Sand. Ch. 258 ; Hartford & New H. E. v. Boorman, 12 Conn. R. 530; Ayles- bury R. V. Mount, 5 Scott, New R. 127. * Waterford, Wexford, Wicklow, & D. E. v. Piddock, 18 Ens. L. & Eq. R. 80 §55.] ASSESSMBKTS OR CALLS. *86 SECTION IX. DEFENCES TO ACTIONS FOR CALLS. 1 . Informality in organization of company insufficient. 2. Slight acquiescence stops the party in some cases. 3. 4. Default in frst payment insufficient. 5. Company and subscriber may waive that condition. 6. Contract for stock, to be paid in other stock. 7. 8. Infancy. Statute of limitations and bankruptcy. § 55. 1. It is certainly not competent for a subscriber, when sued for calls, to go, in his defence, into every minute deviation from the express requirements of the charter, in the organization and proceedings of the company. Any member of the associa- tion, who intends to hold the company to the observance of those matters, which are merely fprmal, should be watchful, and inter- pose an effectual barrier to their further progress, at the earliest opportunity, by mandamus, or injunction out of chancery, or other appropriate mode.' In cases of this kind often, where vast expense has been incurred, and important interests are at stake, courts will incline to conclude a member of the association, by the briefest acquiescence, in any such immaterial irregularity, and often, in regard to those, which if urged in season, might have been regarded as of more serious moment. In one case,i Tindal, Ch. J., says, in regard to the oifer of a plea, that the money sued for, being the amount of a caU, was * intended for other purposes, than those warranted by the act, " It seems to me it was never intended, nor ought it to be allowed, that so general a question as that should be litigated, in the question, whether a call is due from an individual subscriber." And it was held no sufficient ground of enjoining the directors from 517. Where the company accept a conveyance of shares to themselves, it will exonerate the owner from calls. But a sale to another company of all the efiFects of the company, will not release the shareholders from calls already made. Plate Glass Insurance Co. v. Sunley, 29 Law Times, 277. 1 The London & Brighton Railw. Co. u. "Wilson, 6 Bing. N. C. 135. This case decides, that a plea, that the company had made deviations in their line, and that the money sued for was needed only in regard to such deviations, could not be entertained or regarded as a proper inquiry in an action for calls upon shares, and so also of a plea, that fewer shares had been allotted than the act required. Walford, 279; Wight v. Shelby Bailway, 16 B. Monr. 5. 91 * 87 THE LAW OF RAILWAYS. [§ 55. making calls, that the proceedings had been such as to amount to an abandonment of the enterprise, as it was possible that there were still legal obligations to answer.^ And where the directors were authorized to limit the number of shares, but could not proceed with the road, until two hundred and fifty shares were subscribed, and after that number were taken, they resolved to close the books, it was held that this vote was equivalent to a vote fixing the number of shares, and that the company might therefore proceed to make and enforce calls, under the statute, and to collect the deficiency remaining, after the sale of forfeited stock.^ 2. But where the statute prescribes the terms, on which shares may be sold, it must be strictly followed, or the sale will be void, as where the prescribed notice is not given.* And it would seem, that the courts are reluctant to admit defences to actions for calls, upon the ground of informality in the proceedings of the company, or even of alleged fraud, where there has been any considerable acquiescence on the part of the shareholder.® 3. It seems to have been held, in some cases, that a subscriber for stock may defend against an action for calls, upon the ground that he did not pay the amount required by the charter to be paid down at the time of subscription.^ 4. But it is questionable how far one can be allowed to plead his own non-performance of a condition in discharge of his un- dertaking. And a different view seems, to have obtained to some extent.^ It has been held the stockholder cannot object, that he * has not complied with the charter, after having voted at the election of officers, or otherwise acted as a shareholder.^ 8 Logan V. Courtown, 5 Eng. L. & Eq. R. 171. 3 Lexington & West Cambridge R. v. Chandler, 13 Met. 311. 4 Portland, Saco, & Portsmouth R. v. Graham, 11 Met. 1. 5 Walford, 278, 279 ; Cromford & High P. R. v. Lacey, 3 Y. & Jer. 80 ; Man- gles V. Grand Collier Dock Co. 2 Railw. C. 359 ; Thorpe v. Hughes, 8 Mylne & Cr. 742. 6 Highland Tump. Co. v. McKean, 11 Johns. 98 ; Jenkins v. Union Tump. Co. 1 Gaines's Cas. in Error, 86 ; Hibernia Turnpike Co. v. Henderson, 8 S. & R. 219 ; Charlotte & C. R. v. Blakely, 3 Strob. 245. ' Henry v. The Vermilion R. 17 Ohio, 187. A similar rule is recognized in Louisiana, in the case of Vicks. S. & Texas Railw. July Term, Sup. Court, 1857, 9 Am. Railw. Times, No. 36. 8 Clarke v. Monongahela Nav. Co. 10 Watts, 364. Nor can a subscriber, after having transferred his stock to another, thus treating it as a valid security, object 92 § 55.] ASSESSMENTS OR CALLS. * 87 And so also where the subscription is made, while defendant held the books of the company and acted as commissioner.^ And payment before the books are closed, has been held sufficient to bind the subscriber.'" So also if the sum have been collected by suit." And a promissory note has been held good payment, where the charter required cash on the first instalment, at the time of subscription.'^ And, by parity of reason, if the subscrip- tion binds the subscriber, to pay for the stock taken, in conform- ity to, the requisitions of the charter, which is the more generally received notion upon the subject, at present, we do not well com- prehend why the subscription itself may not be regarded as effectual, to create the subscriber a stockholder, and as much a compliance with the condition to pay, as giving a promissory note. In either case, the company obtain but a right of action for the money, and if the party can be allowed to urge his own default in defence, it is perhaps no compliance with the charter. in the trial of a suit against him on the original subscription, that the same was originally invalid, by reason of the non-payment of the sums requisite to, give it validity, at the time of making the subscription. Everhart v. West Chester & Ph. Kailw. 28 Penn; St. R. 339. And where commissioners were appointed, by an act of the legislature, and were authorized to receive subscriptions for the purpose of constructing a rail- way, no subscription to be valid, unless five dollars was paid upon each share at the time of subscribing ; the act providing that when a certain number of shares shall have been so subscribed, and the same certified under the oath of the com- missioners to the governor, he should issue letters-patent, incorporating the sub- scribers, and such as should thereafter subscribe, and this was done, and the company duly organized, it was held ; That the act imposed no restriction upon the corporation after it was organ- ized, in regard to the payment of the five dollars at the -time of subscription. That the condition that subscriptions should not be valid till a certain amount was subscribed, was one which the parties had a right to annex to the contract of subscription, and as such, was valid, and the subscriptions could not be enforced till the condition was performed. Philadelphia & West Chester Kailw. v. Hick- man, 28 Penn. R. Sl8. 9 Highland Turnp.' Co. v. McKean, 11 Johns. R. 98 ; Grayble v. The York & Gettysburgh Turnp. Co. 10 Serg. & Rawle, 269. So also if one act as a stock- holder in the organization of the company. Greenville & Columbia Railway v. Woodsides, 5 Rich. 145. 10 Klein v. Alton & Sangamon Railway, 13 111. R. 514. 11 Hall V. Selma & Ten. Railway, 6 Alabama, 741. 12 McRea v. Russell, 12 Ired. 224 ; Selma & Ten. Railway v. Hall, 5 Alabama, 787 • Tracy v. Yates, 18 Barb. 152 ; Greenville & Columbia Railway v. Wood- sides 5 Rich. 145 ; Mitchell v. Rome Railway, 17 Georgia R. 574. ' 98 * 88 THE LAW OP BAILWATS. [§ 55. But upon the ground that, so far as the subscriber Is concerned, the co"mpany may waive this condition, upon what is equivalent to payment, it ought also to be equally held, that when the sub- scriber has obtained such a waiver, for his own ease, he shall be estopped to deny, that it was so far a compliance with the char- ter as to render the contract binding. 5. And upon the other hand, the company having consented to accept the subscriber's promise, instead of money, for the first instalment, cannot defeat his right to be regarded as a stock- holder, on account of his not complying with a condition, which they have expressly waived. It would seem, that under these circumstances, the immediate parties to the contract could not obtain any advantage over each other, by reason of the waiver, by mutual consent, of strict performance of such condition. But that the objection must come properly from some other quarter, either the * public, or the other shareholders. But possibly the cases decided upon this subject do not justify any such relaxa- tion, even between the parties to the immediate contract of subscription. Upon general principles, applicable to the subject, as educed from the law of contracts, we see no objection to the waiver of such a condition on behalf of the company. And if there be any objection upon other grounds, it is not for the ben- efit of the subscriber.^^ 13 It has been held that the misstatement of the length of the road, in the articles of association, if there be no fraud ; or the lease, or sale, of the franchises of the corporation to another company, which is void; or the neglect to make the whole road, even without legislative sanction, will not exonerate a subscriber from paying calls. Troy & Rutland Railway v. Kerr, 17 Barb. 581. But where a preliminary subscription is required, it must be absolute and not dependent upon conditions. Troy & Boston Railway v. Tibbitts, 1 7 Barb. 298. But a con- dition that provides for interest, by way of dividends, to paying subscribers, until the full completion of the road, at the expense of subscribers, who do not pay, or one that imposes a limitation upon the directors in calling in stock, is void as being against good policy. Id. In a recent case in Kentucky, Wight v. Selby Railway, 16 B. Monr. 5, (1855,) it was held, that a subscpption to stock, in a railway, is not rendered invalid, by reason of the subscriber's failure to pay a small sum, required by the charter to be paid, upon each share, when he subscribed. Simpson, J. " It was their duty to pay it, at the time the stock was subscribed, but they should not be allowed to take advantage of their own wrong, and release themselves from their whole obli- gation, by a failure to perform part of it." This seems to us a sound view of the subject, and the only one, which is consistent with the general principles of the law of contract, as applicable to the question. 94 § 55.] ASSESSMENTS OK CALLS. * 89 * 6. An agreement to take stock and pay in the stock of a canal company, and an offer of the canal stock, will not make ther party liable to pay money.^* 7. Infancy is a good defence, if the person be an infant at the time of suit brought, or if he repudiate the subscription, within a reasonable time after coming of full age.^^ By the general In this case it is further held, to be no valid defence to a subscription to the stock of a railway, that it was delivered as an escrow to one of the commissioners, appointed to receive subscriptions. It should have been delivered to a third per- son, to become effectual, as an escrow. Such subscribers are presumed to know the conditions of the charter, under which the subscription is taken, and that if they desire to make their subscriptions conditional, it must be so expressed in the written terms of subscription, and that it is not competent to deliver a written contract, as an escrow, to the party himself. For, to admit oral evidence of such a condition, in the delivery of a written contract to the party benefited thereby, is a practical abandonment of the rule of evidence, that such testimony is incom- petent to control a written contract. It has been held, that it is not competent for the commissioners to accept the check of a subscriber in payment of the amount, required by the charter to be paid, at the time of subscription, but that specie, or its equivalent, must be demanded. Crocker v. Crane, 23 Wend. 211 ; 2 Am. Railw. C. 484. But this is at variance with the general course of decision, unless in regard to banks, where the charter expressly requires the payment to be in specie. King v. Elliot, 5 Sm. & M. 428. And where the charter of a railway company was made to depend upon the condition of the company expending $50,000 in two years, and completing the road in four year.s from the date of the grant, and the company having failed in the first part of the condition, but having obtained subscriptions to their stock to a large amount, and the defendant being one of the subscribers, the company having organized, and chosen directors, the defendant being one of them, the legislature revived and renewed the charter, and extended the time for the per- formance of such condition; and subsec^uently to this, a meeting of the stock- holders was called by the commissioners, in which the defendant took part, additional directors being appointed, and at a meeting of the directors, the de- fendant being present, a call was made upon the subscriptions, it was held that this amounted to an acceptance of the renewal of the charter, and was such a recognition of the former organization of the company, as to amount to a sufli- cient organization under the new charter, and the defendant was held to be estopped by his conduct from denying the regularity of these proceedings, and to be liable to pay calls on his stock. Danbury & Norwalk Railway v. Wilson, 22 Conn. R. 435. W Swatara Railway v. Brune, 6 Gill, 41. 15 North W. Railway v. McMichael, 5 Exch. 114 ; Birkenhead Railway v. Pilcher, 5 Exch. 121 ; s. c. 6 Railw. C. 622. The party should also deny having derived any advantage from the shares, or offer to restore them. 5 Exch. 114; 95 * 89 THE LAW OF RAILWAYS. [§ 55. provisions of the English statute, all persons may become share- holders, there being no exception, in terms, in favor of infants ; and if one be registered while an infant, and suffer his name to remain on the register, after he becomes of full age, he is liable for caUs, whether made while he was an infant, or afterwards.^^ Leeds & T. Railway v. Fearnley, 4 Exch. 26 ; Dublin & W. Railway v. Black, 16 Eng. L. & Eq. R. 556. 16 Cork & Bangor Railway v, Cazenove, 10 Q. B. 935. But it would seem that infants are not comprehended, by the general terms of the English statute. Birkenhead, &g. Railway v. Pilcher, supra. It has been said that an infant shareholder, or subscriber, in a railway com- pany, is in the same situation as in regard to real estate, or any other valuable property, which he may have purchased and received a conveyance of If, upon coming of age, he disclaim the contract, and restore the thing, with all advan- tages arising from it, his liability is terminated, and he cannot be made liable for calls. Parke, B., in Birkenhead & C. Railway v. Pilcher, 6 Railw. C. 625. The infant is not regarded as merely assuming an executory undertaking, which is void on the face of it, but in the nature of a purchaser of what is presumed to be valuable to him. Where, therefore, there is nothing but the simple fact of infancy pleaded to an action for calls, it is insufficient. Id. It would seem that the plea should contain averments, showing the disadvantageous nature of the contract to the infant, his repudiation of the contract, and restitution of all benefits decreed under it, on coming of full age, or that he is still an infant, and is ready to do so, upon coming of full age. McMichael v. London & N. W. Railway, 6 Railw. C. 618; Birken- head & C. Railway v. Pilcher, 6 Railw. C. 564, 662. The mere plea of infancy is an immaterial plea, and issue being joined thereon, and found for defendant, the plaintiff is still entitled to judgment veredicto non obstante. Id. The plea must show that the infant avoids the contract of subscription, on his coming of full age. Leeds & Thirsk Railway v. Fearnley, 5 Railw. C. 644; 4 Exch. 26. And the appearance by attorney is not equivalent to an averment that the defendant is of full age. Id. But where the plea alleged, that the defendant became the holder of shares, by reason of his having contracted and subscribed for them, and not otherwise ; and that at the time of his so contracting or subscribing, and also at the time of making the calls, he was an infant ; and that while he was an infant, he repu- diated the contract and subscription, and gave notice to the plaintifis, that he held the shares at their disposal ; it was held a good, prima facie bar; and that if the defendant, after he came of full age, disaffirmed his repudiation, or if he become liable, by enjoyment of the profits, those facts should be replied. Newry & Enniskillen Railway v. Coombe, 3 Exch. 665 ; s. c. 5 Railw. C. 633. Where shares were sold to an infant, and were duly transferred to him, on the declaration of the vendor that he was of full age, and the father of such infant, by a deed, reciting that he had purchased on behalf of the son, and covenanting that he, on coming of age, would execute the deed, and pay all calls, and that the father would indemnify the company against all costs, by reason of the son being 96 §56.] ASSESSMENTS OE CALLS. '90-91 It seems to be * doubted by the English courts whether the statute of limitations as to simple contracts, applies to an action for calls, that being a liability imposed by statute, and so to be regarded as a specialty." 8. Bankruptcy is a good defence for calls made after the cer- tificate of bankruptcy issues, but to meet liabilities incurred before.i^ *SECTION X. FUNDAMENTAL ALTERATION OF CHARTER. 1 . Will release the subscribers to stock. 2. Railway company cannot purchase steam- boats. ' 3. 7. Majority may bind company to altera^ tions, not fundamental. 4. Directors cannot use the funds for purposes foreign to the organization. 5. 9. But where the legislature or the direc- tors make legal alterations in the charter, or the location of the road, it will not re- lease subscribers. 6. But if subscriptions are made upon condi- tion of a particular location, it must be complied with. 8. 9. Consideration of subscription, being location of road, must be substantially performed. Express conditions must be performed. & 56. 1. There can be no doubt, that subscribers to the stock of a railway company, a,re released from their obligation to pay calls, by a fundamental alteration of the charter. This is so un- deniable, and so familiar a principle, in the general law of part- nership, as not to require confirmation here. We shall briefly advert, to the points decided in some of the more prominent cases, in regard to incorporated companies. The general doc- trine applicable to the subject, is very perspicuously stated, by Woodbwy, J., in an early case in New Hampshire.' "Every owner of shares expects, and stipulates, with the other owners, as a corporate body, to pay them his proportion of the expenses, which a majority may please to incur, in the prosecution of the particular objects of the corporation. To make a valid change an infant, it was held that the father was a contributory. Ex parte Reaveley, 1 DeG. & S. 550. See also Stikeman v. Dawson, 4 Railw. C. 585. n Cork & B. Railway v. Goode, 24 Eng. L. & Eq. R. 245. 18 Chappie's case, 71 Eng. L. & Eq. R. 516. 1 Union Locks & Canal Go. v. Towne, 1 N. Hamp. 44. But where the origi- nal charter or preliminary contract provides for modifications, the subscribers are still bound by all such as come fairly within the power. Cork & Youghal Rail- road V. Patterson, 37 Eng. L. & Eq. R. 398 ; Post, § 254, n. 6 ; Nixon v. Browns- low, 80 Law Times, 74. 9 97 * 92 THE LAW OF RAILWAYS. [§ 56. in this special contract, as in any other, the consent of both par- ties is indispensable." 2. In an important case ^ where it appeared that after calb fell due, but before suit brought, the company, being incorporated for the purpose of building a railway, procured an additional special " act, by which they were authorized to purqhase steam- boats : it was held, that a subscriber, not having assented to the alteration, was absolved from his obligation to pay calls. 3. In a very elaborate opinion of Bennett, Chancellor,^ upon this subject, the following propositions are established : — 2 Hartford & New Haven Railway 9. Croswell, 5 Hill, 383. In Winter w. Muscogee Railway, 11 Ga. 438, the charter was so altered as to allow the road to stop short of its original terminus and pass in a different route, and subscribers to the stock were held thereby released, unless they assented to the alteration. But where one gave his note for the first instalment, and his stock was forfeited, for non-payment of calls, he is not relieved from payment of his note by a material alteration of the charter. Mitchell v. Rome Railway, 1 7 Ga. R. 5 74. 3 Stevens i'. Rutland & Burlington Railway, 1 Law Register, 154. The opin- ion at length is a valuable commentary upon this important subject. In this opinion the learned chancellor maintains, — 1 . That by the implied contract, among the proprietors of all joint-stock under- takings, there is a tacit inhibition against applying the funds, for any purpose beside the general scope of the original enterprise, and that this applies to cor- porations, equally with commercial partnerships. Natusch v. Irving, Gow on Part. App. 567. And that courts of equity will restrain a corporation from thus misapplying its funds by injunction. Ware v. Grand Junction Water Co. 2 Rus- sell & Mylne, 461. And that this will be done upon the application of those shareholders, who dissent. And in some instances will restrzun the company from applying to the legislature, for an enlargement of their powers. Cunliff v. Manchester & Bolton Canal Co. 13 Eng. Cond. Ch. R. 131 ; s. c. 2 Russell & My. 470, 475 ; Livingston v. Lynch, 4 Johns. Ch. R. 573. 2. That if the proposed alteration is only auxiliary to the main design of the original organization, it will not be enjoined ; but if it he fundamental, it will be. That a variation in the course of a turnpike-road has been regarded, as a, funda- mental alteration in the charter, Middlesex Turnpike Co. v. Lock, 8 Mass. R. 268, and, as such, to exonerate subscribers to the stock of the original company. [But Irvine v. The Turnpike Co. 2 Penn. 466, holds it will not have that effect.] And that in such cases it will make no difference, that the subscriber was a director in the company, and joined in the petition to the legislature for the alteration. Same v. Swann, 10 Mass. R. 384 ; Same v. Walker, 10 Mass. R. 390. The learned chancellor regarded the case of Revere v. The Boston Copper Co. which was cited, by the counsel for the defendants, as making rather against his- purpose. 15 Pick. R. 351, 363. The case of Hartford & New Haven Rail- way V. Croswell, 5 Hill, 383, 385, is relied upon, as having defined a fundamental 98 §56.] ASSESSMENTS OR CALLS. * 93 * 1. That a majority of. a joint-stock company cannot use the joint property except within the legitimate scope of their charter, alteration of the charter of a corporation, in the language of Ch. J. Nelson, to be one " by which a new and different business is superadded to that originally con- templated." 3. No one can be made a member of a joint-stock corporation, without his con- sent. Ellis V- Marshall, 2 Mass. R. 269 ; nor can he be compelled to remain a member of such company, after its fundamental organization is altered by act of the legislature. But an act of the legislature allowing a navigation company to raise their dam above the point of the original charter limit, is in furtherance of the original grant, and will not exonerate the subscribers. Gray v. Monongahela Navigation Co. 2 Watts & Serg. R. 156. And an alteration in the number of votes, to be cast by stockholders, if it impair the obligation of the contract result- ing from the grant, is void, and so cannot release the subscribers. Osborn v. Bank of United States, 9 Wheat. R. 738. But any statute which has the force to effect an alteration in the structure of the corporation, will release subscribers. Indiana & Ebensburgh Turnp. Co. v. Phillips, 2 Penn. 184. 4. That statutes extending the term of a corporation, for closing up its busi- ness, on petition of the directors, has no proper bearing upon the question. Lm- coln & K. Bank v. Richardson, 1 Greenl. R. 79 ; Foster v. The Essex Bank, 16 Mass. R. 245. 5. That it is no fatal objection to the application, that it is made at the instiga- tion of a rival enterprise. Coleman v. Eastern Counties Railway, 10 Beavan, 1. [But see ante, § 20.] 6. That an existing railway company will be restrained in equity from apply- ing its present funds, to extend their line, or improve the navigation of a river connected with their line, or for obtaining an act of the legislature, authorizing them to do so. Hunt v. Shrewsbury & Chester Railway, 3 Eng. L. & Eq. R. 144; Coleman v. Eastern Co.'s Railway, 10 Beavan, 1. 7. That members of an existing company cannot be compelled to surrender their interest to the company, or to others, and retire, in order to enable them to change the character of the enterprise. Lord Eldon, Chancellor, in Natusoh v. Irving, supra. . . 8. In favor of the importance and necessity of having this constant supervision exercised over joint-stock companies, in order to keep them within the range of their legitimate functions, the learned chancellor thus concludes :— " Where it is clearly shown that a corporation is about to exceed its powers, and to apply their funds or credit to some object beyond their authority, it would, if the purpose of the corporation was carried out, constitute a breach of trust; a court of equity cannot refuse to give relief by injunction. Agar v. The Regent's Canal Co Cooper's Eq. R. 77 ; The River Dun Navigation Co. v. North Midland Railway Co. 1 Railw. C. 153, 154. The last case was before the lord chanceUor, and he uses this language : ' If these companies go beyond the powers which the legislature has given them, and in a mistaken exercise of those powers, interfere with the property of individuals, this court is bound to interfere; and that was Lord Eldon's ground in Agar v. The Regent's Canal Co.' The lord chanceUor 99 * 94 THE LAW OF RAILWAYS. [§ 56. * and if they attempt to do so equity will restrain them. 2. The shareholders are bound by such modifications of the charter, as are not fundamental, but merely auxiliary to the main design. 3. If a majority of a railway company obtain an alteration of their charter, which is fundamental, as to enable th^m to build an extension of their road, any shareholder who has not assented to the act, may restrain the company, by injunction, from apply- ing the funds of the original organization to the extension. 4. In a late case before the Master of the Rolls,* it was held, further adds : ' I am not at liberty (even if I were in the least disposed, which I am not) to withhold the jurisdiction of this court, as exercised in the case of Agar V. The Regent's Canal Co.' In that case Lord Eldon proceeded simply on the ground that it was necessary to exercise this jurisdiclion of chancery, for the pur- pose of .keeping these companies within the powers which the acts give them. And it is added : ' And a most wholesome exercise of the jurisdiction it is ; be- cause, great as the powers necessarily are, to enable the companies to carry into eflFect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there was not a jurisdiction con- tinually open, and ready to exercise its power to keep them within their legiti- mate limits.' " The injunction must, therefore, be allowed ; but only so far as to restrain the defendants, until the further order of the chancellor, from applying the present funds of the corporation, or their income from their present road, either directly or indirectly, to the purpose of building said extension in said road, or to pay land damages and other expenses which may be contingent upon the buildino- of it ; and also from using or pledging, directly or indirectly, the credit of the cor- poration in effecting the object of the extension ; and at the same time, the com- pany will be left at liberty to build the extension with any new funds which they may see fit to obtain for that specific object." See also Gifford v. New Jersey Eailw. 2 Stockton's Ch. R. 171, where this subject is examined somewhat at length by the chancellor, and the conclusion arrived at, that it is competent for a court of equity to interfere in the management and application of the funds of a corpora- tion, at the instance of a single stockholder ; that the legislature may give addi- tional power from time to time to corporations, and that such acts are° binding, unless they conflict with vested rights, or impair the obligation of contracts. That a stockholder in an existing corporation, has a vested right in any exclusive privi- lege of the corporation which tends to enhance the value of its stock, and that he would not be bound by any act of the legislature tending to produce such effect, without his consent; but that such consent will be inferred from long ac- quiescence, which is equivalent to express consent. Post, § 174, n. 7. 4 Colman v. Eastern Counties Railway, 4 Eailw. C. 513. See also Munt k. Shrewsbury & Chester Railway, 3 Eng. L. & Eq. R. 144 ; East Anglian Railway V. Eastern Counties Railway, 7 Eng. L. & Eq. R. 505 ; MacGregor v. Deal & Dover Railway, 16 Eng. L. & Eq. R. 180 ; Danbury & Norwalk Railway ii. Wil- son, 22 Conn. R. 435 ; Mill-Dam Co. v. Dane, SO Maine, 347 ; Post, § 235 ; Win- 100 § 56.] ASSESSMENTS OR CALLS. * 95 that directors have no right to enter into, or to pledge the funds of the company in support of any project not pointed out by their act, although such project may tend to increase the traffic upon the railway, and may be assented to by the majority of the shareholders, and the object of such project may not be against public policy. And that acquiescence by shareholders in a pro- ject for ever so long time, affords no presumption of its legality. And in a late case in this country it is held, that the subscriber having acted as director of the corporation, and as such having participated in the proceedings to effect the alteration, will not make him liable for calls, upon his original subscription.^ 5. But it is no defence to an action for calls, that the directors have altered the location of the road, if by the charter they had the discretion to do so.® And if the charter contain a provision that the legislature may alter, or amend the same, the exercise of this power will not absolve the shareholders from their liability to pay calls.'^ And all subscriptions to stocks, and all conti-acts for the * purchase of stock, to be delivered at a future day, must be understood to be made subject to the exercise of all the legal powers, of the directors and of the legislature, and an illegal ex- ercise of power by either will, it has sometimes been said, bind no one, and should exonerate no one from his just obligations.^ 6. But where subscriptions are made upon the express con- dition, that the road shall go in a particular place, the perform- ance of such condition is commonly regarded, as indispensable to the liability of the subscribers, the same as in other contracts.^ But an alteration in the line of the road, which does not affect ter V. Muscogee Railway, 11 Ga. 438; Hamilton Plank Road u. Rice, 7 Barb. 157 ; Commonwealth v. CuUen, 1 Harris, 133 ; 3 Woodbury & Minot, 105. 5 Macedon Plank Road Co. v. Lapham, 18 Barb. 312. But see Greenville & Columbia Railway v. Coleman, 5 Rich. 118. 6 Colvin V. The Turnpike Co. 2 Carter, 511 ; Id. 656. Nor is it a defence to an action for calls, that the name of the company, or the length and termini of the road, have been materially altered. Del. & Atlantic Railway v. Iriok, 3 Zab. 321. ' Northern Railway v. Miller, 10 Barb. 260 ; Pacific Railway v. Renshaw, 18 Missouri, 210. 8 Irvine v. Turnpike Co. 2 Penn. 466 ; Conn. & Pas. Rivers Railway v. Bailey, 24 Vt. R. 479. Faulkner u. Hebard, 26 Vt. R. 452. " See cases under notes 2 & 3, supra ; and also Railsback v. Liberty & Ab- ington Tump. Co. a Carter (Ind.) 656. 9« 101 * 95 THE LAW OF RAILWAYS. [§ 56. the interest of the subscriber, will not absolve him froiii his sub- scription."' 7. And an alteration in the charter, which consists only of an increase of the corporate powers, or of a different organization of the corporate body, leaving it with lawful power to execute, what may be regarded as substantially the original object of its crea-' tion, will not exonerate subscribers to the s.tock of the company." So too where the general laws of the state provide that all acts of incorporation may be altered, amended, or repealed by the legislature, it is no defence to a subscription for stock, that subsequently the legislature increased the liability of the stock- holders.i^ 8. And notwithstanding much apparent conflict in the cases, upon this subject, it will be found to be the general result of the best considered cases, that the alteration, either in the charter of the company, or the line of the road, to exonerate the subscriber for stock, must be one which removes the prevailing motive for the subscription, or else materially and fundamentally alters the responsibilities and duties of the company, and in a manner not provided for, or contemplated, either in the charter itself or the general laws of the state.'^ 1" Banet v. Alton & Sangamon Railway, 13 111. 504 ; Danbury & Norwalk Rail- way I'. Wilson, 22 Conn. R. 435. 11 Pacific Railway i). Hughs, 22 Missouri, 291 ; Peoria & Oquawka Railway V. Elting, 17 111. R. 429. In Everhart v. West Chester & Philadelphia Railw. 28 Penn. St. R. 339, the subscribers for stock were held not released by such a change in the charter of the company, as enabled them to issue preferred stock, to enable them to raise the means of making and equipping the road, in the man- ner originally contemplated. It was considered that such an amendment of the charter was merely ancillary to the main design, and might be accepted by a majority of the stockholders and thus become binding upon all ; that it is implied in every subscription for the stock in a railway company, that they may resort to the ordinary and legal means, for accomplishing the object proposed by the charter. It is here said, that an alteration of the charter, which superadds an entirely new enterprise, will release subscriptions to the stock. 13 South Bay Meadow Dam Co. v. Gray, 30 Maine R. 547. 13 But in the Greenville & Columbia Railway v. Coleman, 5 Rich. 118, where the charter gave the stockholders the right to designate the route they preferred, and if any stockholder was dissatisfied with the route selected, the right to with- draw his subscription, " provided, at the time of subscribing, he designated the route he desires to be selected," and one subscribed, without designating the route he preferred, under an assurance from one, who was soliciting subsorip- 102 § 56.] ASSESSMENTS OR CALLS. * 96 * 9. Where a town, or city, stipulate with a railway company, 'for adequate consideration to terminate their route, at a point, beneficial to such town or city, this will not preclude the com- pany from forming connections with other routes, by land, or water, at the same point.'* 10. And where the plaintiff made it a condition of his sub- scription to the capital stock of a railway, that it should pass through some portion of the counties of Monroe and Ontario, and the road was so located as not to touch either of those counties, it was held, that he was released from his subscrip- tion.'" tions, that he might pay $5, on a $100, and be free from liability, as to the resi- due, it was held, that he was liable, as a stockholder, without the right to with- draw. But some of the American cases do not seem to recognize any alteration in the route of the road, even one which renders it practically a different enter- prise, as a defence to subscriptions for stock. Central Plank Road Co. v. Clement, 16 Mo. R. 359. '•• Baltimore & Ohio Railway v. Wheeling, 13 Grattan, R. 40. 15 Buffalo, Corning, & N. Y. Railway v. Pottle, 23 Barb. 21. And where a party, who was not a stockholder, executed a promissory note to a railway com- pany, promising to pay them $200, in consideration that they would locate their depot in block 94, in Indianapolis, to be paid when the company should commence the construction of their depot, and the line of the company's road extended from Terre Haute, through Indianapolis, to Richmond, a distance of 150 miles, at the date of the note, but by subsequent act of the legislature, was divided, at Indian- apolis, and the portion between Indianapolis and Richmond, being about one half, was given to another company, which built their depot in another portion of Indianapolis, the former company only constructing a freight depot, on block 94, it was Held, that by the alteration of the charter of the Terre Haute and Richmond Railway Company, and the acceptance thereof, by the company, the company became substantially a different corporation, and were unable to perform the condition, upon which the note was to become payable, and that the circumstance, that the depot located on block 94 was of some advantage to the plaintiff in error, was of no importance. But an amalgamation of two railway companies, effected subsequent to the date of a subscription to the stock of one of them, but which had been authorized by an act of the legislature prior to that time, will not release the subscription. And it is of no importance, that the consolidation took place, without the knowledge of the subscriber. Sparrow v. Evausville & Crawfordsville Railway, 7 Porter (Ind.) R. 369. The subscription of stock to an amalgamated company is a sufficient consent to the amalgamation. And such consent by the stockholders seems to be regarded as requisite to the power of the legislature to amalgamate existing railway com- panies. Fisher v. Evansville & Crawfordsville Railway, 7 Porter (Ind.) R. 407. 103 1. ■ 97 THE LAW OF RAILWAYS. [§ 57. *SECTION XI. SUBSCRIPTIONS BEFOKB DATE OF CHARTER. Sulsaiptions before date of charter good. I Note 4. Where the condition is performed. 2. Subscriptions upon condition not performed.] § 57. 1. It has been held that one who subscribes before the act of incorporation is obtained, and by parity of reason, before the organization of the company, although after the act of incor- poration, is holden to the corporation, to pay the amount of his subscription. And a suit is sustainable, in their name, upon any securities given in the name of the association, or of the commissioners for organizing the company, and equally upon the subscription itself in the name of the corporation.^ And it is not competent for one, who is a subscriber, to such an enter- prise, to withdraw his name while the act of incorporation is going through the legislature.^ 2. But an informal subscription, which is never carried through the steps necessary to constitute the subscribers members of the company, has been held inoperative, as no compliance with the act.^ And a subscription, upon condition that the road is built through certain specified localities, the company at the time not assuming to build the road through those places, will not, it has been held, make the subscriber liable to an action for calls, even if the condition be ultimately performed by the company.* But 1 Kidwelly Canal Co. v. Kaby, 2 Price, Exch. R. 93 ; Selma & Tenn. Railway Co. V. Tipton, 5 Alabama R. 786 ; Vermont Central Railway Co. v. Clayes, 21 Vt. R. 30 ; Delaware & Atlantic Railway v. Irich, 3 Zab. 321. In the last case the very point ruled, is, whether the company were proper plaintiifs, in an action to enforce calls against one, who signed the commissioners' paper for shares, before the organization. Held, the commissioners were to be regarded as agents of the company. See also Troy & Boston Railway v. Tibbitts, 18 Barb. 297 ; Stanton v. Wilson, 2 Hill, 153 ; Troy & Boston Railway v. War- ren, 18 Barb. 310 ; Hamilton Plank Road Co. v. Rice, 7 Barb. 157 ; vStewart v. Hamilton College, 2 Denio, 417; Danbury & N. Railway v. Wilson, 22 Conn. 435. So also a subscription to the capital stock of a railway, made on the solici- tation of one, who was not a commissioner, but who felt an interest in the road, and volunteered to take up subscriptions to its stock, was held valid in a very recent case. Railroad Company v. Rodrigues, 10 Rich. (S. C.) R. 278. 2 Kidwelly Canal Co. v. Raby, 2 Price, Exch. R. 93. 3 Troy and Boston Railway v. Tibbitts, 18 Barb. 298. 4 Macedon & Bristol Plank R. v. Lapham, 18 Barb. 313. In this last case it 104 § 57.] ASSESSMENTS OK CALLS. * 98 one * might perhaps raise some question, whether, upon general principles, such a subscription ought not to be binding, as a seems to have been decided that such a subscription is not good, as a subscription for stools, not upon the ground mainly that it was conditional and so against pub- lic policy, or from want of mutuality, but upon the ground of an extension of the road and an increase of the capital stock. But see also Utica & Sch. Rail- way V. BrinkerhofF, 21 Wend. 139, where such a decision is made. But the cur- rent of authority, both English and American, is almost exclusively in a counter direction. It is impossible, upon any fair ground of construction, to consider such a subscription, where the road is located in a given line, in faith, and in fulfilment of the condition, as a mere offer, unaccepted. It is a profiler, a proposal, accepted, and as much binding as any other possible consideration. But if it were to be regarded as a mere offer, standing open, upon every principle of reason and law, when accepted, according to its terms, it is binding as a contract and no longer revocable, and the only case, of much weight, which ever attempted to maintain the opposite view, that of Cooke v Oxley, 3 T. R. 653, has been regarded as overruled upon that point for many years. See L'Amoreaux v. Gould, 3 Selden, 349 ; Conn. & Passumpsic Rivers Railway v. Bailey, 24 Vt. R. 478. In the case of Boston & Maine Railway v. Bartlett, 3 Cush. R. 224, the subject is very justly illustrated by Mr. Justice Fletcher : " In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer during the time limited" for acceptance ; and, during the whole of that time, it was an offer every instant, but as soon as it was accepted, it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying that the writing when made was without • consideration, and did not therefore form a contract. It was then but an offer to contract ; and the parties making the offer most undoubtedly might have with- drawn it at any time before acceptance. " But when the offer was accepted, the minds of the parties met, and the con- tract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting, in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once. " A different doctrine, however, prevails in France, and Scotland, and Holland. It is there held, that whenever an offer. is made, granting to a party a certam time within which he is to be entitled to decide, whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respectable authors regard it as inconsistent with the plam principles of equity, that a person who has been induced to rely on such an en- gacrement, should have no remedy in case of disappointment. But, whether wisely and equitably or not, the common law unyieldingly insists upon a consideration, or a paper with a seal attached. ^99 THE LAW OF RAILWAYS. [§58. standing * offer accepted and acted upon by the company, which is sufficient consideration for the promise.* SECTION XII. SUBSCKIPTION UPON SPECIAL TEKMS. 1. Subscriptions not payable in mmey. 2. Subscriptions at a discount, not binding. Note 2. Contracts to release subscriptions not binding. § 58. 1. It is well settled, that a railway, or other joint-stock company, cannot receive subscriptions to their stock, payable at less sums, or in other commodities, than that which is demanded of other subscribers. Hence subscriptions, payable in store-pay, or otherwise than in money, will be held a fraud upon the other subscribers, and payment enforced in money.' " The authorities, both English and American, in support of this view of the subject, are very numerous and decisive ; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports as well as in the text-books. The case of Cooke v. Oxley, 3 T. K. 653, in which a different doctrine was held, has occasioned considerable dis- cussion, and, in one or two instances, has probably influenced the decision. That case has been supposed to be inaccurately reported ; and that in fact there was in that case no acceptance. But, however that may be, if the case has not been , directly overruled, it has certainly in later cases been entirely disregarded, and cannot now be considered as of any authority. " As, therefore, in the present case, the bill sets out a proposal in writing, and an acceptance and an offer to perform, on the part of the plaintiffs, within the time limited, and while the offer was in full force, all which is admitted by the demurrer, so that a valid contract in writing is shown to exist, the demurrer must be overruled." 5 See this subject more fully discussed in §§ 51, 55, ante. 1 Henry v. Vermilion & Ashland Railway Co. 17 Ohio R. 187. But in a re- cent case, Philadelphia & West Chester Railw. v. Hickman, 28 Penn. R. 318, it is said the company may compromise subscriptions for stock, which are doubtful, upon receiving part-payment ; or may receive payment in labor or maferials, or in damages which the company is liable to pay, or in any other liability of the corporation. The certificates of stock in this case were issued to the contractors, in part-payment of work done by them upon the road ; to others, in part-pay- ment for a locomotive, for sleepers, for land-damages, and for cars. We do not understand how there can be any valid objection to receiving payment for sub- scriptions to the capital stock of a railway company in this mode, if the shares, so disposed of, are intended to be reckoned at their fair cash value, at the time of the contract being entered into. It is certain, contracts of this kind have been very 106 § 58.] ASSESSMENTS OR CALLS. * 99 2. So too in a case where subscriptions to stock of such a company are, by the agents .of the company, agreed to be re- ceived at a discount, below the par value of the shares, it will be regarded as a fraud upon the other shareholders, and not binding upon the company.^ generally recognized by the courts as valid, and no fraud upon the other sub- scribers. 2 Mann v. Cooke, 20 Conn. K. 178. In this case the defendant subscribed for forty shares in the capital stock of a railway company, upon condition that all future calls should be paid, as required, or the shares should become the property of the company. He thereupon received certificates of ownership of the forty shares, the special terms of his subscription not being known to the other sub- scribers. Some time afterwards, the company being largely indebted, and insolvent, and the greater part of the instalments on its stock being unpaid, the president made an arrangement with defendant that he should immediately pay the instalments on twenty shares of his stock, in full, and he was thereupon to be discharged from all liability on the other twenty shares. Defendant complied with these terms, and the money paid went for the benefit of the company. The plaintiff was appointed receiver of the effects of the company, and brought this bill in equity to obtain payment of the balance due upon the other twenty shares, and it was held : — 1. That the subscription for the stock was in legal effect the same as an ordi- nary subscription for stock, without condition. 2. That the arrangement made with the president of the company was void, as a fraud upon stockholders and creditors. 3. That the company, being created for public purposes, could not receive sub- scriptions, under a private arrangement, at less than the par value of the stock, as this would deprive the company of so much of its available means, and thus oper- ate, as a fraud, upon all parties interested. But where on« paid for stock in a railway company, under a secret agreement with the commissioner of contracts, that he might receive land of the company, at a future day, and pay in the stock certificate, and the company declined to ratify the contract, it was held the subscriber was released from his portion of the con- tract, and might recover the money he paid for the stock of the company. Wee- den V. Lake Erie & Mad River Railway, 14 Ohio, 563. But in the case of the Cincinnati, Indiana, & Chicago Railway v. Clarkson, 7 Ind. R. 595, it seems to be considered, that the company are bound by a contract to compensate a solicitor of subscriptions to the capital stock, payable in land, but no question is made in regard to the validity of the subscriptions. The solicitors were ordered by the directors to accept such subscriptions, and were to have two per cent, on all which were accepted by the company, and the contract was held binding upon the com- pany. An agreement by a railway company, that a subscriber for stock may pay the full amount, or any part of his subscription, and receive " interest thereon until the road goes into operation," does not oblige the company to pay interest before the road goes into operation. Waterman v. Troy & Greenfield Railway, 20 Law R. 351. 107 '100-101 THE LAW OF RAILWAYS. [§59. ♦SECTION XIII EQUITABLE BELIEF FROM SUBSCRIPTIONS OBTAINED BY FRAUD. 1 . Substantial misrepresentations in obtaining subscriptions will avoid them, 2. But for circumstantial misconduct of the directors, in the matter, they alone are liable, 3. Directors cannot make profit for themselves. § 59. 1. The directors of a railway company, who make repre- sentations on behalf of the company, to induce persons to sub- scribe for the stock, so far represent the company, in the transac- tion, that if they induce such subscription, by a substantial fraud, the contract will be set aside, in a court of equity.^ The proper inquiry in such case is, " "Whether the prospectus, so issued, con- tains such * representations, or such suppression of existing facts, as, if the real truth had befen stated, it is reasonable to believe, the plaintiff would not have entered into the contract, that is, that he would not have taken the shares allotted to him, and those which he purchased." ^ 2. But the omission to state in a prospectus the number of ' Sir John Romily, M. K., in Pulsford v. Richards, 19 Eng. L. & Eq. R. 392. The prospectus issued in such cases i^ to be regarded as a representation. And where one is induced to take shares in a joint-stock company, through the false and fraudulent representations of the directors, he is not liable to calls for the purpose of paying the expenses -of the company. The Royal British Bank, Brockwall's case, 29 Law Times, 375. And where one of the directors of a company put the name of an extensive stockholder in the company, who resided in a foreign country, to a new subscrip- tion, for forty additional shares, without consultation with such person, upon the belief that he would ratify the act, and, upon being informed of such act, he made no objection for the period of nearly seven years, during which time the company had applied the dividends upon his stock, in payment of such subscription, having no intimation of any dissent upon his part, it was held the subscription thereby became binding, and that the party could not recover such dividends of the com- pany. Philadelphia, Wilmington, & Baltimore Railw. v. Cowell, 28 Penn. St. R. 329. 2 Pulsford V. Richards, 19 Eng. L. & Eq. R. 392 ; Jennings v. Broughton, 19 Eng. L. & Eq. R. 420. One, to entitle himself to be relieved from his subscrip- tion, must show that he acted, upon the false representations of the directors, in a matter of fact, material, to the value of the enterprise, and not upon the mere speculation of the directors, or upon his own exaggerated expectations of the prospective success and value of the undertaking. See also, upon this general subject, the remarks of the Master of the Rolls, p. 427. 108 § 60.] ASSESSMENTS OR CALLS. * 102 shares taken, by the directors, or other persons, in their interest, is no such fraud as will enable a subscriber to avoid his subscrip- tion.^ The fact that the directors of the company had entered into a contract with one, as general superintendent of construc- tion, for four per centum upon the expenditure ; and that this was an exorbitant compensation, and was, in fact, intended to com- pensate such person for his services, in obtaining the charter, and that this is not stated in the prospectus, is no such suppression as will exonerate subscribers for stock. " There was not the sup- pression of a fact, that affected the intrinsic value of the under- taking. That value depended upon the line of the projected railway, the population, the commercial wealth, the traffic of the places through which it passed, the difficulties of the construc- tion, and the cost of the land required. Extravagance in the formation of a line of railway is a question of liability of the individual directors to the shareholders, but not a ground for an- nulling the contract between them." ^ 3. But the learned judge here suggests, Avith great propriety, that if the directors have made contracts, in the course of the performance of their duties, from which advantage is expected to arise to themselves, or to others, for their benefit, mediately, or immediately, they may, in a court of equity, be made to stand in the place of trustees to the shareholders.^ ♦SECTION xiv. FOKPEITURB OF SHARES. HELIBF IN EQUITY. 4. Provisions of English statutes. 5. Evidence must be express, that all requi-- site steps were pursued. 1 . Requirements of charter and statutes must be strictly pursued. 2. If not, equity will set aside the forfeiture. 3. Must credit the stock, at full market value. § 60. 1. The company, in enforcing the payment of calls by forfeiture of the stock, must strictly pursue the mode pointed out in their charter and the general laws of the state. This is a rule of universal application to the subject of forfeitures, and one which the courts will rigidly enforce, and more especially, where the forfeiture is one of the prescribed remedies, given to the party, and against which equity does not relieve, when fairly ex- ercised.' ^ 3 Posi, §179. 1 Sparks V. Liverpool Water Works, 13 Vesey, 428; Pendergrast v. Turton, 1 10 109 *103 THE LAW OF RAILWAYS. [§ 60. 2. But as the company, in such case, ordinarily stand in both relations, of vendor and vendee, their conduct, in regard to fair- ness, will be rigidly scrutinized, and the forfeiture set aside in courts of equity, upon evidence of slight departure from perfect fairness. 3. Hence where the company declared the stock cancelled, and credited the value at a less sum than the actual market price, at the time, but more than.it would probably have sold for, if that number of shares had been thrown, at once, into the market, the court set aside the forfeiture, on the ground that the company were bound to allow the highest market price, which could be obtained, without speculating on what might be the effect of throwing a large number of shares into the market.^ 4. By the English statute the company are not allowed to forfeit a larger number of shares, than will produce the defi- ciency required.^ And upon payment to the company of the amount of arrears of * calls, interest, and expenses, before such forfeited shares are sold by them, the shares revert to the former ^owner.^ 5. The evidence of the company having pursued the require- ments of their act, in declaring the forfeiture, must be express and not conjectural.* Younge & Coll. N. R. 98, 110-112. This case is put mainly upon the ground of delay and acquiescence, but there is little doubt, it would have been maintained, upon the general ground stated in the text. See Edinburgh, Leith, & N. H. Railway v. Hibblewhite, 6 M. & W. 707 ; 2 Railw. C. 237. But where the deed of settlement of a joint-stock company provides for a for- feiture of the shares without notice to the subscriber, the forfeiture determines the title without notice. Stewart v. Anglo-California Gold Mining Co. 14 Eng. L. & Eq. R. 51. s Stubbs V. Lister, 1 Y. & Coll. N. C. 81. 3 8 & 9 Vict. ch. 16, § 34, 35. * Cockerell v. Van Dieman's Land Co. 36 Eng. L. & Eq. R. 405. 110 §61.] RIGHT OF WAY BY GRANT. '104-105 'CHAPTER X. RIGHT OF WAY BY GRANT. SECTION I. OBTAINING LANDS BY EXPRESS CONSENT. 1 . Leave granted by English statute. 2. Persons under disability. 3. 11. 2. Money to take the place of the land. 4. Consent to pass railway. 5. Duty of railway in all cases. 6. License to build railway. Extent of du- ration. 7. Company bound by conditions in deed. 8. Parol license good, till revoked. 9. Sale of road no abandonment. 10. Deed conveys incidents ; not explainable. § 61. 1. The English statute i enables railway companies to purchase, by contract with the owners, " all estates or interests (in any lands) of what kind soever," if the same, or the right of way over thera, be requisite for their purposes. 2. And by another section of the same statute such companies are empowered to purchase such lands of persons legally inca- pacited to convey the title, under other circumstances, as guar- dians of infants, committees of lunatics, trustees of charitable or other uses, tenants in tail, or for life, married women, seized in their own right, or entitled to dower, executors or administrators, and all parties, entitled, for the time being, to the receipt of the rents and profits.^ * 3. The valuation in this latter class of cases is to be made 1 8 and 9 Vict. cli. 18, § 6. 2 Hutton V. The London & South W. Railway, 7 Hare, 264. Some sugges- tions are here made by Vice-Chancellor Wigram in regard to the time within which it is requisite to make compensation in the several modes of taking lands. The principal question decided is, that in regard to lands, injuriously affected, by railway works upon other lands, it is not requisite to make compensation in ad- vance. But where lands are purchased from persons under disability, the course of devolution of the property is not thereby changed, but the money paid, in compensation, is to take the place of th^ land, and to be treated as real estate. Midland Counties Railway v. Oswin, 3 Railw. C. 497; Ex parte Flamank, 1 Simons (n. s.) 260 ; In re Horner's Estate, 13 Eng. L. & Eq. R. 531 ; In re Stewart's Estate, 13 Eng. L. & Eq. R. 533. Ill »105 THE LAW OF RAILWAYS. [§ 61. by disinterested persons and the price paid into the bank, for the benefit of the parties interested. 4. And where a railway act provided, in terms, that nothing therein should authorize the company to do any damage or preju- dice to the lands, estate, or property of any corporation or person whatsoever, without the consent in writing of the owner and occupier, it was held they could not pass the line of another rail- way without their consent, although the withholding of such consent should frustrate the purpose of the grant.^ 5. In this country most of the railway charters contain a power to the company to acquire lands, by agreement with the owner. In such case it has been held the rights of the company are the same, as where they take the land under their compulsory pow- ers.* And they are bound to the same care in constructing their road.* 6. And where the railway have the power to take five rods, through the whole course of their line, and a land-owner deeds them the full right to locate, construct, and repair, and forever maintain and use their road over his land, if in laying the drains or ditches through the land, it becomes necessary to go beyond the limits of the five rods, in order to guard against the effect of a stream to be passed, the company may lawfully do so under the grant.^ 3 Clarence Railway v. Great North of England Railway, 4 Queen's Bench, R. 46 ; Gray v. The Liverpool & Bury Railway, 4 Railw. C. 235. * Whitcomb v. Vermont Central Railway, 25 Vt. R. 49, 69. This right to acquire lands, by contract with the owners is, by implication, if not expressly, limited to the necessities of the company, we presume, the same, as taking lands in ihvilum, and cannot be extended to any private use. But if the owner of the land consent to the use, the constitutional objection is removed, and the right to hold the land, is a question between the company and the public, probably. Dunn V. City of Charleston, Harper, 189 ; Harding v. Goodlet, 3 Yerg. 41 ; 11 Wend. 149 ; Embury v. Conner, 3 Comstock, 516. 6 Babeook v. The Western Railway, 9 Met. 553. But a contract with the owner of land, for leave to build the road through his land, and staking out the track through the land is no such occupation as will be notice of the right of the company against a subsequent mortgagee. Merritt v. Northern Railway, 12 Barb. 605. But the payment by the company of .the price of the land, and changing their route in faith of the title, might give them an equity superior to that of a subsequent mortgagee. lb. The deed of one tenant in common is a good release of his claim for damages, although it convey no right, as against his co-tenant. Draper v. Williams, 2 Mich. 536. 112 § 61-] RIGHT OF WAY BY GRANT. * 106 * 7, In case of a deed to a railway company of land, on which to construct their road, the assent of the company will be pre- sumed, and they are bound by the conditions of the grant, as that the road shall be so constructed as not to interfere with buildings on the land.^ 8. An oral permission to take and use land for a railway is a bar to the recovery of damages for such use, until the permission is revoked.'' But a mere license to build works connected with a railway, the damages to be settled with a person named, or " on equitable terms hereafter," does not amount to any definite agree- * rnent,^ 9. Where land is conveyed, for the use of a railway, upon con- dition, that it shall revert to the owner upon the abandonment of the road, and the road was sold, under a mortgage, to the state, and by the state, and by new companies chartered for that purpose, completed, it was held, that the grantor was not entitled to hold the land.9 s Kathbone v. Tioga Navigation Co. 2 Watts & Serg. 74. And the rights and duties of the company, in such case, are precisely the same as if the land had been condemned, by proceedings in invitum, under the statute. Norris v. Vt. Central Railway, 28 Vt. R. 99. '' Miller v. Auburn & Syracuse Railroad, 6 Hill, 61. And such license, when executed, by the construction of the work, is not allowed to be revoked. The only relief the party is entitled to is compensation for his land. Water Power v. Chambers, 1 Stock. Ch. R. 471. 8 Fitchburg Railway v. Boston & Maine Railway, 3 Cush. 58. 9 Harrison v. Lexington & Ohio Railway, 9 B. Mon. 470. So too if land is conveyed, on condition, that an embankment, (water tight,) over a. brook crossing the land, shall be erected by the grantors, and that the embankment, or dam, with the floodgates or sluices therein might be used, for hydraulic purposes, by the grantors, their heirs, and assigns, the grantees not to be liable to the grantors, for any dajiiage they might sustain, by a break in such dam, unless the same should happen through the gross neglect, or wilful misfeasance of the grantees, but that the grantees should repair the dam forthwith ; it was held to be a condition subsequent, the failure to perform which would give the grantors, or their heirs, a right of reentry, at their election. But it was further said, that the conveyance of the estate by the grantees defeated the condition, and that the assignee had no remedy upon it. Underbill v. Saratoga and Wash. Railw. 20 Barb. 455. And such conditions may be waived by the party, in whose favor they are made, as in a grant of land for a railway track, the road to be completed, by a day named, or the deed to be void, which was not done ; but the grantor continued to treat the company, as having the right to use the land for the purposes of the grant, and it was held a waiver of the condition. Ludlow u. New York & Harlaem Railway, 12 Barb. 440. 10* 113 * 107 THE LAW OF RAILWAYS. [§ 62. 10. Where land was conveyed to a railway company, for the purpose of constructing their road, on which was a tenement, and to this, water was conveyed by an aqueduct from another portion * of the land of the defendant, and the price of the land was fixed, by the commissioners, the defendant at the time claiming the right to withdraw the water, and this not being objected to by the president, and engineer of the company, who were present, at the time, it was held, that the deed containing no exception, in regard to the water, the company acquired the right to its use, in the manner it had been before used, and the^ defendant was liable to an action for diverting it,i» and the intention of the parties could not be determined by extraneous evidence. SECTION II. SPECIFIC PEKFORMANCE IN EQUITY. 1. Contracts before and after date of charter. 2. Contracts where all the terms not defined. 3. Contracts for land, umpire tojix price. i. Where mandamus also lies. 5. Contracts not signed by company. 6. Where terms are uncertain. 7. Contracts giving the company an option. , 8. Contracts not understood by both parties. 9. Order in regard to construction of high- ways may be enforced at the suit of the mumci: § 62. 1. There can be no doubt courts of equity will decree specific performance of contracts for land, made by consent of the owners, as well after the act of parliament as before.^ 2. If the agreement contains provisions for farm crossings, fences, and cattle-guards, either express or implied, the master will be directed to make the proper inquiry, and any decree for specific performance should provide minutely for all such inci- dents.2 Butj upon general principles, if the agreement provide, that the price of land is to be fixed, by an arbitrator or umpire, it has generally been held, that a suit for specific performance is not maintainable.^ 10 Vermont Central Railway v. Hills, 23 Vt. R. 681. 1 Appendix A, § 13, etseq.; Walker v. The Eastern Counties Railway Co. 5 Railw. C. 469 ; 8. C. 6 Hare, 594. 2 Sanderson v. Cockermouth & Washington Railw. Co. 19 Law Jour. Ch. 503 ; 11 Beavan, 497. 3 Milnes v. Gerry, 14 Vesey, 400. But in this case the umpire was not agreed upon, and the court held they could not appoint one. But the Master of the Rolls held that an agreement to sell, at a fair valuation, may be executed. 114 § 62.] RIGHT OF WAY BY GRANT. *108 3. But if the arbitrator have acted and fixed the price,* and by- parity of reason, if the umpire is named, and ready to act, there * being no power of revocation, a court of equity may decree spe- cific performance. Hen«e in the case above,i the Vice-Chancel- lor held, that, as the contract was, to take the land, on the terms prescribed in the act of parliament, the court had the means of applying those terms, so as to get at the price, and might there- fore require the party to put them in motion, and then, in its discretion, decree specific performance. 4. And the consideration, that possibly the party might pro- ceed, by mandamus, will not deprive him of this remedy, in equity, unless the act specially provides the remedy, by man- damus.^ 5. But if the company take a bond of a land-owner, to convey so much land as they shall require, and subsequently appropriate the land, but decline accepting a deed and paying the price, equity will not decree specific performance of the contract, the bond not being signed by the .company.^ But in such a case specific performance will be decreed against the party signing the bond upon refusal.' 6. A contract to sell a railway company " the land they take " from a specified lot of land, at twenty cents a foot, " for each and every foot so taken by said company," imports a taking by the company, under their compulsory powers, and wiU not be specifically enforced, until so taken by the company. And if the terms of a contract are doubtful, a court of equity will not decree specific performance.^ 7. Where one contracts with a railway company, under seal, to ' permit them to construct their road over his land, in either * Brown V. Bellows, 4 Pick. 179. 5 Hodges on Railways, 189. 6 Jacobs V. Peterborough & Shirley Railway, 8 Cush. 223. 7 Parker v. Perkins, 8 Cush. 318. 8 Boston & Maine Railway v. Babcock, 3 Cush. 228 ; 1 Am. Railw. C. 561. But a contract with a railway company, giving them all the land they desired, not exceeding four poles in width, upon which to construct their road, " provided said road shall not run further north of my southwest corner than ten feet, and not further south of my northeast corner than 140 feet," it was held, the company had a right to 66 feet through the whole land, and were only restricted in relation to the distance the road went from the corners named. Lexington & Ohio Railway V. Ormsby, 7 Dana, 276. 115 * 109 THE LAW OF RAILWAYS. [§ 62. one of two routes, and to convey the land after the road shall be definitively located, with a condition that the deed shall be void, when the road shall cease, or be discontinued, if the com- pany take the land and build their road upon it, specific perform- ance wiU be decreed, although the company did not expressly bind themselves to *take the land, or pay for it. And where the company had been in the use of the land for their road, three or four years, it was held no such unreasonable delay, as to bar the relief sought. The party cannot excuse himself by showing, that from his own notions, or the representations of the company, or of third persons, he was induced to believe that a different route would have been adopted by the company, or that there was an inadequacy in the price stipulated, unless it be so gross, as to amount to presumptive evidence of fraud or mistake.^ 8. But it is a good defence in such case, that the party was led into a mistake, without any gross laches on his part, by an uncertainty, or obscurity, in the descriptive part of the agreement, so that it applied to a different subject-matter, from that which he understood at the time, or that the bargain was hard, unequal, or oppressive, and would operate in a manner different from that which was in the contemplation of the parties, when it was ex- ecuted. But in such case the burden of proof is upon the de- fendant, to show piistake or misrepresentation.^ 9. Where the county commissioners made order in regard to the mode of construction of a railway, in crossing a highway, it was held, that the mayor and aldermen of a city, or the select- men of a town, are the only proper parties to a bill for specific performance, and that the land-owners over which the railway passes, are not to be joined in the biU.i" But where the order " Western Railway v. Babcook, 6 Met. 346 ; 1 Am. Eailw. C. 365. The de- livery of a deed to the agent of the corporation, in such case is sufficient. And where the party, in disregard of his* contract, had obtained a,n assessment of dam- ages for the land, under the statute, his liability upon the contract is, to the difiference between the apprisal and the stipulated price in the contract. Unreasonable delay is ordinarily a bar to spepific performance in a court of equity. Guest v. Homfray, 5 Vesey, 818 ; Hertford v. Boore, Aston v. Same, 5 Vesey, 719 ; Watson u. Keid, 1 Russ, & My. 236 ; 2 Story's Eq. Jur. § 771, 777, and cases cited. 10 Brainard v. Conn. River Railway, 7 Cush. 506. In Roxbury v. Boston & Prov. Railway, 6 Cush. 424, it was also held the commissioners must make such order specific, and not in the alternative, and that laches, in regard to such order, 116 §63.] EMINENT DOMAIN. * 110-111 required the highway * to be so raised, as to pass over the railway, at a place named, but without defining the height to which it should be raised, the grade, the nature of the structure, or the time within which it should be made, it was held too indefinite to justify a decree for specific performance.'^ * CHAPTER XL EMINENT DOMAIN. SECTION I. GENERAL PRINCIPLES. t. Definition of the right. 2. Intercommunication. 3. Necessary attribute of sovereignty. 4. Antiquity of its recognition. 6. Resides principally in the slates. 7. Duty of making compensation. 8. Navigable waters. 9. 10, and 11. Its exercise in rivers, above 5. Limitations upon its exercise. 1 tide-water. § 63. 1. This title is very little found in the English books, and scarcely in the English dictionaries. But with us, it has been adopted from the Writers on national and civil law, upon the continent of Europe,' and is perhaps better understood than will not defeat the claim for a decree for specific performance, where public secu- rity is essentially concerned. And courts of equity have held a parol license to erect public works, and the works erected in faith of it, irrevocable, and the company entitled to hold the land upon making compensation, and have virtually decreed specific performance. Water Power Co. v. Chamber, 1 Stockton, Ch. R. 471. See also Hall v. Chaffee, 13 Vt. R. 150 ; Boston & Maine Railway v. Bartlett, 3 Cush. R. 224. But it was held that an action for the price of land, will not lie upon a parol contract of sale, where there had been no conveyance of the land, although the company had taken possession and paid part of the price. Reynolds- v. Dunkirk & State Line Railway, 17 Barb. 612. This is undoubtedly according to the generally recog- nized rule upon the subject, in those states where the Statute of Frauds is in force. " City of Roxbury v. Boston & Providence Railway, 2 Gray, 460. 1 Vattel, B. 1, ch. 20, § 244 ; Code Napoleon, B. 2, tit. 2, 545 ; 1 Black. Comm. 1S9 I Gardner v. Newburgh, 2 Johns. Ch. 162; 2 Dallas, 310. 117 *111 THE LAW OF RAILWAYS. [§ 63. almost any other form of expression, for the same idea. It is defined to be that dominium eminens, or superior right, which of necessity resides in the . sovereign power, in all governments, to apply private property to public use, in those great public emer- gencies, which can reasonably be met in no other way. 2. It is a distinct right from that of public domain, which is the land belonging to the sovereign. This is a superior right which the sovereign possesses in all property of the citizen or subject, whether real or personal, and whether the title were orig- inally derived from the sovereign or not. One of the chief occa- sions for the exercise of this right is, in creating the necessary facilities for intercommunication, which in this country is now very generally known by the name of Internal Improvement. This extends to the construction of highways (of which turn- pikes and railways are, in^ some respects, but different modes of construction and maintenance,) canals, ferries, wharves, basins, and some others.^ 2 3 Kent, Comm. 339 et seq. and notes ; Beekman v. Saratoga & Sch. Railway, 3 Paige, 45, 73 ; 12 Pick. 467 ; 23 id. 327 ; 3 Selden, 314. This right, as some of the above cases show, extends to numerous matters not named in the text. It would be out of place here to enter into the discussion of the general subject. The indispensable prerequisites to the exercise of the right will appear, as far as they apply to the subject, in the following sections. That railways are but improved highways, and are of such public use, as to jus- tify the exercise of the right of eminent domain, by the sovereign, in their con- struction, is now almost universally conceded. Williamsoi; v. N. Y. Central Eailway, 18 Barb. -222, 246 ; State v. Rives, 5 Ired. 297 ; Northern Railway v. Concord & Claremont Railway, 7 Foster, 183 ; Bloodgood v. M. & H. Railway, 18 Wend. 9 ; s. c. 14 Wendell, 51 ; 1 Bald. C. C. Reports, 205. See also 3 Paige, 73 ; 3 Seld. 314. It seems to be well settled, that the legislature have no power to take the prop- erty of the citizens for any but a public use ; but that a railway is such use. Bradley v. N. Y. & N. H. Railway, 21 Conn. Rep. 294; Symonds v. The City of Cincinnati, 14 Ohio, 147 ; Embury v. Conner, 3 Comst. 511. But this is a power essentially different from that of taxation, in regard to which there is no constitutional restriction, and no guaranty for its just exercise, except in the discretion of the legislature. The People v. Mayor of Brooklyn, 4 Comst. R. 419 ; Cincinnati, W. & Z. Railway v. Clinton Co. Comm. 1 Ohio St. R. 77. The legislature must decide, in the first instance, when the right of eminent domain may be exercised, but this is subject to the revision of the courts, so far as the uses to which the property is applied, are concerned. 2 Kent, Comm. 340. But, as to the particular instance, the decision of the legislature, and of the 118 § 63.] EMINENT DOMAIN. * 112-113 * 3. This is a right in the sovereignty, which seems indispensa- ble to the maintenance of civil government, and which seems to be rather a necessary attribute of the sovereign power in a state, than any reserved right in the grant of ptoperty to the subject or citizen. 4. It seems to have been accurately defined, and distinctly recognized, in the Roman empire, in the days of Augustus, and his immediate successors, although from considerations of policy and personal influence and esteem, they did not always choose to exercise the right, to demolish the- dwellings of the inhabi- tants, either in the construction of public roads or aqueducts, or ornamental columns, but to purchase the right of way.^ 5. But in the states of Europe ' and in the written constitu- tion * of the United States, and in those of most of the American States, an express limitation of the exercise of the right makes it dependent upon compensation to the owner. But this provision in the United States constitution is intended only, as a limita- tion upon the exercise of that power, by the government of the United States.^ 6. And it would seem, that notwithstanding this right of sov- ereignty may reside in the United States, as the paramount sov- ereign, so far as the territories are concerned, in reference to internal communication, by highways and railways, and not- withstanding the ownership of the soil of a portion of the lands, by the United States, in many of the states, as well as territo- ries, still when any of the territories are admitted into the Union, as independent states, the general rights of eminent domain are vested exclusively in the state sovereignty.^ commissioners appointed to exercise the power, is ordinarily final and not revis- able in the courts of law. Varrick v. Smith, 5 Paige, 137 ; Armington u. Bamet, 16 Vt. R. 745. And the legislature may restrain the owners of property, in its use, when in their opinion the public good requires it, without compensation, as this is not the exercisfe of the right of eminent domain. Commonwealth v. Tewksbury, 11 Met. 55 ; Coates v. Mayor of New York, 7 Cowen, 585. But see Clark v. Mayor of Syracuse, 13 Barb. 32. The following ease recognizes the general right stated in the text. Donnaher V. The State, 8 Sm. & M. 649. 3 Tacitus, Annals, Lib. I. § 75, et seq; Plin. Hist. Lib. 36, 2, et seq. * Barron v. Baltimore, 7 Peters, 243 ; Fox v. The State of Ohio, 5 How. 410, 434, 435. s Pollard v. Hagan, 3 How. 212 ; Goodtitle v. Kibbe, 9 How. 471 ; Doe v. 119 * 114 THE LAW OF RAILWAYS. [§ 63. 7. The duty to make compensation for property, taken for pub- lic use, is regarded, by the most enlightened jurists, as founded in the fundamental principles of natural right and justice, and as lying at the basis of all wise and just government, independent of all written constitutions, or positive law.^ 8. But the public have a right, by the legislature, through the proper functionaries, to regulate the use of navigable waters, and the erection of a bridge, with or without a draw, by the authority of the legislature, is the regulation of a public right, and not the deprivation of a private right, which can be made the ground of an action, even where private loss is thereby produced, nor is it the taking of private property, for public use, which will entitle the owner to compensation.' 9. And where a ford-way was destroyed, by the erection of a dam across a river, in the construction of a canal, or other public work, under legislative grant, the river being a public highway, although "not strictly navigable, in the common-law sense, (which only included such rivers, as were affected by tide water,) it was held the owner of the ford-way could recover no compensation from the state, or their grantees, the act being but a reasonable exercise of the right to improve the navigation of the stream, as a public highway.^ 10. Neither can the owner of a fishery, which sustains damage, or destruction, by the building of a dam, to improve the naviga- Beebe, 13 How. 25 ; United States v. Railway Bridge Co. 6 McLean, K. 517. In the Court of Claims recently, in the case of The Illinois Central Railway v. United States, 20 Law Kep. 630, it was held, that the abandonment of a military reserve, which had become useless for military purposes, causes it to iall back into the general mass of public lands, and that a state, by virtue of its right of eminent domain, may authorize the construction of railways through land owned but not occupied by the United States. And the United States being in possession of land owned by the plaintiffs, and which was necessary to carry out the objects of their charter, it was held, that a payment made by the plaintiffs, to obtain posses- sion thereof, was made under duress, and might be recovered. 6 Spencer, Ch. J., in Bradshaw v. Rogers, 20 Johns. 103 ; 2 Kent, Comm. 339, and note and cases cited, from the leading continental jurists. T Davidson v. Boston & Maine Railway, 3 Cush. 91 ; Gould v. Hudson River Railway, 12 Barb. 616 ; s. c. 2 Selden, 522. Nor have the state any such right in flats, where the tide ebbs and flows, as to require a railway company to pay them damages, for the right of passage. Walker v. Boston & Maine Railway, 3 Cush. 1 ; 1 Am. Railw. C. 462. 8 Zimmerman v. Union Canal Co. 1 Watts & S. 346. 120 §64.] EMINENT DOMAIN. *115 tion of a river, above tide water, under grant from the state, sus- tain an action against the grantees.^ So also in regard to the loss of the use of a spring, by deepening the channel of such a stream, by legislative grant.^<> 11. Nor is the owner of a dam erected by legislative grant upon a navigable river, and which was afterwards cut off, by a canal, granted by the same authority, entitled to recover dam- ages.^ SECTION II. TAKING LANDS IN INVITUM. 1 . Legislative grant requisite. 2. Compensation must be made. 3. Consequential damages. 4. Extent of such liability. 5. These grants strictly construed. 6. Limitation of the power to take lands. 7. Interference of courts of equity. 8. Rule of construction in American courts. 9. Strict, but, reasonable construction. 10. Rights acquired by company. 1 1 . Limited by the grant. § 64. 1. In England railways can take lands by compulsion, only in conformity to the terms of their charters, and the general laws defining their powers.' And in this country a railway com- pany or other corporation must show, not only the express war- rant of the legislature,^ (which it must for all its acts,) for taking * the lands of others, for their own uses, but also that the legis- lature, in giving such warrant, conformed to the constitutions of the states, in most of which it is expressly required, that com- pensation should be made for all lands taken. And upon this subject, the circumspection of the English courts, in requiring damage and loss, to the land-owners, to be fairly met, is shown ' Shrunk v. Schuylkill Navigation Co. 14 Serg. & Rawle, 71. 1* Commonwealth v. Ritcher, 1 Penn. 467. 11 Susquehannah Canal Co. v. Wright, 9 Watts & Serg. 9 ; Monongahela Navi- gation Co. V. Coons, 6 id. 101. » Taylor v. Clemson, 3 Railw. C. 65. Tindal, Ch. J.', here said, " This authority to take land, if exercised adversely, and not by consent, is undoubtedly an au- thority to be carried into effect, by means unknown to the common law." And in Barnard D. Wallis, 2 Railw. C. 177, the Master of the Rolls declares, that aside from the provisions of the act of pariiament, the owner of one rod of land may insist upon his own terms, to the utter overthrow of the most important public work. " The price of his consent must be determined by himself. " 2 Hickok V. Plattsburgh, 15 Barb. 435 ; 4 Barb. 127 ; Halstead v. Mayor, &c., of New York, 3 Comst. 430; Hart v. Mayor of Albany, 9 Wend. 571, 588 ; 2 Denio, 110 ; Dunham v. Trustees of Rochester, 5 Cowen, 462. 11 121 *116 THE LAW OF RAILWAYS. [§ 64. very fully, by the language of Lord Denman, Ch. J., in The Queen v. The Eastern Counties Railway .» 2. " We think it not unfit to premise, that when such large powers are intrusted to a company, to carry their works into execution, without the consent of the owners and occupiers of the land, it is reasonable and just, that any injury to property which can be shown to arise from the prosecution of those works, should be fairly compensated for, to the party sustaining it." • 3. In the English statute, too, railway companies are made liable to pay damage to the owner of all lands " injuriously af- fected " by any of their worts. Such a provision does not exist, in many of the American states, and consequently no liability is imposed, for merely consequential damages to lands, no part of which is taken.* 4. Under the English statute giving damage where lands are " injuriously affected," railways have been held liable for all acts, which, if done without legislative grant, would constitute a nui- sance, and by which a particular party incurs special damage.^ 5. These grants being in derogation of common right are to receive a reasonably strict and guarded construction.® The Master of the Rolls, in this last case, says, " In these cases it is always to be borne in mind, that the acts of parliament are acts of sovereign and imperial power, operating in the most harsh shape in which that power can be applied in civil matters-^ solicited, as they are, by individuals, for the purpose of private speculation and individual benefit." And in another case " the rule of construction is thus laid down : — *6. " These powers extend no further ttian expressly stated in the act, except where they are necessarily and properly acquired for the purposes which the act has sanctioned." This last cate- gory, as here observed, is often a most perplexing one, in regard 3 2 Kailw. C. 736, 752. 4 Hatch V. Vermont Central Railway, 25 Vt. R. 49 ; Philadelphia & Trenton Railway, 6 Whart. 25 ; Monongahela Nav. Co. v. Coon, 6 Watts & Serg. IGl. 5 Queen v. Eastern Co.'a Railway, 2 Q. B. 347 ; Glover v. North Staffordshire Railway, 5 Eng. L. & Eq. R. 335. 6 Gray v. Liverpool & Bury Railway, 4 Railw. C. 285-240. 1 Coltnan v. The Eastern Counties Rfiilway, 4 Railw. C. 513, 624 ; State v. B. & O. Railway, 6 Gill, R. 368. 122 § 64.] EMINENT DOMAIN. * IIT to its true extent and just limits. And doubtful grants are to be construed most favorably towards those who seek to defend their property from invasiou.^ And a railway, having an option be- tween different routes, can only take lands on that route, which they ultimately adopt ; and if they contract for land upon the other routes, cannot be compelled to take it.^ The time for exer- cise of these compulsory powers, by the English statutes, is limited to three years," except for improvements necessary for the public safety, in conformity with the certificate of the Board of Trade. 7. As a general rule in the English courts of equity, if the construction of a railway charter be doubtful, they will remit the party to a court of law to settle the right, in the mean time so exercising the power of granting temporary injunctions, as will best conduce to the preservation of the ultimate interests of all parties.^^ 8. Similar rules of construction have prevailed in the courts o^ this country. The language of Ch. J. Tamey, in the leading case upon this subject, in the national tribunal of last resort, is very explicit. " It would present a singujar spectacle, if while the courts of England are restraining within the strictest limits the spirit of monopoly and exclusive privilege in nature of monop- oly, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging these privileges by implication." '^ And in comment- ing upon the former decisions of that court, upon this subject, the same learned judge here says, " the principle is recog- nized, that in grants by the public nothing passes by implica- tion." ^2 And other cases* are here referred to in the same court in support of the same view." 8 Sparrow u. Oxford, W. and W, Railway, 12 Eng. L. & Eq. R. 249 ; Shelford on Railways, 233. 9 Tomlinson v. Man. & Birm. Railway, 2 Railw. C. 104 ; Webb v. Man. & Leeds Railway, 1 Railw. C. 576. 10 Such a limitation is held obligatory wherever it exists. Peavey v. Calais Railway, 30 Maine R. 498 ; s. c. 1 Am. Railw. C. 147. 11 Clarence Railway v. Great North of England, C. & H. J. Railway, 2 Railw. C. 763. But the practice of courts of equity in this respect, is by no means uniform. See post, chap, xxviii. J'2 Charles River Bridge v. Warren Bridge, 11 Pet. 420. 13 U. S. V. Arredondo, 6 Pet. 691, 738. W Jackson v. Lamphire, 3 Pet. 280 ; Beaty v. Knowler, 4 Pet. 152, 168 ; Prov- 123 *118 THE LAW OF KAILWATS. [§65. 9. But it is not to be inferred that the courts in this country, or in England, intend to disregard the general scope and purpose of the grant, or reasonable implications, resulting from attending circumstances. But if doubts still remain, they are to be solved against the powers claimed.'^ 10. But where the right of the company to appropriate the land, is perfected under the statute, they may enter upon it, without any process for that purpose, and the resistance of the owner is unlawful, and he may be restrained by injunction, but that is unnecessary. The statute is a wsirrant to the company.i^ 11. But a grant to a railway to carry passengers and mer- chandise from A. to M., does not authorize them to transport merchandise from their depot in the city of M. about the city, or to other points, for the accommodation of customers.''^ *SECTION III. CONDITIONS PKECKDENT. 1. Conditions precedent must be complied with. | 3. When title veils in company. .2. That must be alleged in petition. , I § 65. 1. It has been held, that a railway company must com- ply with all the conditions in its charter, or the general laws of idence Bank v. Billings & Pittman, 4 Pet. 514. And that court not only adheres to the same view still, but may have carried it, in some instances, to the extreme of excluding all implied powers. See also upon this subject, Commonwealth v. Erie & Northeast Railway, 27 Penn. St. R. 339 ; and Bradley v. New York & New Haven Railway, 21 Conn. 294. 15 Perrine v. Ches. & Del. Canal Co. 9 How. 172 ; Enfield Toll Bridge B.Hart- ford & N. H. Railway, 1 7 Conn. 454 ; Springfield v. Conn. River Railway, 4 Cush. 63 ; 30 Maine, 498 ; 9 Met. 553 ; 1 Zab. 442 ; 3 Zab. 510 ; 21 Penn. 9 ; 15 El. 20. The following cases will bo found to confirm the general views of the text. Tuckahoe Canal Co. v. Tuckahoe Railway, 11 Leigh, 42; Greenleaf's Cruise, vol. 2, 67, 68 ; Thompson u. N. Y. & H. Railway, 3 Sand. Ch. 625 ; Oswego Falls . Bridge Co. v. Fish, 1 Barb.Ch. 547 ; Moorhead v. Little Miami Railway, 17 Ohio, 340 ; Stormfeltz v. Manor Turnpike Co. 13 Penn. 555 ; Toledo Bank v. Bond, 1 Ohio St. R. 636 ; Cincinnati Coll. v. State, 17 Ohio, 110 ; Cam. & Amboy R. v. Briggs, 2 Zab. 623 ; Carr v. Georgia Railway & Banking Co. 1 Kelly, 524 ; 7 Ga. 221 ; New London v. Brainard, 22 Conn. 552 ; Bradley v. N. Y. & N. H. Railway, 21 Conn. 294 ; 9 Ga. 475 ; Barrett v. Stockton & D. Railway, 2 Mann. & Granger, 134. 16 Niagara Falls & Lake Ontario Railway v. Hotchkiss, 16 Barb. 270. 17 Macon v. Macon & Western Railway, 7 Ga. 221. 124 § 65.] EMINENT DOMAIN. * 119 the state, requisite to enable it to go forward in its construction, before it acquires any right to take land by compulsion. In England one of these conditions, in the general law, is, that stock, to the amount of the estimated cost of the entire work, shall be subscribed. And where the charter or the general laws of the state gave the right to take land for the road-way, only upon the legislature having approved of the route and termini of the line, it was held the company could not proceed to condemn lands, for that purpose, until this approval was made.i 2. And where the act of the legislature, under which a railway was empowered to take lands, required the company to apply to the owner, and endeavor to agree with him, as to the compensa- tion, unless the owner be absent or legally incapacitated, they have no right to petition for viewers, until that is done.^ The petition should allege the fact, that they cannot agree with the owner.2 3. Where the charter of a railway company provides that the title of land condemned for the use of the company shall vest in the company, upon the payment of the amount of the valuation, no title vests until such payment.^ In a late case,* the law upon *this subject is thus summed up : Where the charter of the com- pany provides, that after the appraisal of land, for their use, " upon the payment of the same" or deposit, (as the case may be,) the company shall be deemed to be seized and possessed of all such lands, "they must pay or deposit the money before any ' Gillin water v. The Mississippi & A. Railway Co. 13 111. 1. 2 Reitenbaugli v. Chester Valley Railway, 21 Penn. 100. But where the com- pany have the right to lay their road, not exceesding six rods in width, and have fixed the centre line of the same, they may apply for the appointment of ap- praisers, and determine the width of the road, any time before the appraisal. Williams v. Hartford & New Haven Railway, 13 Conn. R. 110. But slight, if indeed any evidence of this failure to agree with the land-owner is required, where the claimant appears and makes no objection on that ground. Dpughty V. Somerville & Easton Railway, 1 Zab. (N. Jersey) 442. 3 Baltimore & Susquehannah Railway v. Nesbit, 10 How. (U. S.) R. 395. See also Compton v. Susquehannah Railway, 3 Bland, 391 ; Van Wickle v. Railway, 2 Green, 162 ; Stacy v. Vermont Central Railway, 27 Vt. R. 39 ; Levering v. Rail- way Co. 8 Watts & Serg. 459. And upon, payment of the compensation assessed by commissioners, and taking possession afterward, the title of the company is peifected, as against the party to the proceedings. Bath River Navigation Co. i^. Willis, 2 Railw. C. 7. ■» Stacy V. Vermont Central Rjulway, 27 Vt. R. 39, 11* 125 » 120 THE LAW OF RAILWAYS. [§ 66. such right accrues." " The payment or deposit of the money awarded is a condition precedent to the right of the company to enter upon the land for the purposes of construction and without compliance with it, they may be enjoined by a court of equity, or prosecuted in trespass at law, for so doing. The right of the land-owner to the damages awarded is a correlative right, to that of the company to the land. If the company has no vested right to the land, the land-owner has none to the price to be paid." SECTION IV. PRBLIMINAKY SURVEYS. 1 . May he made without compensation. 2. Company not trespasser. 3. For what purposes company may enter upon lands. 4. Company liable/or materials. 5. Right to take materials. 6. Location of survey. § 66. 1. It is settled, that the legislature may authorize railway companies to enter upon lands for the purpose of preliminary surveys, without making compensation therefor, doing as little damage as possible, and selecting such season of the year as wiU do least damage to the growing crops. The proper rule to be observed, in this respect, being such, as a prudent owner of the land would be likely to adopt, in making such surveys for his own advantage.' *2. In the English statute, and in many of the special charters, and general railway acts, in the American states, the company are bound to make compensation for such temporary use of the land, where they do not ultimately take the land. But in such case, where the statute authorizes the entry upon the land, the company are not to be treated as trespassers, and even where the statute provides for no compensation, it is not regarded as-taking private property for public use, within the provisions of the American state, and United States constitutions. 3. Under the English statute, the notice to use lands for tem- porary purposes, should specify the particular purpose for which 1 Cushman v. Smith, 34 Maine, 247 ; Polly v. S. & W. Railway Co. 9 Barb. R. 449 ; Bloodgood v. Mohawk & H. Railway Co. 14 Wend. R. 51 ; 8. c. 18 Wend. 9 ; Miner v. Mc Williams, Wright, 132. But in some states the party is made liable for damages for temporary occupation, by statute. 126 § 66.] EMINENT DOMAIN. * 12L the lands are required.^ By the English statute,^ the company may make a temporary entry upon land for the following pur- poses : — 1st. For the purpose of taking earth, or soil, by side cuttings. 2d. For the purpose of depositing spoil. 3d. For the purpose of obtaining materials for the construction or repair of the railway. 4th. For the purpose of forming roads to, from, or by the side of the railway.^ 3. By section 42, if the 6wner of such lands, as the company give notice of temporary occupation, elect to sell to the company and give them notice accordingly, they are compellable to buy, and in all other cases to make compensation for all injury to the same. 4. It has been held, in regard to the right of railway compa- nies to take materials, from lands adjoining their survey, to build their road,^ that the damages need not be appraised, tiU after the materials were taken : that the commissioners had authority to assess damages, for every act, which the company might lawfully do ' under their charter : that the company had the right to take such materials, in invitum, and to use other land, without their survey, for preparing stone for their use : that the feame right equally resided in the contractors to buUd the road : and that the corporation is liable to the land-owner, for materials so taken, by the contractors, notwithstanding any stipulations in the contract of letting, exempting them from such liability, as between them- selves and the contractors. 5. It has sometimes been made a question, in this country. 2 Poynder v. The Great N. Railway Co. 5 Railw. C. 196. 3 8 & 9 Vict. ch. 20, § 32. * In Webb v. The Manchester & Leeds Railway Co. 1 Railw. C. 599, Lord Cottenham, Ch., is reported to have said : " The powers given to these compa- nies are so large and frequently so injurious to the interests of individuals, that I think it is the duty of every court, to keep them most strictly within those powers, and if there is any reasonable doubt, as to the extent of their powers, they must go elsewhere and get enlarged powers, but they will get none from me, by way of construction of the act." s Vermont Central Railway v. Baxter, 22 Vt. R. 365. ' See also Bliss v. Hos- mer 15 Ohio, 44; Lyon v. Jerome, 15 Wendell, 569; Wheelock v. Young & Pratt, 4 Wendell, 647. Also Lesher v. The Wabash Nav. Co. 14 Illinois, 85. See post, § 68. 127 * 122 THE LAW OF RAILWAYS. [§ 67. how far the legislature could confer upon railway companies, the power to take materials, without the limits of their survey, in in- vitum? 6. But a railway company who enter upon land, to construct their road before the time for filing the location of their line, are liable as trespassers, if the location when filed, does not cover the land so entered upon.^ 7. And the onus is upon the company to justify by showing that the land is covered by the authorized location.^ The loca- tion filed by the company is conclusive evidence of the land taken, and cannot be controlled by extrinsic evidence, though a plan or map made a part of the description of the location, and filed with the written location, may be referred to for explanation, but not to modify or control the written location.^ SECTION V. POWER TO TAKE TEMPORARY POSSESSION OF P0BLIC AND PRIVATE WAYS. § 67. 1. Under the English statute,^ the company have the pow^r, upon notice, to take temporary possession of private roads ; and by other sections, they may take possession of, cut through, and interrupt public roads. But in all such cases the damage is to be compensated, and the road restored, when prac- ticable, and if not, a substituted one made. 2. If a private way be obstructed, the remedy is to sue for * penalty under the statute, or to bring an action under the stat- ute for special damage. But it is said an action upon the case for the obstruction, cannot be maintained, except in the case of special damage, which is expressly saved by the statute.^ 6 Hazen v. The Boston & Maine Railway, 2 Gray, 574 ; Stone t>. Cambridge, 6 Cush. 270; 3 N. H. 10; Lewiston v. County Commissioners, 30 Maine, 19; Little V. Newport, A. & H. Railway, 14 Eng. L. & Eq. K 309 ; Springfield v. Conn. River Railway, 4 Cush. 69, 70. 1 8 & 9 Vict. c. 20, § 30. 2 Watkins v. Great Northern Railway Co. 6 Eng. L. & Eq. R. 179. 128 § 68.] EMINENT DOMAIN. *123 SECTION VI. LAND FOR OKDITJARY AND EXTRAORDINARY USES. 1 . By English statute may take land for all necessary uses. 2. Companies have the same power here. 3. So also of companies connecting at state lines. § 68. 1. By the English statutes, railway companies may not only purchase land for the purpose of the track, but also for aU such extraordinary uses, as will conduce to the successful prose- cution of their business.^ This includes the site of stations, yards, wharves, places for the accommodation of passengers, and the deposit of freight, both live and dead, and for the erection of weighing machines, toll-houses, offices, warehouses, and other buildings, and conveniences ; land for ways to the railway while in the course of construction, and to stations always. 2. The same may undoubtedly be done, in this country, whether any express provision to that effect is contained in the charter of the company, or the general statutes of the state, or not ; such power being necessarily implied, as indispensable to the * accomplishment of the general purposes of the corporation, and the design of the legislative grant. 3. And this same implied power is to be extended to a railway corporation, in a neighboring state, with which, by express stat- ute, railways of the state where the lands lie, have the right to 1 8 & 9 Vict. ch. 20, § 45. This section is only operative to enable the com- pany to take lands for extraordinary purposes, beyond the line of deviation, by consent of the owners. But it is held that the justices have no jurisdiction, under the Railway Clauses Consolidation Act, to determine when accommodation works are necessary, but only what works are necessary, assuming that some such works are to be made. Reg. v. Waterford & L. Railway, 2 Irish Law R. (n. s.) 580. See post, Appendix B, § 99. In the case of Chicago, Burlington, & Quincy Railway v. Wilson, 17 111. R. 123, it was held, that a grant to a railway company, to construct a road, with such appendages, as may be deemed necessary, for the convenient use of the same, will authorize them to take land, compulsorily, for workshops. And this power is not exhausted by the apparent completion of the road, but if an increase of business shall require other appendages, or more room for tracks, it may, in like manner, be taken, toties quoties. But the land-owner may traverse the right of the com- pany to take the land, and have it determined by the proper tribunal. S. Caro- lina Railway v. Blake, 9 Rich. 228. , 129 * 123 THE LAW OP RAILWAYS. [§ 68. unite at the line of the state.^ And for the purpose of exercising the rights conferred by their act upon the company, the contrac- tor for the execution of railway works must be deemed an agent of the company.^ 2' State V. Boston, Concord & Montreal Railway Co. 25 Vt. R. 433. In this case a railway company in New Hampshire had constructed their road to the line of Vermont, (where by statute of the legislature of Vermont, two other roads were chartered, with permission to unite with any New Hampshire road,) and had there purchased some fifteen acres of land, adjoining the terminus of their road, which is of course the " wfesternmost " bank of Connecticut River, their bridge being all in New Hampshire except the western abutment, which of necessity must rest upon Vermont soil. The company had no express grant from the legislature of Vermont. A controversy'arising between this New Hampshire road, and the Vermont roads at this point, in regard to the terms of junction, a quo warranto was prosecuted on behalf of the state, to determine the right of the New Hampshire railway to purchase, and hold lands, in the state of Vermont. It was attempted to maintain on the part of the prosecutioti, that there existed a right in any state, to confiscate or escheat, lands held by a foreign corporation. But the court repudiated the proposition, and held that the New Hampshire road, by the grant from the Vermont legislature of the right of the Vermont roads to form a junction with this road, at the line of the state, had acquired the implied permission to purchase and hold, so much land as was necessary for the accommodation of their present and prospective business at that point, whether any junction had yet been arranged at the point or not ; and that fifteen acres was not an unreasonable extent of land for such purposes, there being no ques- tion but the New Hampshire railway had, by its charter, the right to hold real estate, for the necessary purposes of its incorporation, to an amount beyond what it had yet purchased. The court in this case did not hold, that the New Hampshire road had any right to take land by compulsory proceedings in Vermont, or that their purchase of the land would deter the Vermont roads, at this point, from taking, by statu- tory compulsion from them, such portions of the same land as they might require for their own purposes. See also Nashville Railway v. Cowardin, 11 Humph. , 348. In the Supreme Court of New Hampshire, 20 Law Rep. 646, Crosby v. Hanover, it was held that the franchise of a toll-bridge across Connecticut River, might be taken for a free highway; upon compensation being made to the pro- prietors ; and that it made no difference, that one of the abutments of the bridge was within the limits of the state of Vermont, and consequently could not be taken by any proceedings in New Hampshire. 3 Semple v. The London & Birmingham Railway, 1 Railw. C. 480 ; Vt. Cen- tral Railway v. Baxter, 22 Vt. R. 365 ; ante, § 66 : Lesher v. Wabash Nav. Co. 14 111. R. 85. 130 §69.] EMINENT DOMAIN. '124 *SECTION VII. TITLE ACQUIRED BT COMPANY. 1 . Company have only right of way. 2. Can take nothing from soil except for con- struction. 3. Deed in fee-simple to company. 4. For what uses may take land. 5. Right to cross railway, extent of. 6. Conflicting rights in different companies. 7. 8. Rule in the American states. 9. Right to use streets of a city. 10. Law not the same in all the stales. 11. Rule in Massachusetts. 12. 13. Latid reverts to the owner. 14. True rule stated. 1 5. Conditions must be performed. 16. Further assurance of title. 17. Condemnation cannot be impeached. § 69. 1. Questions have sometimes afisen, in regard to the precise title, acquired by a railway company, in lands purchased by them, where the conveyance is a fee-simple. It is certain, in this country, upon principle, that a railway company, by virtue of their compulsory powers, in taking lands, could acquire no absolute fee-simple, but only the right to use the land for their purposes. And it is very questionable whether a railway, in such case, is entitled to the herbage growing upon the land, or to cul- tivate the same, or to dig for stone, or minerals, in the land, be- yond what is necessary for their purposes in construction. 2. In England, the statutes ^ give all such minerals to the former owner of the land, except such as are necessary in con- struction, unless the same shall have been expressly purchased. And in this country, no doubt, the same construction would be adopted, in regard to all lands taken by compulsory proceeding.^ 3. But it admits of some question, we think, what is the pre- cise effect of a deed, in fee-simple, to a railway company. It would seem, upon general principles, that the grantor should be estopped from claiming any interest in the land, after the execu- tion of his deed. But it seems to be agreed, in all the books, that, to the efficacy of a deed of land, it is requisite that the 1 8 and 9 Viet. e. 20, § 17. 2 Baker v. Johnson, 2 Hill (N. Y.) R. 342. It was held here, that a contractor to build a canal, who stipulated with the commissioners to find all the materials necessary to the performance of the work, with stipulations in the contract that he might use all the earth obtained by excavation, might also use the stone ob- tained by excavating the bed of the canal across plaintiff's land, and that trover will not lie for such use. 131 *125 THE LAW OF RAILWAYS. [§69. grantee be capable of taking the estate. And if the grantee be an alien, or a corporation * incapable of holding such estate, the deed is inoperative. Hence, in some of the cases, it seems to be a just inference from the reasoning of the court, that a railway, by a deed in fee-simple, acquires only a right of way ,3 that being all which such corporation is capable of taking. 4. It has been held in some of the states, that the lands of a railway company are subject to sale upon execution against them, or may be assigned by them.* So, too, they may purchase and hold land' for the procurement of materials, or for the eco- nomical construction of the road.^ In a late English case,^ it was held that the railway could not use land, thus cdhveyed, for any other purpose tha/f that expressed in the acts of parliament, by virtue of which the company exercised their functions. 5. It has been held that, where one railway has power in their act to cross another railway, there being no express permission in the act for one company to take land, or for the other company to sell, that the first company could not be compelled, by man- damus, to purchase any of the land upon which the other road was constructed, their only claim being one for damages.^ So, also, the right to make a junction with a preexisting railway, does not imply the power to take the title to any of the lands of such railway, unless that is indispensable to effect the junction, but only to enter upon such lands, by way of easement, for the purpose of effecting the junction.^ 6. But where the legislature confer the power upon two rail- way companies to purchase compulsorily the same piece of land, and one company has taken the land and constiucted their road upon it, equity will enjoin the other company from proceeding 3 Dean v. Sullivan Railway, 2 Foster, 316 ; United States v. Harris, 1 Sumner, 21. It is held in some cases, that a grant to a railway, before its incorporation is valid, not beinn; the conveyance of a fee, and to its operation and effect, not re- quiring the existence of a grantee, at the time of the conveyance. Rathbone 210 § 106.] CONSTRUCTION OF RAILWAYS. * 193 12. The grant to take land implies power to take buildings.'^ And a grant to take land for the company's road implies the right to take land for all the necessary works of the company, such as depots, car and engine houses, tanks, repairing shops, houses for switch and bridge tenders, and coal and wood yards, but not for *the erection of houses for servants, car and engine factories, coal-mines, etc.^^ 13. And a charter allowing the company to extend their line to a certain point, "thence running through Acton, Sudbury, Stow, Marlborough," &c., does not oblige the company to locate their road through these towns, in the order named in the charter. And a location of the road from Acton through Stow, to Sud- bury, and thence through Stow again to Marlborough, was held to be a sufficient compliance with the grant.'^ 14. If the charter of a railway limit the line of construction, by the boundaries of a borough, and the boundarieis of such borough are subsequently extended, that will not alter the right of the company in regard to the location of their road.^^ And an exclusive grant for a railway within certain limits defined at one terminus, by a city, is to be restrained to the limits of the city at the date of the grant.^° SECTION II. DISTANCE, HOW MEASURED. 1. This is affected by subject-matter. 2. Contracts to build railway, by rate per mile. 3. General rule to measure by straight line. 4. Same rule in regard to turnpike-roads. § 106. 1. Questions of some perplexity sometimes arise in re- gard to the mode of measuring distance, in a statute or contract. The import of terms defining distance will be sometimes con- trolled by the context, or the subject-matter. In one case,' 16 Brocket v. Railway, 14 Penn. 241. 17 State V. Comm. of Mansfield, 3 Zab. (N. J.) 510 ; Vt. Cent. Railway v. Bur- lington, 28 Vt. R. 193 ; Nashville & C. Railway v. Cowardin, 11 Humph. 348. 18 Commonwealth v. The Fitchburg Railway, 8 Gush. R. 240. 19 Commonwealth v. Erie & North East Railway, 27 Penn. R. 339 so Ponchartrain Railway v. Lafayette & Pont. Railway, 10 Louis. Ann. Rep. 741. I Leigh V. Hind, 9 B. & C. 774 ; s. c. 17 Eng. Comm. L. R. 495. But Parke, 211 * 194 THE LAW OF KAILWAYS. [§ 106. where the 'assignor of the lease of a public-house in London, covenanted that he would not keep a public-house within a half a mile from the * premises assigned, it was held that the disr tance should be computed by the nearest way of access. 2. And contracts to be paid for constructing a turnpike, or railway, a given price by the mile would, ordinarily no doubt, require, an admeasurement upon the line of the road. It was^ held in a late case, in Vermont, that in such cases the con- tractor is not entitled to compute the length of track, and thus include turnouts and side-tracks.^ But, this might not exclude branch lines extending any considerable distance from the main track. 3. But, in general, the English courts have chosen to adhere to the rule laid down by Parke, J., in Leigh v. Hind, that dis- tance is to be measured in a direct line, through a horizontal plane. Thus, in settlement cases, where the pauper laws pro- vide that no person shall retain a settlement gained by possess- ing an estate or interest in a parish for a longer time than he shall inhabit " within ten miles thereof," it was held that the dis- tance was to be measured in a direct line from the residence to the nearest point of the parish.^ And the twenty miles within which the parties are required to reside, in certain cases affecting the jurisdiction of the county courts, by the recent statute, 9 & 10 Vict. c. 95, § 128, is to be computed in a direct line, without reference to the course of travel.* 4. And where a turnpike act provided, that no toll gate should be erected nor any toll taken, within three miles of B., and the road did not extend to B., but connected with another turnpike which did, and also a public road, made since the act was passed, it was held, that the three miles should be measured " in a straight line on a horizontal plane, and not along any of the roads." ^ J. was of a different opinion, and said : " I should have thought that the proper mode of measuring the distance, would be to take a straight line from house to house, in common parlance, as the crow flies." 2 Barker v. Troy and Rutland Bailway, 27 Vt. R. 766. 3 Regina v. Saffron & Walden, 9 Q. B. 76. 4 Stokes V. Grissell, 25 Eng. L. & Eq. R. 336 ; Lake v. Butler, 80 Eng. L. & Eq. R. 264. s Jewell V. Stead, 36 Eng. L. & Eq. R. 114. Lord Campbell, Ch. J., said : " I 212 § 107.] CONSTRUCTION OF RAILWAYS. * 195 ♦SECTION III. MODE OP CONSTRUCTION, TO BE DONE WITH LEAST DAMAGE. 1 . Does not extend to form of the road, hut the mode of construction. 2. Special pivvisions of act not controlled by this general one. 3. Works interfered with, to be restored, for all uses. § 107. 1. It has been held, that the general provisions of the Railways Clauses Consolidation Act, that in the exercise of their powers, the company shall do as little damage as possible, and shall make satisfaction, to all parties interested, for all damages sustained by them, does not extend to the form of constructing the railway. It does not apply to what is done, but to the man- ner of doing it. 2. Hence, if by other sections of the statute or special act, the company are required to build bridges in a particular form, they may still do so, notwithstanding it may cause more damage to the owners of land, than to build them in some other form.i 3. And where, in a parliamentary contract, between the pro- moters of a railway and the proprietors of a ropery, it was stip- ulated that the railway should be so constructed, that when finished the level of the ropery should not be altered, nor the surface of the ropery in the least diminished, it was held the company were bound to restore the surface, so as to be available for all purposes, to which it^ight have been applied, before the construction of the railway, and not for the purposes of the ropery only.^ am of opinion that the distance is to be measured by a straight line upon a hori- zontal plane." Lake v.- Butler, supra, lays this down as a general rule. Lord Campbell, Ch. J. : "I think we ought to adopt that mode, which is most convenient and most certain. If the distance is to be measured by the nearest mode of com- munication, uncertainty will be introduced, whether it may be by foot way, or bridle way, or carriage way ; and in some cases the distance must be travelled by all the three modes ; and in others by a tidal river, in which case the distance would vary, at different times of the day; also the distance by carriage road might be shortened, or lengthened, by a new road being made. But if the other mode of calculation is adopted, no uncertainty will arise." ' Kegina v. The East & W. L Docks & B. J. R. 22 Eng. L. & Eq. R. 113. 2 Harby v. The East & W. I. Docks & B. J. R. 1 De G. M. & G. 290. 213 '196 THE LAW OF KAILWATS. [§ 108. •SECTION IV. MODE OF CROSSING HIGHWAYS. 1. English statutes require it should not be at grade. 2. Or if so, that gates should be erected and tended. 3. And if near a station, railway train not to exceed four miles an hour. 4. Cannot alter course of highway. 5. Mandamus does not lie where company have an election. § 108. 1. By the general English statutes upon the subject of railways, it is provided, " that if the line of the railway pass any turnpike-road, or public highway, then, (except when otherwise provided by the special act,) either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge." ' 2. And by § 47 it is provided, that whenever the railway does pass any such road, upon a level, the company shall maintain gates, at every such crossing, either across the highway, or the railway, in the discretion of the railway commissioners, and em- ploy suitable persons to tend the same, who are required to keep them constantly shut, except when some one is actually passing the highway, or railway, as the case may be.^ 3. And where a railway passes a highway near a station, on a level, the trains are required to slacken their speed, so as not to pass the same, at any greater speed than four miles an hour.^ 4. The right to raise or lower higjjways, in the construction of a railway, does not authorize the company to change the course of the highway, even with the consent of the town council, and for 1 Railway Clauses Consolidation Act, § 46. Mandamus requiring the com- pany to carry their road over a highway, by means of a bridge, when that was the only mode in which it could be done, according to the level of the line of the railway at the time, was held bad. Southeastern Railway v. The Queen, 20 L. J. 428. 2 A road on which toll-gates are erected and tolls taken, is a turnpike road. The Northam, B. & Roads Co. v. London & Southampton Railway, 6 M. & W. 428 ; 1 Railw. C. 653 ; Regina v. E. & W. I. Docks Railway Co. 22 Eng. L. & Eq. R. 113. 3 § 48. Some similar provisions, in regard to the construction of railways in this country, seem almost indispensable to the public security. But the rage for cheap railways is so great, that nothing of the kind could be eflfected, we fear, at present. 214 § 109.] CONSTRUCTION OF RAILWAYS. * 197 * SO doing the company were held liable to persons, who had sustained special damage thereby.* 5. The right to use " highways " in the construction of plank roads, contained in a general law, does not extend to military roads constructed by the United States, while the state was a territory,^ but the legislature may grant such right, by the charter of the company. 6. And where a mandamus ^ recited that the railway, which defendants were empowered to make, crossed a certain public highway, not on a level, by means of a trench, twenty feet deep, and sixty-five feet wide, through and along which the railway had been carried, and the highway thereby cut through and rendered wholly impassable for passengers and carriages ; and that a reasonable time had elapsed for defendants to cause the highway to be carried over the railway by means of a bridge, in the manner pointed out in the statute,^ and commanded de- fendants to carry the highVay over the railway, by means of a bridge, in conformity with the statute, particularly specifying the mode, it was held, that it not being otherwise specially provided in the company's charter, they had, by the general acts, an option to carry the highway over the railway, or the railway over the highway, by a bridge ; and that the option was not determined, by the facts alleged in the writ, and the judgment of the Ex- chequer awarding the writ, was accordingly reversed, in the Queen's Bench. SECTION V. KIGHTS or TELEGRAPH COMPANIES. 1. Right to "-pass directly across a railway," \ 2. Exposition of the terms "under" and does not justify boring under it. I " across." § 109. 1. Where a telegraph company had by their act the ■• Hughes V. Providence & Wor. Railway, 2 E. I. 493. It is the duty of a railway company not to obstruct public roads, where they intersect the railway- track, either by stopping a train or otherwise ; and the company must take the consequences of all such obstructions. Murray v. Railway Company, 10 Rich. (8. C.) R. 227. 5 Attorney-General v. Detroit & Erie Plank Road Co. 2 Mich. R. 138. 6 Retina v. The Southeastern Railway, 6 Eng. L. & Eq. R. 214. T 8 and 9 Vict. c. 20. 216 *198 THE lAW OF RAILWAYS. [§ 110. power to pass under highways, but to pass " directly but not otherwise across any railway or canal," and a railway was laid upon the level of a highway, in accordance with their special act, it was * held that the telegraph company could carry their . works, under the highway, at the point where it was intersected by the railway.' Bat the telegraph company, attempting to pass under the railway, in such a manner as to disturb their works, was held liable in trespass.^ 2. Parke, B., in giving judgment, said : " Across seems there- fore different from under, and the power to carry ' across ' does not enable them to go under. It may be that this prohibition would not apply, if the railway were carried over a highway, at a great height, for then the highway and railway might be con- sidered independent of each other." SECTION VI. DUTY IN REGARD TO SUBSTITUTED WORKS. 1. Boundtorepairbridt)e,substitutedforford,\2. The same rule has been applied to drains, or to carry highway over laiLway. \ substituted for others. § 110. 1. Where a public company, as a navigation company, under the powers conferred, by the legislature, destroyed a ford and substituted a bridge, it was held, that they were liable to keep the bridge in repair.' So too, where such company cut through a highway, rendering a bridge necessary to carry the highway over the cut, the company are bound to keep such bridge in repair.^ 2. So where a navigation company had power to use a public drain, by substituting another, or others, it was held that the company were bound to keep in repair the substituted drains, as well as to make them.^ 1 Southeastern Railway v. European & Am. Tel.- Co. 24 Eng. L. & Eq. R. 513. 'i Post,^ 137, 169, 182. 1 Rex V. Inhabitants of Kent, 13 East, 220 ; Rex v. Inhabitants of Lindsey, 14 East, 317. 2 Rex V. Kerrison, 3 M. & Sel. 526. This duty may be enforced by indict- ment. Regina v. Ely, 19 L. J. (M. C.) 223. 3 Priestly V. Foulds, 2 Railw. C. 422 ; 2 Man. & Gr. 175. 216 § 111-112.] CONSTRUCTION OF RAILWAYS. •199 ♦SECTION VII. CONSTRUCTION OF CHARTER IN REGARD TO NATURE OP WORKS, AND MODE OP C0N8TRDCT10N. § 111. There are some cases in regard to the construction of railway works, and their requisite dimensions, which have come under the consideration of the courts, and where the decisions are of little precedent, for other cases, not altogether analogous, and on that account scarcely deserving an extended analysis, but Which nevertheless we scarcely feel justified in wholly omitting here.i SECTION VIII. TERMS or CONTRACT. MONEY PENALTIES. EXCUSE FOR NON-PERFORM- ANCE. 6. 7. Contractor not entitled to any thing, for part-performance. Note 2. Proper construction of the terms used in these contracts. 8. Contract for additional compensation must be strictly performed. 1 . Contracts for construction assume unusual forms. 2. Estimates made by engineer. 3. Money penalties, liquidated damages. Full performance. 4. Excuses for non-performance. .5. Penalty not incurred^ unless upon strictest construction. ' § 112. 1. As the time' within which such works are to be accomplished is often limited in the act, and as the manner in 1 Attorney-General v. London & Southampton Railway, 1 Kailw. C. 302. This ease is in regard to the width of a road under a railway bridge. Manchester & Leeds Railway v. Keg. (in error), 3 Kailw. C. 633. The footpaths are not to be regarded as any part of the requisite width of the bridge. Keg. v. Rigby, 6 Railw. C. 479 ; Reg. v. London & Birmingham Railway, 1 Railw. C. 317. This is a case in regard to the width of a bridge over a highway. Reg. v. Birmingham & Glou- cester Railway, 2 Railw. C. 694, which is a case in regard to the width of the ap- proaches to a bridge across a railway. Reg. v. Eastern Counties Railway, 3 Kailw. C. 22, as to the right to lower a street, in order to obtain the requisite height under a bridge, notwithstanding the provisions of the local paving act. Reg. V. Sharpe, 3 Railw. C. 33, as to the right to erect a bridge at a different angle from the former road. Where a special act required a company to strengthen a bridge described in the act, held that they might nevertheless pull down the old bridge and build a new one. Wood v. North Staffordshire Railway, 1 McNaugh. & G. 278; Re.x v. Morris, 1 B. & Ad. 441, as to making a r^lway on a turnpike road. A turnpike road, having power to take tolls upon any way leading out of their road, may demand tolls of passengers crossing their road upon a railway granted subsequently. Rowe v. Shilson, 4 B. & Ad. 726. 19 217 *200 THE LAW OF RAILWAYS. [§112. which the * work is done, is of the greatest possible importance to the public safety, the law sanctions contracts for such under- takings, in forms not only unusual, but which might not be strictly binding perhaps in the case of ordinary contracts. For instance, it is not uncommon for the contract to impose penal- ties upon the contractor for slight deviations from the terms of agreement, and to secure to the company the absolute right to put an end to the contract, whenever they, or their engineer, are dissatisfied with the mode in which the work is done, or the progress made in it. 2. And it is almost universal, in these contracts in this coun- try, to refer the quality and quantity of the work done, and the consequent amount of payments, to be made from time to time, to the absolute determination of an engineer employed by the company.! » 3. The penalties which these contracts provide, either abso-" lately, or in the discretion of the company's engineer, for delay in the work, are to be regarded, commonly, in the nature of liquidated damages.^ To entitle the party to recover for work • Where a railway company, in the course of construction turned a stream of ■water, which by their charter they might do, restoring it to its former state, as near as practicable, and the new channel was properly guarded, as far as could be per- ceived, at the time of turning it, it was held, that the company were not obliged thereafter to watch the operation of the water and take precautions to prevent its encroaching upon the adjoining lands. Norris v. Vt. C. Railway, 28 Vt. R. 99. 1 Ranger v. Great Western Railway, 1 Railw. C. 1 ; s. 0. 3 id. 298 ; ante, § 105. 2 Ranger v. Great Western Railway, 27 Eng. L. & Eq. R. 61. In regard to the penalties given by the contract, it is said here by the Lord Chancellor : " All the cireumstances which have been relied on in the different reported cases, as dis- tinguishing liquidated damages from penalty, are to be found here. The injury to be guarded against was one incapable of exact calculation. The sum to be paid is not the same for every default, for tliat which should occasion small as for that which should cause great inconvenience, but one increasing as the incon- venience would become more and more pressing ; and, finally, the payments are themselves secured by the penalty of a bond ; and this is hardly consistent with the notion that the payments secured were themselves only penal sums to secure something else. For these reasons, I think it clear that these payments, though called penalties, are in truth liquidated damages agreed on by the parties, and which the company might set off against the demand of the appellant upon them under the contract. #But then the appellant contends that the company never had a title to recover these penalties, because the delays in respect of which they claimed were produced by the harassing and vexatious conduct of the respon- dents themselves, or their agents. It is sufficient on this head to say, that the ap- 218 § 112.] CONSTRUCTION OF RAILWAYS. * 201 done upon * construction contracts, he must show, either that he has performed the labor according to the contract, or that the other party has waived strict performance, or hindered it.^ pellant, in my judgment, -wholly fails to make out, in point of fact, the proposition for which he contends. The only penalties actually deducted are 2001. for five weeks' delay in completing the headings of tunnels 1 and 3 in contract 1 B, and 20Z. for delay in the works of the Avon bridge. There is no doubt but that these sums were due, unless the appellant could relieve himself by showing that the delay had been forced on him by the company itself The evidence alto- gether fails to satisfy me of this.'' Where in a contract between the original contractors for building a railway and the sub-contractors, it was provided, that the work should be subject to the supervision and control of the engineer of the company, and that he should make monthly estimates, four fifths of which " value " should be paid to the sub- coirtractoi's ; and when the work was completed, a final estimate ; thfe monthly 'and final estimates, as to the quantity, character, and value of the work done, should be conclusive between the parties ; and that if the contractor should not truly comply with his part of the agreement, or in case it should appear to the engineer, that the work did not progress with sufficient speed, the other party was to have power to annul the contract ; and the unpaid portion of the road was to be forfeited by the sub-contractor, and become the property of the other party ; Held, that the award of the engineer declaring the work forfeited, was conclu- sive, and binding on the sub- contractor ; that the action of the sub-contractor upon the contract, was in affirmance of the contract, and that he could not therefore impeach its stipulations. That the term " value," as used in the contract, was to be distinguished from the term " price," fixed for the different classes of work, and that the engineer, in making monthly estimates, had a right to deduct from the amount of work done, sufficient to bring it to the average of all the work to be done, and is not bound to allow the sub-contractor the price stipulated in the contract, for work of this description. If the company withheld unjustly funds due the sub-contractor, they could not fairly take advantage of the forfeiture declared for want of prosecution of the work. But the retention of the 20 per cent, in case of forfeiture, is intended as the measure of reparation, for the failure to perform the work, according to the contract, and not as a mere penalty. The payment after the forfeiture, by one of the original contractors, of the hands who had been employed on the works by the sub-contractor, and furnish- ing money to carry on the work, is not a waiver of the forfeiture, especially if he was then ignorant that the work had been forfeited. Faunce v. Burke, 16 Penn. R. 469. 3 Andrews v. The City of Portland, 35 Me. R. 475. And it was held here, that part payment, under the contract, after the contractor had failed in strict performance, was no waiver, unless the failure was known to the employer at the time of payment. » 202 THE LAW OF RAILWAYS. [§ 112. 4. But the party may excuse full performance by showing that he was prevented by an injunction out of chancery at the suit of a third party.* Or, that the parties had entered into a new con- tract for the same work, upon different terms.^ 5. Where the work was suspended at the'request of the com- pany, with the vie-vt- to a new location, the company agreeing to pay the plaintiff $750 by way of damages, if the work should not be resumed within two years, and, if it was, the plaintiff to proceed with the work at the prices stipulated, upon those sec- tions not altered;. the route being altered as to some of the sections, upon * which the defendants resumed within the two years, employing others to do the work, without giving notice to plaintiff; held, that the plaintiff could not recover the damages agreed, as the work was resumed within the two years, but that the plaintiff was entitled to damages for not being employed to do the work.^ 6. Where, by the terms of the contract, a proportion of the sum earned is to be' paid monthly, and the remainder reserved, as security for the fulfilment of the contract, it was held, that noth- ing was due till the day of payment, which could be attached by trustee process.'^ 7. And where, in such case, the company have the power to determine the contract, and the reserved fund is thereby to be forfeited, and the company do so, after the contractor has worked one month and part of another, and has received the proportion of payment for the first month, it was held nothing was due to the contractor.* 8. Where a railway company, after making a contract for the construction of its road, became embarrassed and was unable to make payments to the contractor, and the president, who was a stockholder, and extensively interested in the success of the en- terprise, made an additional agreement with the contractor that he would give him his notes to the amount of $10,000, if the work were completed by a day named, it was held that he was not liable upon the agreement unless the contractor performed 4 Whitfield V. Zellnor, 24 Miss. R. 663. 5 Howard v. The Wilmington & Susquehannah Railway, 1 Gill, 311. 6 Fowler v. Kennebec & Portland Railway, 31 Me. R. 197. "> Williams v. Androscoggin & Kennebec Railway, 36 Me. R. 201. 8 Hennessey v. Farrell, 4 Cush. R. 267. 220 § 113.] CONSTRUCTION OF RAILWAYS. * 203 his part of the agreement by the day named. The notes were, by the terms of the agreement, to go in part payment of what was due from the company, and the new agreement was not to affect the subsisting contract with the company.^ SECTION IX. FORM OF EXECUTION. EXTRA WORK. DEVIATIONS. 1 . No particular form, of contract requisite 3. Extra work cannot he recovered of the generally. \ company, unless done, upon the terms 2. But the express requirements of the charter specified in contract. must be complied with. 4. If the company have the benefit of ivorlc I are liable. § 113. 1. No particular form of contract is requisite to bind the company, unless where the charter expressly requires it.^ And although there seems still to be a failing effort in the Eng- lish courts, to maintain the necessity of the contracts of corpora- tions being under seal,^ it is certain that the important business transactions of * daily occurrence, in both that country and here, where no such formality is resorted to by business corporations, in matters of contract ; and where to look for any such solem- nity would be little less than absurd, almost of necessity drive the courts of England to disregard the old rule of requiring the contracts of corporations to be made under the corporate seal.^ 2. But when the charter of the corporation requires any par- ticular form of authenticating their contracts, it cannot be dis- pensed with. As where by the charter of a railway company, 9 Slater v. Emerson, 19 How. U. S. R. 224. 1 Post, § 137, 169, 182. 2 Mayor of Ludlow v. Charlton, 6 M. & W. 815. But see Beverly v. Lin- coln Gas Light & Coke Co. 6 Adol. & Ellis, 829 ; Dunston v. The Imperial Gas Co. 3 B. & Ad. 1 25. Tindal, Ch. J., in Gibson v. East India Co. 5 Bing. (N. C.) 262, by which it seems that the English courts except from the operation of the rule only such transactions of business corporations as could not reasonably be expected to be done under seal. But see Bank of Columbia v. Patterson, 7 Cranch, 299, and 2 Kent, Coram. 289, 291, and notes, where it is said the old rule is condemned, and English & American cases cited and commented upon. Post, § 182 ; United States Bank v. Dandridge, 12 Wheat. 64; Bank of the Metropo- lis V. Guttschlick, 14 Pet. R. 19; Norwich & Worcester Railway v. Cahill, 18 Conn. 484 ; San Antonio v. Lewis, 9 Texas, R. 69.- Seaalso Weston v. Bennett, 12 Barbour, 196 ; Rathbone v. Tioga Navigation Co. 2 Watts & Serg. 74. 19* 221 * 204 THE LAW OF RAILWAYS. [§ 113. the directors were authorized to use the common seal, and all contracts in writing, relating to the affairs of the company, and signed by any three of the directors, were to be binding on the company ; and the company entered into a contract not under seal, by their secretary, to complete certain works, and, after part performance, the contractor was dismissed by the company, it was held he could not recover the value of the work done.^ * 3. But where the contract contains Express provisions that no allowance shall be made against the company for extra work, 3 Diggle V. The London & Blackwall Railway, 6 Kailw. C. 590. It is said, here, that a contract, to be binding on a corporation when not under seal, must be one of necessity, or of too frequent occurrence, or too trivial, to be made under seal. In a recent case in the Court of Exchequer, Williams v. Chester & Holyhead Railway, 5 Eng. L. & Eq. R. 497, Martin, B., thus comments upon the rule of evidence in regard to implied contracts of corporalions. " Persons deal- ing with these companies should always bear in mind, that such companies are a corporation, a body essentially different from an- ordinary partnership or firm, for all purposes of contracts, and especially in respect of evidence against them on legal trials ; and should insist upon these contracts being by deed under the seal of the company, or signed by directors in the manner prescribed by the act of parliament. There is no safety or security for any one dealing with such a body, on any other footing. The same observation also applies, in respect of any vari- ation or alteration in a contract which has been made." But see post, § 182, and cases cited. And where the assistant engineer upon a railway, having charge of the construction of a section of the road, becoming dis- satisfied with the contractor, dismissed him, and assumed the work himself, agree- ing with the workmen to see them paid, it was held his subsequent declarations could not be admitted, to charge the company for supplies furnished the con- tractors, on the ground that they were not made in the course of th^ perform- ance of his duty, as agent of the company. Stiles v. The Western Railway, 8 Met. 44; 1 Am. Railw. C. 397. See also Underwood v. Hart, 23 Vt. R. 120, where the subject of the admissions of agents is discussed, and the cases revised. If a contract under seal be enlarged by parol, and subsequently performed, or if the terms of >the contract under seal be varied by parol, the proper remedy is by an action of assumpsit. Sherman v. Vermont Central Railway,. 24 Vt. E. 347 ; Barker v. Troy & Rutland Railway, 27 Vt. R. 774. In Childs v. The Som- erset and Kennebec Railw. in the Circuit Court of the United States, before Mr. Justice Curtis, 20 Law Rep. 561, it was held, that where the plaintiff, by special contract, agreed to build certain bridges and depots for the defendant corpora- tion, for which he was to be paid partly in'cash and partly in shares of their cap- ital stock, and in the progress of the enterprise it became necessary to do much extra work, and furnish materials not provided for in the special contract; that the plaintiff was entitled to recover the whole value of the extra work and mate- rials thus furnished in money, upon an implied assumpsit, and that the agreement to take pay in shares did not extend to this part of the work. 222 § 113.] CONSTRUCTION OP RAILWAYS. * 204 unless directed in writing under the hand of the engineer or some other person designated, or unless some other requisite formality be complied with, the party who performs extra work upon the assurance of any agent of the company, that it will be allowed by the company, without the requisite formality, must look to the £igent for compensation, and cannot recover of the company, either at law or in equity.* So, under the English General Com- pany Acts, where the directors are authorized to contract on the part of the company, although not in writing, when such con- tracts would, if entered into by private persons, be binding in that form, three directors being a quorum for that purpose, it was held that the mere fact that extra work was done with the approbation of the company's engineer, the special contract re- quiring written directions for all the work, had no tendency to prove a contract binding the company.^ 4. In one very well considered case,^ upon the subject of extra work, not authorized in the manner specified in the contract, it is said by the vice-chancellor: " From what I have been informed of the course taken at law in these cases, it is this : If, in an action by a contractor, it appears that the company have the benefit of the work, done with their knowledge, the court of law does not allow the company to take the benefit of that work without paying for it, although, in covenant, [or any action upon the contract,] the contractor cannot recover." This may be in accordance with the general rules of law applicable to the sub- ject.'' 4 Kirk V. The Guardians of the Bromley Union, 2 Phill. 640 ; Thayer v. The Vermont Central Railway, 24 Vt. R. 440 ; Herrick v. Same, 27 Vt. E. 678 ; Van- derwerker v. Same, 27 Vt. R. 125, 130. 5 Homersham v. Wolverhampton Waterworks Co. 6 Railw. C. 790. Pollock, Ch. B., said: " The company is not bound by the mere order of the engineer, or by the contract with one director.'' 6 Nixon V. Taffvale Railway, 7 Hare, 136. But seepost, § 169, 182. 7 Dyer u. Jones, 8 Vt. R. 205 ; Gilman u. Hall, 11 id. 511. But, in many cases, the work is done by a sub-contractor, and enures to the benefit of the original contractor, as in Thayer v. Vermont Central Railway, 24 Vt. R. 440, and would not therefore give any right of action against the company, although in one sense they may put the work to their own use, and so may be said to have the benefit of it, to some extent. 223 * 205 THE LAW OF RAILWAYS. [§ 114. * SECTION X. IF ONE PARTY REPUDIATE THE CONTRACTj THE OTHER MAY SUE PRESENTLY. 1. Parti/ repudiatinff excuses the Other. I 3. President cannot bind the company. 2. New contract valid. I § 114. 1. Questions often arise in regard to the right of a party to sue for damages, before the time for payment arrives, and be- fore he has fully performed on his part. But it seems now to be well settled, that where one party absolutely repudiates the con- tract on his part, he thereby exonerates the other from further performance, and exposes himself presently to an action for damages.' 2. Where the contract is unconditionally repudiated by one party, before it is fully performed, it is competent for the other to stipulate for its performance, upon different terms, no doubt. And such stipulation, although not under seal, would probably be regarded, as made upon a valid and sufficient consideration ; and if made by an agent of the former party to the contract, but who had not authority -to bind his principal to such contract, it would nevertheless be ^binding upon the agent and other party contracting, and would not be required to be in writing, as it would be an original and not a collateral undertaking. 3. But it has been held, that after a railway company has' entered into a written contract, for the performance of certain work, the promise of its president to allow additional compensa- tion to the contractors, for the same work, is without consideration and not binding upon the company.^ 1 Cort V. The Ambergate, Not. B. & E. J. Railway, 6 Eng. L. & Eq. R. 230 ; Planche v. Colburn, 8 Bing. 14 ; Hochster v. De Latour, 20 Eng. L. & Eq. R. 157. But in an action to recover damages on such contract, the jury are not to go into conjectural profits resulting from a sub-contract very much below what the plaintiff was to be paid, but only the difference between the contract price and the value of doing the work, at the time of the breach, can be given. Mas- terton v. Mayor of Brooklyn, 7 Hill, 61. 2 Colcock V. Louisville Railway, 1 Strobhart, 329 ; Nesbitt v. L. C. & C. Rail- way, 2 Speers, S. C. R. 697. The controversy here is in regard to hard pan ex- cavation. And as the plaintiff contracted to do all the work on the road, and to construct the road-bed, and his contract only provided for earth and rock exca- vation, he is bound to accept his estimates under the contract, and especially after 224 § 115.] CONSTRUCTION OF RAILWAYS. * 206 *SECTION XI. DECISION'S OF EEKEREES AND ARBITRATORS IN REGARD TO CONSTRUCTION CONTRACTS. 1. Award valid if substantially correct. I 2. Court will not set aside award, where it I does substantial justice. § 115. 1. The general rule of law, in regard to the decisions of arbitrators and referees, by which they have been held binding upon the parties, although not made strictly according to the technical rules of 'law, if understandingly made, and exempt from fraud or partiality, has been sometimes applied to contracts for construction of railway works, the settlement of which has been determined by an umpire. As where the contract reserved the right to the company to alter the gradients of the road, and to substitute piling for embankment without extra allowance. These alterations were made, and thus increased the expense to the contractors. The final settlement being made by referees, to whom " all matters in dispute, with the contract as a basis of settlement," were referred, and they having allowed the contrac- tor compensation for this increased expense, it was held to be within the power conferred upon the referees.' 2. So, too, where the contract specified a price for earth exca- vation, and another for rock excavation, but nothing was said of " hard pan," a good deal of which occurred in the course of the work, which was admitted to be more expensive than the ordi- nary earth excavation. The whole subject was referred, and the plaintifT claimed in his specification thirty cents per yard, for excavating hard pan, and the referees allowed him fifty cents, on trial. The defendants objected to the allowance, being more than the claim. But the court said, where the testimony was received without objection, and showed the party entitled to re- having done so, he cannot claim extra compensation for excavating hard pan, even if he show that, by usage, " earth " has a technical meaning, and does not include hard pan. 1 Porter v. Buckfield Branch Kailway, 32 Maine R. 539. In this case the con- tract provided for payment of a portion of the price of the vpork, in the stock of the company, and the arbitrators directed, that the same proportion of their award should be paid by issuing certificates of stock, and the award was held valid in this particular also. 225 * 207 THE LAW OF RAILWAYS. [§ 116. cover, beyond his specification, the court will not set aside the report, or grant a new * trial, where it is apparent the party has not recovered more than what he is fairly entitled to.^ SECTION XII. DECISIONS OF company's ENGINEERS. 1 . Estimates for advances, mere approxima- tions, under English practice. 2. But where the engineer's estimates are Jinai, can only be set aside, for partiality or Contractor hound hy practical construction of the contract. 4. Estimates do not conclude matters, not re- ferred. 5. If contractor consent to accept pay in de- preciated orders, he is bound by it. 6. Right of appeal lost by acquiescence. 7. Engineer cannot delegate his authority, 8. Arbitrator must notify parties, and act bona fide. § 116. 1. The English contracts for railway construction gen- erally contain a provision for referring the final settlement with the contractor, to an indifferent board of arbitrators, or one selected by the parties respectively, with the umpirage of a third party, in case of disagreement.^ Under such contracts the pro- vision in regard to monthly or semi-monthly estimates is such, that they syre understood to be mere approximations, and it is only equivalent to a provision, that the company shall advance, from time to time, as the work progresses, a stipulated propor- tion of the work, which they shall, by their engineeer, adjudge to be done. All that is requisite to the validity of such estimates is, that they were made bond fide, and with the intention of act- ing, according to the exigency of the contract.^ 2 Du Bois w. Delaware & Hudson Canal Co. 1-2 "Wendell, 334. 1 Ranger v. Great Western Railway, 27 Eng. L. & Eq. R. 35, 46. So where in a canal contract, it is pi-ovided, that the engineer " shall in all cases determine the amount or quality of the several kinds of work " to be done, and the compensation therefor, and either party had the right to compel an indif- ferent reference, where they felt aggrieved by the decision of the engineer, " to investigate and determine all questions that may arise relating to compensation for work done under this contract;" it was held, this umpirage only extended to the final account of the engineer. People v. Benton, 7 Barb. 209. Under a contract where the company stipulated to pay the contractor ninety per cent, of the work done, according lo the engineer's estimate ; and the engi- neer had the right to declare the contract abandoned, and in that event the ten per cent, became forfeited, and the engineer did so declare ; it was held, that this did not absolve the company from the payment of"the ninety per cent, upon 226 § 116.] CONSTRUCTION OF RAILWAYS. * 208 2. But where the contract contains provisions referring the estimate of the quantity and quality of the work absolutely to the determination of the company's engineer, or any particular party, and provides, as is not uncommon in this country, that his decision shall be final, no relief from his determination can ordi- narily be obtained, even in a court of equity, unless upon the ground of ' partiality, or obvious mistake, which latter is held to apply rather to the quantity, than the quality of the work, this - being purely matter of judgment and discretion, .and which was intended to be concluded, by the opinion of the arbitrator.^ 3. If the contractor acquiesce in a particular construction of his contract, and allow his estimates, from time to time, to be made upon such basis, he will be bound by it thereafter.^ 4. Where the contract specifies a price for rock excavation, and another for ordinary earth excavation, and, in the course of the work, a large quantity of hard "pari was excavated, for which no provision was made in the contract, and the other party con- ceded, that compensation was due, beyond the price fixed in the contract for ordinary earth excavation, it was decided that the contractor might recover upon a quantum meruit count. And where the contract also provided that the engineer should finally determine all questions, necessary to the final adjustment of the contract, this did not render the engineer's estimate conclusive, as to the sum to be paid for excavating hard pan.^ These points are both decided, mainly, it is presumed, upon the concession of the defendant, that the hard pan excavation was a matter alto- the work done by the contractor, before the contract was declared abandoned. Ricker v. Fairbanks, 40 Maine R. 43. 2 Herriek v. The Vermont Central Railway, 27 Vt. R. 673; Kidwell v. Bait. & Ohio Railway, infra; Alton Railway v. Northcott, 15 111. R. 49. In this case it was held that the estimate of the umpire will not bind the parties, if based on an erroneous view of the contract. So a court of equity may correct the mistakes of the engineer, although the contract stipulates, that his decision shall be final. Mansfield & Sandusky Rail- way V. Veeder, 1 7 Ohio, 385. So too where the engineer proved to be a stock- holder in the company. Milnor v. The Georgia R. & Banking Co. 4 Ga. R. 385. 3 Kidwell V. The Baltimore & Ohio Railway, 11 Grattan, 676. See also Com- monwealth V. Clarkson, 3 Barr, 277. 4 Dubois V. Delaware & Hudson Canal Co. 12 Wend. R. 334 ; 15 id. 87. See a. c. 4 Wend. R. 285. But see ante, § 114; Nesbitt v. L. C. &c. Railway, 2 Sneers, 697, where hard pan seems to be regarded as earth excavation, unless there is some special provision in the contract /or estimating it otherwise. 227 * 209 THE LAW OF RAILWAYS. [§ 116. gether outside of the contract. Otherwise it might seem difficult to maintain their entire consistency with other decided cases.^ 5. Where the contract gives the engineer power to stop the work, when the means of carrying it forward fail, and he in- formed the contractor it could not proceed, unless he would receive his monthly pay in orders, which were at a discount, and the "contractor consents to receive them, he is not entitled to recover of the company the amount of such depreciation.^ 6. And although the contractor, by the contract, had the power to refuse to abide by the final estimates of the engineer, yet if he submitted to him his charges, for the work done^ and • made no objection to his making up the final estimate, he is bound thereby.^ 7. Where in a contract for work upon a railway it was stipu- lated, that the work should be measured by defendant's engineer, or agent, which should be final and conclusive, it was held that such person could not delegate his authority, but that it was indispensable, that he should himself make the admeasurement. But in making the admeasurement, it is not necessary, that he should give previous notice to the parties, to enable them to be present 8. But if such agent is to make an estimate of certain ex- penses, to be allowed the plaintiff, and he proceeds to do so, in the absence of plaintiff and without notice to him, he will not be bound by the estimate. But such estimate will not be affected by the inadequacy of the amountj or that the usual means were not resorted to for ascertaining facts, if the umpire act bond fide, which is a fact to be determined by the jury.^ 5 Morgan v. Birnie, 9 Bing. R. 672. See also Sherman v. The Mayor of New York, 1 Comst. 320. 6 Kidwell V. The Baltimore & Ohio Railway, U Grattan, 676. See also Com- monwealth V. Clarkson, 3 Barr, 277, upon the general subject of the conclusive- ness of the engineer's estimate. 7 Wilson V. York & Mtl. Railway Co. 11 Gill & Johns. 58. Gross negligence is not fraud, but is evidence to be considered by the jury. Id. 228 §117. CONSTRUCTION OF RAILWAYS. *210 SECTION XIII. RELIEF IN EQUITY FROM DECISIONS OP COMPANY'S ENGINEERS. 1. Facts of an important case stated. 2. Claim of contractor in the bill. 3 . Bill sustained. Amendment alleging mis- take in estimates. 4. Relief only to be had in equity. 5. Proof of fraud must be very clear. 6. Engineer being shareholder, not valid ob- jection. 7. Decision of engineer conclusive as to qual- ity of work, but not as to quantity. 8. New contract condonation of old claims. 9. Account ordered after company had com- pleted work. 1 . Money penalties cannot be relieved against unless for fraud. n. 1 . Review of the cases upon this subject. § 117. 1. In consequence of the peculiar stringency of the terms of contracts for railway construction, applications for relief in ' equity have not been unfrequent. In one case ^ it was agreed • Ranger v. Great Western Railway, 1 Railw. C. 1 ; s. c. 13 Sim. 368. And where by the contract the work was to be done to the satisfaction of the engineer of the defendants, and suit was brought without obtaining the judgment of the engineer, held, that it could jiot be maintained. Parkes v. The Great Western Railway, 3 Railw. G. 17. This case is also found in 3 Railw. C. 298, and in 27 Eng. Law & Eq. R. 35. This case came before the House of Lords, on appeal for final determination, May 26, 1854, just ten years after the decision in the V. C. court. The judg- ment was in the main affirmed, but in form was reversed, and sent back to the Court of Chancery, for an accouDt to be taken between the parties, according to their respective rights, as established by the final decision. The case, as it appeared on the final hearing, is deserving of a more extended notice. The following is the statement of the case, and the points ruled in the House of Lords. In a contract between R. and a railway company for the performance by R. of a portion of the line of railway, after reciting that R. agreed to secure the due performance of his contract, by his bond in the penal sum of £4,O0Q, conditioned for the payment to the company of certain fixed sums for every week in which the work should not be completed according to the contract, the penalty in each successive week to increase in a fixed proportion, it was witnessed, amongst other things, that in case R. should become insolvent, &c. or should, from any cause whatsoever, (not the act of the company,) not proceed in the works to the satis- faction of the company, the company might give to R. a notice in writing requir- ing him to proceed with the said works, and in case R. should for seven days after such notice make default in commencing or regularly proceeding with the said works it should be lawful for the company to employ other persons to complete the works, and pay them out of the money which should be then remaining due to R. on account of his contract ; and that the moneys previously paid to R. on account of any works should be considered as the full value, and be taken by him as in full payment and satisfaction, for all works done by him ; and that all 20 229 * 211 THE LAW OF RAILWAYS. [§ 117. by the contract, that every fortnight the engineer of the * com- pany should ascertain the value of the work done, according to moneys -which either then or thereafter would have been payable to K. togethM with all the tools and materials then being upon the works, should, upon such default as aforesaid, become and be in all respects considered as the absolute property of the company ; and that if such moneys, tools, and materials, should not be suiBcient to pay for the completion of the works, then R. should make good such deficiency on demand. It was then further witnessed, and the com- pany covenanted to pay to R. for the completion of the works the sum of £63,- 028 16s., in the following manner, namely, every fourteen days four fifth parts of the whole value of the said works which shall have been actually performed dur- ing the preceding fourteen days, until there should be a reserved fund of £4,000, and then every fourteen days to pay the full value of such works, such value to be estimated by the principal engineer or his assistant, having reference as well to the prices in the schedule, (as to extra work,) as to the entire cost of the whole works ; and at the expiration of one calendar month after the comple- tion of the entire works, to pay one moiety of the £4,000 so retained in the hands of the company, and at the expiration of one year and a month, the re- maining moiety of the £4,000. And it was lastly agreed, that during the progress of the works, the decision of the principal engineer for the time being of the company, with respect to the amount, state, condition, &c., or any other matter or thing whatsoever relating to the same, shall be final, and without appeal ; but in case of dispute, after the completion of the contract, as to any matter of charge or account between the company and R., such dispute shall be finally settled by the arbitration of the said engineer on the part of the company, and an engineer appointed by R. on his part, or if they disagree, by an arbitrator to be named by them. After R. had proceeded to a very considerable extent to- wards the completion of his contract, the company, being dissatisfied with the progress of the works, gave the notice to R. mentioned in the contract, and after seven days they took possession of the works, and of all the fools and materials thereon, and completed the works by other parties. R. filed his bill, setting up a case of fraud against the company in concealing the nature of the strata through which cuttings and tunnels were to be made, and insisting that he was entitled to be paid for those works at fair prices, regardless of the contract ; that the fortnightly certificates of the value of the works given by B., the engineer of the company, were void, and not binding upon him, in consequence of B. being a shareholder in the company ; that he was entitled to be relieved against certain money penalties which had been charged against him in the engineer's certifi- cates ; that the company were not justified in taking possession of the works, tools, and materials ; and that he was entitled to have an account taken of the value of the works done, on the footing that there were no contracts, or that they were abandoned ; and that the company might be debited with the value of the engines, tools, materials, articles, and things of which the company took pos- session. Held, first, that no case of fraud had been made out. But, semble, that although a corporation cannot be guilty of fraud, yet if their agents employed in carrying 230 § 117.] CONSTRUCTION OF RAILWAYS. * 212 its quality and relative proportion to the whole work ; the con- ti'actor *to receive eighty per centum, the remainder being re- out a trading speculation be guilty of fraud, the corporation will be liable. Per the Lord Chancellor. Secondly, that the principle which prevents a person being a judge in his own cause, (Dimes v. The Grand Junction Canal Co. 17 Jur. 73 ; s. c. 16 Eng. L. & Eq. R. 63,) does not apply to the case of the engineer of a railway company holding shares in that company, who, aecording to the terms of a contract be- tween the company and a contractor, was, during the progress of the works, to give periodical certificates of the value of the works done, but which, on the completion of the contract, were not final. Thirdly, that the money penalties had been properly charged against R., they being, upou the proper construction of the contract, not penalties, but liquidated damages. Fourthly, that even assuming that the company were not justified in taking possession of the works, tools, and materials, after the notice given, R. was not entitled to treat the contract as not existing, or as abandoned. R.'s right would have been by action for damages, and the seizure by the company formed no iirouud for such equitable relief as was asked. Fifthly, that, upon the true construction of the contract, the company did not according to their contention, upon taking possession of the works and plant after notice* become absolute owners of the tools and materials, &c. ; this whole pro- vision is to be regarded, not in the nature of a penalty, but as mere machinery for enabling the company to complete the works at the cost of R., And the com- pany are bound to account for the value of the tools and materials, in settling their accounts with him, which accounts were decreed to be taken on the footing of the contract. In regard to the competency of the engineer, the learned chan- cellor said : " When it is stipulated that certain questions shall be decided by the engineer appointed by the company, that is, iu fact, a, stipulation that they shall be decided by the company. It is obvious that there never was any intention of leaving to third persons, the decision of questions arising during the progress of the works. The company reserved the decision for itself, acting, however, as from the nature of things it must act, by an agent, and that agent was, for this purpose, the engineer. His decisions were, in fact, their decisions. The contract did not hold out, or pretend to hold out, to the appellant, that he was to look to the engineer in any- other character than as the impersonation of the company. In fact, the contract treats his acts and their acts, for many purposes, as equiva- lent, or rather identical. I am, therefore, of opinion, that the principle on which the doctrines as to a judge rest, wholly fails as to its application to this case. The company's engineer was not intended to be an impartial judge, but the organ of one of the contracting parties. The company stipulated that their engineer for the time being, whosoever he might be, should be the person to decide disputes pendino the progress of the works, and the appellant, by assenting to that stipu- lation, put it out of his power to object, on the ground of what has been called the " unindilferency " of the person by whose decision he agreed to be bound. It is to be observed, that the person to decide was not a particular individual, in 231 * 213 THE LAW 0¥ RAILWAYS. [§ 117. served to enforce the completion of the works. That if the engineer should * not be satisfied with the works, the company whom, notwithstanding his relation to the company, the contractor might have so much confidence as to agree to be bound by his awards, but any one from time to time the company might choose to select as their engineer. The appellant alleges that he did not know the fact that Mr. Brunei was a shareholder until more than two years after the works had been begun. " But he must have known that the dompany had it in their power to appoint another engineer in Mr. Brunei's place, who might hold shares, or that Mr. Brunei himself might purchase shares.. Without the intervention of the engineer, the contract was, as it were, paralyzed ; nothing could be done under it; and it surely can hardly be argued that a person appointed engineer could, by purchasing shares, render the contract practically inoperative." It is regarded as questionable, how far a contract, vesting the property of the contractor in the company, in the event of his insolvency merely, could be main- tained, as consistent with the English bankrupt and insolvent laws. Rouch v. The Great W. Railway, 2 Railw. C. 505. But this objection may be obviated, by the company stipulating for a lien merely ; a right to use the tools and materials of the contractor, in the completion of the work, according to and in fulfilment of his contract. Hawthorn v. Newcastle-upon-Tyne & N. Shield Railway, 2 Railw. C. 299. It is said in one case, by a very learned equity judge. Lord Redesdale, (O'Connor v. Spaight, 1 Sch. & Lef 309,) that where an account has become so complicated that a court of law would be incompetent to examine it, upon a trial at Nisi Prius, with all necessary accuracy, a court of equity will, upon that ground alone, take cogni2a,nce of the case. But a court of equity will not ordinarily in- terfere in any such case, and especially when the party applying has been guilty of laches. Northwestern Railway v. Martin, 2 Phill. 768. See also Taff-Vale Railway v. Nixon, 1 H. L. Cas. HI ; Paley v. Hill, 2 id. 45, 46. See also Nixon V. TafF-Vale Railway, 7 Hare, 136. It is ques/;ionable, we think, whether any such distinct ground of exclusive equity jurisdiction, in matters of account, as the complicated nature of the transactions can be maintained, but there is little doubt this would be regarded as an important consideration in guiding the discre- tion of that court, in assuming such jurisdiction, in any particular case° pending in a court of law. But sometimes where the contractor claims the right to appropri- ate payments, made generally, to a different contract from that upon which the company desire it to apply, it becomes necessary to draw the whole into a court of equity. Southeastern Railway v. Brogden, 14 Jur. 795 ; 3 McN. & G. 8. See upon the general subject Waring v. The Manch. & Sheffield & L. Railway, 7 Hare, 482. An important case, upon a contract for railway construction, finally determined in the national tribunal of last resort, upon elaborate argument and great consideration, and which involved most of the subjects involved in the case of Ranger v. The Great Western Railway, may be regarded, perhaps, as bearing somethmg of the same relation to cases in this country upon that subject, which the English case does to oases of that kind in the English courts. This is the case of Philadelphia, Wilmington, & Baltimore Railway v. Howard, 13 How. R. 307 ; 1 Am. Railw. C. 70. It came into the United States Supreme 232 § 117.] CONSTRUCTION OP RAILWAYS. * 214 should be enabled, after notice given to the contractor, and his default in complying, *for seven days, to take possession of the Court by writ of error to the Circuit Court of the United States for the District of Maryland. The facts in the case are complicated, and the points involved numerous. It will only be necessary to state the facts, in connection with the several points decided. The points bearing upon this subject are : — In such contract, the covenant to finish the work, by a time named on the one part, and to pay monthly on the other part, are distinct and independent cove- nants. And a right to annul the contract, on the part of the company, at any time, did not include a right to forfeit the earnings of the other party, for work done prior to the time when the contract was annulled. A covenant to execute the work, according to a certain schedule, which men- tioned that it was to be done, according to the directions of the engineer, bound the company to pay for work done according to his directions, although not strictly in conformity with a profile showing the original proximate estimates. And when the contract was to place the waste earth, where ordered by the en- gineer, it v?a3 the duty of the engineer to provide a convenient place, and if he failed to do so, the other party is entitled to damages. Where the contract authorized the company to retain, until the completion of the contract, fifteen per cent, of the earnings of the contractor, by way of indem- nity from loss, by any failure to perform the contract by the contractor, it was held this was not to be regarded as a forfeiture, and that the company, if they terminated the contract, were bound to pay the contractor any amount which they had so retained, unless the jury were satisfied the company had sustained loss by the default, negligence, or misconduct of the contractor, which should be deducted. Where the contractor was delayed, in the progress of the work, by an injunc- tion out of chancery, he is entitled to no damages, unless the jury find that the company did not use reasonable diligence in obtaining a dissolution of the injunc- tion. If a railway company, having the power reserved to them of annulling a con- tract for construction, " when, in their opinion, it is not in due progress of exe- cution," or the contractor is " irregular or negligent," it was held that if they ex- ercised this power, for the purpose of having the work done cheaper, or of oppressing and injuring the contractor, he was entitled to recover damages for any loss of profit he might have sustained, and of the reasons which influenced the company, the jury were to be judges. And in Herrick v. Vermont Central Railway, 27 Vt. R. 673, the following points were decided upon this subject : — A stipulation in a contract for the construction, in part, of a railway, that " the engineer shall be the sole judge of ^e quality and quantity of the work, and from his decision there shall be no appeal," is binding upon the parties, and con- stitutes the engineer an arbitrator or umpire between them. Such a stipulation imposes upon the party, by whom the engineers are to be employed, the duty of employing for such engineers, competent, upright, and trustworthy persons, and to see to it that they perform the service expected of them, at a proper time and in a proper manner. 20* 233 *214 THE LAW OF EAILWAYS. [§ 117. works, thereupon the plant and materials of the contractor, and all the work done, and not paid for, and the reserved fund to be forfeited to the company. Such a stipulation, when construed with reference to its subject-matter, and the ordinary course of business, does not require the estimates to be made or verified by the chief engineer, but has reference, as well to the assistant, or resident en- gineer, by whom such estimates are usually made. If payment for the work performed is dependent upon, and to be made accord- ing to the engineer's estimates, as to its amount, and the employing party per- forms its duty in reference to the employment of suitable engineers, &c., the ob- ligation to pay will not arise until such estimates are made. But if no estimates are made, through the neglect or fault of the engineer, or of the party who employs him, the other party could probably recover, at law, for the work performed by him, without any engineer's estimate of it. A contract providing for monthly estimates of the contractor's work, according to which he is to be paid, imports an accurate measurement, and final estimate for each month, and not such a one as is merely approximate or conjectural. A court of equity has jurisdiction of a claim to be paid for a larger amount of work, done under such a contract, than was estimated by the engineer, where the under-estimate was occasioned either by mistake or fraud. The Vermont Central Railway Co. contracted with B. for the construction of their railway, and B. contracted witb the orator for the construction of a part^of it. In both contracts there was such a provision in reference to the conclusive- ness of the engineer's estimates. Held, that there was no privity of contract be- tween the orator and the Vermont Central Railway Co. and that he could not recover of them for work not estimated by the engineer, by reason only of a -mistake, which they had not, either directly or indirectly, caused or connived at; and that their indebtedness to B. for the same work for which he was indebted to the orator, did not constitute a fund against which the orator had a claim. But if there was any connivance on the part of the Vermont Central Railway Co. or their agents, in bringing about the under-estimates complained of, even if it was without the design, ultimately to defraud, but only, as a temporary expe- dient for present relief, the orator would be entitled to recover of them the loss which he sustained by reason thereof. The orator claimed in his bill-, that he had been under-estimated a given amount, for the payment of which he instituted the present suit ; by the report of the Master, the amount not estimated was found to be more than twice that amount. .Held, that the orator should be limited to the amount claimed in his bill. The report of a Master in Chancery upon the taking of an account, should con- tain a succinct statement of all the points made by counsel, and the facts found by him upon each point. The testimony given viva voce before a Master in Chancery, in taking an ac- count, or a copy of it, should be returned to the court, with his report. The Master should also state the account, at length, and all the facts found by him, so that they will be intelligible, without reference to the testimony. 234 ^ ^^'^•] CONSTRUCTION OF RAILWAYS. * 215-216 * 2. The company having taken the forfeiture under the con- tract, the plaintiff filed his bill, insisting that the engineer had under-estimated the work ,£30,000, and that no forfeiture had been incurred by him, and praying that the company might elect to permit the plaintiff to complete the works, or that the contract might be considered at an end, and in either case an account between the parties might be taken. 3. The Lord Chancellor held, that the facts alleged do entitle the plaintiff to relief in equity. The plaintiff amended his bill, * and alleged that the most expensive masonry had been paid for only at the price of inferior work, and claimed large sums in that respect, and also alleged fraud against the company, in the con- tracts, and in the certificates. 4. It was held, that the investigations, as to the sufficiency of the payments' made, could only be made in a court of equity. 5. That the evidence in support of an allegation of fraud must be very clear, and that it is not enough to show, that t.he state- ments of the company, as to the nature of the work, gave imper- fect information, but it must also be shown, that the contractor could not with reasonable diligence, have acquired all necessary information. 6. The fact of the engineer being a shareholder in the com- pany, is not enough to avoid his decision, as the contractor might have ascertained this fact. The character of an engineer is of more value to him than his interest as a shareholder. 7. That the decision of the engineer, as to the quality of the In a contract for railway construction, where the parties by a subsequent con- tract stipulated for the completing of the work, by a day named, for the additional price of £15,000, and a further stipulation that the contractor should pay the company £300, for each day's delay beyond the time specified, the company to furnish the rails and chairs, blocks, &c., to complete the same, by the day specified. The work was not finished for twenty-four days after the time specified, and the rails, chairs, blocks, &c. were not furnished to complete it sooner. The court held the covenants independent of each other, and the contractor bound to de- duct the stipulated forfeiture, notwithstanding the default of the company. Mcintosh V. Midland Counties Railway, 14 M. & W. 548 ; s. C. 3 Railw. C. 780. The rule of law that covenants, which are not the entire consideration for each other, will ordinarily be construed as independent, unless there is something in the transaction which shows the parties regarded them as dependent, is certainly carried further in this case, than reason and justice would seem to justify. We think this case would not be followed in this country. 235 *217 THE LAW OF RAILWAYS. [§ 118. work, is conclusive, but not as to the quantity. The question of measurement and calculation will be entertained and decided by a court of equity. 8. That where the parties have entered into new contracts, it will be considered a condonation of old injuries, unless, at the time of making the new contract, the plaintiff insisted upon his adverse claims, the parties being at liberty to proceed at law. 9. After the works were completed by the company, the court ordered an account taken, directing special inquiries as to the amount and kind of work done. 10. It was held that stipulations in regard to penalties, in these contracts, are binding upon the parties, and no relief against them will be afforded in equity, unless fraud be shown. And that, where it had been agreed that a written contract should form part of an unwritten one, this will include stipula- tions, as to forfeiture.^ *SECTI0N XIV. FRAUD IN CONTRACTS FOR CONSTRUCTION. 1 . Believable in equity vpon general princi- ples. 2. Statement of leading cases upon this sub- ject. 3. Where no definite contract closed, no relief can be granted. § 118. 1. It is weU known that courts of equity will relieve against fraud, practised by the agents of railways, in building contracts, the same as in other cases of fraud. But the impor- tance and peculiar nature of these contracts, will justify a brief note of the cases decided upon the subject. 2. The most important case, in the English books, upon this subject, is that of Ranger v. The Great Western Railway, which we have just referred to upon another point.* And the state- 1 1 Railw. C. 1 ; 3 Railw. C. 298. On appeal in the House of Lords, 27 Eng. L. & Eq. R. 35, 41. In regard to fraud, on the part of railway companies, in building contracts, the Lord Chancellor said : " The first ground on which the appellant rests his title to relief is, that he was induced to enter into the contract by the fraud of the company ; that the sum at which he agreed to do the works was far below what he would have required, had he known the real nature of the soil through which the tunnels were to be made ; but on this point he had been misled by the fraudulent contrivance of the respondents. The case made by the bill on this head is, that there being on the line of the road to be made for the 236 § 118.] CONSTRUCTION OF RAILWAYS. * 218 ment * of that case, in the House of Lords, by the Lord Chancel- lor Oranworth, is a better commentary, than elsewhere exists, railway in the neighborhood of Bristol three kinds of stone, sandstone, Dunns or Dunn stone, and Pennant or Hanham stone, of which the first (that is, sandstone) is comparatively soft and easy to work, whereas the other two kinds (particularly the latter) are hard and difficult to work, the company acting through Mr. Brunei, their engineer, fraudulently contrived to make the appellant believe that the cuttings would be through the softer material, (sandstone,) and not through Dunns or Pennant stone, whereas the fact was, as they well knew, that the line was chiefly through the harder sorts of stone. The bill represents, that, for the purpose of enabling persons desirous of contracting, to make the road along the line included in the contract described as 1 B, to tender for the same, it was necessary that in different parts of that portion of the intended line pits should be sunk, called ' trial pits,' in order that the nature of. the strata might be pre- viously known ; and accordingly that the respondents did sink ten such pits, but that eicht of them were only sunk to the depth of a few feet, and were, therefore, of little or no use in showing what would be the nature of the soil at the level of the line of the railway, which was at a very considerable depth below the surface ; and the other two were sunk respectively to depths of 78 and 65 feet only, at points where the intended line of road was in one case 112 feet and in the other 97 feet below the surface, so that these two pits did not reach the level of the railway, in one case by 34 feet, and in the other by 42 feet. The bill fuEther al- leges that the soil dug out of all of the said pits was laid on the surface near the mouth, and showed apparently a substratum of sandstone, the workmen employed to sink the pits having by directions from the company ceased to dig when they reached the hard stone, except that out of the bottom of one of the deep pits some Dunn stone was taken, but which had crumbled away when exposed to the air. " The bill then goes on to charge, in substance, that the company, with know- ledo-e that the cuttings would have to be made through the harder sorts of stone, caused notice to be given by advertisement, that they were ready to receive tenders according to certain printed forms circulated for the purpose, and the nature of the works to be done was to be ascertained from a specification deposited in their office at Bristol. The specification described the works for which the tender was to be made. The printed form of tender contained an undertaking by the party tendering, not only that he would do the contract works at a speci- fied sum, but also that he would do any extra works, and make any alterations in or additions to the original works which might be deemed expedient in the course of their progress, on being paid for the same according to certain rates set out in a schedule of prices annexed to the tender. The different heads under which charges were to be made by the contractor, in respect of such extra or altered works were all printed as part of the form offender, and the party tendering was to write against each such head the price at which he would agree to be bound to do the same works of the nature there referred to. Amongst the works so to be done was the excavating clay, shell, and sandstone, but there was no mention in the schedule of any other stone. Neither Dunn stone nor Pennant are refer- 237 *219 THE LAW OF RAILWAYS. [§ 118, upon this * subject. The general subject of j&aud, in railway- red to by name ; and the suggestion of the bill is, that the omission of any mention, of Dunn or Pennant stone was a contrivance, or part of a contrivance, for the purpose of leading the persons tendering, to suppose that they might make their calculations on the footing of there being no hard stone to be cut through, — a supposition which would be confirmed by the trial pits, out of which no hard stone had been dug, except the small portion of Dunn stone from one of the pits, which, as I have already stated, crumbled away when exposed to the air. " The appellant was resident in London, and in order to enable him to make his tender, he sent down to Bristol an agent, Thomas Lloyd, whom he represents as a competent judge in such matters, to examine the line of the proposed works, so as to enable him to form a correct judgment as to what would be a fair amount to be tendered. The bill states that Lloyd accordingly proceeded to Bristol in the month of March, 1836, surveyed the line and inspected the trial pits, and that, reasonably supposing the two principal pits to have been sunk to the level, and not finding amongst the excavated material accumulated on the surface any thing but soft or loose stone — no Pennant or Hanham stone — he concluded that there would be no cutting through hard stone ; and the sum tendered was calcu- lated on that basis. It was, according to the bill, impossible for 'Lloyd to get down to or near the bottom of the two principal trial pits, in consequence of their being nearly filled up with rubbish and water before he examined them. The appellant,^ therefore, contends that he was imposed upon as to the nature of the work lie had to perform, and so agreed to do it on terms to which, but for the de- ception practised upon him, he would not have consented. The question on this part of the case is one of fact. Is it established that any imposition was practised on the appellant to induce him to enter into the contract ? For if there was, he was clearly entitled to relief, — whether precisely that which he asks for, is another question. Strictly speaking, a corporation cannot of itself be guilty of fraud ; but where a corporation is formed for the purpose of carrying on a trading or other speculation tor profit, such as forming a railway, these objects can only be accom- plished through the agency of individuals ; arid there can be no doubt that if the agents employed conduct themselves fraudulently, so that, if they had been acting for private employers, the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agent acts is a corporation. The question, therefore, on this part of the case is, whether the directors, or the engineers, or agents, whom they employed, were guilty of the fraudulent misrepresentations alleged by the bill. , I am clearly of opinion that no such case is made out. [His lordship here stated the nature of the evidence on this point, and continued] :— " Two engineers, Mr. Frere and Mr. Babbage, both say that the appellant had ample opportunity, by means of the trial pits and cuttings, of ascertaining the nature of the soil and strata; and the circumstances of the case satisfy me that this must be true. The work to be done was of a laborious, difficult, and expen- sive character. The notices calling for tenders had been circulated for many weeks, and even months, and would naturally excite the attention of contractors of eminence, who would be drawn to the spot. I cannot attribute to the company 238 § 118.] CONSTRUCTION OF RAILWAYS, * 220 companies, in * regard to building contracts, is somewhat con- sidered, in a late case, in the Supreme Court of Vermont.^ the fraudulent intention imputed to them — an intention as absurd as it would have been fraudulent — of meaning to mislead those who should apply to make tenders for the work, when they must have felt that the success of such a fraud must entirely depend on the very improbable chance, that those who should be attracted by the notices, would omit to make inquiry into the nature of the soil they would have to excavate. The work was not one of a trifling nature ; one of the persons who made a tender, demanded above £100,000. The tenders were, in the first instance, to be made before the 1st March, 1836 ; and until nearly a fortnight after that date, the two principal trial pits had been open, and free from water, so that there was nothing to prevent any contractor from himself ascerr taining to what depth it had been cut, and what was the soil at the bottom ; and though by the 12th March a great deal of water had entered and so partially choked the two principal pits, yet Mr. Frere says the company and their engi- neers were always ready to facilitate the appellant's investigation as to the nature of the soil and strata. " The appellant, in his bill, assumes that sandstone and pen;iant stone are two different kinds of stone, but this is not the conclusion at .which, on the evidence, I arrive. ' Pennant stone,' says Mr. Brunei, ' is a species of sandstone, and the only species in the neighborhood of Bristol, of sufficient hardness to be used for bridges, or other strong masonry.' And Mr. Frere says that' it is extensively used in Bristol, and is the hardest sort of sandstone found in that neighborhood, except the Brandon Hill stone. Dunn stone, according to the same witness, is merely a local term for a particular variety of shale, and is frequently found in cuttings along with sandstone. This explanation fully justifies the language of the tenders, without supposing that the materials to be excavated and removed were there mentioned by the company for any purpose of deception. The soil to be removed was sufficiently designated as consisting of clay, shale, and sand- stone, the latter term comprehending all sandstone, hard as well as soft ; that is. Pennant or Hanham stone, (which is in truth only Pennant stone found at Han- ham,) as well as ordinary sandstone. In the contract 2 B, the expression occurs, ' compact gray sandstone, commonly called Hanham stone.' It was for the appel- lant, before he made a tender, to satisfy himself as to the probable hardness of the sandstone to be removed, which, after all, could never be ascertained beforehand with perfect certainty. By examining the trial pits and cuttings, and making in- quiries of the engineers, he might have ascertained the depth to which the pits had been sunk, and the nature of the soil through which they had penetrated, and at which they had arrived. The cuttings, according to the evidence of Mr. Frere, exhibited sandstone, Pennant, and Dunn stone ; and the old quarry in Fox's Wood showed Pennant. " In these circumstances, I think it is impossible to believe that there was any thing like contrivance to mislead the appellant or any other contractor ; and it is clear that the appellant, if there was no fraud, was bound to satisfy himself on the 2 Herrick v. The Vermont Central Kailway, 27 Vt. R. 673. 239 * 221 THE LAW OP RAILWAYS. [§118. *3. But it is clear that where no binding and complete contract has been entered into by the company, although the tenders made by a contractor have been accepted by their engineer, authorized to act on their behalf, and the contractor has incurred expense, upon the faith of having the contract, in preparation to fulfil it, there being certain alternatives in the tender, which had not been decided upon, and the whole thing being given up, and no spe- cific contract made under the seal of the company, that eguity can grant no relief.^ For if there was no contract equity could not create one, and if there was a valid contract, the remedy at law is adequate. subject ; for the specification of the proposed works, submitted to him before the tender was made, expressly stipulates that the contractor must satisfy himself of the nature of the soil, and of all matters which can in any way influence his con- tract. This, though of Course it would not absolve the company from the conse- quences of any fraudulent contrivances to mislead, yet certainly, in the absence of fraud, threw on the appellant the obligation of judging for himself. I must further add, that I cannot believe the appellant to have been really mistaken as to the nature of the soil, except, possibly, that the proportion of hard stone was greater than he had imagined he should find. I come to this conclusion from the fact, that the specification, which was submitted to him before he made the tender, provides for the construction of the Avon bridge, and other masonry, by means of the stone to be obtained from the cuttings. Now, Mr. Brunei says that Pen- nant is the only sandstone in the neighborhood of Bristol, of sulficient hardness to be used for masonry. The appellant either did know, or might have known this, when he made his tender, and it is surely impossible for him, in the face of such a clause in the specification, to say that he did not know there would be any beds of Pennant stone — that is, of stone capable of being used for masonry — to be excavated or removed. It is not unworthy of observation, that Mr. Stanton, one of the persons who made a tender, in his schedule of prices as to the sum which he would require for working sandstone, obviously points to the difference which might exist in the expense of removing sandstone of different qualities ; and he did not, like the appellant and the other persons who made tenders, offer one fixed uniform sum for sandstone of every quality, but he required for moving, &c. sandstone from open cuttings, Is. id. to 2s. 2d., and from tunnels, 2s. 9d. to 4s. 6d. ; from which, I think, it may be fairly inferred that he understood the words ' sandstone ' used in the schedule to include stone of different degrees of hard- ness ; some more expensive to work, some less so. To all these considerations must be added, that the appellant did not, so far as there is any evidence on the subject, make any remonstrance as to the supposed deception or mistake during the progress of the works, nor until after the relation between the parties had been entirely determined." 3 Jackson v. The North Wales Railway, 6 Kailw. C. 112. 240 §119] CONSTKTJCTION OF RAILWAYS. *222 SECTION XV. engineer's estimate wanting through fault of company. 1 . In such case contract.or may maintain bill in equity. 2. Grounds of equitable interference. 3. After company terminate contract, con- tractor will be enjoined fiom interference. 4. Stipulation requiring engineer's estimate, not void. 5. Not the same as an agreement, that all dis- putes shall be decided by arbitration. 6. Engineer's estimate proper condition prece- dent. 7. Same as sale of goods, at the valuation of third party. 8. The result of all the English cases, seems to be, that only the question of damages is properly referable to the engineer. 9. The rule in this respect different, in this country. § 119. 1. Where. by the terms of a railway construction con- tract, executed under the seals of the parties, the work is to be paid for, from time to time, upon the estimate, and approval of the company's principal engineer, and the amount and quality of the work finally to be determined, in the same mode, no action, either at law or in equity can be maintained, until such estimate and approval is obtained, unless it is prevented by the fault of the company. But where no such engineer is furnished by the company, or where through their connivance he neglects to act, the * contractor is not without remedy, in equity.' Lord Chan- cellor Cottenham, in affirming this decision,^ says: — 2. ." It is true that the specification and contract constitute a relationship between the plaintiffs and the defendants, which, if correctly acted upon, would have given to the plaintiffs a legal right, and a legal right only, to the benefits they claimed by this bill. But if the facts stated in the bill are such as, if true, de- prive the plaintiffs of the means of enforcing^such legal rights, and if those facts have arisen from the conduct of the defend- ants, or of their agent so recognized by the specification and contract, and now used for the fraudulent purpose of defeating the plaintiff's claim altogether, the defendants cannot resist the plaintiff's claim in equity upon the ground that their remedy is only at law ; nor is it any answer to show that, if the plaintiffs 1 Mcintosh V. The Great Western Railway, 2 De G. & S. 758. This is the decision of the Vice-Chancellor, which came before the Lord Chancellor, as men- tioned in note 2. 2 Mcintosh V. The Great Western Railway, 2 Hall & T. 250 ; 2 Mac. & G. 74. 21 241 *223 THE LAW OF RAILWAYS. [§ 119. cannpt get at law what they contracted for, they may obtain compensation in damages. It is no answer to a bill for specific performance that the plaintiff may bring an action for damages for a breach of the contract, or in a proper case of a bill for dis- covery of some specific chattels that damages may be recovered in trover, — the language of pleading is not that the plaintiff has no remedy, but no adequate remedy save in a court of equity. It is therefore no answer in the present case, for the defendants to urge that if they or their agent have been neglectful of what they undertook to do, by which the plaintiffs have suffered, they may be liable in damage to the plaintiffs. They contracted for a spe- cific thing, and are not bound to take that, or something in lieu of it, if such other thing be not what- this court considers as a fair equivalent. I do not therefore consider that any answer is given to the plaintiffs' right to file a bill in this court by showing that the ground upon which they seek their right so to do, name- ly, the being barred of their legal remedy by the conduct of the defendants, may subject them to damages at law." 3. And where disputes arose between the contractor, and the company, each charging default upon the other's part, and claim- ing the right to occupy the works, and the workmen of both coming in collision, upon the line of the road, and the completion and opening of the road being delayed in consequence, the court, on the application of the company, restrained the contractor from * continuing on the line, or interfering with the operations of the company, but directed an account of what was due the con- tractor, without regard to the former certificates of the company's engineer, and an issue to try, whether the company were justified in removing the contractor, reserving all claims for loss, and compensation, tiH the final hearing.^ 4. The question of the right to recover, at all at law, without procuring the engineer's estimate, where that is made a condi- tion precedent in the contract, has been of late considerably dis- cussed in the English courts, and especially in the important case before the House of Lords, in July, 1856 ; ^ and the result arrived at seems to be, that such a clause in a contract, in regard to the basis of recovery, is not equivalent to a stipulation, that 3 East Lancastire Railway v. Hattersley, 8 Hare, 72. * Scott V. Avery, 36 Eng. L. & Eq. R. 1. 242 § 11-9.] CONSTRUCTION OF RAILWAYS. *224 no action shall be brought, or that the case shall not come before the courts of law, or equity, which has long since been deter- mined to be repugnant and void.^ 5. The distinction is somewhat refined, and difficult of exact definition, but it seems to- us not altogether without foundation. A stipulation, that no action shall ever be brought upon a con- tract, or what is equivalent, that all disputes under it, shall be refeped to arbitration, is a repugnancy, which if carried out lit- erally must render the contract itself, as a mode of legal redress, wholly idle. And it is only in this view that contracts are to be . considered by the courts. 6. But a stipulation that the liability under a contract, or cove- nant, shall not accrue, except upon the basis of certain previously' ascertained facts, where the contract contains provisions for ascertaining them, by the action of either party, without the concurrence of the other, is no more than a limitation upon the right of action, as that no action shall be brought until after one year, or unless commenced within six months,^ which have been held valid. And even where the concurrence of both parties is requisite and the performance of the condition fails, through the refusal of one, it probably is the same as to the other as if per- formed. 7. Hence a contract to purchase goods at the valuation of N. and M., cannot be made the foundation of an action, without obtaining the valuation stipulated, or showing that the other party hindered it.'^ And in some cases it has been held, that if the obtaining of the estimate is withheld or defeated by the fraud of *the other party, that no action at law wiU lie, the only remedy being by a special action for the fraud, or in equity, per- haps.^ 5 Thompson v. Charnock, 8 Term R. 139. See also Tattersall v. Groote,'2 B. & P. 131. <* Wilson V. JEtna Ins. Co. 27 Vt. R. 99, and cases there cited. 1 Thurnell v. Balbirnie, 2 M. & W. 786 ; Milnes v. Gery, 14 Vesey, 400. 8 Milner v. Field, 5 Exch. 829. But in a later case in the same court, it is said, that the award must be obtained, or it must be shown that it is no longer practicable to obtain it. Brown t>. Overbury, 34 Eng. L. & Eq. R. 610. This rule with the qualification, that the defendant by his own act or refusal, had ren- dered the performance of the condition impracticable, is now, in this country certainly, hold such an excuse, as will enable the party to sue in a court of law. United States o. Robeson, 9 Peters, Sup. Ct. R. 319, 326. And in a very late 243 * 225 THE LAW OF EAIIiWATS. [§ 119. 8. This subject is very elaborately discussed by the judges, be- fore the House of Lords, in the case of Scott v. Avery,* and it is remarkable how wide a difference of opinion was found to exist, upon a question, which might seem, at first blush, so simple. Of the 'nine judges who gave formal opinions, three were op- posed to allowing any force whatever to such a stipulation. And of the other six, four held that only the question of dama- ges can properly be made to depend, as a condition precedent, upon the award of an arbitrator, while two held that- the award may be made to include all matters of dispute growing out of the contract, which it seems to us must be regarded as equiva- lent to saying that no action at law or in equity shall be brought to determine any controversy growing out of the contract, which all the judges agree is a void stipulation. We therefore feel compelled to adopt the view that upon principle, and the fair balance of authority, such a stipulation, in regard to estimatihg labor or damages, under a contract for construction, is valid, and may be treated as a condition precedent, but that beyond that, the present inclination of the English courts is to hold that it is repugnant to, sound policy, and subversive of the legal obliga- tion of the contract, as being equivalent to a stipulation that no action at law shall be brought upon the contract, but only upon the award, if not paid. 9. But the balance of authority, in this country, seems to be in favor of allowing such a condition precedent, in this class of contracts, to extend to the quality of the work, as well as the quantity, and to the question, whether the work is progressing with sufficient rapidity, and whether the company, on that account, are justified in putting an end to the contract.^ It seems reasonable to us, on many grounds, that contracts of this magnitude and character, should receive a somewhat different interpretation in this respect, from that which is applied to the ordinary commercial transactions of the country, as has been held in regard to pecuniary penalties.^ * We should not therefore case in Pennsylvania, Snodgrass v. Gavit, 28 Penn. St. R. 221, Mr. Justice Wood- ward assumes it as the unquestionable rule, in that state, that " where parties stipulate that disputes, whether actual or prospective, shall be submitted to the arbitrament of a particular individual, or tribunal, they are bound by their con- tract, and cannot seek redress elsewhere." , , 9 Ante,^ 116, 1X7. 244 § 120.] CONSTRUCTION OF RAILWAYS. * 225 feel justified in intimating any desire to see the American cases, on this subject, qualified. SECTION XVI. COiJtRACTS for materials ASfD MACHINERY. 1. Manufacturer not liable for latent defect in matericils, 2. Contract for railway sleepers, terms stated. 3. Construction of such contract. Parly may waive stipulation in contract, by acquiescence. Company liable for materials, accepted and used. § 120. 1. In a contract for fire engines, it was stipulated, that the engines and tender should be subject to the performance of one thousand miles, with proper loads, the manufacturers to be liable for any breakage which may occur through defect of mate- rials or workmanship, but not where it occurs from collision, neglect, or mismanagement of the company's servants, or any other cause, except the two first named. The trial to take place within one month from the day on which any engine is reported ready to start, in default of which the manufacturers to be re- leased from all responsibility. It was specially agreed the fire- boxes should be of copper, 7-lOths of an inch thick. One of the engines, so supplied, performed the thousand miles according to the contract, but some months after, the fire-box burst, when it was discovered that the copper was reduced to 3-16ths of an inch in thickness, it being conceded it was originally of the thick- ness required by the contract. In an action for the price of the engine, which by the contract was to be paid upon the satisfac- tory completion of the trial, it was held the defendants could not give evidence of such defect in the copper, no fraud being alleged, and that, by the terms of the contract, the three months' trial having been satisfactory, released the manufacturers from all re- sponsibility in respect of bad materials and workmanship.' 2. In a contract for railway sleepers,^ it was stipulated that the plaintiff below should supply the defendant below with 350,000 sleepers, the contract before having recited that the de- fendants were desirous of being supplied with that number of 1 Sharpe v. The Great Western Railway, 2 Railw. C. 722; 9 M. & W. 7. 2 The Great Northern Railway v. Harrison, 14 Eng. L. & Eq. E. 189, in the Exchequer Chamber, from the C. P.; 8. c. 8 Eng. L. & Eq. E. 469. 21 * 245 * 226 THE LAW OP RAILWAYS. [§ 120. railway ' sleepers. The contract specified that the plaintiffs were willing to supply them according to a specification and tender, which stated that the number of sleepers required was 350,000, that one half would have to be delivered in 1847, and the re- mainder by midsummer, 1848 ; and the contract also contained a covenant to supply the sleepers, within the time specified, " as, and when, and in such quantities, and in such manner," as the engineer of the. company by orders in writing " firom time to time or at any time, within the time limited by the specification, should require." The deed also contained a provision, that the engineer might vary the time of delivery, that the company should retain in their hands ,£2,000, as security for the perform- ance of the contract, and should pay it over within two months after the sleepers had been delivered, and that the contract might be determined upon the default or bankruptcy of the plaintiffs. 3. It was held that there was an implied covenant on the part of the company to take the whole number of 350,000 sleepers. That an order by the engineer was a condition precedent to any delivery of the sleepers by the plaintiffs ; That the company were bound to cause such order to be given within the time limited by the specification ; That although the engineer had power to alter the time for the delivery of the sleepers, such power was to be exercised within the period limited by the specification; That the engineer, as to matters in which he had a discretion, e. g. as to varying the time of delivery of the sleep- ers, stood in the position of arbitrator between the parties, but as to giving the order for the delivery he was a mere agent of the company ; The only legitimate rule of construction is to ascertain the meaning, from the language used in the instru- ment, coupled with such facts as are admissible in evidence, to aid its explanation. — Per Parke, B. 4. It has been held also, in a contract with a railway com- pany, to deliver iron, " near the months of July and August," and the delivery continuing till the 25th of October, and the company not objecting to receive it, that they were bound by the terms of the contract, one of which was that they were to give their note for each parcel of iron as it was shipped.^ 3 Bailey i). The Western Vermont Railway, 18 Barb. 112. It was also held here, that the refusal of the company to give their notes, as stipulated, excused 246 " § 121.] CONSTRUCTION OF RAILWAYS. 227 *5. So too under the English statute,* which provides that the directors of a railway company may contract by parol, on behalf of the company, where private persons may make a valid parol contract, it was held, where the agent of the company agreed by parol with the plaintiff to purchase of him a quantity of railway sleepers, upon certain terms, the sleepers being delivered and used by the company, that they were liable.^ SECTION XVII. CONTRACTS TO PAY IN THE STOCK OP THE COMPANY. 1 . Breach of such contract generally entitles^ the party to recover the nominal value of stock, 2. But if the party have not strictly per- formed on his part, can only recover market value. . Cash portion overpaid, will only reduce stork portion dollar for dollar. . 2. Lawful incumbrance on company's prop- erly, will not excuse contractor from ac- cepting stock. § 121. 1. In many contracts for construction, the whole, or a portion of the price, is stipulated to be paid in the stock of the company, as the work progresses, at certain stages, or when it is completed. The time, place, and mode of payment, in such cases, will be the same ordinarily as in other contracts for pay- ment of stock. K the company refuse or neglect to deliver the stock, or the proper certificates, when it becomes due, upon proper request or opportunity, they are generally liable, it is con- sidered, as in other cases of failure to perform contracts, for a certain amount or value, in collateral articles expressed in currency.^ the plaintiflF from delivering, or tendering the remainder of the iron, until the company should tender their notes, and entitled plaintiff to sue presently. 4 8 & 9 Vict. c. 16. 5 Pauling V. London & North W. Railway, 22 Eng. L. & Eq. R. 560. The contract was made by the engineer's clerk, who was also clerk of the company, but there was evidence of the assent of the committee. Lowe v. London & North W. Railway, 1.4 Eng. L. & Eq. R. 18. 1 Moore v. Hudson River Railway, 12 Barb. 156. ■ It was held, in this case, that where a portion of the price of construction was payable in stock, at par, within rthirty days after the completion of the contract, that the company were not bound to make any tender of the stock, as in case of contracts for specific articles. But that it was a payment in depreciated currency, and no tender necessary. 247 * 228 THE LAW OF RAILWAYS. [§ 121. 2. But it was held that where the plaintiff recovered a balance due on equitable grounds, and not on the ground of strict and full performance of the contract, he was precluded, on like equi- table * grounds,, from recovering more for the stock portion of the contract than its market value, at the commencement of the action.^ 2 Barker v. T. & K. Railway, 27 Vt. R. 766. In this case the court say: " If the defendants have, upon reasonable request, declined paying the amount due, in their stock, as stipulated, it would seem but reasonable they should pay the amount in money. " 1. This is the general rule in regard to contracts payable in collateral arti- cles, estimated in currency, and not delivered. " 2. The stock of a corporation is but a certificate of such a sum being due the bearer. And when the party stipulated to pay in his own paper, if he refuse, suit may be brought immediately, although the paper was to have been on time, if given. But it was never supposed the party could reduce the recovery, by showing his paper depreciated in the market. This would be virtually giving the difference to the other stockholders. This would be the rule which should be applied if defendants are wilfully in fault. If it were the stock of another com- pany, no doubt, all which could be recovered is the value of the stock in the market. Certainly, this is the general rule, in regard to stock. And, perhaps, that rule should be applied to the stock of the defendants, if it appears they have not wilfully and unreasonably refused to deliver the stock. Ante, § 38. " But the recovery here is not allowed upon- strictly legal grounds, upon the strict and literal performance of the contract on the part of the plaintiffs. It is rather upon equitable grounds, that any recovery and apportionment of the con- tract is allowed ifor any thing less than full performance. By the terms of the contract the defendants had a right to retain the tenth part reserved until' full performance. And, although it has not been regarded, as a strict condition pre- cedent in some of the cases, (Danville Bridge Co. i;. Pomeroy, 15 Penn. 151,) still it is a stipulation in the contract for the full performance of which the de- fendants had the right to insist, and for doing which they are not to be them- selves regarded as in fault. The defendants, too, were justified in refusing to pay any deficiency in the work at the time of the demand ; so that while we excuse the plaintiffs from full performance of their contract, as a strict condition prece- dent, and allow them to recover to the extent of what they had done, on the equitable ground that they had in good faith attempted to fulfil their undertak- ing, and supposed they had done so, and only failed by mistake and misappre- hension, which should not, under the contract defeat the recovery in ioto, but only subject it to an equitable deduction for all damage sustained by defendants, it seems to us that it should form a part of this equity to the defendants, not to be required to pay more for this stock, even if it were their own, than it was in fact worth, or could have been made to benefit the; plaintiffs. " As we now hold, the plaintiffs were, at the time of the demand, entitled to recover, upon equitable grounds, a sum less than the whole price. But they de- manded the whole price, and the defendants refused. The demand itself was 248 § 121.J constkuction op kailways. * 229 *3. So, too, where the work is to be paid, partly in stock and partly in mdney, if the money part be overpaid, even by doing a unreasonable. Is it certain a reasonable one would have met a similar fate ? It has been held the demand must be reasonable, to render the refusal unreasonable. Jameson v. Ware, 6 Vt. R. 610. As, therefore, the refusal of defendants seems to have been not altogether without good excuse, and in allowing an equitable recovery, in a case like the present, one of the first requirements seems to be, that no injustice shall be thereby visited upon defendants, it would almost neces- sarily follow that we should not suffer the plaintiifs to recover more for the work really done by them, than they could possibly have realized, if they had been paid at the time, according to the contract. And, as we set up a basis of recov- ery upon equitable grounds, and one not contemplated in the contract, we should not visit the defendants with a judgment which will make them worse off than if they had been allowed to pay the sum found to be due upon this equitable basis, after it is declared, according to the stipulations of the original contract. If this view is sound and equitable, and we see no reason to doubt it, the plaintiffs, as to the stock portion of their judgment, are entitled to the highest price the stock bore after the suit was commenced, and before the final judgment, or, if they choose, the court will strike out that portion of the amount reported, and require the certificates of stock still to be delivered ; and if defendants refuse, on reason- able request, enter up judgment for the full amount." But if the contractor per- form extra work he is entitled to recover for that, in money, upon an implied promise, notwithstanding by his contract he was to accept part of his pay in stock, for all work done under the contract. Childs v. Som. & Ken. Railway, Cir. Ct. U. S. Maine District, May 1, 1857. 20 Law Rep. 561. In the case of Cleveland & Pittsburgh Railway v. Kelley, 5 Ohio St. R. 180, it is held that where one fourth of the amount due the contractors is to be taken in the stock of the company, and the company refuse to deliver the stock on request, they are only liable for the market value of the stock at the time it should have been de- livered. The court profess to base their opinion upon the ground that in con- tracts of this character there is not understood to be any election reserved by the company to pay either in their stock, or in money, but that it is an absolute un- dertaking to deliver so much stock as shall, at its par value, be equal to one fourth the amount due the contractor. It does not readily occur to us how this relieves the question from the apparent violation of principle, in allowing the company to refuse to give certificates of their own stock which they have contracted to do, and at the same time pay less than its par value. It is in ordinary cases equita- ble no doubt, and always where the refusal is upon the ground that nothing is due the contractor. Ante, § 121, n. 2. The point of the decision is thus summed up by Mr. Justice Swan. " For these reasons we are of the opinion that no such election was contemplated by either of the parties when the contract was entered into ; that the law relating to trade notes and contracts of a like kind, has no application to the agreement between these parties ; that it was an exchange of work for stock, in which monetary terms were necessarily used, not for the purpose of expressing real values, but as the only mode of expressing quantities and proportions ; that the fourth to be 249 * 230 THE LAW OF RAILWAYS. [§ 122. portion of the work, which the party reserved the right to do, in order to hasten the work, it will only reduce the stodk payment, dollar for dollar, and not according to the market value of the stock at the time.^ *SECTION XVIII. TIME AND MODE OF PAYMENT. 1 . No time specified, payment due only, when wm-k completed. 2. Stock payments must ordinarily be de- manded. 3. But if company pay monthly, such usage qucdijies controct. 4. Contract to build wall, by cubic yard, fm- plies measurement, in the wall. § 122. 1. Where no time of payment is specified, in terms, in taken in stock was not a money indebtedness, but a stock indebtedness ; and, consequently, that the company could derive no benefit from the incre'ased value of the stock, and could suffer no loss by its depreciation ; the damages which the contractors suffered from the non-delivery of the stock being its market value." See also Boody v. Rut. & Bur. Railway, (Cir. Ct. U. S.) 24 Vt. R. 660. In this case it was held, that the defendants having given their creditors a mortgage upon their road, after the contract with the plaintiiF, did not excuse him from accepting the stipulated proportion of the payments in stock. Nor can the contractors, in such ease, refuse to receive the stock, because the legislature, in the mean lime altered the charter of the company, by which the capital stock and debt of the company were increased ; nor because the company voted not to pay interest on the stock, in money, as they had before done, it not appearing that the value of the stock had been affected by either. Moore v. Hudson River Railway, 12 Barb. 156. And where the company, in settlement with a contractor, agreed to pay him a certain amount, in stock, or the bonds of the company, at his election, the com- pany retaining the same as security for certain liabilities on account of the con- tractor, and gave the contractor a certificate of such stock, with an agreement indorsed, to exchange it for bonds, at his election, and the certificates were then returned to them, as their indemnity; it was held, that the company were bound to deliver the bonds, notwithstanding the treasurer had entered the shares in the books of the company, as the property of the contractor, and they had in conse- quence been sold upon execution against him. Jones v. Portsmouth & Concord Railway, 32 N. H. R. 544. A contractor, who agrees to take a portion of his pay in the bonds of the com- pany, has no such interest in any question, in regard to their validity, as will prevent a court of equity from enjoining those of a county, which had been de- livered to the company without a proper compliance with the conditions of the statute, under which the subscription was made, the contractor having had knowl- edge of, the facts, from the first.' Mercer County v. Pittsburgh &' Erie Railway, 27 Penn. R. 389. 3 Jones & Dow v. Bradley, 29 Vt. R. 250 § 123.] CONSTRUCTION OF RAILWAYS. * 231 the written contract, between the parties, for the construction of a portion of a railway, it was held, that, looking to the contract alone, the contractor could not call for payment, either of the cash, or stock portion of the contract, until a complete perform- ance of the contract on his part.i Or upon the most favorable construction, until some distinct portion of the work, for which the contract fixed a specific price, was accomplished.^ 2. In regard to the stock portion of the payments, a special demand was necessary, before the contractor can maintain an action for it.i 3. But where it appeared, that the company were accustomed to make monthly payments to their contractors, upon the esti- mates of the engineer, at the end of each month, and that they had so dealt with the plaintiff", it was held that this must be con- sidered the rule of payment, under the contract, established by mutual consent, and binding upon the parties.^ 4. A contract to build "riprap" wall for fifty cents a cubic yard, in the absence of proof of any general usage, or uniform custom, which could control the mode of measurement, was held to imply payment, by the cubic yard, after the wall was con- structed.''^ ♦SECTION XIX. REMEDY ON CONTRACTS FOR RAILWAY CONSTRUCTION. 1. Recovery on general counts. \ 2. Amount and proof governed by contract, § 123. 1. It is a familiar principle of law, applicable to con- tracts, for the performance of work and labor, that if the work is done, so that nothing more remains, but payment, there is no necessity of declaring specially upon the contract, but the re- covery may be had, under the general counts ; and it will make no diff"erence, in this respect, that it was not done within the time prescribed by the contract, if the work has been accepted by the other party, or the time for performance extended, by such party, or the work has been done upon some permanent property of the other party, as in the case of building a railway.' 1 Boody V. Rut. & Bur. Kailway,.24 Vt. K. 660, (U. S. Cir. Ct.) 2 Wood V. Vermont Central Railway, 24 Vt. R. 608. 1 Merrill v. Ithaca & Owego Railway, 16 Wendell, 586; s. c. 2 Am. Railw. C. 421. 251 * 231 THE LAW OF KAILWAYS. [§ 123 a. 2. But ordinarily the contract M'ill govern, as to price, and other incidents, so far as it can be traced. But where the party, for whom the labor is performed, wilfully hinders and obstructs the progress of the work, it has been held he was liable, as upon a quantum- meruit.^ But in such case the party must prove the performance of the labor, by such proof, as would be competent, in an action on the special contract, and cannot treat the dealing, as if it had been matter of account, from the first.^ SECTION XX. mechanic's lien. 1. Such lien cannot exist in regard io a rail- I 2. Opinion of Scott, J. way. I § 123 a. 1. It has been considered, that although a public rail- way may come within the literal import of the terms used in a statute, to secure material-men, and laborers, by what is denom- inated a mechanic's lien, upon " buidings or other improvements," yet that the public have such an interest, in public works of this character, that it cannot reasonably be presumed, that such terms were intended to include the bridges and culverts upon the line of a public railway.^ 2. The language of Scott, J., shows the ground of the decision. " Although railway companies, in some respects, resemble pri- vate corporations, yet, as they are organized for the public ben- efit, the state takes a deep interest in them, and regards them as matters of public concern. The establishment of this railway is regarded as a public work, established by public authority, intended for the public use and benefit." The learned judge argues that such a lien, to be effectual, must be liable to defeat the object of the work, and therefbre, and as the legislature have provided a specific remedy for, laborers, it is not to be supposed that a mechanic's lien also exists, in regard to the structures on the works. ' 1 Dunn V. North Missouri Railway, 24 Mo. 493. 252 § 12'4.] COMMON CAERIERS. * 232 * CHAPTER XVI. COMMON CAKUIERS. SECTION I. DUTY AT COMMON LAW. 1. Inevitable accident. 2. To excuse carrier, force must be above human control, or that of public enemy. 3. Are insurers against fire, except by light- ning. 4. Instances of perils which excuse carrier. 5. If carrier expose himself to perils, he must bear the loss, but not of delay, from un- known peril. 6. 7s liable for loss in price, during delay, caused by his fault. § 124. 1. Carriers of goods for hire indifferently for all per- sons, at common law, were denominated common carriers, and for a very long time, have been held liable for all damage and loss to goods, during t^e carriage, from whatever cause, unless from the act of God, which is limited to inevitable accident, or from the public enemy. The exception of the act of God, or inevitable accident, has by the decisions of the courts, been restricted to such narrow limits, as scarcely to amount to any relief to carriers. It is in reality limited to accidents, which come from a force, superior to all human agency, either in their production, or resistance. Hence many learned judges have contended, that the terms, inevitable accident, which were first suggested by Sir William Jones, as a more reverent mode of expressing the act of God, do not, in fact, have the same import.'^ 1 Forward v. Pittard, 1 Term R. 27. The language of Lord Mansfield is here so pertinent as to bear repetition : " It appears from all the cases for one hundred years back, that there are" events, for which the carrier is liable, independent of his contract." " A carrier is in the nature of an insurer." In defining the act of God, he says : " I consider it to mean something in opposition to the act of man." " The law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as ^torms, lightnings, and tempests." McArthur v. Sears, 21 Wend. 192; Proprie- tors of the Trent & Mersey Nav. Co. v. "Wood, 3 Esp. Cases, 127, 131 ; 4 Doug. R. 287, (26 Eng. C. L. R. 358). Lord Mansfield here says: " The act of God is natural necessity, as wind and storms, which arise from natural causes, and is distinct from inevitable accident." 22 253 *233 THE LAW OF RAILWAYS. [§ 124. * 2. To excuse the cairier, the loss must happen from a strictly superior force, and not a mere human force, (unless it be the public enemy,) the vis major of the civil law, and the casuists. And it would seem that it should not only be a superior force, in the emergency, but one, which no human foresight or sagacity could have guarded against.^ 3. Hence, carriers are held as insurers against fire, unless caused by lightning.^ There are many cases in the books, which take such a latitudinarian, or speculative view, of the extent of inju- ries, by the act of God, as to give the exception a much broader range, as where the foundering of a ship upon a rock in the ocean, not generally known to navigators, and not known to the master, was held a loss from th? act of God.* • 4. Or the loss of a vessel by running upon a snag in a river, brought there by a recent freshet.^ But these cases have not been generally followed. A hurricane, or tempest, lightning, and the unexpected obstruction of navigation by frost, have been held to come within the exception to the liability of carriers.^ 3 Colt V. McMeohen, 6 Johns. R. 160, opinion of Kent, Ch. J.; 1 Smith's L. Cases, 219, ed. 1847, 268, ed. 1852, and the able note of the Am. editor; McAr-, thur V. Sears, 21 Wend. 190 ; MoCall v. Brock, 5 Strob. 119 ; Dale v. Hall, 1 Wilson, R. 281 ; N. B. Steamboat Co. v. Tiers, 4 Zab. 697. 3 Mersham v. Hobensaok, 2 Zab. 273, 389 ; Forward v. Pittard, 1 Term R. 27 ; Hyde v. Trent & Mersey Nav. Go. 5 T. R. 389 ; ttatliffe v. Bourne, 4 Bing. N. C. 314. And in Ins. Co. v. Ind. & Cin. Railway, 9 Am. Railw. Times, Aug. 13, 1857, it is held that in losses by fire, the carrier is ^Wma facie liable. (Sup. Ct. Ohio.) 4 Williams v. Grant, 1 Conn. R. 487. 5 Smyrl v. Niolon, 2 Bailey, 421 ; Faulkner v. Wright, 1 Rice, 108. 6 Bowman v. Teall, 23 Wend. 306 ; Parsons v. Hardy, 14 id. 215 ; Harris v. Rand, 4 N. H. 259 ; Crosby v. Fitch, 12 Conn. R. 410. It has been held, that although a general bill of lading, given by a carrier, containing a general under- taking to carry, is subject to the ordinary exception to the liability of the carrier, of the act of God and the public enemy, it may nevertheless be showtf, by oral testimony, that the undertaking was not even subject to that exception. Morri- son V. Davis, infra. But, query, whether this legal intendment of the bill of lading is any more subject to explanation and contradiction, than are the express provisions of the instrument itself. Loss by pirates is regarded as a loss by the public enemy. Magellan Pirates, 25 Eng. Law & Eq. 595. So where goods are thrown overboard, in a tempest, by order of the master. Gfllett v. Ellis, 11 111. 579. The master of a steamboat is not liable, for not drying wheat wet by inevitable accident. Steamboat Lynx V. King, 12 Mo. R. 272. 254 § 125.] COMMON CARRIERS. * 234 * 5. And ordinarily, where the negligence of the carrier exposes him to what he might otherwise have escaped, he is responsible for losses thus occurring, through the combined agency of his own negligence, and inevitable accident, or the public enemy. But if his own neglect was not the proximate cause of the peril being incurred, or one which ordinary foresight or sagacity could have apprehended, was exposing the goods, to extraordinary peril, he is still excused. As if by having a lame horse, he is longer upon his route, and is thus overtaken by a desolating flood upon the canal.^ 6. But where a delay in the transportation is caused by the act of God, a railway is liable for injury to the goods, by bad hand- ling, in endeavors to expedite the passage. But they are not lia- ble, of course, for a decline in the price of goods, during a delay which was inevitable.^ But where the decline in price happened during a delay in transportation, for which there was no legal excuse, the carrier would, no doubt, be liable. And in an action for not delivering goods in a reasonable time, the party is entitled to recover the value of the goods, at the time and place where they should have been delivered, and necessary loss and expenses incurred otherwise, if any.® SECTION II. RAILWAY COMPANIES COMMON CARRIBRS. 1 . Common earners, those who carry for alt who apply. 2. Under the English statute entitled to notice of claim. 3. Railways liable, as common carriers of passenger's baggage, and affreight. § 125. 1. It was decided, at an early day, that persons assum- ing to carry goods upon railways for all who applied, were to be ' Morrison v. Davis, 20 Penn. R. 175. 8 Lipfqrd e. Railway Co. 7 Rich. 409. And when the cause of delay, as ice, or low water, is removed, the duty to transport revives. Lowe v. Moss, 12 El. 477; jBOsi, § 148. , 9 Nettles V. Railway Co. 7 Rich. 190 ; Black v. Baxendale, 1 Exch. 410 ; post, § 148. Where cotton is lost by a common carrier, interest upon its value may be as- sessed by the jury as part^f the damages, in an action against the carrier for the loss. Kyle v. Laurens Railway, 10 Rich. (s. c.) R. 382. 255 *235 THE LAW OP RAILWAYS. [§125. held as common carriers, and it is now regarded as an elementary * principle in the law, that all who carry goods, for all who apply, are common carriers.^ 2. Some of the English statutes require notice of any claim against railway companies, for default in any undertaking under In estimating the damages in an action against the carrier for the loss of the cotton which he undertook to deliver to plaintiff's factors in Charleston, the amount of factor's commissions upon the value should not be allowed the defend- ant in abatement. Id. ' Parker v. Great Western Railway, 7 Man. & G. R. 253 ; Muschamp v. Lan- caster Railway, 8 M. & W. 421 ; Palmer v. Grand Junction Railway Go. 4 M. & W. 749 ; Pickford v. Grand Junction Railway, 12 M. & W. 766 ; Eagle v. "White, 6 Whart. R. 505 ; Weed v. S. & S. Railway Go. 19 Wend. 534; Camden & Am- boy Railway Co. v. Burke, 13 id. 611; Story on Bailments, § 500; Angell on Carriers, § 78. In the case of Fuller v. The Naugatuck Railway, 21 Conn. R. 570, it is said that in order to charge railways, as common carriers, it is not nec- essary to allege, that they had power under their charter to become common carriers, but that having assumed the office and duty of common carriers of freight and passengers, they are thereby estopped to deny their obligations, therefrom resulting, by falling back upon any limited construction of their powers under their charter. The same rule of construction, in regard to the liabilities of rail- ways was adopted in Welling v. The Western Vermont Railway, 27 Vt. R. 399, and in Noyes v. The Rutland & Burlington Railway, 27 Vt. R. 110. The cita- tion of cases under this head might be multiplied almost indefinitely. In Jones V. Western Vermont Railway, 27 Vt. R. 399, it is laid down, as the governing principle of the case, that the company are liable even for torts, committed by their agents, or servants, within the apparent scope of their authority, or in the pursuit of the general purpose of the charter, and where the departure from the general scope of the charter powers is not such as to be notice to all, that the agent is departing from the proper business of the corporation. Two of the three last were cases where the railway company so constructed an embankment, as to serve the purpose of a dam, to create a reservoir for the accommodation of the mill-owners below, whereby the company obtained some advantage in regard to compensation to land-owners, through whose land they were, constructing the embankment. The embankment was so defectively constructed, that it yielded to the pressure of the water, and caused damage to the proprietors below, by the sudden outbreak of the waters, and the conipany were held liable for the injury thereby sustained. In England, it is not uncommon to convert railway structures, by means of ad- ditions, into stables, and even dwelling-houses, which the company let to tenants. Such buildings, although subject to the poor-rate, are not regarded as under the supervision of the Metropolitan surveyors of buildings, as to fire, party-walls, roofs, and the right to order buildings pulled down, forming, as they do, an important and indispensable portion of the railway structures. North Kent Railway ». Badger, 30 Law Times, 285. Russell v. Livingston, 19 Barb. 846. 256 § 125.] COMMON CARRIERS. * 236 their charters, before suit brought. But, under such statutes, it has been held, that no such previous notice is necessary, where the act complained of is negligence in carrying goods or passen- gers, this not being a suit for any thing done under the act, within the meaning of the statute requiring notice.^ But it is held that where the action was brought to recover the excess of charges, for carrying goods, above what was charged others for similar service, the company were entitled to notice of the claim, before action.^ 3. By the English statute, the Railways Clauses Act, railways, stage-coach proprietors, and other common carriers of passengers, * their baggage and other freight, are put upon precisely the same ground both as to liability, and as to any protection, privilege, or exemption. The same rule obtains in this country, except, per- haps, that inasmuch as this mode of transportation is infinitely more perilous to the lives of passengers, a proportionate degree of watchfulness is demanded of the carriers of passengers in this mode. But this is but extending a general principle of the law to this particular subject, to wit, that care and diligence are rela- tive terms, and the degree of care and watchfulness are to be in- creased in proportion to the hazard of the business.* 3 Carpue u. The London & Brighton Railway Co. 5 Q. B. 747; Palmer b. Grand Junction Railway Co. 4 M. & W, 749. Proof of the delivery of goods to a common carrier, and of a demand and re- fusal of the goods, or of their loss, throws upon the carrier the burden of showing some legal excuse. Alden v. Pearson, 3 Gray, 342. 3 Kent V. The Great Western Railway Co. 4 Railw. C. 699. This action ib similar to Parker v. Great Western Railway Co. 3 Railw. C. 563. In these cases, it was held, the taking of tolls is an act done in the execution of their charter powers. * Commonwealth v. Power, 7 Met. 601; Jencks v. Coleman, 2 Sumner, 221 ; Camden & Amboy Railway u. Burke, 13 Wend. R. 611; Pardee v. Drew, 25 Wend. 459. Carriers from places within the realm, to places without, are subject to the same liability, as carriers who carry only within the realnji. Crouch v. London & North W. Railway, 25 Eng. L. & Eq. R. 287. , The duty of common carriers is independent of contract. Pozzi v. Shipton, 8 Ad. & Ellis, 963; 1 P. & D. 4 ; 1 W. W. & H. 624 ; Bretherton v Wood, 3 Bro. & B. 54. In both these cases, it is held the action may be in tort as well as in contract, there being no necessity of any special undertaking, a general duty to carry safely resulting from the very office of a common carrier. Therefore, a verdict maj- pass against some defendants and not against all, where the decla- ration is, in form, ex delicto. 22* 257 •236 THE LAW OF RAILWAYS. [§ 126. SECTION III. LIABILITY rOR PARCELS CARRIED BY EXPRESS. 1 . earners, who allow servants to carry par- cels, are liable for loss, 2. Importance of making railways liable for acts of agents. 3. Allowing perquisites to go to agents will not excuse company. 4. Owner of parcels, carried by express, may look to company. 5. May sue subsequent carrier, who is in fault. 6. European railway companies are express § 126. 1. It may perhaps be assumed, that upon general prin- ciples, common carriers, who allow their servants, as the captains of steamboats, and the conductors of railway trains, to carry parcels, are liable for their safe delivery, whether they themselves derive any advantage from the transactions or not. Our own views, upon this subject, were expressed in a late case:' — 1 Farmers & Mechanics Bank v. The Champlain Transportation Co. 23 Vt. R. 186. But it is said in some of the elementary writers, and by some judges, that if such servant is allowed to do this, as a mere gratuity to him of the perquisites, and this is known to those who employ him, his principals are not liable for his default. 1 Parsons on Cont. 656 ; King v. Lenox, 19 Johns. R. 235. This was a case where the owner of the ship freighted her himself, and the master had no authority to take freight from others, and this known to those who employed him. Walter v. Brewer, 11 Mass. R. *99 ; Reynolds v. Tappan, 15 Mass. R. 370;- Butler v. Basing, 2 C. & P. 613. But see the opinion of the court in 23 Vt. R. 203, upon this point, where it is said : " It seems to us that this case is distinguishable from those, where it has been held incumbent upon the plaintiffs to show, by positive proof, that the company consented to the captain of their boat carrying money on their account, in order to hold the company responsible for the loss of the money. Sewall v. Allen, 6 Wend. 351, reversing the judgment in Allen v, Sewall, 2 Wend. 327, is one of that class of cases, so far as the determination of the Court of Errors is con- cerned. And that determination seeijas to meet with approbation in Angell on Carriers, § 101, and note 4. And Story, J., in Citizens' Bank v, Nantucket, S. B. Co. 2 Story's R. 16, and Chancellor K^t, 2 Kent, 609, seem also to approve' the decision of the Court of Errors. But these cases, and the writers named, adopt this view of the subject, upon the ground that the charter of the company limits their business to the carrying of " goods, wares, and merchandise," and that bank- bills are neither, and so the company prima, facie are not liable ; and not liable in any event, unless they have given their consent to their proper business being enlarged, so as to include bank-bills, and also that this was a suit against the stockholders in their individual capacity, under the charter. Upon this narrow view of that case, the decision of the Court of Errors may stand ; but, as applicable to a company, whose charter, on the face of it, does include the carrying of bank-bills, and in a 258 § 126.] COMMON CARRIERS. * 237-238 * " It seems to us, that when a natural person, or a corporation whose powers are altogether unrestricted, erect a steamboat, ap- point a captain, and other agents, to take the entire control of their boat, and thus enter upon the carrying business from port to port, they do constitute the captain their general agent, to carry all such commodities as he may choose to contract to carry within the scope of the powers of the owners of the boat. K this were not so, it would form a wonderful exception to the general law of * agency, and one in which the public would not very readily acquiesce. 2. " There is hardly any business in the country where it is so important to maintain the authority of agents, as in this matter of carrying, by these invisible corporations, who have no local habitation, and no existence, or power of action, except through these same agents, by whom almost the entire carrying business of the country is now conducted. If then the captains of these boats are to be regarded as the general agents of the owners — and we can hardly conceive how it can be regarded otherwise — whatever commodities, within the limits of the powers of the owners, the captains, as their general agents, assume to carry for hire, the liability of the owners, as carriers, is thereby fixed, and they will be held responsible for all losses ; unless, from the course of business of these boats, the plaintiffs did know, or upon rea- sonable inquiry, might have learned, that the captains were in- trusted with ■ no such authority. Primd facie the owners are liable for all contracts for carrying made by the captains, or other general agents for that purpose, within the powers of the owners themselves, and the onus rests upon them to show, that the plain- suit directly against the corporation, it seems to us the reasoning is altogether unsatisfactory and unsound. And unless that case is to be distinguished from the present, upon the ground of the restricted nature of the charter of that company, we should certainly incline to the opinion of the Supreme Court of New York, in Allen u. Sewall, rather than that of the Court of Errors. Mr. Justice Story, (in 2 Story, ut supra,) seems to admit, that, upon general principles, the captain's con- tract will bind the company to the extent of the charter powers." But see Chateau i-. Steamboat St. Anthony, 16 Mo. 216. Where the clerk of a steamboat carried money letters, as a mere gratuity, it was held, that this did not render the proprietors of the boat liable, as common carriers, but only, as gratuitous bailees, for loss by gross neglect. Haynie v. Warring & Co. 29 Alab. K. 263. But the rule in the text is maintained, in Mayall v. Boston & Maine Railway, 19 New H. R. 122. See the opinion of Gilchrisl, Ch. J., in the last case. 269 * 239 THE LAW OF KAILWATS. [§ 126. tiffs had made a private contract with the captain, which it was understood should be kept from the knowledge of the defendants, or else had given credit exclusively to the captain. Butler v. Basing, 2 C. & P. 613. 3. " But it does not appear to us that the mere fact, that the captain was, by the company, permitted to take the perquisites of carrying these parcels, will be sufficient to exonerate the company from liability. Their suffering him to continue to carry bank-bills ought, we think, to be regarded as fixing their responsibility, and allowing the captain to take the perquisites, as an arrangement among themselves. But we are aware, that the question, with whom was the contract, and to whom the credit was given, will generally be one, to some extent, of fact." 4. And the general law upon this subject is well stated, by the highest tribunal in the country, in an important case, by Mr. Jus- tice Nelson.^ In this case it was considered, that the owner of parcels carried, by express, might look to the responsibility of the company, as common carriers, treating the express company, as the agents of the owners of property carried, and that they were entitled to sue in their own names, upon any contract, express or implied, ' existing, in relation to the things carried,- between the express company and the principal carriers. 5. It is upon the same principle that the owner of goods, is allowed to sue any of the subsequent carriers in the line of trans- portation, guilty of a default in duty, although his contract was made with the first carrier, to whom he delivered the goods.^ This is indeed but a general principle of the law of contracts, familiar to every lavJyer.'* 2 New Jersey Steam Ng,v. Co. v. The Merchants Bank, 6 Howard's R. 344. 3 Sanderson v. Lamberton, 6 Binney's R. 129. • 4 Lapham v. Green, 9 Vt. R. 407 ; Young v. Hunter, 4 Taunt. 582 ; Paterson V. Gandasequi, 16 East, R. 62; Denman, Oh. J., in Sims v. Bond, 5 B. & Ad. 389. But see Weed v. S. & S. Railway, 19 Wend. 534, where the principals, it is said, cannot sue on a contract made with their agent to carry his trunk and money for expenses, if the trunk is not their property, but borrowed by the agent. In Stod- dard V. Long Island Railway, 5 Sand. 180, it was held that the owners of the goods were bound, by any special contract, between the agents for forwarding, and the company upon whose trains the goods were forwarded. In Steamboat Co. V. Atkins & Co. 22 Penn. 522, it was considered that the forwarding merchant had such an interest in a contract made by him for forwarding goods, that he might maintain an action in his own name, for a violation of it. But see King v. 260 § 127.] COMMON carriers; * 240 6. In England and upon the continent, it is the practice for the companies themselves to carry parcels, by express, which is here done by others chiefly, under contracts with the company. SECTION IV. RIGHTS AND DUTIES OF EXPRESS CARRIERS. 1. Liable for not making delivery to con- \ 4. Not responsible bei/ond their routes. signee. Contract of cmnpany with local carriers only temporary. Cannot charge in proportion to value of parcels, 'and restrict their liability. Company, where statute prohibits discrim- ination, cannot charge eapress carriers higher than otiiers, or give one such car- rier exclusive privileges. § 127. 1. This is a mode of transportation which has come in practice very much, since the general use of railways for trans- portation. * It seems more necessary on account of the rapidity of movement upon such roads, and also the mode in which business is generally transacted by railway companies of only delivering at their stations. Express companies, and agents, as far as we know, receive parcels at their offices, not only at their principal termini in the large towns and cities, but at local offices along the line of their routes, and even send their wagons about the cities and towns, to gather up parcels when notified to do so, and adopt a similar course in delivering out parcels at the doors of the dwellings, or places of business, of the consignees. This mode of transacting the business of expresses seems to come in the place of the general carrying business of parcels ; ' or, accord- Richards, 6 Whart. 418 ; opinion of Fletcher, J., Robinson v. Balier, 5 Cush. R. 145. See in confirmation of the rule laid down in the text, Langworthy v. New York & New H. Railway, 2 E. D. Smith, 195. But in order to charge the carrier by a delivery to the servant, it must appear, that it was the business, or at least the practice of the servant to receive such parcels for carriage, or the carrier is not liable. Blanchard v. Isaacs, 3 Barb. 388. 1 In a recent case in South Carolina, Stadhecker v. Combs, 9 Rich. 193, which was a suit against an express company, for the value of a trunk, lost by them, it is said : " A strict application of the law of common carriers is necessary for the protection of the large uraount of property committed to the hands of strangers, for transportation to distant points, and certainly, from such an application, ex- press companies have no claim to exemption." And in Sweet v. Barney, 24 Barb. R. 533, it was held, that the party, to whom money was sent by express, micht direct the place and mode of delivery. Hence, a bank in the city, to whom 261 *24'0 THE LAW OF RAILWAYS. [§127. ing to the definition of tiie English Carriers' Act, of things of great value in small compass. And there can be no question that, upon general principles, these expresses are liable as com- mon carriers, and liable, according to the course of their business, and the expectation thereby created in the mind of their em- ployers, for all parcels received into their wagons, and bound to make personal delivery to the consignees or to their agents, at money is sent by bankers in the country, by express, being considered the owner of the money, may authorize the same to be delivered at the office of the express company, or at any other place in the city, to any person it may select ; and the express company, by making such a delivery, will be relieved of their responsi- bility, whether it be that of common carrier or forwarder. All the express com- pany is bound to do, in such cases, is to make such a delivery as will charge the consignee. In the absence of all special provision, in such cases, it is the duty of the express agent to deliver the money at the bank, to the proper oiEcer. And where it is the practice of such companies to deliver packages, according to their address, it will be presumed that they assume to deliver all packages committed to their custody in that mode. And in such case, the only delivery, which will charge the bank or release the express, is a delivery according to the address of the parcel, at the bank, to the proper officer. But where the express delivers the money to a porter, at their office, who had usually been employed by the bank to receive such packages for them, it is not sufficient to discharge the express, unless such delivery was authorized by the bank ; and it is incumbent upon the express to prove such authority in its own discharge. This proof may be direct and express, or implied from the acts of the porter, such as receiving money for the bank on other occasions at the express office, sent to it in a similar way, and a similar address, with the one in question, and with the knowledge and assent of the bank, provided the testimony is suffi- cient to satisfy the triers of the fact, that the bank authorized the porter to receive the money on their behalf, or that from the manner in which they allowed him to conduct business on their behalf, they were bound to suppose others might under- stand that he was authorized to so act on their behalf, and that the express com- pany did so understand it. The Am. Kailw. Times, Feb. 1858, speaks of a newspaper report of a recent decision in Wisconsin, whorSin it was held that a tender of money carried by express, at the bank, at any time, although not in banking hours, will discharge the company from their responsibility as common carriers, and from all liability, the money having been stolen from their safe during the following night, without their fault. There is probably some misapprehension in regard to the point upon which the case was decided; for a tender at a bank, out of known and recognized banking hours, is obviously no tender at all. One might as well make a tender to a merchant at midnight, after the store was closed. But it was held that a tender, after sundown, if made personally to the party, at his place of business, is good. Startup v. Macdonald, 6 M. & G. 593. So, too, a tender at a bank, while open and the officers in, might be good, although after "banking hours. 262 §127.] COMMON CARKIERS. * 241 . their places of business, or, in default of having such, at their residences. And since the establishment of such expresses, it will be presumed that one who expects a parcel to be delivered personally, or notice given to the consignee, will intrust it only to the express upon the route, and his giving it in charge of the gen- eral freight agent of the r^lway, is equivalent to an express con- tract, almost, that the company shall only be bound to such a delivery, as is according to their general course in this depart- ment of their business. For, by delivering the parcel to the ex- press, the owner not only secures the responsibility of the express company or agent, but also of the railway company, unless they have stipulated with the express for some exemption from their ordinary common-law liability as carriers, in the transportation of the business of the express, and this is made known to the owner of goods so sent. These propositions result from the elementary principles of the law of bailment, and are recognized by the best considered cases.® * 2. It was held, in a recent case,^ in the English Court of Exchequer, that a contract between a railway company and an individual, that he should, for a twelvemonth, carry all grain, merchandise, &c., between certain points to and from the railway, at a given price, he providing wagons, horses, drivers, tarpaulins, and other plant necessary for the cartage, and agreeing to be re- sponsible for all money due to the company for the carriage of goods carted by him for such persons as had not ledger accounts with the company, and to observe all the regulations of the com- pany, might be terminated, at any time, by the company, even after such person had provided himself with the requisite furni- ture to carry the contract into effect, and entered on its perform- ance ; the railway having, in the mean time, made an arrange- ment with another railway, by which cartage between these points, became unnecessary. 3. Where an express company restricted their liability in the 2 N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344. 3 Burton v. The Great N. Railway, 25 Eng. L. & Eq. 478. But the verdict in this case, at the trial before Mnrlin, B., was for the plaintiff on the ground that the company impliedly bound themselves not to do any thing, during the term the contract was to run, to deprive the plaintiff of the ordinary cartage between those points. And it seems to us the decision of Baron Martin is quite as satisfactory as that of the full bench. " 203 * 242 THE LAW OP RAILWAYS. [§ 128. receipt given for a package of bonds, with coupons attached, valued at $40,000, and charged, for carrying, a very high rate in proportion to the size or weight of the pacliage, even beyond the usual rate of insurance, it appearing that no extraordinary care was bestowed on parcels of high value, it was held that there was no reason for enhancing the cliarge for transportation in proportion to the value of the articles carried, and that the charge was exorbitant and unreasonable.* 4. Express carriers who take parcels marked for points beyond their route, and where they have no agents, are only bound, as common carriers, to carry safely to the end of their route, and deliver to the usual conveyance from such point to the place of destination.^ They may restrict their liability by express con- tract.^ 5. Where the statute requires a railway company to carry for all who apply, and upon equal terms, they have no right to im- pose increased prices upon express carriers who send freight by the company's trains, in aggregate quantities, made up of small parcels, * directed to diiferent persons.® Nor can railways impose their own terms for freight by including an extra and unreason- able charge for the receipt and delivery of freight and parcels, about the towns, adjoining the stations.® So, too, a contract giving the exclusive privilege to one express company of trans- portation in the passenger trains is illegal and void, being in contravention of the statute requiring equal privileges, and equal charges, to all.^ SECTION V. RESPONSIBILITY FOR BAGGAGE OP PASSENGERS. 1. Liable as common carriers for baggage. 14. Company not liable unless baggage given 2. Liability where different companies form I in charge to their servants. one line. j 5. Liability results from duty, and not from 3. Company liable for actual deliverj/ to the , contract. owner. § 128. 1. It is an elementary principle in the law, that the 4 Holford V. Adams, 2 Duer, 471. 5 Hersfield v. Adams, 19 Barb. 677. Where it is held that express agents who transport parcels, by other lines of common carriers, are not themselves common carriers, but only forwarders, and liable as such. 8 Piokford v. Grand Junction Railway, 10 M. & W. 399. 7 Sandford v. The C. W. & E. Railw. Co. 24 Penn.'E. 378. 264 § 128.] COMMON CARRIEES. * 243 carriers of passengers are liable as common carriers for their ordinary baggage, or, as it is more commonly called in the Eng- lish books, luggage.' And it is considered that, as railways have made their checks evidence in regard to the delivery of baggage, the possession of such check by a passenger is evidence against the company, of the receipt of the baggage. In one case, the court say, " It stands in the place of a bill of lading." ^ 2. And where different railways, forming a continuous line, run their cars over the whole line, and sell tickets for the whole route, and check baggage through, an action lies against either company for the loss of baggage.^ And it is the duty at railway companies to keep agents in readiness to receive baggage, and if they allow the agents of other companies to receive baggage at their stations, 'or their own agents to receive it at the stations of other companies, they are bound by their acts.* 3. And where the company employ porters, at their stations, to convey passengers' baggage to the carriages in which the pas- sengers leave the stations of the company, their liability con- tinues till it is so delivered, and it makes no difference whether the baggage be placed in the same carriage with the passenger, or in the baggage car.^ But if the passenger choose to take the 1 Brooke v. Pickwick, 4 Bing. 218; Hawkins v. Hoffman, 6 Hill (N. Y.) R. 586 ; Bennett v. Dutton, 10 N. H. R. 481 ; Powell v. Myers, 26 Wend. R. 591 ; 7 Rich. 158, 162; 13 Wend. 611 ; Robinson v. Dunmore, 2 Bos. & P. 416; Clarke v. Gray, 6 East, 564; 4 Esp. R. 177. 2 Dill V. Railway Co. 7 Rich. 158. And where the carrier gave public notice that he would not be liable for baggage of passengers, unless checked* this will not, if it have any effect, excuse him, where the passenger delivered his baggage on board the carrier's steamboat, to a proper agent, but was refused a check, be- cause the person who gave the checks was not present. Freeman v. Newton, 3 E. D. Smith, 246. 3 Hart V. Rensselaer and Sar. Railway, 4 Seld. 37. The person selling the tickets and receiving the baggage, is here treated as the agent of each company. This suit is against the last company on the route. And there was no evidence in the case where the loss occurred. Strattoff v. N. Y. & N. H. Railway, 2 E. D. Smith, 184. i Jordan v. The Fall River Railway, 5 Cush. 69. 5 Richards v. The London, Brighton & South Coast Railway, 7 C. B. 839. In a late case, Butcher v. London & S. W. Railway, 29 Eng. L. & Eq. R 347, the plaintiff was a passenger from F. to W., bringing with him, as luggage, a small carpet ba", which was placed in the carriage he rode in. On arrival of the train at W. the plaintiff got out upon ihe platform with his bag in his hand, and it was taken from him by a railway porter to be placed in one of the cabs which were 23 265 *244 THE LAW OF RAILWAYS. [§ 128. exclusive control of his own baggage, as a purse, or coat, cane, or umbrella, for instance, the company are not ordinarily liable.^ But the liability having once attached by a delivery to the com- pany's servant, they remain liable until a full and unequivocal redelivery to the owner, and ordinarily to the end of the route.'' A delivery upon a forged order is no excuse.^ 4. But where a passenger took passage upon one railway, for B., at which point he intended to take passage upon another rail- way, whose terminus was about one hundred yards distant from the terminus of the first railway, there being an open, uncovered * space between the two stations, and no connection in business between the companiesj but a practice appears to have been con- ceded for the first company to carry luggage to the station of the other company. The porter obtained the plaintiff's portmanteau, from the platform where it had been deposited at the end of the first line, and placed it with other luggage on a truck for the pur- pose of taking it across to the station of the other railway. The plaintiff testified, at the trial before the county court, that he saw the porter, immediately after, with the truck, enter the station of the latter railway, and go to the place where luggage was put upon departing trains, but did not see his portmanteau, to recog- nize it, after it was first put upon the truck. He obtained his standing in the station. The plaintiff never saw his bag again, and the porter could not find it. It was proved to be the practice of the company to have their porters assist in carrying the passengers' luggage to the cabs in the station. Held, that ther6 was evidence of the company having contracted to deliver the plain- tiff's bag to the cab, and of their not having performed the contract, and that, whether the plaintiff had accepted a delivery upon the platfortn in lieu of a de- livery to the cab, was a question of fact for the jury. 6 Tower V. Utica & Sch. Railway, 7 Hill (N. Y.) B,. 47 ; Wilde, J., in Rich- ards v. London B. & South Coast Railway, 7 C. B. 839. But, if the company have charge of the things in .any manner, they are liable, notwithstanding the owner may also have an eye upon them. Robinson v. Dunmore, 2 Bos. & Pul. 416, Chambers, J.; Cohen v. Frost, 2 Duer, 335. Carriers of passengers, as steamboat proprietors, are not liable for the loss of wearing apparel which pas- sengers carry about their persons, and do not deliver to the oflScers of the boat, as baggage, for safe-keeping. Steamboat Cr. Palace v. Vanderpool, 16 B. Monr. 302, 308. 7 Camden & Amboy Railway Co. v. Belknap, 21 Wend. 354. 8 Powell V. Myers, 26 Wend. 591. If baggage be not called for in a reasona- ble time, the liability of the company as carriers ceases, and they are holden only for ordinary care, as bailees for hire. Post, § 180. 266 § 128.] COMMON CARRIERS. * 244 ticket, and asked the guard if his portmanteau was in the lug- gage van, and the guard told him to take his seat in the train, as it was about to move off, and to inquire for his portmanteau at the end of his route, which he did, but failed to find it. This suit was brought against the first company for not delivering the portmanteau either to the plaintiff, or to the second railway, and the county court gave judgment against them upon the forego- ing evidence. But it was held, on appeal to the C. B., that the plaintiff must give preponderating evidence of the non-deliyery ; and the mere fact of its non-arrival at its ultimate destination, on the second railway, is not sufficient, nor was the above evi- dence more consistent with the non-delivery than the delivery, and the judgment of the county court was reversed.^ But, where an emigrant passenger, on a voyage from Liver- pool to New York, took the exclusive possession of his trunk, taking it into the steerage, placing it under his bed, and fasten- ing it to his berth by ropes, and during the voyage it was stolen, it was held that the owners of the ship were not liable.^'' 9 In this case, the evidence all tended certainly to show a delivery to the second company, and therefore there was no testimony tending to prove the fact upon which the case is made to turn in the C. C. The decision in this case, therefore, seems consistent with those cases where the Court of Error has refused to reverse the judgment of the inferior court, depending in any degree upon the determination of a disputed fact by the court rendering the judgment, where any testimony tends to support the judgment below. East Ang. Kailway v. Lythgoe, 10 C. B. 726 ; 2 Eng. L. & Eq. R. 331 ; Cawley v. Furnell, 12 C. B. 291 ; 6 Eng. L. & Eq. R. 397; Cuthbertson v. Parsons, 12 C. B. 304; 10 Eng. L. & Eq. R. 521. 10 Cohen v. Frost, 2 Duer, (N. Y.) 335. In Fisher v. Clisby, 12 111. 344, it was held, that passengers on board of a ferry-boat, in taking care of their own prop- erty, after it has once got into the boat, may be regarded as agents of the ferry- man, who is still liable for the property as a common carrier. The common carrier of passengers, by receiving the baggage of a traveller, becomes imme- diately responsible for its safe delivery at the place of destination. Woods i'. Devin, 13 111. R. 746. But see White v. Winnisimmet Co. 7 Cush. 155, where a person sufifered damage, in crossing a ferry, by not taking proper care of his team, and the company were held not liable as common carriers, unless the owner of the team surrendered its custody to the ferryman, or his servants. In the case of Wilson v. Hamilton, 4 Ohio St. R. 722, it T«as held, that a ferryman is a common carrier ; but if the owner of animals, intrusted to his care, knows of any special cause of peril, he is bound to inform, and if the owner, or his agent, take upon himself the care of the property, he is not to be regarded as the agent of the carrier in so doing, and the carrier is not liable for any injury resulting from 267 ' 245-246 THE LAW OF RAILWAYS. [§ 129. *5. A servant travelling with his master on a railway, may have an action in his own name against the company for the loss of his baggage, although the master took and paid for his ticket. The liability, in such case, is independent of contract, and the payment by the master will satisfy an averment of payment by the plaintifF.il •SECTION VI. WHEN THE carrier's RESPONSIBILITY BEGINS. 1 . Begins, in general terms, upon delivery of the goods. 2. Delivery at the usual place of receiving goods, with notice, sufficient. S. Where goods are delivered to be earned, carrier liable from delivery. 4. But not responsible till they receive the goods, on a continuous line. 5. Acceptance by agent sufficient, without pay- ment of freight. . 6. Question of fact, wliether carrier took charge of the goods. 7. Sufficient to charge company, that goods are put in charge of their servants. 8. Whether goods are leftfbr immediate trans- portation, matter of inference often. § 129. 1. There is no difficulty in defining in general terms, when the liability of the carrier begins. It begins, when the the want of care in the owner or his agent. Nor is the owner precluded from recovering because he did not do all that skill or prudence could have suggested- See Richards v. Fuqua, 28 Miss. R. 792. The passenger not accompanying his baggage, but going in an after train, will not excuse the carriers from their ordinary liability. Logan v. Pontchartrain Rail- way, 11 Robi (Louis.J R. 24. But in Wright v. Caldwell, 3 Mich. R. 51, where the plaintiff, intending to take passage on defendant's steamboat, deposited his trunk on board the boat, in the usual place for baggage, but without notifying any one employed on the boat, or making known his intention to take passage, and while temporarily absent, the boat left, and the trunk could not afterwards be found, it was held no such deliv- ery, as to charge the defendant, as a common carrier. And an offer to deliver freight, or passengers' baggage, made at a proper time, though declined, discharges the carrier from his hability, as such ; and if the freight, or baggage, still remains in his custody, he is only liable, as a bailee, for ordinary care. Young v. Smith, 3 Dana, 91. This was the case of a large amount of specie, carried, by consent of the officers of a steamboat, by a passen- ger, to be deposited in bank, in the city of New Orleans. The court held it not requisite to deliver the specie in banking hours, unless some special contract, or established usage of the port„to that effect, were shown, but that an offer to de- liver any time in business hours, reasonable reference being had to its safety, was sufficient. 11 Marshall v. York, Newcastle. & Berwick Railway, 7 Eng. L. & Eq. R. 519. In a declaration in case, against a common carrier, it is not n6cessary to allege 268 § 129.] COMMON CAKRIEKS. * 247 goods are delivered to him, or his proper servant, authorized to receive them, for carriage. 2. But many questions have arisen as to what amounted to a delivery, so as to put the goods into the constructive custody and risk of the carrier. If the goods are delivered at the usual place of receiving similar articles, and notice given to the proper servant of the company, there is little chance for any question upon this subject, in regard to the responsibility of the company to the end of their route. For a carrier is bound to keep the goods safely after delivery to him, for carriage, as well as to carry safely.i Questions have often arisen upon this subject, where the person to whom the delivery was made, acted as a forward- ing merchant, or -warehouse keeper, or in some capacity, inde- pendent of that of carrier, whether the delivery and acceptance of the goods, was in the capacity of carrier, or agent for the car- rier, or in the other capacity, which the person sustained. 3. But in the case of railways such questions seldom arise, at *the beginning of the transit, unless where the goods are deliv- ered, to be kept in warehouse, until further orders, in which case the liability of carriers will not attach until the goods are ordered to be carried. But when this order is given, and also when the goods are left, in the first instance, to be carried presently, the responsibility of the carrier attaches, at once.^ the payment of, or agreement to pay, compensation. Hall v. Cheney, June T. K. H. Sup. Ct. 1857, 20 Law R. , 1 Lee, Ch. J., in Dale v. Hall, 1 Wilson, 282 ; Merriam v. Hartford and New Haven Railway, 20 Conn. R. 354. In this last case, it was decided, that a deliv- ery, upon a wharf, where steamboat carriers were accustomed to receive their freight, and which they held, as private property, fenced off from the street, for that purpose, and where they usually had some one to take charge of freight, was a constructive delivery to the carriers although no notice to the freight-master was proved, it being shown to be the custom of the company to regard all freight delivered on that dock as received for transportation. The goods, in this case, were given in charge of one of the steamboat hands, who seemed to have charge of the dock, and who said, on being informed of the delivery, " all right." 2 Spade V. Hudson River Railway, 16 Barb. 883. In this case the plaintiff took part of the goods away, after they were put into the custody of defendants' servants, without their knowledge, and it was held the company were simply de- positaries, and were not liable as carriers ; and plaintiff could not call upon a jury to conjecture how many of the goods were lost, but must show first how many he took away, and how many he left. 23 • 269 *248 THE LAW OF RAILWAYS. [§ 129. 4. In a case where a railway formed part of a continuous line of transportation, and had an agent at Charleston (S. C.) to look after goods arriving at that point, for the interior, along the line of their railway, and a package of goods, so addressed, as to have gone over such railway, was lost after its arrival at C, it was held, ■ " that until the goods are in possession of the rail^vay they are not liable as common carriers." * 5. It has been held sufficient to charge the carrier, that the delivery was at a place, and to a person, where, and with whom, parcels Vere accustomed to be left for this carrier ; and it is im- material whether any payment of freight is made to this person.* 6. But an acceptance, by the carrier, at ah unusual place, will be sufficient to charge him. It seems always sufficient that the goods are " put into the charge of the carrier." ^ And what is a sufficient putting in charge of the carrier, must always be a ques- tion of fact, to be judged of by the jury, vnth reference to all the circumstances of the case, and the usual course of business, in similar transactions, at the same place, and with the same com- pany. And it will be found ordinarily, to resolve itself into this inquiry, whether the ownen of the goods did all, to effect a secure delivery * to the carrier, which it was reasonable to expect a pru- dent man to have done, under the circumstances. 7. But the cases all agree that it is always sufficient, if the proper servants of the company accept the goods to carry, whether the acceptance is in writing, or "not, or whether any bill, or any entry, in the books of the company, is made.^ And the point of such acceptance and charge by the carrier, is ordinarily, when the goods are put into the charge of those who are in law the ser- 3 Maybin v. The S. C. Railway, 8 Rich. 246. In the case of Ranney v. The Huntress, 4 Law J. 38, U. S. C. C. Maine District, in Admiralty, for a box of goods, shipped at Boston, to be delivered at Portland, it was held, " It is the duty of the owners of goods to have them properly marked, and to present them to the carrier, or his servants, to have them entered on their books, and if they neglect to do it, and there is a misdelivery and loss, in consequence, without any fault of the carrier, the owners must bear the loss." 4 Burrell v. North, 2 C. & Kirwan, 680. Erie, J., said, " If the defendant allow these persons to receive parcels, to be conveyed by him, as a carrier, this is quite enough." 3 Lord Ellenborough, Ch. J., in Boehm v. Combe, 2 M. & S. 172. 6 Citizens' Bank v. Nantucket Steamboat Co. 2 'Story, 16 ; Philipps v. Earle, 8 Pick. R. 182 ; Pickford v. Grand Junction Railway, 12 M. & W. 766. 270 § 129.] COMMON CARRIBES. * 249 vants of the carrier.'^ It has been considered that if the owner assume the care and custody of the thing himself, instead of trusting it to the carrier, the carrier is not liable for the loss.^ But the fact that the owner accompanies the goods to keep an eye upon them, if he do not exclude the care of the carrier's ser- vants, will not excuse the carrier.^ But it has been held, that the delivery of the goods must be made known to the servants of the company or carriers. This would seem indispensable ordinarily, to constitute carefulness, and good faith, on the part of the owner.i" 8. Where a railway have a warehouse, at which they receive goods for transportation, as common carriers, and goods are de- livered there, with instructions to forward presently, the company are liable, as common carriers, from the delivery of the goods. But if they are kept back by direction of the owner, the company are only liable as depositaries." Instructions to forward forth- with may be 'inferred, from the course of business, in the absence of express proof." And where the owner gave instructions to forward immediately, he will not be bound, by counter instruc- tions given by the cartman without his authority.i^ '' Boys V. Pink, 8 C. & P. 361 ; Davey v. Mason, C. & Marsh. 45. But the crew of a steamboat are not the agents of the boat, for the purpose of receivinof freight, whereby to charge the owner as a common carrier. Trowbridge v. Cha- pin, 23 Conn. 595. 8 Tower v. The Utica & S. Railway, 7 Hill (N. Y.) R. 47. This is the case of a passenger who left his overcoat upon the seat in the car and forgot to take it. Miles V. Cattle, 6 Bing. 743, is to the same effect § 138, post. But a passenger carrier is not liable for what is not ordinary baggage. Orange Co. Bank v. Brown, 9 Wendell, 85 ; East Ind. Co. v. PuUen, 2 Strange, 690. 9 Robinson v. Dunmore, 2 Bos. & P. 416. 10 Selway v. Holloway, 1 Ld. Ray. 46 ; Packard v. Gitman, 6 Cow. R. 757. 11 Moses V. Boston and Maine Railway, 4 Foster, R. 71. And if the defend- ants are both warehousemen and carriers, and receive goods, with instructions to forward immediately, they are liable, as carriers. Clarke v. Needles, 25 Penn. R. 338 ; Blossom v. Griffin, 3 Kernan, 569. But where goods are received as wharfingers, or warehousemen, or forwarding merchants, and not as carriers, the bailors are only liable for ordinary neglect. Piatt V. Hibbard, 7 Cowen, 497. 271 ^250 THE LAW OF RAILWAYS. [§ 130. SECTION VII. TERMINATION OP CARRIER'S RESPONSIBILITY. 1. Responsibility of carrier of parcels for de- livery, 2. Company not bound to make delivery of ordinary freight. 3. The duty, as to delivery, affected by facts, and course of business. 4. Railway company not bound to deliver goods, or give notice of arrival. 5. Rule, in regard to delivery, in carriage by water. 6. Only bound to Jceep goods reasonable time after arrival. , 7. Consignee must have reasonable opportunity to remove goods, 8. After this, carrier only liable for ordinary 9. If goods arrive out of time, consignee may remove, after knowledge of arrival. 10. So if company's agent misinform the con- 1 1 . Carrier excused, when consignee assumes control of goods. 12. Effect of warehousing, at intermediate points, in route, 13. If carrier has place of receiving goods, responsibility attaches on delivery there, 14. Ware?iouse-men, who are carriers, held re- sponsible as carriers, on receipt of goods, generally. § 130. 1. Where, by the course of a carrier's business, he. is accustomed to deliver goods and parcels, by means of porters, or servants, at the dwellings, or places of business, of the consignees, as was formerly the case, to a. great extent, in England, and, as is now done, by express companies in this country, the carrier's re- sponsibility continues, until an actual delivery to the consignee, or at his dwelling, or place of business.^ So, too, if the carrier deliver a parcel to a wrong person, without fault on the part of the owner, he is liable, as for a conversion.^ 2. But this mode of delivery has no application to the ordinary business of railways as common carriers of goods. The *trans- portation being confined to a given line, according to the ordi- nary and reasonable course of business, goods must be delivered, and received, at the stations of the company. And unless they adopt a different course of business, so as to create a different 1 Hyde v. Trent & Mersey Navigation Co. 5 T. R. 389. In this case the car- rier charged for cartage to the house of the consignee. In Stephenson v. Hart, 4 Bing. 476, it was considered a proper inquiry for the jury, " whether the de- fendants had delivered the box according to the due course of their business,,as carriers." Golden v. Manning, 2 Wm. Bl. 916 ; 3 Wil. 429, 433. 2 Duff V. Budd, 3 Brod. & B. 177. So, too, if the carriers deliver the goods, at a different place from that named in the bill of lading, although one named in former consignments of the same parties. Sanquer v. London, &c. R. 32 Eng. L. & Eq. 338. 272 § 130.] ^ COMMON CARRIERS. * 251 expectation, or stipulated for something more, there is no obliga- tion to receive, or to deliver freight, in any other mode. But where such companies contract to receive, or to deliver goods, at other places, or where such is the course of their business, they are undoubtedly bound by such undertakings, or by such usage, and course of business.^ 3 Farmers & Mechanics Bank v. Champlain Transportation Co. 23 Vt R. 186, 209; Noyes v. Rut. & Bur. Railway, 27 Vt. R. 110; 1 Parsons on Cont. 661. We here adopt Professor Parsons's note of the case, (23 Vt. R. 186, supra.') " This is one of the strongest cases in the books upon this point. The defendants were common carriers on Lake Champlain, from Burlington to St. Albans, touch- ing at Port Kent and Plattsburg long enough to discharge and receive freight and passengers. This action_was brought against them to recover for the loss of a package of bank-bills. It appeared in evidence that the package in question, which was directed to ' Richard Yates, Esq., Cashier, Plattsburg, N. Y.,' was de- livered by the teller of the plaintiffs' bank to the captain of defendants' boat, which ran daily from Burlington to Plattsburg, the captain delivered the package to one Ladd, a wharfinger, and that it was lost or stolen while in Ladd's posses- sion. No notice was given by the captain of the boat to the consignee of the arrival of the package, nor had he any knowledge of it until after it was lost. The principal question in the case was, whether the package was sufficiently de- livered, to discharge the defendants from their liability as carriers. The defend- ants offered evidence to show that a delivery to the wharfinger, without notice, under the circumstances of the case, was a good delivery according to their own uniform usage, and the usage of other carriers similarly situated. The case has been before the Supreme Court of Vermont three times, and that court has uni- formly held that, in the absence of any special contract, a delivery to the wharf- inger without notice, if warranted by the usage of the place, was sufficient, and discharged the defendants from all liability. When the case was before the court the last time, the court said : — " The only difficulty which the court, from the first, have ever felt in this case, has been in regard to the extent of the defendants' undertaking to convey the parcel ; in other words, as to the extent and termination of the transit or carriage by the defendants. The county court in the trial of this case, seem to have as- sumed that in the law of carriers there was a general well-defined rule upon this subject, and that the defendants were attempting to escape from its operation by means of some local usage or custom, in contravention of the general rules of law upon the subject. In this view of the case, the defendants were justly held to great strictness in the proof of the usage. It becomes, therefore, of chief impor- tance to determine how far there is any such general rule of law as that which is assumed in the decision of the case in the court below. If the law fixes the ex- tent of the contract, in every instance, in the manner assumed, then, most un- doubtedly, are the defendants liable in this case, unless they can show, in the manner required, some controlling usage. But if, upon examination, it shall appear that there is no rule of law applicable to the subject, and the extent of the transit is matter resting altogether in proof, then the course of business at the 273 * 251 THE LAW OF RAILWAYS. ^, [§ 130. * 3. The cases to some extent regard the question, when the duty of the carrier ends, as one of fact, or contract, to be deter- mined by the jury, with reference to the mode of transportation, the special undertaking, if any, the course of business, at the place, and other attending circumstances. It finally resolves it- self often into the inquiry, whether the carrier did all, in respect to the goods, which, under the peculiar duties of his office, the owner had a right to expect of him.^ 4. But where the facts are not disputed, and the course of busi- ness of the carrier is uniform, the extent of the carrier's liability will become a question of law merely, as aU such matters are, under such cii-cumstances.^ And we understand the cases to place of destination, the usage or practice of the defendants, and other carriers, if any, at that port and at that wharf, become essential and controlling ingredients ip the contract itself. All the cases almost without exception, regard the question of the time and place when the duty of the carrier ends, as one of contract, to be determined by the jury from a consideration of all that was said by either party at the time of the delivery and acceptance of the parcels by the carrier, the course of the business, the practice of the carrier, and all other attending circum- stances, the same as any other contract, in order to determine the intention of the parties. The inqiiiry, then, in the present case, must come to this before the jury, whether it was reasonable for the plaintiffs, under the , circumstances, to expect the defendants to do more than to deliver the parcel t» the wharfinger ? If not, then that was the contract, and that ended their responsibility, and the plaintiffs cannot complain of the defendants because the wharfinger was unfaith- ful. The defendants, unless they have either expressly or by fair implication undertaken on their part to do something more than deliver the parcel to the wharfinger, are no more liable for its loss than they would have been had it been lost upon ever so extensive a route of successive carriers, had it been intended to reach some remote destination in that mode. But if the plaintiffs can satisfy the jury that from the circumstan'ces attending the delivery, or the course of the business, they were fairly justified in expecting the defendants to make a per- sonal delivery at the bank, they must recover ; otherwise, it seems to us, the case is with the defendants " It might be consoling to the carriers and to others, if we could lay down a rule of law somewhat more definite in this case. But from the almost infinite diver- sity of circumstances, as to steamboat carriage, that is impossible. There will usually be at every place some fixed course of doing the business, which will be reasonable ; or it would not be submitted to, and which will be easily ascertained on inquiry, and with reference to which contracts will be made, and which it is equally the interest and the duty of both parties to ascertain, before they make contracts, and which it would be esteemed culpable negligence in any one not to ■ ascertain, so far as was important to the correct understanding of contracts which he was making." 274 § 130.] , - COMMON CARRIERS. * 252 have settled * the question, that' the carrier, by railway, is neither bound to deliver to the consignee personally, or to give notice ^ of the arrival of the goods. 6. The rule of law, and the course of business, in regard to carriage by water, have always been considered different from land carriage. In regard to foreign carriage, it is perfectly well settled that a delivery at the wharf, with notice and some of the cases say, even without notice, unless there be some special un- dertaking in the bill of lading, is sufficient. The consignee is presumed to have received from his correspondent a copy of the bill of lading, and is bound to take notice of the arrival of the ship.* A distinction has been attempted in some of the cases, between the foreign and internal and coasting carrying business, in regard to the delivery or landing upon the wharf, being suffi- cient to exonerate the carrier.^ 6. But the cases all agree that in regard to carriers, by ships and steamboats, nothing more is ever required, in the absence of special contract, than landing the goods at the usual wharf, and giving notice to the consignee, and keeping the goods safe, a sufficient time after, to enable the party to take them away. After that the carrier may put them in warehouse, and will only be liable, as a depositary, for ordinary neglect.^ And the pre- vailing opinion seems to be, at the present time, that the neces- sity of giving notice of the arrival of the goods depends upon custom, and usage, and the course of business at the place.^ The course of doing business upon railways, in being confined to a particular route, having stated places of deposit, and gener- ally erecting warehouses for the safe-keeping of goods, all seem to require that the same rule, as to the delivery of goods, should prevail wiiich does in transportation by ships and steamboats.^ * Cope V. Cordova, 1 Kawle, 203, opinion of Rogers, J. ; Ang. on Carriers, § 312, 313, et seq.; 2 Kent, Comm. 604, 606. 5 Ostrander v. Brown, 15 Joh,ns. R. 39, where it is held that such a deposit is not sufficient, but the carrier must continue his custody, till the consignee has had sufficient time, after the landing of the goods and notice, to come and take them away. Hemphill v. Chenie, 6 Watts & S. 66. 6 Garside v. Trent & Mersey Nav. Co. 4 T. R. 581 ; In re Webb, 8 Taunt. R. 443 ; s. c. 2 J. B. Moore, R. 500 ; 2 Kent, 605. 1 Price V. Powell, 3 Comst. R. 322. 8 Norway Plains Co. v. Boston & Maine Railway, 1 Gray, 263. Opinion of 275 * 253 THE LAW OF RAILWAYS'. [§ 130. Accordingly it was held that the proprietors of a railway, who ' are common carriers of goods, and when they arrive at their destination, deposit them in their warehouse, without additional charge, until the owner or consignee has a reasonable time to take them away, are not liable as common carriers, for the loss of the goods by fire, without negligence or default on their part, after the goods are unladen from, the cars, and placed in the warehouse, but are liable only for ordinary neglect as warehouse- men. And it will make no difference, it is here said, in regard to the liability of the carriers, that the goods were destroyed by fire, in the warehouse, before the owner or consignee had oppor- tunity to take them away.^ . , This last proposition is perhaps not in strict accordance with most of the cases upon the subject under analogous circumstan- ces. In a late case in New Hampshire,'^ the rule of the liability of the carrier and the wEirehouse-man are both stated differently "somewhat from that laid down in the last case. In regard to the liability of the carrier, as such, it is said it will continue till discharged, " by a delivery of the goods to the bailor, or a tender or offer to deliver them, or such act, as the law regards as equiv- alent to a delivery, as for instance, in some cases, by depositing them in the warehouse of a responsible person." No intimation is here given that a deposit merely in the carrier's own ware- house, is sufficient to release the carriers. 7. And upon principle, it seems more reasonable to conclude, that it does not, until the owner or consignee, by watchfulness, has had, or might have had an opportunity to remove them. This is certainly so to be regarded, if the building of warehouses, by railways, is to be considered part of their business as carriers, and for their own convenience. It seems to be settled* that the Shaw, Ch. J., 272. Opinion of court in Farmers' & Mech. Bank v. Champlain Transp. Co. 23 Vt. E. 211. 9 Norway Plains Company v. Boston & Maine Railway, 1 Gray, R- 263. It is said, in this case, that the company is not obliged to give notice to the consignee of the arrival of the goods. Indeed, that point is virtually decided here. For if there is any obligation to give notice, there is also to keep the goods a sufficient time after, to enable the party to remove them. And in this case there was no opportunity to remove them, afler the arrival. If there is any ground to ques- tion this decision, it is because there was no opportunity to remove the goods after their arrival. 10 Smith 0. Nashua & Lowell Railway, 7 Foster, R. 86. 276 § 130.] COMMON CAKRIERS. * 254 depositing of freight in their warehouses, at the time of receiv- ing it, is to be so regarded, unless there are specieil directions given, and that ' the responsibility of the carrier attaches pres- ently upon the delivery .^^ 8. There is then no very good reason, as it seems to us, why the responsibility of, the carrier should not continue, until the owner or consignee, by the use of diligence, might have removed the goods. The warehousing seems to be with that intent, and for that purpose. And if we assume, as we must, we think, that there is no obligation upon railway carriers, to give notice of the arrival of the goods, there does still seem to be reason and jus- tice in giving the consignee time and opportunity to remove the goods, by the exercise of the proper watchfulness, before the re- sponsibility of the carrier ends. In the case of Smith v. Nashua & Lowell Railway, it is held that there is no duty upon railway carriers to store goods, after the consignee has notice of their arrival, and reasonable time to remove them. Of course, then, there is no absolute duty to keep warehouses, provided the com- pany choose to give notice of the arriyal of goods, in every case, and suffer them to remain in their cars until the consignee has reasonable opportunity to remove them. It is only for their own convenience in keeping goods, to be carried, till the train is ready to depart, or after their arrival until the consignee has reasonable opportunity to remove them. After that there is no doubt the carrier's responsibility as such, ceases, and if the goods remain in the warehouse of the company, it is only with the responsi- bility of ordinary bailees for hire, as held in Norway Plains Co. V. Boston & Maine Railway, or as was held in Smith v. Nashua & Lowell Railway, with the responsibility of a bailee without compensation. The former degree of responsibility seems to us the just and reasonable one, as it is an accessory of the carrying business, and the carrier, after he becomes a warehouse-man, is no doubt fairly entitled to charge, in that capacity. The omis- sion to charge for warehousing in the first instance, being the result of the course of the business, and because it is a part of the carrier's duty to keep the goods safely, tiU the consignee has opportunity, by the use of diligence, to remove them. And this seems to us the extent of the decision in Thomas v. 11 Ante, § 1 29, and cases cited. 24 277 * 255 THE LAW OF RAILWAYS. [§ 130. Boston & Providence Railway.^^ THis point is there very dis- tinctly * stated, by Hubbard, J. : " And where such suitable warehouses are provided, and the goods, which are not called for on their arrival at the places of destination, are unladed, and 'stored safely in such warehouses, the duty of the proprietors, as common carriers, is, in our judgment, terminated." 9. But when the same rule is applied to goods, arriving out of time, and before the consignee could have removed them, reason and justice seem to us to require, that if the company put them into their warehouse, for their own convenience, their responsi- bility as carriers, should not be thereby terminated, until the consignee has reasonable opportunity to remove them.^^ We 12 10 Met. R. 472. In this case the action was for one roll of leather, out of four lost while in the defendants' warehouse. The four rolls arrived upon the train, and were deposited in the warehouse. The freight was paid on the whole, and the whole pointed out to the teamster, who called for them, at the depot, and he carried away but two of them. After this the loss occurred, and there could be no manner of doubt whatever, that the goods were remaining in the ware- house, for the convenience of the owner, and after a reasonable time for the removal had elapsed. There could be no question whatever, that the decision is fully justified, and that it comes fairly within the principle of the case of Garside v. Trent & Mer- sey Nav. Co. 4 T. K. 581, upon the authority of which it professes to go. 13 Michigan Central Railway v. Ward, 2 Mich. 538. In this case, notice of the arrival of the goods is held necessary to terminate the responsibility of the carrier. But the statute in this state provides, that the responsibility of the carrier shall cease, as such, after notice of the arrival of the goods a sufficient time to enable the consignee to remove them, and the court considered,' that, by consequence, it will continue till that period. And in Rome Railway v. SulUvan, 14 Ga. R. 277, the same rule in regard to notice is adopted, upon general prin- ciples. The former case was an action to recover the value of wheat carried, by the plaintiffs in error, from Kalamazoo to Detroit, and there destroyed by fire di- rectly after it was received in their warehouse. The court acknowledge the general duty of carriers to make personal delivery to the consignee, and say : " But to this general rule there are many exceptions. With great force and rea- son the law implies an exception to that large class of common carriers whose mode of transportation is such as to render it impracticable to comply with this rule ; it embraces all carriers by ships, and boats, and cars upon railways. These must necessarily stop at the wharves and depots on their respective routes, and consequently personal delivery would be attended with great inconvenience, and therefore the law has dispensed with it. But in'lieu of personal delivery, which is dispensed with in this class of carriers, the law requires a notice, and nothing will dispense with that notice. 278 § ISO.] COMMON CAKRIERS. * 256 should therefore * have felt compelled to rule the case of Norway Plains Co. v. Boston & Maine Railway, in favor of the plaintiffs- And in a late case in New Hampshire, which has come to hand since writing, the foregoing, we understand the court take precisely the same view stated in the text. * The case is Mosea v. Boston & Maine Railway, 32 N. H. R. 523, and was, where a quantity of wool arrived at the company's station, the place of its final destination, about 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 this hour, until the next morning. During the night, the warehouse and the wool therein were destroyed by fire. It was held, that the responsibility of railway companies, as common carriers, for goods transported by them, continues until the goods are ready to be deliv- ered at the place of destination, and the owner, or consignee, has had a reason- able opportunity, during the hours when such goods are usually delivered there, of examining them, so far as to judge from their outward appearance, whether they are in proper condition, and to take them away. But it was held, that the consignee must take notice o'f the course of business, at the station, and the time of the arrival of the train, when his goods may be expected, and be ready to receive them, in a reasonable time after their arrival, and when in such common course of business, they may fairly be expected to be ready for delivery. That upon the facts in this case, the jury were warranted in finding, that the consignee had not a reasonable opportunity to take the wool into his possession before the fire, and that defendants were liable therefor as common carriers, not- withstanding it might be proved by them, 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 to be delivered. In this case, and in a case between the same parties, 4 Foster, 7] , it is held, that the common-law liability of the carrier, as to goods in his warehouse, before and after the transportation, cannot be restricted by a mere notice brought home to the kno^vledge of the owner. While goods are in warehouse, after their arrival at their place of destination, and are carried away, by some one, by mistake, and without the fault of the company's agents, they are not liable. But if the company's agents deliver them, either positively or permissively, to the wrong person, by mistake, the company are liable. And they are prima facie liable for non-delivery, and the burden of proof is upon them to show that the goods were lost without their fault, although they may not be able to show precisely the manner of the loss. Lichtenhein v. Boston & Providence Railway, 11 Cush. R. 70. In the case of Chicago & Rock Island Railway v. Warren, 16 111. R. 502, it was held, that common carriers could not relieve themselves of their liability, as such, by depositing the goods in warehouse, until this was evinced by some open and distinct act. As if the storage were to be in the car that must be separated from the train, and placed in the usual place for storage, in the care of a propei^ 279 *256 THE LAW OF RAILWAYS. [§ 130. But in justice to the very elaborate opinion of Shaw, Ch. J. who has perhaps no superior upon this continent, as a wise and just expositor of the law, as a living and advancing study, we shall give the substance of it in his own words." We may be allowed person, and that the proof of this change rested upon the carrier. Scales, Ch. J., says : " Goods may not be thrown down in a station-house, or on a platform, at their destination, in the name and nature of delivery. The responsibility of the carrier must last till that of some other begins, and he must show it." I* " This action was to recover the value of two parcels of merchandise for- warded by plaintiffs to Boston in cars of defendants. The goods are described in two receipts of defendants, dated at Rochester, N. H., one October 31, 1850, the other November 2, 1850. The goods specified in the first receipt were de- livered at Kochester, and received into the cars and arrived seasonably in Boston on Saturday, the 2d of November, and were then taken from the cars and placed in the warehouse of defendants ; that no special notice was given to plaintifis, or their agents, but that the fact was known to Ames, a truckman, who was their authorized agent employed to receive and remove the goods ; that they were ready for delivery at least as early as Monday morning, the 4th of November, and that he might then have received them. The goods specified in the other receipt were forwarded to Boston on Monday, the 4th of November ; — the cars arri^edlate. Ames, the truckman, knew, from inspection of the way-bill, that the goods were on the train, and waited some time, but could not conveniently receive them that afternoon in season to deliver them at the places to which they were directed, and for that reason did not take them. In the course of the after- noon they were taken from the cars and placed on the platform within the depot. At the usual time, at that season of the year, the doors were closed. In the night the depot was burned down, and the goods destroyed by an accidental fire. The fire was not caused by lightning, nor was it attributable to any default, negligence, or want of dile care on the part of defendants, or their agents The ques- tion is, whether, under these circumstances, defendants are liable for the loss of the goods. " If, on the contrary, the transit was at an end, if the defendants had ceased to have possession of the goods as common carriers, and held them in another capacity, as warehouse-men, then they were responsible only for the care and diligence which the law attaches to that relation, and this does not extend to a loss by accidental fire, not caused by the default or negligence of themselves or their servants. The question then is, when and by what act the transit of the goods terminated. It was contended in this case, that in the absence of special . contract or evidence of a local usage, &c., to the contrary, the carrier of goods by land is bound to deliver them to the consignee, and that his obligation as cai^ rier does not cease till such delivery. This rule applies very properly to the case of goods carried by wagons, and other vehicles traversing the common highways and streets, and which, therefore, can deliver the goods at the houses of the respective consignees. But it cannot apply to railroads whose line of movement and point of termination are locally fixed. The nature of the transportation, though on land, is much more like that by sea in this respect, that from the very 280 § 130.] COMMON CARRIERS. * 257 to say, * that it seems to us, the opinion and argument of the learned chief justice might, for the most part, be quite as well nature of the case, the merchandise can only be transported along one line and delivered at its termination, or at some fixed place by its side at some intermedi- ate point. The rule in regard to ships is very exactly stated in the opinion of Bvller, J., in Hyde v. Trent & Mersey Navigation Co. 5 Term R. 397 : ' A ship trading from one port to another has not the means of carrying the goods on land, and according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carriers.' The court are of opinion, that the duty assumed by the railroad is — and this being known to owners of goods forwarded, must, in the absence of proof to the contrary, be presumed to be as- sented to by them, so as to constitute an implied contract between them — that they will carry the goods safely to the place of destination and there discharge them on the platform, and then and there deliver them to the consignee or the party entitled to receive them if he is then and there ready to take them forth- with, or if the consignee is not then ready to take them, then to place them securely and keen them safely a reasonable time ready to be delivered when called for. This, it appears to us, is the spirit and legal effect of the public duty of the carriers and of the contract between the parties when not altered or modi- fied by a special agreement.' ' This we consider to be one entire contract for hire, and although there is no separate charge for storage, yet the freight fixed by the company to be paid as a compensation for the whole service, is paid as well for the temporary storage as for the carriage. This renders both services, as well the absolute undertaking for carriage, as the contingent undertaking for storage, to be services undertaken to be done for hire and reward. From this view of the duty and implied contract of carriers by railroad, we think there result two distinct liabilities, first that of common carriers, and afterwards that of keepers for hire, or warehouse keepers, the obligation of each of which is regu- lated by law. We may say then, in the case of goods transported by railroad, either that it is not the duty of the company as common carriers to deliver the goods to the consignee, which is more strictly conformable to the truth of the facts, or in analogy to the old rule that delivery is necessary, it may be said that delivery by themselves as common carriers to themselves as keepers for hire, conformably to the agreement of both parties, is a delivery which discharges their responsibility as common carriers. If they are chargeable after the goods have been landed and stored, the liability is one of a very difi'erent character, one which binds them only to stand to losses occasioned by their fault or negli- gence.' " Indeed the same doctrine is distinctly held in Thomas v. Boston & Providence Railway, 10 Met. 472, with the same limitation. The point that the same com- pany under one and the same contract may be subject to distinct duties for a failure in which they may be liable to different degrees of responsibility, will re- sult from a comparison of the two cases of Garside v. Trent & Mersey Navigation Co. 4 Term R. 581, and Hyde v. Same, 5 id. 389. See also Van Santvoord v. St. John, 6 Hill, 157; McHenry v. Phila. Wil. &c. Railroad, 4 Harring. 448." In the case of In re Webb, 8 Taunt. 443, which was where common carriers 24 • 281 * 258-259 THE LAW OF RAILWAYS. [§ 130. applied to the * rule for which we contend, as to have reached the result which it did. *10. And where the consignee called for the goods, and the station agent told him they were not there, and in consequence they were not removed, but were destroyed by fire the same night, it was held the company were liable.'^ 11. And where the agent of the consignee requested the agent of the company to suffer the car in which was a block of marble, transported by them, to be removed to the depot of another rail- way, and he assented, and assisted in the removal of the car, and after the removal, the agent of the consignee procures the use of the machinery of the second company to unload the block, which is broken through defect of such machinery, it was held the first company are not liable for such injury, and that their responsi- agreed to carry wool from London to Frome under a stipulMion that when the consignees had not room in their own store to receive it, the carriers without additional charge would retain it in their own warehouse until the consignor was ready to receive it, wool thus carried and placed in the carrier's warehouse was destroyed by an accidental fire, it was held that the carriers were not liable. The court say this was a loss which would fall on them as carriers, if they were acting in that character, but would not fall on them as warehouse-men." " This view of the law applicable to railroad companies as common carriers of merchan- dise, aflfords a plain, precise, and practical rule of duty, of easy application, well adapted to the security of all persons interested, it determines that they are re- sponsible as common carriers until the goods are removed from the cars and placed on the platform, and if on account of their arrival in the night, or at any other time when by the usage or course of business, the doors of the merchandise depot or warehouse are closed, or for any other cause they cannot then be de- livered, or if for any reason the consignee is not there ready to receive them, it is the duty of the company to store them safely under the charge of competent and careful servants, ready to be delivered, and actually deliver them when duly called for by parties authorized and entitled to receive them, and for the perform- ance of these duties after the goods are delivered from the cars, the company are liable as warehouse-men or keepers of goods for hire." "It was argued in the present case that the railroad company are responsible as common carriers of goods, until they have given notice to the consignees of the arrival of the goods. The court are strongly inclined to the opinion that in regard to the transporta- tion of goods by railroads, as the business is generally conducted in this country, the rule does not apply. The immediate and safe storage of goods on their arrival in warehouses provided by the railroad companies, and without addi- tional expense, seems to be a substitute better adapted to the convenience of both parties." 15 Stevens v. Boston & Maine Railway, 1 Gray, R. 277. 282 § 130.] COMMON CARRIERS. * 260 bility terminated, when the marble was taken from their station, that being a virtual delivery to the consignee.^^ 12. Questions of some difficulty often arise, in regard to the custody of goods in warehouse, at intermediate stations, where there is no connection between the different routes over which the goods pass. We shall see that the general duty, in such cases, in * this country especially, is, to cai-ry safely, and deliver to the next carrier upon the route.'-^ But cases will occur where there will be delay in effecting the connection. In such cases there can perhaps be no better rule laid down, than that found in the opinion of Buller, J,, in Garside v. Trent & Mersey Nav. Co.^^ which was a case precisely of this character. " The keep- ing of the goods in the warehouse is not for the convenience of the carrier, but of the owner of the goods ; for when the voyage to Manchester is performed, it is the interest of the carrier to get rid of them directly ; and it was only because there was no per- son ready at Manchester to receive these goods, that the defend- ants were obliged to keep them." 13. But as a general rule, where the next carrier in the con- nection has a place of receiving goods, as in the case of railways, always open, and agents ready to receive them, it would probar bly be the duty of each preceding carrier, to make immediate delivery at the place of receiving freight, to the next succeeding 16 Lewis V. Western Railway, 11 Met. R. 509. And in Kimball v. Western Railway, 5 Gray, it was held that the company were liable for ordinary care and slsill in unlading goods from their cars, even in cases, where by their regulations, it was made the duty of the consignees to unlade them within twenty-four hours after their arrival, and this was known to the consignee, who also had notice of the arrival of the goods more than t*enty-four hours before the time of their being unloaded by the company's servants, and that if goods were, under such circumstances injured, by the want of such care and skill, the company were liable. And in the absence of all contract or usage for the consignee to unlade the goods from ships, boats, or cars, and especially where they are bulky, and of great weight, it seems reasonable that the carrier should assume the risk of unlading, under his responsibility as carrier. Such is the general course of the carrying business. The carrier is bound to provide himself with suitable and safe machin- ery for unlading, and where he used the machinery of third parties, at his own suggestion, for that purpose, he was held liable for its sufficiency. DeMott v. Laraway, 14 Wend. 225. 17 Post, § 135, and cases cited. 18 4 T. R. 58S. 283 * 261 THE LAW OF KAILWATS. [§ 131. carrier, in the line. And as this fixes, ordinarily, the carrier's liability ,^^ in this mode a continuous liability of carriers is kept up throughout the line, which it seems to us is the policy of the law upon this subject, where it can fairly be done, and without injustice to any particular carrier. 14. Difficult questions often arise, too, in this connection, where the goods are directed at an interniediate station, in the course of their transit, to the care of persons, who sustain the double capacity of forwarding merchants and carriers. In such cases they are more commonly held liable as carriers, the con- signment being presumed to have been made to them in that capacity.^" *SECTION VIJI. GBNKRAL DUTY OF CARRIBRS. EQUALITY OF CHARGES. SPECIAL DAMAGE. 1. Bmnd to carry for all who apply. 2. May demand freight in advance. Refusal to oarry excuses tender. 3. Payment of freight and fare will bepre- sumed sometimes. 4. What will excuse carrier from carrying, or delivery. • § 131. 1. It is a well-settled principle of the law applicable to common carriers, both of goods and passengers, that they are bound to carry for all persons who apply, unless they have a reasonable excuse for the refusal to do so.i Carriers of goods and passengers, who set themselves before the public as ready to carry for all who apply, become a kind "of public officers, and owe to the public a general duty, independent of any contract in the particular case.^ 19 Ante, § 129. 20 Teall V. Sears, 9 Barb. 317. This case is where goods were shipped from Albany upon the canal, with the accompanying bill of lading, — " Three cases of goods, A. B. Chase, Chicago, by vessel, care of Sears & Grif- fith, Buffalo," and were received at Buffalo, by Sears k Griffith, who were prin- cipally employed in the commission and forwarding business, but had some slight interest in transportation on the lakes, west, and who forwarded these goods to Chicago, by a transient vessel. Suit being brought against them for one case of the goods which did not arrive, it was held that they were liable as carriers and not as forwarding merchants merely. 1 Benett v. Peninsular Steamboat Co. 6 Man. Gr. & Scott, 775 ; Story on Bail. § 591 ;, Jencks v. Coleman, 2 Sumner, E. 221, 224. 3 Bretherton v. Wood, 3 Brod. & B. 54 ; s. c. 9 Price, R. 408. 284 § 131-] COMMON CAREIERS. * 262 2. The carrier is entitled to demand his pay in advance, but, if no such condition is insisted upon at the time of the delivery of the goods, the owner is not obliged to tender the freight, nor in an action is it necessary to allege more than a -willingness and readiness to pay a reasonable compensation to the carrier.^ "Where one is bound to perform, upon payment, even though en- titled to demand payment in advance, a refusal to perform the act excuses any tender of the compensation. All that is neces- sary to be averred or proved in such case, is a willingness and readiness to pay when the other party is entitled to demand pay which, in the case of the carrier, is not till he accept the goods and assume the duty of his office.* When, according to the common course of business, carriers do not require pay in advance, freight is not expected to be paid, unless required, in advance, and the omission will not excuse the carrier, * in such cases. Indeed, in one case it was held that the carrier could not rid himself of his common-law liability by waiv- ing compensation, where the right to demand it existed.^ 3. It is said that payment of fare will be presumed to" have been made according to the common course of business upon the route.'' And, although this has been questioned,' it is certain that such an inference, as matter of fact, will be very obvious, in the case of passengers upon railway trains, and we do not per- ceive any reasonable objection to the rule as one of presumption of fact which, for its force, must depend upon circumstances, to be judged of by the jury. 4. As before stated, a carrier is not bound to receive goods which he is not accustomed to carry, or when his means of con- veyance are all employed, or before he is ready to depart^ — or 3 Bastard v. Bastard, 2 Shower, 81. It is here said, "For perhaps there was no particular agreement, and then the carrier might have a quantum meruit for his hire." Lovett v. Hobbs, id. 129, and notes ; Rogers v. Head, Cro. Jac. 262 ; Jackson v. Rogers, 2 Shower, 327, decides the general principle of the carrier being liable to an action if he refuse to carry goods, "though offered his hire" if " he had convenience to carry the same," which seems to presuppose that both are conditions of the liability. Pickford v. The Grand June. Railway, 8 M. & W. 372. * Rawson v. Johnson, 1 East, R. 203 ; 2 Kent, Comm. 598, 599, and note. 5 Knox V. Rives, 14 Alabama, 249, 261, opinion of court, by Chilton, J. 6 McGill V. Rowand, 3 Barr, 451. "> 1 Parsons on Cont. 649; ante, § 128, n. 11. 8 Arguendo, in Lane v. Cotton, 1 Ld. Ray. 652 ; Morse v. Sine, 1 Ventris, 190, 285 * 268 THE LAW OP KArLWAYS. [§ 131. where the property is publicly exposed to the depredations of the mob ^ — or where the goods are not safe to be carried.^" So, too, the carrier may excuse himself by showing, that the loss hap- pened through the fraud, or negligence, of the owner of the goods in packing, or otherwise, or from internal defect, without his fault.ii So, if one who was bailee of goods to book them with the defendants, * stage proprietors and common carriers of parcels, to carry to London, but instead of doing so, put them in his own bag, which the defendants lost, it was held he could not recover the value of the parcel.^''^ So, too, if the loss happen partly through the negligence of the owner, and partly through that of the carrier, unless, perhaps, where the owners' negligence is not the proximate cause of the loss.^^ The carrier cannot refuse to carry a parcel because the owner refuses to disclose the contents. If accustomed to carry parcels, a carrier is bound to carry packed parcels [which is a bundle made up of smaller ones] according to the terms of the English statute.^* 2 Lev. 69. But, if he do accept the delivery, he is liable as a common carrier. Barclay v. CucuUa-T-Gana, 3 Doug. 389 ; Wibert v. N. Y. and Erie Railway, 19 Barb. 36. 9 Edwards v. Sheratt, 1 East, R. 604. 10 Eng. Stat. 8 & 9 Vict. c. 20, § 105. See also Story on Bailments, § 328 ; 2 Kent's Comm. 599 ; Hodges on Railways, 613 ; Angell on Carriers, § 125. 11 2 Greenleaf, Ev. 214 ; Leech v. Baldwin, 5 Watts, 446 ; Coxe v. Heisley, 19 Penn. R. 243, is where the owner represented the goods to be of much less value than they were, and thereby induced the carrier to exercise less watchful- ness in regard to them. Relf v. Rapp, 3 Watts & S. 21, is a similar case, where a box of jewelry was put in an ordinary box and marked as glass, and the court held the misrepresentation such a fraud as to excuse the carrier from his common- law liability, even in the case of embezzlement by his servants. But where goods are directed to be carried in a particular manner, or position, the carrier is bound to regard the direction, and he is liable for all damage result- ing from his neglect to do so. Sager v. Portsmouth Railway, 31 Maine, 228. As, where a box containing a bottle of oil of cloves was marked " Glass with care — this side up" — and was lost by disregarding the direction — it was held, this was a sufficient notice of the value and of the contents. Hastings v. Pepper, 11 Pick. 41 ; post, § 141. 12 Miles V. Cattle, 6 Bing. 743. 13 Davies v. Mann, 10 M. & W. 546 ; Robinson v. Cone, 22 Vt. R. 213, and cases referred to in the opinion of the court. " Crouch V. The Great N. Railway, 25 Eng. L. & Eq. R. 449. By the 13 & 14 Vict. c. 61, § 14, it is provided that railway companies may make such charges as they may think fit, upon small parcels not exceeding 500 lbs. weight, provided 286 § 132.] COMMON CARRIERS. ^264 *SECTION IX. NOTICE KE8TKICTING CARRIERS' RESPONSIBILITY. 1. Special contract, lirititing responsibility, valid. 2. Notice, assented to by consignor, has same effect. 3. But as matter of emdence, it is received vnth caution, i. Carrier must show that consignor acquiesced in notice. 6. Decided cases. Carriers' Act. 6. New York courts held, at one time, that ex- press contract will not excuse the carrier. 7. American cases generally hold notice, as- sented to, binding. S . But in New Hampshire, knowledge of such notice is not sufficient to bind the owner 9. Will not excuse for negligence. 10. Cases in Pennsylvania. 11. General result of all the cases. § 132. 1. The effect of special or general notices, in restrict- ing the general liability of carriers, is one of vast importance. that packed parcels forming an aggregate of more than 600 lbs. shall not come under this provision, but it shall apply only to single parcels in separate packages. Under this and similar English statutes it has been held, that if the packages are separate enclosures, although sent upon the same train and of the same kind enough to exceed the weight of 500 lbs., they may still be charged, as parcels, at any rate the companies may fix upon, which shall be uniform to all. Parker v. Great Western Railway, 34 Eng. L. & Eq. R. 301. By the English statutes which limit the tonnage rates for railway transportation according to distance, and which are required to be uniform to all, the company may still charge some- thing reasonable in addition, for loading and unloading the goods when they per- form that service. Parker v. G. W. Railway, ib. And in the same case it is held that the company may make a reasonable allowance to persons or companies for collection and delivery of goods, at stations, or to consignees, when that is part of their undertaking, without infringing the statute requiring uniformity of rates of charges. This subject is somewhat elaborately discussed by the Court of Ex- chequer, in Crouch v. The Great Northern Railway, 34 Eng. L. & Eq. R. 573 [1856], and the cases bearing upon the point, extensively referred to. The only point really decided there is, that it is a question of fact, whether one kind of goods, or one kind of package, is attended with more risk to the carrier than another. The question here was between packed parcels, the mass being ad- dressed to one- person, and the separate parcels intended for different persons, and " Enclosures " containing several parcels for the same person. The jury found there was no substantial difference in the risk. See also § \55,post, and Pickford V. Grand Junction Railway, 10 M. & W. 399 ; Parker v. Great Western Railway, 11 C. B. R. 445, and 8 Eng. L. & Eq. R. 426 ; Edwards v. Great W. Railway, 8 Eng. L. & Eq. R. 447. An opinion is here intimated that an express carrier, or collector and carrier of parcels, might recover special damage of a railway company who, by failure to perform their duty promptly, should injure his business. And Hadley v. Bax- endale 26 En". L. & Eq. R. 398, is cited in confirmation of the claim. But it 287 *265 THE, LAW OE RAILWAYS. [§ 132. and has * created a great deal of discussion. We should scarcely be expected to go into the full detail of the whole subject, but was considered that the declaration did not cover the claim. The rule in regard to special damages is very correctly defined in Hadley v. Baxendale, so far as car- riers are concerned. It is there held that, if the carrier is aware of the circum- stances of ^e employer and the extent of the injury likely to occur by delay, and is still culpable, thereby causing delay, he must make good the special damage. But if he is not aware of any unusual circumstances whereby special damages are likely to occur, he is only liable to such general damages as may be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of a breach of it. As, where a miller sent a shaft to be used as a model for casting a new one, and the carrier unrea- sonably delayed the delivery of it, and consequently, the retjirn of the new one, and the plaintiff's mill, in the mean time, remained idle in consequence, none of these circumstances being known to the carrier, it was held the plaintiff could not recover special damage by reason of his mill remaining idle, and that it was the duty of the judge, in trying the case, to lay down a definite rule by which the jury shall estimato the damages, and to enable the judge to do so, the full court should determine wat rule. Blake v. Midland Railway, 10 Eng. L. & Eq. E. 437 i Alder v. Keighly, 15 M. & W. 117 ; post, § 154, n. 2. In a recent and important case in the House of Lords, Einnie v. Glasgow & Southwestern Railway, 34 Eng. L. & Eq. R. 11, the subject of inequality of railway charges, for freight, is learnedly discussed by Lord Chancellor Cranworth and Lord St. Leonards, two of the most learned and acute lawyers in England, and the surprising diversity of opinion between them upon a subject which, to common apprehension, seems not very difficult of solution, is another confirma- tion, if any were required, of the necessity of continued discussion in regard to the application of the most familiar principles of the law. In this case, the de- fendants leased a branch line upon which the plaintiff, a coal owner, resided. The statute applicable to the subject provided, that the rates should be made equal to all persons in respect of goods passing over the same portion of, and over the same distance along, the railway, and under like circumstances ; and that no reduction, or advance, should be made, partially, either directly or indi- rectly, in favor of, or against, any particular person. The rates of charge were higher upon the branch than upon the main line, for the same distance. When the plaintiff sent his coals along the branch he was charged the branch rates ; but when they reached the main line, then at the main line rates. But when coal owners living on the main line, sent their coals from the main line upon the branch, they were charged for the whole distance upon both lines, the main line rates. Held, [the two lords differing in opinion,] that this was no violation of the equal rates clause in the statute. But, it was held by Lord St. Leonards, that it was a gross violation of such clause. It was doubted by the House, and by Cran- worth, Lord Chancellor, whether, when one is overcharged in violation of this clause, the money can be recovered back by the party thus overcharged. But Lord St. Leonards was clearly of opinion it may be. If it were not for the doubt and the difference of opinion here, and the decision, one could entertain no 288 § 132.] COMMON CARRIERS. * 265 we shall state the points established, by the better considered cases upon the subject. It was never made a serious question, in the English law, since the case of Southcote, 4 Co. 83, that any bailee might stipulate for an increased or a diminished de- gree of responsibility from that which the law imposed upon his general undertaking. 2. And, upon principle, it is difficult to distinguish between an express contract, exonerating the carrier from his ordinary respon- sibility, and a notice from the carrier, that he would not assume serious question of the entire soundness of the opinions expressed by Lord St. Leonards. A railway company cannot discriminate between goods carried partly by water and partly by railway and those carried exclusively by railway, in their fares. Ransome u. Eastern Co. Railway, 28 Law T. 339, (Feb. 1857.) But it was said in this case, what is also reported in 38 Eng. L. & Eq. R. 232, that in determin- ing whether a railway company has given undue preference to a particular per- son, the court may look at the fair interests of the company itself, and entertain such questions, as whether the company might not carry larger quantities, or for longer distances, at lower rates per ton, per mile, than smaller quantities, or for shorter distances, so as to derive equal profits to itself This latter principle is reatSrmed, in Ransome v. Eastern Counties Railway, 31 Law Times, 72, on ap- peal. And a railway company, who advertised for carrying a certain description of goods, at a lower rate of charge, when sent through certain agents, were re- strained, by injunction, from making any such discrimination. Baxendale v. The North Devon Railway, 30 Law Times, 134. And where the proprietor of coal mines was about to construct a railway for the accommodation of the lessees, and abandoned the purpose, upon the public railway entering into an agreement to carry the coal from his pits, at a reduced' rate of charge, from what others were required to pay, from the same station for the same route ; it was held to be an undue preference. Harris v. C. & W. Railw. 30 Law Times, 273. But in a very recent c£ise, Baxendale v. Eastern Counties Railw. 30 Law Times, 320, (Feb. 1858,) it was held, that a railway company were not bound to carry parcels directed to different persons, but delivered to them at the same time, and all to be redelivered to the same person, at the place of destination, at the same rate, as if directed to one person only. The plaintiffs were carriers, who collect parcels from different persons, to be forwarded by them through the railway, to be distributed, on their arrival, to the persons to whom directed. For these parcels, having such direction upon them, and no common mark, and not packed together, the company charged the same rate, as for small parcels deliv- ered by different persons, and not at the lower tonnage rates, charged for heavy goods, or parcels packed and directed to the same consignee ; and it was held that the charge was not unreasonable, inasmuch as the parcels having nothing upon them, to show that they were for the same consignees, might impose addi- tional trouble upon the company. 25 289 * 266 THE LAW OF RAILWAYS. [§ 132. such responsibility, brought home, and assented to, by the o.wner of goods delivered to be carried. For as the carrier may refuse to carry, and thus subject himself to an action for damages, be may equally, it would seem, undertake to carry upon such terms as his employers are willing to negotiate for, so that, upon principle, a notice brought home to the owner of the goods and assented to, is neither more nor less than a special contract. 3. But a notice, brought home to the owner of the goods, as evidence, merits a very different consideration, in this species of * bailment, from any other, where there -is no obligation upon the bailee to assume the duty. In the case of a carrier, with whom it is not optional altogether, whether to carry goods offered, or not, but where he must carry such goods as he is accustomed to carry, upon the general terms of liability, imposed by the law, or submit to an action for damages, and where every one, desiring goods carried, has the option, to have them carried, without re- striction of the carrier's duty, unless he choose to waive some portion of his legal rights, for present convenience, or ultimate peace ; the mere fact of such a notice, restricting the carrier's lia- bility, being brought home to the knowledge of the owner of goods, before or at the time of depositing them with the carrier, is no certain ground of inferring, whether the carrier consented to recede from his notice and perform the duty, which the law im- poses upon him, or the owner of the goods consented to waive some portion of his legal rights. 4. Perhaps, upon general grounds of inference, it might be re- garded as more logical, and more reasonable, to infer, that the carrier receded from an illegal pretension, than the owner of the goods from a legal one. At all events, to exonerate the carrier from his general liability, he must show, at the least, it would seem, that the owner assented to the demands of the notice, or acquiesced in it, by making no remonstrance. 5. It will be found, that the decided cases mainly coincide with these general propositions.^ The English statute, the Carriers' 1 Nicholson v. Willan, 5 East, 507, w one of the earliest cases, where the mere fact of notice is treated as equivalent' to an express contract, and this is upon the presumption, that it was assented to by the owner of the goods, who seems to have been present, at the time the goods were deposited, and to have been made aware of the notice. Nothing is said of any remonstrance upon his part. This notice, it will be observed, is only that packages, above the value of £5, must be disclosed, §132.] COMMON CARRIERS. * 267 Act,^ requires the owner of goods of great value, in small com- pass, enumerated in the act, which is very extensive, to declare to the carrier, at the time of delivery, the contents of the parcels, and * pay the requisite price, or the carrier is exonerated from lia- bility.' 6. In the state of New York, the courts at one time held, that it is not competent for carriers to exonerate themselves from their general liability, either by notices brought home to the owner of goods, at the time they are deposited for carriage, or by express contracts to that effect even.^ and insured as such. This notice seems nothing more than a regulation of their business, to enable them to know the value of their parcels, and to demand pay accordingly, which all carriers may now do, by statute, in England and in this country, by general usage. In Riley v. Home, 5 Bing. 217, Ch. J. Best shows, very conclusively, the reasonableness and justice of allowing carriers, to require, by general notices, of those who bring goods or parcels, to disclose the contents, and to demand pay in proportion to their value, by way of insurance. Wyld v. Pickford, 8 M. & W. 443, seems to decide the same. « 11 George 4 & 1 Will. 4, ch. 68. 3 Cole V. Goodwin, 19 Wend. 261 ; Hollister v. Nowlen, 19 Wend. 234 ; Gould V. Hill, 2 Hill, R. 623. But see also Fish v. Chapman, 2 Kelly, 349 ; Jones v. Voorhies, 10 Ohio, 145; Dorr v. The N. J. Steam Nav. Co. 1 Kernan, 491.' The New York courts seem to have adhered to the case of Hollister p. Nowlen. Cam. & Am. Railway v. Belknap, 21 Wend. 354 ; Clark v. Faxton, id. 153 ; Alexander V. Greene, 3 Hill, 9 ; 7 id. 533 ; Pdwell v. Myers, 26 Wend. 594. But the case of Gould V. Hill, in which it was held, that the carrier could not exonerate him- self from his common-law responsibility, by a special contract, has been deliber- ately overruled, in two cases. Parsons v. Monteith, 13 Barb. 353; Moore v. Evans, 14 Barb. 524. And in Dorr v. N. J. Steam Nav. Co. 1 Kernan, 491, in the TCourt of Appeals, Parker, J., says : " I am not aware, that Gould v. Hill has been followed in any reported case." In Wells t). Steam Nav. Co. 2 Comst. 209, Branson, J., who seems to have con- curred in the decision of Gould v. Hill, says : " It is a doubtful question ; " and Parker, J., in Dorr v. N. J. Steam Nav. Co., supra, says : " That a carrier may by express contract, restrict his common-law liability, is now, I think, a well- established rule of law. It is so understood in England. Aleyn, 93; 1 Ventris, 190, 238; Peake's N. P. C. 150; 4 Burrow, 2301 ; 1 Starkie, 186 ; 8 M. & W. 443 ; 4 Co. 84 ; and in Pennsylvania, 16 Penn. 67 ; 5 Rawle, 1 79 ; 6 Watts & S. 495. In other states where the question has arisen, whether notice would excuse the liability of the carrier, it seems to have been taken for granted, that a special acceptance would do so ; and in N. J. Steam Nav. Co. v. Merchants Bank, 6 How. 882, it was so held, by the Supreme Court of the United States.'' 291 * 268 THE LAW OF RAILWAYS. [§ 132. * 7. But most of the American cases admit, that carriers may restrict their general liability, by notices, brought home to the The Superior Court of the city of New York had adopted a similar view, in the same case. 4 Sandf 136 ; and in Stoddard v. Long I. Railway, 5 Sandf. 180. The following cases may also be here referred to as holding the general doctrine upon this subject. Swindler v. Hilliard, 2 Rich. 286 ; Camden & Amb. Railway V. Baldauf, 16 Penn. R. 67; Keno v. Hogan, 12 B. Monr. 63; Farm. & Mech. Bank v. The Champ. Trans. Co. 23 Vt. R. 186 ; Barney v. Prentiss, 4 Har. & Johns. 317. As the result of all the cases upon the subject, and of true policy and sound principle, it must be admitted that a carrier may relieve himself from his duty to insure the safe arrival of the goods at their destination, by a special contract to that effect, or what is equivalent, that a special notice to that effect, brought home to the mind of the owner of the goods, at the time of delivery, or before, and no objection made to it, will have the force of a special contract, according to the English cases, but that according to many of the American cases, some further evidence of assent, on the part of the owner, is requisite. Opinion of Isham, J., in Kimball «. Rut. & B. Railway, 26 Vt. R. 247. If a different ra,te of charge is made, the election of the lower rate is an assent to the notice. The language of Nelson, J., in New J. Steam Nav. Co. v. The Merchants Bank, 6 Howard, U. S. R. 344, is perhaps a fair exposition of the American law upon the subject. " He (the carrier) is in a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself, without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the public, limiting his obligation, which may or may not be assented to. He is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal. And we agree with the court in HoUister V. Nowlen, that if any implication is to be indulged, from the delivery of the goods under the general notice, it is as strong, that the owner intended to insist upon his rights, and the duties of the carrier, as it is that he assented to their qualification. The burden of proof lies on the carrier, and nothing short of an express stipulation', by parol, or in writing, should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication, or inference, founded on doubtful or conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties." To the same effect is the opinion of the court in Farmers &c M. Bank v. The Champlain Transp. Co. 23 Vt. R. 186, 205. " We are more inclined to adopt the view, which the American cases have taken of the subject of notices, by com- mon carriers, intended to qualify their responsibility, than that of the .English courts, which they have, in some instances, subsequently regretted. The con- sideration, that carriers are bound, at all events, to carry such parcels, within the general scope of their business, as are offered to them to carry, will make an essential difference between the effect of notices by them, and by others, who have an option in regard to work which they undertake. In the former case, the 292 ^ § 132.] COMMON CARRIERS. * 269 knowledge of the owner of the goods, before, or at the time, of delivery to the carrier, if assented to by the owner, which is but another form of defining an express contract, which seems to be everywhere recognized, as binding upon those contracting with carriers, unless New York may form an exception.* * 8. But it was held that the owner of goods delivered at the . station-house of the railway, to be carried from Dover to Boston, and which were consumed by an accidental fire, at the former place, was not precluded from recovery of the value of the goods, by a general notice of the company, known to the plaintiff at the time of the delivery of his goods, that all goods would be at the risk of the owners while in the defendants' warehouse.^ 9. And in another case it was held that a paper exonerating the company from all liability to the plaintiff for damage, which might happen to any horses, oxen, or other animals, he might send by their railway, did not exonerate them from liability for negligence.® 10. In Pennsylvania the rule of the English law that a carrier may restrict his liability, by a special acceptance, seems to be firmly established notwithstanding some misgivings expressed by the courts in regard to the good policy of such a rule. The more prominent cases upon the subject, are referred to in the opinion of the court, in Dorr v. N. J. S. Nav. Co.' contractor, having no right to exact unreasonable terms, his givihg public notice that he shall do so, where those who contract with him are not altogether at his mercy, does not raise the same presumption of acquiescence in his demands, as arises in those cases, where the contractor has the absolute right to impose his own conditions. And unless it be made clearly to appear, that persons con- tracting with common carriers, expressly consent to be bound by the terms of such notices, it does not appear to us, that such acquiescence ought to be inferred." And a notice restricting the carrier's liability for baggage, " printed on the back of the passage ticket, and detached from what ordinarily contains all that it is material for the passenger to know, does not raise a legal presumption, that the party had knowledge of the notice before the train left. That is a question for the jury." Brown v. Eastern Railway Co. 11 Cush. R. 97. 4 New J. Steam Nav. Co. v. Merchants Bank, 6 How. U. S. R. 344 ; Sager v. The P. S. & P. Railway Co. 31 Maine, 228 ; Bean u. Green, 3 Fairfield, 422. Cooper V. Berry, 21 Ga. R. 526. 5 Moses V. Boston & Maine Railway, 4 Foster, 71 ; ante, § 130, n. 13. 6 Sager v. P. S. & P. Railway, 31 Maine, 228. 7 1 Kernan, 491 ; Atwood v. The Reliance Co. 9 Watts, 87; Bingham v. Rog- ers, 6 Watts & Serg. 495 ; Laing v. Colder, 8 Penn. R. 479. « 25 . 293 270 THE LAW OF RAILWAYS. [§ 133. 11. It would seem then to be the result of the decisions every- where, that carriers may limit their common-law responsibility, as insurers, by special contract, at the time of acceptance, and that a notice to that effect brought home to the knowledge of the owner of the goods, at the time, or before the delivery* of the goods, and assented to by him, or against which he makes no remonstrance, or objection perhaps, will have the same effect, in ■ general, with such exceptions, limitations, and qualifications, as reason and justice may require, to be judged of by the court and jury, with reference to the circumstances of each particular case.' *SECTION X. NOTICE, OR EXPRESS CONTRACT, LIMITING CARRIERS* LIABILITY. 1 . Written notice wilt not affect one, who can- not read. 2. Carrier must see to it that his notice is made effectual. 3. Must be shown that knowledge of notice came to consignor. 4. But former dealings with same party may be presumptive evidence. 5. Carrier cannot stipulate for exemptimfrom liability for negligence. 6. But carrier may be allowed to stipulate for exemption from responsibility as an in- surer. 7. 8, 9, 10, 11, and 12. Review of the cases favoring this proposition. 13, 14, and n. 17. Review of English cases bearing in opposite direction. § 133. 1. The courts have, from time to time, been accustomed to engraft such exceptions, in regard to the effect of carriers' noti- ces, as seemed necessary to render their operation reasonable and just. It was held that such notice could have no effect, by being posted upon the office of the carrier, if the owner of the goods or the party who delivers them at the office cannot read.^ 8 The English statute, 17 & 18' Viet. c. 31, § 7, defines the effect of these no- tices of carriers in England, which is considered more at length under § 140. The latest English case, upon this point, Simons v. Great Western Railway, [May, 1857], 29 Law Times, 182, holds, that a notice, signed by a person, who cannot read, and who is told by the clerk of the company that it is mere form, is not binding, as a contract. Cooper v. Berry, 21 Ga. R. 526. I Davis V. Willan, 2 Starkie's cases, 279. Abbott, J., here says a notice to have effect, must be brought " plainly and clearly to the mind of the party, who deals •with them.'' " It may happen that the party cannot read, and if it so happen, it is the misfortune of the carrier, or his fault, that he does not communicate his in- tention by some other means.'' 294 § 133.] COMMON CARRIERS. * 271 2. In another case where the party delivering the goods, could read, and had seen -the carrier's notice, upon a board hanging in the office, but not supposing it interested him, had, in fact, never read it, it vi^as held he was not affected by it. Lord Ellenbo- rough said, at the trial, " You cannot make this notice to this non-supposing person." " The hardship of the case cannot alter the liability of the party." The rule is here laid down by this learned and sensible judge, that the carrier 'must see to it that he adopts such a medium of notice that the party with whom he deals shall be " effectually apprised of the terms upon which he proposes to deal." ^ 3. And it was held the notice was insufficient, if the advanta- ges * of the mode of carriage were stated in large letters, and the conditions and exemptions in small letters.^ So, too, if the printed notice be in a place where the party would not ordina- rily see it, in the mode in which he came to the office, it could have no effect upon the liability of the carrier.* So, too, where the goods vere delivered at a station where no notice was put up although notices were put up at each terminus of the route.^ All this shows very clearly that such notices by printed cards, or inserted in newspapers are not sufficient, unless it be shown that 2 Kerr v. Willan, 2 Starkie, 53. When the case came before the full bench, on motion for new trial, the court said, in regard to the duty to make the notice eflfectual, " If the agent could not read, he might be able to hear, or, at all events, a handbill might be delivered to him, to be taken to his principal." The rule of law might be superseded, by special contract, but it must be proved, and whether it exist or not is always a question for the jury. 3 Butler V. Heane, 2 Campb. 415. 4 Walker v. Jackson, 10 M. & W. 161 ; Gouger v. Jolly, 1 Holt, N. P. C. 317. 5 1 Holt, N. P. C. 317. Gibbs, Ch. J., says, " The carrier is liable, unless ex- press notice is brought home to the plaintiff." This is the ground assumed in all the cases. Beekman v. Shouse, 5 Rawle, 179 ; Bean v. Green, 3 Fairfield, 422 ; Story on Bailments, § 558 ; Brooke v. Pickwick, 4 Bing. 218. Best, Ch. J., here lays down the rule, in regard to notices, that it is not enough to post them up in a conspicuous place in the office of the carrier. But they must be at the pains to make the customer understand the restrictions which they propose to claim upon their responsibility. This we thipk the only safe rule, in regard to notices by carriers. And unless this be clearly shown, the leaving the goods, without objec- tion, seems to be no ground whatever of presuming against the owner. And even with this, it is still a question for the jury, whether he expected to be bound by it, or, in other words, whether he supposed, at the time, that the carrier so understood the matter. Ante, § 132, 133. 295 " 272 THE LAW OF EAILWATS. [§ 133* knowledge of the contents of such notices came to the party, and this is always a question for the jury.^ ■ 4. But the carrier may give evidence of the manner of trans- acting similar previous business, between him and the plaintiff, as presumptive evidence of notice, and an implied special ac- ceptance in this particular case.'' * 5. But notwithstanding such notice, that parcels are to be at the risk of the owner, and this assented to by the owner, the cases chiefly agree that the carrier is still liable for gross neglect,^ and many of the earlier and best considered English cases, re- gard such notices as having no reference whatever to the ordi- nary risks of transportation, but as only intended to relieve the carrier from those extraordinary responsibilities which the com- mon law had imposed upon this class of bailees. And it cannot be denied that this view of the subject has very much to com- mend it to our favorable consideration. There is certainly something very incongruous, and not a little revolting to the 6 Clayton V. Hunt, 3 Campb. 27; Rowley ». Home, 3 Bing. 2. In this case the defendant proved that the plaintiff had regularly taken a weekly newspaper, in which his advertisements were constantly inserted, for over three years. The jury having found a verdict for plaintiff for the full loss sustained, the full bench refused a new trial. They said it could not be intended a party read all the con- tents of any newspaper he might take. The carrier should fix upon the party a knowledge of the notice, and this he might easily do, by delivering to each one who brought a parcel a printed copy of such notice. 1 Roskell V. Waterhouse, 2 Starkie, 461. In this case, the evidence was that the plaintiff had sent similar parcels by defendant, which had been lost, and no action brought for the loss. Mayhew v. Eames, 3 B. & C. 601. In this case the principals had previous parcels sent by the same carriers, and had received at such times their printed notices, and the court held that sufficient notice to them, in this case, notwithstanding their agent, in this particular case, delivered the parcel to the carriers, without any knowledge that they had given notice that they would not be responsible for bank-notes, unless entered and paid for accord- ingly. The court say the principals should have apprised their agents of this notice, and not to send by them without insuring. Notice to the principals in another transaction is good in this, but not so of notice to the agents. Notice to the agents, in order to bind the principals, must be in the same transaction. The principal and agent, so far as the same transac- tion is concerned, are to be regarded, for purposes of notice, as identical. Fitz- simmons v. Joslyn, 21 Vt. R. 140, 141, 142, opinion of the court. 8 Post, § 134, n. 9, 10, U, 12, 13, 14, 15, 16, 17. See also Farmers' & Me- chanics' Bank v. Champlain Transportation Co. 23 Vt. R. 205, opinion of the court upon this point, and cases cited. 296 § 133.] COMMON OARRIBRS. * 273 moral sense, that a bailee for hire should be allowed to stipulate for exemption from the consequences of his own negligence, ordinary or extraordinary. A laborer, domestic, or mechanic, who should propose such a stipulation, would be regarded as altogether unworthy of confidence in any respect, and the em- ployer, who should submit to such a condition, must be reduced to extreme necessity one would suppose. We could scarcely believe that any competent tribunal would, for a moment, enter- tain such a proposition, if we did not know that the ablest courts in Westminster Hall had done so. 6. But that a carrier by steamboat or railway, or indeed, in any other mode, should be allowed to stipulate for exemption from insurance of the goods, or else demand a premium, and specification, as in other cases of insurance, seems highly just and reasonable.^ 7. In DufFv. Budd,8 the carrier was held liable for delivering a box to a wrong person, notwithstanding a notice that he would not be liable for parcels of that description, the judge directing the jury that the carriers' negligence had been such as to render it unnecessary *to consider the question of the notice, and the full bench, on argument, refused a new trial. 8. And in Garnett v. Wilan,!" where the carrier delivered the parcel to another line of carriers, and it was lost before it reached its destination, it was held, notwithstanding a similar notice, the first carrier was liable. In both these cases, the carrier was held liable as for gross negligence. And Beck v. Evans," was de- cided upon the same ground, and involves the very same point. 9. In Bodenham v. Bennett, ^^ it was held, that such notices are only intended to exempt carriers from extraordinary events, and in the language of Baron Wood, " were not meant to ex- empt from due and ordinary care." 9 3 Brod. &Bing. 177. 10 5 Barn. & Aid. 53. And in such case the jury having found that the risk was increased by the change of carriers, the first carrier is liable, even where he was deceived as to the value of the parcel. Sleat v. Fagg, 5 B. & Aid. 342 ; post, note 14, § 133. 11 16 East, R. 244; Smith v. Home, 8 Taunt. R. 144, is to the same eflfect. So also is Reno v. Hogan, 12 B. Monroe, 63. 12 4 Price, R. 31 ; Birkett v. Willan, 2 B. & Aid. 356, is decided upon the authority of Bodenham v. Bennett, and holds that such notice, assented to by the owner of the goods, will not excuse the carrier for gross negligence. 297 * 273 THE LAW OF EAILWATS. [§ 133. 10. In Batson v. Donovan,^^ Best, J., said, " The only effect of the notice is that employers are informed that carriers will not be insurers of goods above a certain value, unless paid a reasonable premium of insurance." And the learned judge in- sists with great earnestness, that the carrier and his servants must, in cases of this kind, notwithstanding the notice, assented to by the owner of the goods, " take the same care of them that a prudent man would take of his own property," which seems just and reasonable. But the majority of the court held in this case, {Best, J., dissentiente,) that the plaintiff by delivering a box containing bills, checks, and notes, to the value of £4,072, with- out intimating that the contents were valuable, when he knew that the carrier expected a premium for insurance in such cases, was guilty of such fraud and deception as to preclude a recovery, except for such gross neglect as would be reprehensible if the parcel had been of less value than £5, the limit named in the carrier's notice. And we see no reason to question the sound- ness of the grounds upon which the case is put,^* and it seems 13 4 Barn. & Aid. 21. 1* See post, § 140, and cases cited. Some of the early cases do not seem to regard a deception in reference to the contents of a parcel delivered to a carrier, as excusing the carrier from his com- mon law liability of insurer, there being no notice from the carrier in regard to being informed of the contents of valuable parcels. Kenrig «. Eggleston, Aleyn, 93. So in the case from 1 Ventris, 238, cited by Lord Mansfield, in Gibbon v. Paynton, 4 Burrow, R. 2298. But his lordship, who saw through all disguises, dissents emphatically from any such rule of responsibility, and indorses the case of Tyly V. Morrice, Carthew, 485, as "being determined on the true principles that the carrier was liable only for what he was fairly told of." In this last case two bags were delivered to the carrier sealed up, said to con- tain £200, and receipted accordingly with a promise to deliver to T. Davis, he to pay 10s. per cent, for carriage and risk. The carrier was robbed, and the chief justice was of opinion the plaintiff should only recover for £200, the undertaking being for £200, and the reward only for that sum. And " since the plaintiff had taken this course to defraud the carrier of his reward, he had thereby barred him- self of that remedy which is founded only on the reward." And we do not see why this old rule, from Carthew, adopted by Lord Mansfield, in his opinion in this case, (Gibbon v. Paynton,) does not contain the essence of the law upon this point at the present time. The case of Gibbon v. Paynton was that of £100 in gold, put in an old nail bag, and that filled with hay to give it a mean appearance, and no intimation given to the carrier of its value ; the bag and hay arrived safe, but the money was gone. The jury found a verdict for defendant, and the court unanimously denied a new trial. 298 § 1-53.] COMMON CAEKIBRS. * 274 to US entirely consistent with tlie general views assumed by Best, J. * 11. The general rule of law upon this point is well stated by Baron Parke}^ " The weight of authority seems to be in favor of the doctrine, that in order to render the carrier liable, after such a notice, it is not necessary to prove a total abandonment of that character, or an act of wilful misconduct, but that it is enough to prove an act of ordinary negligence, gross negligence in the sense in which it has been understood in the last men- tioned cases, [Batson v. Donovan, and Duff v. Budd.] And the effect of such notice is, that the carrier will not be responsible, at all events, unless he is paid a premium, — but still he under- takes to carry, — and is therefore bound to use ordinary care in the custody of the goods, and their conveyance to and delivery at their place of destination, and in providing proper vehicles for their carriage. And after such notice it may be that the burden of proof of damage or loss by want of such care, would lie upon the plaintiff." 12. This seems to be placing the effect of such notices upon a reasonable basis, and most of the American cases will be found to have adopted, in the main, similar views. The United States Supreme Court, in a case ^^ of great importance, assume this 15 Wyld V. Pickford, 8 M. & W. 443. Hall v. Cheney, N. H. Sup. Ct. June Term, 1857, 20 Law Eep. 16 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. This was a case where an express carrier, by special contract with the company, was allowed to carry a certain crate upon their boats, under the care and oversight of the express-man, with the express stipulation that all persons delivering parcels, to be carried by express, should be furnished with the following notice, annexed to the receipt or bill of lading executed for the goods ; and that it should also be annexed to his advertisements, published in the public prints, or elsewhere : " Take notice, William F. Harnden is alone responsible for the loss or injury of any articles or property, committed to his care, nor is any risk^ assumed by, nor can any be^ttached to, the proprietors of the steamboats in which his crate may be and is transported, in respect to it, or its contents, at any time." Mr. Harnden collected $20,000 in specie, in the city of New York, for the Merchants' Bank, Boston, and was transporting it to the bank, on board the Lex- ington, one of the company's boats, at the time it was burned in the Sound, through the gross mismanagement of the company's agents, and the specie lost. Mr. Justice Nelson, in giving the opinion of the court, said : " The special atrreement in this case under which the goods were shipped, provided, that they should be conveyed at the risk of Harnden, and that the respondents were not 299 *275 THE LAW OF RAILWAYS. [§ 133. ground, *in terms. The opinion of Mr. Justice Nelson is wor- thy of consideration upon this point. to be responsible to him, or to his employers, in any event, for loss or damage The language is general and broad, and might very well comprehend every de- scription of risk incident to the shipment. But we think it would be going further than the intent of the parties, upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for wilful misconduct, gross negli- gence, or want of ordinary care, either in the sea-worthiness of the vessel, her proper equipment and furniture, or in her management by the master and hands. This is the utmost effect that was given to a general notice, both in England and in this country, when allowed to restrict the carrier's liability, although as broad and absolute in its terms as the special agreement before us (Story on Bail- ments, § 570) ; nor was it allowed to exempt him from accountability, for losses occasioned by a defect in the vehicle, or mode of conveyance used in the trans- portation. Although he was allowed to exempt himself from losses arising out of events and accidents against which he was a sort of insurer, yet inasmuch as he had undertaken to carry the goods, from one place to another, he was deemed to have incurred the same degree of responsibility, as that which at- taches to a private person engaged casually in the like occupation, and was there- fore bound to use ordinary care in the custody of the goods, and in their deliv- ery, and to provide proper vehicles, and means of conveyance, for 'their trans- portation. This rule, we think, should govern the construction of the agreement in question." The same view is adopted in the following cases : Clark v. Faxton, 21 Wend. 153 ; Dorr v. N. J. Steam Nav. Co. 4 Sand. 136 ; Parsons v. Monteith, 13 Barb. 353 ; Stoddard v. The Long Island Railway, 5 Sand. 180 ; Fish v. Chapman, 2 ' Ga. E. 349. Most of the American cases have maintained the principle, that a carrier cannot, by special notices, brought to the knowledge of the 'owner of the goods, or by contract even, exempt himself from the duty to exercise ordinary care and prudence in the transportation of freight and baggage. Sager v. Ports- mouth, S. P. & E. Railway, 31 Maine R. 228; Camden & Amboy Railway v. BauldauflF, 16 Penn, R. 67 ; Laing v. Colder, 8 Barr, 479 ; Bingham v. Rogers, 6 Watts & Serg. R. 500. The case of Camden & Amboy Railway v. BaldauflP, was that of a German, who could not read English. The railway advertised that they would carry fifty pounds baggage ^or each passenger, and that passengers are " expressly pro- hibited from taking any thing, as baggage, but their wearing apparelj which will be at the risk of the owner." The plaintiff had, in a trunk with his ordinary baggage, two thousand one hundred and one five-franc pieces. He paid for extra weight, and gave it in charge of the proper servant of the railway. The trunk was lost. The court held the company liable on two grounds: 1. They have failed to show the manner of the loss, and the law presumes negligence, from the loss. 2. They have failed to show, that the contents of their notice came to the knowledge of the plaintiff, which leaves them liable, as insurers, at common law. 300 §133.] COMMON CARRIERS. * 276 * 13. But some of the later English cases, before the late stat- ute, the Railway and Canal Traffic Act of 1854," had departed In giving judgment, the court, Rogers, J., say : " They undertake to carry for hire, and by the very nature of their employment, to bestow, for the preservation of the goods, at least the ordinary care of a bailee for hire. From this duty I have no hesitation in saying, they cannot discharge themselves, even by a special agreement with the owner. Such a stipulation would be void, being against the policy of the law. There is no principle in the law better settled, than that whatever has an obvious tendency to encourage guilty negligence, fraud, or crime, is contrary to public policy. Such, in the very nature of things, would be the consequence of allowing the common carrier to throw off the obligation which the law imposes upon him, of taking at least ordinary care of the bag- gage,. or other goods, of a passenger. Under such a regulation, no man's prop- erty would be safe. Cole v. Goodwin, 19 Wend. 251 ; Atwood v. The Reliance Co. 9 Watts, 87." , And in The Penn. Railway v. McCloskey, 23 Penn. 532, the court say, in giv- ing judgment : " Assuming that a public company of carriers may contract for other exemption from liability, than those allowed by law, still such a contract will not exempt from liability for gross negligence." And in Baker v. Brinson, 9 Rich. 201, it is decided, that where a carrier limits his liability, by special con- tract, the onr»s is upon him tp show, that the loss is within the exception, and that he was guilty of no negligence. See also, to same effect, Graham & Co. v. Davis, 4 Ohio St. R. 362. See also Baldwin v. Collins, 9 Rob. (Louis.) R. 468. New- stadt ». Adams, 5 Duer, 43. " Post, § 135, and notes. In Austin v. The Manchester, S. & L. Railway, 11 Eng. L. & Eq. R. 506, the defendants let their trucks to the plaintiff, for the conveyance of certain horses, by the defendaiits' engines, along their railway, and delivered to the plaintiff a ticket, or notice, to the effect, " that the charge was for the use of the carriages, and the locomotive power only, and that the plaintiffs were to see to the efficiency of the carriages, before they allowed their horses, or live-stock, to be placed therein, that the defendants would not be responsible for any alleged defects in their carriages, unless complaint was made, at the time of booking, or before the same left the station, nor for any damages, however caused, to horses," &c. It was held that the plaintiff" could not recover for damage done to his horses, in the transportation, through the breaking of an axletree, which was attributable to the culpable n-egligenc* of the company's servants. CressweU, J., in delivering judgment, said ; " In the largest sense those words might exonerate the company for damage done wilfully, a sense in which it was not contended they were used, in the contract ; but giving them the most limited meaning, they must apply to all risks of whatever kind, and however arising, to be encountered in the course of the* journey, one of which is undoubtedly the risk of a wheel taking fire, owing to neglect to grease it. Whether that is called neg- ligence merely, or gross negligence, or culpable negligence, or whatever other epithet may be applied to it, we think it is within the exemption from responsi- bility provided by the contract." 26 301 * 277 THE LAW OF RAILWAYS. [§ 133. essentially from *the basis, upon which the earlier cases, in regard to notices, in that country, rested. It was held, too, in Chippendale v. The Lan. & Yorkshire Railway, 7 Eng. L. & Eq. K. 395, that in a case where the owner of cattle transported on defendants' railway, saw them put in the carriages, and signed a ticket, with this condition annexed, " The owner undertaking all risks of conveyance whatever," that there was no implied stipulation, that the carriage should be fit for the conveyance of the cattle. And in Carr v. same defendants, 14 Eng. L. & Eq. R. 340, (1852,) upon a similar contract, where plaintiff's horse was injured, by the horse-box being propelled against some trucks, through the gross negligence of the com- pany, it was held, (Piatt, B., hesitante,) that the company were not responsible. The grounds of the decision are stated very fully in the opinion of Parke, B. : " The jury have found that the defendants have been guilty of gross negligence, and that must be taken as a fact. In my opinion the owner of the horse has taken upon himself the risk of conveyance, the railway company being bound merely to find carriages and propelling power ; the terms of the contract appear to me to show this. The company say they will not be responsible for any injury or damage (howsoever caused) occurring to live-stock of any description, travel- ling upon their railway. This, then, is a contract by virtue of which the plaintifi" is to stand the risk of accident or injury, and certainly, when we look at the nature of the things conveyed, thure is nothing unreasonable in the arrangement. In the case of Austin u.'The Manchester, Sheffield & Lincolnshire Railway Com- pany, 5 Eng. L. & Eq. R. 329, the language of the contract was different from the present, but not to any great extent. [His lordship stated the ease^ In that case, the accident was occasioned by the wheels not being properly greased ; in the present case, the carriage that contained the plaintiff''s horse was driven against another carriage. We ought not to fritter away the meaning of contracts merely for the purpose of making men careful. That is a matter that we are not bound to correct. The legislature may, if they please, put a stop to contracts of this kind, but we have nothing to do with them except to interpret them when they are made." But the opinion of Baron Piatt seems to us far more consonant with reason and justice, and with the principle of the decided cases, both English and American. The learned Baron says, " The declaration states that the defend- ants were guilty of gross negligence, and that fact was proved. The gravamen of the charge is the gross negligence. [His lordship read the notice.] Now, un- doubtedly, since the establishment of railways, new subjects of conveyance have arisen. Formerly, horses were seldom carried, but now they are ordinarily con- " veyed by the trains. It is, therefore, said that new stipulations are necessary to guard carriers from the risks which are incidental to this new mode of convey- ance. 'It is suggested that the animal may be alarmed by the noise oPthe engine, by the speed of the carriages, and by various other causes, and that, unless we take upon ourselves the office of legislation, this ticket absolves the carriers from all responsibility. I own I am startled at such a proposition, and considering the high authority by which it is supported, I feel I ought to doubt and to distrust my own opinion. But I am bound to say, that I am not satisfied that the language of this ticket absolves the raihray company from all liability for damage. I cannot help 302 § 133.] COMMON CARRIERS. * 278 * 14. We have arranged these cases in a note, at the end of this section, as a remarkable illustration of the tendency of judicial thinking that the owner of the goods never dreamed of such a thing when he signed this contract. In truth, this accident had nothing to do with, the convey- ance of the horse. The accidents referred to are those which occurred whilst the article is in a state of locomotion. The cage of gross negligence, as it seems to me, is not pointed at by this contract." And in McManus i'. Lancashire & York- shire Kailw. 30 Law Times, 321, the same rule is maintained as in Chippendale V, Lon. & Yorkshire Railway, so late as January, 1858. In the late case of Wise v. The Great Western Railway, 36 Eng. L. & Eq. R. 574, where a horse was delivered to defendants to he carried to W., and the per- son delivering it signed a writing, agreeing to abide by a notice contained in it, that the directors would not be answerable for damage done to any horses con- veyed by the railway, and the horse reached the station at W. safely, but the company's servants either did not notice it, or forgot that the horse had arrived, and upon the plaintiff's calling for it, the next day, it was discovered in a horse- box on the siding, and found to have sustained serious injury, from cold, and re- maining in a confined position all night : Held, that the company were protected under the statute, by the signed contract. And it would seem, that in such case the company would not be liable independent of the contract, the first fault being, plaintiff's not^ being there to receive the horse, upon its arrival at the stfition. See ante, § 130. It does not seem to be regarded as important, that the owner of the goods should sign any writing, or indeed that he should even receive a printed ticket, or notice of terms of carriage ; but if he is, in any way, made aware of the terms, upon which the carrier expects to receive his goods, and consents to de- liver them, without the carrier, or some one authorized to act upon his behalf, distinctly receding from the' terms of the notice, he is bound by it. The York, Newcastle & B. Railway v. Crisp, 25 Eng. L. & Eq. R. 396. In the case of Walker v. The York & North M. Railway Co. 22 Eng. L. & Eq. R. 315, the owner of the goods distinctly informed the station-agent, that the company's notice was not binding upon him. Yet inasmuch as the notice itself stated, that neither the station-clerk, nor other servants of the company had any authority to alter or vary the terms of the notice, the court held the plaintiff bound by these terms, one of which was, that the company were not. to be responsible for the delivery of fish in any certain or reasonable time, nor in time for any market, nor for any loss or damage arising from any delay or stoppage, &c. The learned judge, at the trial, told the jury, that if the plaintiff had been served with the notice, and afterwards forwarded the fish, they ought to infer an agreement' on his part, to be bound by the terms of the notice, unless there appeared an unambiguous refusal on his part, to be bound by the notice, and an acquiescence by the company in that refusal. ' It was held by the full bench that the direction was right. See also MorviUe v. Great Northern Railway, 10 Eng. L. & Eq. R. 366 ; Willoughby v. Horridge, 16 Eng. L. & Eq. R. 437 ; 12 C. B. 742 ; Crouch v. London & N. W. Railway, 21 Law J. 207. 303 * 279-280 THE LAW OF EAIL-flfAYS. [§ 133. * administration, to bewilder and to delude tlie wisest and the most profound, when they suffer themselves to be seduced into the be- lief, that it is safe to follow any theory or abstraction, however spe- cious, a moment longer, than its results commend themselves to our sense of justice, certainly, after they begin most unequivocally to excite sentiments of a rhore painful character, as many of the Eng- lish decisions, upon the subject of carriers' exernption from liability, even for gross neglect, and wilful misconduct, could scarcely fail to do, when it is borne in mind that the entire business popula- tion of the realm almost was at the mercy of these same carriers. It is surely not to be regarded as matter of surprise, that the legislature felt compelled to interfere, to restore something of the reasonable responsibility of common carriers.^^ Under the late English Railway and Canal Traffic Act, if the ' carrier refuse to receive the goods, unless the owner assent to certain conditions which the judge trying the case considers reasonable, and the goods are left on these conditions, the carrier And the case of Fowles v. The Great Western Railway Co. 16 Eng. L. & Eq. R. 531, although determined upon a question of variance, clearly assumes the ground, that a carrier's notice will exonerate him from his general obligatioli. York, Newcastle & Berwick Railway v. Crisp, 25 Eng. L. & Eq. R. 396. But the late case of Hearn v. The Loudon & S. W. Railway, 29 Eng. L. & Eq. R. 494, (1855,) seems to manifest, in some respects, a disposition in the English courts to hold common carriers to something like reasonable accountability, which some of the later cases had apparently regarded as nearly hopeless, under their most extraordinary notices. But we shall refer to this case more a^ length under § 140, where the present state of the English law is stated. Many of the latter cases in this country seem still disposed to hold the oarrief to his common-law liability, unless he show a special contract to exonerate him from it, or a notice brought home to the owner of the goods, and assented to by him. Ante, § 132, n. 3 ; § 133, n. 16 ; and even in that case, he is still respon- sible for ordinary care. , And if a loss occur, in a case where the carrier is exempted, by special con- tract, from certain risks, the burden of proof is upon the carrier to show, that th^ loss occurred in consequence of such excepted risks. Davidson v. Graham, 2 Ohio St. R. 131. See also Slocum v. Fairchild, 7" Hill, 292; Whiteside v. Rus- sell, 8 Watts & S. 44 ; Brinson v. Baker, 9 Rich. 201. But it was held that where gold dust was received on board a steamboat, with express notice from the clerk of the boat, that he would receive it only upon ex- press condition that no charge was to,be made, and no responsibility incurred, and the dust was stolen from the boat, without any negligence on the part of the officers of the boat, the owners were not liable. Fay v. Steamer New World, 1 Cal. R. 348. 304 § 134.] COMMON CARRIERS. * 281 is not liable as a common carrier, but only upon the special undertaking.^^ SECTION XI. NOTICES AS TO ORDINARY AND EXTRAORDINARY RESPONSIBILITY OP CARRIERS. I. American tvriters and cases adopt this I 2. The English cases do not seetn to recog- distinction. i nize it. § 134. 1. Many of the American writers, and some of the American courts, point to a distinction between notices of carri- ers, which propose to exonerate the carrier from all liability, even for gross neglect, and possibly for positive misfeasance and wrong, and such as have reference only to exemption from that extraordinary responsibility, imposed by the common law, by which they become insurers.^ This distinction is pointed out by Prof. Greenleaf,^ and adopted by Mr. Angell in his treatise on Carriers.^ * And Prof. Parsons, in his treatise upon contracts has an elaborate and learned note upon the subject, in which he adopts 18 White V. Great Western Railway, 29 Law Times, 93. , } Farmers & Mechanics' Bank v. Champlain Transportation Co. 23 Vt. R. 186 -206, adopts the following language upon this subject : " But we regard it as well settled, that the carrier may, by general notice, brought home to the owner of the things delivered for Carriage, limit his responsibility for carrying cer- tain commodities beyond the line of his general business, or he may make his responsibility dependent upon certain conditions, as having notice of the kind and quantity of the things deposited for carriage, and a- certain reasonable rate of premium for the insurance paid, beyond the mere expense of carriage." 2 2 Greenl. Ev. § 215, where the author seems to put forth substantially the same view. " It is now well settled that a common carrier may qualify his liability, by a general notice to all who may employ him, of any reasonable requisition to be observed on their part, in regard to the manner of delivery and entry of par- cels, and the information to be given to him of their contents, the rates of freight, and the like ; as, for example, that he will not be responsible for goods above the value of a certain sum, unless they are entered as such, and paid for accordingly. But the right of a common carrier, by a general notice to limit, restrict, or avoid the liability devolved upon him by the common law on the most salutary grounds of public policy, has been denied in several of the American courts, after the most elaborate consideration." 3 Angell on Carriers, § 245. 26 * 305 * 282 THE LAW OF RAILWAYS. [■§ 135. fully the distinction, and arrives at the same conclusion here suggested.* 2. But the English cases do not seem to have brought out this distinction so clearly, as the American writers upon this subject. it seems to be supposed, by many of the English judges, and some of the late English cases seem to go that length, under their late statutes, (which we have referred to, § 133, and 140,) that there is no positive objection to recognizing the right of a common carrier, to stipulate for exemption from all liability, even for gross neglect, or positive misfeasance.^ SECTION XII. EBSPONSIBILITY FOR CARRIAGE BEYOND COMPANY'S KOAD. 1 . English rule to hold first company liable to the end of the route' 2. This ^ule not followed in, the American courts. 3. But company may undertake for whole route. 4. This is presumed when they are connected in business. 5. Case of refusal to pay charges demanded and return of goods before reasonable time. § 135. 1. The disposition of the English courts, since the esj • tablishment of railways, has seemed to be to regard parties who receive goods, and book them for a certain destination, as carri- ers * throughout the entire route.^ Since the first case which * 1 Parsons on Contracts, 711, n. (h.) 5 Maving v. Todd, 1 Starkie, 72. This was a case where the goods, while upon the premises and in the care of the carrier, had been destroyed by an acci- dental fire. It appearing that the carrier had so limited his responsibility that it did not extend to loss. by fire. Holroyd submitted whether defendants could exclude their responsibility altogether. This was going further than had been done in the case of carriers who had only limited their responsibility to a certain ampunt. Lord Ellenhorough, Ch. J. : " Since they can limit it to a particular sum, I think they may exclude it altogether, and that they may say we will have "nothing to do with fire." . Leeson w. Holt, 1 Starkie, 186, is similar. This was where the carrier had given notice that the species of goods for which the suit was brought, would be " entirely at the risk of the owners, as to damage, break- age," &o. Lord Ellenhorough, Ch. J., said, in summing up to the jury, " In the present case they (the carriers) seem to have excluded all responsibility \yhatso- ever, so that, under the terms of the present notice, if a servant of the "carrier had, in the most wilful and wanton manner, destroyed the furniture intrusted to him, the principal would not have been liable." ' Hodges on Railways, 615. 306 § 135.] COMMON CARRIERS. * 282 assumed this position,^ there has not been manifested any dispo- sition to recede from it.-^ And the English courts have extended the same rule to carriers in England, in the direction of Scotland where the goods are received and booked for points beyond the limits of England.* 2. But this rule has been very seriously questioned in this country. The general view of the American courts upon this subject, is, that in the absence of special contract, the rule laid down in the earlier English cases,^ that the carrier is only liable for the extent of his own route, and for the safe storage and de- livery to the next carrier, is the more just and reasonable one, and this is the doctrine which seems likely to prevail in this country, although there is no doubt some argument to be drawn from convenience in favor of the English rule.'' 2 Musciamp v. Lancaster & Preston Railway Co. 8 M. & W. 421. 3 Watson V. Ambergate, Not. & Boston Railway, 3 Eng. L. & Eq. R. 497 ; Scotthorn v. South Staffordshire Railway, 18 Eng. L. & Eq. R. 553; Wilson v. York, N. & B. Railway, 18 Eng. L. & Eq. R. 557. 4 Crouch V. London & N. W. Railway,. 25 Eng. L. & Eq. R. 287. 6 Garside v. Trent & Mersey Navigation Co. 4 T. R. 581. 6 Farmers & Mechanics' Bank v. Ch. Transportation Co. ^6 Vt- R. 52; 18 Vt. R. 131 ; 23 Vt. R. 186 ; Van Santvoord v. St. John, 6 Hill (N. T.) R. 158 ; Hood u. New York & N. H. Railway, 22 Conn. R. 1 ; 8. c. 22 Conn. R. 502; Nuttting V. Conn. R. Railway, 1 Gray, R. 502 ; Jenneson v. Camden & Amb. Railway, Dist. Court Phil. 4 vol. Am. Law Reg. 234. Stroud, J., in this last case, reviews all the cases upon the subject, and concludes, that in this countxy the courts have held,"that when goods are delivered to a carrier marked for a partic- ular place, but unaccompanied by any other directions for their transportation and delivery, except such as might be inferred from the marks themselves, the carrier is only bound to transport and deliver them, according to the established usage of the business in which he is engaged, whether thatt usage were known to the other party or not. The learned judge, in delivering his opinion, said: "The only question is whether this receipt contained an undertaking by the defendants to carry the chest beyond the terminus of their line, or, rather, beyond the place named in the receipt, the ' office of the defendants, in New York.' - "The language of the receipt is plain and positive — 'which we promise to deliver at our office in New York, upon payment of freight therefor at the rate of 26 1-4 cents per 100 lbs.' For what purpose the memorandum, 'to be shipped for Camden, Ohio, from New York,' was made, we are not called upon to deter- mine. We do determine that it did not enlarge the defendant's promise, as set forth in the body of the instrument ; that it does not import an agreement by the defendants, that they would transport the chest to Camden, Ohio, and then de- liver it to the plaintiff, which is the aUegation in the declaration. It was ad- 307 *383 THE LAW OF EAILWATS. [§ 135. *3. There are many cases, where the American cburts have held the carrier liable beyond the limits of his own route, upon mitted by the plaintiff's counsel that the chest was safely carried to New York that it had been put in the way of transportation to its destination, by delivery to a proper railway transportation coaipany for that purpose, but what became of it afterwards could not be ascertained. " Questions very similar to that which has here arisen, have occurred several times in England, and in some of. our sister states. Muschamp v. The Lancaster & Preston Junction Railway Company, 8 Mees. & Wels. 421, was the case of a parcel delivered fit Lancaster, addressed to a place in Derbyshire, beyond the line of the Lancaster and Preston Railway. Baron Rolfe, before whom the cause was tried, told the jury, that a carrier who takes into his care a parcel directed to a particular place, and does not by positive agreement limit his responsibility to a part only of the distance, undertakes prima facie to carry the parcel to its destination, and that the rule was not varied by the fact that that place was be- yond the limits within which the carrier professed to carry. This ruling was sanctioned by the court in banc. " In a subsequent case, Watson i.. The Ambergate, Nottingham & Boston Rail- way C(ftnpany, 3 Eng. Law and Eq. R. 497, the decision in Muschamp v. The Lancaster, &c. was approved. " In this country, the courts have held, that when goods are delivered to a carrier, marked for a particulai^ place, but unaccompanied by any other direc- tions for their trapsportation and delivery except such as might be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business in which he is engaged, whether that usage were known to the party from whom they were received or not. Van Santvoord v. St. John, 6 Hill (N. Y.) R. 15f ; Farmers and Mechanics' Bank v. Champlain Transportation Co. 18 Vt. R. 140, and 23 ib. 209. "In Nutting v. Connecticut River Railroad Co. 1 Gray, 502, a receipt was given of this description : ' Northampton, Mass. received of E. Nutting, for trans- portation to New York, nine boxes planes, marked,' &e. Two" of these boxes were lost between Springfield, Mass. and New Haven, Conn., being beyond the terminus of the defendants' road. No connection in business was shown to exist between the defendants and the proprietors of the connecting road, nor was pay taken for the transportation beyond Springfield, which was the terminus of the defendants' road. " The Supreme Court of Massachusetts held, that the true construction of this contract was, that the goods should be safely carried to the terminus of the de- fendants' road, and there delivered to the carriers on the connecting road, to be forwarded to their proper destination. This decision was made upon a case stated. Muschamp v. Lancaster & Preston Junction Railway, 8 M. & W. 421, was cited on behalf of the plaintiff, but the court disapproved of that 'decision, and held that, to bind a company under the circumstances of this case, the bur- den was upon the plaintiff to show a special contract by the company to carry the goods beyond the terminus of its own railway. There is another case which 308 § 135.] COMMON CARRIERS. * 284 the * ground of a special undertaking, either express, or implied, but whether any such contract exists is regarded as a matter to be determined, from aU the facts and attending circumstances of the case, and will more generally be an inference for the jury, than the court, unless it depends upon the effect of written stipu- lations, and even then will often be affected, more or less, by at- tending facts and circumstances.'' 4. The American cases upon the subject, with rare exceptions, recognize the right of a railway company to enter into special contracts to carry goods beyond the line of their own road. And where different roads are united, in one continuous route, such an undertaking, in regard to merchandise, received and booked for any point upon the line of the connected companies, is almost •was cited on the argument before us, by the counsel of the defendant. In this it •was decided by a divided court, that, where a passenger paid the fare to a point several miles beyond the terminus of the defendants' railroad, receiving frfim the conductor of the cars a ticket in this form : ' New Haven and Northampton Company — Conductor's Ticket — New Haven to CoUinsville by stage from Farm- ington,' — that the company was not responsible for any injury sustained by the passenger on the stage road between Farmington and CoUinsville. The case was tried twice. A new trial was granted after the first, trial, on a ground corre- sponding with that taken in Nutting v. The Connecticut River Railroad Company, 1 Gray, 502 ; but, after the second trial, in which the verdict was, as it had been on the first, for the plaintiff, the court, in sfetting aside the second verdict, rested its opinion on the ground that the conductor had no authority to bind the com- pany to carry beyond the limits of its railway, because. the company itself could not make any such binding contract. Hood v. N. Y. & N. H. Railroad Co. 22 Conn. R. 1, 502. " The case before us does not require, in support of the conclusion to which we have come, the adoption of the rulings in any of the cases in our sister states, which have been referred to. The nonsuit on the trial was placed distinctly upon the principle that the evidence did not support the declaration ; that the allegata and probata did not agree. The declaration alleged that the goods were to be carried from Burlington, New Jersey, to Camden, Ohio; whereas the receipt was express, that they were to be delivered at the company's office at New York, and the charge of freight was to New York only, and not beyond." 7 Weed V. Sar. & Sch. Railway, 19 Wend. 534 ; Bennett v. Filyaw, 1 Flor. R. 403. The Laurens railway company gave receipts for cotton " to be delivered on presentation of this receipt at Charleston." The cotton reached the terminus of the Laurens railway in safety, and, there, without bulk being broken, was delivered in the same cars to the Greenville & Columbia railway to be carried on. It was afterwards lost. Held, that the Laurens railway company were liable their undertaking being special to carry to Charleston. Kyle v. Laurens Railway, 10 Rich. (S. C.) R. 882. 309 * 285 THE LAW OF RAILWAYS. [§ 135. matter of course. It is, we think, the more general understanding, upon the subject, among business men and railways, their agents and servants.^ And this is so, although the connection among *such roads is only temporary, and merely incidental, for the convenience of transacting business, one road acting sometimes as agent for other roads, by their procurement or adoption.^ 8 Noyes v. Rut. & Bur. Railway, 27 Vt. R. 110; Wilcox v. Parmelee, 3 Sand. 610 ; Ackley v. Kellogg, 8 Cowen, 223. Note of Editors to Am. Law Reg. 4 vol. 238, et seq. where this subject is very elaborately and very satisfactorily discussed. See Bradford v. S. C. Railway, 7 Rich. 201 ; Ma. Mutual Ins. Co. v. Chase, 1 E. D. Smith, 115 ; Mallory v. Bennett, id. 234. In a late English case, Collins v. The Bristol and Exeter Railway, 36 Eng. L., & Eq. R. 482, a carrier of goods had intrusted them to the Great Western Rail- way, to be carried from Bath to Torquay. To accomplish the transit, (he good^ must pass over three railways, the defendants' company being one, and the goods were burned upon their line. The receipt-note, or bDl of lading, given by the Great Western Company, specified, that the company were not to be answerable for loss by fire. The carriage was paid, for the whole distance, to the Great Western Company. The defendants entered into a rule, at the trial, to take no advantage of the action not being brought against ^he Great Western Company. Alderson, B,, said, "We" think the contract "for the conveyance of the van of furniture was one contract, and that it was made with the (Jreat Western Com- pany alone. They contracted, in express terms, upon the face of the receipt- note, to carry the goods from Bath to Torquay. We think, therefore, there was a contract by the Great Western Company, to carry the goods ?he whole way to Torquay, and, of course, the condition as to fire extends to, and protects from such loss, during the entire journey. And this is in exact conformity with the judgment of this court, in Muschamp v. The Lancaster & Preston Junction Rail- way Company, which has been frequently confirmed and acted upon in all the courts of Westminster Hall. We, therefore, think that no action is maintainable against any of the companies, and a nonsuit ought to be entered." But this case is reversed in the Exchequer Chamber, November, 1856, and notice of appeal to the House of Lords, given 28 Law Times, 260 ; s. c. 38 Eng. L. & Eq. 593. 9. Wibert v. New York & Erie Railway, 2 Kernan, 245, 255. In this case. Hand, J., said, " There has been some question how far one railroad can be sued for the negligence of another, where the transportation is continuous and entire over their respective roads. See Weed v. Saratoga & Sch. Railway, 19 Wend. 534; St. John v. Van Santvoord, 25 id. 660; s. o. 6 Hill, 157; Muschamp u. Lancaster Railway, 8 M. & W. 421 ; Crouch v. London & N. W. Railway Co. 14 C. B. 255 ; 1 Parsons on Cont. 686-7, and notes ; Champion v. Bostwick, 18 Wend. 175 ; Fromont w. Coupland, 2 Bing. 170 ; Russell v. Austwick, 1 Sim. R. 52. In some 'of the cases above cited, the corporation, to whom the property was first delivered, was held liable for the default of other corporations, over whose lines the property was or should have been carried, and where a carrier is in the 310 § 135.] COMMON CARKIERS. * 286 And if * it be the usual course of the carrier's business to for- ward goods beyond his route by sailing vessels, he is not liable, habit of receiving and forwarding goods directed to any particular place, an agreement on his part to take them has been presumed, but where their opera- tions are entirely disconnected there is no partnership. 6 Hill, 157. But in many cases in which different railroad corporations cannot be considered by the public strictly as partners, they may and often do act as agents of each other." In 23 Vt. R. 209, it was said, " There has been an attempt to push one. depart- ment of the law of carriers into any absurd extreme, as it seems to us, by a mis- application -of this rule of the carrier being bound to make a personal delivery. That is, by holding the first carrier upon a route consisting of a succession of car- riers, liable for the safe delivery of all articles at their ultimate destination. Mus- champ V. The L. & P. Railway Co. 8 M. & W. 421, is the only English case much relied upon in favor of any such proposition, and that case is, by the court, put upon the ground' of the particular contract in the case ; and also that " All con- venience is in favor of such a rule,'' and " there is no authority against it," as said by Baron Rolfe, in giving judgment. St. John u. Van Santvoord, 25 Wend. 660, assumed similar ground. But this court, in this same case, (16 Vt. 52,) did not consider that decision as sound law or good sense ; and it has since been reversed in the Court of Errors, Van Santvoord v. St. John, 6 Hill, 158, and this last decision is expressly recog- nized by this court. 18 Vt. 131. Weed w, Saratoga & S. Railway Co. 19 "Wend. 53-i, is considered by many as having adopted the same view of the subject. But that case is readily reconciled with the general rule upon the subject, that each carrier is only bound to the end of his own route, and for a delivery to the next carrier, by the consideration that in this case there was a kind of partnership connection between the first company and the other companies, constituting the entire route ; and also that the first carriers took pay and gave a ticket through, which is most relied upon by the court. But see 'opinion of Walworth, Ch., in Van Santvoord v. St. John, 6 Hill, 158. And in such cases, where the first com- pany gives a ticket and takes pay through, it may be fairly considered equivalent to an undertaking to be responsible throughout the entire route. The case of Bennett v. Filyaw, 1 Florida, 403, is referred to in Angell on Carriers, § 95, u. 1, as favoring this view of the subject. The rule laid down in Garside v. Tr. & M. Nav. Co. 4 T. R. 581, that each car- rier, in the absence of special contract, is only liable for the extent of his own route, and the safe storage and delivery to the next carrier, is undoubtedly the better, the more just and rational, and the more generally recognized rule upon the subject. Ackley v. Kellogg, 8 Cow. 223. This is the case of goods carried by water from New York to Troy, to be put on board a canal boat at that place, and forwarded to the north, and the goods were lost by the upsetting of the canal boat, and the defendants were held not liable for the loss beyond their own route. The cases all seem to regard this as the general rule upon the subject, with the exception of those above referred to; one of which (8 M. & W. 421) considers it chiefly a matter of fact, to be determined by the jury as to the extent of the undertaking; one (25 Wend. 660) has been disregarded by this court, and 311 *287 THE LAW OF RAILWAYS. [§ 135. for not forwarding a particular article by steam-vessel, unless the direction to do so be clear and unambiguous.^" 5. In a very late case in the Court of Exchequer,' ' the plaintiff "sent a parcel by defendants, to " Reynolds', Plymouth," who took it to the end of their route, and then passed it on by another railway, as their agents, to the house of Reynolds, and demanded 2s. Sd. for its carriage. Payment of this sum was refused, and Is. 6d. only offered. On the morning of the next day the parcel reversed by their own Court of Errors,'(6 Hill, 158) ; one (19 Wend. 534) is the case of ticketing thi-ough upon connected lines ; and one (!' Florida, 403) I have not seen." See also Nutting v. Conn. Kiver Railway, 1 Gray, 502, and Elmore V. Naugatuck Railway, 23 Conn. E. 457. One company chartering one of their boats to another company for a single trip, but retaining the charge of it and of navigating it, were held liable to a passenger for the loss of his baggage. Camp- bell V. Perkins, 4 Selden, 430. In Foy v. Troy & Boston Railw. 24 Barb. 382, it was held, that where goods were received by defendants at Troy, consigned to a person at Barlington, Vermont, it will be understood, in the absence of any proof to the contrary, as an undertaking to deliver the goods in the same condi- tion as when received at the place of destination. And it is said in this case, that where property is so consigned, and is to pass over more than one road, that it is not the'duty of the owner, in case of injury to his goods, to inquire how many different companies make up the line between the place of shipment and tlie place of delivery, or to determine, at his peril, which company was liable for the injury. It is also said here, that if the company receiving freight for transporta- tion desires to limit its responsibility to injuries occurring upon its own road, it should provide for such limitation in its contract. In a late English case, Willey V. The West Cornwall Railway, 30 Law Times, 261, the same propositions are maintained, as in the case last cited, with the exception of the one last ruled, which did not arise. It is also said here, that the company are as much bound by a contract to carry beyond their own route, where the transportation is partly by water, as if it were all by rail, and that the company cannot defend upon the ground that a contract to carry beyond their own route is ultra vises. 10 Simkins v. Norwich and New London Steamboat Co. 11 Cush. R. 102. '1 Crouch V. Great Western Railway, 29 Law Times, 354. It is here held, that if a carrier contracts to carry goods to, and deliver them at a particular place, his duty at that place is precisely the same, whether his own conveyance goQS the entire way, or stops short, at an intermediate place, and the goods are conveyed by another carrier; and the carrier, or his clerk, at the place of destination,. is the agent of the original carrier for all purposes connected with the conveyance, and delivery and dealing with the goods as his own clerk would have been at the place where his own conveyanbe stops. Bramwell, B., who dissented from the decision in this case, says, in regard to the case of Scotthorn v. South Staffordshire Railway, 8 Exch. 34,1, supra, post, § 137, "I reserve to myself the right to question its correctness on a fitting occa- sion." 312 § 186.] COMMON CAKMEUS. 288 was returned to London, and on that day the consignee sent to pay the 2s. 3d. under protest, and obtain the parcel. He then made search for it in London and elsewhere, but it could not be found, and he brought this action for a conversion. The jury found a tender of the 2s. 3d. and a demand of the parcel, in a reasonable time, and that the parcel was returned to London be- fore a reasonable time, and a consequent conversion. It was held that the facts justified the finding. SECTION XIII. POWER OF COMPANY TO CONTRACT TO CARRY BBYOND ITS OWN LIMITS. 1 . No doubt existed in regard to this power until very recently. 2. Receiving freight across other lines and giving ticket through. 3, 4, and 5. Cases reviewed upon this point. § 136. 1. It was for many years regarded as perfectly settled law, that a common carrier which was a corporation chartered for purposes of transportation of goods and passengers between certain points, might enter into a valid contract to carry goods delivered to them for that purpose, beyond their own limits.^ Most of the American cases do not regard the accepting a parcel, marked for a destination beyond the terminus of the route of the first carrier, as primd facie evidence of an undertaking to carry * through to that point. But the English cases do so construe the implied duty resulting from the receipt.^ 2. But the cases, until a very recent one,^ do hold, that a rail- ' Ante, § 135, and cases there cited; Moore v. Michigan Central Railway, 3 Mich. R. 23. 2 Ante, § 135, and notes. Fairchild v. SlocUm, 19 Wend. 329. 3 Hood V. New York and New H. Railway, 22 Conn. R. 502. See Elmore v. Naugatuck Railway, 23 Conn. R. 457. And in Naugatuck Railway v. Waterbury Button Co. 24 Conn. R. 468, it was held that a provision in the plaintiff's charter authorizing them to " make any lawful contract with any other railroad corpora- tion, in relation to the business of such road," only extended to contracts for the common use of such other roads, as lay within the limits of plaintiffs' charter, and that it did not enable the company to enter into a contract to carry freight to the city of New York, either upon other railways or steamboats, and that such con tract could not be inferred from the course of plaintiffs' business, and that bav- in" carried the goods to the end of their route and delivered them to the next carrier in the line of their destination, they were no further liable. 27 813 * 289 THE LAW OF RAILWAYS. [§ 136. way company may assume to carry goods to any point to which their general business extends, whether within or without the particular state, or country of their locality.* And it has gener- ally been considered, both in this country and in the English courts, that receiving goods destined beyond the terminus of the particular railway, and accepting the carriage through, and giv- ing a ticket or check through, does import an undertaking to carry through, and that this contract is binding upon the com- pany. 3. The case of Hood v. The New York and New H. Railway, assumes the distinct proposition that the conductor could not bind the company by such contract, because the company had no power to assume any such obligation. The case is not attempted to be maintained upon the basis of authority, but upon first principles, showing therefrom, the innate want of aut;hority in the company. It must be admitted the reasoning is specious ; so plausible indeed that if the matter were altogether res Integra, it might be deemed sound. 4. But it must be remembered that in the construction of all legislative grants, many things have to be taken, by implication, as accessory to the principal thing granted. And if we are not allowed to assume such indispensable incidents, as are necessary to the exercise of the powers conferred, in such a manner, as to accomplish the main purpose, in a reasonable and practicable mode, we shall necessarily be led into inextricable embarrass- ments. Hence we conclude this case may have assumed possi- bly too narrow grounds, and such as might render the principal grant of the * company to become common carriers of freight and passengers, from New York to New Haven, less useful to the public, consistently with the security of the company, than the circumstances required. The strict and undeviating requirement in all cases, that aU railways shall be restricted in their contracts for transporting persons, parcels, baggage, and goods, to the line of their own road, and a safe delivery to the next carrier, and that nothing like copartnership in the business of a particular route, consisting of different companies, could exist, would cer- tainly be throwing serious hinderances in the way of business, without any adequate advantage.* * Ante, § 135, and notes. 314 § 136.] COMMON OAERIBKS. * 289 5. And it was held in a recent case by the Supreme Court of Vermont, that railway companies, as common carriers, might make valid contracts to receive freight at, or to convey it to points, beyond the limits of their own road, and thus become liable for the acts or neglects of other carriers, not under then- control ; and that in regard to matters not altogether beyond the general objects of their incorporation, and which, upon a liberal construction, might fairly be considered as embraced within them, it was not competent for the company to adopt the acts of their agents and officers so long as they proved beneficial, and when they proved otherwise, shield themselves from responsibil- ity, by resorting to a more limited and literal construction of then- corporate powers.^ 5 Noyes v. The Rut. & Bur. Railway, 27 Vt. R: 110. The grounds of the de- cisioa are thus stated : " It seems to be now well settled that railway companies, as common carriers, may make valid contracts to carry beyond the limits of their own road, either by land or water, and thus become liable for the acts and ne- glects of other carriers, in no sense under their control. Musohamp v. L. & P. Junction Railway Co. 8 M. & W. 421 ; Weed v. Saratoga & Schenectady Rail- way Co. 19 Wend. 534; Farmers & Mechanics' Bank v. Champ. Trans. Co. 23 Vt. 186. " It has never been questioned that carriers, whether natural or artificial per- sons, might by usage or contract bind themselves to deliver parcels and merchan- dise beyond the strict limits of their line, in town and country ; and in such case could only exonerate themselves by a personal delivery. 23 Vt. 186, and cases there cited. " It seems to us, in principle, that these two propositions control the present case ; for if a railway company may contract for carrying merchandise and par- cels beyond the limits of their line, where the carriage is by porters, stages, by steamboats or other water-crafl, or by other railways, and this is to be justified upon the ground of usage and convenience, or common understanding and con- sent, the same rule of construction must equally extend to contracts to receive freight at points on the line before it reaches the company entering into the con- tract. It may be true, in one sense, that this is extending the duties and powers of the company beyond the strictest interpretation of the words of their charter. But the time is now past, when, as between the company and strangers, any such literal interpretation of the charter is attempted to be adhered to. It is true that such corporations, even as to strangers, are not allowed to assume obligations altogether beyond the general objects of their incorporation, as if they should assume to build steamboats, or other railways, perhaps. But within the general business of their creation, a very considerable latitude is allowed in contracts with strangers. This is done for the advantage of the company, as well as oth- ers and to avoid embarrassments in the common business of life, which must be constantly liable to occur upon any such limited construction of the powers of 315 '290-291 THE LAW OP EAILWATS. [§ 137. *SECTION XIV. AUTHORITY OF THE AGENTS AND SERVANTS OF THE COMPANY. 1. Board of directors have same power as company, unless restricted, 2. Other agents and servants cannot bind the company beyond their sphere. 3. Owner may countermand destination of goods, through proper agent, 4. But an agent who assumes to bind the com- pany beyond his sphere, cannot. 5. Batijication of former similar contracts, evidence against company, 6. Notice by company of want of authority in servants, if known, will excuse them, 7. Illustrations of the rule. 8. Servant may bind company, even when he disobeys their directions, 9. Company responsible for the servants of companies. § 137. 1. As the entire business of railways is of necessity transacted through the instrumentality of agents, the extent of their authority becomes a serious and important inquiry, as well for the stockholders as the public. As a general rule it may be safely affirmed that the board of directors have all the power which resides in the corporation, subject to such restrictions only, * as are imposed upon them by the charter and by-laws of the corporation. 2. The other agerits of the company are confined to their sev- eral spheres of operation. Thus station agents, who receive and forward freight, have power to bind the company, by a contract, that the goods shall be forwarded to a point, beyond the termi- nus of the company's road, (on the line of another railway,) before a particular hour, and this it would seem, notwithstanding corporations, as is contended for by the plaintiffs below. These corporations are now held liable for a nuisance, in obstructing highways ; — for damages, in conse- quence of a departure from the ordinary and safe mode of constructing their em- bankments, although attempted in that form to aid a manufacturing interest, by making the embankment serve the double purpose of a dam and embankment for the track of the road; Ante, § 125, note 1 ; — and in many other cases, where, if the stookholdera had interfered, in the first instance, the agents of the company would have been restrained from doing the acts in the name of the company. But if the corporators acquiesce in the extension of the business of the company, even beyond the strict limits of its charter, upon the most literal interpretation, and strangers are thereby induced to contract, upon the faith of the authority of the agents of such companies, the companies are not at liberty to repudiate the authority of such agents, when their transactions prove disastrous." And the principle of this case is maintained in Hart v. Rensselaer & Sar. E. 4 Selden, 37 1 Schroeder v. Hudson River R. 5 Duer, 55. 816 § 137.] COMMON CARRIEKS. * 291 a general notice has been published, that the company would not be responsible for forwarding goods beyond the terminus of their own road.i So, too, it has been held to be a proper question to submit to the jury, under proper instructions, whether a particu- lar servant, or officer, had not, under the circumstances, authority to bind the company.^ 3. So, too, it would seem, that any one having put goods, or baggage, upon the company's trains, or into their custody, is at liberty, at any time, to alter its destination, or resume his cus- tody of it, unless indeed it had been packed with other mer- chandise where it could not be removed, without irtireasonable expense ; and the station agent, who receives the goods, or bag- gage, is competent to bind the company, by receiving a counter- mand, or new directions, to which he assents,^ as being in the line of his employment. His assent and promise to execute the order, may be regarded as evidence tending to show that th* order was given to the proper person. 4. But where an agent of a railway company assumes to make a contract, in relation to the business of the company beyond the line of his ordinary employment, and especially where it is 1 Wilson V. York, Newcasde & Berwick Railway, 18 Eng. L. & Eq. E. 547, in note. This was a case at Nisi Prius, before Jervis, Ch. J. The refusal of the station master, or of any one, to whom he should refer the pajty, to deliver goods in his custody, at the station, will bind the company, and if done without proper excuse, will render them liable in trover. Rooke v. Midland Railway, 14 Eng. L. & Eq. E. 1 75. 2 Scotthorn v. South Staffordshire Railway, 18 Eng. L. & Eq. R. 553 ; Schroe- der V. Hudson River R. 5 Duer, 55. 3 Same case, where Martin, B., said : " A carrier is employed, as bailee of another's goods, to obey his directions concerning them ; and I have no hesitation in saying, that generally, at any period of the transit, he may have them back. I think that if a traveller by railway is dissatisfied with his mode of travelling, he may at any point stop and require that his luggage should be delivered up to him. The station clerk had power to receive the countermand ; and a loss having ensued from an omission to comply with that countermand, th^defendants are bound to make that loss good." So also where goods, carried by one company, arrive at the station of another company, the place of their destination, but that company refuse to deliver them to the owner, he offering to pay all charges, on the ground that their contract with the other company, to deliver goods for them, does not include this class, being timber, and that they shall therefore require the goods to be taken back upon the line of the other company, it was held to be a conversion. Rooke v. Midland Railway, U Eng. L. & Eq. R. 175. 27* 317 * 292-293 THE LAW OF RAILWAYS. [§ 137. in contravention of the common course of the business of the company, or of their published rules and regulations, it will not bind the * company.* Thus it was held that a surgeon, who am- putated the limb of a passenger, who was injured by the moving of a track upon the railway, and the station agent had directed, that " every attention " should be paid to such person, in conse- quence of which the surgeon performed the operation, could not recover of the company for his services, on the ground, that it was not incident to the employment of such agent, to bind the company by such contract.^ 5. But tl*e fact that the company had ratified similar contracts made, by this same agent, might be evidence tending to show, that they had given this particular servant authority to make such, or similar contracts, but not, that they had given authority to all their servants to do so.^ 6. If the company give notice that they will not be bound by the delivery of goods, " unless they were signed for by tljpir clerks or agents," and this is known to the plaintiff, the company are not bound by a delivery in a different mode.^ 7. But where trees were carried upon the company's trains, and * the owner obtained leave to set them temporarily in the company's grounds, by permission of the station clerk, or of the general superintendent of the company, and both these persons subsequently refused to let the owner take them away, where- * Elkins V. Boston & Maine Railway, 3 Foster, 276. In this case the ticket- master and station agent of defendants received some parcels of goods of the plaintiflf, and promised to forward them by the next passenger train, and the goods were lost. The plaintiff proved that in two instances, in the two years preceding, goods had been forwarded, by the passenger trains, under the charge of some of defendant's servants, but it did not appear, that freight was paid the company, or that they in any other way assented to it. See also Norwich & Wor- cester Railway u. Cahill, 18 Conn. R. 484, where it is held the declaration of a director is good evidence of contract to bind the company. But testimony of this character is of almost infinite variety, in regard to its force and effect, and much of it, as- in the case first cited in this note, is too remote to be much ground of reliance. To bind the company, the testimony should show a usage or continuous practice. 5 Cox V. Midland Counties Railway, 3 Exch. 268 ; Stephenson v. N. Y. & Har- lem Railway, 2 Duer, 341. 6 Slim V. Great N. Railway, 26 Eng. L. & Eq. R. 297. The authority of the agent to bind the carrier, is always a question of fact dependent upon the attend- ing circumstances and the course of business. Thomson v. Wells, 18 Barb. 500. 318 § 138.] COMMON CARRIERS. '294 upon he applied to the managing director of the company, who also refused, and he brought trover against the company, the court of Exchequer Chamber held it would lie.^ But where the servant of the company arrests a passenger for not paying fare, the company are not liable.^ 8. And it makes no difference in regard to binding the com- pany that the agent disobeyed the direction of his superior, if he was acting within the scope of his employment at the time.^ 9. And in the case of a common carrier of goods, he is liable for the act of all the servants of his sub-contractor.^'' SECTION XV. LIMITATION OF DUTY, BY COURSE OF BDSINKSS. 1 . Carriers bound only to the extent of their usage, atid course of business. 2. This question arises only, when they refuse to carry. 3. Carriers and some others are bound to serve all who apply. 4. Duty under English Carriers' Act. § 138. 1. It seems to be an admitted principle in the law of carriers, that their obligations and duties may be restricted by the course of their business. They may limit it to the carrying of particular commodities. The business of common carriers is not one imposed upon any particular person, natural or artificial, and any * one may undertake it, at will, and by consequence may enter upon so much of the entire business, as he chooses-.^ 1 Taff Vale Railway v. Giles, 22 Eng. L. & Eq. R. 202. The court say, " it is the duty of the company to have some person clothed with discretion, to meet any exigency that may arise, and to grant any reasonable demand." 8 Eastern Counties Railway v. Broom, 6 Railw. C. 743 ; Roe v. Birkenhead Railway, 6 Railw. C. 795. 9 Philadelphia & R. Railway v. Derby, 14 How. 468, 483. Nor will it excuse the company from liability because the disregard of duty on the part of the agent, was wilful. Weed v. Panama Railw. 5 Duer, 193. 10 Machu V. The London & Southwestern Railway, 2 Exek. R. 415 ; s. c. 5 Railw. C. 302. This case was where the company employed an agent to deliver parcels in London. They had been accustomed to send a delivery ticket with each parcel, which was headed with the name of the company, and signed by the party employed by them to make the delivery, and contained the names of the porters of that party ; one of which porters stole the parcel in this case. Held, that such porter is to be regarded as the company's servant, within the Carriers' Act. 1 Farmers & Mechanics' Bank v. Champlain Transportation Co. 23 Vt. R. 186. 819 * 294 THM LAW OE RAILWAYS. [§ 138. 2. But this distinction is of no practical importance, except where carriers refuse to carry certain kinds of goods, or to carry them, except upon certain conditions excusing their general com- mon la-w responsibility, and suit is brought for the refusal. In such cases it is believed the carrier is not liable for an absolute refusal to carry goods, wholly out of the range of his ordinary business, unless where the carrier is a corporation chartered, with the powers and for the purpose, of becoming common carriers in general, and in such cases even, it seems the better opinion, that unless restrained by the express terms of their charter, such com- panies have the same liberty, as to the extent of their business, as natural persons.^ In this last case the language, of Parke, B., is pertinent. " The question is whether the defendants are, under the circumstances of this case, bound to carry coals from Milton to Oakham. If they are merely in the situation of car- riers, at common law, they are not bound, for they have never professed to carry coals from, or to, those places. At common law a carrier is not bound to carry for every person tendering goods of any description, but his obligation is to carry according to his public profession." He then cites at length the words of Holt, Ch. J., in Lane v. Cotton, 12 Mod. 484, in regard to the genersd duty of aU, who undertake to serve the public in any particular business, to serve aU who come, citing the cases of blacksmiths,^ innkeepers,* and common carriers. Opinion of Daniel, J., in New J. Steam Navigation Co. v. Merchants Bank, 6 How. R. 344. If any illustration or authority were needful upon this point, it might very readily occur to any one, reflecting upon the subject. An express company are no doubt liable, as common carriers, but are not compellable t» carry such articles as are never expected to be sent, or carried, by express, as for instance articles of great bulk and weight. It would certainly be a novelty to require an express company to transport coal, salt, iron, and lead in pigs, &c. But practically the increased price of this mode of transportation will protect them, from these extraordinary demands, and they have the right also to demand the protection of the law as well as other persons from liability to such intrusion. 2 Johnson v. Midland Railway, 4 Exch. R. 367 ; 6 Railw. C. 61 ; Sewall v. Allen, 6 Wend. 336 ; Citizens Bank v. Nantucket Steamboat Co. 2 Story, 16. = Keilway, 50, pi. 4, cited in note to Lane v. Cotton, 12 Mod. R. 484, and in note to Parsons v. Gingell, 4 C. B. 555. * Dyer, 158, Godb. 346. But it seems to be conceded by the learned baron here, that the instance, which he cites of the smith being bound to shoe all the horses of the realm which come to him, is at least rendered questionable, by the note to Parsons v. Gingell, 4 C. B. 545. And this liability to action for refusal to 320 § 139.] COMMON CARRIERS. '295 * 3. In the case of an innkeeper, there is no question, that the action will lie. So also in the case of a carrier, and that arises from the public profession which he has made. A person may profess to carry a particular description of goods only, for in- stance, cattle or dry goods, in which case he could not be com- pelled to carry any other kind of goods ; or he may limit his obligation to carrying from one place to another ; as from Man- chester to London, and then he would not be bound to carry to, or from, the intermediate places. 4. In regard to the effect of the act of parliament, the learned judge says : " I think, that no obligation is cast upon the com- pany, to undertake the duties of carriers altogether, and on every part of their line, but that they may carry some goods on one part of the line, and not on others." That act in terms enabled that company to become carriers, but did not oblige them to do so. Hence it is said, " They are not bound to carry to or from each place on the line, or every description of goods." ^ SECTION XVI. STRANGERS BOUND BY COURSE OF BUSINESS AND TJSAaES OP TRADE. 1. Those who employ railway companies, bound to know the manner of transacting their business. General usages of trade presumed to be familiar to all. Contracts far transportation .contain, by implication, hnown usages of the business. § 139. 1. Questions of some difficulty often arise in regard to the effect of usage in the carrying business. If it is understood, as applicable to railways, as synonymous with the general course of transacting the business of carriers, by railway companies. serve another, in one's business, undoubtedly, is confined to carriers of goods and passengers, and innkeepers, in regard to which, the learned judge insists, there never was any question. Lane v. Cotton, 12 Mod. 472, 484. 5 It is said there must be either a special contract, or a general usage, to carry the particular kind of goods, to render the party liable for not carrying. Tun- nell V. Pettijohn, 2 Harr. 48 ; Bennett v. Button, 10 N. H. 481. But if the party undertake the carriage, although he had not been accustomed before to carry that kind of goods, he is liable, as a common carrier, if that is his general business unless he make a special acceptance. See the cases cited above, and Powell V. MiUs, 30 Miss. R. 231. S21 *296 THE LAW OE RAILWAYS. [§ 139, then * those who employ them are undoubtedly bound to take notice of it.^ 2. The usages of any particular trade, such as are uniform, or general, are presumed to be familiar to all persons having ti-ans- actions in that trade or business ; and all parties making con- tracts, upon any subject, leave such incidents as are presumed to be familiar to both parties, and in regard to which there can- not ordinarily be any misunderstanding, to implication merely. 8. The same is eminently true of the carrying business, upon the great thoroughfares of the country. Contracts are made, by 1 St. John V. Van Santvoord, 25 Wend. 660 ; s. c. 6 Hill, 157. This case per- haps illustrates this subject about as well as any one. In the Supreme Court it was considergd, that had the owners of the goods known that defendant was not a carrier beyond Albany, he would only have been bound to the end of his route ; but as this was not known to the owners, and defendants gave a general receipt, describing the box by its marks, " J. Petrle, Little Falls, Herkimer Co." the plaintiffs were at liberty to infer, they were carriers to that point, and there- fore they were responsible for its safe delivery, at its destination. This decision was reversed in the Court of Errors, and Chancellor Walworth, delivering the leading opinion, said : " If the owner of the goods neglects to make the necessary inquiry, as to the usage and custom of the business, or to give directions as to the disposal of the goods, it is his own fault, and the loss, if any after the carrier has performed his duty, according to the ordinary course of his trade and business, should fall upon such owner, and not upon the common car- rier." The Chancellor argues further, that from the circumstances, the plaintiffs had no right to expect a personal delivery, by the defendant, and therefore the law did not require it. In the case of Gibson ». Culver, 17 Wend. 305, Justice Cowen seems to suppose, that the carrier, by stage-coach, is, in the first instance, bound to personal delivery, and that in order to exonerate himself from that obligation, he must show a custom or usage, of such notoriety, as to justify the jury m finding that it was known to the plaintiffs, in order to excuse the carriers. But it should be noted, that this was as far as it was necessary to go in this case, in order to excuse the carrier, and it is therefore not certain how far the court might have gone here, if the facts had required it. For in 6 Hill, 158, this view is altogether repudiated, and the more rational one adopted, that if one is ignorant of the course of business on the route, he is bound to make inquiry, and cannot make a contract, with his eyes closed, and thereby impose a greater obli- gation upon the other party, in consequence of his own blindness. See also the opinion of the court in F. & M. Bank v. Ch. T. Co. 23 Vt. R. 211, 212. In Cooper v. Berry, 21 Ga. R. 526, it is said that usage may be resorted to for the purpose of showing, that common carriers of certain goods are only subject to a modified responsibility, in regard to their preservation, it having been the uniform practice for the carriers to except, in their bills of lading, all losses by fire, and this being known to the owners, or their agents. 822 § 140.] COMMON CARRIERS. *297 way of memorandum merely, and to a jury, who know nothing of the usages, and course of business, in such transactions, would be quite unintelligible, and could only be made to express the real purpose of the parties, in connection with such usages, and course of business, as is presumed to be in the minds of the parties, at the time of entering into the contract. And if one of the parties assumes to transact such business, in ignorance of the very elementary usages of the business, he is not allowed to gain an unjust advantage of the other party, by means of his own voluntary, or rash ignorance, nor is the other party at liberty to take advantage of such ignorance and inex- perience, * (when made known to him,) to induce such inex- perienced one, to assume an unequal risk on his part. But where the usage, or custom, is resorted to for the purpose of controlling the general principles and obligations of the law of contract, there is no doubt of the necessity of showing its noto- riety, as well as its reasonableness and justice. The latter qual- ities are generally supposed to be sufficiently shown by the general acquiescence of the public, in the usage. But where the complaint against the carrier is for not deliver- ing cotton in good condition, a plea that it was the custom known to the plaintiff to transport cotton and other freight, be- tween the points named in the bill of lading, in open boats, and that all the damage which the cotton sustained, was caused by the rains, which fell during the voyage, was held good on de- murrer.® SECTION XVII. CASES WHERE THE CARRIER IS NOT LIABLE FOR GROSS NEGLIGENCE. 1 . Extent of English Carriers' Act. 2. Must give specification, and pay insurance. 3. Loss by felony of servants excepted. But not liable unless by carrier's fault. 4. Not liable in such case, where the consignor uses disguise in packing. 5. Carrier is entitled to have an explicit dec- laration of contents. 6. But refusal to declare contents mil not excuse the carrier for refusal to cany. 7. This statute does not excuse carrier for delay in the delivery. § 140. 1. Under the English Carriers' Act,' the carrier is not liable for the carriage of articles there enumerated, as " articles 2 Chevallier v. Patton, 10 Texas, 344. 1 1 Wm. 4 & 11 Geo. 4, c. 68. Looking-glasses being specified in the act, it 323 * 298 THE LAW OF RAILWAYS. [§ 140. of ' great value in small compass,"' with certain specified ones, as " money, bills, notes, jewelry," &c., if the requisitions of the statute are not complied with, although the goods be lost through the gross negligence of the carrier, or his servants.^ was held to extend to a "large looking-glass." Owens v. Burnett, 2 Car. & Marsh. 357. Some other curious inquiries have arisen under this act, in regard to its extent. Thus the word " trinkets,'' used in the act, was held not to com- prehend an eye-glass with a gold chain attached. Davey v. Mason, 1 Car. & Marsh. 45. And also that "silks" does not include silk dresses, made up for" wearing. Id. Hat bodies, made partly of wool, and partly of fur, are not " furs." Mayhew v. Nelson, 6 Car. & P. 58. So, too, a bill of exchange, accepted blank, and sent J;o the party for whose benefit it was accepted, and who was expected to sign it, as drawer, and which was lost before it reached its destination, is not a bill, or note, within the act. 2 Hinton v. Dibbin, 2 Q. B. 646. Lord Denman, Ch. J., here said : " The question for our decision is, whether since the passing of the said act, a carrier is liable for the loss of goods, therein specified, by reason of gross negligence. . . . In putting an interpretation upon this statute, for the first time, we necessarily feel the case to be one of considerable importance, both because it is the first, and also because it regards a subject, upon which much doubt and uncertainty have existed, making it expedient, therefore, that the question should be finally settled. In deciding upon this statute, we must of course be regulated by its lan- guage ; and the state of the law at the time of its passing is material only so far as it enables us to discover the mischief for which it was intended to apply a rem- edy. It is then enacted that no such common carrier shall be liable for the loss of or injury to any property therein specified (including silks,) above the value of £10, unless, at the time of the delivery thereof at the oflice, warehouse, or receiving-house of such carrier, or to his servant, for the purpose of being car- ried, the value and nature of such property shall have been declared, and such increased charge as thereinafter mentioned, or an engagement to pay tBe same, be accepted by the person receiving such property. By the first section, there- fore, thus briefly abstracted, the exemption of the carrier from liability is abso- lute and complete, unless the preliminary thereby made indispensable, is com- plied with by the owner of the goods. The increased charge is, by the second section, declared to be what the carrier is entitled to receive over and above the ordinary rate of carriage for the conveyance of the species of property before enumerated, when above £lO ; such increased rate of charge to be notified by some notice to be affixed in some conspicuous part of the office, warehouse, or receiving-house where goods are received for carriage. By section 4, it is pro- vided, that no public notice or declaration shall exempt any carrier from his lia- bility at common law for the loss of or injury to any articles other than those in the first section enumerated, but that as to such other articles, his liability, as at common law, shall remain notwithstanding such notice. From whidh exception, as to the liability of the carrier in respect of goods not enumerated, it seems im- pliedly to follow that, as to those which are, protection is afforded to him in the manner above set forth. By section 8, it is enacted, that nothing in this act shall 324 § 140.] COMMON CARRIERS. * 299 * 2. The act contains an exception of loss caused'by the felony of the carrier's servants. The condition upon which, in all other cases, the carrier is to be made liable for carrying the articles enumerated, is, that at the time of the delivery of the articles, the owner, or his agent, make a declaration of the nature and value of the goods, and pay, or agree to pay, any increased rate of charge, which the general regulations of the carrier may require. 3. In regard to the liability of the carrier, for loss, by the felony of his servants, it was held, that when the carrier was not notified of the contents of the parcels, as, by the act, he was entitled to be, it was only the liability of an ordinary bailee for hire.^ And the mere fact of loss, by the felony of a servant, is not primd facie evidence of negligence in a bailee for hire.* 4. And where the carrier uses artifice, to disguise the valuable contents of the parcel, as where two hundred sovereigns were inclosed in six pounds of tea, and they were stolen by the car- rier's servants, it was held the carrier was not liable, the owner having virtually contributed to his own loss.^ 5. Under this act the carrier is entitled to have an express be deemed to protect such carrier from the felonious acts of any servant in his employ, nor to protect such servant from liability for any loss or injury by his own personal neglect or misconduct. The former branch of the clause is, to say no more, at least consistent with the supposition that for conduct short of felony the carrier is no longer liable ; whereas it is obvious that, before the passing of the act, the carrier would have been liable for acts of the servant not amounting or apprd&ching to felony — negligence. The latter branch seems to have been introduced ex abundanti cautela merely, seeing .that there is nothing in any part of the act to vary the liability of the servant to the master for any misconduct of the former. '' Upon the whole, the language of the first section seems to us to be perfectly clear and unambiguous, without exception or restriction, and that none can fairly be implied from any other part of the act. By holding the carrier exempt from liability as to the enumerated articles, unless the owner shall declare their nature, and pay for them in the manner prescribed, we not only further the object avowed in the title and preamble of the act, but give it the effect of removing doubts and difficulties which, (as we have seen)#t is admitted, did exist as to the liability of a carrier for the loss of goods, who has sought to limit that liability, by the publication of a notice in the usual form.'' 3 Butt V. Great Western Railway, 7 Eng. L. & Eq. R. 443. 1 Finucane v. Small, 1 Esp. 315. " To support an action of this nature, posi- tive negligence must be proved," per Lord Kenyan, Ch. J. 5 Bradley v. Waterhouse, Moody & M. 154 ; s. c. 8 C. & P. 318. . 28 325 *300 THE LAW OF RAILWAYS. [§140.. declaratioa from the owner, or his agent, of the contents of a box, whenever it is delivered, however obvious to conjecturei'the nature of the contents may be.^ * 6. But it seems that the refusal to declare the contents of a parcel, will not justify the carrier in refusing to carry it, but only excuses the loss.' 7. In a late case,* it was held, that the exemption of the car- rier under this act had reference exclusively to a " loss," of the article " by the carrier," such as by the abstraction of a stranger, or by his own servants, not amounting to a felonious act, or by the carrier or his servants losing them from vehicles in the course of carriage ; or by mislaying them, so that it was not known where to find them, when they ought to be delivered, and that it does not extend to any loss of any description whatever, occa- sioned to the owner of the article, by the non-delivery, or by the delay of the delivery of it, by the neglect of the carrier or his servants.^ The last case cited is certainly not a little of a manifestation of a disposition, in the English courts, to restore, as far as prac- ticable, the reasonable responsibility of carriers, which under the •former decisions, with reference to notices, and special contracts, had become uncertain and somewhat problematical.^ 6 Boys V. Pink, 8 C. & P. 361. And in Baxendale v. Hart, 9 Eng. L. & Eq. R. 505, in error, reversing the judgment below, the court say : " We think that the act of parliament requires the person who sends the goods, to take the first step by giving that information to the carrier which he alone can give, and that if the sender does not take that first step, then he cannot maintain this action by the force of the first section, which expressly says, that the carrier shall not be liable unless the declaration is made. Such declaration, when made, will lead to other consequences ; the carrier will know what he is to have more, according to the tariff which he has stuck up in his office ; if that sum is paid, and the goods are lost, then of course he would be liable ; on the other hand, if he refuses to give a receipt, as provided by the statute, or has omitted to comply with any pro- vision of that kind on his part to be performed, he would lose the protection given by the act." 7 Pianciani v. London & S. ^\. Railway, 36 Eng. L. & Eq. R. 418.; Crouch v. London & N. W. Railway, 25 Eng. L. & Eq. R. 287. 8 Hearn v. London & S. W. Railway, 29 Eng. L. & Eq. R. 494. 9 Ante, § 132, 133, 134, and cases cited. The statute now in regard to freight generally refers the terms of special contracts to the court, as to their reason- ableness. In Simons v. The Great Western Railway Co. 37 Eng. L. & Eq. R. 286, it 326 § 141.] COMMON CARRIERS. *301 *SECTION XVIII. INTEKNAL DECAY. BAD PACKAGE. STOPPAGE EST TRANSITU. SUPERIOR EIGHT. CLAIM BY 1 . Internal decay. Defective package. 2. Bight to stop in transitu. 3. Carrier liable, if he do not surrender the goods, to one having right to stop in tran- situ. 4. Carrier may detain until right is deter- mined. 5. Sight exists, as long as the goods are under control of earlier. 6. Most uncertainty exists, in regard to capac- ity of intermediate consignees. 7. As long as goods are in the hands of mere carriers, right exists, but not when they reach the hands of the consignee's agent for another purpose. 8. Company compellable to solve question of claimant's right, at their peril, 9. Conflicting claims of this hind may he determined, by replevin, or interpleader. 10. Or the carrier may deliver the goods to rightful claimant, and defend against bailor. § 141. 1. In addition to the general exceptions, which the law makes to the liability of carriers, of losses from inevitable acci- was held, that the 7th section of the Railway & Traffic Act, 1854, 17 & 18 Vict, c. 31, does not prevent a railway company from making a special contract, as to the terms upon which they will carry goods, provided such contract be "just and reasonable," and signed by the party sending the goods. And it is for the court to say, upon the whole matters brought before them, whether or not the " condition," or " special contract," is just and reasonable. A condition, that the company will not be accountable for the loss, detention, or damage of any package insufficiently or improperly packed : — Held, unjust and unreasonable. Semble, that a condition " that no claim for damage will be allowed, unless made within three days after the delivery of the goods, nor for loss, unless made within three days of the time that they should be delivered," is just and reasonable. A condition, that in the case of goods conveyed at special or mileage rate, the company will not be responsible for any loss or damage, however caused, — is just and reasonable. And in the London & Northwestern Railway Co. Appellants, v. Robert Clarke Dunham, Respondent, (id. 299,) which was a ease sent by a county court judge for the opinion of the Court of Common Pleas, it was stated that goods were re- ceived by the defendants, a railway company, under the following note, signed by the plaintiflf : " Risk note. London & Northwestern Railway Company, Park Lane Station, Dec. 19, 1855. Hay, straw, furniture, glass, marble, china, cast- ings, and other brittle and hazardous articles, &c., conveyed at the risk of the owners. — Delivered to London and Northwestern Railway Company, from R. C. Dunham, (the plaintiff,) 3 crates beef, for F. C. Duckworth, Newgate Market, to be forwarded from Liverpool to London at owner's risk" — it was held that the court could not, from this statement, judge whether or not the condition was "just and reasonable " within the 17 & 18 Vict. c. 31, § 7. 327 * 302 THE LAW OF RAILWAYS. [§ 141. dent, * and the public enemy, there are some othersj more or less connected with those, which it may be proper to mention. Losses Jervis, Ch. J., in delivering the opinion of the court, in both cases, said : " The result seems to he this, — a general notice is void ; but the company may make special contracts with their customers, provided they are just and reasonable, Snd signed ; and, whereas the monopoly crea,ted by railway companies compete th« public to employ them in the conveyance of their goods, the legislature have thought fit to impose the further security, that the court shall see that the condi- tion, or special contract, is 'just and reasonable.' " Applying that rule to the case of Simons v. The Great Western Railway Co. I think the matter is sufficiently brought before the court to enable us to decide it, and that the fourth plea, which states that the goods were received by the com- pany to be carried at a certain special mileage rate, and under and subject to a special contract, (referring to the 15th article of the conditions set out in the replication,) is a good plea. As to the third plea, I think that is a bad one, inas- much as it seeks to relieve the company from the consequences of the loss or non-delivery of the goods, by reason of insufiieient or improper package, which, in my judgment, is not reasonable as a ground of relief. I think the court is bound to look at the particular matter, in each case, to see whether the condition is just and reasonable, or not. " As to the case of the Great Western Railway Company, Appellant, v. Dun- ham, Respondent, the same reasons to a certain extent will apply. In order to see whether or not the contract be just or reasonable, it is necessary that we should be furnished with proper materials. The judge of the county court has referred it to us to say whether or not the conditions contained in the ' risk note, limiting the liability of the company, were unjust and unreasonable, without tell- ing us the circumstances under which the contract was made, or what is the nature or the reason of the particular risk. I therefore think enough is not disclosed to enable us to come to any conclusion as to whether or not the contract or con- dition is just and reasonable. " For these reasons, I think that, in the first case, our judgment ought to be for the plaintiff, upon the issue in law raised upon the third plea, and for the defendants as to the fourth plea ; and that the second case must go back for the purpose of being more fully stated." So that now, by this late statute, the law of that country is brought back nearly to its original starting-point. Mere general notices, in regard to the liability of carriers, are of no avail, unless reduced to the form of special stipulations, in regard to the liability of the carrier, and Signed by the party sending the goods, and be also, in the opinion of the court before whom the case shall be tried, " just and reasonable." This act, it is specially provided, shall not affect the Carriers' Act, or any lia- bility under it. But in a late case in the Common Bench, it was held, that *here the carrier, in the bill of lading expressly excepted losses from " leakage and breakage," this exception did not extend to such losses, which occurred from his own negligence, but only such as occurred without his fault. Phillips v. Clark, 29 Law Times, 181. 328 § 141.] COMMON CARKIBKS. * 303 *from natural causes, such as frost,^ fermentation, ^ evaporation,^ or natural decay of perishable articles," the carrier exercising aU reasonable care to preserve them,^ and from the natural and necessary wear by careful transportation,^ in the mode to which And where the railway company rece'iYed cattle for carriage on the express terms, in writing, signed by the owner, that they were to be held free from all risk and responsibility in respect of any loss or damage to cattle, arising in the loading or unloading, from suffocation, or from being trampled upon, bruised, or otherwise injured in transit, from fire, or any other cause whatsoever, it was held to be a reasonable condition within the Railway and Canal Traffic Act, 1854. And it was said that this protected the company from liability for the loss of cattle, by suffocation, during the journey, occasioned by the negligence of com- pany's servants. But it was further said, that the facts of this case did not tend to show negligence in the company's servants, the plaintiffs being permitted to send, free of expense, a person who had the oversight of the cattle, and who made no complaint of the sufficiency and safety of the arrangements for trans- portation. Alderson, B., said : " I think the negligence was really that of the servants of the plaintiff, and that the defendants are not liable on that ground." Pardington v. South Wales Railway, 38 Eng. L. & Eq. R. 432. 1 Ante, § 124, and note 6. 2 Buller's N. P. 69 ; 3 Kent, Comm. 299, 300, 301 ; Story on Bailm. § 492a; Warden v. Greer, 6 Watts, 424. It has been considered, that where 'molasses in a cask of large dimensions, was found to have lost, by leakage, through the pressure of the weight of the cask, upon the bilge of the staves, the cask being admitted to be of sufficient strength, for ordinary transportation, but the road being rough at the time, by reason of frost, it did not remain firm, on account of not being placed upon supports, so as to divide the pressure upon the cask, more equally, that the carrier was liable for the loss. Stocker & White v. Sullivan Railway, Special Reference. Angell on Carriers, § 210, 211, 212. Mr. Walford cites a number of eases, pp. 315, 316, illustrating the subject of this note, from the then recent Nisi Prius trials. The company are not liable for an accident arising from the viciousness or want of temper, of an animal sent by their railway. Walker v. London & South- western Railway, (1843.) So also from injuries to merchandise from bad pack- age. Norman v. London & Brighton Railway, (1843.) So also for leakage, by reason of bad package. Lucas v. Birmingham & Gloucester Railway, (1842.) So also where goods are unreasonably exposed to fire, for want of proper covering. Rutley V. Southeastern Railway, (1845.) And where the owner put several packages, one of flutes, one of watches, &c. into the same bag, and sent them by railway, and the flutes were injured, it was left to the jury to say, whether the accident was attributable to the carelessness of the company, or whether the plaintiff, by his own improper proceeding, con- tributed to the disaster, the mode of packing, having thrown upon the company a more onerous task than if they had received the articles separately. Smith v. London & Birmingham Railway, (1845.) But the consignee of goods well packed is not obliged to accept of a remnant 28 « 329 * 303 THE LAW OP RAILWAYS. [§ 141. the carrier is accustomed ; or ftom the defective nature of the vessels, or packages, in which the things are put, by the owner, or consignor, the former class being regarded as the act of God, and the latter the fault of the party, will excuse the carrier. 2. In regard to stoppage in transitu, it is a subject which, in its general bearing, does not properly come within the range of this work, but as it incidentally affects the rights of common car- riers, in all modes, it may be useful to give here its genera:l defi- nition, and briefly point out the mode in which carriers are liable of them, in a loose, unpacked state. Ch. & Rook Is. Railway v. Warren, 16 111. E. 502; ante, § 131. And in a recent trial at Nisi Prius, before Mr^ Justice Woodward, of the Pennsylvania Supreme Court. Ritz & Pringle v. Penn. Cen- tral Eailw. 10 Am. Railw. Times No. 14, where the defendants claimed to excuse themselves from liability for injury to sheep transported on their cars, by reason of too many being put into a car, on the ground that this was done by the agents of the consignor, the agents of the company telling them to exercise their own judgment in regard to the number they would put into each car ; the learned judge told the jury that the company could not, in that manner, shift the respon- sibility which the law imposed upon them. The remarks of the judge in his charge to the jury are marked by a proper regard to the interests of all concerned, and will, we trust, meet with general approval. " In my judgment this is no defence. They were bound to superintend the loading of the sheep. The cars belong to the company, and are, and ought to be, under the exclusive control of the company's agents. They are presumed to know better than freighters and drovers how many tons' weight, or how many animals each car can carry safely, and it is due, alike to the comfort of the dumb beasts, and to the interest of all concerned in the transportation, that the skill and experience of the agents in charge, should dictate every thing that pertains to the taking or carrying and dis- charging the load. The less inexperienced persons have to do with these matters the better, and to turn such duties over to them is negligence on the part of the company's agents. They have storehouses in which to receive and load goods, and the shipping merchant is never expected or permitted to direct how many cars shall be employed in the transportation of his wares, nor what quantity shall go in each car. In like manner, the company is provided with cattle yards and pens into which they receive live stock, and their duties as common carriers attach from the moment they take possession of the stock. They may call on the owner or his servants to assist in loading the live stock, nay, they may require them to do all the manual labor as best acquainted with the disposition and habits of the beasts, but it must be done under the practised eye of the company's agent, whose duty it is to see that the car is roadworthy, and that it is properly loaded. He may no more resign this duty to the drover than to the freighting merchant, and may no more neglect this duty than any other connected with the transpor- tation. If, therefore, the jury believe that Boyle stood by and permitted the cars to be overloaded, whereby the sheep were injured, the company is liable for the consequences of his negligence.'' 330 § 141.] COMMON CARRIERS. * 304 to be aff'ected, by the exercise of the right. Stoppage in transitu IS the right which resides in the vendor of goods, upon credit, to recall them, upon discovering the insolvency of the vendee, before the goods have reached him, or any third party has acquired bond fide * rights in them.^ The carrier's interest in this question arises only, when he is required by the vendor, while the goods are still in his possession, to redeliver them to him, or some one, on his account. 3. After such demand it becomes important to the carrier to determine, whether the right to reclaim the goods still exists. For if so, and the carrier decline to redeliver them, or deliver them to the vendee, he, and all persons claiming to retain them, against the claim of the vendor, become liable in trover for their value.* 4. The principal difficulty which arises in such cases, so far as the carrier is concerned, will be likely to occur, in regard to goods, which have passed through one or more carrier's hands, before they come into those of the one, upon whom the demand for the goods is made. For in the case of a single carrier, he may safely conclude, that if such a demand is made upon him, while the goods are in his custody, it will be prudent to retain them until the existence of the asserted right is established, and if so, to surrender them, in obedience to the demand, as there can be no question of the right of the unpaid vendor ordinarily, to reclaim the goods, in case of the insolvency of the vendee, as long as they remain in the possession of the carrier.^ 5. It is not enough to defeat this right, that the transportation 3 2 Kent's Comm. 540 et seq. ; Lickbarrow v. Mason, 1 Henry Black. R. 357 ; 8. c. 6 East, 21 ; s. C. 2 Term E. 63 ; 1 Smith, L. C. 388 and notes, where the whole law upon the subject, both English and American, will be found. This leading case establishes the point, that the vendee may defeat the right of the vendor to stop the goods, in transitu, by a bond, Jide assignment of the bill of lading, for value. And we are not aware, that the right can be defeated, in any other mode, until the goods come to the virtual possession of the vendee. 4 Litt V. Cowley, 7 Taunt. 169 ; Bothlink v. IngHs, 3 East, 381 ; Syeds v. Hay, 4 T. R. 260. 3 See the cases cited under note 3. And it would not be regarded, as a con- version, in the carrier, to retain the goods, after a demand from the vendor, for a sufficient time, to enable him to ascertain, whether the right to stop in transitu ever existed, and if so, whether any intervening rights had accrued, either by act of the vendor, or the vendee, which would defeat it. 331 *305 THE LAW OF RAILWAYS. [§ 141. is accomplished, if the goods still remain under the care and control of the carrier, as in the case of a railway, in the ware- house of the company, awaiting the arrival of the vendee ; or in the warehouse of a wharfinger, or warehouse-man ; ^ unless, as is said, in some of * the cases, the vendee, by special contract and understanding, is accustomed to use the warehouse of the carrier, or wharfinger, as his own. In such case it is the same, when the goods are deposited in the warehouse of the carrier, or warehouse- man, or wharfinger, as if they had reached the warehouse of the vendee himself.' 6 Dodson V. Wentworth, 4 Man. & Gr. 1080, where Ch. J. Tindal thus states the distinction, between the cases, where the transitus is ended, by depositing in the warehouse of the carrier, or other person, and those where this does not have that efifect. " The warehouse in which the goods were lodged was not the warehouse of the carrier ; as some of the cases turn upon the point, that the transitus is not at an end, while the goods remain in the possession of the carrier, not only in the actual course of the journey — but even while they are in a place of deposit, connected with transmission. But the place of deposit here is the warehouse of a third party," and the question is whether the depositary acts " as the agent of the carrier, or the consignee." ' Kowe V. Pickford, 8 Taunt. R. 83. This is the case of a trader in London, who was in the habit of purchasing goods in Manchester and exporting them to the Continent soon after their arrival in London, and the goods in the mean time remained in the wagon-office of the carriers. It was held that the right of stop- page in transitu ceased, upon the arrival of the goods, at the wagon-office. Wentworth v. Outhwaite, 10 M. & W. 436. This is the case where the goods were kept, by the carrier as warehouse-man at the end of the public carrier's route, until they could be sent for by the vendee, at his own convenience, and upon payment of warehousing. It was held the transitus terminated upon the arrival of the goods, at the warehouse. This case is put by Abinger, Ch. B., with whom the court concur, upon the ground, that the warehouse-man was an agent of the vendee, for receiving the goods and keeping them, not for forwarding, which showed the transitus at an end. Baron Parke also said : " The carriers held them, not as agents for forwarding them, but for their safe custody, and they were constructively in the possession of the vendee." Dodson v. Wentworth, 4 M. & Gr. 1080, is a similar case, and decided upon the same ground. Dixon v. Baldwin, 5 East, R. 175. In Heinecke v. Earle, 30 Law Times, 147, in Nov. 1857, goods were shipped by order to A, and the bill of lading made them deliv- erable to A, on paying freight ; but on their arrival, A, being embarrassed, and not wishing to accept the goods, if he stopped business, objected to receive them, but they were afterwards landed and locked up in his warehouse, A intending to warehouse them for the vendor, if he could so do. The vendor demanded the goods, and A declined surrendering them, on the ground that his solicitor ad- 332 § 141.] COMMON CARRIERS. * 306 6. But by far the most difficult questions arise under this head, in a class of cases, quite numerous, where the goods are directed, by a particular roufe, through successive lines of carriers, and at the intermediate points, to the care of particular persons, who may be wharfingers, forwarding-merchants, warehouse-men, car- riers, or combining two, or more of these capacities. 7. The principle, by which the question of the continuance of the transitus is determined, in this class of cases, is the same already stated. K the person to whose custody the goods are consigned, at an intermediate point, is only to be regarded, as an agent, for forwarding, or keeping, or carrying, in the course of the transportation, then the transitus is not ended. But upon the other hand, if such person, although a carrier, or connected with the carrying business, is to keep the goods, for the consigned, and, as his agent, o'r, in that capacity, to give them a new destination, "or so to keep them until the consignor can send for them, or dis- pose of them, or give them a new destination, in all these cases, the transitus is ended.^ 8. Railway companies from the manner of transacting their business, would not be likely to be exposed to the raising of such questions very often, while the goods were in their custody. But as many of the long lines of tran^ortation consist of numerous, independent routes, and often, in different countries, states, or kingdoms, such questions very frequently, arise, upon prior por- tions of the line, which they are by the rules of law compellable to solve, at their peril, upon an admonition, by telegraph, from an vised him he could not do so safely. The goods were subsequent!)' assigned for the benefit of creditors ; it was held that the transit was at an end. Lord Campbell, Ch. J., said : " A mere delivery at the place of destination is not necessarily a termination of the transit. The transit remains until the goods have come into the possession of the consignee, and although they are landed at the place to which they are destined, unless the consignee has taken possession of them, I think they are still in transit. The merely putting upon the premises of the consignee, I think, could not necessarily be a termination of the transit." But in this case, it was held, the consignee's consent to retain them determined the transit. 8 Cases cited under note 7. See also Covell v. Hitchcock, 23 Wend. 611. And where it is the practice of a carrier, at a particular place, to deposit goods upon a public wharf and for the consignees to come and take them away at their pleas- ure, no one having any further charge of them, it was held, that the transitus ended, upon the goods reaching the wharf. Sawyer v. Joslyn, 20 Yt. R. 172. 333 * 307 THE LAW OP RAILWAYS. [§ 141. unknown party, a thousand miles distant, which renders it of consequence, that they should be able to obtain competent coun- sel upon questions of this character.^ It is the same, in regard to all goods, put into the custody of a carrier by a subordinate party if demanded, by the party having superior right, the carrier must surrender them to him, or he is liable in trover, if the goods still remain in his possession, otherwise if he have finished his office in regard to them.^" 9. There seems to be some confusion in the cases in regard to the right of a third party to interpose his .claim between the bailor and bailee. It is perfectly well settled that the bailee cannot defend against the claim of the bailor, by showing a better out- standing title to the thing, in a third party, who has made no claim upon him.^^ But it is settled, that the bailee may defend against the claim of the bailor, by showing the goods have been taken from him by legal process.^^ Hence in cases of this kind the more common course is, for the interposing claimant to resort to the writ of replevin ; and sometimes to a writ of- interpleader, in order * to settle the rights of the contending parties, if no other adequate remedy exists. 10. But we apprehend there is no necessity for any such re- sort. Wherever the bailor obfhins possession of the goods, by force or fraud, or attempts to retain possession of them, through the carrier, after his title has expired, in analogy to the case of landlord and tenant, the bailee may, upon having notice to sur- render the goods to the rightful owner, under penalty of a suit, yield to the claim of the rightful proprietor, and defend against that of the fraudulent or wrongful bailor.^^ And as is said be- 8 Gilford, Clark & others v. Smith, Eldridge & Lee, Trustees of the Vermont Cent. Railway, a case involving these questions, in Supreme Court of "Vermout. '0 Ogle V. Atkinson, 5 Taunt. 759 ; Wilson v. Anderton, 1 B. & Ad. 450. It is a good defence to the carrier, that he has surrendered the goods, according to the order of the bailor, before he receive counter orders from the superior owner, and until that the carrier cannot dispute the title of his bailor. Story on Bailrn. § 582. 11 Goshng V. Birnie, 7 Bing. 339 ; Holl v. Griffin, 10 Bing. 246. 12 Burton v. Wilkinson, 18 Vt. R. 186. If this defence were not valid, it might compel the party to resist the acts of a public officer, in the discharge of his duty, which the law will never do. 13 Post, § 145 ; Swift v. Dean, 11 Vt. R. 323 ; Turner v. Goodrich, 26 Vt. K. 707. 334 § 142.] COMMON CARKIERS. * 307 fore, the rule seems now to be settled, that in such case the car- rier must deliver the goods to the rightful owner, at his peril.^^ SECTION XIX. EFFECT OF BILL OP LADING UPON CABRIER. 1 . Between consignor and carrier the bill of lading is prim§, facia evidence. 2* But questions of quantity and quality of goods cannot be raised where iMermediate carriers are concerned, 3. Bill of lading may be explained by oral evidence. i. Express promise to deliver goods, in good order, by a day named. 5. Effect of stipulation for deduction from freight, in case of delay. 6. If carrier.demand full freight, in such case he is liable to refund. 7. Must be forwarded according to bill of • lading. § 142. 1. It is common for a bill of lading or the receipt for goods, executed by the station agent, to describe them as in good condition. In such case this is always primd facie evidence against the carrier of that fact, even between the immediate par- ties to the contract, and may become conclusive upon the carrier, where the consignee or other parties have acted upon the faith of such representation, and have made advances, or given credit, relying upon its truth.^ 14 Story on Bailm. § 450. Littledale, J., in Wilson v. Anderton, 1 B. & Ad. 458. " He may show that the title of the lessor has been put an end to ; and therefore in an action of covenant by the lessor, a plea of eviction by title para- mount, or that which is equivalent to it, is a good plea, and a threat to distrain, or bring an ejectment, by a person having good title, would be equivalent to an actual eviction.'' 1 Sharu, Ch. J., in Hastings v. Pepper, 11 Pick. 43 ; United States Cir. Court, N. Y. Dist. 7 W. Law J. 302 ; Price v. Powell, 3 Comstook, 322. Declarations of the master, while in charge of the goods, are evidence against the ship-owner. McCotter v. Hooker, 4 Selden, 497, where it is held, that a mere receipt for the goods, does not merge the previous oral agreement. But where the packages are described in the bill of lading, " weight and con- tents unknown," and one of them is in bad condition on arrival, and the mode of packing is such, that it would not readily have been discovered, it requires proof that it was not so when delivered. U. S. Circuit Court, Nelson, J., The Columbo, 19 Law Rep. 376. In McOeady v. Holmes, 6 Law Keg. 229, in the District Court of the United States for the district of Sputh Carolina, in October, 1857, it was held, that though a carrier, in the absence of evidence of fraud or mistake, is concluded by the receipt or bill of lading, as to the quantity or amount of the goods shipped ; yet, in an action for the freight, where the consignee has 335 * 308 THE LAW OF RAILWAYS. [§ 142. * 2. But in regard to parties who have no direct interest in the goods, and no authority to adjust any deficiency or damage; who are but intermediate carriers, or middle-men, between the consignor and consignee, such questions cannot be raised, in an action for freight.^ 3. But where the bill of lading is given, when the goods are so packed as to be incapable of inspection, and prove to have been in fact damaged when they were shipped, this may be shown by oral evidence.^ received the goods at the wharf, without qualification or reservation of the right, to inspect, weigh, or measure them, and the carrier proves due care of them dur- ing the transit, and an actual delivery of all in his possession on his arrival, the burden of proof is on the consignee to establish that a deficiency in the quan- tity specified in the bill of lading, afterwards discovered, is chargeable to the wrongful act or neglect of the carrier. 2 Canfield v. The Northern Railway Co. 18 Barb. 586. In this case, a quan- tity of wheat was shipped, at Detroit, on board the ship Argo, for Ogdensburg, consin-ned to B. & L., Montpelier, Vt. care of Northern Bailway Co. N. Y. The master delivered the wheat to defendants, in pursuance of the bill of lading, but on measurement it fell short one hundred and seventy-five bushels of the quantity named in the bill. The master demanded freight of defendants upon the quan- tity carried and delivered, which defendants refused to pay, but offered to pay freight, deducting the deficiency in the wheat. This suit is for the freight de- manded. Defendants claimed, 1st. They were not liable for freight, and if so, 2d. They had tendered all the plaintiffs were entitled to demand of them. It was held, that defendants were liable to the plaintiff, for the freight actually earned on the wheat delivered. On the first point in the defence, the court say, " the usual clause in a bill of lading, making the payment of freight by the consignee a condition of the deUv- ery of the goods, is inserted for the benefit of the carrier. It is regarded as a letter of request from the consignor, and the reception of the property causes an implication that the consignees intend to comply with the request. The law im- plies a promise upon which the carrier may found an action for the freight. Abb. on Ship. 421 ; 3 Kent, 219 ; 3 Bing. 388. This is the settled rule as regards the final consignee named in the bill. I see no good reason why a rule which looks with a single eye to the rights of the carrier, should not be applied to every con- signee named, whether _^naZ or intermediate." As to the second point, the court say substantially, that defendants were mid- dle-men, all their powers and rights are derived from the terms of the bill of lading, as intermediate consignees, and there is no agency in behalf of the owner, authorizing the defendants to make any adjustment. See also Bissell v. Price, 16 Illinois R. 408. 3 Gowdy V. Lyon, 9 B. Mon. 112. And a bill of lading for a specified num- ber of tons of iron, " weight unknown," binds the carrier,,in the absence of fraud, 336 § 142.] COMMON CARRIERS. * 309 *4. The stipulation in a bill of lading to deliver goods within a specified time, in good order, " the dangers of the railway, fire, leakage, and other unavoidable accidents excepted," binds the carrier to deliver within the time absolutely, the exception hav- ing reference exclusively to the condition of the goods * when delivered. 5. And an agreement to deliver, at the place of destination, on a day named, with a provision that the carrier shall deduct a fixed sura from the freight for each day's delay beyond that time, was held to be an unconditional contract to deliver by the day named.* But the reason and good sense of the case would seem to indicate that if the carrier made the stipulated deduction from freight, fixed in his contract for the delay, he was not liable be- yond that for delay merely, and so the court seem to have viewed the subject. 6. But where the carrier in such case demanded full freight, not consenting to deduct the price fixed in the contract for the delay, it was very justly held to be a payment, by duress of cir- cumstances, and the excess recoverable of the carrier.* 7. In an important case,^ recently determined by an experi- enced court, it was held that where the bill of lading required the goods to be reshipped at an intermediate port, by a particular ship, and they were reshipped in another ship, that the contract had not been complied with, and that the carriers must be con- sidered as insuring the goods against loss, even if it arose from causes excepted by the bill of lading. And where goods are de- livered to a railway company, for carriage, and a receipt taken to deliver only so much as he actually receives. Shepherd v. Naylor, 19 Law R. 43 ; Bissell v. Price, 16 Illinois R. 408. ■t Harmony v. Bingham, 1 Duer, 209. In this case the covenants to deliver, in a specified time, and in good order, and for the deduction, in case of failure, were separate covenants. The recovery was in fact limited to the damages specified in the contract, thus makin", in effect, a contract to deliver by a certain day, or deduct a certain sum for each day's delay from the freight. 5 Bazin v. Richardson, Circuit Court of the U. S. Philadelphia, May, 1857; Law Reporter, July, 1857, 129. Merrick v. Webster, 3 Mich. R. 268. And in Bristol V. Rensselaer and Saratoga Railway, 9 Barb. 158, it was held that the receipt of a package marked " L. W. B., care of S. W., Troy," by a railway a^ent, implied the duty to deliver, according to the mark, and nothing more, although S. W. is another agent of defendants. 29 337 ■310 THE LAW OF RAILWAYS. [§ 143. by the consignor, upon which he obtains an advance by the con- signee, the consignor subsequently obtaining a redelivery of the goods to himself, and the company in consequence being com- pelled under threat of legal proceedings against them, to refund to the consignee the money advanced by him, it was held they might recover the amount so paid, of the consignor.^ *SECTION XX. TO WHAT EXTENT THE PARTY MAY BE A WITNESS. 1 . At common law the party cotdd not be a witness in such cases. 2. Some of the American courts have received this testimony from necessity. 3. 4, 5. Decisions in different states. 6. Agents and servants of the company ad- mitted to testify from necessity. 7. Where the party's oath is not received, the jury are allowed to go upon reasonable presumption. § 143. 1. The question, how far the party claiming to have sustained loss, by carriers, may be himself a witness in the ac- tion, since the general disposition manifested, both in England and this country, to admit the testimony of the parties generally, is becoming of much less importance. We wiU nevertheless refer briefly to the decisions upon this subject. We are not aware that any such exception was ever attempted to be made by the English courts. The general rules of evidence seemed altogether adequate to the exigency. If the carrier had lost the package or parcel, it was by his fault that the difficulty of ascer- taining its contents had arisen, and the jury should, on that account, solve all doubts against him.' 2. But in many of the American courts, it had been regarded, as one of those exceptions, founded upon necessity, like the loss of a written instrument, where it became indispensable to admit the testimony of the party, the facts being, in presumption of law, confined exclusively to his knowledge. And some of the English books speak of the same rule being applicable to the proof of the contents of a box delivered to, and lost by, a com- 6 Midland Great Western Railway v. Benson, 30 Law Times, 26. 1 Greenleaf 's Ev. § 37 ; Armory v. Delamirie, 1 Strange, 505. But the decis- ions are not uniform upon this subject, especially where there is no intentional withholding of evidence. In such case it has been held the presumption is to be against the plaintiff. Clunnes v. Pezzey, 1 Gamp. 8 ; Dill v. Railroad Co. 7 Rich. 158, 163; 6 id. 198. 338 § 143.] COMMON CAERIERS. * 311 mon carrier.^ But it does not seem to have been there followed, in recent times, unless the case possessed other features beyond the mere loss of the box, as fraud, or the intentional withholding of evidence. And some of the American cases, where the testi- mony of the party was admitted, as to the contents of parcels delivered to carriers, and lost by them, have been of the latter character.^ The American * courts have evidently admitted the exception with reluctance, and have manifested a constant dis- position to restrain it within the narrowest limits. 3. Hence in Pennsylvania they hold that it only extends to such articles of wearing apparel, as it may ordinarily be pre- sumed the party himself, or his wife, will have packed, and con- sequently be the only witnesses able to give testimony * in regard to them. 4. And in Massachusetts the courts have altogether repudiated the rule of the admissibility of the party, as a witness in this class of cases on the ground of necessity.^ 5. But in Ohio the courts seem to have adopted the same view of the subject as in Maine and Pennsylvania.^ 6. In some cases it has been held that the servants of the com- pany, who have charge of things carried on their trains, are ex 2 12 Viner, Ab. 24, pi. 34. 3 Herman v. Drinkwater, 1 Greenleaf, R. 27. This is the earliest case we recollect to have seen of this kind in the American Reports, and was one of fraud, where a shipmaster, having received a trunk of goods on board his vessel, for carriage, broke it open and abstracted the goods. This case is virtually reaf- firmed in Gilmore v. Bowdoin, 3 Fair. 412, and the exception rests here alto- gether upon the ground of necessity. 4 Clark V. Spenoe, 10 Watts, R. 335. See also David v. Moore, 2 W. & Serg. 230 ; Whitesell v. Crane, 8 W. & Serg. 369 ; McGill v. Rowand, 3 Barr, 451. See also The County v. Leidy, 10 Barr, 45 ; Pudor v. Bos. & M. Railway, 26 Maine R. 458 ; Dibble v. Brown, 12 Ga. R. 217. 5 Snow V. The Eastern Railway Co. 12 Blet. R. 44. The court here recognize the right of the party to testify to the contents of a parcel of which he is robbed. Proceedings against the Hundred, B. N. P. 187 ; East Ind. Co. v. Evans, 1 Vern. 305. The same rule upon this subject is adopted in New Jersey as in Massachu- setts. Graby v. Camden & Amboy Railway, 19 Law Rep. 684. So also in Michi- gan. Wright V. Caldwell, 3 Mich. 51. 6 The Mad River & L. Erie Railway Co. v. Fulton, 20 Ohio R. 318. In this case it was held, that the owner of baggage and his wife are competent witnesses to prove the contents of a trunk lost by the plaintiffs, and its value, consisting of the ordinary ba^o-age of a traveller, on the ground of necessity. See also John- son V. Stone, 11 Humph. 419 ; Oppenheimer v. Edney, 9 id. 385. 339 312 THE LAW OF RAILWAYS. [§ 144. necessitate, competent witnesses, to prove the delivery thereof to the owner, in an action for the non-delivery, although they there- by exonerate themselves from blame, and liability, in a future action.'^ 7." The authorities upon this general subject are not uniform. And where the courts refuse to admit the party to testify to the contents of trunks, &c. lost by common carriers, it becomes mat- ter of necessity to allow the jury to give damages proportioned to the * value of the articles, which it may fairly be presumed the trunk, &c. might and did contain.^ By the construction of the statute in Kentucky ,8 the members of railway corporations are made witnesses, in suits where the company is a party. SECTION XXI. EXTENT OF RESPONSIBII.ITY FOR BAGGAGE. 1 and 5. Not liable for merchandise, which passenger carries covertly. 2. And it makes no difference, that the pas- senger has no other trunJc. 3. Jewelry, being female attire, and a watch in a trunk, proper laggage. i, and n. 6. So also are, money for expenses, hooks for reading, clothing, spectacles, tools of trade, and many other simitar things. § 144. 1. Railways, as carriers of passengers, are not liable for the loss of a package of merchandise, which a passenger brings upon the train, packed as baggage, unless the company, having an opportunity to know the contents of the package, see fit to accept it as baggage.^ 2. So the word baggage was held not to include a trunk, con- taining valuable merchandise, and nothing else, although it did not appear the passenger had any other trunk with him ;^ nor 7 Draper v. Worcester & N. Railway, 11 Met. 505; Moses v. Bos. & M. Kail- way, 4 Fos. 71, 80. 8 Dill V. Railroad, 7 Rich. 158 ; Stadhecker v. Combs, 9 Rich. 193. 9 Civil Code, § 675; Covington & Lexington Railway Co. v. Ingles, 15 B. Monr. 637. 1 Great Northern Railway v. Shepherd, 9 Eng. L. & Eq. R. 477. In this case, the court gravely declare, that a husband and wife, travelling together, may take 112 lbs. baggage, the limit for one person, by act of parliament, being fifty-six pounds. 2 Pardee v. Drew, 25 "Wend. 459. It was held that " thirty-eight pairs of new 840 § 144.] COMMON CARRIERS. * 313 samples of merchandise carried to enable the passenger to make bargains.^ 3. In one case the carrier was held responsible for articles of jewelry, carried among baggage, which were a part of female dress, the plaintiff travelling with his family, such articles being treated * without questioiij as forming a part of the passenger's baggage.* So a watch carried in one's trunk is proper baggage.^ 4. But railways, as carriers of passengers, are not liable, for money, which passengers may carry as baggage, beyond a reasonable amount for travelling expenses.® The passenger is shoes, sixty pairs stock for boy's shoes, and two papers shoe-nails," is not included under the term " baggage." Collins v. Boston & Maine Railway, 10 Cush. R. 606. 3 Hawkins v. Hoffman, 6 Hill, 586; Dibble v. Brown, 12 Ga. R. 217. But where a passenger delivered a box, containing embroideries, to the agent for re- ceiving baggage, and demanded a check for the place of his destination, and was told, that the company " did not check such goods," but that they would go safely, it was held the company was liable for the loss of the box, as common carriers, on the ground that there was no attempt to deceive them, or to have the parcel pass as baggage, jjnless they consented, and if they consented to accept and carry it, in a passenger train, they were liable, and might charge freight the same as if they carried it upon their freight trains. This seems to be a very reason- able view of the case. Butler v. Hudson River Railw. 3 E. D. Smith, 571. But there must be some proof that the person accepting the parcel was the proper agent for that purpose, or that it was placed in the companies' cars. lb. * Brooke v. Pickwick, 4 Bing. 218 ; McGill u. Rowand, 3 Barr, 451. In Whittnore v. Steamboat Caroline, 20 Mo. R. 513, it was held not to be within the ordinary duty of a steamboat, as a common carrier, to transport specie, and that the officers could not bind the proprietors by such an undertaking, unless by proof of a usage, and that a passenger's baggage only included specie to the ex- tent of his probable expenses. 5 Jones V. Voorhies, 10 Ohio R. 145. 6 Orann-e Co. Bank v. Brown, 9 Wend. 85 ; Weed v. Saratoga & Schen. Rail- way, 19 Wend. 534. In the case of Jordan v. Fall River Railway, 5 Cush. R. 69, the rule, in regard to money carried, by a passenger, as part of his baggage, is thus laid down by Fletcher, J. . "Money hand fide taken, for travelling expenses and personal use, may properly be regarded, as forming a part of the traveller's baggage." And this is perhaps as satisfactory and as definite a rule as the subject admits of. Taylor v. Monnot, 1 Abbott's Pr. R. 325. In Tennessee, it seems to have been considered, that money beyond expenses, or a watch, are not a proper part of one's baggage in travelUug. Bomar v. Max- well 9 Humphrey, 621. And in the case of Doyle v. Kiser, 6 Porter, (Ind.) R. 242, where a passenger, on a canal boat, had $4,000 in gold in his carpet-bag, which he did not name to the officers of the boat, and which was stolen during his 29* 341 ^314 THE LAW OF RAILWAYS. [§ 145. allowed to take not. only money sufficient to defray the ordinary expenses of the journey contemplated, but any reasonable sum, in addition, for such contingencies as are not improbable.'^ 6. And whtere the plaintiff sent, by a passenger train, a quan- tity of merchandise, expecting to go himself in the same train, but did not, and the goods were lost, without any gross negli- gence, or any conversion, by the carriers, it was held they were not liable.* *SECTION XXII. carriers' lien for freight. 1 . Lien exists, but damage to goods must be deducted, and freight must be earned. 2. But if freight be paid through, to first carrier, lien does not attach, ordinarily. 3. A wrongdoer cannot create a valid lien against the real owner. i, 5, 6, 7, 8. lUustrfition of the point last stated, 9. Passenger carrier has lien upon baggage for fare. 10. Carriers have no lien for general balance of account. ^ 1 1 . Lien may be waived, in same modes as other liens. 12. Delivery obtained by fraud, goods will be restored by replevin. 13. Last carrier in the route may detain goods, till whole freight paid. 14. Carrier cannot sell goods in satisfaction of lien. 15. Owner may pay fright, and sue for goods lost. 16. Carrier is bound to keep goods reasonable time, if refused by consignee. § 145. 1. As a general rule, the carrier is entitled to a lien upon the goods carried, for freight.' But if he once deliver the passage, it was held the carriers were not liable, beyond the value of the ordinary articles of baggage lost. Perkins, J., enumerates, as such, " clothing, travelling expense money, books for reading and amusement, a watch, ladies' jewelry for dressing." A gold watch and gold spectacles were held such in the case of the Steamer H. M. Wright, Newberry's Admiralt. R. 494. And in Davis u. Cayuga & Susquehannah Railway, 10 How. Pr. R. 380, it was held, that a harness-maker's tools, valued at $10, and a rifle, were to be regarded, as properly forming a part of the passenger's baggage on a railway, and that the possession of the company's check was prima facie evidence of his having been a passenger on their trains, and that he had baggage checked on that occasion, the possession of the check being accompanied with proof of the custom of the company, to put checks upon all baggage, where it was required, and to give duplicates to the passengers. 7 Johnson v. Stone, 11 Humphrey, 419. 8 Collins V. Boston & Maine Railw. 10 Cush. R. 506. 1 Skinner v. Upshaw, 2 Ld. Raym. 752. And for advances made, for freight and storage, by other carriers. White v. Vann, 6 Humph. 70. 342 § 145.] COMMON OARRIEKS. * 315 goods, this lien is waived.^ Or if the goods be damaged, in a manner for which the carrier is liable, the owner may deduct the amount of injury from the freight.^ But the goods must be carried, and * ready for delivery, or the carrier has no right to de- tain them for freight, the performance of the contract, on the part of the carrier, being a condition precedent to the right to demand freight.* 2. And the relation of debtor and creditor must exist between the carrier and the owner of the goods, so that an action at law might be maintained for the payment of the debt sought to be enforced by the lien.^ Hence where one .shipped goods, at Bur- 2 Boggs v: Martin, 13 B. Monroe, 243. This lien extends to all the freight upon the goods throughout their transportation, which may be advanced by the last carrier or warehouse-man. Bissel v. Price, 16 111. R. 408. 3 Same case as n. 2. Snow v. Carruth, Dist. Court, U. S. Dist. of Mass., be- fore Sprague, J., 19 Law Rep. 198, where the cases of Davidson v. Gwynne, 12 East, 380, and Sheelds v. Davies, 4 Camp. 119 ; s. o. 6 Taunt. 65, are considered, and overruled, so far as this question is concerned. , The right of the owner of the goods to insist upon any damage done the goods, for which the carrier is liable, by way of recoupment, or deduction from the freight, is well established in this country, and is a most elementary principle, as applicable to analogous cases. Bartram u. McKee, 1 Watts, 39 ; Leech v. Bald- win, 5 id. 446 ; Humphreys v. Reed, 6 Wharton, 435 ; Edwards v. Todd, 1 Scam. 462. But it is said the carrier is not subject to have damage done by some other party, in the transit, deducted from his lien. Bowman v. Hilton, 11 Ohio, 303. But it is no answer to the carrier's lien, that the goods have been damaged, dur- ing the transit, by inevitable accident, to an amount exceeding that of the lien, provided they were still of sufficient value to satisfy it. Lee v. Salter, Lalor's Supp. to Hill & Denio, R. 163. And where goods were carried by a continuous line of steamboats from New York to Fitchburg, Mass., being delivered upon the pier of the steamboat com- pany in good condition, and having been injured before their arrival at Fitch- burg, to an amount exceeding the freight, it was held no defence against the claim to set off the damage to the goods against the claim for freight, at the suit of the last railway company, in the line of transportation, that the damage accrued to the woods before the goods were laden upon the boat, and without negligence on the part of the carriers. The court say the carrier, in such case, may, if he choose, make a special acceptance of the goods, as a warehouse-man, during the period between the delivery and the departure, but unless that is shown, he is liable as carrier, from the time of the delivery for transportation. Fitchburg & Wor. Railway v. Hanna, 5 Gray, R. 4 Palmer v. Lorilard, 16 Johns. R. 356. Opinion of Kent, Chancellor, and cases cited. 5 Fitch V. Newberry, 1 Doug. (Mich.) R. 1. So too if the carrier detain the 343 * 316 THE LAW OF RAILWAYS. [§ 145. lington, upon Lake Champlaiiij for Detroit, Michigan, care of D. by common carriers, through whom he had previously transported goods to Detroit, and paid the freight in advance ; the goods coming into the possession of another line of carriers, at Troy, N. Y., without the knowledge of the owner, and being by them transported to Detroit, consigned to the care of F. who was a warehouse-man and forwarder, and who, without knowledge of the facts stated, advanced the freight due upon the goods, from Troy to Detroit, and refused to surrender them to the owner, tliitil reimbursed the amount ; in an action of replevin for the goods, it was held, that the owner was entitled to possession of the goods, without payment of the freight advanced by F.* 3. A common carrier, who innocently receives goods from a wrongdoer, without the consent of the owner, express or implied, has no lien upon them for their carriage, as against such owner.^ 4. Mr. Justice Fletcher, in delivering the opinion of the court, in the case last cited, alludes to the fact, that so little is found in the books upon this point, and the dictum, in York v. Grenaugh,' *by Lord Chief Justice Holt, that in the case of the Exeter car- rier, it was held that where one who stole goods delivered them to a carrier, who transported them, by his order, that the carrier thereby acquired a lien upon the goods for the freight, and that this had been adopted, by some of ^he elementary treatises, and by the courts even, arguendo, sometimes,^ and after referring to the case of Fitch v. Newberry, thus continues : — 5. " This decision is supported by the case of Buskirk v. Purin- ton, 2 Hall, 561. There property was sold on a condition, which the buyer failed to comply with, and shipped the goods on board the defendants' vessel, on the defendants' refusal to deliver the goods to the owner, he brought trover and was allowed to recover goods, for the payment of a sum beyond the freight, the owner being ready to pay freight, he and his agents are liable in trover, and in such case it is not requisite to make a formal tender of freight. Adains v. Clark, 9 Cush. K. 215 ; Isham li. Greenham, 1 Handy, Sup. Ct. liep. ^61. 6 Eobinson v. Baker, 5 Cush. R. 137. ' 2 Lord Kaym. 866, where it was held that an innkeeper might detain a horse for his keep, although put at the stable, by one who came wrongfully by him. But that case differs from a carrier, as the innkeeper cannot ordinarily demand pay in advance. 8 King V. Richards, 6 Wharton, 418. The court held here that the carrier might lawfully deliver the goods to the rightful owner, and defend against the claim of the bailor, or his assignee for value, on that ground. 344 § 145.] COMMON CARRIERS. * 317 the value, although the defendants insisted on their right of lien for the freight. 6. « In the case of Saltus v. Everett.^ it is said, ' The universal and fundamental principle of our law of personal property is, that no man can be devested of his property without his consent, and consequently that even the honest purchaser, under a defec- tive title, cannot hold against the proprietor.' There is no case to be found, or any reason, or analogy, anywhere suggested, in the books, which would go to show that the real owner was con- cluded by a bill of lading not given by himself, but by some third person, erroneously or fraudulently." 7. " The reason, and the only reason given, is, that he is obliged to receive goods to carry, and should therefore have a right to detain the goods for his pay. But he is not bound to recehre goods from a wrongdoer. He is bound only to receive goods from one who may rightfully deliver them to him. And he can look to the title, as well as persons in other pursuits and situa- tions in life. Nor is a carrier bound to receive goods, unless the freight is first paid to him, and he may in all cases secure the payment of the carriage in advance. 8. " Upon the whole the court are satisfied, that upon the ad- judged cases, as well as on general principles, no right of lien for freight can grow out of a wrongful bailment of the goods to the carrier." * 9. The carrier of passengers has a lien for his charges upon the baggage, but not upon the person of the passenger.^" 10. And neither carriers, nor warehouse-men, have any lien upon goods for a general balance of account against the owner,^^ more than in other cases of lien. 11. As we have said this lien inay be waived by delivery of the goods, and the other usual modes of waiving liens, as by accept- ing security for the freight on time, or where by the terms of the contract of carriage, the carrier is not to receive pay, at the time of delivery of the goods.^^ 9 20 Wend. 267, 275. '0 Story on Bailm. § 604; Wolf v. Summers, 2 Camp. R. 631; MeDaniel u. Robinson, 26 Vt. R. 316. 11 Rushforth V. Hadfield, 6 East, 519; Hartshorn v. Johnson, 2 Halst. 108; Green v. Farmar, 4 Burr. 2214. 18 Crawshay v. Homfray, 4 B. & Aid. 50. 345 * 317 THE LAW OF RAILWAYS. [§ 145. 12. And where the carrier is induced to deliver the goods to the consignee, by a false and. fraudulent promise of the latter that he will pay the freight, as soon as they are received, the delivery will not amount to a waiver of the lieii, but the carrier may disaffirm and sue the consignee in replevin.!^ 13. In general the last carrier may detain the goods, not only till his charges, but until all the charges, during the transit are paid. If this is not settled by law, in any place, the cus- tom and course of trade ma,y be shown.^* And in such case, and in all cases of lien for freight, if the goods be delivered, with- out exacting payment of the dues, the owner is liable to the party entitled to demand the same, whether they consist of sums due for services, or advances, for the services of other parties, m9,de in the due course of the business.^^ 14. But the carrier, or any other bailee, having a lien, cannot seU the goods, at common law, in satisfaction of the lien. The appropriate remedy, in such case, is in equity.^^ 15. Payment of freight to a common carrier for the portion of a consignment delivered, is no presumptive evidence, either of the delivery of the remainder of the consignment, or of release from liability on that account. The consignee in such ease has an option, either to set off the loss against the freight, or pay freight, and sue for the goods not dejivered.^^ 16. But where the consignee declines accepting the goods, on the ground that the charges are unreasonable, or for any other cause, when the carrier is not in fault, he must still keep the goods safely, for a reasonable time at least. And where they were, under such circumstances, immediately returned to the consignor, in a remote place, it was held the carrier was liable for the damages sustained, and there being a count in trover, it is intimated, that such act amounts to a conversion.^^ 13 Bigelow V. Heatoh, 6 Hill, 43 ; s. c. 4 Denio, 496. See also Hays v. Kiddle, 1 Sandf. 248. '* Lee V. Salter, Lalor'g Supp. to H. & Denio, 163. This lien includes all charges during the transit, of warehouse-men and forwarders. See also Cooper V. Kane, 19 Wend. 386 ; Dawson v. Kittle, 4 Hill, 107, as to the effect of usage. 15 Jones V. Pearlc, 1 Strange, 656 ; Pothonier v. Dawson, 1 Holt, 2S1. P. C. 383 ; 2 Kent, Comm. 642 ; Hunt v. Haskell, 24 Maine R. 339. 18 Fox V. McGregor, 11 Barb. 41 ; Jones v. Pearle, and cases supra, n. 14. 17 Moore's Ex. v. Patterson, 28 Penn. St. R. 505. 18 Crouch V. Great Western Railw. 31 Law Times, 38, s. c. 2 Hurl. & Nor. 493. 346 § 146.1 COMMON CARRIERS. *318 *SECTION XXIII. TIME OF DELIVERY. 1., Carrier must deliver goods in a reasonable time, or according to his contract. 2. Delay caused by unusual press of business, will not make carrier liable. 3. Orhy the loss of a bridge, from an unusual freshet. 4. Carriers excused by the custom and course of the navigation. § 146. 1. In the absence of a special contract, the carrier is bound to perform his duty, i. e. deliver the goods at their desti- nation, or, at the end of his route, to the next carrier, in a rea- sonable tiine, according to the usual course of his business, with all convenient dispatch.^ And, if the carrier or his servant, within the scope of his employment and duty, enter into any special contract to deliver in any particular time or place, even beyond the terminus of his particular route, it will be binding, and the owner, it would seem, may recover damages, with refer- ence to expected profits, had the goods been delivered in time.^ 2. But, if the carriers, being a railway company, make no special contract to deliver in any particular time, and a delay happen in the transportation, in consequence of an unusual press in business ; the company having a reasonable equipment for all ordinary purposes, and the goods being carried with as much expedition as is practicable, under the circumstances, they are not liable for damages.^ 1 Raphael v. Pickford, 5 M. & G. 551 ; Broadwell v. Butler, 6 McLean, K. 296, But what is reasonable time is a question of fact, depending upon the circum- stances of the case. Id. Nettles v. S. C. Railway, 7 Rich. 190 ; id. 409. 2 Wilson V. York, Newcastle and Berwick Railway, 18 Eng. L. & Eq. R. 557; Hughes V. G. W. Railway, 25 Eng. L. & Eq. R. 347. But, in Boner v. The Merch. Steamboat Co. 1 Jones (N. C.) 211, it is said that the obligation upon carriers by which they become insurers, does not extend to the time of delivery. Parsons v. Hardy, 14 Wendell, 215 ; Story on Bailm. 545a. See also upon this point, Sangamon & Morgan Railway v. Henry, 14 Illinois, 156 ; Kent v. Hudson River Railway, 22 Barb. 278; Lipford v. Charlotte & South Carolina Railway, 7 Rich. 409, and Nettles v. Same, id. 190 ; Harmony v. Bingham, 2 Kernan, 99 ; 1 Duer, 209, where it is held, that if the party enter into a contract to deliver goods, within a specified time, he cannot excuse himself, by showing delay caused by in- evitable necessity. 3 Wibert v. The N. Y. & Erie Railway, 19 Barb. 36 ; s. c. 2 Kernan, 245. In this case, it is said, the measure of damages in such cases, is not necessarily the 347 *319 THE LAW OF RAILWAYS. [§ 147. * 3. But, where the delay in transportation happened in con- sequence of the loss of one of the company's bridges, by an unusual freshet, and in the mean time, the price of the goods depreciated in the market, it was held that the company were not liable, this being the act of God. It was held, that for any injury to the goods, during the delay, the company are liable.* 4. But the falling of the water in the Ohio River, preventing a boat passing up the falls with its cargo, was held not to come strictly within the exception to the carriers' responsibility. But proof of a long-established usage, uniform and well known, to allow boats, in such cases, to wait, a month or more, for the rise of water, without incurring liability for not delivering their cargo in a reasonable time, under the usual bill of lading, "with " the privilege of reshipment," is admissible. And it was held, that such delay did not deprive the owner of the right to recover full freight.^ SECTION XXIV. CARRIERS HAVB AN INSURABLE INTEREST IN THE GOODS. § 147. As carriers become insurers of all goods, which they carry, against fire, or marine disaster, except from inevitable acci- dent, there can be no doubt they have, to that extent, an insur- able interest in the goods, and it has been so held.^ And this insurable interest continues, so long as the liability of the carrier continues, even where they employ other carriers.^ difference in prices, at the time it should have been delivered, and that at which it was delivered. 4 Lipford V. The S. C. Railway, 7 Rich. 409. But see ante, § U2, n. 4. See also The May Queen, Newberry's Adm. R. 464. 5 Broadwell v. Butler, 6 McLean, R. 296. 1 Chase V. Washington Mutual Insurance Company of Cincinnati, 12 Barb. 595. But the carrier has the right, by express contract, to except risks from fire, or any other cause, from his undertaking, and in such case he is not liable for loss, by the excepted risk. Parsons v. Montroth, 13 Barb. 353. But upon general principles the first carrier is liable for loss by fire, while the goods are in a, float, changing to the next carrier. Miller v. Steam Nav. Co. 13 Barb. 361. 348 § 148.; COMMON CARRIERS. *S20 "SECTION XXV. KULE OF DAMAGES, AND OTHER INCIDENTS OF ACTIONS AGAINST CARRIERS. 1. Damages, for total loss, are the valtie of the goods at the place of destination. 2. Goods only damaged, owner bound to re- ceive them, and the amount of damage. 3. Upon evidence of servants' unfaitJfulness or negligence, some explanation must be given, or the company held liable. 4. Company liable, for special damages, where they act mal& fide. ' 5. But not ordinarily liable for special dam- age. 6. Consignor owning the goods the proper party to sue. 7. Consignor in such case not estopped, by the act of consignee. 8. Actions may be brought in the name of bailee, or agent. 9. Recovery in such cases bars the claim of general owner. 10. Where general property in consignee, he should sue. 1 1 . Preponderating evidence must be given. § 148. 1. The general rule of damages, in actions against car- riers, where the goods are lost, or destroyed, by any casualty, within the range of the carrier's responsibility, is sufficiently obvious. It must be the value of the goods, at the place of des- tination.^ And this will commonly include the profits of the adventure.^ In a well-considered English case,^ Lord Tenterden, Ch. J., thus lays down the rule : " The damages ought to be the value of the cargo, at the time when it ought to have been deliv- ered, that^is, at the port of discharge." Parke, J., said, " The sum it would have fetched, at that time, is the amount of loss sustained by the non-performance of the defendants' contract." 2. But where the goods are only damaged, the owner is still bound to receive them, and cannot abandon, and go against the carrier as for total loss.* But whether the owner have accepted 1 Hand v. Baynes, 4 Wharton, 204. Ante, § 146, n. 2 ; Griefi'u. Switzer, 11 Louis. An. 324. 2 Sedgwick on Dam. 356. 3 Brandt v. Bowlby, 2 B. & Ad. 932. See also Gillingham v. Dempsey, 12 S. & R. 183 ; Ringgold v. Haven, 1 Cal. R. 108. Trover will not lie against the carrier, or any other bailee, for mere neglect of duty. There must be an actual conversion, or a refusal to deliver, on proper request. Bowlin v. Nye, 10 Cush. 416 ; Opinion of court in Rome Railway v. Sullivan, 14 Ga. 283 ; Robinson v. Austin, 2 Gray, 564. * Shaw V. South Carolina Railway, 5 Rich. 462. So also where not delivered in a reasonable time, the owner can only recover damage of the carrier. Sco- ville V. Griffith, 2 Kernan, 509. 30 349 *321 THE LAW OF EAILWATS. [§148. *the goods, or not, he may recover for any deterioration they have sustained, unless by the excepted risks in the carrier's un- dertaking.^ 3. In an action against a carrier, slight evidence having been given, that the porter of the carrier stole the goods, and the jury having found for the plaintiff, a new trial was denied, on the ground that the carrier did not offer the porter as a witness.^ And in an action against a railway for negligence, if the plain- tiff show damage, resulting from an act of defendants, he makes a primd facie case, and the defendant must show that he was in the exercise of the requisite degree of care, or else that such a state of circumstances existed, as rendered all exercise of care unavailing, and this is so although the act complained of is one, which, with proper care, does not ordinarily produce damage.' 5 Bowman v. Teall, 23 Wendell, K. 306. S Boyce v. Chapman, 2 Bing. N. C. 222. And upon general - principles the plaintiff makes a prima facie case, by showing that the goods did not reach their destination. Story on Bailm. §529a; Woodbury w. Prink, 14 El. 279; Ben- nett V. Filyaw, 1 Florida, K. 403 ; Bark Oregon, Newberry's Adm. R. 504 ; Brig May Queen, id. 464. But where the carrier has, by notice, or special contract, limited his responsibility, as a common carrier, the burden of proof of showing negligence is upon the consignee, the same as in ordinary suits, charging neglect of duty. Id. But where the bill of lading states the goods to have been shipped in good order, and they arrived in a damaged state, the burden of proof is upon the carrier, to show, that the damage occurred by causes, for which by the bill of lading he was not responsible. The Propeller Cleveland, id. 221. And where, in such case, the carrier shows the existence of facts, from which this could be fairly inferred, it devolves upon the shipper to show, that the damage might have been prevented by the exercise of ordinary care and skill, on the part of the carrier. Id. And where the carrier at first wrongfully refused to deliver goods consigned to a manufacturer, but afterwards delivered them, it was held, that he was not liaible for consequential damages, from the delay of the consignee's works, or the consequent loss of profits, but only for the expense of sending a second time for the goods. Waite v. Gilbert, 10 Cush. 177. Perhaps the manufacturer was entitled to some consideration, by way of damages, until he could have supplied himself, in other ways, with similar materials, if indispensable for his present use. But to recover such special damages, which are not the natural, or ordinary result of the act complained of, it is probably necessary, in strictness, to declare specially. But in a late case in the Court of Exchequer, for not carrying a pas- senger according to the carrier's duty and contract, it was held that no such remote and accidental damages are recoverable, in any form. Hamlin v. Great Northern Railw. 38 Eng. L. & Eq. 335. See post, § 156, n. 2. ' EUis V. Portsmouth & Raleigh Railway, 2 Iredell, 138. 850 § 148.] COMMON CARRIERS. * 322 4. In a late English case,^ it is held, that if a railway company omit to deliver bundles of packed parcels, in time, with a view to injure the plaintiff's business, as a collector of parcels, and thereby ' create a monopoly in themselves, they will be liable to the special damage resulting therefrom, but not otherwise. 5. Where a plan and models sent to compete for a prize were lost, by the carriers, it was held, the proper measure of damages is the value of the labor and materials expended in making the articles, and not damages, from losing the chance of obtaining the prize ; the latter being too remote.^ 6. The consignor, who owns the goods, and sustains the injury from the damage or loss, is the proper party to bring the action against the carrier.^" 7. A receipt for the goods, by the consignee, acknowledging to have received them in good order, and in which he is requested to notice any errors therein, in twenty-four hours, or the carrier will consider himself discharged, does not estop the consignor, in such case, from suing the carrier, for damage of the goods, although no notice thereof was given the carrier.^" 8. Actions against carriers may be brought in the name of bailees, or agents, who have the rightful custody of the goods, and who make the bailment, or in the name of the owner.^^ 9. But it is well settled, that a recovery for the goods, of the first, or aay subsequent carrier, in the name of any one having either a general or special property in the goods, in an action properly instituted, will be a bar to any subsequent suit, against the same person, at the suit of another party, having either a general, or special property in the goods.^^ 10. Where the general property in the goods vests in the con- signee, upon delivery to the carrier, the consignor has ordinarily no property remaining, even where he pays the freight.^^ 11. In the trial of actions against carriers, where the goods, or 8 Crouch i>. Great Northern Railway, 25 Law Jour. R. 137. 9 Lythgoe v. East Anglian Railway, 15 Jurist, 400. '0 Sanford v. Housatonic Railway, 11 Cush. R. 155. 11 Elkins V. Boston & Maine Railway, 19 N. H. R. 337 ; White v. Bascom, 28 Vt. R. 2G8. 12 White V. Bascom, 28 Vt. R. 268; Green v. Clark, 13 Barb. 57 ; s. c. 2 Ker- nan, 343. 13 Green v. Clark, supra. 851 * 323 THE LAW OP RAILWATS. [§ 149. baggage, pass over successive lines of transportation, it has been held insufficient evidence, to charge the first carrier to show the delivery of the goods to him, and the failure of their arrival, at the place of destination, thus leaving the case without any pre- ponderating evidence, to show that they were not delivered to the second carrier.^* 'CHAPTER XVII. COMMON CAKRIBKS OF PASSENGERS. SECTION I. DEGREE OF CARE REQUIRED. 1 . Are responsible for the utmost care and watchfulness. 2i Duty extends to every thing connected with the transportation. 3. But will not extend to an insurance of safety. 4. Will make no difference, if passenger does not pay fare. 5. So too where the train is hired for an ex- cursion, or is under control of state offi- cers. § 149. 1. It is agreed on all hands that carriers of passengers are only liable for negligence, either proximate or remote, and that they are not insurers of the safety of their passengers, as they are, as common carriers of goods, and of the baggage of passengers. The rule is clearly laid down in one of the early cases,^ by Eyre, Ch. J. : that carriers of passengers " are not liable for injuries happening to passengers, from unforeseen acci- dent or misfortune, where there has been no negligence or default in the driver." " It is said he was driving with reins so loose, that he could not readily command his horses ; if that was the case, the defendants are liable ; for a driver is answerable for the smallest negligence." This is now the settled rule upon the sub- ject, as applicable to all modes of carrying passengers, by those 1* Midland Railway v. Bromley, 33 Eng. L. & Eq. K. 285. 1 Aston V. Heaven, 2 Esp. R. 589; Frink v. Potter, 17 Illinois R. 496. 852 § 149.] COMMON CARRIERS OF PASSENGERS. * 324 who hold themselves out as public or common carriers of pas- sengers.2 2. And the obligation of care and watchfulness extends to all the apparatus by which passengers are conveyed.^ In this last * case it is said : " The obligation of a stage proprietor, in regard to carrying passengers safely, has reference to the team, the load, the state of the road, as well as the manner of driving." In another case the rule is somewhat more elaborated,* by Best, Ch. J. : " The action cannot be maintained unless negligence be proved, and whether it be proved is for the determination of the jury. The coachman must have competent skiU, and must use that skill with diligence ; he must be well acquainted with the road he undertakes to drive ; he must be provided with steady horses, a coach and harness of sufficient strength and properly made, and also with lights By night. J^ there be the least failure in any one of these things, the duty of the coach proprietors is not fulfilled, and they are answerable for any injury, or damage, that happens." The rule of care and diligence thus laid down has been very generally adopted in this country.'^ 2 Christie v. Greggs, 2 Camp. R. 79 ; Harris v. Costar, 1 C. & P. 636 ; White V. Boulton, Peake's C. 81 ; Sharp v. Grey, 9 Bing. R. 457. . 3 Taylor u. Day, 16 Vt. R. 566 ; Curtis v. Drinkwater, 2 B. & Ad. 169. ■• Crofts V. Waterhouse, 3 Bing. R. 319. A very similar rule is adopted in Farrish u. Reigle, 11 Gratt. 697. The defect in this case was the blocks being out of the brakes, which caused the coach to press upon the horses so that they could not control it, and in consequence it was upset, and the plaintiif injured. The coach-owner, or his servants, must examine his coach before each trip, or he is chargeable with negligence, if any accident happen through defect of the coach. And if any irregularity is pointed out, the driver must look to it imme- diately. Brenner v. Williams, 1 C. cfe P. 414, Best, Ch. J. 5 Boyee v. Anderson, 2 Pet. Sup. Ct. R. 150; Stokes v. Saltonstall, 13 Pet. U. S. K. 181, 192 ; Fuller v. Naugatuck Railway, 21 Conn. R. 557 ; Hall v. Conn. Riv. Steamboat Co. 13 Conn. R. 319; Camden & Amboy Railway v. Burke, 13 Wend. 611, 626; McKinney i^. Neil, 1 McLean, 540; Maury o. Talmadge, 2 McLean, 157; Stockton v. Frey, 4 Gill, R. 406 ; Hollister v. Nowlen, 19 Wend. R. 236 ; Derwort v. Loomer, 21 Conn. 245. The rule in Connecticut was first settled, in 13 Conn. 326, that carriers of pas- sengers are " bound to the highest degree of care that a reasonable man would use." This has been adhered to, in all the subsequent cases, and is substantially the same as the English rule, and as that adopted in the other states, and in the United States Supreme Court, 13 Pet. Sup. Ct. R. 190, where Mr. Justice Bar- hour indorses the charge of the Circuit Court, that the carrier of passengers is liable " if the disaster was occasioned by the least negligence, or want of skill, or prudence, on his part." 30* 353 * 325 THE LAW OF RAILWAYS. [§ 149, * The fact that injury was suffered by any one, while upon the But in the case of Boyce v. Anderson, 2 Pet. 150, Mr. Ch. Justice Marshall lays down the rule of care, in such cases, as that of ordinary care, — the care ■which all bailees for hire owe the employer. The court, in 13 Pet. R. 192, at- tempt to escape from this rule, upon the ground that the remarks of Ch. Justice Marshall, in the former sase, had reference exclusively to the carriage of slaves, and that the rule laid down would not of necessity apply to ordinary passengers. But it is observable that the learned chief justice makes no such distinction, and also, that the nearer the thing transported comes to the condition of property merely, the higher the degree of care and responsibility, so that the argument seems not only to fail, but to produce a reflex influence. We refer to this subject here, not with any view to go into the question of the real coincidence of the degree of care of carriers of passengers and that of ordi- nary bailees for hire, but merely to state, that it seems to us the cases really come up to nothing more, than that which is required of every bailee for hire, that he should conduct the business, as prudent men would be expected to conduct their own business of equal importance. And if the business be of the highest mo- ment, then the care, skill, and diligence should be also of the most extreme char- acter. We here refer to the case of Briggs v. Taylor, 28 Vt. R. 180, 184, for a more full exposition of this subject. If the degree of care and watchfulness is to be in proportion to the importance of the business, and the degree of peril incurred, it is scarcely possible to express the extreme severity of care and diligence, which should be required in the con- duct of passenger trains upon railways. Hence very few cases of accident and injury have occurred, where it was not considered, in some measure, attributable to a want of the requisite degree of care. But see Hood v. N. Y. & N. H. Railway, 22 Conn. R. 1, 15 ; Galena & Ch. Railway v. Yarwood, 15 111. R. 468 ; 14 How. U. S. Sup. Ct. R. 468 ; Railroad Co. V. Aspell, 23 Penn. R. 147, 149 ; N. J. Railway Co. v. Kennard, 21 Penn. R. 203 ; McElroy v. Nashua & Lowell Railway Co. 4 Cush. 400 ; 16 Barb. 356. In Caldwell v. Murphy, 1 Duer, 241, the court say : " The charge of the judge, that the law exacted from a carrier of passengers extraordinary care and dili- gence, and that they are liable, unless the injury arises from force or pure acci- dent, was entirely correct." And in Ingalls v. Bills, 9 Met. 1, the same rule is adopted. The injury here occurred from the breaking of the axletree of the coach, through a flaw in the iron not visible upon the outside, and the defendant had been at great care and expense, in procuring a coach of the best materials and workmanship, as he supposed ; and the court say, that carriers of passengers are " bound to use the utmost care and diligence in the providing of safe, sufli- cient, and suitable coaches, harnesses, horses, and coachmen, in order to prevent those injuries, which human care and foresight can guard against ; and if acci- dent happens through defect in the coach, which might have been discovered and remedied, upon the most thorough and careful examination of the coach, the owner is liable. But if the injury arise from some invisible defect, which no or- dinary test will disclose, like that in the present case, the carrier is not liable." Frink v. Potter, 17 111. R. 406 ; Galena & Chicago Railway v. Fay, 16 111. R. 558. See also Wilkie v. Bolster, 3 E. D. Smith, 327. 354 § 149.] COMMON CARRIERS OF PASSENGERS. * 326 * company's trains as a passenger, is regarded as primd facie evi- dence of their liability .^ Slaves are to be regarded as passengers, and carriers only liable, for negligence, in carrying them. MoClenagan v. Brook, 5 Rich. 1 7. But a railway company, who take on their trains a slave, and transport him for the usual fare for negroes, such slave, having only a general pass, or permit, when the law of the state requires such permit to specify the length of time the slave is to be absent, and the places he is to visit, this being done, without the knowledge of the owner of the slave, are liable for a conversion of the slave, and for all the injuries received, by such slave, in consequence of such transportation, whether occurring from the negligence of the company, or not. Macon & Western Rail- way V. Holt, 8 Georgia, 157. See also upon the general subject of this note, Black V. Carrollton Railway, 10 Louis. Ann. R. 33. " Denman, Ch. J., at Nisi Prius, in Carpue u. London & B. Railway, 5 Q. B. 747. Laing v. Colder, 8 Penn. 483 ; Galena & Ch. Railway v. Yarwood, 15 111. 471 ; Hegeinan v. The Western Railway, 16 Barb. 356 ; Holbrook v. The Utica & Schen. Railway, 16 Barb. 113 ; 20 Barb. 282. The same rule had obtained in actions against carriers of passengers by coaches. 13 Pet. Sup. Ct. R. 181. See Skinner v. L. B. & South Coast Railway, 2 Eng. L. & Eq. R. 360, to same eflfect. But in Holbrook & Wife v. Utica & Schen. Railway, 2 Kernan, 236, the court seem to deny that a presumption of negligence arises in all cases of injury to passengers. In this case the wife's arm, while in the window of the car, was broken, by something coming in contact with the car, in passing stationary cars of the company, on another track. The court say, in cases of this kind, tlie burden of showing negligence is upon plaintiff, and the presumption is an inference of fact for the jury, from the cause of the injury and the circumstances attending. The case of Hegeman v. The Western Railway, 16 Barb. 353, was where the plaintiff had sustained an injury, by the breaking of an axletree, while he was a passenger in defendant's cars, and it was claimed to be neglect in the company, in not providing safety-beams to tbeir cars, and it was held, that evidence might be received, to show the utility of the invention, and that it was proper to submit the question of negligence to the jury, under proper instructions. The court say : " Whether the engine or car, which is placed upon the road, for the purpose of carrying passengers, has been manufactured at its own shops," ... or pur- chased of other manufacturers, " the company is alike bound to see, that in the construction, no care or skill has been omitted, for the purpose of making such engine, or car, as safe as care and skill can make it." It was held to afford no presumption against the negligence of the company, that they had selected their servants with care, with reference to their competency, or that the act, by which the plaintiff sustained injury, was done without the sanction of the company. Gillenwater v. The Madison & Indianapolis Railway, 5 Ind. R. 340 ; Earrish v. Reigle, 11 Grat. 697. In Galena & Chicago Railway v. Yarwood, 17 III. R. 509 ; s. c. 15 111. R. 468, it is held, that a passenger in a railway car need only show that he has received 355 * 327 THE LAW OF RAIliWATS. [§ 149. * 3. So, too, evidence that the ears did not stop at a way sta- tion, the usual time, and that a passenger is injured in getting an injury, to make a, prima facie case against the carrier ; tlie carrier must rebut the presumption, in order to exonerate himself. Negligence is a question of fact, which the jury must pass upon. Persons in positions of great peril are not required to exercise all the presence of mind, and care, of a prudent, careful man, under ordinary circumstances ; the law makes allowance for them, and leaves the circumstances of their conduct to the jury. See Albright v. Penn, 14 Texas R. 290. In Frink v. Potter, 17 111. R. 406, it was held, the proprietor of a stage-coach is liable for an injury to a passenger, which resulted from the breaking of an axle- tree, by the effect of frost. If the carrier knew, or might have known, by the exercise of extraordinary care and attention, that danger would result from using a coach in the manner and under the circumstances, and the danger could have been avoided, he is liable. And if such danger exists, as cannot be avoided, and so imminent as to deter prudent men from encountering it, in their own business, the carrier should, it would seem, refuse to proceed, or he will be liable for the consequences. Passen- gers should not be pushed into inevitable danger, without being consulted. But if, being informed, they choose to incur the hazard, probably it should be regarded, as their own misfortune, if they suffer damage, in spite of the best efforts of the carrier and his servants. In Laing v. Colder, 8 Penn. 483, it was held, that where passengers in a rail- way car are liable to have their arms caught, in passing bridges, if lying out the windows, it is the duty of the conductors of the train to give such notice to them, as will put them effectually on their guard, or the company are liable for all such injuries, and that it is not sufficient to trust to printed notices put up in the cars. But in regard to such perils as ordinarily attend railway travelling, and which must be apparent to all passengers of common experience, like passing from car to car, or standing upon the platforms, when the train is in motion, it is probable that general notice would be suiRcient, and a passenger, who voluntarily exposes himself to extraordinary peril, having no necessity or excuse for doing so, should not be allowed to recover for damage thereby accruing. But if he have a ne- cessity for doing so, and damage accrue, in consequence of the negligent conduct of the train, he ought not perhaps to be precluded from a recovery. See also Christie v. Griggs, 2 Camp. 79 ; Ware v. Gay, 11 Pick. 106 ; Stockton u. Prey, 4 Gill, 406 ; Nashville & Chat. Railway v. Messino, 1 Sneed, 221. In 3 Kernan, 9, the case of .Hegeman v. The Western Railway, is affirmed by the Court of Appeals, and the proposition in regard to the liability of the com- pany for defects in their cars, being the same, whether they manufacture them, or purchase them of others, which is extracted from the opinion of the Supreme Court above, is distinctly reaffirmed by the Court of Appeals. Demo, J., dis- senting. The Court of Appeals recognize the rule of care and diligence, to which we have before alluded, that its extent is to be measured by the known perils to which passengers are exposed, and that something more is required in railway transportation than in carrying passengers by coaches. 356 § 149.] COMMON CARRIERS OP PASSENGERS. * 328 out, is good * evidence against the company, in an action to re- cover for the injury.'^ In an action for damages sustained by a passenger on a railway, by the breaking down of a bridge, it is no excuse, that the bridge was built by a competent engineer.^ But it seems to have been doubted by the court, in this case, whether the company could have been chargeable with any fault, if they had adopted the best mode of constructing the bridge, and the best materials, under the supervision of a competent engineer. This seems to be stating a case where the bridge could not have fallen, but by an earthquake, or some convulsion of nature, for which the company are in no sense liable. 4. The liabilities of the company attach, although the passen- ger were riding upon a free ticket, as a newspaper reporter.^ But Gardiner, Ch. J., says : " That although the defect was latent, and could not be discovered by the most vigilant external examination, yet if it could be ascer- tained by a known test, applied either by the manufacturer or the defendant, the latter is responsible." And in Curtis v. Rochester & Sy. Railway, 20 Barb. 282, where the injury occurred from a misplacement of the rails, a collision being caused thereby, it was held the company were bound to see that the rails were in the right position, and not to trust exclusivejy to the lever of the switch, when the rails were in open view, while moving it, and also to see that the rails were firmly secured, and for want of these things, they were guilty of negligence ; that evidence that the switch was placed right, did not rebut all presumption of negligence ; that it was a question for the jury, under all the facts and circumstances. So also the company were held liable where the injury occurred from coming in contact with an animal upon the track, which might have been seen early enough to stop the train, and where the train was moving at an unreasonable rate of speed, and no signal given, or effort made to arrest the speed. N. & C. Kail- way V. Messino, 1 Sneed, 220. 7 Fuller & Wife v. The Naugatuck Railway, 21 Conn. 557. 8 Grote V. The Chester & Holyhead Railway, 2 Exch. 251. 9 Hodges on Railway, 621 ; Great N. Railway v. Harrison, 26 Eng. L. & Eq. R. 443 ; Gillenwater v. Mad. & I. Railway, 5 Ind. R. 340. And in Nolton v. The Western Railway, 15 N. Y. Court of Appeals, 444, it is held that where a railway voluntarily undertakes to convey a passenger upon their road, whether with or without compensation, if such passenger be injured by the culpable negligence or want of skill of the agents of the company, they are liable, in the absence of an express contract exempting them. The point of the degree of care requisite in such cases is here discussed, but not decided. But the argument is in favor of that for which we contend, that the care, diligence, and skill required, in any particular business, is determined by the difficulty and peril of the business, rather than by the consideration of the undertaking. This is the same case of a mail agent, who was carried, as an accessory of the mail, referred to on p. 620. And, although 857 *329 THE LAW OF KAILWAYS. [§ 149, it has been sometimes claimed to admit of some question, whether such passengers could always exact the same degree of care and watchfulness, as one who paid fare, especially where his ticket, as is not unusual, in such cases, contained a notice, that passengers, who used such ticket, rode at their own risk, and the company would not be responsible for the safety of such passen- gers, or their baggage. But the subject is very much discussed in one very important case,^" in the national tribunal of last re- sort, where the plaintiff, being president of another railway, was at the time riding by invitation of the president of defendants' road, in a special train, * for the accommodation of the oflScers of the road, and without charge. The collision occurred by another engine and tender, coming in th^ opposite direction, upon the same track, in disobedience of orders to keep the track clear. Grier, J., said : " The confidence induced, by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it. Where carriers undertake to carry persons, by the powerful but dangerous agent of steam, public policy and safety require that they be held to the greatest possi- ble care and diligence. And whether the consideration for such transportation be pecuniary, or otherwise, the personal safety of the passengers should not be left to the sport* of chance, or the the court seem to regard it as a case of gratuitous transportation, it seems to iis it should not so be considered. We should certainly hold it a carrying for com- pensation, by the contract, although nothing in particular was paid for the fare of the agent as such. 10 Derby v. Phil. & Read. Railway, 14 How. 483. The principle of this case has been followed out, in an elaborate opinion of Mr. Justice Curtis, Steamboat New World v. King, 16 How. U. S. R. 469, 474, where the old theory of different degrees of negligence, defined by the terms, slight, ordinary, and gross, is ex- amined and dissented from. The true theory seems to be, that it makes no dif- ference, whether a service is performed gratuitously, or not, in regard to the obligation to perform it well, after it is once entered upon. But it depends chiefly upon the circumstances of the case, and the undertaking of the party. If one is permitted to ride in the company's carriages, as a passenger, he is certainly entitled to demand, and to expect, the same immunity from peril, whether he pay for his seat, or not. The undertaking to carry safely is upon sufficient consider- ation, if once entered upon, as was held in the familiar case of Cogas v. Bernard, Holt, R. IS. But if the party should obtain consent to ride in some unusual mode, for his own special accommodation, he is then only entitled to expect such security as the mode of conveyance might reasonably be expected to afford. , 368 150.] COMMON CARRIERS OF PASSENGERS. '330 negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross." 5. Hiring a train for an excursion does not excuse the company from liability to the passengers for injuries caused by their ser- vants." Or if the train is under the control of state officers, it will not exonerate the company, or a natural person, if they con- tinue to act as passenger carriers under the state.^^ SECTION II. LIABILITY, WHERE BOTH PARTIES ARE IN FAULT. 1 . Company not liable unless in fault. 2. Not liable where plaintiff's fault contrib- utes directly to injury. 3. Company liable, for wilful misconduct, or such as plaintiff could not avoid. 4. Plaintiff may recover for gross neglect of company, although in fault himself. 5. But not where he knew his neglect would expose him to injury. 6. May recover although riding in baggage car. 7. Company do not owe such duty to wrong- 8. May recover although out of his place on the train. 9. Plaintiff affected by negligence of those who carry him. Fault on one part will not excuse the other, if he can avoid committing the injury. 11. Negligence to be determined by the jury, where evidence conflicts. Plaintiff must be lawfully in the place, where injured. Passengers bound to conform to regula- tions of company, and directions of conductors. 10 12 13 § 150. 1. To the liability of a railway company, as passenger carriers, two things are requisite — that the company shall be guilty of some negligence which mediately or immediately, pro- duced or enhanced the injury — and that the passenger should not * have been guilty of any want of ordinary care and prudeilce which directly contributed to the injury ; since no one can re- cover for an injury, of which his own negligence was in whole, or in part, the proximate cause.^ 11 Skinner v. L. B. Se S. Railway, 2 Eng. L. & Eq. R. 360. 12 Peters v. Rylands, 20 Penn. 497. 1 Robinson v. Cone, 22 Vt. R. 213; Butterfield v. Forrester, 11 East, 60; Simpson v. Hand, 6 Wharton, 311 ; Rathbun v. Payne, 19 Wend. 399 ; Barnes V. Cole, 21 id. 188 ; Hartfield ti. Roper, id. 615. In this last case, the rule was carried to its extreme verge in denying the re- covery, and seems at variance with the more recent cases upon the subject. See Robinson v. Cone, 22 Vt. 213 ; and Lynch v. Nurdin, infra; also, Birge v. Gar- diner, 19 Conn. R. 507; Collins v. Albany and Sch. Railway, 12 Barb. 492. In 359 * 330 THE LAW OF EAILWAYS. [§ 150. 2. But one is only required to exercise such care as prudent persons, under his particular circumstances, might reasonably be expected to exercise. Hence, a very young child, or perhaps one deprived of some of the senses, or who was laboring under mental alienation, or a very timid or feeble person, would not be precluded from recovering for the negligence of others, when persons of more strength, or courage, or capacity, might have escaped its consequences.^ the late case of Martin v. The Great N. Railway, 30 Eng. L. & Eq. R. 473, a query is made whether, if a passenger is hurt in a station of a railway company, after being booked as a passenger, and while going to the train, through the de- fective lighting of the station, he is precluded from a recovery by reason of his own negligence having contributed to the injury, a distinction being attempted between negligence which is a violation of contract, and that which is only a violation of the general duty to use your own so as not needlessly to injure others. We allude to this, not as having marked out any intelligible ground of distinc- tion, but as another indication of a disposition to restrain the universal application of the former rule, that the slightest possible negligence, on the part of the plain- tiff will, in all cases, prevent a recovery. See also Spencer v. Utica and Sch. Railway, 5 Barb. 337 ; Brand v. Troy and Sch. Railway, 8 Barb. 368; Richardson v. The Wil. & R. Railway, 8 Rich. 120. This was an action in favor of the master for killing his slave while asleep upon the track of the railway. The court held, that the negligence of the slave would prevent the recovery. Galena & Ch. Railway v. Pay, 16 Illinois R. 548. a Robinson v. Cone, 22 Vt. R, 213 ; Lynch v. Nurdin, 1 Ad. & El. (n. s.) 29. In this-case, Denman, C. J., says, " Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation." Beers v. The Housatonic Railway, 19 Conn. 566 ; Neal v. Gillett, 23 Conn. 437. In a recent trial in Connecticut, before Mr. Justice Seymour of the Superior Court, a case of some interest was submitted to a jury. The facts were, that the plaintiff, a child two years old, who sued by guardian, while on the track of the Norwich and Worcester Railway, was run over by a train, and had a leg and hand amputated in consequence. The learned judge left the question of negli- gence, in both parties, to the jury, saying, he did not think negligence could fairly be imputed to so young a child, and that the negligence of the parents, if any, would not hinder plaintiff's recovery, if the defendants, after discovering the plaintiff on the track, might have prevented the injury, which is certainly the more common test of liability in similar cases. The jury gave the plaintiff a ver- dict for $1,800. But the case will doubtless go before the full bench, and there may be other questions involved. Daley v. Norwich & Worcester Railw. 9 Am. Railw. Times, No. 50. In Oldfield V. N. Y. & Harlaem Railw. 3 E. D. Smith, 103, it is held, that negli- gence IS not to be presumed, as matter of law, from a child, six or seven years of age, being unattended in the streets of a city. Whether permission to the child 360 § 150.] COMMON CARRIERS OF PASSENGERS. * 331 And, although the plaintiff's misconduct may have contributed remotely to the injury, if the defendant's misconduct was the im- mediate cause of it, and with the exercise of prudence he might have prevented it, he is not excused.^ 3. So, too, where there is intentional wrong on the part of the * defendant, he is liable notwithstanding negligence on the part of the plaintiff.* And, if the defendant is guilty of a degree of negligence from which the plaintiff, with the exercise of ordinary care, cannot escape, he may recover, although there was want of prudence on his part.^ 4. And, in many cases, the plaintiff has been allowed to re- cover for the gross negligence of the defendant, notwithstanding he was, at the time, a trespasser upon the defendant's rights.^ 5. But in all cases where both parties are in fault, and the plaintiff's fault was upon a point which he knew, or had reason to go into the streets, in that way, is negligence, is for the jury to determine, from the circumstances of each case. 3 Davis V. Mann, 10 M.& W. 564 ; Tllidge v. Goodwin, 5 C. & P. 190. 4 Brownell v. Flagler, 5 Hill, (N. Y.) R. 282. This is the case of a drover knowingly driving off a lamb which had strayed into his drove, and he was held liable, although the plaintiff was first in fault, and defendant, in selling his drove, did not take pay for this lamb. 5 Bridge v. Grand Junction Railway, 3 M. & W. 244. In a late case in Georgia, Macon and W. Railway v. Davis, 18 Georgia R. 679, 686, the rule of law here adverted to is approved by a judge of large experience and reputation. " We approve of modification of the principle, and think that it ought to be left to the jury to say whether, notwithstanding the imprudence of the plaintiff's ser- vant, the defendant could not, in the exercise of reasonable diligence, have pre- vented the collision." So also in Runyon v. Central Railway, 1 Dutcher, 556. But where the plaintiff's conduct is reckless and rash, he cannot recover if such negligence contributed to the injury, and the defendant acted in good faith. Sheffield v. Roch. and Sy. Railway, 21 Barb. 339 ; Galena and Chicago Railway V. Fay, 16 Illinois R. 568. See also Center v. Finney, 17 Barb. 94; Moore v. Central Railway, 4 Zab. 268, 824. And in Macon & W. Railway v. Wynn, 19 Ga. R. 440, it is held, that if, not- withstanding the negligence of defendant, the plaintiff, in the exercise of com- mon care and prudence, might have avoided the injury, he cannot recover. And the general proposition, held in the same Comfiany v. Davis, supra, is reaffirmed in the Central Railway and Banking Co. v. Davis, 19 Ga. R. 437. 6 Bir^e v. Gardiner, 19 Conn. R. 507; Bird v. Holbrook, 4 Bing. 628. This is the case of spring guns set in the defendant's grounds without plaintiff's suspect- ing it. See also Ilott v. Wilkes, 3 B. & Aid. 304, where the plaintiff had reason to suspect the danger, and might, by the exercise of prudence, have escaped it, and he failed to recover. Cotterill v. Starkey, 8 C. & P. 691. 31 §61 * 332 THE LAW OF RAILWAYS. [§ 150. to believe, would or might contribute to the injury, he cannot re- cover, and the rule laid down by Lord Ellenborough, Ch. J., in Butterfield v. Forrester, applies to the great majority ^ of cases involving this inquiry : " One person being in fault will not dis- pense with another using ordinary care for himself. Two things must concur to support this action, — an obstruction in the road, by the default of the defendant, and no want of ordinary care to avoid it, on the part of the plaintiff." 6. One being in the baggage car, with the knowledge of the * conductor, 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.'' 7. And where the locomotive of a railway ran across the legs of a person while walking upon their track in the streets of a city, it was held that the party could not recover if his own neg- ligence contributed to the injury ; and that a railway is not bound to the same degree of care in regard to mere strangers who may voluntarily, but unlawfully, go upon their track, which they owe to passengers conveyed by them.^. 8. It was held that a passenger who, having live-stock upon the train of freight cars, was by the regulations of the company required to remain upon the cars that contained his stock, was not precluded from recovering for an injury by collision with an- other train by reason of his being, at the time, in another part of the train .^ 7 Carroll v. N. Y. and N. H. Railway, 1 Duer, 571. The court her? say,— " he was under no'obligation to be more prudent and careful than he was, in con- templation of there possibly being such highly culpable conduct on their part." But where, by the general regulations of the company, its engineers were pro- hibited from allowing any one, not in its employ, to ride upon the engine, and the plaintiff was permitted to ride upon the engine by the engineer, without paying fare, after he 'had been informed of the company's regulations upon the subject, and sustained^n injury while so riding, it was held that he was a wrongdoer and could not ret^yer, the consent of the engineer conferring no legal right. It was also said, ths)j|f the onus of showing the authority of the engineer was upon the plaintiff, thwpresumption being, that the plaintiff had no right to ride upon the engine, whfether he paid fare or not. Robertson v. New York and Erie Railway, ■22 Barb. 9l. s Brand v. Troy and Sch. Railway, 8 Barb. 368. The latter proposition, stated in the text, in reference to this case, seems to us highly reasonable and just. 9 The Penn. Railroad v. McCloskey, 23 Penn. R. 582. In this case, it is said 362 § 150.] COMMON CAKRIERS OF PASSENGERS. * 333 9. And it seems that the negligence of those who carry the plaintiff, contributing to the injury, will preclude his recovery as much as if it were his own act.'" But the negligence must be of a character directly and naturally to contribute to the injury, it would seem, in either case.^" * 10. One party being in fault will not excuse the other party, if, by the exercise of ordinary care, he might still have avoided the injury, notwithstanding the fault of the first party .^^ 11. And what is proper care will be often a question of law, where there is no controversy about the facts.'^ But ordinarily, we apprehend, where there is any testimony tending to show negligence, it is a question for the jury.'^ 12. It has been held that a passenger in a railway car is not bound, in order to entitle himself to an indemnity against the negligence of the company, to select his seat so as to incur the least hazard.'* All that is requisite in such case is that the plaintiff should, at the time, have been where it was lawful for him to be.^* a passenger is not in fault in obeying the specifi(^nstructions of the conductor, although in conflict with the general regulations of the company known to him. 10 Thoroughgood v. Bryan, 8 C. B. 115 ; Catlin v. Hills, id. 123. But in a late case in the Superior Court of the city of New York, this rule is not followed. ColeoTOve u. Harlaem, & N. Y. & N. H. Railways, Law Reporter, July, 1857, 156. This case is certainly opposed to principle upon this point, and also upon the question of the joinder of the two companies in one action. But the latter diffi- culty may be obviated by their Code of Practice. n Trow V. Vermont C. R. 24 Vt. R. 487 ; 13 Ga. 86. ,12 Trow V. Vt. C. R. 24 Vt. R. 487 ; Henning v. N. Y. & Erie Railw. 13 Barb. 9. 13 Quimby v. Vermont C. R. 23 Vt. R. 38i; Briggs v. Taylor, 28 Vt. R. 180; Patterson r. Wallace, in the House of Lords, 1853, 28 Eng. L. & Eq. R. 48. Here the judgment of the court below was reversed, although there was no contro- versy about the facts, but only as to whether a certain result was to be attributed to negligence on one side, or rashness upon the other, the judge having with- drawn the case from the jury, in the court below, it was held, in the House of Lords, to be a pure question of fact for the jury. See Taff Vale Railw. v. Giles, 22 Eng. L. & Eq. R. 202 ; N. Y. & Erie Railway v. Skinner, 21 Penn. R. 298. In Murray u. Railway Company, 10 Rich. (S. C.) R. 227, it was held, that it was the duty of a railway company to slacken speed at a turnout, and to give warni'no' when approaching a crossing ; and it must not appear that such duties were disren-arded, when they attempt to show themselves not guilty of negli- gence. 14 Carroll v. N. Y. & N. H. R. 1 Duer, 571-2. 363 '334 THE LAW OF RAILWAYS. [§ 151. 13. If one should expose himself to peril, contrary to the gen- eral regulations of the company notified to him generally, and especially by particular notice from the conductor at the time, as by letting his hand remain out of the car window, while passing a bridge, it is evidence of gross carelessness upon his part, which will, on that ground alone, justify a verdict against his claim for damages.'^ * SECTION III. INJURIES BY LEAPING FROM THE CARRIAGES. 1 . Passengers may recover, if they have rea- sonable cause to leap from carriage, and sustain injury. 2. But not where their own misconduct exposes them to peril. 3. But may recover if injured, in attempting to escape danger. 4. Cannot excuse leaping from cars because train passes statist. 5. Must resort to their action for redress. 6. Rule of law, where train passes station. § 151. 1. It seems to be regarded as well settled, that a pas- senger, who is induced to leap from the carriage, whether by coach or railway, by a well-founded apprehension of peril to life or Umb, induced by a|^ occurrences which might have been 15 Laing V. Colder, 8 Barr, 479. But see N. J. R. v. Kennard, 21 Penn. 203, where it was held that, if a railway company run passenger cars upon a road where the way is so narrow as to endanger the limbs of the passengers, while resting in the windows of the cars, they are bound to provide wire gauze, bars, slats, or other barricades, to prevent the passengers putting their arms out of the windows, or they are liable for all injuries happening in consequence of such omission. But to deprive the party of his right to recover, it must appear, that his violation of the rules of the company, or the orders of the company's ser- vants, contributed to the injury. And where the conductor of a gravel train, who was prohibited by the company letting persons ride, as passengers, and who informed defendant in error of the prohibition, nevertheless consented to take him as a passenger, and received fare from him, it was held he might recover of the company for an injury, through the negligence of their servants, during his passage. Lawrenceburgh & Upper Miss. Railway v. Montgomefy, 7 Porter, (Ind.) R. 474. See also Zemp v. W. & M. Railway, 9 Rich. 84. Where the plaintiff was injured, while standing on the platform of the oars, the passengers remain- ing in the cars uninjured, and it appearing that notices were posted up in the cars prohibiting passengers from standing on the platforms, it was held to be a question for the jury whether the plaintiff had notice of the prohibition, and also whether the fact of his disregarding it contributed to the injury, and they having failed to find these facts, and given the plaintiff ten thousand dollars damages, the judgment was affirmed in the Court of Appeals. lb. S64 § 151.] COMMON CARRIERS OF PASSENGERS. * 335 guarded against by the utmost care of the carrier, is entitled to recover for any injury which he may thereby sustain,^ where no injury would have occurred if he had remained quiet,^ or where the conduct of the passenger contributed to produce or enhance the injury.^ 2. In one case where Ae passenger was taken upon the train after the passenger cars were filled, and was told that he must ride in the baggage car, and he consented to do so, but soon be- gan boisterous play with others, and obtruded into the passenger cars, and, when they were thrown from the track, leaped upon the ground and was injured,* the court said : " The contract was for a passage in the baggage car. The carrier would have no right to overload and crowd passengers already in the other cars. When passengers take their seats they are entitled to occupy as against "the carrier and subsequent passengers. While this right is recognized and protected to them, they are required to conduct themselves with propriety, not violating any reasonable regulation of the train." The court also held that the passen- gers have no right to pass from car to car, unless for some reasonable pyirpose ; and, as the proof showed that the plaintiff below had no such excuse, and, had lie remained in the car where he belonged, would not have been injured, (that car not having been thrown from the track,) or, probably, have felt any impulse to jump from that car, it was his own fault and folly which exposed him to the peril, and the company were not liable for its consequences, and the action could not be maintained. 3. But, where one incurs peril by attempting to escape danger, the author of the first motive is liable for all the necessary or natural consequences.^ 4. But where, as in the last case, the person leaped from the • Ingalls V. Bills, 9 Met. 1 ; Eldridge v. Long I. Railway, 1 Sand. 89 ; Stokes 0. Saltonstall, 13 Pet. 181 ; Frink v. Potter, 17 11. R. 406. 2 Jones V. Boyee, 1 Stark. R. 493 ; Ingalls v. Bills, 9 Met. 1. 3 13 Pet. Sup. Ct. R. 181. 4 Galena & Ch. Railway v. Yarwood, 15 HI. R. 468. 5 Railroad Co. u. Aspell, 23 Penn. R. 147, 150. The court here say: "If, therefore, a person should leap from the cars under the influence of a well- grounded fear that a fatal collision is about to take place, his claim against the company, for the injury he may suffer, will be as good as if the same mischief had been done by the apprehended collision itself." McKinney v. Neil, 1 McLean, R. 540, 560. 31* 365 *336 THE LAW OF- RAILWAYS. , [§151. cars because the train was passing the station at which he wished to stop, and after the conductor had announced the station, not- withstanding the conductor and brakeman assured him the train should be stopped and backed to the station, it was held that the injury he received was the result or his own foolhardiness, and he could not throw it upon the companjk The court bebw had charged the jury, that announcing the station by the conductor, while the cars were in motion, was itself an act of negligence, and the plaintiff had a verdict. But the judgment was reversed in the Court of Errors, who, in giving judgment, said : — 5. " K a passenger is negligently carried beyond the station where he intended to stop, and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travelling back, because these are direct consequences of the wrong done him. But, if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, and for this, his own gross imprudence, he ean blame nobody but himself." ' 6. In regard to the conductor announcing the station, the court said, we consider the charge of the court below entirely wrong. * " It is not carelessness in a conductor to notify passen- gers of their approach to the station at which they mean to get off, so that they may prepare to leave with as little delay as pos- sible when the train stops. And we cannot see why such a notice should put any man of common discretion in peril. It is scarcely possible that the plaintiff could have understood the mere announcement of the station as an order to leap from the cars without waiting for a halt." And where the train passes its usual stopping-place, and a passenger leaps from the carriage while in motion to avoid being carried beyond his destination, and sustains an injury, he cannot recover.^ 6 Damont v. New Orl. & CarroUton Railway, 9 Louis. Ann. R. 441. 366 ^ 152.] COMMON CAREIERS OF PASSENGERS. *337 SECTION IV. INJUKIE8 PRODUCING DEATH. 1 . BecJress, in such cases, given exdjisively by statute. 2. Form and extent of the remedy under the English statute. 3. Where the party is in fault, no recovery can he had. 4. By English courts no damages allowed for mental suffering. 5. In Pennsylvania, damages measured by probable accumulations. 6. In Massachusetts, company subjected to fine not exceeding $5,000. 10 11. Wife cannot maintain the action, for death of husband, or father, for death of child. Form of the indictment. If those having charge of passengers, not sui juris, leave them exposed, company not liable. . No action lies if death caused by neglect of fdlow-servant or by machinery. Servant liable for consequences of using defective machinery. § 152. 1. "Within the last few years, and chiefly it is presumed on account of the increased peril to life by railway travelling, it has been provided by statute, in England, and in most of the American states, that redress shall be given against the party causing a personal injury, from which death ensues. These acts, although intended chiefly to stimulate watchfulness and circum- spection in passenger carriers, especially carriers by railways and steamboats, are, as was suitable, made general, and, in some of the states, the recovery is in the form of a penalty. 2. The English statute, usually denominated Lord Denman's Act,^ provides that when death shall be caused by wrongful act, * neglect or default, such as would (if death had not ensued) have entitled the party to an action, in ev^y such case, an action may be maintained by the executor or administrator of the party injured, and the jury may give such damages as shall be propor- tioned to the injury resulting from the death of the party to his family, to be divided among the parties named in the act, as the jury shall direct. Only one action can be brought, and that is to be commenced within twelve months of the decease of the party injured. 3. It is considered, that if the party's own negligence contrib- uted to the injury, the action will not lie, any more than if the party had survived and brought the action himself.^ 1 9 & 10 Victoria, ch. 93. 2 Lord Denman, Ch. J., in Tucker v. Chaplin, 2 Car. & K. 730. 367 * 337 THE LAW OB RAILWAYS. [§ 152. 4. It has been held that, under the English statute, no damages are recoverable for the mental sufferings of the survivors, who are, by the act, entitled to share the amount recovered, but that the damages must be limited to the injuries of which a pecu- niary estimate can be made.^ So if the negligence of those who carry the plaintiiF, contributed to the injury, it is the same thing. Thoroughgood v. Bryan, 8 C. B. 115. 3 Blake, Adm'r, v. The Midland Railway, 10 Eng. L. & Eq. K. 437. Coleridge, J., said : " The important question is, whether the jury, in giving damages apportioned to the injury resulting from the death of the deceased, to the parties for whose benefit this action is brought, are confined to injuries of which a pecuniary estimate may be made or may add a solatium to those parties, in respect of the mental suffering occasioned by such death. . . . Our only safe course is to look at the language the legislature has employed. . . . The "title of the act is, for compensating families of persons, &c. not for solacing their wounded feelings." It was argued that the party, had he recovered, would have been entitled to such solatium. " But it will be evident, this act does not transfer this right of action to his representative, but gives to his representative a totally new right of action on different principles." By the terms of the act, quoting the second suction, " the measure of damages is not the loss or suffering of the deceased, but the injury resulting from his death to his family.'' " This language seems more appropriate to a loss of which some estimate may be made, than an indefinite sum, indepen- dent of all pecuniary estimate, to soothe the feelings, and the division of the amount strongly tends to the same conclusion. It seems to us that if the legisla- ture had intended to go the extreme length, not only of giving compensation for pecuniary loss, but a solatium to all the relations enumerated in the act, language more clear and appropriate, for this purpose would have been employed." And because the judge did not limit the damages to the pecuniary loss sustained by the death, a new trial was awarded. Hodges on R. 624. There seems no doubt, according to the best-considered cases in this country, the mental anguish, which is the natural result of the, injury, may be taken into account, in estimating damages to the party injured, in such cases, although not of itself the foundation of an action. Canning v. Williamstown, 1 Cush. R. 451 ; Morse v. Aub. & Sy. Railway, 10 Barb. 623. But it has been held that in an action under the English statute to recover damages for the death of a person, the damages are not to be estimated accord- ing to the value of deceased's life, calculated by annuity tables, but the jury should give what they considered a reasonable compensation. Armsworth y. Southeastern Railway, 11 Jur. 768. In the last case cited, Parke, Baron, instructed the jury, that they were "to determine, according to the ordinary rules of law, whether, if the deceased had been wounded by the accident, and were still living, he could recover compensa- tion in the way of damages against the company for the wound given, under the 368 § 152.] COMMON CARRIBBS OF PASSENGERS. * 338 * 5. In the American courts, the decisions in the different states will differ, as the statutes are different. The rule laid down in circumstances in evidence in the case," and estimate damages " on the same prin- ciple as if only a wound had been inflicted." Another case is very strikingly illustrated, as applicable to the general subject, and the difficulties of laying down any rule in regard to damages in such cases, in an article in the London Jurist, Vol. 18, part 2, p. 1, for the following extract from which, we refer to the editor's note to Carey v. Berkshire Railway, 1 Am. Railw. Cas. 447. The writer in the Jurist says : " On the 15th of December, 1852, the case of Groves V. The London & Brighton Railway Co. was tried at Guildhall, in the Court of Common Pleas, before Jervis, Ch. J. That was an action brought by the executor of the deceased, for the benefit of four infant children. That the deceased had met with his death through the negligence of the defendants' ser- vants was admitted, the only question being the amount of damages. In summing up, the learned chief justice referred to the case of Blake v. London & Brighton Railway Co. and told the jury that in assessing the damages, they might take into consideration any injury resulting to the children from the loss of the care, pro- tection, and assistance of their father. The jury gave 2,000Z. Now, if the argument ah inconvenienti was permitted to prevail against the allowance of com- pensation for the mental anguish of the relatives, it ought not, we submit, to be without weight in considering the soundness of this direction. Juries have no small difficulties to contend with in assessing damages, when they have before them evidence of the average profits, or the amount of the life income of the deceased ; but these are but trifling to those in which they must become entangled in attempting a pecuniary estimate of the loss of the care, protection, and assist- ance of a father. In whatever light we look at the subject, either of money or morals, we become perplexed in the attempt to pursue it. It is conceived that in such cases evidence may be given of the character of the deceased, and in many cases, this would doubtless be of a most painful nature. "Moreover, serious, practical difficulties would arise. Let us suppose, that, through the negligence of a pointsman — in the belief of his employers a trust- worthy servant — an accident happens to a train containing the six following fathers : — An archbishop, «, lord chancellor, an East Indian director, a lunatic, a, wealthy but immoral man, and one virtuous but a bankrupt. It is needless to dilate on the difficulties which juries would experience if called upon to estimate the pecuniary value of the parental care, protection, and assistance of each of these." In a late English case serious doubts are suggested, whether an action will lie, « under the English statute, to recover damages in the name of the administrator, for the death of an infant (so young as to be unable to earn any thing), by way of compensation for the loss of the services of the child, to the family. Bramhall V. Lee, 29 Law Times, 111. But in the case of Oldfield v. New York & Harlaem Railw. 3 E. D. Smith, 103, it is said that the New York statute, giving a right of action in this class of cases, to thfe next of kin, does not limit the amount to be recovered to the loss of those only, whose relations to the deceased gave them a 869 * 339 THE LAW OF RAILWAYS. [§ 152. * Pennsylvania* is, that the jury are to estimate damages " by the probable accumulations of a man of such age, habits, health, and pursuits, as the deceased, during what would probably have been his lifetime." 6. By the statute of Massachusetts,® passenger carriers, caus- ing the death of any passenger through their own negligence or carelessness, or that of their servants or agents, within the com- monwealth, are subjected to a fine, not exceeding five thousand dollars, to be recovered by indictment to the use of the executor or administrator of the deceased person, " for the benefit of his widow and heirs." 7. It was held that the wife cannot sustain an action for the death of her husband, under this act.^ Nor can the father sus- tain such action for the loss of service of his child, by death.'' Nor in either of the last two cases will an action lie at common law.^ and 7 8. In an indictment under this statute, it is not necessary to specify the names of the servants, or agents, guilty of the negli- gence, or the nature or manner of such negligence.^ legal right to some pecuniary benefit, which would result from the continuance of the life. An action will lie in every such case, under the statute, where the de- ceased, had he survived, could have maintained one. The damages are not restricted to the actual pecuniary loss, but include present and prospective dam- ages, in the discretion of the jury. Accordingly, in the present action, brought for the benefit of the mother of an infant daughter, seven years of age, tilled in the streets of New York, by one of defendants' cars being drawn over her, it was held that a verdict for $1,300, did not justify the court in granting a new trial, the amount, although " large, not affording evidence of prejudice, partiality, or corruption." * Penn. Railway Co. u. McClosky, 23 Penn. R. 526, 528. The court say: " The jury must place a money value upon the life of*a fellow-being, very much as they would upon his health or reputation." 5 March 23, 1840. Proceedings under this act are not within the statute of limitations for actions, and suits for penalties. Commonwealth v. Boston & Wor- cester Railway, 11 Cush. R. 512. •r 6 Carey u. The Berkshire Railway, 1 Cush. R. 475. And under the New York statute, giving an action to recover the pecuniary injury to the wife and next of kin, if there be no wife or next of kin, no action will lie. The husband cannot recover damages for the death of the wife. Lucas v. N. Y. Central Railway, 21 Barb. 245 ; Worley v. Cincin. Ham. & Day. Railway, 1 Handy, 481. "> Skinner v. Plousatonic Railway, 1 Cush. 475. 8 Commonwealth v. Boston & Worcester Railway, 11 Cush. R. 512. In an action upon the statute of Massachusetts, 1842, c. 89, § 1, which provides that 870 § 152.] COMMON CAERIERS OF PASSENGERS. * 340 * 9. The want of care in the deceased, which contributed to produce the injury, we have seen, will preclude the recovery of damages, under the statutes, allowing actions to be maintained in those cases where the party does not survive the injury. So, also, in the case of persons incapable of taking care of them- selves, if those who have the custody of them, improperly expose them, and injury ensues, causing death, the company are not liable, although guilty of negligence. Where a lunatic was travelling in the cars, upon a railway, in charge of his father, who had paid the fare of himself and son through, and taken tickets, but who got out at a station to procure refreshments, leaving the son in the cars, without giving notice to any one of his situation, the train left before he returned. The conductor applied to the lunatic for his ticket, not knowing his condition, or that his fare had been paid. The lunatic, not surrendering his ticket, the conductor stopped the train and had him put out, where he was killed by another train. It was held, that no action could be maintained against the company, under the statute, the fault being upon the part of those who were respon- sible for the deceased, and not on that of the company, or its agents.^ " The action of trespass on the case for damage to the person, shall hereafter survive, so that in the event of the death of anj^erson entitled to bring such action, or liable thereto, the same may be prosecuted or defended, by or against his executors or administrators, in the same manner as if he were living," it was held, that the right of action depended on the question whether the testator, or intestate, lived after the act which constitutes the cause of action. Shaw, Ch. J., said : " If the death was instantaneous, and of course simultaneous with the injury, no right of action accrues to the person killed ; and of course none to which the statute can apply. But if the party survives, lives after it, the right of action accrues to him, as a person in esse, and his subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative." Hollenbeck, Adm'r., v. Berkshire Railway, 9 Cush. 481. See also Mann v. Boston & W. Railway, id. 108. 9 Willetts V. N. Y. & Erie Railway, 14 Barb. R. 585. See also Hibbard v. N. Y. & Erie Railway, Court of Appeals, New York, June term, 1857. But the admissions of a deceased husband, against the interests of the wife, in an action for personal injury to her, brought, after the death of the husband, in her own name, such admissions being made after the alleged injury occurred, and while the husband, had a suit been instituted, must have been joined, are nevertheless inadmissible, on the ground that the husband is not the real, but only a nominal, or formal party. Shaw v. Boston & Worcester Railway, 5 Gray, R. ; ante, § 150, n. 1, 2. 371 * 341 THE LAW OF RAILWAYS. [§ 153. 10. Nor does an action lie, under these statutes, where the death is caused by the negligence of a fellow-servant, unless such servant was habitually careless and unskilful ; or if pro- duced in the use of defective machinery, which the deceased knew to be unsafe.^" * Nor where the death is caused by defec- tive machinery, or through defect of fences, if the servant knew of the defect, and made no remonstrance." And it has even been considered in such case, that the servant, being an engineer, would be liable to any person injured by such defect." SECTION V. SUITS WHERE THE INJURED PARTY IS A MARRIED WOMAN. § 153. For injuries to a married woman through the neghgence of railways, as passenger-carriers, the husband may recover for expenses of the cure, and the loss of service,^ and in one case it was held to extend to funeral expenses, as well as medical attendance, where the wife did not recover ; but if death be in- stantaneous, no action lies at common law.^ But in a suit in the name of husband and wife where the wife survives, a recovery cannot be had for the expenses of cure.^ In such action, recovery can only be had for the personal injury and sufferings of the wife. I'he action, in such case, for the loss of service, and of the society of the wife, and for the expenses of the cure, must be brought in the name of the husband alone.* 1" Hubgh V. New Orleans & Carrollton Railway, 6 Louis. Ann. K. 495. See post, § 170, n. 2, 9, 10 ; Timmons v. Central Ohio Railway, 6 Ohio State, 105. But if the servant object to the use of machinery, as unsafe, and it is still used, ■whereby he loses his life, damages may be recovered under the statute. 33 Eng. L. & Eq. R. 1. '1 McMillan v. Saratoga & Wash. Railway, 20 Barb. 449. It is here said the servant may require special indemnity against all risks, or he may give notice to the company, and throw the risk upon them. 1 Pack V. Mayor of New York, 3 Comst. 489. And see Ford v. Monroe, 20 Wendell, 210, where it is held the father may recover, for killing his child, and for medical attendance upon his wife, the mother, caused by the death of the child. 2 Eden v. Lexington & Frankfort Railway, 14 B. Monr. R. 204. 3 Fuller & Wife v. The Naugatuck Railway, 21 Conn. 571. * Cases cited above, 1, 2, 3. 872 § 154.] COMMON CARRIERS OF PASSENGERS. * 342 ♦SECTION VI. LIABILITY, WHERE TRAINS DO NOT ARRIVE IN TIME. 1. Company liable to deliver passenger ac- cording to contract, 2. Mai/ excuse themselves, by special notice. 3. LiaUefor damages, caused by discontinu- ance of train. 4. Not liciblefor injury, caused by stage com- pany, connecting with railway. § 154. 1. It would seem, upon general principles, that rail- ways should be liable for not delivering passengers within the • stipulated time, as much as for not delivering goods according to their undertaking, unless they can show that such contract is subject to some exception which existed in the particular case. _And in the county courts in England, it is said such actions have repeatedly been maintained.^ 2. But if the company give proper notice, that they will not be responsible for the arrival of their trains, in time, it would seem they are not liable. 3. But where they advertise to run trains in a given mode, they are liable for any injury, which one who took an excursion ticket sustained, by not finding a return train on the day it was advertised, he having returned, by express, and sued the com- pany for the expense.^ ' Hodges on Railways, 619. It was held in the U. S. Circuit Court, Septem- ber, 1856, before Nelson, J., that where one sold tickets to carry passengers from Panama to San Francisco, and stipulated that the ship should leave on her trip in the month of April, 1850, he must run all hazards of wind and weather, and could not excuse himself, on account of any accidental or providential occur- rence of that kind, having made no such exception in his contract. 19 Law R. 379. 2 Hawcroft v. Great N. R. 8 Eng. L. & Eq. R. 362. See also Denton v. The Great Northern Railway, 34 Eng. L. & Eq. 154, where it is held that a railway company, continuing to advertise on their time tables that a train will leave a station at 7.20 and arrive at another point, beyond their line, at 12, after this connecting train is discontinued, and by consequence their own train of that hour, whereby one suffers pecuniary loss, in not being able to proceed by such train, and thereby being delayed in his arrival in season for his business, is liable to an action for such injury. But in the case of Hamlin v. Great Northern Railw. 38 Eng. L. & Eq. R. 335, the plaintiff took passage in a train, which was advertised to go through the same ni"ht to the point of his destination, by connecting with the trains of another 32 373 * 343 THE LAW OE RAILWAYS. [§ 154. *4. But the company, advertising that stages will run from their stations to other places off the line of the railway, and sell- company, it proved, on arriving at the point of connection, that the other train had left. The plaintiff was compelled to stay over night, and proceeded the next morning, having to purchase a new ticket for the remainder of the route, and did not arrive till one o'clock the next day. When he took defendants' train, he paid for and took a ticket through, and by the time tables advertised in defend- ants' office, he should have arrived at his destination 9.30, f. m., having taken the train at 2, P. M. The plaintiff might have accomplished his journey that night, by taking a spe- cial conveyance and hiring a boat to cross the Humber, but he slept at a hotel, and proceeded the next morning by the public conveyance, but arrived too late to meet his customers, according to appointment, and was obliged to hire convey- ances to see some of them elsewhere, and was detained several days, waiting for the market-days, to see others. It was held that he was only entitled to recover his hotel expenses, and the railway fare the next day, and was not entitled to recover for any damage whatever in consequence of not reaching his destination, according to defendants' undertaking. This case seems to have taken rather an extreme view of the rule of damages on this subject. The very least the defend- ants could have expected to pay for the breach of duty should have been, it would seem, the expense of a special conveyance through that night. The rule here adopted seems to be almost equivalent to a denial of all beneficial redress in such cases. For it is scarcely to be supposed, that actions would ever be brought to recover such insignificant damages. It is quite supposable that one might suffer very serious loss in consequence of such a failure to arrive in time, and if an action is maintainable, it should not be made a terror by attaching to it a rule of damages, which will render it as expensive to the plaintiff, as to the defendants, who are solely in fault. It seems also at variance with some former decisions in the English courts. See cases above in this note. We conjecture that this rule will not be ultimately followed in the courts of Westminster Hall. Martin, Baron, who tried the case at Nisi Prius, seems to have placed it upon the ground, that the defendants, having no knowledge of plaintiff's business, or its necessities, could not fairly be supposed to have undertaken to indemnify him against this loss. But the learned judge conceives the defendants may stand upon the terms of their contract. And if the plaintiff, instead of remaining over night, had gone forward the same night, as he might have done, and as by the contract he was entitled to do, the defendants would have been liable for the additional expenses. This may perhaps be the more just and practicable rule, in cases where the party had ample time to proceed by express, in season for his appointments. But if instead of doing so, he delays for the next train, and thereby suffers damage, beyond what would have been necessary to defray the expense of going forward according to the contract, we see no reason why the company should not, at all events, bear that portion of the loss, which was necessarily incurred, in conse- quence of their breach of contract. No question is made in the case, in regard to the special damage not being specifically declared for. If that question had been made, there might have been 374 § 155.] COMMON CARRIERS OF PASSENGERS. ■344 ing tickets, at their stations, for such places, that is, to carry upon the railway to the nearest stations and then by stage, will not render the company liable for any injury to such passenger upon the stage, after he leaves the railway, the company having no ownership, or interest in the stages. This does not constitute a special contract to carry, as far as the ticket reaches.^ But the facts are certainly very analogous to many cases, where a special contract has been held to exist, in regard to carrying goods be- yond the line of the carrier to whom first delivered.* ♦SECTION VII. WHAT WILL EXCUSE COMPANT FROM CARRYING PASSENGERS. 1. Company not bound to carry, where car- riages full. 2. But must carry according to terms which they advertise. 3. Not hound to carry disorderly passengers or those otherwise offensive. § 155. 1. It would seem upon general principles, that railway companies, might excuse themselves from carrying passengers beyond their present means, if they were adequate to all ordinary occasions, and they had no reason to expect an increased press of travel, at that particular time. But it should undoubtedly be an extreme case, to justify an alisolute refusal to carry a passenger, since it could scarcely be supposed ever to occur, that a railway, in any sense properly equipped, for the purpose of carrying pas- sengers and freight, should not be lable to meet all emergencies in some way. And if the occasion were unusual, it might excuse some discomfort in the mode of conveyance. 2. But it is said by Patteson, J., in one case, where the com- pany had issued an excursion ticket, stipulating to run trains in a given mode, that they could not excuse themselves, by show- ing the carriages were all fiUed.^ The learned judge said : " They some ground for saying, that it did not come within the general averments found in the declaration, which is the only ground upon which it seems to us, the case can be made to stand with the earlier English cases upon the subject. Hutchin- son V. Granger, 13 Vt. R. 386 ; ante, § 131, n. 14. 3 Hood V. N. Y. & N. H. Railroad Co. 22 Conn. R. 1. * Ante, § 135. But in Connecticut it has been held, that such a contract by a railway company is idtra vires. Ante, § 136. 1 Hawcroft v. The Great N. R. 8 Eng. L. & Eq. E. 362. In regard to the 375 * 345 THE LAW OB RAILWAYS. [§ 156. should have made it a condition of their contract, that they would not carry unless there was room." By the by-laws in re- gard to railways in England, established by the Board of Trade, every passenger is required to book his place and pay his fare, when he receives his ticket, and this is subject to the condi- tion that there shall be room in the train, for which he is booked. If not, those booked for the greatest distance have the preference.^ 3. But it has never been considered, in this country, that pas- senger carriers, in any mode, were bound to receive passengers who refused to conform to their reasonable regulations, or were not of quiet and peaceable behavior, or for any reason not fit associates, for the other passengers, as if infected by contagion, or in * any way offensive in person, or conduct.^ But where the carrier of passengers has no reasonable excuse, he is bound ordinarily to carry all that offer.* And this has been regarded as a duty, growing out of the employment of common carriers of passengers, and altogether independent of the contract be- tween the parties, but which may undoubtedly be controlled by contract.^ general dutj' and liability of common eairiers of passengers, or those wlio held themselves out as such, see ante, ^ 131. It is said to have been held, by some court, in the case of Foland v. Hudson Kiver Railway, that a passenger who is not furnished with a seat, is not obliged to pay fare, and if he is expelled from the cars for refusing such payment, may sustain an action against the company. Such a rule must require much qualification. If the passenger is not accommo- dated in a manner which he deems a fair compliance with the duty of the com- pany as passenger carriers, he may decline any compromise, and resort to his action against the company, for refusing to carry him, as their contract, by the ticket, or their duty, required. And he might, no doubt, sustain such action,'un- less the company proved some just excuse. But if he chooses to accept of a pas- sage, without a seat, the general understanding undoubtedly is, that he must pay fare. But if he goes upon the cars, expecting proper accommodations, and is put off, because he declines going in that mode, he may still resort to his action. 2 Hodges on Railways, 553. Ante, § 26, n. 6. 3 Jencks c. Colman, 2 Sumner, R. 221 ; Markham v. Brown, 8 N. H. R. 523. In these cases the persons excluded were in the interest of rival lines of carriers, and at the time engaged in the promotion of such interests. * HoUister v. Nowlen, 19 Wendell, 239 ; Bennett v. Dutton, 10 N. H. R. 486, where the subject is very elaborately and satisfactorily discussed by Mr. Ch. Jus- tice Parker. Galena & Ch. R. v. Yarwood, 15 111. 472. s Bretherton v. Wood, 3 Bro. & Bing. 54 ; s. c. 9 Price, 408. 376 § 166.] COMMON CAKRIERS OF PASSENGERS. *346 SECTION VIII. RULE OF DAMAGES FOR INJURIES TO PASSENGERS. 1. All damage, present and prospective, is recoverable, 2. But these should be obvious, and not merely conjectural, 3. New trials allowed for excessive damaqes. 4. But this only allowed in extreme cases, 5. Counsel fees not to be considered, 6. Home English judges doubt if damages should be claimed as compensation for pain, 7. Not so viewed generally. 8. Plaintiff may show value of his time lost. 9. Generally rests very much in discretion of 10. In actions for loss of service, cannot in- clude menial anguish. § 156. 1. The question of damages is one resting a good deal in the discretion of a jury, and must of necessity be more or less uncertain. But certain general rules have been established upon the subject. • It is decided that the party must recover all his damages, present and prospective, in one action.^ 2. But in another case,^ it was said by the court, " It was cer- tainly proper for the jury in estimating the damages to the plain- tiff to regard the effect of the injury, in future, upon her health, the use of her limbs, her ability to labor and attend to her affairs, and generally to pursue the course of life she might otherwise have done," and its effect in producing bodily pain and suffering, but all * these should be "the legal, direct, and necessary results of the injury, and that those, which at the time of the trial were prospective, should not be conjectural." 3. Courts will sometimes grant new trials for excessive dam- ages in such cases, as where the statute limited the amount of 1 HodsoU V. Stallebrass, 11 Ad. & Ellis, 301 ; Whitney v. Clarendon, 18 Vt. R. 252; Curtis v. Roch. & Sy. Railway, 20 Barb. 282; Black u.CarrolIton Rail- way, 10 Louis. Ann. R. 33. 2 Curtis V. Roch. & Sy. Railway, 20 Barb. 282. See also Morse v. Auburn & Sy. Railway, 10 Barb. 621. In the case of Hopkins v. Atlantic & St. Lawrence Railway, Sup. Court N. H. July, 1857, it was held, that in an action by the husband, for an injury to the wife, through the negligence of the company, the plaintiff may give evidence of ex- pense of cure, and loss of services, after the commencement of the action, as well as before ; and the jury may give prospective damages also. The jury may also give exemplary damages, in their discretion, where the injury was caused by the gross negligence of the company, in the management of their trains. 20 Law Rep. 32* 877 * 347 THE LAW OF EAILWAYS. [§ 156. recov^y in case of death to $5,000, and the jury assessed dam- ages in a case of injury, not resulting in death, at $11,000, the court ordered a new trial, unless the excess above $5,000, should be remitted in twenty days.*^ 4. The rule laid down by Kent, Ch. J., as justifying a new trial for excessive damages, is, that they should be so excessive « as to strike all mankind at first blush, as beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, corruption, or prejudice." * This is no doubt a safe rule, and perhaps the only safe one, in such cases, but there are probably many cases where new trials have been granted for this cause, falling far short of this in excessiveness. 5. In some of the American states, in trials at Nisi Prius, in conformity with a single English case, the plaintiff has been allowed to add to his actual damages of loss of time, expense of cure, pain, and suffering, and prospective disability, if any, — counsel fees not recoverable by way of taxable costs.^ But this does not seem to be countenanced by the English courts in the later decisions.^ 6. In a recent English case, a distinguished judge, Ch. B. Pol- lock, says, " A jury most certainly have a right to give compen- sation for bodily suffering, unintentionally inflicted. But when I was at the bar, I never made a claim in respect of it, for I look on it, not so much as a means of compensating the injured per- son, as of * damaging the opposite party. In my personal judg- ment, it is an unmanly thing to. make such a claim. Such 3 Collins V. Alb. & Schen. Railway, 12 Barb. 492. So where six thousand dollars was awarded for a broken leg, of which the party recovered in about eight months, a new trial was granted. Clapp v. Hudson River Railway, 19 Barb. 461. But where the plaintiff had been disabled for two years, and the injury seemed likely to be permanent, $4,500 was held not exorbitant. Curtis ». Roch. and Syr. Railway, supra. * Coleman v. Southwick, 9 Johns. 45. See also Southwick v. Stevens, 10 Johns. 443. 5 Shaw, Ch. J., in Barnard v. Poor, 21 Pick. 381. But- this rule is here con- demned, and also in Lincoln v. Saratoga and Sch. Railway, 23 Wend. 435. 6 Grace v. Morgan, 2 Bing. N. C. 534; Jenkins v. Biddulph, 4 Bing. 160; Sin- clear V. Eldred, 4 Taunt. 7. The only English case where this claim is counte- nanced, is Sandbaok v. Thomas, 1 Stark. R. 306. See Webber v. Nicholas, 1 Ryan &M. 419. 378 §156.] COMMON CAKRIEKS OP PASSENGERS. * 347 injuries are part of the ills of life, of which every man ou^ht to take his share." "^ 7. The principle of this remark seems to be conceived in a more philosophic and Christian temper, than would be alto- gether consistent with bringing any action at all. But it is sometimes refreshing to find minds soaring above the dead level of pecuniary equivalents, to which the profession are, for the most part, doomed, in our connection with estimating the dam- ages to be awarded for personal injuries. 8. It has been held the plaintiff might give evidence of the nature of his business and the value of his services in conduct- ing it, as a ground of estimating damages, by an injury through the negligence of the company, but not the opinion of witnesses as to the amount of his loss.^ 9. In actions against carriers of passengers, for injuries, there seem, as we have said, to be no well-defined rules for estimat- ing damages. It is a matter to be submitted to the sound dis- cretion and judgment of the jury, who are to consider the actual loss to the plaintiff, present and prospective, which is the very lowest amount they will feel justified in giving in any case. Beyond this any rule for damages must be regarded as, more or less, terra incognita. There is no doubt juries often* give dam- ages altogether beyond any actual damage, which it is supposed the party has sustained in a pecuniary point of view. And it is not uncommon in charging juries upon this subject to bring their attention, in considering the question of damages, to the degree and character of the misconduct of the defendants, or their agents, and evpn to the public example of the trial and verdict. This has been sometimes seriously criticized by elementary writ- ers, and sometimes as we have seen by judges, but we find no cases where new trials have been granted, on account of such suggestions being given in charge to the jury. And when it is considered that verdicts in civil actions are the only effectual cor- rective of a most flagrant disregard of human life, which often 7 Theobald v. Railway Passengers' As. Co. 26 Eng. L. & Eq. R. 438. But see Curtis V. Roch. and Sy. R. 20 Barb. 282, where the rule of the American law upon the subject is fully stated, as cited in the text (2.) Damages arising from this source need notjbe specially stated in the declaration, unless of an unusual and unexpected character. Id. Ante, § 131, n. 14, § 154, n. 2. 8 Lincoln v. Saratoga and Sch. Railway, 23 Wend. 425. 379 *348 THE LAW OF RAILWAYS. [§ 157. occur? in the transportation of ' passengers, we are not prepared to say that the jury are bound altogether to shut their eyes to the public example of their verdicts.^ 10. In an action '" by the father for loss of service from an in- jury to his infant son, fourteen years of age, it was held that no damages could be given for the shock to the father's feelings, that being a proper consideration only in an action in the name of the son, for the direct injury.^" SECTION IX. CARRIERS OF PASSENGERS AND GOODS CANNOT DRIVE WiTHIN THE PRE- CINCTS OF A RAILWAY STATION. § 157. We have seen that it is competent for railways to make by-laws regulating the conduct of passengers, and the use of stations, and other matters concerning the traffic.^ It seems to be considered by the English courts, that even in a case where passengers, by the existing statutes and by-laws of 9 Farrish u. Keigle, 11 Grattan, 697. 1" Black V. CarroUton Railway, 10 Louis. Ann. E. 33. And in the case of Coakley v. The North Pennsylvania Kailw. 10 Am. Bailw. Times, No. 12, 6 Law Reg. 355, tried in the city of Philadelphia, for the death of a child fourteen years of age, by a collision of trains upon defendants' road, the court adopted a similar view in regard to the rule of damages. They said it was not a case for exem- plary damages ; the jury were to take into consideration the pecuniary services of the child until of age, and the expense incurred by the plaintiff after the acci- dent, and the value of the society of the child, which might be regarded as the strongest claim. But they were not to consider the anguish of the parents, nor were they to inquire what a man would take for a child, for this would be specu- lative damages, and in this view, the value of human life is beyond all price. The rule thus laid down is perhaps about as accurate as any one could give. But it is evident it will not bear strict analysis. For how can one estimate the value of the society of a child to a parent, and not consider the mental anguish consequent upon the death. It is the same thing, under different forms of speech. AH that can properly be said is, that the question of damages, within reason- able limits, rests entirely in the discretion of the jury. They are to be watchful, that their verdict shall not be so inadequate to the injury as to appear like a de- nial of justice, nor so extravagant as to indicate that they have assumed the office of avengers of the plaintiff's wrongs, without due consideration of any apology for the defendants' conduct, which to some extent exists in all cases. » Ante, § 26, 27, 28. 380 § 158.] COMMON CARMERS OF PASSENGERS. *349 the company, applicable to the subject, have the right to "insist upon coming upon the grounds adjoining the stations of the company, and even where the company generally allow omnibus drivers and other passenger carriers, to come within the precincts of their stations, without objection, that a particular earner of passengers, who was excluded from this privilege, had no ground of action against the company on that account.^ *SECTION X. DUTY RESULTING FROM THE SALE OF THROUGH PASSENGER TICKETS, IN THE FORM OF COUPONS. 1 . Not the same, as where goods and baggage are ticketed through. 2. It is to be regarded as a distinct sale of separate tickets for different roads. 3. The first mmpany are to be regarded as agents for the others. 4. If the business of the entire line is consoli- dated, it is different. 5. But in general it is not regarded as a case of partnership. § 158. 1. As the general duty of common carriers of passen- gers is different from that of common carriers of goods, so the 2 Barker v. Midland Railway Co. 36 Eng. L. & Eq. R. 253. This case is put, by the court, upon the ground of want of privity in contract, and also, that the grounds adjoining railway stations are not dedicated to public use, in any such sense as to become a public highway for carriages. The 2d section of the English "Railway and Canal Traffic Act, 1854," 17 & 18 Vict. c. 31, provides, that railway companies shall affijrd reasonable facilities for receiving and forwarding traffic, without any preference or advantage to par- |icular persons. The court in this case intimate, that even if the company are liable, under this act, for the injury here complained of, the party must pursue the specific remedy given by the statute. Willes, J., said : " The action is founded upon the supposed duty of the defendants, to let the plaintiff come on their lands, and it is suggested that the duty arises from the fact of their allowing the public generally to come on it ; but it is not stated that the defendants have dedicated the place to the public use, so as to make it public. Then it is said that it is the duty of the defendants, as carriers, to eJlow persons to bring passen- gers and goods on to the station. But it would be rather extraordinary, if a per- son, to whom no direct duty was due by the company, could maintain an action, when the passengers could not, because it is not averred that they were ready and willing to pay the fare, which is essential. Pickford v. The Grand Junction Railway Company, 8 M. & W. 372. But the action is not maintainable, also, on another ground. A third person cannot bring an action for the result of a breach of duty towards another person. The last case of that kind was where a passen- ger, by a coach, brought an action against the coach-maker for a breakdown. If such actions were permitted, the courts would be inundated with them." 381 *350 THE LAW OF RAILWAYS. [§ 158. implied contract, resulting from the sale of thrdugh tickets for passengers is different. In the case of carriers of goods, and the baggage of passengers, we have seen that taking pay and giving tickets or checks through, binds the first company ordinarily for the entire route.' 2. But in regard to carrying passengers, the rule is difFerentj we apprehend. These through tickets, in the form of coupons, which are purchased of the first company, and which entitle the person holding them to pass over, successive roads, with ordinary passenger baggage, sometimes for thousands of miles, in this country, import, commonly, no contract with the first company to carry such person beyond the line of their own road. They are to be regarded as distinct tickets for each road, sold by the first company, as agents for the others, so far as the passenger is concerned ; and unless the first company check the baggage be- yond their own line, * it is questionable, perhaps, how far they are liable for losses happening beyond their own limits.^ 3. And the contract which exists between the companies com- monly, in regard to the division of the price of the through tick- ets, constitutes no such partnership as will render eacii company liable for injuries or losses occurring upon the whole route. The first company is, in such case, viewed as the agent of the other companies, and the transaction requires no different con- struction from one where the tickets of one company are sold at the stations of other companies, which is not very uncommon, and would never be regarded in any other light than that of agency merely.^ 4. We are aware that in regard to consolidated lines of travel consisting of different companies, or natural persons, originally, where the entire fare is divided ratably, and all losses are de- ducted, it has been held to constitute such a partnership, as to render them all liable to third persons.^ 1 Ante, § 128, 135. 2 Sprague v. Whittemore, 29 Vt. R. ; Hood v. New York & New H. Railway, 22 Conn. R. 1 ; s. c. 502. When this case last came before the court, held, that the defendants were not estopped from denying, that under their charter they had power to enter into a contract to carry passengers beyond their own road. But in this respect the case stands alone, probably, at present. See Ellsworth v. Tartt, 26 Ala. R.. 733 ; post, § 162; Stratton v. New York & New H. Railway, 2 E. D. Smith, 184. 3 Champion v. Bostwick, 11 Wend. 572 ; s. c. 18 Wend. 175. 382 § 159.] COMMON CAERIEKS OE PASSENGERS. * 351 5. But in a recent case where the subject seems to have been a good deal examined, the rule is thus laid down : * " K the sev- eral proprietors of different portions of a public line of travel, by agreement among themselves, appoint a common agent at each end of the route to receive the fare, and give through tickets, this does not of itself constitute them partners, as to passen- gers who purchase through tickets, so as to render each one liable for losses occurring on any portion of the line." •SECTION XL HOW FAR THE DECLARATIONS OF THE PARTY ABE COMPETENT EVIDENCE. 1. Are competent to shoio state of health, in | 2. But not to show the manner in which the connection with other facts. \ injury occurred. § 159. 1. In trials for injuries to passengers, it has been allowed to show the plaintiff's complaints, of the state of his health, and that he has not labored at his trade, being poor, and having a considerable family.' 2. But in practice, at Nisi Prius, it has generally been con- sidered inadmissible, to show the statements of the party injured, in regard to the manner in which the injury occurred, as for in- stance the manner of driving, or the rate of speed, the declarations of the party being competent only as to invisible, and insensible effects of the injury, such as bodily and mental feelings, which are of necessity shown, by the usual ' and only modes of expres- sion, applicable to the subject.^ * Ellsworth V. Tartt, 26 Ala. R. 733. And a similar rule is adopted in Briggs V. Vanderbilt, 19 Barb. 222, in regard to passenger transportation between New York and San Francisco, the line consisting of three independent companies, who had no common interest in the business throughout the route, although they advertised together, as one line. And, in this case, where the defendant gave the plaintiff a ticket for a passage by a particular ship, which had already been wrecked, without the knowledge of either party, it was held the defendant was liable for the money received for the ticket, in an action for money had and re- ceived, as for the failure of the consideration for which the payment was made. > Caldwell v. Murphy, 1 Duer, 233 ; S. 0. 1 Kernan, 416 ; 1 Greenleaf, Ev. § 102; Aveson v. Kinnaird, 6 East, R. 188; Bacon v. Charlton, 7 Cush. 581. In an action for damage sustained through defects in a highway, it is not competent for the plaintiff to give evidence of his declarations to his physician, in regard to the cause of the injury for which the physician was consulted. Chapin v. Marl- 388 ^3,52 THE LAW OP RAILWAYS. [§ 160. SECTION XII. PASSENGERS WRONGFULLY EXPELLED FROM OARS. 1. Company not held liable for exemplary damages tunless they ratified the expul- 2. But 3ut upon principle the company should he liable fiir special damage. Are trespassers if they refuse to deliver baggage in such cases. § 160. 1. It has been held that a passenger, who was wrong- fully expelled from the company's cars, after having surrendered his ticket, the conductor not crediting his statement, was not entitled to recover vindictive or punitive damages, against the company, unless they expressly or impliedly participated in the tortious act, authorizing it before or approving it after it was committed.^ boro, 20 Law Rep. 653, in Supreme Court of Mass. Nor in an action for dam- ages, by reason of collisidn between two carriages upon the highway, can the plaintiff give evidence of the declarations of defendant's servant, that the plaintiff was not in fault, made at the time of the accident, and while the defendant was being extricated from the carriage. Lane v. Bryant, 20 Law Rep.. 653. 1 Hagan v. Providence & Worcester Railway, 3 Rhode Island R. 88. This was an action on the case, and the rule of damages given to the jury, approved in the Superior Court was, " That all damages for actual injury, loss of time, pain of body, money paid for employment of physician, or injury to the feelings of de- fendant, might be allowed." This is as far as most cases go, in this form of action, unless in slander and libel ; and it has been seriously questioned, how far dam- ages in any case, should be given, for exemplary or punitive purposes. But in practice, that has more commonly been allowed, when the party acts in bad faith, and from feelings of vindictiveness. And in the case of railway companies, who are incapable of such motives personally, it is rather intimated in the case cited above that they would never be liable for such damages, unless upon some for- mal ratification of the act of their agent. But, upon principle, it would seem that if the agent was so situated as to represent the company in the particular trans- action, and for the time, they should be liable to the same rule of damages as the agent, although the form of action may be different. If the act is that of the company, they should be held responsible for all its consequences, and there seems quite as much necessity for holding the company liable to exemplary damages, aS their agents. It is difficult to perceive why a passenger, who suffers indignity and insult, from an inexperienced or incompe- tent conductor of a train, should be compelled to show the actual ratification, of the act of the conductor, in jDrder to subject the company to exemplary damages, if the transaction was really of a character to demand such damages, and the company are liable at all. It would rather seem that the reasoning of the court, 384 § 161.] COMMON CAKRIERS OP PASSENGERS. 352-353 * 2. But no doubt if one were put out of the cars wrongfully, and thereby suffered serious detriment in his business, he might be entitled to recover special damages, but not probably, without declaring specially, in regard to such damages. 3. Where a ship-owner refused to carry a passenger, whom he had engaged to carry, and proceeds on the voyage, without giv- ing the passenger reasonable opportunity to remove his baggage, or with the intent to carry it beyond his reach, it was held, that he thereby terminated the contract of carriage, and was liable, in trespass.^ SECTION XIII. PAYING MONEY INTO COURT, IN ACTIONS AGAINST PASSKNGEK CARRIERS. 1 , Payment into court in general county and tort, only admits damages to extent of sutn paid. 2. But in cases of special contract, admits the contract and breach alleged. § 161. 1. Where a declaration in tort is general, and without specification of the particulars of the cause of action, the pay- ment of * money into court admits a cause of action, but not the cause of action sued for, beyond the amount paid into court, and the plaintiff must give evidence, before he is entitled to damages, beyond the amount paid into court. 2. But if the declaration is specific, so that nothing is due, un- less the defendant admits the specific claim, in the declaration, the payment of money into court admits the cause of action sued for,^ both the contract and the breach -of it. carried to its full extent, would show, that the conductor, in that portion of his conduct, which was tortious, did not represent the company at all. Upon the same principle it was at one time held, that a corporation is not liable to indict- ment, for the misfeasance of its agents. Post, § 225 ; ante, § 131, 137, 154. 2 Holmes v. Doane, 3 Gray, 328. ' Perren u. Monmouthshire Railway and Canal Co. 20 Eng. L. & Eq. K. 258. The declaration here stated a contract to carry plaintiff from N. to E., and a nedio'ent breach of duty, in the performance of it, and damages. Plea, payment of 251. into court. Replication, damages ultra. Held, the negligence was admit- ted, and the plaintiff was entitled to recover all damages proved, even beyond the 251, without introducing proof to show defendant guilty of negligence on his part. The general subject of the effect of paying money into court, will be found examined, to some extent, in Hyde v. Moffatt, 16 Vt. R. 286 ; Bacon v. Charl- 33 385 *354 THE LAW OF RAILWAYS, [§ 162. SECTION XIV. LIABILITY WHERE ONE COMPANY USES THE TRACK OF ANOTHER. 1 . Statement of the facts of a case. 2. Company not liable to passengers for torts committed by strangers. 3. Sam£ liability towards passengers coming from other roads, as in other cases. § 162. 1. In a recent case, the plaintiff had employed the de- fendants to transport cattle from Vermont to Boston, by their trains. By the custom of defendants, the plaintiff was allowed to go, as a passenger, in a saloon car attached to the cattle train, without additional charge, to enable him to look after the cattle. This train, in its passage, went over the Northern New Hamp- shire Railway, that company furnishing the motive power, with their engineer and fireman, but the defendants' conductor con- tinuing with the train through the route. While the train was passing over the Northern New Hampshire Railway, without any fault of those who had the management of it, but through the sole negligence of the other servants and employees of the Northern New Hampshire Railway, the saloon car, which car- ried the plaintiff, was broken in by a collision with another train, going in the same direction, and the plaintiff seriously injured. * 2. It was held, that the undertaking of the defendants, in regard to carrying plaintiff, was only that of ordinary passenger carriers, and did not render them responsible for injuries which he might sustain by the misconduct of other parties ; ' that the ton, 7 Cush. 581. See also upon this general subject, Stapleton v. Nowell, 6 M. & W. 9 ; Fischer v. Aide, 3 M. & W. 486 ; Story v. Finnis, 3 Eng. L. & Eq. K. 548. 1 Sprague v. Trustees of Vermont Central Railway, 29 Vt. R. It was argued, in this case, that, as the defendants' contract bound them absolutely to carry the freight, and the plaintiff went, as incidental to the main contract, the same kind of liability should b^ assumed, in regard to him, if not to the same extent. But the plaintiff can in no sense be regarded otherwise than as a passenger. The same rule applies to agents, and servants, and to negro slaves. United States v. The Thomas Swan, (Dist. Court of U. S. Dist. South Carolina,) before Magrath, J., 19 Law R. 201. There is the same difference between the liability of car- riers always, for the person of a passenger, and for his baggage. In the case of Sullivan v. Philadelphia & Reading Railw. 6 Am. Law Reg. 342, it is decided, that a railway company cannot excuse themselves, as carriers of passengers, where injury occurs, in consequence of cattle straying upon the track, through § 163.] EXCESSIVE TOLLS, FARE, AND FREIGHT. 355 plaintiff being aware, from the very nature of the transaction, that he would be exposed to perils of this character, must be supposed to undertake, upon his own part, to sustain that haz- ard ; and could not justly be allowed to throw it upon an inno- cent party, who was known to him at the time of .entering into the contract, to have no control over the persons causing the plaintiff's injury.^ 3. In a recent case in Massachusetts, it was held, that a rail- way company, which receives the cars of another company upon its track, placing them under the control of its agents and ser- vants, and drawing them by its locomotive power, assume towards the passengers the common liability of passenger car- riers,^ and that it makes no difference, in regard to the liability of the company, to passengers passing over their road, whether they purchase tickets of them, or of any other railway company, or agent, authorized to sell such tickets.^ ♦CHAPTER XVIII. EXCESSIVE TOLLS, FARE, AND FREIGHT. 6. Tolls upon railways almost unknoum here. Fare and freight often limited. 7. Guaranty of certain profit on investment lawful. 8. Restriction of freight to certain rate per ton, extends to whole line. 9. Need not declare for tolls. 10. Mode of establishing, and requisite proof . , 1. English companies created sometimes, for maintaining road only. 2. Where excessive tolls taken may be recov- ered back. 3. So also may excessive fare and freight. 4. By English statute, packed parcels must be rated in mass. 5. Nature of railway traffic requires unity of management and control. § 163. 1. By the English statutes, companies are created who own the railway, stations, &c. merely, and who are empowered defect of fences, which as to the owners of the cattle, the company were not bound to maintain, because such act is a trespass against the company. It is the duty of the company to exclude cattle from their track, for the security of their passengers. But this rule would not probably be extended to such acts of tres- pass, as no reasonable foresight or caution could have anticipated or guarded against. Post, § 166, n. 5. 2 Bridge v. Grand J. Railway, 3 M. & W. 244 ; Thoroughgood v. Bryan, 8 C. B. R. 115,129. 3 Schopman v. Boston & Worcester Railway, 9 Cush. R. 24. 887 * 356 THE LAW OF RAILWAYS. [§ 163. to demand certain tolls of other persons, or companies, for the use of such road. 2. In such cases, if illegal toUs are demanded and paid, the excess may be recovered back, as money had and received, to the use of the. person paying it, upon the. general principles of law applicable to the subject of toHs, and the demand and receipt of excessive toUs.^ 3. And the same rule has been extended to the recovery of money overpaid upon an exorbitant and illegal demand of freight or fare, by railways. And the recovery may be had, although the person paying it did not tender any specific sum, as due, and although a portion of the overcharge was on account of what was claimed to be due another company.^ *4. And under the English statutes, packed parcels of the same class, are required to be rated in mass.^ 5. Most of the business upon public railways, in this country and in England, at the present time, is almost of necessity trans- acted by the companies themselves. The very nature of the business seems to require absolute unity, in the management and control of the traffic, and especially in this country, where a large proportion of the roads are operated upon a single track, requiring the utmost watchfulness and circumspection, to avoid collisions. We suppose the idea of operating a railway, in Eng- land, upon a single track, would be regarded as too glaring an absurdity to be seriously entertained. But in this country it is 1 Fearnley v. Morley, 5 B. & C. 25. See also this subject very extensively examined in Centre Turnpike Co. v. Smith, 12 Vt. R. 212; post, § 181. Tolls are a payment for passing along the line of the railway, and should be received with reference to the number of carriages passing. Simpson v. Denison, 13 Eng. L. & Eq. R. 859. 2 Parker v. The Bristol and Exeter Railway Co. 6 Railw. C. 776. See also, Snowdan v. Davis, 1 Taunt. 359 ; Atlee v. Backhouse, 3 M. &W. 633 ; and Spry V. Emperor, 6 M. & W. 639, where the general subject is discussed. In Parker V. The Great Western Railway Co. 3 Railw. C. 663, the very point is decided. Crouch V. London & N. W. Railway Co. 2 Car. & K. 789 ; Crouch v. Great Northern Railway, 25 Eng. L. & Eq. R. 449. 3 Parker v'. The Great Western Railway Co. 8 Eng. L. & Eq. E. 426. This subject of overcharge and the right to recover back the excess, is extensively discussed in this case, and in the case of Edwards, Assignee of Edwards, v. The Same Company, 8 Eng. L. & Eq. R. 447 j Crouch v. Great Northern Railway Co. 25 Eng. L. & Eq. R. 449. 888 § 163.] EXCESSIVE TOLLS, FARE, AND FREIGHT. * 356 rather the rule than the exception, and many of the continental railways, in Europe, have only a single track. 6. The matter of tolls, upon railways, is a thing almost un- known in this country, and very little practised anywhere, at present. But the English special acts, and the American rail- way charters, very often, fix the maximum of freight and fare, which it shall be lawful for the company to receive, and if tolls are allowed to be taken of other companies, or persons, these also are limited. 7. A guaranty of a certain amount of profit to a company, by other companies, in consideration of the right to use the track of such company, is lawful.* 8. The restriction in the charter of the Camden & Amboy . Railway, of freight, to eight cents per ton, per mile, extends to the whole distance of the line of said company, although some of it is by water, and includes the auxiliary roads through New Brunswick and Trenton.^ 9. In an action to recover tolls due to a railway it is -not nec- essary to describe the dues, as tolls. Any description which sufficiently identifies the nature of the service, for which com- pensation is demanded, is all that is required.^ 10. Freights upon a railway may be established by the direc- tors, or by their agents ; and their assent will be presumed, if nothing appear to the contrary.^ And where the directors are required to establish freights, and they do establish a printed tariff, that is to be regarded as the original ; and where copies of such tariff are required to be posted, at the depots, or stations of the company, that affords sufficient excuse for the absence of such copies, to justify the admission of secondary evidence.^ 4 Great N. Railway v. S. Yorkshire Railway, 25 Eng. L. & Eq. R. 482. 5 Camden & Amboy Railway v. Briggs, 1 N. J. (Zab.) 406. Where one company leased its line to another, at a certain rate, for all min- erals transported, among other commodities, it was held, that the owners of minerals transported upon such line, could not, by injunction, compel the lessees to transport minerals upon the same terms, on which they agreed with the other company, by way of compensation to them, the latter being a rent merely, and not a rate of toll or freight. Finnie v. Glasgow & Southwestern Railway Co- 30 Law Times, 26. 6 Manchester & Lawrence Railw. v. Fisk, 33 New H. R. 297. 33 * 389 * 357-358 THE LAW OF RAILWAYS. [§ 164. * CHAPTER XIX. LIABILITY FOR FIRES, COMMUNICATED BY COMPANY'S ENGINES. 1. FacL of fires heing communicated evidence of negligence,' 2. This was at one time questioned in Eng- land. 3. Opinion of Tindcd, Ch. J., upon this point. 4. English companies feel bound to use pre- cautions against fire. 5. Rule of evidence, in this country, more fa- vorable to companies. 6. But the company are liable for damage by fire through want of care on their part. 7. One is not precluded from recovery, by placing buildings in an exposed situation, 8. Where insurers pay damages, oa insured properly, may have action against com- pany. 9. Where company made liable for injury to all property, are allowed to insure. § 164. 1. In the English courts it seems to have been settled, as early as the year 1846,^ upon great consideration, that the fact of premises being fired by sparks emitted from a passing engine, is primd facie evidence of negligence on the part of the com- pany, rendering it incumbent upon them to show, that some pre- cautions had been adopted by them, reasonably calculated to prevent such accidents. 2. In an earlier case, where the facts were reported, by the judge, at Nisi Prius, for the opinion of the full court, that a stack of beans near the track of the railway was fired and consumed by sparks from the company's engine, of the ordinary construc- tion, and used in the ordinary mode, the court said the facts reported did not show necessarily, either negligence, or no negli- gence. That was a question for the jury.^ 3. But the court in the case of Piggott v. Eastern Co.'s Rail- way, went much further. Tindal, Ch. J., said : " The defendants are a company intrusted, by the legislature, with an agent of an extremely dangerous and unruly character, for their own private and particular advantage; and the law requires of them, that they shall, in the exercise of the rights and powers, so conferred upon them, adopt such precautions as may reasonably prevent damage *to the property of third persons, through or near which their railway passes. The evidence in this case was abundantly sufficient to show, that the injury of which the plaintiff com- 1 Piggott V. Eastern Counties Railway Co. 3 C. B. 229. a Aldridge v. Great Western Railway, 3 M. & G. 515 ; 2 Railw. C. 852. 390 § 164.] LIABILITY FOR FIRES, ETC. * 359 plains was caused by the emission of sparks, or particles of ignited coke, coming from one of the defendants' engines ; and there was no proof of any precaution adopted by the company to avoid such a- mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of neg^ ligence, and that the injury complained of was the result of such negligence. There are many old authorities to sustain this view ; for instance, the case of Mitchil v. Alestree, 1 Vent. 295, for an injury resulting to the plaintiff from the defendant's riding an unruly horse in Lincoln's Inn Fields ; that of Bayntine v. Sharp, 1 Lutw. 90, for permitting a mad buU to be at large ; and that of Smith v. Pelah, 2 Stra. 1264, for allowing a dog, known to be accustomed to bite, to go about unmuzzled. The precau- tions suggested by the witnesses, called for the plaintiff in this case, may be compared to the muzzle in the case last referred to. The case of Beaulien v. Finglam, in the Year-Books, P. 2, H. 4, fol. 18, pL 5, comes very near to this. There, the defendant was charged, in case, for so negligently keeping his fire as to occasion the destruction of the plaintiff's property adjoining. The duty there alleged was — " quare, cum secundum legem et consuetudinem regni nostri Angli(B hactenus obtentam, quod quUibet de eodem regno ignem suum salvo et secure custodial, et custodire teneatur^ ne per ignem suum damnum aliquod vicinis suis eveniat." 4. The principle of this case seems to have been acquiesced in, by the railways in England,^ and such precautions used, as to secure the engines against emitting sparks. In this last case it was held proper evidence to go to the jury, that the com- pany's * engines had before, in passing along the line, emitted 3 Hammon v. Southeastern Railway Co. Maidstone Spring Assizes, 1846, before Lord Denman, Ch. J., for the destruction of farm buildings, including a thatched barn, by sparks emitted from the defendants' engines in passing along the line of their railway. There was evidence of the fire being so caused, and that defendants' engines had no wire guard, or perforated plate, to prevent the escape of the sparks, although both were in use before that time. There was evidence in this case that it was principally, where the engines were overtasked, that they were liable to emit sparks. His Lordship directed the jury that it lay upon the plainiifis to establish negligence, they were to consider that the plain- tiflfs might have saved aE hazard by tiling his barn, and also whether the train was driven too fast. The plaintiff had a verdict, and the court subsequently refused a new trial. Taylor v. Same Co. was tried at same term, with similar proof and the same result. Walford on Bailways, 183, 184-, and notes. 391 * 359 THE LAW OF RAILWAYS. [§ 164. sparks, a suiRcient distance to have done the injury in the pres- ent case, as a means of ascertaining the possibility of the build- ing being fired in the manner alleged. The testimony in this case showed, that the danger of emitting sparks is very much increased, by overtasking the engine, and that it may be alto- gether avoided, by shutting oif the steam, in passing a place, where there is danger from sparks, or that the danger may be guarded against, by mechanical precautions. 5. But in this country it must be confessed the rule of the lia- bility of railways for damage done, by fire communicated by their engines, is more favorable to the companies than in Eng- land. It seems to have been assumed, in this country, that the business of railways being lawful, no presumption of negligence arises from the fact of fire being communicated by their engines.* 6. In this country it has been held that proof, that sparks have upon other occasions been emitted and caused fires along the line of the road, is not admissible, either to show that defend- ants' engine caused the damage, or to rebut defendants' proof of care and diligence in using their engines.^ But the testimony seems to have been received in other cases.^ All the cases upon this subject hold railways bound to the exercise of care, skiO, and diligence, to prevent fires being communicated in this mode, and make them liable, in case of damage through their negli- gence.^ 7. And one is not precluded from recovery in such case, by having placed his buildings or other property in an exposed posi- tion.^ 4 Rood V. N. Y. & Erie Railway, 18 Barb. 80 ; Lyman v. Boston & W. Railway, 4 Cush. R. 288; Burroughs v. The Housatonic Railway, 15 Conn. R. 124. In this case the court compare the injury to that of fire communicated by sparks from the chimney of a dwelling-house. Where the statute requires the company to show that the fire occurred " without any negligence on their part," it was held sufficient to show that their engines were properly constructed, in good order, and had the usual apparatus for preventing the escape of sparks, and were man- aged by discreet persons. B. & S. R. v. Woodrufi", 4 Maryland, 242. 6 Baltimore & Susquehannah Railway v. Woodruff, 4 Maryland K. 242. 6 McCready v. The Railway Co. 2 Strob. 858. T 15 Conn. R. 124 ; Huyett v. Phil. & R. Railway, 23 Penn. 373. ■ The jury are to determine the question of negligence. Id. The company are bound to use more care in regard to fires, in a very dry time, or where property is very much exposed. Id. 8 Coop V. Champ. Trans. Co. 1 Denio, 91, 99, 101. 392 § 164.] LIABILITY FOR FIRES, ETC. * 360 8.- And where the railway companies are made liable for all * damage in this way, as they are in Massachusetts, and some of the other states, by statute, if one whose property is insured suf- fer loss in this way, and the insurers pay him his entire loss, they may recover in his name against the company.^ And it was de- cided in one case that the insurer might recover of the carriers in the name of the consignor, on whose behalf the policy was effected, after having paid the amount of the loss to the con- signor.^" We cannot forbear to add that the interference of the legisla- tures upon this subject, in many of the American states, seems to us an indication of the public sense, in favor of placing the risk, in such cases, upon the party in whose power it lies most to prevent such injuries occurring. There seems to us both justice and policy in the English rule upon the subject. 9. By statute in some of the states, as we have seen, railways are made liable for any injury to "buildings or other property of any person — by fire communicated," by their locomotive engines, and it is sometimes specially provided that railways shall have an insurable interest in such property. But it has been held that such statutory liability only extends to property of a permanent nature, and upon which an insurance may be effected ; and that for injuries of this kind to other property the company will only be responsible for negligence, unskilfulness, or imprudence, in running and conducting their engines.'^ 9 Hart V. The Western Railway, 13 Met. 99. And under such a statute, •where the sparks from the engine communicated fire to a shop, and the wind drove the sparks from the shop sixty feet across the street, and set fire to a house, it was held that this second fire must be regarded as " communicated " by the company's engine, within the statute. Id. In a contract of insurance in favor of a railway company, upon " cars of all descriptions " — " on the line of their road and in actual use," where in answer to the inquiry "where the property was situated," the company reply, " from Boston to Fitchburg and branches this side of Fitchburg ; " and cars of the plaintiff's company loaded with ice, standing upon a track belonging to the proprietors of a wharf where the ice was unloaded, but communicating with the track of the Fitchburg road, were burned by a fire communicated from the wharf, it was held to come within the contract, and the insurance company were held liable. Fitch- burg Railway v. Charlestown Mutual Ins. Co. 5 Gray R. 1* Burnside v. Steamboat Company, 10 Rich. (S. C.) R. 113. '1 Chapman v. Atlantic & St. Lawrence Railw^iy, 37 Maine R. 92. This is an action for the loss of cedar posts, piled upon land adjoining the railway, by the 893 '361 THE LAW OF RAILWAYS. [§ 165. * CHAPTER XX. INJURIES TO DOMESTIC ANIMALS. 1 . Company not liable unless bound to keep the animals off the track. 2. Some cases go even further, in favor of the company. 3. Not liable where the animals were wrong- fully abroad. 4. Not liable for injury to animals, on land where cojnpany not bound to fence. 5. Where company hound to fence are prim& facie liable for injury to cattle. 6. But if owner is in fault, company not liable. 7. In such case company only liable for gross neglect or wilful injury. 8. Owner cannot recover, if he suffer his cat. tie to go at large, near a railway. 9. Company not liable in such case, unless they might have avoided the injury, 10. Wha-e company are required to keep gates closed, are liable to any party in- jured by omission. 1 1 . Opinion of Gibson, Justice, on this subject, 12 and 17. Not liable for consequences of the proper use of their engines. Questions of negligence ordinarily to be determined by jury. But this is true only where the testimony leaves the question doubtful. 15. Actions maybe maintained sometimes, for remote consequences of negligence. 16 and 18. Especially where a statutory duty is neglected by company. 13. 14 § 165. 1. The decisions upon the subject of injuries to domes- tic animals, by railways, are very numerous, bat may be reduced to a comparatively few principles. Where the owner of the ani- mals is unable to show that, as against the railway they were properly upon the track, or in other words, that it was through the fault of the company that they were enabled to come upon the road, the company are not, in general liable, unless after they discovered the animals, they might, by the exercise of proper care and prudence, have prevented the injury. 2. Most of the better considered cases certainly adopt this view of the subject, and some perhaps go even further in favor of exempting the company from liability, where they were not originally in fault, and the animals were exposed to the injury through the fault of the owner, mediately or immediately. 3. For instance, if the animal escape into the highway and thus get upon the track of the railway, where it intersects with the highway, and is killed, the company are not liable.^ And if consent of the owner of the land, and set on fire by a spark from the defendants' engine, and they were held not liable under the statute. 1 Towns V. Cheshire Railway, 1 Foster, 11. 363 ; Sherrod v. London and N. W. Eailvfay, 4 Exoh. 580. 394 § 165.] INJXJEIES TO DOMESTIC ANInfLS. * 362 the ' animals are trespassing upon a field, and stray from the field, upon the track of the railway, through defect of fences, which the company are bound to maintain, as against the owner of the field, and are killed, the company are not liable, either at common law or under the English statute,^ or upon the ground that the defendant exercised a dangerous trade. The obligation to make and maintain fences, both at common law and under the statute, applies only as against the owners or occupiers of the adjoining close.^ 4. So where the statute requires railways to fence their road, where the same passes through " inclosed or improved lands," if injury happen to another's cattle through want of fences, upon common or uninclosed land, it is not legally imputable to the negligence of the company.* 5. But if the railway are bound to maintain fences, as against the owner of the cattle, and they come upon the road through defect of such fences, and are injured, the company are, in gen- eral, liable without further proof of negligence.^ 2 8 & 9 Vict. ch. 20, § 68. 3 Ricketts v. The East and West India Doclisand Birm. J. Railway, 12 Eng. L. & Eq. R. 520. The same point is ruled in the following cases. Jackson v. Rut. & Bur. Railway, 25 Vt. R. 150. See also cases referred to in § 166, 167. And it was held, Man. Sh. & Lincolnshire Railway v. Wallis, 25 Eng. L. & Eq. R. 373, that a railway are not bound to fence against cattle straying upon a high- way running along the railway, and that they are not liable for an injury sus- tained by cattle in getting from such highway upon the railway, through a defect of the fences maintained by the company ; although the cattle strayed upon the highway without any fault of the owner. Brooks v. N. Y. & Erie Railway, 13 Barb. 594. But in the Midland Railway v Daykin, 33 Eng. L. & Eq. R. 193, it was held that where a colt strayed from a field, upon a public road, abutting upon which was a yard not fenced from a railway, the gate of which was, through the neglect of the company's servants, left open, and while the colt was being driven back to the field, by the servants of the owner, it escaped into the yard, and thence upon the railway, where it was killed by a passing train, the company were liable. Jervis, Ch. J., says, " I can see no room to doubt that that was a lawful use of the highway." 4 Perkins v. Eastern Railway and The Boston & M. Railway, 29 Maine R. 307. And if by the common usage cattle have the right to run upon uninclosed land, the owner incurs the risk of all accidents. Knight v. Abert, 6 Barr, 472 ; Phil, and Germ. Railway v. Wilt, 4 Whart. 143. s Suydam v. Moore, 8 Barb. 358 ; Waldron v. Rensselaer and Sar. Railway, 8 Barb. 390; Horn v. Atlantic and St. Lawrence Railway, 19 Law Rep. 694; Smith V. Eastern Railway, 20 id. 288. But where the cattle come upon the rail- 395 * 363 • THE LAW OF RAILWAYS. • [§ 16S. 6. But where the statute imposes the duty of building fence upon the railway, they may lawfully stipulate with the land own- ers * to maintain it, and if such land-owner suffer his cattle to be where they may come upon the railway, without building the fence, he cannot recover of the company.^ So, too, if the plain- tiff leave down the bars at a cattle crossing, \whereby his cattle go upon the railway and are killed, he cannot recoverJ 7. And where the cattle go upon a railway through defect of fences, which the owner is bound to maintain, and suffer dam- age, the owner has no claim upon the company, unless perhaps, for what has sometimes been denominated gross negligence, or wilful injury,^ for in such cases the cattle are regarded as tres- passers,^ and the owner, the cause of the injury sustained, unless the railway might have prevented it. 8. And it was held to be gross negligence for the owner of cattle to suffer them to go at large, in the vicinity of a railway, whether the same was fenced or not.^ way, at a point not proper to be fenced, as at the intersection of a highway, or at a mill yard, the company are not liable for injury to them, unless the plaintiff prove some fault on the part of the company's servants, besides the want offences. Indianapolis & C. R. v. Kinney, 8 Ind. R. 402 ; Lafayette & Ind. Railw. v. Shriner, 6 Ind. R. 141. 6 Tower v. Prov. and Wor. Railway, 2 Rhode Island R. 404, 411 ; Clark v. Sy. & Utica Railroad, 11 Barb. 112; C. H. & D. Railway v. Waterson, 4 Ohio St. R. 424. So also, where the duty of maintaining the fences 'along the railway, is upon the land-owner, and it is burned down by fire, communicated by the com- pany's engines, and he suffers his fields to remain unfenced, whereby his cattle go upon the track, and are killed, he cannot recover. If the company are in fault, and liable to damages in regard to the fire, this does not oblige them to rebuild the fence, nor will it justify the plaintiff in suffering his fields to remain unfenced except at his own peril. Terry v. New York Central Railway, 22 Barb. 574. 1 Waldron v. Portland, S. & P. Railway, 35 Maine, 422. 8 Tonawanda Railway v. Munger, 5 Denio, 255 ; s. c. 4 "Const. R. 349 ; Clark V. Syracuse and Utica Railway, 11 Barb. R. 112 ; Williams B.Mich. Central Rail- way, 2 Mich. 259. In this case the horses were wrongfully upon the railway, and the court say " they (the company) cannot be held liable for any accidental in- jury which may have occurred, unless the lawful right of running the train was exercised without a proper degree of care and precaution, or in an unreasonable or unlawful manner." See also Garris v. Portsmouth and Roanoke Railway, 2 Ired. 324 ; C. H. & D. Railway v. Waterson, 4 Ohio St. R. 424 ; C. C. & C. Railway v. Elliott, 4 Ohio St. R. 474. 9 Marsh V. N. Y. and Erie Railway, 14 Barb. 364; Talmadge v. Rensselaer and Saratoga Railway, 13 Barb. 497; Louisville and Frankfort Railway «. Wilton, 396 § 165.] INJURIES TO DOMESTIC ANIMALS. * 364 * 9. It has been held not to be sufficient in such cases to charge the company, to show that they were running at an unreason- able rate of speed, or without proper care in other respects.^" The only question in such case is, we apprehend, whether the company, after discovering the peril of the animals, might have so conducted as to have prevented the injury.'" The same rule obtains, which does in actions for personal injuries, where there is fault in both parties. 10. And it has been held that where the statute, in general terms, requires railways to keep gates, at road-crossings, con- stantly closed, that one, whose horses leaped from his field into the highway, and then strayed upon the railway, by reason of the gates not being kept constantly closed, and were killed, might recover of the company .^i In such case it was held, that as to the company, the horses were lawfully on the highway, as the provision in the statute in regard to keeping the gates shut, was intended for the protection of all cattle, horses, &c. passing along the^ highway, whether strayed there or not, unless perhaps when voluntarily suffered to run at large in the highway. And the duty of keeping cattle-guards at road-crossings, has been considered to extend to the protection of all animals in the street, and to be a duty which the railway owe the public generally. 14 B. Monroe, R. 75. This is where the plaintiff below suffered the company to build a railway through his field without stipulating that they should fence the track, and his cattle running upon the track while depasturing in the field were killed, and the court held the company are not liable, " unless the injury could have been avoided with reasonable care." But in Housatonic Railway v. Water- bury, 23 Conn. 101, it was held that in such case the company hold their ease- ment subject to the land-owner's right to cross and recross, to and from the dif- ferent sections of his farm, provided the right is reasonably exercised, and that the land-owner is not chargeable with negligence in letting his cattle run on his land unfenced, unless he knew they were accustomed to keep near the track, thus imposing a duty of watchfulness on both parties. 10 Vandergrift v. Eediker, 2 N. J. K. (Zab.) 185 ; Clark v. Sy. & Utica Rail- way, 11 Barb. 112; Williams v. Mich. Central Railway, 2 Mich. 259 ; Lafayette & Ind. Railway v. Shriner, 6 Porter (Ind.) R. 141. Here it is held the company are liable for gross negligence, even where the cattle are wrongfully upon the road. 11 Fawcett v. York & North M. Railway, 2 Eng. L. & Eq. R. 289. But it is a question for the jury, under the circumstances, whether they believe the gates were left open, by the fault of the company's servants, or the tort of a stranger. Walford, 179, citing two JNhi Prius cases, (1842,) (1845.) 34 397 * 364 THE LAW OF RAILWAYS. [§ 165. and not merely the owners of cattle driven along the highway, which, in strictness, is the only condition in which cattle are rightfully in the highway, at common law.^ 11. In the New York & Erie Railway v. Skinner,^^ Gibson, J., 12 Trow 17. The Vermont Central Railway, 24 Vt. K. 487. And in Railroad V. Skinner, 19 Penn. R. 298, it is said, that if cattle are suffered to go at large, and are killed or injured on a railway, the owner has no remedy against the company, and may himself be made liable for damage done by them to the com- pany ; and it is unimportant whether the owner knew of the jeopardy of the cattle ; and that it is error to submit the question of negligence to the jury, unless there is some evidence of such fact. In a late case in the Circuit Court of Virginia, in error from the County Court, The Richmond & Petersburgh Railw. v. Mrs. Jones, this subject is discussed, at length, 6 Am. Law, Reg. 346. It appeared, upon the trial of the case before the jury, that the company had been assessed in damages to the land-owners along the line of their road, in consequence of additional fence being required, by reason of the construction of the railway. The animal, for killing which the suit was brought, was found dead near the crossing of the highway and railway, in such a state as to show that it had been killed by collision with the compafny's engines very near the crossing. The plaintiff below suffered the beast to run at large and graze upon the uninclosed lands in the neighborhood of the railway, her own land not lying in immediate contact with the line of the railway. The case, not being of sufficient amount to authorize its being carried to the Court of Ap- peals, the decision was final, and the case is discussed at length upon the prin- ciples involved, and the following points ruled : — Prima facie the company are not liable, even when cattle are killed, at a road crossing. Both the owner of the cattle and the company, in such case, being ap- parently in the exercise of their legal rights, the law presumes no breach of duty, and thus imposes upon the party who alleges such breach the burden of proof To entitle the owner in such case to recover of the company, he must prove want of care or skill on the part of the company. But where cattle are killed along the line of the road, and not at a road cross- ing, the case is much less favorable to the owner, inasmuch as the company, having paid the expense of fencing to the land-owners adjoining, are entitled to have cattle excluded from their track. And the statute, depriving the company of anfaction against the owner of cattle for damages, caused by their straying upon the road, does not render it lawful for cattle to be allowed to go there un- restrained by fences. 13 19 Penn. 298; 1 Am. Law Reg. 97. But in Banner v. South Carolina Railway, 4 Rich. 329, it was held, that the fact that cattle pasturing on one's own land, are injured by a railway company's trains, is prima facie evidence of the liability of the company, and that the company could only excuse themselves, by showing, from the manner the injury occurred, that they were not guilty of neg- ligence. And that for this purpose, the company must show, not only that the injury was not intentional, but that it was unavoidable, and occurred without the least fault on the part of the engineer. But to the maintenance of an action on 398 § 165.] INJURIES TO DOMESTIC ANIMALS. * 365 lays * down the rale in the broadest terms, that railways, inde- pendent of statutory requisitions, and as against the adjoining land-owners, are under no duty whatever to fence their road, nor are they bound to run with any reference whatever to the possi- bility of cattle getting upon the track. Every man is bound, at his peril, to keep his cattle off the track, and if he do not, and they suffer damage, he has no claim upon the company, or their servants, and is liable for damages done by them to the company or its passengers. The opinion contains many sensible sugges- tions, and is curious for the enthusiasm and zeal manifested by one already beyond the ordinary limit of human life. These views have sometimes been adopted in the jury trials in other states, and as reported in the newspapers, in a recent case in Wis- consin, Prichard v. The La Crosse & Milwaukie Railway. But, they are certainly not maintainable to the full extent, in any the case for such injury, it is requisite to show, that it arose from the negligence of the company, and if it appear to have been wilful, or accidental, this action will not lie. This seems to be assuming the extreme opposite of the case last cited. The truth will be found to lie between them, "doubtless. But the rule in Banner's case does not apply where the animal killed is a dog. Wilson v. Kail- way Company, 10 Rich. (S. C.) R. 52. But it does apply to the killing of a horse at night. Murray v. Same, id. 227. By the law of South Carolina cattle must be fenced out, not fenced in. The entry, therefore, of cattle, as a horse, upon an uninclosed railway track, is no trespass. Murray u. Railroad Company, id. 227. And it was held, that the owner of a horse, permitted to roam at large over uninclosed land, is not guilty of such negligence as will embarrass his recovery, should the horse be killed by the negligence of another, lb. The statute in Georgia, 1847, makes railway companies liable for all damages done to live-stock or other property. But it was held they were not liable when the damage was caused by the design or negligence of the owner. Macon & W. Railway v. Davis, 13 Ga. 68. And in New York it is held, that their general statute, making railway companies liable for all damage done to cattle, horses, and other animals, until they shall fence their roads, renders them liable to the owner of cattle, which strayed into an adjoining close, where they were trespassers and thence upon the railway, or from the highway upon the railway. And that it makes no difference how the cattle came upon the railway, unless it is by the di- rect act, or neglect of the owner, so long as the company do not fence their road according to the requirements of the statute. Corwin v. N. Y. & Erie Railway, 3 Kernan, 42. In this case the company had contracted with the land-owner to build the fence, which he had not done, and it was admitted, that if he had owned the cattle he could not recover. It is somewhat remarkable, that the rights of the owner of cattle trespassing, should be superior to those of the owner of the land. 399 * 366 THE LAW OE RAILWAYS. [§ 165, country where the maxim sic utere tno ut aliewum non laedas pre- vails, even to the limited extent recognized in the common law of England. 12. It has been considered that a railway is not responsible for injuries to horses, in consequence of their being frightened, on the road, by the noise of the engine and cars, in the prudent and ordinary course of their operations.^* 13. The subject of negligence in the plaintiff, which will pre- vent his recovery, is discussed muclj at length, in Beers v. The Housatonic Railway,i^ and in the main the same views are adopted in * regard to injuries to cattle, which we have stated in regard to injuries to persons.^^ It is there laid down, by the court, that whether there was negligence, or want of care, in whatever degree, by either party, is a question of fact, to be determined by the jury, and that even where the circumstances are all admitted, it will not be determined, as a question of law, but the inference of negligence, or no negligence, is one of fact for the jury. 14. But this, we apprehend, is true only, where the circum- stances leave the inference doubtful. If the proof is all one way, either in favor of or against negligence having intervened, the inference is always one of law for the court.^'^ 15. There are some few cases, where actions have been brought for injuries to cattle or horses, in consequence of some alleged remote negligence in the company. In one case,^^ the action was for the loss of a horse, by falling into a large well upon the company's grounds. The plaintiff had frequent car-loads of lumber coming to the company's station, and he requested them to remove it to a position on their track, where it could be dis- charged into his own lumber-yard, which they declining to do, he drew it with this horse, to the proper point, and unloaded it. Upon another car arriving he attempted to do the same, without consulting the company, but his horse proved restive and backed " Burton V. The Phil. Wil. & Bait. Railway, 4 Harr. 252. 15 19 Conn. R. 566. 16 Ante, § 150, and cases cited; Chicago & Mis. Railway v. Patchin, 16 111. K. 198. 17 Underbill v. N. Y. & Harlaem Railway, 21 Barb. 489 ; Lyndsay v. Conn. & Pas. Rivers Railway, 27 Vt. R. 643. Scott v. W. & R. Railw. 4 Jones, Law R. 432. 18 Aurora Branch Railway v. Grimes, 13 111. R. 585. 400 §165.] INJUKIES TO DOMESTIC ANIMALS. * 367 off the track, and in his- struggle, fell into the well. The plaintiff had a verdict below, and a new trial was awarded, upon the ground, that the duty of the company to exercise care and pru- dence, depends upon the question, whether the plaintiff is in the exercise of a legal right. For if not, he must show that he exer- cised extraordinary care before he can be permitted to complain of the negligence of another. 16. And in another case,i^ the plaintiff's horse was killed, by breaking a bloodvessel in struggling from fright at the defend- ants' train of cars, in its near approach to the turnpike road, which by their charter they were required to purchase, and in crossing all roads to restore them to their former state of useful- ness. At the place of the injury the defendants excavated their road-bed upon * the turnpike, some five feet below the surface, leaving a steep descent upon the railway, and no fence between the track of the turnpike and railway. The plaintiff was pass- ing along the turnpike, leading his horse, at the time. It was held, that under their charter, the company were liable, if the excavation impaired the safety of the turnpike, for public travel, and that such " encroachments of defendants upon a turnpike is a public nuisance, for which any person sustaining a particular injury may maintain an action." 17. And jt has been laid down, in general terms, that a rail- way company, authorized to use steam locomotive engines, upon their road, is not liable, for the damage or disturbance caused, by such use, near a turnpike road existing before the railway company, unless such engines are used in an extraordinary and unreasonable manner.^" 18. And where the legislature imposed a penalty upon rail- ways, of $100, for every month's delay, in performing the duty of keeping and maintaining legal and sufficient fences, on the exterior lines of their road, as required by their charters, it was held, that the neglect of the corporation to perform this duty, rendered them liable to reimburse any person suffering injmy thereby, in his property, in an action at common law. And if the defect in the fences, by which the injury occurs, were known 19 Mozier v. Utioa & Sch. Railway, 8 Barb. 427. But see Coy v. Utica & Soh. Railway, 23 Barb. 643. 20 Bordentown & South A. Turnpike v. Camden & Amboy Railway, 2 Harri- son, 314 ; Coy V. Utica & Sch. Railway, 23 Barb. 643. 34* 401 *368 THE LAW OF RAILWAYS. [§ 166. to the company, they are liable for the damage suffered, notwith- standing their engineer was, at the time, in the exercise of due care, and notwithstanding the fence was originally imperfectly buUt, by the plaintiff, for the company.^^ ♦CHAPTER XXL TENCBS. SECTION I. UPON WHOM EESTS THE OBLIGATION TO MAINTAIN FENCES. 1 . By the English statute, there is a separate . provision made for fencing. 2. This provision is there enforced against the companies by mandamus, 3. But where no such provision exists, the ex- pense of fencing is part of the land dam- ages. i. And where that is assessed, and payment resisted by the company, the land-owner is not obliged to fence. 5. In some cases it has been held the fencing is to be done equally, by the company and the land-owner. 6. Assessment of land-damages, on condition company build fences, raises an implied duly on their part. 7. In some states, owners of cattle not re- quired to confine them upon their own land. 8. Lessee of railway bound to keep up fences and farm accommodations. 9. Company hound to fence land acquired by grant. 10. Farm-crossings required wherever neces- sary. 11. Where land-owner declines farm accom- modations. 12. Fences and farm accommodations not re- quired for safety of servants and em- ployees. 13. Requisite proof where company liable for all cattle killed. § 166. 1. By the Railways Clauses Consolidation Act,^ it is made the duty of the railways in England, before they use land, 21 Norris v. Androscoggin Railway, 39 Maine R. 273. In this case the fence ■was stone-wall, built by plaintiff, by contract with the company some two years before, and accepted by them. The gap in the wall whereby the animal escaped upon the track of the railway, occurred several days before, and was known to the defendants. There was no other evidence of the manner of constructing the wall. The court held the plaintiff stood in the same position, as to his claim, as if any other one had built the wall. 1 8 & 9 Vict. ch. 20, § 40. But in Kyle v. Auburn & Rochester Railway, 2 Barbour's Ch. R. 489, the court declined to interfere by injunction, to compel the building of a farm crossing, although the company assumed before the jury, that 402 § 166.] FENCES. * 369 for any of their purposes, to fence it, and make convenient passes for the owner, which, if the parties do not agree, are to be deter- mined by two magistrates. Under this statute it has been held, that the railway is not excused from making the necessary accommodations to keep up communication, to the owner, be- tween different * parts of lands, intersected by the line of a rail- way, because these are not defined, in the arbitrators' award of land damages. They are totally distinct things from the land damages.^ And where the jury assessing land damages, also made a separate verdict, for the expense of crossing the railway, by a private way, it was considered, that they exceeded their jurisdiction, and their proceedings were quashed.® 2. It is considered, in the English courts, that the expense of fences, and crossings, being imposed upojn the railways, by stat- ute perpetually, and the mode of enforcing its performance pointed out, in the statute, it has no connection with the land damages, but is to be enforced under the statute, and land dam- ages are to be appraised, upon the basis of that duty resting upon the railway. 3. But where the statute makes no such provision, the expense of fencing, and making crossings, are important considerations, in estimating damages, for the land taken, and this expense should undoubtedly be borne, by the company, in addition to paying the value of the land, for otherwise the land is taken without an equivalent. 4. And where in such circumstances the commissioners as- such a crossing should be built by them, the plans showing no such crossing. It is said, under such circumstances, to be the duty of the land-owner, to make nec- essary crossings, and that he is a trespasser, for crossing the railway without them ; and this should be so considered, in assessing damages for taking the land, and compensation made for such expense. 3 Skerratt v. The North Staffordshire Railway, 5 Railw. C. 166, per Lord Cot- tenham. Chancellor. See post, § 1 93, n. 3. 3 In re South Wales Railway Co. v. Richards, 6 Railw. C. 197. So too where the land-owner stipulated with the promoters for certain watering-places and other conveniences, and to accept £5,000 for especial damage, and to withdraw thereupon opposition to the bill, it was held the duty to make suitable watering- places might be enforced by mandamus. Reg. v. York & N. Midland Railway, 3 Railw. C. 764 ; infra, § 167, 190, 191. The provision for fences, in the Eng- lish statute, being a separate, independent, general provision, is enforced, alto- gether aside of the proceedings to assess land damages. 403 *,369 THE LAW OF EAILWATS. [§ 166. sessed the land damages, and a separate sum for building fences, and judgment was rendered in favor of the land-owner, for both sums, but the payment resisted, by a proceeding in chancery, on the part of the railway, and while this was still undecided, the company commenced running their engines, and the cattle of the occupier of the land, strayed upon the track and were kiUed, by the engines of the company, it was held,* that the obligation to maintain the fence rests primarily upon the company, and until they have either built the fences, or paid the land-owner for doing it, a sufficient time to enable him to do it, the mere fact, that cattle get upon the road, from the land adjoining, is no ground for imputing negligence to the owner of the cattle.* * Quimby v. Vermont Central Eailway Co. 23 Vt. R. 387 ; see also Vanderkar" V. Rensselaer & Sara. Railway, 13 Barb. 390. But in the English Railway Acts, where the company is required to make crossings, where land is divided, and the mode of determining the nature of the crossings is to be referred to two justices, upon the application of the land-owner, (" in case of any dispute,") it was held, that until the company have made a communication, a party whose land had been severed by the railway, has a right to pass from one portion of his property to the other, across the railway, at any point, and that the section requiring the owner to pass at such a place, as shall " be appointed" for crossing, means, " when such places shall have been appointed." Grand Junction Railway v. White, 2 Railw. C. 559. And where at the time of appraising land damages, the land- owner, in the presence of the agents of the company, pointed out to the commis- sioner the place where he would have a farm-crossing, and no objection was made by the company, and the sum awarded was paid, but the company, in construct- ing their road, were throwing up an embankment at that point, and locating the crossing at a different place, where it would be inconvenient for the land-owner, an injunction was granted, until the company should either make a suitable cross- ing, or compensate the land-owner. Wheeler v. Rochester & Sy. Railway, 12 Barb. 227; Milwaukie & Mis, Railway v. Eble, 4 Chand. R. 72. It is here held, that the land-owner is entitled to include, in his damages, the expense of fencing, as incidental to the taking of the land. But the contrary is held in a very elabo- rate case in Iowa, Henry v. Dubuque & Pacific Railway, 2 Clarke, R. 288. But the argument of the court seems to us unsatisfactory and suicidal. And where the railway, at first, contracted with the land-owner, to build the fence for them at a specified price, but a controversy arising, in regard to land damages, the commissioners reported a sum which was finally confirmed by the court, and an additional sum, for the expense of building the fence, and the plaintiff took judgment, and execution, for this also, and subsequently built the fence, according to his contract with the company, and sued tte company for the price, it was held that he could not recover, the former judgment having merged the contract, and imposed upon him the duty to build the fence, under the award and judgment. It was also held that the land-owner could not claim 404 § 166.] FENCES. * 370-371 * 5. In some cases, in this country, it has been held, that the railway and the adjoining land-owner are to defray equal propor- tions of *the expense of maintaining fences, upon the principle of being adjoining proprietors, and having equal interest in having the fence maintained, unless the land-owner chooses to let his land lie in common, and in that case the company must be at the whole expense of fencing, as a necessary protection and security to their business.^ to recover any thing, beyond the award, for having built the fence, according to the original contract, which rendered it more expensive to him, than it would otherwise have been. Curtis v. Vermont Central Railway, 23 Vt. R. 613 ; 1 Am. Kailw. C. 258 ; see Lawton v. Fitchburg Railway, 8 Cush. 2.S0. And where the statute requires the company to make farm-crossings where they divide land, it is not proper for the jury, in assessing compensation to the land-owner, to include the expense of a bridge, for the purpose of a farm cross- ing. Philadelphia, Wilmington, and Baltimore Railway v. Trimble, 4 Wharton, 47 ; 8. C. 2 Am. Railw. C. 245. In the case of Chicago & Rock Island Railway v. Ward, 16 Illinois, 522, where the company covenanted to maintain fences upon land intersected by their road, and failed to perform the covenant, and crops were destroyed, it was held the company were liable for the value of the crops growing upon the land and de- stroyed, as of the time when fit for harvesting. This does not seem entirely in accordance with general principles upon this question. The case professes to go upon the authority of De Wint v. Wiltse, 9 Wend. 325. But see § 148, 156. 5 In the matter of the Rensselaer & Sar. Railway, 4 Paige, R. 553. In North- eastern Railway v. Sineath, 8 Rich. 185, it is held that damages are not to be assessed for fencing through uninclosed land, used for grazing. In a recent case in Kentucky, Louisville & Frankfort Railway v. Wilton, 14 B. Monr. R. 75, it is held, that where one grants the right of building a railway across his land, neither the land-owner, or the company, are bound to fence adjoining the railway. If the land-owner suffer his cattle to run at large, as he may, if he choose to incur the risk, he cannot recover damages of the company, for any injury sustained by them, unless it might have been avoided, by the agents of the company, with due regard to the safety of the train and its contents. If such cattle, permitted to run at large upon the railway track, are killed, accidentally, by the train, when running at its customary speed, the owner cannot recover of the com- pany. The court here discountenance the notion, that seems sometimes to have pre- vailed, that if the railway are in the right, in running their train, and especially where cattle are trespassing upon the track, they may destroy them, at will, without incurring any responsibility. And in regard to the case of New York & •Erie Railway v. Skinner, 19 Penn. State R. 298, the court say: " This court is not disposed to sanction all the legal doctrines avowed in that opinion." Railways are only bound to the use of such diligence, prudence, and skill, to avoid injury to cattle, rightfully in the highway at a road-crossing, as prudent 405 * * 372 THE LAW OP RAILWAYS. [§ 166. * 6. But many of the American cases assume the ground, that where there is no statute imposing the duty of fencing upon the men exercise, in the conduct of their own business. And as to cattle wrongfully upon the railway, unless the injury is caused wilfully, or through gross negligence, the company are not liable. Chicago & Mississippi Eailway v. Patchiu, 16 111. 198; Great Western Railway D. Thompson, 17 111. 131; Quimby u.- Vt. Central Railway, 23 Vt. R. 387 ; Central Mil. Tr. Railway v. Rockafellow, 17 111. R. 541 ; Railroad Co. v. Skinner, 19 Penn. St. R. 298. In a late case in New Hampshire, White v. Concord Railway, 10 Foster, 188, it was held, that where the statute required railways to fence and maintain proper cattle-guards, cattle-passes, and farm-crossings, for the convenience and safety of the land-owners along the side of the road, provided they might instead settle . with the land-owners therefor, and a railway divides a pasture, and a crossing is made, under the statute, the land-owner may let his cattle run in the pasture, " without a herdsman," and that the company will be liable for their destruction, while crossing the track, from one pasture to the other; unless the injury was caused by accident, or by the fault of the owner ; or unless it appear that the company h/ive settled with the owner, in relation to such guards, passes, and farm-crossings. And it was held also, in the same case, that where the plaintiff deeded the land to the company, upon condition, " said corporation to fence the land and prepare a crossing, with cattle-guards, at the present travelled path, on a level with the track," this was not such settlement, and did not alter the legal relations of the parties. In this case, both parties being in the right, were bound to the degree of pru- dence, which is to be expected of prudent men. The railway, knowing of the crossing, and the liability of cattle to be upon it, were bound to keep a look-out, rather than the land-owner to keep some one constantly upon the " look-out." In the case"of Long Island Railway, 3 Edw. Ch. R. 487, the Vice-Chancellor seems to consider, that a railway have no interest in having their road fenced, and are not therefore bound to contribute to the expense of fencing, which is at variance with the opinion of the Chancellor, (4 Paige, 553,) and equally, as it seems to us, with reason and justice. See Campbell v. Mosier, 4 Johns. Ch. R. 334. In a recent case, in the Supreme Court of Pennsylvania, Sullivan v. Phila. & R. Railw. 6 Am. Law Reg. 342, the subject of^ the duty of railway companies to fence their roads, for the security of passengers, is discussed, and, as it seems to us, many sensible and practical suggestions made. The general and correlative duties of passenger carriers and their passengers are thus stated : — " The carrier's contract with his passenger implies : first, that the latter shall obey the former's reasonable regulations ; second, that the carrier shall have his means of transportation complete and in order, and his servants competent. " If a passenger be hurt without his own fault, this fact raises a presumption of» negligence, and casts the onus on the carrier. " This being a presumption of fact, it is for the jury to determine. " It IS no answer to an action by a passenger against the carrier, that the injury 406 § 166.] FENCES. * 37 company, and no stipulation, express or implied, between the company and the land-owners, that they shall maintain fences, was caused by tlie negligence, or even trespass, of a third person. The parties are bound by their contract." Ante, § 149, u. 6 ; § 162. Woodward, J. . " Whether that spot in the road was not so commonly infested with cows as to require a fence or cattle-guard of some sort ; whether the speed of the cars was not too great for a curve, exposed at all times to the incursions of cattle ; whether the engineer discovered the cow as soon as he might, and used his best endeavors to avert the collision — in a word, whether the accident was such as no foresight on the part of the company or its servants could have pre- vented ; these were questions, and grave ones, too, that ought to have been sub- mitted to the jury. " The learned judge, after stating correctly the extreme care and vigilance which the law exacts of railroad companies, asks if they are required to provide suitable fences and guards to keep cattle off the road. In answering his question in the negative, the judge seems to have misapplied the reasoning of Judge Gib- son in Skinner's case, 7 Harris, 298 ; 1 Am. Law Reg. 97. That was an action by the owner of a cow killed on a railroad, to recover her value from the com- pany ; and the doctrine laid down was that the owner was a wrongdoer in suffer- ing his cow to wander on a road engaged in transporting passengers, and was rather liable for damages than entitled to recover them. The owner of the cow could not insist that the company should fence their road for the protection of his stock. It was his business to keep his cattle within his own bounds. Now, such reasoning between a railway company and a trespasser commends itself to every man's understanding, because it tends to the security of the passenger. If farmers cannot make companies pay for injuring cattle, but they involve them- selves in liability for suffering their cattle to run at large, passengers are all the more secure from this kind of obstruction. " But when, notwithstanding this strong motive for keeping cattle off the road, a cow is found there, and causes an injury to a passenger whom the company have undertaken to carry safely, is it an answer to the passenger suing for dam- ages that the owner of the cow had no right to let her run at large ? Grant that she was unlawfully at large, and grant the owner is bound to indemnify the com- pany for the mischief she caused, yet as between the company and its passenger, liability is to be measured by the terms of their contract. " Having undertaken to carry safely, and holding themselves out to the world as able to do so, they are not to suffer cows to endanger the life of the passenger, any more than a defective rail or axle. Whether they maintain an armed police at cross-roads, as is done by similar companies in Europe ; or fence, or place cattle-guards within the bed of their road, or by other contrivance, exclude this risk, is for themselves to consider and determine. We do not say they are bound to do the one or the other, bat if, by some means, they do not exclude the risk, tbey are bound to respond in damages when injury accrues. " Perhaps the passenger would have his remedy against the owner of the cow ; it is clear from Skinner's case, that the company would, but the passenger has 407 *372 THE LAW OF RAILWAYS. [§166. they are not bound to do so, but the common-law duty of keep- ing one's cattle at home rests upon the land-owner.^ And this view is probably consistent, in principle, with the cases, where such a duty is held to result &om the appraisal of land damages, subject to the expense of building fences being borne by the company, or where the assessment specifically includes the ex- pense of fencing, and that has not been paid. 7. And in some of the states, the rule of the common law, in regard to the duty resting upon the owner of domestic animals unquestionably a remedy against the company. If he be injured by reason of defective machinery, nobody would think of setting up the liability of the me- chanic who furnished the bad work, as a defence for the company against the claim of the passenger. Yet it would be a defence, exactly analogous to that which satisfied the court in this case. We do not wish to be understood as lay- ing down a, general rule, that all railroad companies are bound, independently of legislative enactment, to fence their roads from end to end, but we do insist that they are bound to carry passengers safely, or to compensate them in damages. If a road runs through a farmer's pasture grounds, where his cattle are wont to be, possibly as between the company and the farmer, the latter may be bound to fence, but as between the company and the passenger, the company are bound to see that the cattle are fenced out. If cattle are accustomed to wander on un- inclosed grounds, through which the road runs, the company are bound to take notice of this fact, and either by fencing in their track, or by enforcing the owner's obligation to keep his cattle at home,, or by moderating the speed of the train, or in some other manner, to secure the safety of the passenger. That is their paramount duty. To enable them to perform it, the law entitles them to a clear track. 7 Harris, 298 ; 12 ib. 496." 6 Hurd V. Rut. & Bur. Railway, 25 Vt. R. 123 ; New York & Erie Railway v. Skinner, 19 Penn. R. 298 ; Clark v. Syra. & Utica Railway, 11 Barb. 112 ; Dean v. The Sullivan Railway, 2 Foster, 316 ; A. & S. Railway v. Baugh, 14 111. 211. Where upon appeal from the first appraisal of land damages, where the erection offences had been specified, that was vacated, and the new appraisal made no such requirement of the company, it was held that the presumption was, that the whole damages were appraised in money, and the company were not bound to build fences. Morss v. Boston & Maine Railway, 2 Cush. 636 ; Williamson v. New York Central Railway, 18 Barb. 222. It seems impossible to estimate dam- ages for taking land for the use of a railway, without taking into the account the expense of fencing. Henry v. Pacific Railway, 2 Clarke, 228 ; Mil. & Mis. Rail- way V. Eble, 4 Chandler, (Wis.) 72 ; Northeastern Railway v. Sineath, 8 Rich. 185 ; Matter of Rense. & Sar. Railway, 4 Paige, R. 533. And those cases, which told the company not bound to fence, unless required to do so by statute, or contract, go upon the presumption, that they have already paid the expense of fencing, in the land damages. 408 §166.] . FENCES. *373 to restrain them, has not been adopted, so as to charge the owner with negligence, for suffering them to go at large.' *8. But it is held that where the statute imposes upon the company the duty of maintaining fences and cattle-guards at farm-crossings, and provides that until such fences and cattle- guards shall be duly made, the corporation and its agents shall be liable for all damages from such defect, that this renders a lessee of the road liable for injury to cattle caused by his operat- ing it without proper cattle-guards at farm-crossings.^ 9. A general statute requiring fences to be maintained by rail- ways, upon the sides of their road, applies to land acquired by purchase as well as to that taken in invitum.^ 10. And the statute requiring farm-crossings "for the use of proprietors of land adjoining," has no reference to the quantity of land to be accommodated, but only that the crossing must be useful.^ 11. "Where the statute requires the company to erect, at farm- crossings, bars or gates, i;o prevent cattle, &c. from getting upon the railway, and the land-owner, who is entitled to such protec- tion, refuses to have such bars or gates erecte'd, or requests the 7 Kerwhacker v. C, C. & Cincinnati Railway, 3 Ohio St. R. 172. In such cases the company are bound to use reasonable care not to injure animals thus rightfully at large, lb. ; C, C. & Cincinnati Railway «. Elliott, 4 Ohio St. R. 474. If the owner is to be charged with remote negligence in suffering his cattle to go at large, under such circumstances, and the servants of the company are guilty of want of care at the time of the injury, which is the proximate cause of it, the company are still liable. lb. ; Chicago & Miss. Railway v. Patchin, 16' III. K. 198. 8 Clement v. Canfield, 28 Vt. R. 302. An order upon a railway for making farm accommodations, must specify the time within which they shall be made. Keith V. The Cheshire Railway, 1 Gray, 614. 9 Clarke v. The Rochester, L. & N. F. Railway, 18 Barb. 360. A fence built in zigzag form of rails,_half the length upon the land taken for the railway, and half upon the land of the adjoining proprietor, is a compliance with the statute, requiring the fence to be built upon the side of the road. Ferris v. Van Buskirk, 18 Barb. 397. And where the statute provides that, upon certain proceedings, railway companies may be compelled to provide farm-crossings and cattle-passes for the owners of land intersected by the company's road, and no such pro- ceedings have been taken, the company are not liable to an action for damages resulting from the want of necessary farm-crossings and cattle-passes, unless it ap- pears that the company had contracted to build them. Horn v. Atlantic & St. Lawrence Railw. 20 Law Rep. 647. 35 409 * 374 THE LAW OF RAILWAYS. [§ 166. company not to erect theni, or undertakes to erect them himself, he cannot maintain an action against the company for not com- plying with the statute.^" 12. Railways are not bound to maintain fences upon their roads so as to make them liable to their own servants for injuries happening in consequence of the want of such fences. And where the statute makes them liable for all injuries done to cattle, &c. by * their agents, or instruments, until they fence their road, the liability extends only to the owners of such cattle, or other animals, and this liability is the only one incurred.^^ 13. Where the statute makes railways liable for cattle killed by them, without reference to their negligence, all that is neces- sary to entitle the party to recover, is to show the fact that the cattle were killed by the company and that he was the owner .^ 1" Tombs V. Rochester & Syracuse Railway, 18 Barb. 583. But where, the statute requires the commissioners to prescribe the " time when such works are to be made," and the owner has the right, by statute, to recover double damages, " by reason of failure to erect the works," and the commissioners failed to pre- scribe the time, no action will lie. Keith v. Cheshire Railway, 1 Gray, 614. When the statute requires fences to be maintained by railway companies, it must be done before they begin running trains. Clark v. Vermont & Canada Railway, 28 Vt. R. 103. Since the decision of this case the same court held, that during the construction of a railway, the company, in su,oh case, were bound either by fences or other sufficient means, to protcet the fields of land-owners adjoining the railway. Fitch v. Rut. & Bur. Railway, Rutland County, February Term, 1858, Vermont Supreme Court. 11 Langlois v. Buffalo & Rochester Railway, 19 Barb. 364. But in McMillan V. Saratoga & Wash. R. 20 Barb. 449, it is conceded the company would have been liable to the representative of their engineer, who was killed by the train running upon cattle, which came upon the track through defect of fences, which it was the duty of the company to maintain, if they had been shown to have had actual knowledge of such defect before the injury. See ante, § 165. 13 Nashville & Oh. Railway v. Peacock, 25 Alabama R. 229. See also Wil- liams V. New Albany & Salem Railway, 5 Ind. R. Ill ; Lafayette & Ind. Railway V. Shriner, 6 Ind. (Porter,) R, 141. In this case it was held, that such a statute had no reference to the case of cattle killed, at a road-crossing, as that was a place which could not be protected either by fences or cattle-guards. 410 § 16T.] FENCES. ^375 SECTION II, AGAINST WHAT CATTLE THE COMPANY IS BOUND TO FENCE. 1. At common law every owner bound to re- strain Ms own cattle. 2. And if bound to fence against others' land, it extends only to those cattle rightfully upon such land. 3. Company may agree with land-owner to fence, and this will excuse damage to cattle. n. 5. Review of cases upon this subject. § 167. 1. At common law the proprietor of land was not obliged to fence it. Every man was bound to keep his cattle upon his own premises, and he might do this in any manner he chose.^ 2. And where by prescription or contract, or by statute, a land proprietor is bound to fence his land from that of the adjoining proprietor, it is only as to cattle rightfully in such adjoining land.^ The same rule has been extended to railways.^ * And it has been considered in some cases that where no stat- ute, in terms, imposes upon railways the duty of fencing their roads, that they are not bound to fence, and that the owner of cattle is bound to keep them off the road, or liable to respond in damages for any injury which may be caused by their straying upon the railway,* and as a necessary consequence cannot re- cover for any damage which may befall them.^ 1 Dovaston v. Payne, 2 H. Bl. R. 527 ; Rust v. Low, 6 Mass. R. 90, 99 ; Jack- son V. Rut. & Bur. Railway, 25 Vt. R. 157, 158 ; Wells v. Howell, 19 Johns. R. 385; Manctester, Sh. & Lincalnsh. Railway v. Wallis, 25 Eng. L. & Eq. R. 373 ; Morse v. Rut. & Bur. Railway, 27 Vt. R. 49 ; Lafayette & Ind. Railway v. Shriner, 6 Porter, (Ind.) R. 141; Woolson v. Northern Railway, 19 N. H. R. 267. In- dianapolis & Cin. Railw. v. Kinney, 8 Ind. R. 402. 2 Same cases above ; Lord v. Wormwood, 29 Maine R. 282. 3 Ricketts v. East & West India Docks & Birmingham J. Railway, 12 Eng. L. & Eq. R. 520 ; Perkins v. Eastern Railway Co. 29 Maine R. 307 ; Towns v. Cheshire Railway, 1 Foster, R. 363 ; Cornwall v. Sullivan Railway, 8 Foster, R. 161. ■* Vandegrift v. Rediker, 2 Zab. 185 ; Tonawanda Railway v. Munger, 5 Denio, 255 ; s. c. affirmed in error, 4 Comst. 349 ; Clark v. Syracuse & Dtica Railway, 11 Barb. 112 ; Williams v. Mich. Central Railway, 2 Mich. R. 259 ; New York & Erie Railway i>. Skinner, 19 Penn. R. 298. 5 Brooks V. New York & Erie Railway, 13 Barb. 594. In this case it was held that the statute requiring railways to maintain cattle-guards at road-crossings did 411 *376 ' , THE LAW' OF RAILWAYS. [§167. * 3. But where a railway is not obliged to fence unless request- ed by the land-owner, and had agreed with such owner that they should not fence against his land, and a cow placed in such lands strayed upon the track of the road, and was kiUed by a train, it was held the owner of the cow, having, by his own fault, contributed to the loss, could not recover of the company.^ not extend to farm-crossings. So too it has been held that the statute requiring gates or cattle-guards at road-crossings, does not extend to street-crossings. Van- derkar v. Rensselaer & Sara. Railway, 13 Barb. 890. In Central Military Track Railway v. Rockafellow, 17 Illinois R. 541, the rule is laid down in regard to cattle straying upon a railway, that they are to be regarded as wrongfully upon the road, and the owner cannot recover for an injury, unless caused by wilfol misconduct or gross negligence. The court say, " A railroad company has a right to run its cars upon its track without obstruction, and an animal has no right upon the track without consent of the company, and if suffered to stray there, it is at the risk of the owner of the animal." And in Illinois Central Railway v. Reedy, 17 Illinois R. 580, the same court say, " Animals wandering upon the track of an uninclosed railroad, are strictly tres- passers, and the company is not liable for their destruction, unless its servants are guilty of wilful negligence^ evincing reckless misconduct." " The burden of proof is on the plaintiff to show negligence, the mere fact the animal was killed " is not enough. In Hunger v. Tonawanda Railway, 4 Comst. 349, it is held, that cattle escaping from the inelosure of the owner and straying upon the track of a railway, are' to be regarded as trespassers, and no action can be maintained against the company,, if the negligence of the plaintiff concurred with that of the company in produc- ing an injury to the cattle while in that situation ; and that the law charges the owner of cattle, in such case, with negligence, although his inclosures are kept well fenced, and he is guilty of no actual negligence, in suffering the cattle to escape. And it was accordingly held, that the company was not liable, under such circumstances, for negligently running an engipe upon and killing the plain- tiff's cattle. The same principles substantially are maintained in the same case, 5 Denio, 255. And it is further held here, that where the general statutes of the state allow towns to prescribe what shall be a legal fence, and when cattle may run at large in the highway, and which forbid a recovery for a trespass by cattle law- fully in the highway, by one whose fences do not conform to the town ordinance upon the subject, this will have no application to railways, and that cattle, allowed to run in the highway by such ordinance, and which, while so running in the highway, enter upon the lands of a railway, at a road-crossing, where there is no obstruction against the intrusion of cattle, are to be regarded as trespassers'. 6 Tower V. Providence and Worcester Railway, 2 Rhode Island R. 404. 412 § 168.] LIABILITIES IN REGARD TO AGENTS, 'ETC. "■377 * CHAPTER XXII. LIABILITIES IN REGARD TO AGENTS, SUB-AGENTS, AND CONTRACTORS. SECTION I. LIABILITY FOR ACTS AND OMISSIONS OF CONTRACTORS AND THEIR AGENTS. 1 . Company not ordinarily liable for the act of tile contractor, or his servant. 2. But if the contractor is employed to do the very act., company is liable. 3. American courts seem disposed to adopt the same rule. 4. Distinction attempted between liability for acts done upon movable and immovable property^ not maintainable. 5. Coses referred to where true grounds of distinctions are stated. 6. No proper ground of distinction, in regard to mode of employment. 7. Proper basis of company's liability ex- plained. §168. 1. The general doctrine seems now firmly established, that the company is not liable for the act of the contractor's ser- vant, where the contractor has an independent control, although subordinate, in some sense, to the general design of the work. The distinction, although but imperfectly defined for a long time, has finally assumed definite form, that one is liable for the act of his servant, but not for that of a contractor, or of the servant of a contractor.^ 1 Laugher v. Pointer, 5 B. & C. 547, where the subject is ably discussed, but not decided, the court being equally divided. Quarman v. Burnett, 6 M. & W. 499 ; Milligan v. Wedge, 12 Ad. & Ellis, 737 ; Knight v. Fox, 5 Excb. 721 ; Over- ton V. Freeman, 8 Eng. L. & Eq. R. 479 ; Peachey v. Rowland, 16 Eng. L. & Eq. R. 442; Rapson v. Cubitt, 9 M. & W. 710; Reedie v. London and N. W. Rail- way, 6 Railw. C. 184 ; Hobbitt v. Same, 6 Railway C. 188 ; Steel v. Southeastern Railway, 32 Eng. L. & Eq. R. 366, (1855.) In this last case, the action against the company was for flowing the plaintiff's land, by the defective manner in which certain mason work was done, by the workmen of one Furness, who did the work as a contractor under the company, but under the superintendence of one Phillips, the surveyor of the company, who furnished the plans. It appeared that the injury resulted from the workmen not following the directions of Phillips. The court held the action could not be maintained. Oresswell, J., said : " If it could have been shown that the plaintiff's land was flooded in consequence of something done by the orders of Phillips, the company's surveyor, it might have been said that was the same as if Phillips had done it with his own hands, and 35* 413 * 378 THE LAW OF RAILWAYS. [§ 168. * 2. But if the contractor or his servants do an act which turns out to be illegal, or a violation of the rights of others, and it be the very act which he was employed to do, the employer is liable to an action.^ Lord CampbeU, Ch. J., here said, " The position in effect contended for by defendants' counsel, I think wholly unten- able, namely, that where there is a contractor, the employer can in no case be made liable. It seems to me, that if the contrac- tor do that which he is ordered to do, it is the act of the em- ployer, and this appears to have been so considered in the cases " [upon the subject]. " In these cases nothing was ordered, except that which the party giving the order had a right to order, and the contract was to do that which was legal, and the employer was held properly not liable for what the contractor did negli- gently, the relation of master and servant not existing. But here the defendants employ a contractor to do that which was •unlawful. Upon the principle contended for, a man might pro- tect himself in the case of a menial servant, by entering into a contract." 3. The American cases have not, as yet perhaps, assumed that definite and uniform line of decision, which seems to obtain in the English courts upon the subject. But there is a marked dis- position manifested of late, to adopt substantially the . same view.^ But some of the earlier cases in this country and in England, hold the employer responsible for all the acts and omis- sions of a contractor, the same as for those of a servant.* 4. At one time a distinction was attempted to be maintained, between the liability of the owner of fixed arid permanent prop- then the company would have been responsible. This work was done under a contract, and there is nothing to show negligence in any one for whose acts the company are responsible." This seems to be placing the matter upon its true basis. 2 Ellis V. The Sheffield Gas Consumers' Co. 22 Eng. Law & Eq. R. 198. 3 Kelly V. Mayor of New York, 1 Kernan, 432; Blake v. Ferris, 1 Selden, R. 48 ; Pack v. The Mayor of New York, 4 Selden, R. 222 ; Hutchinson v. York and Newcastle Railway, 6 Railw. C. 580, 589. 4 Bush V. Steinman, 1 B. & P. 404 ; Lowell v. Boston and Lowell Railway, 23 Pick. 24. See also, upon this point. Mayor of New York u. Bailey, 2 Denio, 433 ; Elder v. Bemis, 2 Met. 599 ; Earle v. Hall, id. 353. In the latter ca^e the sub- ject is very ably discussed, and the early cases somewhat qualified. And in the case of Billiard v. Richardson, 3 Gray, 349, there is a very elaborate and satisfac- tory opinion, by Mr. Justice Thomas, in which the cases are very extensively reviewed, and the old rule of Bush v. Steinman distinctly repudiated. 414 §. 168.] LIABILITIES IN REGARD TO AGENTS, ETC. * 379 erty * and the owner of movable chattels, for work done in regard to them, or with them, making the employer liable in the former and not in the latter case.^ But the distinction was •found to rest upon no satisfactory basis, and was subsequently aban- doned.^ 5. The grounds of all the decisions, upon this subject, are fuUy and satisfactorily explained, in the late cases of Ellis v. Gas Con- sumers Co.,2 and SteeJ v. Southeastern Railway.^ 6. Sometimes a distinction has been attempted to be drawn,, in regard to the employer, whether the employment were by the job, or by the day, making him liable for the acts of the opera- tives in the latter and not in the former case. But this is obvi- ously no satisfactory ground, upon which to determine the question, although it might, in point of fact, come very nearly to effecting the same, or a similar separation of the instances, in which the employer is or is not, liable. 7. The true ground of the distinction being, after all, not the form of the employment, or the rule of compensation, but whether the work was done under tlie immediate control and direction of the employer, so that the operatives were his servants, and not the servants of another, who was himself the undertaker for accomplishing the work-, and having a separate, and indepen- 5 Rich V. Basterfield, 4 C. B. 783 ; The King v. Pedley, 1 Ad. & Ellis, 822. And see Fish v. Dodge, 4 Denio, 311. Littledale, J., in Laugher v. Pointer, 5 B. & C. 547. Parke, B., in Quarman v. Burnett, 6 M. & W. 510; Randleson v. Murray, 8 Ad. & Ellis, 109. 6 Allen V. Hayward, 7 Q. B. 960 ; Reedie v. London and N. W. Railway, 4 Exch. 244. But it is still maintained, by some, that if the owner or occupier of real estate employ workmen under a contract which presupposes the underletting of the work, or the employment of subordinates, and in the course of the accom- plishment of the work any thing is done, by digging or suffering rubbish to accu- mulate, which amounts to a public nuisance, whereby any person suffers special damage, the owner or occupier of the premises is liable. Bush i'. Steinman, 1 B. & P. 404 ; Randleson v. Murray, 8 Ad. & Ellis, 109. But this rule is questioned. Fish V. Dodge, 4 Denio, 311. And after all it seems, like the other phases of the same question, to resolve itself into an inquiry, how far the first employer may fairly be said to have done, or caused to be done, the wrongful act. Burgess v. Gray, 1 C B. 578. If the nuisance occurred naturally, in the ordinary course of doinc the work, the occupier is liable; but if it is some irregularity of the con- tractor, or his servants, he alone is responsible. See Carman v. Steubenville and Ind. Railway, 4 Ohio St. R. 399 ; Thompson v. New Orleans & CarroUton Rail- way, 1 Louis. Ann. R. 178 ; s. c. 4 id. 262 ; s. c. 10 id. 403. 415 '380 THE LAW OF EAILWATS. [§ 169. dent, and irresponsible control of the operatives, bringing the question again to the same point, the difference betweeij a con- tractor and a servant.' • SECTION II. LIABILITY OF THE COMPANY FOK THE ACTS OF THEIR AGENTS AND SER- VANTS. 1. Courts manifest disposition to give such agents a liberal discretion, 2. Company liable for torts, committed by agents, in discharge of their duties. 3. May be liable for wilful act of servant, in the range of his employment, i. Some of the cases hold it necessary to show the assent of the company. n. 6. Cases upon this subject reoiewed. 5. Most of the cases adhere to the principle of respondeat superior. 6. But it seems not to have been considered, that the company is present. 7. The cases seem to regard the company as always absent. 8. In cases where the company owe a special duty, the act of the servant is always that of the company. 9. It seems more just and reasonable to re- gard the company as always present, in the person of their agent. § 169. 1. The extent of the liability of railways for the acts of their servants and agents, both negative and positive, seems not very fuUy settled in many of its incidents. But the disposition of the courts has been to give such agents and servants a large and liberal discretion, and hold the companies liable for aU their acts, within the most extensive range of their charter powers.-' 7 In the case of Blaokwell v. Wiswall, 24 Barb. R. 355, is an elaborate opinion by Harris, J., which was affii-med by the full court, which holds that the only ground upon which one man can be made responsible for the wrongful acts of another is, that he should have controlled the conduct of such person. And that the person who is made liable for the act« of another, must stand in the relation of superior. Hence one who had obtained the exclusive right of a ferry, and who suffered another to operate it for his own benefit, as lessee, is not responsible for any in- jury inflicted upon passengers, through the negligence or unskilfulness of the servants of the lessee, who conduct the ferry, and it would make no difference if the lessee had been himself conducting the ferry, at the time the injury accrued. And if it were true that the grantee of the ferry was guilty of a breach of duty, in making the lease, it will not entitle any one to sue on that account, un- less he has sustained injury resulting from the act of leasing directly, and not incidentally merely. 1 Derby v. Phil. & Read. Railway, 14 Howard, R. 468, 483; Noyes v. Rutland & Burlington Railway, 27 Vt. R. 110. We may suppose the officers and ser- 416 § 169.] LIABILITIES IN REGARD TO AGENTS, ETC. * 381 2. This seems the only construction which will be safe or just, or indeed practicable. It has long been settled, that corporations are liable for torts committed by their agents, in the discharge of the business of their employment,' and within the proper tange of such employment.^ * 3. But it has been claimed sometimes, that a corporation is not liable for the wilful wrong of its agents or servants.^ This opin- ion seems to rest upon those cases, which have maintained, that the master, whether a natural person, or a corporation, is never liable for the wilful act of his servant.* Without stopping here to discuss the soundness of the general principle, as applicable to the relation of master and servant, it must be conceded, we think, that it is not applicable to the case of corporations, and especially such as railways. In regard to such corporations, it seems to us altogether an inadmissible proposition, to excuse them for every act of their servants and agents which is done, or claimed to have been done, positively and wilfully, and which results in an injury to some other party, or proves to be illegal, unless directed, or ratified, by the corporation. Some of the cases seem to disregard any such ground of exemption for the corporation.^ vants of railways to take exorbitant fare and' freight, to reftise to permit passen- gers to have tickets at the fixed rate, or to destroy the life of animals, or of per- sons, by recklessness, or wantonness, in the discharge of their appropriate duties', and it would be strange if the company were liable in the former case, on account of their special duty as common carriers, and not in the latter, because they owed no duty to the public in that respect. Alabama & Tenn. Rivers Eailway v. Kidd, 29 Alabama R. 221. But it has been held to make no difference, in regard to the liability of the company for the act of their servant, while acting in the due course of his employment, that he did not follow their instructions, either general or special. Derby v. Phil. & Read. Railway, 14 How. U. S. 468, 483. See also Southwick V. Estes, 7 Cush. 385. 2 Yarborough u. The Bank of England, 16 East, R. 6 ; Queen v. Birmingham & Gloucester Railway, 3 Ad. & Ell. (sr. s.) 223 ; Hay v. Cahoes Co. 3 Barb. 42 ; 2 Aiken's Vt. R. 255, 429 ; Bloodgood v. M. & H. Railway, 18 Wend. 9'; Dater V. Troy T. & Railway, 2 Hill, 629 ; Chestnut Hill Turnpike Co. v. Rutter, 4 S. & R. 16. They are bound by estoppels in pais. Hale v. Union Mutual Fire Ins. Co. 82 New H. R. 295. 3 Foster v. The Essex Bank, 17 Mass. R. 479, 510 ; State v. Morris & Essex- Railway, 3 Zab. 360, 367. 4 M'Manus v. Crickett, 1 East, R. 106; Croft v. Allison, 4 B. & Aid. 590; Wright V. Wilcox, 19 Wend. R. 343. 5 Edwards v. The Union Bank of Florida, 1 Florida R. 136 ; Whiteman v. Wilmington & Sus. Railway, 2 Harr. 514. 417 * 381 THE LAW OF RAILWATS. [§ 169. 4. But in some cases it has been held, that the corporation is not liable for the wilful act of its agents, unless done with the assent of the corporation, seeming to imply that if the servant pursue his own whim, or caprice, and act upon his own im- pulses, the act is his, and not that of the corporation.^ 6 Phil. Germantown & N. Kailway v. Wilt, 4 Whart. K, 143 ; Fox v. The Northern Liberties, 3 W. & S. R. 103. It has always seemed to us, that the whole class of cases, which hold that the master is not liable for the wilful acts of his servant, has grown up, under a misconception of the case of M'Manus v. Crickett, 1 East, K 106, for they all profess to base themselves upon that case. That case we apprehend was never intended to decide more than that the mas- ter is not liable, in trespass, for the wilful act of the servant. Lord Kenyan, Ch. J., in delivering his opinion, in that case, with which the court concur, expressly says, speaking of actions on the, case, brought against the master, where the ser- vant negligently did a wrong, in the course of his employment for the master: — " The form of these actions shows, that where the servant is, in point of law, a trespasser, the master is not liable, as such, though liable to make compensation for the damage consequential from his employing of an unskilful, or negligent servant." " The act of the master is the employment of the servant." This reasoning certainly applies with the same force to that class of cases, where the act of the servant is both direct and wilful, as where it is only negli- gent. The master is not liable in either case, perhaps, so much for having impliedly authorized the act, as for having employed an unfaithful servant, who did the injury, in the course of his employment. And whether done negligently, or wilfully, seems to be of no possible moment, as to the liability of the master, the only inquiry being whether it was done in the course of the servant's employ- ment. And the argument, that when the servant acts wilfully, he ipso facto leaves the employment of the master, and if he is driving a coach-and-six, or a locomotive and train of cars, thereby acquires a special property in the things, and is, pro hac vice, the owner, and doing his own business, may sound plausible enough, perhaps, but we confess it seems to us unsound, although quoted from so ancient a date as Rolle's Abridgment, and adopted by so distinguished a judge as Lord Kenyan. The truth is the whole argument is only a specious fallacy ; and whether Lord Kenyan intended really to say, that no action will lie against the master, in such case, or only to say, what the case required, that the master is not liable in tres- pass, it is very obvious the proper distinction, in regard to the master's liability, cannot be made to depend upon the question of the intention of the servant. The master has nothing to do, either way, with the purpose and intention of his servants. It is with their acts that he is to be aifeoted, and if these come within the range of their employment, the master is liable, whether the act be a misfeasance, or a nonfeasance, an omission or commission, carelessly or purposely done. It will happen, doubtless, that when the master is under a positive duty to keep or carry things safely, as a bailee, or to carry persons safely, that while he 418 § 169.] LIABILITIES IN REGARD TO AGENTS, ETC. * 382 *5. Most of the cases, upon the subject of the liability of rail- ways, for the acts of their officers, agents, and servants, have at- will be liable, for the mere nonfeasance of the servant, the servant will not be liable to the same party for such nonfeasance, there being no privity between the servant and such party, no duty owing to such person, from the servant. But in such case the servant will be liable for his positive wrongs, and wilful acts of injury, and the master is also liable for these latter acts, but not in trespass, as the servant is ordinarily, but in case. And so, where the servant goes out of his employment, and does a wrong, as committing an assault by his own hands, upon a stranger, or stealing goods, or any other act, wholly disconnected with his employment, the master is not liable. This is the view taken of this subject by Judge Reeve. Dom. Rel. 358, 359, 360, and it is, we think, the only consistent and rational one, and the one which must ultimately prevail. It is virtually adopted, in regard to corporations, in England. Queen v. Great North of England Railway, 9 Q. B. 315, (1846.) Lord Denman, Ch. J., said : " It is as easy to charge one person, or a body corporate, with erecting a bar across a public road, as with the non-repair of it, and they may as well be com- pelled to pay a fine, for the act, as the omission." State v. Vermont Central Railway, 27 Vt. R. 103; Maund v. The Monmouthshire Canal Co. 4 M. & G. 452, where it is held, that trespass will lie against a corporation for the act of its servant. This is familiar law in the American courts. And it is not deemed of any importance that the agent should act by any particular form of appointment ; and it would be strange if the liability of the corporation could be made to de- pend upon the intention of the agent. This distinction is not claimed to be of any importance where the company owe a duty, as carriers of freight or passengers, for there the corporation are lia- ble for all the acts of their servants ; but for the acts of their servants, in regard to strangers, it has been claimed, there is no liability, where the servant acts wil- fully, unless the corporation direct or affirm the act of the servant. And to this we may assent, in a qualified sense. The corporation does virtu- ally assent to all the acts of its agents and servants, done in the regular course of their employment. A railway or any business corporation exists and acts only by its agents and servants, and by putting them into their places, or suffering them to occupy them, the company consent to be bound by their acts. Thus, a conductor or engineer of a railway, while he acts with the instruments which the company put into his hands to be used on their behalf, upon the line of their road, is acting instead of the corporation, and his acts will bind the corporation, whether done negligently or cautiously, heedlessly or purposely. It would present a remarkable anomaly upon this subject, to hold the company liable for cattle killed carelessly, upon their track, but not liable when it was done purposely by the engineer, or other servants of the company. It is proba- bly true, that if the engineer should kill cattle, in any way wholly disconnected with his employment, either upon the land of the company, or others, the com- pany could not be made liable ; but if the engineer should destroy them wilfully, 419 ' 383 THE LAW OF RAILWAYS. [§ 169. "tempted to carry out the analogy of principal and agent, or by rushing the engine upon them, the company would be liable undoubtedly, if any one were, of which there can be little question. So the company might not be liable if the engineer should drive the engine upon another road and there do damage, when his employment extended to no such transaction. The case of The Southeastern Railway v. The European & Am. Telegraph Co. 24 Eng. L. & Eq. K. 513, (1854,) seems to have adopted, in principle, the view for which we contend. The act here coftiplained of was, boring under the railway, and it was held the company had no right to do so, and that they were liable, in trespass, for this unauthorized act of their servants. See also Sinolear V. Pearson, 7 New H. 227, opinion of Parker, Ch. J. ; Phil. & Reading Railway V. Derby, 14 How. R. 483, Gfrier, J. ; Case of The Druid, 1 Wm. Rob. 391, opin- ■ ion of Dr. Lushington, reviewing the cases. And we do not veryiwell see why the railway is not liable, to the very same action which the servant would be, because his act is the act of the corporation, within the range of his employment, as running over sheep upon the track, in Sharrod v. London & N. W. Railway, 4 Eng. L. & Eq. R. 401, where it is held the action must be case. The distinction between this case and that of the South- eastern Railway v. The European & Am. Telegraph Co. is not very obvious, unless we suppose in the latter case a vote of the corporation, which is highly improbable. See Phil. Railway Co. v. Wilt, 4 Whart. 143, where it is said the action should be case, and that trespass will not he, unless the act is done by the command or with the assent of the corporation, which never occurs. Corpora- tions do not vote such ficts. A vote of a corporation, that their engineers should run their engines over cattle, would be an anomaly. In Sleath v. Wilson, 9 C. & P. 607, where a servant had been driving his mas- ter's carriage, and being directed to return to the stable, or while that was his duty, in the ordinary course of his employment, he went out of his way with the carriage, to do some errand of his own, and drove against a person negligently ; it was held that the master was liable, this being the act of the servant, in the course of his employment, because the injury was done with the master's horses and carriage, which he put into the servant's haAds. But here the servant was far more obviously going aside of his employment, than in the supposed cases of his assuming to do a wilful wrong in the direct course of his ordinary employment. This case certainly cannot stand with the argument of the court, 1 East, 106. And yet is confirmed by other cases. Joel v. Morrison, 6 C. & P. 50L Any diflFerent view of this subject, will, it seems to us, in principle, bring us back to the earlier theory of the relation of corporations to their servants ; that corpora- tions are not liable for torts, committed by their servants, they having no author- ity to bind the corporation by unlawful acts. There is an elaborate case in 20 Maine R. 41, State v. Great Works Mill Manu. Co. taking precisely the old view of the liability of corporations, for the acts of their servants, where the act proves' unlawful. But most of the later cases hold the company liable for the torts of their agents, done in the course of the agency. * 420 § 169.] LIABILITIES IN REGARD TO AGENTS, ETC. * 384:-385 master * and servant, as between natural persons, and to apply strictly the principle of respondeat superior.'' 6. But they seem to have lost sight of, or not sufficiently to have considered, one peculiarity of this mode of transportation of freight and passengers, that the superior is virtually always present, in the person of any of the employees, within the range of the employment, as much so, as is practicable in such^ cases. And this consideration, in regard to natural persons, is held suffi- cient, *to make the superior always liable for the act of the subordinate, whether done negligently or wilfully.^ 7. And although the cases seem to treat the superior, as always absent, in the case of injuries done by railways, it is submitted, that the more just and reasonable rule is, to regard the principal, as always present, when the servant acts vdthin the range of his employment.^ But the company are not liable for injuries to persons or property, through the recklessness and want of common care and prudence of such persons, or prop- erty, as where a slave lay down to sleep upon the track of a railway, and was run over by a train of cars, it not being possible to discover such slave above twenty feet, on account of the grass upon the track. Pelder v. Railway Co. 2 McMuUan, 40.3. See also Mitchell v. Crassweller, 16 Eng. L. & Eq. R. 448 ; Leame v. Bray, 3 East, R. 593 ; Claflin v. Wilcox, 18 Vt. R. 605, where the principles involved in this inquiry are examined. Smith v. Birmingham Gas Co. 1 Ad. & Ell. 526. In two cases in vol. 24 Conn. R. Crocker v. New London, W. & P. Railway, 249, and Thames Steamboat Co. v. Housatonic Railway, 40, the general propo- sition is maintained, that railway companies are not liable for acts done, without the command of the agent, having the superior control, in that department of the company's business, at the time, and out of the range of the particular employ- ment of the servant doing the act. This seems to us a sound and just proposition. See also Giles v. Taff "Vale Railway, 2 Ell. & Bl. 822 ; Glover v. London & North W. Railway, 5 Exch. 66. 1 Sherman v. Rochester, &o. Railway, 15 Barbour, 574, 577; Vanderbilt v. Richmond T. Co. 2 Comst. R. 479. In this last case, it was held the company were not liable for the trespass committed by its servants, although directed so to do, by the president and general agent of the company, he having no authority to command an unlawful act. The same rule is laid down in Lloyd v. Mayor of New York, 1 Selden, 369 ; Ross v. Madison, 1 Carter, (Ind.) 281. 8 Morse v. The Auburn & Sy. Railway Co. 10 Barb. 621 ; Vandegrift «. Rail- way, 2 N. J. R. 185, 188. See also Burton v. Philadelphia, &c. Railway, 4 Har- ring. (Del ) R. 252. 9 Chandler v. Broughton, 1 Crompton & M. 29. In this case it is held, that if the master is present, although passive, he is liable for the wilful act of his ser- vant. M'Laughlin v. Pryor, 1 Car. & M. 354. 36 421 * 385 THE LAW OF RAILWAYS. [§ 169; 8. This distinction is of no importance, in regard to the liabil- ity of railways, as carriers, of freight and passengers, for then the law makes the company liable absolutely, in one case, and in the other, as far as care and diligence can effect security. Those cases, therefore, which have excused corporations as bailees of goods for hire, when they were purloined by their servants, it would seem are necessarily wrong.'" 9. But, as railways are, like other corporations, mere entities of the law, inappreciable to sense, we do not see why this abstrac- tion should not be regarded, as always existing and present, in the discharge of its functions. It is indeed a mere fiction, whether we regard the company, as present or absent. And it seems more just and reasonable, that the fiction should not be resorted to, to excuse just responsibility. It is certain we never require proof of any organic action of the corporation, to consti- tute railways carriers of freight and passengers. AU that is re- quired is the fact of their assuming such ofiices, to create the liability. So too for the most part, in regard to injuries to stran- gers, and mere torts, it is not expected, that any proof will be given, of any express authority to the servant, or employee, to do the particular act.'' 1" Foster V. The Essex Bank, 17 Mass. 479, 510. Trespass will lie against a railway company. Crawfordsville Railway v. Wright, 5 Ind. K. 252. 11 Lowell V. Boston & Lowell Railway, 23 Pick. 24. Numerous cases upon the subject of the liability of railways show this practically. Where the company begins to run trains, before condemning the land to their use, it is seldom, that the act of running them is traceable directly to the corporation, except as the act of the employees. This is always done, by design, and never any doubt was enter- tained, that the company are liable, and in trespass, to the land-owner, which could not be the case, upon the strict analogies referred to in note (6,) unless the co)> poration were regarded as present, and assenting to the act. Hazen v. Boston & Maine Railway, 2 Gray, R. 574 ; Eward v. Lawrenceburg & Upper Mis. Rail- way, 7 Porter, (Ind.) 711 ; Hall v. Pickering, 40 Maine R. 548. The rule laid down, upon this subject, by Lord Denman, Ch. J., in a case, which although a trial at JSTisi Prius, seems to have been examined, and acquiesced in, by all the judges of K. B., Rex v. Medley,.6 C. & P. 292, certainly exhibits the sagacity and wisdom of its author. That is the case of an indictment against the directors of a gas company, for the act of the company's superintendent and engineer, in conveying the refuse gas into a great public river, whereby the fish are destroyed, and the water ren- dered unfit for use, &c., thereby creating a public nuisance. No distinction is at- tempted, or could fairly be made here, between the liability of the company and that of the directors. 422 §170.] LIABILITIBS IN REGARD TO AGENTS, ETC. * 386-387 *SECTION III. INJURIES TO SERVANTS, BY NMGLBOT OP FELLOW-SERVANTS, AND USB OF MACHINERY. 1 . In general no such cause of action exists against company. 2. But if there is any fault in employing un- suitable servants, or machinery, areliable. 8. But not liable, for deficiency of help, or far not fencing road. 4. Has been questioned whether rule applies 5. Rule not adopted in some states. Case of slaves. Scotland. 6. No implied contract, by ship-owners, that ship is seaworthy. 7. But rule does not apply where sen:ant has no connection with the particular work. n. 9. Cases reviewed, in 'England, Scotland, to servants of different grades. I and America. § 170. 1. It seems to be now perfectly well settled in Eng- land, and mostly in this country, that a servant, who is injured by the negligence, or misconduct of his fellow-servant, can main- tain no action against the master for such injury.^ * 2. But it seems to be conceded, that if there be any fault in the selection of the other servants, or in continuing them in their places, after they have proved incompetent, perhaps, or in the employing unsafe machinery, the master will be answerable for all injury to his servants, in consequence.^ The court held the directors liable, for an act done, by their superintendent and engineer, under a general authority to manage the works, though they were per- sonally ignorant of the particular plan adopted, and though such plan was a de- parture from the original and understood method, which the directors ' had no reason to suppose was discontinued. The learned judge uses this significant language, which fully justifies all we contend for : " It seems to me both common sense and law, that if persons, for their own advantage, employ servants to conduct works, they must be answerable for what is done by those servants.'' 1 Priestly v. Fowler, 3 M. & W. 1 ; Hutchinson v. York, Newcastle & Berwick Railway, 5 Exch. 343 ; Wigmore v. Jay, 5 Exch. 354 ; Skip v. Eastern Counties Railway, 24 Eng. L. & Eq. R. 396 (1853) ; Farwell v. Bos. & W. Railway, 4 Met. 49 ; Murray v. South C. Railway, 1 McMulIan, 385 ; Brown v. Maxwell, 6 Hill, (N. Y.) 592; Coon v. Sy. & Utica Railway, 6 Barb. 231 ; 8. c. 1 Selden, 492; Hayes v. Western Railway, 3 Gush. 270; Sherman v. Roch. & Sy. Railway, 15 Barb. 574 ; McMillan v. Railroad Co. 20 Barb. 449 ; Honner v. The Illinois Central Railway, 15 111. R. 550; Ryan o. Cumberland Valley Railway, 23 Penn. R. 384; King v. Boston & Worcester Railway, 9 Cush. 112; Madison & I. Rail- way V. Bacon, 6 Porter, (Ind.) R. 205. The same rule prevails in Virginia. Haw- ley V. Baltimore & Ohio Railway, 6 Am. Law Reg. 352. 2 Shaw, Ch. J.,4 Met. 49, 57; Keegan v. Western Railway,4 Selden, 175. But 423 * 387 THE LAW OP RAILWAYS. [§ 170. 3. But the company are not liable because there was a defi- ciency of help, at that point.^ And a neglect in the company to fence their road, whereby the engine was thrown from the track, by coming in contact with cattle, thus enabled to come upon the road, and a servant of the company so injured' that he died, will not render them liable.* 4. But it has been questioned whether the rule has any just application to servants in different grades, who are subordinated, the one to the other.^ But as the ground upon which the rule is it makes no difference in regard to the liability of the company, that the person came into the service voluntarily, to assist the servants of the company, in a par- ticular emergency, and was killed, by the negligence of some of the servants. Degge V. Mid. Railway Co. Court of Exch. Feb. 1857. It is said, McMillan v. Saratoga & Wash. R. 20 Barb. 449, that the servant, in order to entitle himself to recover for injuries, from defective machinery, must prove actual notice of such defects in the master. But culpable negligence is sufficient, undoubtedly, and that is such as, under the circumstances, a prudent man would not be guilty of Post, note 10, § 170. But if the servant knew of the defects, and did not inform the master, or if the defects were known to both master and servant, and the ser- vant makes no objection to continue the service, he probably could not recover of the master for any damage in consequence. But if the master knew of the defect, and direct the servant to continue the service, in a prescribed manner, he is responsible for consequences. Post, u. 9. , And if the master use reasonable precautions, and efforts, to procure safe and skilful servants, but, without fault, happen to have one in his employ, through whose incompetency damage occurs to a fellow-servant, the master is not liable. Tarrant v. Webb, 37 Eng. Law & Eq. 281. In Dynen v. Leach, 26 Law J. 221, (April, 1857,) it was decided, that where an injury happens to a servant, in the use of machinery, in the course of his employment, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the inj"''y) the servant cannot recover, nor, if death ensues, can his personal repre- sentative recover of the master, there being no evidence of any personal negli- gence on his part, conducing to the injury. Nor does it vary the case, that the master has in use, in his works, an engine, or machine, less safe than some other, which is in general use, or that there was another and safer mode of doing the business, which had been discarded by his orders. And in Assop v. Yates, 30 Law Times, 290, (in January, 1858,) it was held, that, if the servant knew of the exposure, and consented to continue the service, and suffered damage, he could not recover of the master, for any negligence which might have contributed to the result. 3 Skip I'. Eastern Counties Railway, 24 Eng. Law & Eq. R. 396 ; Hayes w. Western Railway, 3 Cush. 270. ■» Langlois v. Buf. & Roch. R. 19 Barb. 364. 5 Gardiner, J., in Coon v. Sy. & Utica Railroad Co. 1 Seld. 492 ; s. c. 6 Barb. 231. But in Gillshannon v. Stony Brook Railway, 10 Cush. R. 228, it was held 424 § 170.] LIABILITIES IN REGARD TO AGENTS, ETC. * 888 attempted to be maintained, is one of policy chiefly, that it is better to throw the hazard upon those in whose power it is to guard against it, it seems very questionable how far any such distinction is maintainable. Tt has been attempted in a good many cases, but does not seem to have met with favor. 5. And the rule itself has been denied in some cases, in this country, after very elaborate consideration.^ And it has been held not to apply to the case of slaves,^ especially where the em- ployer stipulated not to employ them about the engines and cars, unless for necessary purposes of carrying to places where their services were needed, and they were carried beyond that point, and killed in jumping from the cars.^ The Court of Sessions in Scotland, too, seems to have dissented from the English rule upon this subject.^ to make no difference, that the servants were not in a common employment. This was the case of a laboi^r riding upon a gravel train to the place of his employ- ment, and injured by the negligence of those in charge of the train. 6 Little Miami Railway v. Stevens, 20 Ohio K. 415; C. C. & C. Railroad Co. v. Keary, 3 Ohio State R. 202. These cases are placed mainly upon the ground of the person injured being in a subordinate position. It was held the rule did not apply to day laborers upon a railway, who were not under any obligation to renew their work from day to day, where one, after completing his day's work, was injured through the negligence of the conductor of one of the company's tfains, upon which he was returning home, free of charge, but as part of the con- tract upon which he worked. Russell v. Hudson River R. 5 Duer, 39. 1 Scudder v. Woodbridge, 1 Kelly, 195. 8 Duncan v. Railroad Co. 2 Richardson, 613. 9 Dixon V. Ranken, 1 Am. Hailw. C. 669. The remarks of Lord Cockburn are pointed and pertinent. " The English decisions certainly seem to determine, that in England, where a person is injured, by the culpable negligence of a servant, that servant's master is liable in reparation, provided the injured person was one of the public, but that he is not responsible, if the person so injured happened to be a fellow-workman of the delinquent servant. It is said, as an illustration of this, that if a coachman kills a stranger, by improper driving, the employer of the coachman is liable, but that he is not liable if the coachman only kills the footman. If this be the law of England, I speak of it with all due respect, it most certainly is not the law of Scotland. I defy any industry to produce a single decision or dictum, or institutional indication, or any trace of any authority to this effect, or of this tendency, from the whole range of our law. If any such idea exists in our system, it has, as yet, lurked undetected. It has never been directly condemned, because it has never been stated." After citing numerous cases in their Reports, where the question was involved, but not raised, his lordship continues : " The new rule seemed to be recommended to us, not only on account of the respect due to the foreign tribunal — the weight of which we all acknowledge — but also on account of its own inherent justice. • 36 425 * 389 THE LAW OE KAIL-WATS. [§ 170. * 6. But it has been held, that there is no implied obligation on the part of a ship-owner, towards a seaman, who agrees to serve This last recommendation fails with me, because I think that the justice of the thing is exactly in the opposite direction. I have rarely come upon any princi- ple, that seems less reconcilable with legal reason. I can conceive some reason- ings for exempting the employer from liability altogether, but not.one for exempt- ing him only, when those who act for him injure one of themselves. It rather seems to me, that these are the very persons who have the strongest claim upon him for reparation, because they incur danger, on his account, and certainly are not understood, by our law, to come under any engagement to take these risks on themselves." But the English cases certainly do regard the servant as impliedly stipulating to run these risks, when he enters into the service. The remarks of the learned judge above ought not perhaps to be regarded, as of any inherent weight here, beyond the mere force of the argument, and it is always to be regretted, that any difference of decision should exist among the tribunals of the different states, upon a subject of so much practical moment. The great- preponderance of au- thority in this country, is undoubtedly in favor of the English rule ; but we could not forbear to state, that we have always had similar difficulties, to those stated by his lordship, in regard to the justice, or policy of the rule. When these cases go by appeal to the House of Lords, they are determined according to the rule of the Scottish law. Marshall v. Stewart, 33 Eng. Law & Eq. li. 1. Opinion of Cranworth, Chancellor. But see the very lucid and convincing argument of Shaw, Ch. J., in Farwell ». Boston & Wor. Railway, 4 Met. 49, 56 ; 1 Am. R. C. 339 ; and the most ingenious attempt, at reductio ad ahsurdum, upon the subject by Lord Ahinger, Ch. B., in Priestly v. Fowler, 3 M. & W. 1, 6, 7, where the learned Ch. B., among other ingenious speculations, supposes some fearful consequences might follow, if the master were to be held liable, for the negligence of the chambermaid, in putting the servant into wet sheets ! If a man should receive damage in any way, by his own foolhardiness, even where a fellow-servant was concerned, in prodiicing the result, he could not recover of any one upon the most obvious grounds. Some discretion and reserve are no doubt requisite, in the application of the rule of the servant's right to recover for the default of his fellow-servant, but whether the difficulty of its ap- plication will fairly justify its abandonment, would seem somewhat questionable, if the thing were res Integra, which it certainly is not, either in the English or American law. In a recent English case, in the Court of Exchequer, January, 1856, 36 Eng. L. & Eq. R. 486, Wiggett v. Fox et al., the court adhere to the rule laid down in former English cases upon this subject, reiterating the same reasons, with the qualification, that if there were any reason for holding that the persons, whose act caused the injury, were not persons of ordinary skill and care, the case would be ditierent, there being an implied obligation, upon the master, not to employ Buch persons. ; With this qualification there seems to be no serious objection to the English 426 § 170.] LIABILITIES IN REGARD TO AGENTS, ETC. * 390 *on board, that the ship is seaworthy, and in the absence of any express warranty to that effect, or of any knowledge of the defect, or any personal blame on the part of the ship-owner, the seaman cannot maintain an action, by reason of the ship becom- ing leaky, and his being obliged to undergo extra labor." rule of law upon this subject. Bassett v. Norwich & Nashua Railway, Superior Court of Conn. 19 Law Rep. 551. In a case in the Court of Sessions in Scotland, so late as January, 1857, the court repelled a plea, founded on the claim that the master is not liable, to a ser- vant, for the negligence of a fellow-servant. The Lord Justice Clerk took occa- sion to remark, that the master's liability rested upon the broad principle, that an employer being liable to third parties, for injuries, caused by his servants, a fortiori he is liable to the servant, for injury caused by another servant. But for injury to servants through obvious or known defects of machinery in the use of the master, the cases all agree that he is liable. McGatrick v. Wason, 4 Ohio St. R. 566. In the Exchequer Chamber, so late as May, 1857, in Roberts v. Smith, 29 Law Times, 169, it was held, that where the master directs the conduct of the servant, he is liable for any injury resulting therefrom for the other servants. See also Weyant v. N. Y. & Harlaem R. 3 Duer, 360. It has been held in some cases, Scudder v. Woodbridge, 1 Ga. 195, that the rule that the master is not liable for an injury to one servant, inflicted by the want of care, or skill, in a fellow-servant, does not apply to the. case of slaves, on account of their want of freedom, in action, and choice, in continuing the service, when it becomes perilous. But if an exception could be founded upon any such basis, it would extend to all the subordinate relations of service, as has sometimes been attempted. But where the injury resulted from the habitual negligence of the engineer of a boat, whereby the slaves perished, by the bursting of a boiler, the master of the boat is liable, and the same rule applies to the case of freemen. Walker «. Boiling, 22 Alab. 294 ; Cook v. Parham, 24 Alab. 21. The court here were equally divided upon the question, whether the general rule upon this sub- ject applied to the case of a slave hired on a steamboat. But this court subsequently held, on general principles, that where one employs a mechanic to repair a building, which is in a ruinous state, but this is not known to the workmen, and not disclosed to the contractor, the employer is liable for all injury sustained by the contractor, or his subordinates, being slaves in this case, by reason of the peril to which they are thus fraudulently exposed, but that he will not be held so liable, if he inform the contractor of the peril to which he is exposed. Perry v. Marsh, 25 Alab. R. 659. 10 Couch V. Steel, 24 Eng. L. & Eq. R. 77. But if the master might have known the exposure of the servant, but for his own want of ordinary care, as in the use of a defective locomotive engine, which exploded and injured the ser- vant, through defective construction, the master is liable for the injury. Noyes V. Smith, 28 Vt. R. 59. But where the danger is known to the servant and not communicated to the superior, or master, he cannot recover for any injury he may 427 ■^391 THE LAW OF BAILWATS. B 171. 7. But a carpenter employed by a railway company to build one of their bridges, and who took passage in their cars, by their directions, to go to a certain point, for the purpose of loading timber, to be used in building the bridge, and who was injured in the course of the passage, by the negligent conduct of the train, is entitled to recover of the company, the plaintiff having no particular connection, with the conduct of the business, in which he was injured.'^ *SECTION IV. INJURIES BT DEFECTS IN HIGHWATS, CAUSED BY COMPANY'S WORKS. 1. Liable for injuries caused by leaving streets in insecure condition. 2. Municipalities liable primarily to travellers suffering injury. 3. They may recover indemnity of the com- 4. Towns liable to indictment. Company lia- ble to mandamus or action. § 171. 1. Where a public company has the right, by law, of taking up the pavement of the street, the workmen they employ are bound to use such care and caution, in doing the work, as will protect the. king's subjects, themselves using reasonable care, from injury. And if they so lay the stones, as to give such an appearance of security, as would induce a careful person, using reasonable caution, to tread upon them, as safe, when in fact they are not so, the company will be answerable in damages, for any injury such person may sustain in consequence.^ 2. But it has been held, that where such companies, having the power, by law, to cut through and alter highways,- either tem- porarily, or permanently, do it in such a manner, as to leave sustain in consequence. McMillan v. Saratoga & Wash. R. 20 Barb. 449 ; Hubgh V. N. O. & C. Railway, 6 Louis. An. R. 495. 11 Gillenwater v. Mad. & Ind. Railway, 5 Ind. R. 340. And where laborers, upon a railway, were transported to and from their labor and meals, upon the gravel trains of the company, which they were employed in loading and unload- ing, but had no agency in managing, and in such transportation, by the gross negligence and unskilfulness of the engineer, were injured, it was held the com- pany were liable. Fitzpatrick v. New Albany and Salem Railway, 7 Porter, (Ind.) R. 436. But not where the servant is in fault, in attempting to get upon the train when in motion. Timmons v. The Central Ohio Railway, 6 Ohio St. R. 105. 1 Drew V. The New River Co., 6 Carr. & P. 754. 428 § 171.] LIABILITIES IN REGARD TO AGENTS, ETC. * 392 them unsafe for travellers, who in consequence, sustain injury, without fault on their part, that the towns, or cities, in which such highways, or public streets, are situated, are primarily lia- ble 2 for aU such injuries. * 3. And it is also true that such towns, or cities, may claim an indemnity against the railway companies, who are first in fault, and in such action recover not only the damages, but the costs paid by them, and which were incurred, in the reasonable and necessary defence of actions brought against them on account of the defects in such company's works.^ 4. And where the statute provides, that railways " shall main- tain and keep in repair aU bridges, with their abutments, which they shall construct for the purpose of enabling their road to pass over, or under, any road, canal, highway, or other way," and the company omitted to perform the duty, in the manner re- quired, for the public safety, it was held, that the town, within 2 Willard v. Newbury, 22 Vt. R. 458 ; Batty v. Duxbury, 24 Vt. E. 155 ; Cur- rier V. Lowell, 16 Pick. R. 170 ; Bufialo v. HoUoway, 14 Barb. 101. In this last case an opinion is intimated, that a contractor for such works is not liable to make such precautionary erections, as may be requisite to guard the public against in- jury, no such provision being found in his contract. But is not that a duty which every one owes the public, in all works which he undertakes ? In Barber V. Essex, 27 Vt. R. 62, the following points are decided: An old highway, which a railway proposes to use for its track, is not considered, as discontinued, till the company have provided a substitute, or unless effected by some other definite legal act, or by an abandonment, by legal authority, or nonuser. Towns are responsible to the public, for the safe condition of their highways, and cannot excuse themselves from the performance of the duty, by showing that a railway company, proceeding under their charter, had caused the defects complained of. The towns are bound to watchfulness upon this subject, and theirs being a pri- mary responsibility, they cannot shift it upon the railway, whose responsibility is secondary, in regard to travellers, and the public generally. The towns have their remedy over against the company. See also to same effect Phillips v. Veazie, 40 Maine R. 96. 3 Lowell ti. Boston & Lowell Railway, 23 Pick. R. 24 ; Newbury v. Conn. & Pas. Riv. Railway, 26 "Vt. R. 751, 752. The recovery in these cases is allowed upon the ground, that the wrong is altogether upon the part of the company, and the town standing primarily liable to the public, for the sufficiency of the high- ways, and, being virtual guarantors against the negligence of the railway com- pany, may therefore, recover of them an indemnity, not only for the damages they are compelled to pay, but also the costs and expenses incurred by them, in defending bona fide against suits brought against them for the default of the com- pany. Duxbury v. Vt. C. Railway, 26 Vt. R. 751, 752, 753; Hayden u. Cabot, 17 Mass. R. 169. 429 '393 THE LAW OF RAILWAYS. [§ 172. which the road lay, were liable to indictment, for not keeping it in safe repair, and that they may compel the railway company, to make all such repairs, as may be necessary, by writ of man- damus ; or, if they have been obliged to make expenditures therein, may reimburse themselves by an action on the case against the company.* *SECTION V. LIABILITY FOE INJURY IN THE NATURE OP TORTS. 1 . Railway crossings uyon a level always dati' 2. Company not excused, by use of the signals required by statute. 3. Party cannot recover, if his own act con- tributed to injury. 4. But company liable still, if they might have avoided the injury. 5. If company omit proper signals, not liable, unless that produce the injury. 6. Not liable for injury to cattle trespassing, unless guilty of wilful wrong. 7. General definitions of company's duty. 8. Action accrues from the accruing of the injury. 9. Where injury is wanton, jury may give exemplary damages. § 172. 1. We have discussed the subject of this chapter, in ' general, in former sections.^ We shall here refer to some cases, where railway companies have been held liable for injuries to persons, in no way connected with them by contract or duty. The subject of railway crossings,^ on a level with the highway, has been before alluded to, as one demanding the grave consider- ation of the legislatures of the several states. It causes always a most painful' sense of peril, especially where there is any con- siderable travel upon the highway, and is followed by many painful scenes of mutilation and death, under circumstances, more distressing if possible, than even the accidents, so destruc- tive sometimes, to railway passengers. 2. In a case^ where the plaintiff was injured at a railway * State V. Gorham,.37 Maine E. 451. 1 Ante, § 150, 169. a Ante, § 108. 3 Bradley v. Boston & Maine Railway, 2 Cush. 539. Some distinction is made by the judge in trying this case, between those cases of negligence which occur, in long-established modes of business, and the case of the management of rail- way trains ; that in the former case, usage, if uniform and acquiesced in by the public, may amount to a rule of law ; but not, in a business so recent, as the management of railway trains. This view seems to be sanctioned, by the Su- preme Court, in revising the case. See also Gleason v. Briggs, 28 Vt. K. 185; Linfield v. Old Colony Railway, 10 Cush. 562. 430 §172.] LIABILITIES nsr. REGARD TO AGENTS, ETC. * 394 crossing, by the collision of an engine, it was held that where the statute required, at such points, certain specified signals, the cornpliance with the requirements of the statute will not excuse the company, from the use of care and prudence, in other re- spects. That it is not necessarily enough to excuse the company, that they pursued the usual course, adopted by engineers, in such cases. The question of negligence is one of fact, in such cases, to be * submitted to the jury, under all the circumstances of the case, and to be determined, by them, upon their view of what prudence and skill required. 3. But when the statute requires certain precautions against .accidents, and its requirements are disregarded, the party suffer- ing damage is not entitled to recover, if he was himself guilty of negligence, which contributed to the damage.* * Parker v. Adams, 12 Met. E. 415; Ante, § 150 ; Macon & W. Railway v. Davis, 18 Georgia R. 679, where the question of negligence in the conductors of a railway train in passing a road-crossing, is held to be one of fact depending upon the circumstances of each particular case. In an important case, Shaw v. Boston & Worcester Railway, twice reported in 6 Gray R. the subject of injuries, at railway and highway intersections, is a good deal discussed, and although the court were not entirely agreed, in all the questions involved, the following points were decided in addition to what is stated. Ante, § 152, n. 9. That it should appear, that the injury was not produced, in whole or in part, by plaintiff, or the driver's want of acquaintance with the highway, and the point of intersection, between that and the railway, the collision having occurred in the night time. In other words, that it is such want of care and prudence, for one unacquainted with a highway, which is intersected by a railway on a level, to attempt to pass in the night time, as to preclude his recovery against the rail- way, for any damage sustained, in whole, or in part, through such want of knowl- edge of the localities, although the agents of the company are shown to have been guilty of want of care, which also contributed to the injury. That in passing such an intersection, it is for the jury to say, whether, under all the circumstances, it was the duty of the traveller to stop and listen, and look both ways, " to ascertain, by both senses, whether a train was within sight or hearing," and if they so regard it, and the want of this precaution contributed directly to the injury sustained, the plaintiff cannot recover, even if the com- pany were in like fault on their part. That the jury were to inquire, upon the question of negligence in the company, whether they had complied with all such statutory, and other reasonable precau- tions, for the safety of travellers at the point, as would have had a tendency to ensure the plaintiff's security, in the particular circumstances of his case; and whether " in the management of their train, they were running with such reason- able speed as would be proper and suitable on approaching a highway." 431 *394 THE LAW OF EAILWATS. [§ 172. 4. If the plaintiff's negligence did not contribute to his injury, it will not preclude his recovering for the consequences of defend- ant's wrong.^ If the wrong on the part of the defendant is so That it was also a proper inquiry, whether the horse was " reasonably safe and manageable, and fit to be used on the highway.'' If not, and the injury occurred in consequence, and the plaintiff knew of the defects in the habits of the animal, he could not recover, even if defendants were in fault. And that the jury were also to inquire, whether the driver " could by ordinary care [and skill] have checked the animal and prevented his running upon the track " of the railway, after he became frightened. That upon this point, the inquiry, as to the conduct of those in charge of the train, was whether they did any thing out of the com- mon course of prudent and safe management of the train, or omitted to do any thing which they should have done, and which " had a tendency to frighten the horse in the first instance, or bring the engine in contact with him " at the point of collision. 5 Kennard v. Burton, 25 Maine R. 39. In the newspaper report of a recent trial in the Supreme Court of Pennsylvania, the court are reported to have charged the jury, as matter of law, that " a person about to cross a railway track [with a team,] is in duty bound to stop and look in both directions, and listen be- fore crossing." It has recently been decided by the full bench Supreme Court in Massachusetts, ante, n.4, that it is not competent for the judge to lay down any defi- nite rule, as to the duty of the company, in regard to proper precautions in crossing highways ; that the circumstances attending such crossings ai-e so infinitely diver- sified, that it must be left to the jury to determine, what is proper care and dili- gence in each particular case. This we apprehend is the true rule upon that subject, both as to the company and travellers upon the highway, and that it will finally prevail, notwithstanding occasional attempts to simplify the matter by definitions. The Pennsylvania case referred to is that of O'Brien v. Philadelphia, Wilmington, & Baltimore Railway, 10 Am. Railw. T. No. 10, 13. The follow- ing extracts from the charge to the jury, may serve to explain the views of the court. But if the jury find that the company were not faultless, that they did or omitted any thing that would constitute negligence as I have defined it, the next inquiry will relate to the conduct of the plaintiff'. He was a carter, and the same general principles apply to him as to the de- fendants. He was bound to pursue his business with all that regard to the safety of himself and others which prudent men commonly employ in like occupations. Did he demean himself in that manner ? In answer to the 6th and 7th points on the part of the defendants, I instruct the jury that a carter, or any man having charge of a team, who is about to cross a railroad at grade on which locomotives run, is bound to stop and listen, and look in both directions, before he permits his team to set foot within the rails, and omission to do so is negligence on his part. This rule of law is demanded by a due regard to the safety of life and property, both his own and that -which is passing on the railroad. From the dia» gram in evidence it is perfectly apparent that the plaintiff could have seen the approaching train if he had looked. If he saw it, it was extreme rashness in him 432 § 172.] LIABILITIES IN REGARD TO AGENTS, ETC. * 394 wanton and gross, as to imply a willingness to inflict the injury, plaintiff may recover, notwithstanding his own ordinary neglect.^ And this is always to be attributed to defendant, if he might have avoided injuring plaintifT, notwithstanding his own negli- gence. So, too, if the neglect on the part of the plaintiff is not the proximate cause of the injury, it will not preclude a re- covery.'^ 6. If a railway wholly omit to give the proper signal at a road- crossing, they are not necessarily liable for injury to one crossing at that moment, whose team took fright and injury ensued. It should be shown that the omission had some tendency to pro- duce the loss.^ 6. A conductor was held not liable for running the engine over an animal trespassing upon the track, unless he acted wilfully.^ So, too, where the train passed over slaves asleep upon the track, the company were held not liable.^" to allow his lead horse to advance so far, and if he did not see it, it must have been because he did not look. I state the general rule, but whether it is applicable to the plaintiff in the cir- cumstances which surrounded him is for the jury. A few yards on his right, some witnesses think seventy, there was a gravel train, with a locomotive attached, standing on one of the tracks, and liable to start any moment, and on his left, according to his witnesses, was the omnibus in close proximity to the crossing. Now, for these circumstances the plaintiff was in no wise responsible, and the question is, whether they constituted any excuse for his not looking up the road." 6 Wynn v. AUard, 5 Watts & Serg. 524 ; Kerwhacker v. C. C. & Cincinnati Railway, 3 Ohio State R. 172, 188. 7 Trow V. Vermont Central Railway, 24 Vt. R. 487. 8 Galena & Ch. Railway i;. Loomis, 13 Illinois R. 548. A railway is not liable for an injury which happens in crossing a railway, in consequence of the station- ary caxs of the company, upon their track, obstructing the view of the plaintiff in his approach to the road. Burton v. The Railway Co. 4 Harr. 252. See also Morrison v. Steam Nav. Co. 20 Eng. L. & Eq. R. 267, 455. 9 Vandegrift v. Rediker, 2 Zab. 185. But where the act is wrongful, the action may be against both the engineer and firemen. Suydam v. Moore, 8 Barb. 358. 10 Herring v. Wil. & R. Railway, 10 Iredell, 402. In this case, it is held that the conductor might not be chargeable with the same degree of culpability in driving his train over a rational creature, or one who seemed to be such, and in the exercise of his faculties, as in doing the same when the obstruction was a brute animal. And in the case of running over a person asleep, or a deaf mute, or an insane person, some indulgence is, doubtless, to be extended, inas- much as the peculiar state of the person might not be readily discoverable by those in charge of the train, and, if not they would have a right to calculate that 37 433 * 395-396 THE LAW OF RAILWAYS. [§172. *7. The duty required of railways towards those who are, at the time, in the exercise of their legal rights, is the possession of the most approved machinery, and such care, diligence, and sldll, in using it, as skilful, prudent, and discreet persons would be ex- pectedto put forth, having a proper regard to the interests of the company, the demands of the public, and the interests of those having property along the road, exposed to fire, and to injury in 'other modes.^i They are, at least, bound to exercise as much care as if they owned the property along the line, i. e., what they would conduct like other rational beings, and step off the track, as the engine approaches. The practice of allowing persons to walk upon a railway track is a vicious one, and one which would not be tolerated, in any state or country where the railways are under proper surveillance and police. But as it now is in many parts of this country, an engineer will find some person upon his track, every mile, and, in some places, every few rods. If he were required to check the train, at every such occurrence, it would become an intolerable grievance. If men will insist upon any thing so absurd as to be permitted to walk upon a railway track at will, tliey must expect that those who are bereft of sense, but preserve the form of humanity, when they chance to come into the same peril, will perish ; not so much from their own infirmities, as from the absurd practices of those who have no such infirmities. And their destruction is not so much attributable, perhaps, to the fault of the railways, as to the bad taste, and lawlessness of public opinion, in making such absurd demands upon the indulgence of railways. And, if it be urged that the companies might enforce their rights, and keep people off their tracks, it would be found, we fear, upon trial, that such arguments are unsound. The companies, probably, could not enforce such a regulation, in many parts of the country, without exciting a perplexing and painful prejudice, to such an ex- tent, as to endanger the safety of their business. The only effectual remedy will be found in making the act punishable by fine and imprisonment, as is done in England and some of the American states, and in a strict enforcement of the law upon all offenders. Every one can see that, if sane persons were excluded from the railway, the sight of a person upon the track would, at once, arrest the attention of conductors of trains, and there would be little danger comparatively of their destruction, whereas now, persons bereft of sense are almost sure to be run over. Persons are so frequently upon the track, that the conductors have no alterna- tive.but to push their trains upon them. For such persons are, not unfrequently, so reckless, that, if they could alarm engineers, they would be found trying such experiments, every hour. One who was engaged in sawing wood upon the track of a railway, by direc- tion of the superintendent of the company, and is injured, by the engine of another company, lawfully upon the track, cannot recover of the latter company, although their engineer was guilty of carelessness, being himself, also, in fault. Railroad v. Norton, 24 Penn. R. 465. 11 Baltimore & Susq. Railway v. Woodruff, 4 Maryland R. 257. 434 § 172.] LIABILITIES IN REGARD TO AaSNTS, ETC, * 396 would be regarded as the duty of a prudent owner under all the circumstances.-'^ 8. The general rule, in regard to the time of the accruing of the action is, that when the act, or omission causes direct and immediate injury, the action accrues from the time of doing the act, but where the act is injurious only, from its consequences, as by undermining a house or wall, or causing water to flow back at certain seasons of high tide or high water, the cause of action accrues only from the consequential injury .^^ 9. As a general rule, in the English practice, and in most of the states of the Union, in actions for torts, where the defend- ant's conduct has been wanton, or the result of malice, the jury are allowed to give damages of an exemplary character, and the term vindictive even, is sometimes used.^* But this is ques- tioned by some writers, and in many cases.'^ 12 Quimby v. Vermont Central Railway, 23 Vt. R. 387. And where one was injured by the company's train, at a road-crossing, by collision between the com- pany's locomotive and the carriage in which the plaintiff was riding, it was held, that the carelessness of the driver of the carriage cannot be shown by common reputation. And it is also here decided that the occupation of the plaintiff, and means of earning support, cannot be shown, with a view to enhance the damages, for such an injury, unless specially averred in the declaration. Baldwin t>. West- ern Railway, i Gray, 333. In O'Brien v. Philadelphia, Wilmington, & Baltimore Railw. 10 Am. Railw. Times, No. 13, where plaintiff was injured at a railway cross- ing a highway, by collision with his team, Mr. Justice Woodward of the Pennsylva- nia Supreme Court charged the jury, that the plaintiff was only entitled to com- pensatory damages, there being no pretence of any intentional wrong, or fl.igrant rashness, on the part of the agents of the company. 13 Roberts v. Read, 16 East, R. 215. Where the act complained of was mali- ciously opposing plaintiff's discharge as an insolvent, and the act was more than six years before action brought, but the consequent imprisonment continued within the six years, it was held the cause of action was barred. Violet v. Simp- son, 30 Law Times, 114, Nov. 1857. The admissions of the corporators, or of the president, are not sufficient to remove the bar of the statute of limitations, in favor of a private corporation. Lyman v. Norwich University, 28 Vt. R. 560. H Sedgwick on Dam. 38, 98, 454 ; ante, § 131, 154. In the case of Shaw v. Boston & Worcester Railway, ante, n. 4, where the plaintiff's husband was killed, by the same collision, and she was shown to have had a family of young children, and to be without sufficient property for their support, it was held to be error in the court not to charge the jury, when specially requested so to do, that these facts could not be considered by them, in estimating damages. 15 Appendix to Sedgwick on Dam. 609 ; Varillat v. New Orleans & Car. Rail- way, 10 Louisiana Ann. R. 88. 435 '397 THE LAW OF RAILWAYS. [U73. SECTION VI. MISCONDUCT OF RAILWAY OPERATIVES SHOWN BY, EXPERTS. 1 . The management of a train of cars is so far matter of science, and art, that it is proper to receive the testimony of experts. 1. In cases of alleged torts company not bound to exculpate, 3.. So, too, the plaintiff is not bound to pro- duce testimony from experts. The jury are the final judges in such cases. But omission to produce testimony of ex- perts will often require explanation. General rules of law in regard to the testi- mony of experts. § 173. 1. The conduct of a railway train is not strictly matter of science perhaps. Its laws are not so far defined, and so ex- empt *from variation, as to be capable of perfect knowledge, like those of botany and geology, and other similar sciences, or even those of medicine and surgery perhaps, whose laws are subject to more variation.^ But they are nevertheless, so far matters of skill and experience, and are so little understood, by the community generally, that the testimony qf inexperienced persons, in regard to the conduct of a train, on a particular occa- sion, or under particular circumstances, would be worthy of very little reliance. They might doubtless testify, in regard to what they saw, and what appeared to be the conduct of the opera- tives, but those skilled in such matters might, as experts in other cases are allowed to do, express an opinion, in regard to the con- duct of the train, as shown by the other witnesses, and how far it was according to the rules of careful and prudent manage- ment, and what more might, or should have been done, consist- ently with the safety of the train, in the particular emergency.^ 2. But a railway company, when sued for misconduct, are not bound, in the first instance, ordinarily, to show, by the testimoriy of experts, that they were guilty of no mismanagement. But in the case of an injury to passengers, the rule is otherwise.^ 1 Quimby v. Vermont Central Railway, 23 Vt. R. 394, S95. 2 Illinois Central Railway v Reedy, 1 7 Illinois R. 580, 583. Colon, J. " The burden of proof is on the plaintiff, and it is for him to show, by facts and cironm- stances, and by those acquainted with the management of trains, who could speak understandingly on the subject, that it was practicable and easy to have avoided the collision, and that in not doing so, those in charge of the train, were guilty of that measure of carelessness, or wilful misconduct, which the law requires to establish the liability." 3 Ante, § 149 ; Galena and Chicago Railway v. Yarwood, 17 Illinois R. 509. 436 § 173.] LIABILITIES IN REGARD TO AGENTS, ETC. * 398 3. And it has been said, that one, who brings an action against a railway, founded upon negligence and misconduct, is not bound, in opening his case to show, that by the laws and prac- tice of railway companies, there was mismanagement in the particular case. If he sees fit to trust that question to the good- sense of the jury, he may.* 4. But it is obvious, that in cases of this kind, although the jury are ultimately to determine, upon such light, as they can obtain, and will be governed a good deal by general principles of reason, based upon experience, and that the testimony of witnesses, unskilled in the particular craft, will doubtless have a considerable influence, in establishing certain remote principles, by which all men must be governed, in extreme cases, neverthe- less, in that numerous class of cases, in courts of justice, which have to be determined *upon a nice estimate and balance of con- flicting testimony, the opinion of experienced men, in the par- ticular business, must be of very controlling influence. And it is very well understood, that generally, the fact that such evidence is not produced, unless the omission is explained, will tend to raise a presumption against the party .^ * Quimby v. Vermont Central Railway, 23 Vt. R. 394, 395. 5 Murray v. Eailroad Company, 10 Rich. (S. C.) R. 227. As we find few cases in the books bearing upon this general question, in regard to railways, we may refer to analogous subjects where the question has arisen. Nautical men may testify their opinion, whether upon the facts proved by the plaintifif', the collision of two ships could have been avoided, by proper care on the part of defendants' servants. Fenwick v. Bell, 1 C. & K. 312. So, too, in regard to the proper stowage of a cargo. Price v. Powell, 3 Comst. 322. So a master, engineer, and builder of steamboats, may testify his opinion, upon the facts proved, as to the manner of a collision. The Clipper v. Logan, 18 Ohio,.375 ; Sills v. Brown, 9 C. & P. 601. It has been held, that even experts may not be called to express an opin- ion, whether there was misconduct in the particular case on trial, as that is the province of the jury, but that they may express their opinion upon a pre- cisely similar case, hypothetically stated, which seems to be a very nice distinc- tion, and which is combated in a very sensible note to Fenwick v. Bell, 47 Eng. Com. Law R. 312. The opinion of Lord Ellenborough, in Beckwith v. Syde- botham, 1 Camp. 116, 117, that where there is a matter of skill or science, to be decided, the jury may be assisted, by the opinion of those peculiarly acquainted with it, from their professions and pursuits, seems to us more just and wise. We have always regarded the testimony of experts, as a sort of education of the jury, upon subjects, in regard to which they are not presumed to be properly instructed. The distinction we make upon the subjects, where we allow the 37* 437 399 THE LAW 01 RAILWAYS. [§ 174. CHAPTER XXIII. RAILWAY DIRECTORS. SECTION I. EXTENT OF THE AUTHOKITT OF RAILWAY DIRECTORS. 1 . Notice to one director, if express, sufficient. 2. Applications to the legislature for enlarged powers, and sale of company's works, re- quire consent of shareholders. 3. Constitutional requisites must be strictly followed. 4. Directors, or shareholders, cannot alter the fundamental business of the company, 5. Inherent difficulty of defining the proper limits of railway enterprise. n. 7. Opinion of Lord Langdale, and review of cases, on this subject. § 174. 1. We have before stated in general terms, the power of the directors of the company to bind them.^ The board of directors ordinarily may do any act, in the general range of its business which the company can do, unless restrained, by the testimony of experts, and where we do not, shows this. The nearer the testi- mony comes to the very case in hand, the more pertinent and useful. And the finesse of keeping the very case out of sight, by name, but describing it, by alle- gory, in asking the opinion of the experts, is scarcely equalled by the device of certain species of birds, who imagine themselves invisible to others, because they are so to themselves. It is not unlike asking a witness, in regard to the genuine- ness of handwriting, in dispute before a jury, and which is to be determined by them, and this is always allowed without question. And in all such questions, there is likely to be so much disagreement among the experts, as to leave the jury a sufficient duty to perform. But the more common practice is according to the rule in Sills v. Brown. In an action against a railway company for carrying their road through plain- tiff's pasture, throwing down his fences, and scattering, frightening, and injuring his cattle, it was held that an experienced grazier is competent to testify as an expert, in regard to the state of cattle and to causes affecting their weight and health on a supposed state of facts. But that such person could not express an opinion upon the facts proved in the particular case, on the point to be deter- mined by the jury. Baltimore & Ohio Railw. v. Thompson, 10 Md. R. 76. In Webb v. Manchester and Leeds Railway, 1 Railw. C. 576, a point, involv- ing questions of practical science being in dispute, and the testimony conflicting, it was referred to an engineer for his opinion, and his conclusion, in regard to the facts, adopted and made the basis of the order of court. 1 Ante, § 113, 137. 438 § 174.] RAILWAY DIRECTORS. * 400 charter and by-laws.^ Notice to one of a board of directors, in the same transaction, or express notice, is, in general, notice to the company. But the fact, that one of a firm, is a director in a banking company, but takes no active part in the business of the bank, is no notice * to such bank of the dissolution of such part- nership, or the retiring of one of its partners.^ 2. But it is said the directors of a corporation have no author- ity without a vote of the shareholders, to apply to the legislature for an enlargement of the corporate powers.* And it was held, that the managing directors of a joint-stock company, who had power to lease the works of the company, could not, in the lease, give an option to the lessee, to purchase, or not, at a price fixed, the entire works of the company, at any time within twenty years, and that such a contract must be ratified, by every mem- ber of the company, to become binding upon them.^ 2 "Whitwell, Bond & Co. v. Warner, 20 Vt. R. 425. But the general agent of such a company, who performs the daily routine of the business of the company, cannot bind them beyond the scope of his ordinary duties. Hence the law agent of a joint-stock insurance company cannot bind the company by his false repre- sentations as to the state of its finances. Burnes v. Pennell, 2 H. L. Cas., Clark & F. (n. s.) 497. But where the directors of the company make such false repre- sentations, as to the state of the finances of the company, to enhance the price of stocks, they are liable to an action, at the suit of the person deceived, or to criminal prosecution ; and transfers of stock made upon the faith of such repre- sentations, will be set aside in e'quity. Id. Lord Campbell said, it was not neces- sary the representation should have been made personally to the plaintiff. See also Soper v. Buffalo & Roch. Railway, 19 Barb. 310. But where the charter of a railway company, or the general laws of the state, require the ratification of a particular contract, by a meeting of the shareholders, held in a prescribed manner, such contract, assumed by the directors only, does not bind the company, and a court of equity will not hesitate to enjoin its per- formance by the company, at the suit of any dissenting shareholder. Zabriskie V. C. C. & C. Railw. 10 Am^ Railway Times, No. 15. Where a tariff of fares of freight and passengers upon a railway are estab- lished and posted up by the president of the company, and are acted upon in transacting the business of the company, without objection, the consent of the corporation will be presumed. Hilliard v. Goold, 34 New H. R. 230. 3 Powles V. Page, 3 C. B. 16. But the secretary of a railway company cannot bind the company by admissions. Bell v. London & N. W. Railway, 21 Eng. L. & Eq. R. 666. Nor can the directors bind the company by their declarations, unless connected with their acts, as part of the res gestce. 8oper v. Buffalo & Roch. Railway, 19 Barb. 310. * Marlborough Manufacturing Co. u. Smith, 2 Conn. R. 579. 5 Clay V. Rufford, 19 Eng. L. & Eq. R, 350. 439 *401 THE LAW OF RAILWAYS. [§ 174. 3. And where the deed of a joint-stock company, enables the majority to bind the company, by a resolution passed in a cer- tain manner, these formalities must be strictly complied with, or the minority will not be bound by the act.^ 4. So, too, where the directors, or even a majority of the share- holders, assume to entei: into a contract, beyond the legitimate scope of the objects and purpose of the incorporation, the con- tract is not binding upon the company, and any shareholder may restrain such parties by injunction out of chancery, from applying the funds of the company to such purpose, however beneficial it may promise to become to the interests of the company. This is a subject of vast concern to the public, considering the large amount invested in railways, and the uncontrollable disposition, which seems almost everywhere to exist, in the utmost good faith, no doubt, to improve the business of such companies, by extending the lines of communication, and even by the virtual purchase of other extensive works, more or less nearly connected, either in fact, or in apprehension, with the proper business of the coinpany. 5. There can be no doubt the courts of equity hold some right- ful control over these speculative schemes and enterprises. But * they lie so deeply entrenched, in the general spirit of the age, and receive so much countenance and sympathy from kindred enterprises, in almost all the departments of business, that it often becomes extremely difficult, if ndt impossible, to fix any well-defined and practicable limits, to the operations of railway companies, that shall not allow them, on the one hand, the power of indefinite extension, and overwhelming absorption of kindred 6 Ex parte Johnson, 31 Eng. L. & Eq. 430. One railway company cannot, without the permission of parliament, purchase stock in other railway companies. Salomons v. Laing, 6 Railw. C. 289. In the case of Ernest v. Nichols, 30 Law Times, 45, decided in the House of Lords, in August, 1857, the subject of the power of the directors of a joint-stock company, to bind the company, is discussed very much at length, and the conclu- sion reached, as in some former cases, (Ridley v. Kingsbridge Flour Mill Baking Co. 2 Exch. 711, and some others,) that the directors could execute no binding contract, on behalf of the company, except in strict conformity to the deed of settlement by which the company was constituted; and that it was no excuse for the other contracting party, to say, he was ignorant of the provisions of that deed. It was his folly to contract with a director, or directors, under such ignorance, and he must be content to look to those with whom he contracted. 440 § 174.] RAILWAY DIRECTORS. *401 enterprises, or which will not be regarded, on the other, as a de- nial of fair Uberty and free scope, to carry out the just objects of their creation. We have thought, that we could not afford a more just, and unexceptionable commentary, upon this difficult and important subject, than in the language of one of the most sober, discreet, and learned of the BngUsh equity judges, Lord Langdale, M. R.'^ "> Colman v. The Eastern Counties Railway Co. 4 Railw. C. 513. Tlie man- aging directors of a railway company, with the view of increasing the traffic on their line, entered into a contract with a steam-packet company, that they would guarantee the proprietors of the steam-packet company a minimum dividend of £5 per cent, on their paid-up capital, until the company should be dissolved, and that, upon a dissolution, the whole paid-up capital should be returned to the shareholders, in exchange for a transfer of the assets and properties of the steaai- packet company. One of the shareholders filed a bill, on behalf of himself and all other share- holders who should contribute, except the directors, against the company and the directors, and obtained an injunction, ex parte, to restrain the completion of the contract : — Held, on motion to dissolve the injunction, that an objection for want of par- ties, to a suit so framed, was not sustainable. That directors have no right to enter into or to pledge the funds of the company in support of any project, not pointed out by their act, although such project may tend to increase the traffic upon the railway, and may be assented to by the majority of the shareholders, and the object of such project may not bo against public policy. That acquies- cence by shareholders in a project for however long a period, affiards no pre- sumption that such project is legal. That an objection, stated by affidavit, and remaining unanswered, that the plaintiff was proceeding at the instigation and request of a rival company, did not deprive him of his right to an injunction, and the motion to dissolve the in- junction was refused, with costs. The learned judge said : " To look upon a railway company in the light of a common pjtrtnership, and as subject to no greater vigilance than common part- nerships may be, would, I think, be greatly to mistake the functions which they perform, and the powers of interference which they exercise with the public and private rights of all individuals in this realm. We are to look upon those powers as given to them in consideration of a benefit, which, notwithstanding all other sacrifices, is on the whole hoped to be obtained by the public ; but the public interest being to protect the private rights of all individuals, and to save them from liabilities beyond those, which the powers given by the several acts neces- sarily occasion, those private rights must always be carefully looked to. " I am clearly of opinion, that the powers given by an act of parliament like that which is now in question, extend no further than expressly stated in the act, except where they are necessarily and properly acquired for the purposes which the act has sanctioned. How far those powers may extend which are necessarily 441 402 THE LAW OF RAILWAYS. ' [§ 175. ♦SECTION II. WHEN DIRECTORS BECOME PERSONALLY LIABLE. 1 . Not liable personally, for any lawful act done as directors. 2. But are liable upon express undertaking, to be personally holden. 3. Are liable personally, if they assume to go beyond their powers. 4. Extent of powers affected often, by usage and course of business. 5. But if contract is beyond the power of company, or not in usual form, directors personally liable. 6. Statement of case illustrating last, point. § 175. 1. The English statute enacts, what was the common law indeed, that no director should become personally liable by or conveniently to be exercised for the purposes intended by the act, will very often be a subject of great difficulty. We cannot always ascertain what they are ; ample powers are given for the purpose of constructing the railway ; ample powers are given for the purpose of maintaining the railway ; ample powers are also given for the purpose of doing all those things which are required for the proper use of the railway ; but I apprehend that it has nowhere been stated that railway companies have power to enter into transactions of all sorts and to any extent. Indeed it is admitted, and very properly admitted, that they have not a right to enter into new trades and new businesses not pointed out by the act; but, it is contended, that they have a right to pledge the funds of the company without any limit, for the encouragement of other transactions, however various and extensive, provided only they profess that the object of the liability occa- sioned to their own shareholders by such encouragement, is to increase the traffic upon the railway, and thereby the profit to the shareholders. Surely that has nowhere been stated ; there is no authority for any thing of that kind. What has been stated is, that these things to a small extent have frequently been done since the establishment of railways. Be it so ; but unless what has been done can be proved to be in conformity with the powers given by the special acts of parliament, they do not in my opinion furnish any authority whatever. To sup- pose that the acquiescence of railway shareholders for the last fifteen years, in any transaction conducted by a railway company, is any evidence whatever of their having a lawful right to enter into it, is, I think, wholly to forget the frenzy in which the country has been for the last fifteen or sixteen years, or thereabout. There is no project, however wild, which has not been encouraged by some one or more of these companies. There is no project, however wild, which the share- holders, or the persons liable in respect of those companies, have not acquiesced in, from one cause or another, either from cupidity and the hope of gaining ex- traordinary profits beyond their first anticipations, or from terror of entering into a contest with persons so powerful. In the absence of legal decisions, I look upon the acquiescence of shareholders in these transactions as affording n6 ground whatever for the presumption that they may be in themselves legal." The case was afterwards mentioned to the court, on behalf of the defendants, 442 § 175.] RAILWAY DIRECTORS. * 403 ' reason of any contract made, or any act done, on behalf of the company, within the scope of the authority conferred by the when his lordship stated, that the injunction was only meant to refer to the guar- anty proposed to be given, and the case made by the bill ; but was not intended to affect any arrangement which the directors might enter into with any steam- packet company respecting the rates and tolls to be charged on the railway. In Salomons v. Laing, the same learned judge said (6 Railw. C. 301) : " A railway company, incorporated by act of parliament, is bound to apply all the moneys and property of the company for the purposes directed and provided for by the act of parliament, and not for any other purpose whatever. When the expenses are paid, and the public purposes directed and provided for by the act of parliament, — which, in truth, was the motive and inducement for granting the extraordinary powers given by all these acts of parliament, — when these purposes are fully performed, any surplus which may remain after setting apart the sum to answer contingencies, may, if not applied in enlarging, improving, or repairing the works, be divided among the shareholders. The dividends, which belong to the shareholders, and are divisible among them, may be applied by them sever- ally as their own property, but the company itself, or the directors, or any num- ber of the shareholders assembled at a meeting or otherwise, have no right to dispose of the shares of the general dividend, which belong to the particular shareholder, in any manner contrary to the will, or without the consent or author- ity of that particular shareholder. Any application of or dealing with the capi- tal, or any part of the capital, or any funds or money of the company, which may come under the control or management of the directors or governing body of the company, in any manner not distinctly authorized by the act of parliament, is in my opinion an illegal application or dealing ; and without meaning to say that it is or could be practicable for individual shareholders to interfere on every occasion, however small, of alleged misapplication of particular sums, I am of opinion that if, as in this case, the directors are proceeding upon an illegal prin- ciple, and for purposes not authorized by the act of parliament, to involve the company, or the shareholders of the company, or any of them, in liabilities to which the shareholders, or any of the shareholders, never consented, relief may and ■ ought to be given in this court ; and that the mere circumstance of the Brighton cempany having obtained, as it is not disputed they did lawfully obtain, a certain number of shares in the Portsmouth company, is^iot a reason why the company should be enabled or permitted to purchase more shares, and thereby increase the risks to which parliament permitted the shareholders to be exposed by the shares which may have become vested in them by the Amalgamation Act, or any reason why the directors should be permitted to divert so much of the funds of the company as they think proper, or indeed any portion of those funds, for the support of another company having distinct objects, and meant to be ap- plied to purposes different from those in consideration of which alone those pow- ers were granted to them." Ante, § 56. Where the statute prohibits the directors of a company from being concerned, directly or indirectly, in building its road, a contract between the company and two of its directors, for that purpose, is abso- lutely void. Barton v. Port Jackson, &c. Plank Road Co. 17 Barb. 397. 443 * 404 THE LAW OB RAILWAYS. [§ 175. statutes * of the legislature and the company, or, as it is ex- pressed, " by reason of any lawful act done by them." 2. But directors have been held liable, in many cases, person- ally, where the debt was that of the company, and where it so appeared upon the face of the contract. As upon a promissory note, which was expressed, "jointly and severally we promise to pay," " value received for and on behalf of the Wesleyan News- The deed of a joint-stock banking company contained provisions, that the directors should be, not fewer than five, or more than seven ; that three, or more, should constitute a board, and be competent to transact all ordinary business, and that the directors should have power to compromise debts. Agents might be appointed by the directors, to accept, or draw bills, without reference to the directors. The number of directors became reduced to four, and three executed a deed, compromising a large debt due the company, taking from the debtor, a mining concern, and covenanting to indemnify him against certain bills of ex- change. In an action on this covenant, held that it did not bind the company, not being ordinary business, and no number of directors less than five being competent to transact it. And query, whether a board of three directors could transact even ordinary business, unless when the board consisted of five only. Kirk v. Bell, 12 Eng. L. & Eq. R. 385. But where a series of contracts have been openly made, by the officers of a corporation, within the knowledge of the corporators, who have acquiesced in and derived benefit from them, the contracts are binding upon the corporation, although not expressly authorized in its charter. And if it be a municipal cor- poration, it is bound to pay whatever is due, by taxes, if it has no other means. Alleghany City v. McClurkan, 14 Penn. St. R. 81. So also where, by consent of the board of directors, a general agent was em- ployed in making contracts for the purchase of the right of way, and were in the habit of agreeing upon the price, by submission to arbitrators, and the awards had been paid, in such cases, by the company's financial officers, under a general resolution, to pay the amount these agents directed, it was held that such agent, and another agent employed to assist in the same service, had power to submit the question of price, in such cases, to arbitrators, and their award was binding upon the company. And it is not requisite, that the contract of submission should be under the seal of the company, in such case, nor will it be avoided by the agent attaching a seal to its execution, by himself. Wood v. The Auburn & Roch. Railway, 4 Seld. 160. But the fact that the directors have executed some ten or twelve similar contracts, and that such contracts had been published in the annual reports, and distributed to the stockholders without objection, although evidence of acquiescence on their part is not evidence of the enlargement of the charter powers of the company, so as to bind the company, as between them and the primary parties, entering into the contract with them. McLean, J., in Zabriskie v. C. C. & C. Railw. 10 Am. RaQw. Times, No. 16. Ante, §56. 444 § 176.] RAILWAY DIRECTOKS. * 405 paper Association. S. & W., Directors." ^ But it is ordinarily a question of * intention, whether the directors are personally liable if they act within the powers conferred by the company.^ 3. But where the directors of a railway assume to do an act exceeding their power, as accepting bills of exchange, which does not come within the ordinary business of railways, they will be personally liable.^ 4. But the business of railways is so much extended in this country, as borrowers of money, carriers, and contractors, in vari- ous ways, that it is not easy to determine, except from each particular case, how far the directors may draw, or indorse bills, or indeed what particular acts they may or may not do. 5. By the construction of the English statutes, if a trustee, or director of any public work, make a contract for any matter,. not provided for in the special acts of the company, or by the general statutes, applicable to the subject, or in a different form from that so provided, he is taken to have intended to become person- ally responsible.* 6. Thus where a check, on the company's bankers, for pay- ment to a third party of the company's money, was drawn by three directors, in the name of the company, but the document was signed by them, in their own names, and countersigned by the secretary of- the company, adding to his name " Secretary," and a stamp bearing the name of the company was affixed, but the three directors did not appear, on the face of the check, to be directors, or to sign, as such, it was held that it did not pur- 1 Healey v. Story, 3 Exch. K. 3. Alderson, B., said the terms, jointly and severally, imported a personal undertaking, inasmuch as they could properly have no application to the company. But see TJoherts v. Button, 14 Vt. R. 195, and the cases cited, where the subject is examined more at length, than space will here allow. Dewers v. Pike, Murphy & Hurl. 131. But in the case of Lindus v. Mel- rose, 31 Law Times, 36, before the Court of Exchequer Chamber, (Feb'y, 1858,) it was held that a promissory note expressed, " For value received we jointly promise to pay," and signed by three of the directors of a joint-stock company, and countersigned by the secretary, and expressed to have been on account of stock of the company, did not bind the signers personally, but imported, on its face, a contract on behalf of the company. a Tyrrell v. WooUey, 1 Man. & Gr. 809 ; Burrell v. Jones, 8 B. & Aid. 47. 3 Owen V. Van Uster, 10 C. B. 818 ; Roberts v. Button, 14 Vt. R. 195. * Parrott v. Eyre, 10 Bing. 283 ; Wilson v. Goodman, 4 Hare, 62 ; Higgins r; Livingstone, 4 Dow, P. C. 341. 38 445 '406 THE LAW OF EAILWAYS. [§176. port to be the check of the company, and was not binding on them.^ * SECTION III. COMPENSATION FOR SERVICB OF DIRECTORS. 1. In England, directors of railways not enti- tled to compensation for services. 2. But the company may grant an annuity to a disabled officer. 3. In this country are entitled to compensalian, in conformity to the order of the board. § 176. 1. In England, in the absence of contract, or usage, from which one might be inferred, directors of railways, and other corporations, are not entitled to compensation for services, as directors. This is regarded as an office, and so an honorary service. And a resolution of the board of directors, that com- pensation should be allowed for certain specified services, not being under seal, so as to amount to a by-law, will not entitle such director to sue the company, for compensation for such service.^ 2. But it would seem, that where the company voted an annu- ity to a disabled officer, in the nature of a retiring pension, and the directors, by deed, in the name of the company, made a formal grant in conformity with the vote, that, the contract is binding upon the company, although no power is expressly given, by their charter, to grant annuities.^ 3. Railway directors in this country are generally allowed compensation, but cannot recover it, beyond the rate fixed, by the general resolutions of the board.^ And where a director acts, as a member of the executive committee of the board, or in selling the bonds of the company, his service is to be regarded as in his capacity of director, and the amount of compensation is limited, to that allowed directors.^ 5 Serrell v. Derbyshire, Staffordshire & Wor, J. Railway, 19 La^ J. 871 ; s. c- 9 C. B. 811. It would seem, that without much latitude of construction, this case might have been otherwise ruled, and been more satisfactory. 1 Dunston v. The Imp. Gas L. Co. 8 B. & Ad. 125. But see Hall v. The Vt. & Mass. R. 28 Vt. R. 401. The rule of law in that respect is different in this country, a resolution of the board of directors having the same force, whether under seal or not. Ante, § 137, 169. 2 Clarke v. Imp. G. L. Co. 4 B. & Ad. 315. 3 Hodges V. Rut. & Burlington Railway, 29 Vt. R. But where a director per- 446 § 177-178.] KAILWAT DIRECTORS. * 407 * SECTION IV. RECORDS OP THE PROCEEDINGS OP DIRECTORS. § 177. The English general statutes require the directors to keep minutes of all appointments, contracts, orders, and proceed- ings, of the directors and committees, in books kept for that pur- pose, and these duly made, are receivable, as evidence, without further authentication. But this is held not to exclude other evidence of such transactions.^ ' SECTION V. AUTHORITY OP DIRECTORS TO BORROW MONEY, AND BUY GOODS. 1. Authority of directors to hind company, express or implied. 2. General agent will bind company within scope of his duties. Directors presumed to assent to his contracts. 3. Contracts under seal of company primA facie bi7id them. Strangers must take notice of general want of authority in directors, but not of mere informalities. Cannot subscribe for stock of other' com- panies. May borrow money if requisite. § 178. 1. Joint-stock companies, under many of the English statutes,^ are held bound by contracts made, by a competent board of directors, though not under seal, and not made in strict compliance with the acts.® But those, who seek to bind such forms services for the company, disconnected with his office, he is not restricted in regard to compensation, by any resolution of the board, in regard to the com- pensation to be made the directors. Henry v. Rut. & Bur. Railway, 27 Vt. K. 485. In another case it was held, that railway directors, as a general rule, are not entitled to compensation for their personal services, unless rendered under some express contract. Hall v. Vermont & Mass. Railway, 28 Vt. R. 401. 1 Inglis V. The Great Northern Railway, 16 Eng. L. & Eq. R. 55. Lord St. Leonards said, in the H. of L., " But independently of the evidence furnished by the books — the due appointment — was proved by a witness, and his evidence was admissible evidence, for the act confers a privilege, but does not exclude other evidence of the fact." Miles v. Bough, 3 Q. B. 845. 1 7 &8 Vict. ch. 110. ^ Ridley v. Plymouth Banking Co. 2 Exch. R. 711. Where one has the actual charge and management of the business of a corporation, with the knovWedge of the directors, the company will be bound by his contracts; made on their behalf, 447 * 408 THE LAW OF EAILWAYS. [§ 178. companies, on contracts made with the directors, must show their authority to bind the company, either by the terms of the deed of settlement, or that the body of the shareholders author- ized these persons to act on their behalf. A ratification by a competent board of directors will bind the company.^ 2. The general rule upon this subject, in regard to goods and money, which is obtained by agents, ostensibly clothed with " competent authority, and which actually goes to the use of the company, seems to be, that the company is holden. Thus where a joint-stock manufacturing company, having a board of direc- tors, with authority to appoint officers, and delegate their author- ity, purchased goods through the general manager of the company, or his deputy, or the secretary, aU of whom were duly appointed, and when the goods were delivered, on the company's premises, and used for their purposes, they were held liable, on the ground, that the manager had authority to give such orders, in the absence of any express provision to the contrary. And it was held, that, as to the others, the directors must be taken to have known, that the goods had been furnished and used, and that therefore the company was liable to pay for them.^ 3. A contract under the seal of the company is primd facie binding upon them. In such case it is not enough in order to defeat a recovery upon the contract, to show an excess of authority on the part of the directors, who made the contract.* within the apparent scope of the business thus intrusted to him. Goodwin v. Union Screw Co. 34 N. H. R. 378. 3 Smith V. Hull Glass Co. 9 Eng. L. & Eq. R. 442. And where the general agent of a manufacturing company directed the clerk to issue a promissory note in the name of the company, and it was shown, that the note was in the form customarily used by the company, in other similar cases, and which they had always recognized, it was held to be sufficient proof of the execution of the note by the company, to go to the jury, and to warrant them in finding that the com- pany had adopted, by usage, the signature of their agent, as their own, and in- tended to be bound by it. Mead v. Keeler, 24 Barb. R. 20. Such company may borrow money for its legitimate business, and bind itself, by a written ob- ligation for its repayment. lb. See also Curtis v. Leavitt, 15 New York Court of Appeals, 9, where this subject is discussed. * Royal British Bank v. Turquand, 32 Eng. L. & Eq. R. 273. Lord Ch. J. CajnjoJeW said, in giving judgment : "A good plea must allege facts to establish illegality, as was done in Collins v. Blantern, 2 Willes, 347, and Paxton v. Pbp- ham, 9 East, 408. A mere excess of authority by the directors, we think of itself would not amount to a defence. The bond being under the seal of the 448 § 178.] RAILWAY DIRECTORS. '409 The defence must establish such an excess of authority, as was known to the other * party, or such as may be presumed to have been so known, and thus virtually establish mala fides, both on the part of the directors and the other contracting party.* 4. The case of Roy,al British Bank v. Turquand, just referred to, was affirmed in the Exchequer Chamber,^ in which a some- what important distinction seems to be made,^ between a general want of authority in the directors, to do the act, in question, in any case, and a mere want of authority, in the particular in- stance, for want of the requisite formalities on the part of the company, they being bound in the. latter and not in the former case. Jervis, Ch. J., in giving judgment, said, " Parties dealing with these joint-stock companies, through the directors, are bound to read the deed, or statute, limiting the directors' author- ity, but they are not bound to do more. The plaintiffs, there- fore, assuming them to have read this deed would have found, company, the gist of the defence must be illegality. If the directors had ex- ceeded their authority, to the prejudice of the shareholders by executing the bond, and this had been known to the obligees, illegality, we think, would have been shown. The obligors in executing, and the obligees in accepting the bond, might be considered, as combining together to injure the shareholders. The two parties would have been in pari delicto, and the action could not have been main- tained. In such circumstances potior est conditio defendentis. But without the scienter and without prejudice to the shareholders, or any others whatsoever, ille- gality is not established against the obligees. If no illegality is shown as against the party with whom the company contract under the seal of the company, ex- cess of authority is a matter only between the directors and the shareholders." And again, " The plaintiffs have bond fide advanced their money for the use of the company, giving credit to the representations of the directors, that they had authority to execute the bond, and the money which they advanced and which they now seek to recover, mustbe taken to have been applied, in the business of the company, and for the benefit of the shareholders.'' " The case of Hill v. Man- chester Waterworks Co. 2 B. & Ad. 544, is an instance of such a bond being up- held, the pleas not disclosing any fraud, or injury, done to the shareholders of the company, and the case of Horton v. Westminster Improvement Commiss. 14 Eng. L. & Eq. R. 378, was decided on the same principle." Agar v. Athenaeum Life Assurance Co. 30 Law Times, 302, is decided on the authority of R. British Bank V. Turquand, infra, n. 5. A release purporting to be under the corporate seal, and signed by the president of the company, and exhibited by them in court, as their act, would operate as an estoppel upon the company, in any suit between the party as to whom the release was given and the company. Scaggs v. Baltimore & Wash. Railw. 10 Md. R. 268. s 36 Eng. L. & Eq. R. 142. 38 * 449 *410 THE LAW OF RAILWAYS. [^ 179. not a prohibition to borrow, but a permission to borrow, on cer- tain things being done. They have, in my opinion, a right to infer, that the company, which put forward, their directors to issue a bond of this sort have had such a meeting, and such a resolution passed, as are requisite to authorize the directors in so doing." 5. It was held ^hat a joint-stock business company had no power to take stock iji a savings bank, and that a loan effected by that means, could only be enforced to the extent of the morjey actually received by the company, over and above the amount, retained upon the subscription.^ 6. There seems to be no question made of the general right of corporations, both public and private, to borrow money, so far as their legal functions may require it. But it was once doubted, whether this could be done, except under the corporate seal.^ But the. cases now show that no such thing is requisite.^ ♦SECTION VI. DUTY QP KAILWAY DIRECTORS TO SERVE THE INTERESTS OF COMPANY. 1. General duty of such office defined. 2. Claim for secret service and influence with directors. 3. Opinion of Justice Hoffman upon the h- galily of such contracts. n. 3. Cases reviewed upon the subject of secret § 179. 1. The general duty of railway directors is stated, some- what in detail, in another part of this work.^ It is an important and public trust, and whether undertaken for compensation, or gratuitously, imposes a duty of faithfulness, diligence, and truth- fulness, in the discharge of its functions, in proportion to its difficulty and responsibility. 6 Mutual Savings Bank v. Meriden Agency Co. 24 Conn. R. 159. See also post, § 211, note 3. "> Wilmot V. Corporation of Coventry, 1 Younge & Coll. 618. 8 Marshall v. Queenborough, 1 Simons & Stu. 520. See cases before referred to in this section. And it was held that the directors of a company incorporated for making a cemetery could not raise money, by indorsing and accepting bills, for the purposes of the undertaking. Steele v. Harmer, 14 M. & W. 831. The same principle is recognized in the earlier cases. Broughton v. Manchester Waterworks, 3 B. & Aid. 1 ; Clarke v. Imperial Gas-Light Co. 4 B. & Ad. 315. ' §211, n. Q,post. 450 § 179.] RAILWAY DIRECTORS. * 411 2. An important case, involving incidentally the duty of rail- way directors, arose recently, in the Superior Court of the city of New York.^ The plaintiff claimed pay for labor and services, in procuring for the defendants, the contract for the construction and equipment of the Ohio and Mississippi Railway, from Cin- cinnati to St. Louis. The mode of his performing this service seems to have been through one Clement, who knew nothing of defendants, but who acted upon the plaintiff's recommendation of them, and for the agreed compensation of $10,000, secretly influenced the directors of the railway, by personal solicitation, to give the contract to the defendants. 3. Mr. Justice Hoffman, in giving judgment, makes some sug- gestions, upon the general subject, well worthy of our notice. " Undoubtedly this was the employment of Clement, for a bribe, to use personal influence with the directors, to secure a lucra-tive contract for one, of whose capacity and responsibility he was entirely ignorant. He was to use this secretly and with individ- uals. " The directors of this great railroad scheme, if they stood not in the capacity of public officers, owing a duty to the state, yet were trustees of the stockholders of the road, and owed the best efforts of industry, integrity, and economy, to them. " No one can deny, that a stipulation for any personal advan- tage or profit, which might attend and influence the discharge of their * trust to the stockholders, would be a violation of duty ; and no engagement given to them, or contracts made with them, for that object, could bear the scrutiny of the law. " If, again, one of their officers, if Mitchell, for example, em- powered to negotiate and finally to settle the contract with Sey- mour, had received an obligation for the payment of a sum of money for his services, it could never have been enforced." The learned justice cited and commented upon the following cases in support of the principle which would avoid such agreements;^ 2 Davidson v. Seymour et al. General Term, April, 1857, Law Reporter, July, 1857, p. 159 ; Bedmond v. Dickerson, 1 Stockton, Ch. R. 507. 3 Gray v. Hook, 4 Comst. 451 ; Waldo v. Martin, 4 Barn. & Cress. 319 ; 2 Carr. & Payne, 1 ; Harrington v. du Chastel, 2 Swanston, 167 ; Hopkins v. Prescott, 4 Com. Bench R. 578; Money v. Macleod, 2 Simons & Stuart, 301 ; Marshall v. Baltimore and Ohio Railroad Co. 16 Howard, U. S. R. 314, 325 ; Fuller v. Dame, 18 Pick. 472. 451 *412 THE LAW OF RAILWAYS. [§179. and continued : *" I am led to the conclusion, that it would be impossible to allow Clement to sustain an action upon the agree- Lord Chancellor Eldon says, in regard to one acting as the agent of others, and ■who secured a large sum to himself, without the knowledge of those on whose behalf he acted, " It is impossible for Jhis court to sanction such a proceeding." Fawcett v. Whitehouse, 1 Euss. & M. 132. Mr. Shelford, the learned author of the Treatise on Railways, thus lays down the rule, in regard to the duty of the directors of a railway company, pp. 193, 194. "The employment of a director is of a mixed nature, partaking of the nature of a public office. ... If some directors are guilty of a gross non-attend- ance, and leave the management entirely to others, they may be guilty, by^ese means, of the breaches of trust, which are committed by others. By accepting a trust of this sort, persons are obliged to execute it with fidelity and reasonable diligence, and it is no excuse that they had no benefit from it, and that it was. merely honorary. . . . Supine and gross negligences of duty will amount to a breach of trust." Charitable Corporation v. Sutton, 2 Atk. 400. The same principle in regard to the effect of the service being gratuitous, is found in the celebrated case of Coggs v. Bernard, 1 Salk. 26. In Marshall v'. Baltimore and . Ohio Railway, supra, Mr. Justice Grier made some very pertinent remarks, in regard to the duty of courts of justice, in enforcing against railway companies contracts for obtaining legislative grants, by extraordinary efibrts and influences, secretly exercised. This was an action to recover $50,000 for secret service, in getting a bill through the legislature of Virginia, giving the company the right to carry their road through the state. The learned judge said: "All persons whose interests may in any way be affected by any public or private act of the legislature, have an undoubted right to urge their claims and arguments, either in person or by counsel professing to act for them, before legislative committees, as well as in courts of justice. But where persons act as counsel or agents, or in any representative capacity, it is due to those before whom they plead or solicit, that they should honestly appear in their true characters, so that their arguments and representations, openly and candidly made, may receive their just weight and consideration. A hired advocate or agent, assuming to act in a difierent character, is practising deceit on the legislature. Advice or information flowing from the unbiased judgment of disinterested persons, will naturally be received with more confidence and less scrupulously examined than where the recom- mendations are known to be the result of pecuniary interest, or the arguments prompted and pressed by hope of a large contingent reward, and the agent ' stimulated to active partisanship by the strong lure of high profit.' Any at- tempts to deceive persons intrusted with the high functions of legislation, by secret combinations, or to create or bring into operation undue influences of any kind, have all the injurious effects of a direct fraud on the public. " Legislators should act with a single eye to the true interest of the whole people, and courts of justice can give no countenance to the use of means, which may subject them to be misled by the pertinacious importunity and indirect in- fluences of interested and unscrupulous agents or solicitors. " Influences secretly urged under false and covert pretences must necessarily 452 § 179.] RAILWAY DIRECTORS. *413 ment with him. * There was in it most of the elements of a vicious contract, which have avoided similar obligations in the operate deleteriously on legislative action, whether it be employed to obtain the passage of private or public acts. Bribes, in the shape of high contingent com- pensation, must necessarily lead to the use of improper means and the exercise of undue influence. Their necessary cjjpsequence is the demoralization of the agent who covenants for them ; he is soon brought to believe that any means which will produce so beneficial a result to himself, are ' proper means ;' and that a share of these profits may have the same efiect of quickening the perceptions and warming the zeal of infiuential or 'careless' members in favor of his bill. The use of such means and such agents will have the effect to subject the state govwnments to the combined capital of wealthy corporations, and produce uni- versal corruption, commencing with the representative and ending with the elector. Speculators in legislation, public and private, a compact corps of venal solicitors, vending their secret influences, will infest the capital of the Union, and of every state, till corruption shall become the normal condition of the body pol- itic, and it will be said of us as of Rome, — ' omne Romce venale.'" The following cases take a similar view. Wood v. McCann, 6 Dana, 366 ; Hunt 1/. Test, 8 Alab. 713 ; Harris v. Roof, 10 Barb. 489 ; Rose v. Truax, 21 Barb. 361. The enormity of such transactions, in some quarters, if universal and concurrent general opinion may be regarded as authentic, is truly appalling, to any just sentiment of confidence in official fairness, and responsible relation to public trusts. It is probable that the virus of the disease lies deeper in the foun- tains of the common moral sentiment, than we have generally supposed. We feel no disposition to join in a general outcry upon the subject. For we do not believe, as a general thing, that such evils are likely to be cured by any formal criticisms, either in the abstract or in particular cases, whether it come from the bench or the press. The difficulty is one which, for its cure, demands sterner remedies. The perpetrators of such enormities are quite too apt to consider, that because they have been made the victims of some severe strictures, in high places perhaps, they have expiated their guilt, and perhaps earned an indulgence for the future ; and so rush at once into a deeper chasm of iniquity, just as soon as another tempting occasion presents. And it is not uncommon, that the adminis- trators of the law, even in such cases, after having administered a somewhat scathing rebuke to the perpetrators of such crimes, begin to feel compunctious visitings, and terminate the drama, which was introduced with such a high sound- ing announcement, by the infliction of a most insignificant penalty, which renders both the law and its ministers, more or less, objects of contempt. The true method undoubtedly, in such cases, if we desire to make the law, as it should be, a just and unaffected terror to evil-doers, is to say little, but do jus- tice. Let the judgments of the courts, rather than the comments of the judges, testify to the sense of abhorrence of such crimes. These philippics from the bench generally are very justly regarded, nofonly by the people at large, but by the culprits themselves, as a kind of apology for the sentence, and thus destroy half its good effect. And if the other half is deducted by the judge, on account of the plainness and the honesty of the rebuke which he has already adminis- tered to the ofi"ender, very little remains. 453 * 414 THE LAW OF RAILWAYS. [§ 179. leading cases cited. There *was secrecy, individual application, a concealed promise of compensation, and utter ignorance and But the exposition of the subject, in an important case in the city of New York, is so instructive, that we venture to repeat it here. In re Robert W. Lowber ». The Mayor, Aldermen & Commonalty |^ the City of New York ; and In re A. C. Flagg, Comptroller, and others, tax-payers, v. Lowber. The gist of these cross-actions is, that by collusion with certain of the city authorities, Lowber was to receive $200,000 for a piece of land for a market on the East River. The arrangement was made by consenting to a judgment of court on the report of a referee. Comptroller Flagg, upon hearing of this judgment, took measures for obtaining a stay of proceedings. In giving judgment on this motion, Roosevelt, J., said : — " The decision of the general term of the' superior court, it may be said, was not pronounced, and of course was not known, till some months after the title in this case was passed, and even .some weeks after the judgment in the present action was entered. But the fact, while it affords matter of vindication to the corporation counsel, is at the same time, of itself, a sufficient reason, under the circumstances, for opening the judgment, a reason, as it seems to me, not only sufficient, but controlling, — leaving in any just view of the subject no alterna- tive. To say that the citizens, in such a case, are to hazard more than a half million of dollars, the probable cost qf land and market, and that there is no relief, would be monstrous. The proposition shocks all our notions of law and judicial proceedings, and especially when broached in a court having, by the con- stitution, general jurisdiction in law and equity." " ' As matter of law,' (says the counsel of the city in his second point,) ' I deny that the corporation can be ordered by this, or any court, to defend a suit.' The counsel seems to forget that if the corporation (by which he means the aldermen and other officers of the corporation) cannot be ordered to defend a suit, the corporators may be permitted to do it for them ; and that if the court cannot com- pel the corporation to resist an unjust claim, it can refuse to permit its records to " be used as the machinery for enforcing it. " If this were not so, of what avail would be the legislative restrictions on the power of contracting debts and on the power of exercising extensive functions ? All the property of the city, and all its revenues, past, present, and prospective, from taxation or otherwise, might be disposed of without appeal, by a single act of mortgage or conveyance, clothed in the form of a concerted judgment — a judg- ment, at the most, nominally defended, but really confessed — and of Which, as in this case, the court itself, without its knowledge, might be made to figure as the innocent author. " As matter of law, I deny that the court can be made, and thus in effect 'ordered,' by the boards of direction, by whatever name called, of this or any corporation, thus to lend its aid to violate the law, and ruin the corporators. Nor is it true either, that the corporation counsel, in the defence of suits in this court, brought against the city, is subject to the absolute orders of the two boards, and 'only responsible' to them. Although in the loose language of ordinary dis- course, the aldermen and assistant aldermen are commonly called ' the corpora- 454 § 1'''9-] RAILWAY DIRECTOES. *415 recklessness as to the competency of the party whose cause he was promoting, and whose reward he was to receive. There is the difference, that these directors were servants of an organiza- tion inferior to that of a state, yet acting in a very spacious sphere, and representing an extensive body of constituents. The difference between their * position and that of legislators, upon a question like this, appears to me but shadowy. " If, then, the claim of Clement would be promptly rejected, does the present plaintiff stand in a better position ? His orig- inal employment might have been consistent with an open, avowed agency, an intent or instructions to make it known, and thus be free from all objections. But we are left in ignorance of what the terms of such original agre^ent were, — how far they extended. All is indefinite, except merely an employment. He engages Clement, and here again, that employment may have tion,' they are in fact only its legislative, as distinguished from its executive, organs. The corporation of the city, as we have seen, consists of the -whole body of the citizens. The citizens are the quasi stockholders. The ' charter officers,' ■whether legislative or executive, including the ' head of the law department,' are merely the agents and trustees of the citizens, and all ultimately responsible to them. It is an error on the part of the corporation counsel to assume, as he does in his third point, that he is ' responsible only to his client,' and that the client is the common council, as distinguished from the ' commonalty.' His office is the direct gift of the people, made elective for the express purpose of putting an end to the subserviency previously supposed to exist, and of creating a check or coun- terpoise in its stead. Nor is this all ; the corporation counsel, when conducting the prosecution or defence of a suit in court, is an officer of the court, and as such, and like any other attorney in like case, responsible to the court. Although subject, within certain limits, to the legally authorized resolutions of the common council, when acting in his general character of counsel to the corporation,' when acting as an attorney of the court, he is subject to the rules and regulations of the court, and with this intimation will, I have no doubt, be ' perfectly prepared [see his communication] to perform any duty which such a result, or the office he holds, may devolve upon him.' " An order will, therefore, be entered (first submitting a draft to the court foy settlement) directing that the judgment and execution be set«aside, as also the answer, reference, and report ; and that a new answer, to be prepared by the counsel to the corporation, and approved by the comptroller, be filed and served in twenty days from the date of this order, unless the comptroller, within the said twenty days, should elect, as he may, officially, and as a, tax-payer and cor- porator, on behalf of himself and others, to file an original bill of complaint, set- ting forth such matters and making such parties, and praying such relief in the premises as he may be advised." • See also Semmes v. Mayor, &c. of Columbus, 19 Ga. R. 471. 455 416 THE LAW OF RAILWAYS. [§ 180. been perftctly free from censure on the plaintiff's part. But upon the best consideration we can give, we cannot separate the act of Clement from the acts of the plaintiff. There is a legal identity for the purposes of this action. The plaintiff must be held to have employed Clement to do what he did do, or to have been bound to superintend his proceedings, and free them from what was illegal. It is impossible to permit him to profit by the misdeeds of his own agents, however ignorant and exempt from them himself. His ignorance, when knowledge was a duty, becomes equivalent to a fault." SECTION VII. RiaHT TO DISMISS EMPLOYEES. — RULE OF DAMAGES, WHEN DONE WRONG- FULLY. Some cases hold that if wrongfully dis- missed, may recover salary. English courts do not favor this view. Case stated by English judges. The American cases have sometimes taken the same view. Where the contract provides for a term of wages, after dismissal, it is to be regarded as liquidated damages. Statute remedy,' in favor of laborers oj contractors, extends to laborers of sub- contractors. § 180. 1. Where a railway company dismiss a servant, super- intendent, or other employee, without just cause, it seems to be considered in some cases, that they are primd facie liable for the salary, for the full term of the employment.^ This proposition has been often made ■ by judges, and seems to have been acqui- esced in, by the profession, to a very great extent, but in a late English case,^ * where the subject is examined with great thor- oughnessj the opinion of the judges certainly seems to incline to a different result. Patteson, J. sai(J : — 2. " I am not aware, that this precise point has been raised in 1 Costigan v. The Mohawk & Hudson Railway, 2 Denio, 609. 2 Goodman v. Pocock, 15 Q. B. 576. This is the case -wheTe a clerk dismissed, in the middle of the quarter, brought an action for the wrongful dismissal, on the special contract, and in the trial of the action, the jury were instructed that they should not, in assessing damages, take into account the services rendered by plaintiff in the broken quarter, for which he had received no pay. 1 he plaintiff then brought this action for those services, and here the court held, that those services should have been taketi into account in assessing damages in the former action, and that no recovery could be had in this action, on account of the former recovery. 456 §180.] RAILWAY DIRECTORS. '417 any case." ..." Mr. Smith, 2 L. Cases, 20, says, ' that a clerk, servant, or agent, wrongfully dismissed, has his election of three remedies. 1. He may bring a special action for his master's breach of contract, in dismissing him. 2. He may wait till the termination of the period for which he was hired, and may then perhaps sue for his whole wages, in indebitatus assumpsit, relying on the doctrine of constructive service. Gandell v. Pontigny, 4 Camp. 375. 3. He may treat the contract, as rescinded, and may immediately sue upon a quantum meruit, for the work he actually performed. Planch d v. Colburn, 8 Bing. 14.' I think Mr. Smith has very properly expressed himself with hesitation, as to the second of the above propositions ; it seems to me a doubtful point." Lord Campbell, Ch. J., and Coleridge, J., both agree, that the party dismissed, without cause, may bring indebitatus assumpsit, for the service actually performed, or may sue for the breach of the contract, in dismissing plaintiff", but cannot do both. And Erie, J., lays down the rule very distinctly, and, as it seems to us, upon the only sound and sensible basis. " The plain- tiff" had the option, either to treat the contract as rescinded, and to sue for his actual service, or to sue on the contract for the wrongful dismissal. ... As to the other option, referred to by Mr. Smith, I think that the servant cannot wait tiU the expira- tion of the period for which he was hired, and then sue for his whole wages, on the ground of a constructive service, after dis- missal. I think the true measure of damages is the loss sus- tained, at the time of dismissal. The servant after dismissal may, and ought to make the best of his time, and he may have an opportunity of turning it to advantage. I should not say any thing, that might seem to doubt Mr. Smith's very learned note, if my opinion on this point were not fortified by the authority of the Court of Exchequer Chamber, in Elderton v. Emmens, 6 Com. B. 160." * 3. The cases ^ in this country have sometimes taken a sim- ilar view of the rule of damages, in such cases, and the rule must, we think, ultimately prevail everywhere.* 3 Algeo V. Aigeo, 10 Serg. & Rawle, 235 ; Donalson v. Fuller, 3 id. 505 ; Per- kins V. Hart, 11 Wheaton, 237. * Spear & Carlton v. Newell, Sup. Ct. Vt., not reported. In this case the 39 457 *417 THE LAW OF RAILWAYS. [§ 180. 4. Where the contract specifies the time for which the party employed shall be entitled to wages after notice of dismissal, that is to be regarded as stipulated damages for the breach of the contract.^ But even this cannot be recovered under the indebi- tatus count, for work and labor.^ 5. Where the statute provides, that the laborers of contractors upon a railway may give notice to the company, of their wages remaining unpaid, in certain contingencies, and thus charge the company, the provision was held to extend to laborers and work- men of sub-contractors.'^ plaintiflf sued for the price of rags and other materials furnished, to supply a paper-mill of defendant, under special contract. The materials were, at one time, unfit for use, on account of latent defects, for which, by the contract, the plaintiffs were liable. The defendant claimed the rule of damages should be the rent of the mill and the expense of supplying workmen until good materials were furnished. But the court held, that it was the duty of the defendant to make the best of the case, on his part, and that he could only recover, such damages as intervened, before he had opportunity to supply himself, with proper materials for use. s Hartley v. Harman, 11 Ad. & Ellis, 798. 6 Fewings v. Tisdal, 1 Exch. 295. 7 Kent V. New York Central Railway, 2 Kernan, 628. Peters v. St. Louis & Iron Mountain Railw. 24 Mo. R. 586. Where the statute in such case makes the company liable for thirty days' labor of the workmen, it is not indispensable, that the labor should have been performed in thirty consecutive days, to entitle them to compensation against the company. Such claims may be sued in the name of an assignee, under the new code of Missouri. Id. 458 §181.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. * 418-419 * CHAPTER XXIV. ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. SECT-ION I. LEASES, AND SIMILAR CONTRACTS, REQUIRE THE ASSENT OF LEGISLATURE. 1 . By English, statutes one company may pass over road of another, but contract binding. 2. But cannot transfer duty of one company to another, without legislative grant. 3. Original company liable to public, after such lease. 4. Courts of equity enjoin companies from leasing, without legislative consent. 5. But such contracts, made b grants, are to be carried into effect. 6. Majority of company may obtain enlarged powers, with new funds. 7. So the majority may defend against pro- ceedings in legislature. 8. Legislative sanction will not render valid, contracts ultra vires. 9. Railway company cannot assume duties of feiTy, without legislative grant. § 181. 1. The English statute^ gives special permission to one company to contract with other companies for the right of passage over their track. And this has been construed, to give the right to contract for the privileges ordinarily attaching to such passage, of stopping at the stations, and taking up, and putting down passengers, and freight.^ The parties will be bound by the terms of the contract, notwithstanding the ninety- second section of the act, which gives all companies, and per- sons, the right to use railways, upon the payment of the tolls demandable.^ 2. But an agreement between railway companies, without the authority of the legislature, transferring the powers of one com- pany to the other, is against good policy, and a court of equity * will not lend its aid to carry such contract into effect.* But it 1 8 & 9 Vict. ch. 20, § 87. 2 Simpson v. Denison, 16 Jurist, 828 ; 2 Shel., Ben. ed. 694 ; 13 Eng. L. & Eq. R. .359. 3 Great Northern Railway v. Eastern Co. Railway, 9 Hare, 306 ; 2 Stel., Ben. ed. 696 ; 12 Eng. L. & Eq. R. 224. * Same case, 12 Eng. L. & Eq. R. 244 ; South Yorkshire Railway v. Great N. Railway, 19 Eng. L. & Eq. R 513 ; Johnson v. Shrewsbury & B. Railway, id. 584. 459 * 419 THE LAW OF RAILWAYS. [§ 181. has been held, that a contract, by which one railway gives an- other the right of passage, upon the guaranty of a certain per cent, profit upon their stock and all other investments, is a pay- ment of tolls within the statute.^ It seems to be considered, by the English courts, that one railway leasing its entire use to another company does not come within this section of the gen- eral statute, and as the public thereby lose the security of the first company, for care and diligence, in the discharge of its pub- lic duties, the contract, unless made, in pursuance of an act of the legislature, or ratified by such act, is illegal, as against public policy.® At all events a court of equity may properly decline to lend its aid in enforcing a specific performance of such contract.^ 3. But even where such contracts have been made, by permis- sion of the legislature, it has been held, in this country, that the company leasing itself does not thereby escape .all responsibility to the public. But that the public generally may still look to the original company, as to all its obligations and duties, which grow out of its relations to the public, and are created, by charter and the general laws of the state, and are independent of con- tract, or privity, between the party injured and the railway.^ 5 The South Yorkshire K. & C. v. Great Northern Railway, 22 Eng. L. & Eq. R. 531 ; s. c. in Exchequer Ch. 25 Eng. L. & Eq. R. 482. One company hav- ing made a beneficial contract with another company, in regard to traffic, may with a lease of itself transfer the benefit of this contract. London & S. W. Rail- way V. South E. Railw. 20 Eng. L. & Eq. R. 417. 6 Johnson v. The Shrewsbury & Birmingham Railway, 19 Eng. L. & Eq. R. 584; Troy & Rut. Railways, Kerr, 17 Barb. 581. This doctrine is reaffirmed, in the House of Lords, in Shrewsbury & B. Railway v. L. & N. W. R. in May, 1857, 29 Law Times, 186. 7 South Yorkshire & River Dun Co. v. Great N. Railway, 19 Eng. L. & Eq. B. 513; Johnson v. Shrewsbury & Birmingham R. 19 Eng. L. & Eq. R. 584; Shrewsbury & Birm. Railway v. London & N. W. & Shropshire Union Rail- way, 21 Eng. L. & Eq. E. 319 ; s. o. 1 Eng. L. & Eq. R. 122. But see cases ante, n. 5 ; post, § 185. 8 Nelson v. The Vermont & Canada Railway, 26 Vt. R. 717. But it is per- haps worthy of consideration, in regard to this case, that the effect of legislative consent to the lease is not made a point or decided in this case. Sawyer v. The Rut. & Burl. Railway, 27 Vt. R. 370. And in Parker v. Rensselaer & Saratoga Railway, 16 Barb. 315, where the defendants were running upon the Saratoga & Sche. Railway, by virtue of a contract, and the plaintiffs cow was killed through defect of cattle-guards, which it was the duty of the Saratoga & Sche. Railway to maintain, it was held the defendants were not liable, the neglect being attribu- table to the Saratoga & Sche. company. Perhaps the only question, in regard to 460 § 181.] ARRANGEMENTS BETWEEN DIPEBRENT COMPANIES. * 420-421 * 4. The English courts have in some instances even restrained railway companies from carrying contracts of leasing into effect, without the authority of the legislature.^ 5. But such contracts being legal, and not inconsistent with the policy of the acts of parliament, are to have a reasonable construction ; and where, by the creation of new companies and other facilities, the business is very largely increased, the parties are still to abide by the fair construction of the original contract, as applicable to the altered circumstances.^" 6. There is no doubt of the right of a railway company in England to apply to the legislature for enlarged powers, even for the power to become amalgamated with other companies, so as to make one consolidated company. And contracts between the different companies, for this purpose, have been there recognized, and enforced, in courts of equity .^^ And while the courts of equity will * enjoin the companies from applying their funds, to the soundness of this decision is, whether both companies are not chargeable with negligence, the one for suflfering the road to be used, and the other for using it, in that condition. This is the view taken of the law in Clement v. Canfield, 28 Vt. R. 302 ; ante, § 169, But in the York & Maryland Line Railway v. Winans, 17 How. 30, it is de- cided, that where a railway is chartered by one state, and all its stock owned, and the road operated by a corporation erected and existing in another state, the first corporation is nevertheless liable to the patentee of an improvement in rail- way cars, for the use of his patent, cars of that construction having been procured and used upon the road, by the corporation owning the stock of such company. Campbell, J., said, " The corporation cannot absolve itself, from the performance of its obligations, without the consent of the legislature." But one company giving permission to another to use a part of their track, do not thereby become bound to keep the track in such repair, as to be safe for use. Nor do such company thereby assume any obligation towards the passengers car- ried thereon, by such other company. Murch v. Concord Railway, 9 Foster, K. 1 ; post, § 183. See also Briggs u. Ferrell, 12 Ired. 1. And in Vermont Cen- tral Railway v. Baxter, 22 Vt. R. 365, the company are held liable for the acts of the contractor, in the exercise of the right of eminent domain, in obtaining mate- rials for constructing the road. 8 Winch u. Birkenhead, L. & C. Railway, 13 Eng. L. & Eq. R. 506; Beman t,. Rufford, 1 Simons (n. s.) 550 ; 6 Eng. L. & Eq. R. 106. 1" East Lancashire Railway v. The L. & Yorkshire Railway, 25 Eng. L. & Eq. R. 465. 11 Mozley v. Alston, 1 Phillips, 790, where Lord Cottenham said : " There is scarce a railway in the kingdom, that does not come to parliament, for extension of powers." 89* 461 *422 THE LAW OF RAILWAYS. [§ 181. pay the expenses of such parliamentary proceedings, they will not enjoin them from obtaining additional powers, by legislative acts, when other parties volunteer to furnish the requisite funds.^ And there seems to be no question made, in the English courts, of the power of parliament, to extend the line of a railway, or to consolidate existing companies, and that the shareholders are bound, by the acceptance of such legislative provisions, by a majority of the company, or by contracts to procure such powers by act of parliament.^^ 7. And it has accordingly been held, that a public company, as the commissioners of sewers for a county, might impose a rate to defray the expense of opposing a bill, in parliament, which threatened to affect the interests of the company, unfavorably, the same as they might to defray the expense of litigation in court.^* Lord * Campbell said : " Our determination rests upon 12 Stevens v. South Devon Railway, 2 Eng. L. & Eq. R. 138 ; Great Western Railway v. Rushout, 10 Eng. L. & Eq. R. 72 ; post, § 252. 13 Great Western Railway v. Birm. & Oxford Junction Railway, 5 Railw. C. 241. The Lord Chancellor says, that to nullify, in a court of equity, all contracts made upon the faith of obtaining the consent of the legislature, to carry them into effect, would be " to nullify many family agreements, and all contracts by persons projecting new companies.'' Shrewsbury. & Birm. Railway v. London & N. W. Railway, 9 Eng. L. & Eq. R. 394. And it has been held, in an important case, in the Circuit Court of the United States, Columbus, Piqua. & Ind. Railway v. Indianopolis & Bellefontaine Rail- way, 5 McLean's R. 450, that an agreement between two railway companies to build their roads from certain cities, to meet at a given place, and that the charges for transportation shall be regulated by both companies, and also the meeting of the cars, and the through freight oars, is a valid contract, and will be enforced by injunction in equity. That to fix the charge for the transportation of passengers and freight, is the exercise of the corporate franchise of each com- pany, and an agreement, that both companies shall regulate this is' no abandon- ment, or transfer, of the franchise of either. W Reg. V. Commissioners of Norfolk, 15 Q. B. 549. The ground upon which the decisions, in England and America, which hold the franchises of corporations not to be assignable, except by consent of the legislature, rest, is mainly the same, as that upon which it has been held, in this country, that such franchises are be- yond legislative control, namely, that the charter constitutes a contract, between the sovereignty and the corporation, on the one part, for the grant of certain privileges and immunities, and upon the other, for the performance of certain duties and functions, which are deemed an equivalent, or consideration. And this feature is of peculiar force, in the case of that class of corporations, upon which the legislature have conferred important public duties and functions, as railways and banks, and some others. The state confers upon a railway some of 462 § 181.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. '422 the ground, that this opposition was clearly bond fide, and clearly prudent." 8. In a very recent case, in Vice- Chancellor Wood's court,^^ the defendants entered into an agreement to purchase plaintiffs' property, there being, at the time, no legislative permission, either to buy, or sell, such property. Subsequently such permission was obtained, and steps taken by the defendants, under the act, to carry the contract into effect, but they ultimately refused to com- plete their purchase, on the ground that the original agreement was not under the seal of the corporation, nor signed by two of their directors. The plaintiffs then filed a bill for specific per- formance, and it was held, that the biU must be dismissed, on the ground that the contract was originally ultra vires, not being made dependent upon obtaining the consent of the legislature. It is also said, that the contract would not be binding upon the company, unless made under their common seal, that being re- quired in the defendants' special act, and if it were binding, that mandamus is the more appropriate remedy. 9. A railway company cannot acquire the franchise, so as to be bound to perform the duty of an existing ferry, without the authority of the legislature, given either expressly, or by neces- sary implication.^^ its most essential powers of sovereignty, that of eminent domain, and of a virtual monopoly, in transportation of freight and passengers, and in return therefor, stipulate for the faithful performance of these duties, by the corporation. The corporation have no more right, in equity and justice, to transfer their obliga- tions to other companies, or to natural persons, than the state have to withdraw them altogether. Either would be regarded, as an abuse of the powers conferred, or an impairing of the just obligation of the contract resulting from the grant, and its acceptance. 15 Leominster Canal Co. v. Shrewsbury & Hereford Railway, 29 Law Times, 342, August, 1857. The learned judge concludes his opinion, in this case, in a manner very creditable to his sense of fair dealing, and good faith, in the conduct of railway directors : " 1 cannot, however, but feel, that solicitors, acting for rail- way companies, like that of the defendants, must be in a most painful position, when they are unable to rely (as here they cannot) upon the good faith, or even the common honesty, of directors." 16 Battle, J., in State v. Wilmington & Manch. Railway, Barber, R. 234. 463 423 THE LAW OF RAILWAYS. [§ 182. *SECTION II. NECESSITY OF CONTKACTS OF CORPORATIONS BEIJSTG UNDER SEAL. The English courts manifest great reluc- tance to abandon the former rule of law on this subject. n. 2. Extended review of the English and some of the American cases. § 182. The apparent hesitation among the English courts and text-writers,' to accept the acknowledged rule of the American courts, that a corporation may as well contract, by mere words, without writing, or by implication of law, or by vote, or by writ- ing, without seal, as a natural person ; in short, that in the case of a contract, by a corporation, a seal is of no more necessity, or significance, than in the case of a contract by a natural person, would seem to justify some reference here to the present state of the English law upon the subject.^ , 1 Hodges on Railways, 59, 60, 61, and notes. 2 It would seem a very obvious view of the question, that if a seal is not, as was at one time claimed, indispensable to the authentication of a corporate con- tract ; if, in short, it can be dispensed with, in any case, it becomes merely a mat- ter of reason and discretion, or more properly perhaps, of intention, and con- venience, in order to show the definite act of the company, and when it shall be required, or when a contract shall be said to be complete without it, is rather a question of usage than an unbending rule of law. Beverley v. Lincoln Gas Light & Coke Co. 6 Ad. & Ellis, 829, is the case of gas-metres ordered for the use of the company by one of the committee, taken on trial, and not returned in a rea- sonable time, and the company held liable. This is the earliest case in the Eng- lish books, where the courts in that country made any formal departure from the old rule, and it was here held, that a corporation aggregate is liable in assumpsit for goods sold and delivered. Patteson, J., refers to the American authorities upon the subject, and says : " It is well known, that the ancient rule of the com- mon law, that a corporation aggregate could speak and act only by its com- mon seal,' has been almost entirely superseded, in practice, by the courts of the United States." And after stating the greater facilities here for advancement in jurisprudence, the learned judge enters a formal disclaimer against " the right or the wish to innovate on the law upon any ground of inconvenience, however strongly made out; " " but when we have," says the learned judge, " to deal with a rule established in a very different state of society, at a time when corporations were comparatively few in number, and upon which it was very early found nec- essary to ingraft many exceptions, we think we are justified in treating it with some degree of strictness, and are called upon not to recede from the principle of any relaxation in it, which we find to have been established by previous decisions." 464 § 183.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. " 424 SECTION III. DUTY OF THE RESPECTIVE COMPANIES TO PASSENGERS AND OTHERS. 1 . Company hound to keep road safe. Act of other companies no excuse. •2. Some cases hold that passengers can only sue the company carrying them. 3. Passenger carriers bound to make landing- places safe. 4. But those who ride upon freight trains, by favor, can only require such security as is usual upon such trains. 5. Owners of all property bound to keep it in state, not to expose others to injury. 6. This rule extends to railways, where per- sons are rightfully upon them. n. 3. Cases, as to the necessity of pivity of contract existing, reviewed. § 183. 1. A public company, like a canal, or railway, who are allowed to take tolls, owe a duty to the public to remove all ob- And this seems to form the basis of the subsequent decisions of the English courts upon the subject. The decisions have evinced an effort to preserve the rule, and at the same time to invent and ingraft such a number of exceptions upon it as really to meet all the inconvenience, or absurdity, ■which could fairly be objected against the old rule. But in settling the exceptions, the decisions have not aWays commended themselves, as consistent, either with reason, or with each other. Thus affording another striking illustration of the folly of attempting to maintain an absurd rule, by multiplying exceptions, every one of which was based upon a principle of reason, which if carried to its legitimate results, would subvert the rule itself This was in 1837, in the K. B., and established the ex- ception to the old rule of executed contracts, for goods sold and used by the com- pany, in the business for which it was created. , The next year the same court held, that a corporation might also maintain an action upon an executory con- tract not under seal. Church v. The Imperial Gas Light & Coke Co. 6 Ad. & Ellis, 846. This was upon a contract to take gas of the company, which the de- fendant below declined to receive. In 1843 a case arose in the C. P. Fishmon- ger's Co. V. Robertson, 5 IVI. & G. 131. This was an action upon a contract to pay the plaintiffs 1,000/. to withdraw their opposition to a bill in parliament, and to promote its passage into a law, the parties being mutually interested in the same, and alleging performance of the contract on the part of the plaintiff. The subject was very much considered, and an elaborate opinion delivered by Tindal, Ch. J., and it was decided, that the contract having been executed on the part of the corporation, and the defendants having received the full consideration, were bound by the contract, and that the contract was not void, as against public policy. See also Arnold v. The Mayor of Poole, 4 Man. & Gr. 860, (1842,) to the same effect, where it is held, that no municipal corporation, but that of Lon- don, can appoint an attorney except under the corporate seal. Mayor of Lud- low V. Charlton, 6 M. & W. 815, (1840.) But the court of Q. B., in 1846, (San- ders V. St. Neot's Union, 8 Q. B. 810,) held, that if work be done for a corpora- tion, and adopted by them, for purposes connected with the incorporation, 465 *425 THE LAW OF EAILWAYS. [§ 183. * structions in the canal, or upon the railway, although not caused by themselves, or their servants, but by those who are lawfully in although not under seal, they are liable for it. The case of the Governor & Com- pany of Copper Miners v. Fox, 3 Eng. L. & Eq. R. 420, (1851,) holds that the plain- tiffs could not sue upon a mutual contract, because the plaintiffs' portion of it, not being under seal, and being for the delivery of iron rails, and the plaintiffs being incorporated for dealing in copper, not coming within the proper business of the company, as a trading company, they were not bound by it, and by consequence the defendants were not. This case admits the exception from the old rule, of all contracts, pertaining to the proper business of the incorporation, and then at- tempts a distinction between dealing in iron and copper ! — a distinction which, if it be of any force, would show that the contract being ultra vires, would not bind the company, in any form. The next case (Homersham v. Wolverhampton Waterworks, 6 Railw. C. 790, ante, § 113,) in the order of time, is for extra work, under a contract, which was done in express violation of the provisions of the general contract, in regard to extra work, and was not authorized, in the man- ner required, in relation to contracts, by the company's charter. It seems to have been correctly enough decided, upon either ground, that no recovery could be had. Ante, § 113, and cases cited- Lamprell v. Billericay Union, 3 Exch. E. 283, (1849.) But Cope v. Thames Haven Dock & Railway Co. 3 Exch. R. 841, seems to be an express decision affirming the general necessity of the corpo- rate seal to bind the company, (1849.) So also Biggie v. The London & Black- wall Railway, 5 Exch. 442, is of the same character, being for extra work pei^ formed in express violation of the general contract ; and there are some other cases of this kind in the English Reports. But the next case in the order of time, involving the general question, is Pin- lay V. Bristol & Exeter Railway, 9 Eng. L. & Eq. R. 483, and here it was held, that although a corporation was liable for use and occupation, on a parol demise, it is only liable for the actual occupation, and a continuous occupation, for sev- eral years, will not render the corporation tenants from year to year. In Clark ». The Guardians of the Cuckfield Union, 11 Eng. L. & Eq. R. 442, the cases are all elaborately reviewed by Wightman, J., and the conclusion arrived at, that whenever the purposes for which a corporation is created render it necessary that work should be done, or goods supplied, to carry such purposes into effect, and such work is done, or such goods supplied, and accepted by the corporation, and the whole consideration for payment is executed, the corporation cannot refuse to pay, upon the ground that the contract was not under seal ; and the case of Lamprell v. Billericay Union, 3 Exch. 283, is seriously questioned. In Lowe v. The London & N. W. Railway, 14 Eng. L. & Eq. R. 18, it is held, that where a railway have taken possession of land, and occupied it, by the permission of the owner, for the purposes of their incorporation, that they are liable to be sued in assumpsit, for use and occupation, notwithstanding they have not entered into a contract under their common seal. But in the case of Smart v. The Guardians of the Poor of West Ham Union, 30 Eng. L. & Eq. R. 560, (1855,) the question came before the Court of Exchequer, and the judges manifested a firm deter- mination to adhere strictly to the old rule. Parke, B., says : " With respect to 466 § 183.] AEKANGEMENTS BETWEEN DIFFERENT COMPANIES. '426 * the use of the canal, or railway, or by mere strangers.^ Nor can the case of Clarke v. The Guardians of the Cuckfield Union, I must say, that I am not satisfied with the observations of my brother Wighiman, for if that case be correctly decided, the effect would be to overrule several previous decisions of this court." And Alderson, B., says : " We must adhere to former decisions, till overruled by a court of error." But in the case of the Australian Eoyal Mail Co. v. Marzetti, in June, 1855, in the Court of Exchequer, 32 Eng. L. & Eq. R. 572, Pollock, Ch. B., says, in re- gard to a contract not under seal, " The principle applicable to corporations, is, that in respect of small matters, where it would be absurd and inconvenient to require them to put their seals to contracts, in those cases they may contract without seal," also ." in respect of matters for which it was created." " These principles," adds the learned chief baron, " are founded on justice, public conven- ience, and sound sense," and he might have said, perhaps, with equal propriety, will finally be found, virtually to include, all the legitimate business of corpora- tions. For it is impossible to make any sensible distinction, between the proper business of a corporation, as appears upon the face of their charter and that which is purely incidental or ancillary to the proper business of the corporation. And this is conceded by Lord Campbell, in the Governor & Company of Copper Bliners u. Fox, when refining upon the- very elemental distinction between a trade in iron, and copper. And if we allow corporations to bind themselves, without seal, in all the busi- ness created by their charter, and in all that is incidental thereto, we shall have few cases remaining. The only remaining case, directly upon the subject, which has yet reached us, is that of Henderson v. Tbe Australian Royal Mail Steam Nav. Co. 32 Eng. L. & Eq. R. 167, (June, 1855,) where the defendants, a company incorporated for the purpose of carrying the mails, passengers, and cargo, between Great Britain and the Cape of Good Hope and Australia, and for that purpose to construct and maintain steam and other vessels, and to do all such matters, as might be incidental to such undertaking, entered into a contract with the plaintiff' to go out to Syd- ney and bring home a sloop, belonging to the company, which was unseaworthy, and it was held, that the action might be maintained, for the service performed under the contract, although the contract was not under seal. The opinion of the judges at length, will afford the safest commentary, upon the present state of the English law, upon the subject, and will present a very in- structive contrast, with the quiet and perfectly settled, and satisfactory state of the law here, upon the same subject, from having, as we believe, more wisely, abandoned a rule, which grew out of an uncultivated state of society, and which had a very limited application, when adopted, and which is found, in practice, utterly inconsistent with the views of business men, in all commercial countries, at the present day. Wightman, J. . "I am of opinion that our judgment should be for the plaintiff. This is an action against the Austrahau Royal Mail Steam Navigation Company, 1 Parnaby v. Lancaster Canal Co. 11 Ad. & Ell. 223. 467 '427 THE LAW OP RAILWAYS. [§ 183. a * railway company excuse themselves from liability for injury to passengers carried over any part of their road, by showing which is a company constituted expressly for the purpose of carrying on a trade by vessels ; it is incorporated ' for the purpose of undertaking the establishment and maintenance of a communication, by means of steam navigation or other- wise, and the carrying of the royal mails, passengers, and cargo, between Great Britain and Ireland, and the Cape of Good Hope and Australasia,' and for that purpose it must maintain and employ many vessels. Can it be doubted that amongst the ordinary operations of the company there would arise a necessity for employing persons to navigate or bring home vessels which met with accidents abroad ? The words of the contract, as set out in the declaration, show an em- ployment directly within the scope of the objects for whioh the company was incorporated. " It is true there is a conflict of authorities which it is difficult to reconcile. Two or three oases in the Court of Exchequer, Lamprell v. The Billericay Union, 3 Exch. 283, and the Mayor of Ludlow v. Charlton, 6 M. & W. 815, and Arnold V. The Mayor of Poole, 4 Man. & Gr. 860, in the Court of Common Pleas, appear to militate against the view taken by this court. But those decisions proceeded upon a principle adapted to municipal corporations, which are created for other objects tTian trade ; and the Court of Exchequer applied that principle to modern trading companies, which are of an entirely difierent character. " In early times there was a great relaxation of the rule which required that the contracts of corporations should be under seal, and that relaxation has been gradually extended. At first the relaxation was made only in those cases men- tioned by Mr. Lush, whf n the subject-matter of the contract was of small moment and frequent occurrence, which in the case of municipal corporations might be the only exceptions necessary. But in the later cases there was a further relaxa- tion, especially in the case of corporations created by charter for trading pur- poses, and other like corporations. The general result of the cases mentioned in Clark v. The Guardians of the Cuckfield Union, 16. Jur. 686 ; s. c. 11 Eng. L. & Eq. R- 442, is, that in the case of trading corporations, wherever the con- tract relates and is essential to the purpose for which the company was incor- porated, it maybe enforced, though not under seal. In deciding that case, I reviewed all the cases, and adhere to the opinion, which I then expressed, that in such a case as the present, where the contract is essentially necessary to the objects of the company, and directly within the scope of their charter, it may be enforced, though made by parol." Erie, J. : "I am of opinion that the contract is binding on the corporation, though not under seal, on the ground that it is directly within the scope of the company's charter. " The authorities are apparently conflicting, but none conflict with the princi- ple laid down by my brother Wightman, in which I concur. In Beverley v. The Lincoln Gas Light & Coke Company, 6 Ad. & Ell. 829, the. supply of gas was directly incident to the purpose for which the company was incorporated. So also in Church v. The Imperial Gas Light & Coke Company, 6 Ad. & Ell. 846 ; and in Sanders !>. The Guardians of the St. Neot's Union, 8 Q. B. 810; and in 468 § 183.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. '428 that the * particular neglect was that of a servant employed and the elaborate judgment of Wightmnn, J., in Clark v. The Guardians of the Cuck- field Union, 16 Jur. 686 ; 8. c. 11 Eng. L. & Eq. R. 442, it was assumed that the matter was within the scope of the company's charter. " The judgment delivered by Lord Camphell, Ch. J., for this court, in the Copper Miners' Company v. Fox, 16 Q. B. 229, s. o. 3 Eng. L. & Eq. R. 420, enunciated the principle. The principle affirmed by this series of cases does not conflict with the two-leading cases in the Court of Exchequer, which were cases of municipal corporations. Neither building, which was the matter in the Mayor of Ludlow V. Charlton, 6 M. & W. 815, nor litigation, which was the matter in Arnold v. The Mayor of Poole, 4 Man. & Gr. 860, was incidental directly to the purposes for which the corporations of those towns were constituted. " The other cases to which I adverted were corporations for trading purposes, and it is difficult to reconcile them. In Lamprell v. The Guardians of the Bil- lericay Union, 3 Exch. 283, the action related to the building a workhouse, with which the defendants were, as a corporation, connected. Diggle v. The London & Blackwall Railway, 5 Exch. 442, is that which to the greatest degree conflicts, unless it can be distinguished, or explained on the ground that it was a unique contract ; if it cannot, I do not agree to it ; and in this conflict of authorities I adhere to those which oppose it. " The notion that a set of contracts shall have their validity depending on the frequency and insignificancy of the subject-matter is of such extreme pernicious- ness, that I do not think that it can be adhered to, and must be considered as ap- plicable only to municipal corpoi-ations. It has been so held as to contracts for servants, but I do not think that it was meant to be said that the contract was valid if the matter was of small importance, and invalid if the matter was of great importance ; and indeed, in the case of trading companies, which it is allowed may draw and accept bills of exchange not under seal, it is obvious that insigni- ficancy is no element; neither is the frequency or rarity of the contract an element. The nature of the contract and the subject-matter of it must be the principle which governs the question whether it is valid, 'though not under seal. It would be pernicious to the law of the country, that under the semblance of a contract, parties should obtain goods or services, and not be compellable to pay for them. The Court of Exchequer had an opinion that it would be important that the rule should be certain ; but their resort to the rule, that the contract in all cases, with the above-mentioned exceptions, should be under seal, cannot be acted upon." Crompton, J. " I concur in the principle now adopted by my brothers Wight- man and Erie. It is desirable that in the case of trading corporations there should be a relaxation of the rule, that the contract of corporations should be under seal, where the contract is for the purpose of carrying on their trade. That principle was supported in The Copper Miners Company v. Fox, 16 Q. B. 229 ; 8. c. 3 Eng. L. & Eq. R. 420, and Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686 ; 8. c. 11 Eng. L. & Eq. R. 442 ; and it is an important prin- ciple, and may be the governing principle in these cases ; and but for the twO' cases in the Court of Exchequer, I should think that the appointment of the 40 469 * 428 THE LAW OF RAILWAYS. [§ 183. paid by a connecting road, as a switchman, at the junction of two railways.^ plaintifi' in this case did not require a seal. I cannot, howeverj distinguish this from Lamprell v. The Guardians of the Billericay Union, 3 Exch. 283, and Dig- gle V. The London and Blaekwall Railway Company, 5 Exch. 442; and if the judgment of the court depended upon me,' I might defer to them, at the same time wishing the other principle to prevail. I cannot disguise from myself that we are deciding against the cases in the Court of Exchequer, and the rule which that court adopted. But I agree with what my brothers have said ; and I will add, that thdse cases created considerable surprise at the time." And in a still more recent case, Eeuter v. The Electric Telegraph Co. 37 Eng. L. & Eq. K. 189, (May, 1856,) in the Court of Queen's Bench, the defendants had made a contract, under their corporate seal, with the plaintiff, to transmit all his messages, and all he could collect, for a commission not exceeding 500Z., or less than 300Z. per annum, and while this contract was in existence, the chairman of the company entered into a parol agreement, with the plaintiff, to pay him at the increased rate of 501. per cent, in consideration of the plaintiff's further ser- vices in collecting public intelligence and sending it by the company's telegraph. These additional services were found to be beneficial to the company, and this agreement was entered upon the minutes of the company, and the plaintiff had received 300Z. for services in pursuance of it. The deed of settlement provided, that all contracts, where the consideration exceeds 501. should be signed by three directors. It was held, that the paroj contract having been acted upon, and ratified by the company, was binding upon them. De Grave v. The Mayor of Monmouth, is a case of ratification, 4 C. & P. 111. And in Bill v. The Darenth Valley Railway, 37 Eng. L. & Eq. R. 539, the Court of Exchequer held, that one who had served the company, as secretary, might recover compensation for his services, although the remuneration to be paid him had not been fixed, at a general meeting of the company, as required by the English statute. That was held to determine the duty of the directors towards the company, and not to limit the liability of the company to third par- ties, which is the view taken of the subject here. Noyes v. Rut. & Burling. Rail- way, 27 Vt. R. 110-113 ; ante, § 136, n. 5. But it has been hefd that if a corporation contraet through an agent, who attaches a seal to his execution of the contract on their behalf, it thereby becomes 2 McElroy v. Nashua & Lowell Railway, 4 Cush. 400. Shaw, Ch. J-, here says : " The switch in question, in the careless and negligent management of which the damage occurred, was a part of defendants' road, over which they must necessarily carry all their passengers, and although provided for, and attended, by a servant of the Concord company, at their expense, yet it was still a part of the Nashua & Lowell Railroad, and it was within the scope of their duty, to see that the switch was rightly constructed, and attended, and managed, before they were justified in carrying passengers over it." 470 § 183.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. ' 429-430 * 2. But it was held, that a passenger, who suffered an injury, in attempting to get upon the cars of one company, while using the road of another company, by contract with such company, through a defect in the construction of the road of the latter company, could not maintain an action against them, there being no privity of * contract, between the plaintiff and such company ; the remedy being, in such case, against the company, who were carrying the plaintiff, as a passenger.^ the deed of the company, although the seal was not their common seal, and an action of assumpsit cannot be maintained upon it. Porter v. Androscoggin & Kennebec Railway, 37 Maine, R. 349. But it must be executed in the name of the company. Sherman v. New York Central Railway, 22 Barb. 239. If in an action of assumpsit, upon a contract, purporting to be executed by a railway company, the company claim, that it was executed under their seal, and that therefore an action of assumpsit will not lie upon it, and prevail, upon this ground, they are estopped to deny, in a subsequent action of covenant, upon the same contract, that the seal attached to the contract is the seal of the company. Philadelphia, Wilmington & Baltimore Railway v. Howard, 13 Howard, R. 307. But the English courts do not hold the corporation absolutely bound by con- tracts under their common seal, thus reducing the question to one of authority, in fact, to enter into the contract. Shrewsbury & Birmingham Railway v. London & N. W. Railway; House of Lords, May, 1857, 29 Law Times, 186. In The London Docks Co. v. Sinnott, 30 ^aw Times, 164, (Nov. 1857,) the Court of King's Bench maintain the general rule that " corporations aggregate can only be bound by contracts under the seal of the corporation." Lord Camp- hell, Ch. J., in giving judgment, enumerates the following exceptions to the gen- eral rule, mercantile contracts, contracts with customers, and such as do not admit of being executed under seal, as bills of exchange. 3 Murch V. The "Concord Railway, 9 Foster, 9'; Winterbottom v. Wright, 10 M. & W. 109. But a railway company owe a public duty, independent of all privity of contract, to keep their public works in such a state of repair, and so watched and tended, as to insure the safety of all, who are lawfully upon them, either by their direct permission, or mediately through contract with other par- ties. Sawyer v. Rutland & Bur. Railway, 27 Vt. R. 377. This is here thus stated by Isham, J. . " That duty is imposed upon the defendants at common law, and it arises, not from any contract of the parties, but from the acceptance of their charter, and from the character of the services they have assumed to perform. The obligation to perform that duty is as coextensive with the lawful use of the road, and is required as a matter of public security and safety." So an apothe- cary, who sold a deadly poison labelled as a harmless medicine, was held directly liable to all persons injured thereby, in consequence of the false label, without fault on their part. The liability of the apothecary arises, not out of any con- tract, or privity, between him and the person injured, but out of the duty, which the law imposes upon all, to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug, with such label, may 471 * 430 THE LAW OF RAILWAYS. [§ 183. 3. And while the cases recognize the duty in such companies, as carry passengers, either upon their own road, or that of other companies, by permission, or lease, to make the approaches to such road safe, at all points, where freight or passengers are usually received, this duty does not exist, in regard to a passen- ger, who, out of special favor, is allowed to get upon the train, at an unusual place, for receiving passengers.^ 4. And one who, by favor, is allowed to travel upon a freight car, contrary to the usual custom of the company, is bound to be satisfied with such facilities and accommodations, as usually exist upon freight trains, as railway companies are not to be regarded, as common carriers of passengers, upon their freight trains, unless they make it an habitual business.® 5. It has been held that natural persons, who assume no pub- lic duties, are liable, if they suffer their property to remain in a dangerous condition ; as that the occupier of land is bound to fence off a hole, or area, upon it, which adjoins, or is so close to have passed through many intermediate sales, before it reaches the hands of the person injured, upon the same principle, that one, who suffers a dangerous ani- mal to go at large, is responsible for the consequences. Thomas v. Winchester, 2 Seld. R. 397. ^ In Tooney v. Loudon Br. & South C. Raihv. 30 Law Times, the plaintiff mis- took a door at a railway station, and passing through it, instead of another, fell down a flight of steps and was hurt. There was a light over the door which he intended to pass through, and a printed notice showing the purpose of it. There was also an inscription over the other, but no light. The defendant could not read. There was no evidence that the steps were more than ordinarily danger- ous. Held that the company were not liable. Nor is a railway company liable for an injury through the defect of a crane, which they had furnished to enable the consignee of heavy goods to unlade them from the cars, although such crane was known to them to be inadequate for the use, for which it was furnished, the party injured having been employed to assist the consignee, and thereby lost his life. The case is put upon the ground of want of privity, it being admitted that the company would, in such case, have been liable to the party to whom they furnished the crane, if he or his ordinary ser- vants had sustained injury in its prudent and lawful use. But the party here was called in for the occasion. Blakemore v. The Bristol and Exeter Railw. 31 Law Times, 12. It seems to us the principle of want of privity is here misapplied. This is a clear case of tort and not of contract, and the party injured, although called in for the occasion, wasjoro hac vice, a servant of the borrower, and it was the same as if the borrower himself had been injured. The furnishing the in- strument had express and direct reference to its use, by the consignee, and his servants, extraordinary, as well as ordinary. 472 §184.] AEKANGBMENTS BETWEEN DIFFERENT COMPANIES. *431 a highway, that it may be dangerous to passers-by, if left un- guarded.* 6. The same rule has often been extended, to turnpike roads',^ *and to plank roads, where the statute made no provision for the liability of the company.^ And the same rule has been extended generally to railway companies, in this country, without ques- tion, so far as persons are rightfully in the use of the same.'' It was held that the owner of a car, which was in the use of an- other party, upon a railway, by contract between him and the company, and suffered an injury, by reason of the bad "state of the railway, might maintain an action against the company.^ SECTION IV. EXTENT OF THE POWERS AND DUTIES OF LESSEES OF RAILWAYS. 1 . Statement of the points in an important r 2. Lessees of railways liable for their own English case. \ acts, and for many acts of lessors. § 184. 1. A very elaborate and important case, upon the rela- tive rights and duties of the lessors and lessees of railways, came before the Court of C. B., in June, 1851, and the Exchequer Chamber, in January, 1853. The importance and difficulty of the subject, and the few cases upon that subject which have yet arisen, will justify an extended notice of the points decided in the court of last resort.^ In 1836, a company (afterwards called 4 Barnes v. Ward, 2 Carr. & K. 661. 5 Randall v. Cheshire Turnpike Co. 6 N. H. R. 147; Townshend v. Susque- hannah T. Co. 6 Johns: R. 90. 6 Davis V. Lamoille County Plank Road, 27 Vt. R. 602. In the very recent case of Gibbs v. Trustees of the Liverpool Docks, 31 Law Times, 22, (Feb. 1858,) it was held, in the Exchequer Chamber, reversing the judgment of the Court of Exchequer, that it is the duty of those receiving tolls, whether as trustees or otherwise, not to allow a dock to remain open for public use, when they know that it is in such a state, that it cannot be used without danger, citing Parnaby v. Lancaster Canal Co. 11 Ad. & Ellis, 223, and dis- tinguishing the case from Metcalfe v. Hetherington, 11 Exch. R. 257. But it seems the party is never liable in such case, unless he knew, or might have known of the defect, but for his own neglect of duty. McGinity v. Mayor of New York, 5 Duer, 674. 7 Cumberland Valley Railway v. Hughs, 11 Penn. St. R. 141. 1 The West London Railway v. The London and N. W. Railway, 13 Eng. L. & Eq. B. 481. 40* 473 *432 THE LAW OF RAILWAYS. [§ 184. the West London Railway Company,) was incorporated by act of parliament, for the making of a railway from the Kensington Oanal, to join the London and Birmingham (afterwards called the London and Northwestern,) and the Great Western Rail- ways, at a place called Holsden Green ; and certain duties were by the act cast upon the company ; and, amongst other things, it was provided, that, if the railway should be abandoned, or should, after its completion, cease for the space of three years to be used as a railway, the land taken by the company for the purposes of the act should revert to the owners of the adjoining land. In February, 1837, the West London Railway Company en- tered into an agreement with the Great Western Railway Com- pany, under which the last-mentioned company bound themselves to * stop certain of their trains at a point where their railway intersected the West London Railway, for the purpose of trans- ferring passengers and goods from one railway to the other, and to stop their trains for the purpose of meeting corresponding trains of that company, in the manner particularly detailed in the deed. In 1840, another act, 3 & 4 Vict. c. 105, passed, giving further powers to the West London Railway Company ; the thirty- fourth section, reciting the agreement of February, 1837, regu- lated the mode of crossing until the plaintiffs' railway should be completed ; the thirty-sixth section saved the- plaintiffs' right under that agreement ; and the thirty-seventh section provided, that, if the plaintiffs' line was abandoned, or ceased to be use^ as a railway for three years after its completion, then, on pay- ment or tender to them by the Great Western Railway Company of the purchase-money of the piece of land where the railways crossed, the said land should vest in the Great Western Railway Company. By a subsequent act (8 & 9 Vict. c. 156), reciting, that " it had been found that the said West London Railway [which it ap- peared in evidence had been worked with passenger trains as well as with goods trains] could not be worked, as a separate and independent undertaking, with advantage to the proprietors thereof; but that the same might be advantageously worked and used in connection with the said London and Birmingham Rail- way and the said Great Western Railway, or either of them, by both or either of the companies to whom the said last-mentioned 474 § 184.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. "433 railways belonged ; that the West London Railway Company were therefore desirous of letting the said railway on lease to the London and Birmingham Railway Company ; and that the last- mentioned company were willing to accept such lease, subject to certain terms and conditions which had been mutually agreed on between the said two companies," — the West London Rail- way Company was authorized to lease to the London and Northwestern Railway Company their railway, and all their rights, powers, and privileges in relation thereto, — subject to the provisions of the act, and to the performance of the conditions to be mentioned in such lease. By the lease, which was afterwards executed in pursuance of this act, the London and TVorthwestern Railway Company cove- nanted, amongst other things, that they would " at their own expense, during the continuance of the lease, efBciently work and repair the railway and works thereby demised, and indem- nify the West London Railway Company against all liabilities, loss, charges, and expenses, claims, and demands, whether in- curred or * sustained in consequence of any want of repaii-, or in consequence of not working, or in any manner connected with the working of the same railway or works ; but the West Lon- don Railway Company shall have no control whatever over the working or management by the London and Birmingham (North- western) Railway Company of the West London Railway or works. It was held : — That, in order to perform their covenant to work efficiently, the defendants were not bound under all circumstances to work the line for passenger traffic ; but that, if as much gross proceeds could be obtained by efficiently working the railway for goods only, as for passengers only, or for both passengers and goods, the covenant was well performed, — Ptatt, B., Martin, B., not con- curring. That the agreement of February, 1837, with the Great West- ern Railway Company, was, by virtue of the provisions in the leasing act, and the lease itself, transferred to the defendants, the lessees ; and, consequently, that they had power to compel the Great Western Railway Company to stop trains on their line, pursuant to the provisions of that agreement. That, al- though the defendants had power to stop the Great Western trains, they were not bound to exercise it necessarily as a part of 475 *434 THE LAW OP RAILWAYS. [§ 184. the efficient working of the line demised ; and that they were not bound necessaTily to work the demised line, in connection with the trains, on the Great Western Railway. That there was no covenant in the lease to bind the defend- ants to work the demised line in connection with either or both their own or the Great Western Railway ; but that it would be for the jury to say whether or not they could practically work the line efficiently, without some connection with one or other of those railways. That, for the purpose of considering the liability of the defend- ants, they were not to be treated by the jury as if they were lessees of a separate and independent line, having no control over the other two railways ; but that the covenant to work the demised line efficiently, must be construed with a reference to the subject-matter, and the character of the defendants. That the obligation of the defendants under their covenarnt, was not limited, — as decided by the court below, to the indemni- fication of the plaintiffs, from the obligations cast upon them by their acts of incorporation. The court say in substance : — If this railway had been leased to a simple individual, or com- pany, without any connection with any other railway, and leased alone, the measure of efficient working, we cannot help thinking, * would be very different from what would be required from a company whose line was connected with it, who had the entire control over their own line, and were armed with a power of adding to the traffic of the railway, by the control possessed over another line, and whose capabilities and powers in this respect were reasons which disposed parliament to permit the lease to be made to them. It is difficult, indeed almost impossible, to define the precise nature and degree of efficient working, which such a company ought to apply, under this covenant ; not so difficult to say that it ought to be different and greater than would be required &om a company or an individual, who had nothing but the railway leased. They could only be required to supply convenient ac- commodation and attendance for the receipt, and sufficient means of carriage, of such goods and passengers, as might be offered at one terminus, or any intermediate station, to be carried to the other terminus, or some other intermediate station ; and this, however small the gross receipt might be. 476 § 184.] AERANGEMENTS BETWEEN DIFFERENT COMPANIES. * 435 But that would be too small a measure of efficient working, in the case of these defendants, who have the power of supply- ing more goods and passengers themselves by facilitating the transit of both from Holsden to the Kensington terminus, or Great Western station, or by increased facilities for receiving them at the Kensington terminus, by arrangements within their power, without any serious injury to their own concern. They are certainly not bound to make a sacrifice of their own concerns, for the purpose of efficiently working this line, so as to produce the greatest profit to the plaintiffs and themselves. The covenant must have a reasonable construction in this respect. But they are, we think, bound to do more than a lessee of merely the railway in question would do, unconnected with any other. 2. It seems to be regarded as settled, that the persons, or cor- poration, who come into the use of a railway company's powers and privileges, are liable for their own acts, while continuing such use, and also for the continuance permissively of any wrong which had been perpetrated by such company, upon land-owners or others, by means of permanent erections, which still remain in the use of their successors.^ Thus it has been held, that the lessees of a * railway are liable to a penalty under the statute, for not having a bell upon their engines, and not ringing it, as required by the statute.^ But the lessees of a railway are not liable for the acts of the servants of the lessors.* 2 In regard to the construction of contracts between different companies for the mutual use of each other's line, or the line of one road by the other, tolls, &c. see The Lancashire and Yorkshire Railway v. The East L. Railway, 8 Eng. L. & Eq. R. 564 ; s. c. reversed in Exchequer Ch., 25 Eng. L. & Eq. R. 465 ; and affirmed H. Lords, 36 Eng. L. & Eq. R. 34. It was held in a late Scotch case, on appeal in the House of Lords, that under an act of parliament requiring one company to accept a lease of and operate the other's road, so soon as it was in readiness, the lessees were bound to accept any reasonable portion of the road so soon as completed, it being such a portion as might be worked with advantage. Edinburgh & G. Railway v. Stirling & D. Railway, 22 Law T. 26 ; Brown v. The Cayuga & Susquehanna Railway, 2 Kernan, 486. 3 Linfield v. Old Colony Railway, 10 Cush. 562. * Walford on Railways, 184, citing two cases not reported. . 477 *436 THE LAW OF BAILWAYS. [§ 185-^186. SECTION V. CONTRACTS BETWEEN ^DIFFERENT COMPANIES REGULATING THE TRAFFIC. § 185. It seems in general to have been considered, that con- tracts between different connecting companies, with a bond fide view to regulate traffic, in a reasonable and just manner, were legal and binding.^ But when it is considered, that these com- panies have to a very great extent a monopoly of the traffic, and travel, of the country, the power to regulate fares, and freight, by arrangement between the different companies, is certainly one very susceptible of abuse. But there is ordinarily very, little danger, that they will willingly incur the serious reprobation of public opinion. And it has sometimes been doubted whether contracts, whereby one railway company seeks to assume the entire business of other companies, affording them a guaranty in regard to stock and profits, or either, could Ije regarded, as com- ing within the fair * interpretation of the English general stat- utes, allowing one company to contract for running upon the track of other companies, for toUs, and so could be held valid, by the courts of that country, either in law or equity.^ But some of the later cases seem to sustain such contracts.^ SECTION VI. WHAT IS REQUISITE TO ObNSTITUTB A PERPETUAL CONTRACT, BETWEEN DIFFERENT RAILWAY COMPANIES. § 186. Where in the charter of a railway company, a right is 1 Shrewsbury & Birm. Railway v. London & N. W. Railway, 9 Eng. L. & Eq. R. 394. Lord Campbell says here, That if the object of the contract were to create a monopoly, and to deprive the public of all benefit of competition, it might be illegal, but an agreement, that one company shall not interfere, or com- pete, with the other, is no more illegal, than a contract, by which one tradesman, or mechanic, agrees not to continue his business, in a particular place. Same case in chancery, before Lord Cottenham, 2 Mac. & Gordon, 324, where a similar view is taken of the legality of the contract. Lord Langdale, M. R., in Colman t). The Eastern Counties Railway, 4 Railw. C. 513. 2 Simpson v. Denison, 13 Eng. L. & Eq. R. 359. 3 Ante, § 181. 478 § 187.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. * 437 reserved to the legislature, to allow other railways to coryiect with the former, upon such terms, as shall be reasonable, com- plying with the established regulations of such company upon the subject, and in pursuance of such reservation a junction is made by a second railway company with the first, which, in faith of such connection, proceeds to make expensive, and permanent arrangements for the accommodation of the enlarged business thus brought upon its track, it was held, that this imposed no obligation upon the second company to continue this connection permanently. And also that the second company might law- fully obtain an extension of their own road, so as to do their own business, without continuing the connection.^ SECTION VII. CONTRACTS BY RAILWAYS ULTRA VIRES, AND ILLEGAL. 1 . Contracts to make erections not authorized by their charier. 2. Contracts to indemnijy other companies against expense. 3. Contracts to divide projits. § 187. 1. It has been considered, that a contract, by a railway company, with the corporation of a city, by which the company bind themselves to erect a bridge, and other accessory works, across a river, at a point where, by their charter, they are not authorized * to pass, and to do this by a definite time, and in default, to pay one thousand pounds, as liquidated damages, such works being, without an act of parliament, a nuisance, is an illegal contract, and equally so notwithstanding a stipulation, that the company shall in the mean time exert themselves, to obtain an act, authorizing the erections.^ 2. And where the chairman of the Southeastern Railway Company promised the managing committee of a proposed rail- way company, that, in consideration of their not abandoning their project, but pursuing it in parliament, the Southeastern Railway Company would, in case of their biU being rejected, insure the company, of which they were the managing commit- tee, against all loss, and would pay all expenses incurred by 1 Bo3ton & Lowell Railway v. The Boston & Maine Railway, 5 Cush. 375. 1 The Mayor of Norwich v. The Norfolk Railway, 30 Eng. L. & Eq. R. 120. 479 *438 THE LAW OF KAILWAYS. [§188. thepi, in endeavoring to obtain the act ; and the Southeastern Railway Company were authorized, by their acts, to apply their funds, in certain ways, not including this : it was held,^ that the agreement was void, as it was an agreement made by contract- ing parties (who must be presumed to know the powers of the defendants' company, by their acts of parliament, which are pub- lic acts) that the company should do an act, which was illegal, contrary to public policy, and the provisions of the statutes.^ 3. And a contract by which one railway agrees to give up to another railway a part of its profits in consideration of securing a portion of the profits of the other company, is illegal, and ultra vires.^ SECTION VIII. COMPANIES EXONERATED PROM OONTKACTS, BY ACT OV THE LEGISLATURE. § 188. It seems to be conceded, that a railway company may plead a subsequent ^t of the legislature, in bar of the perform- ance * of their covenant, or contract. But it wiU afford no bar, unless the act either expressly, or by clear implication, renders the duty of the contract unlawful, or comes in conflict with it.^ 2 McGregor v. The Official Manager of the Deal & Dover Railway, 16 Eng. L. & Eq. R. 180, in Exchequer Chamber. See also East Anglian Railways Co. V. Eastern Counties Railway, 7 Eng. L. & Eq. R. 505, where the same question, in effect, is determined. Post, Appendix A, § 16. 3 Ante, §56, n. 3. 4 Shrewsbury & Birmingham Railway v. London & Northwestern Railway, House of Lords, May, 1857 ; 29 Law Times, 186. 1 Wynn v. The Shropshire Union Railway & Canal, 5 Exch. R. 420 ; Stevens V. South Devon Railway, 12 Eng. L. & Eq. R. 229. But where one was induced to give lands to a railway company, or subscribe for stock, and the essential in- ducement to make the contract was, that the company should construct their road within some definite time, the extension of time for the construction of the road, by act of the legislature, will not exonerate the company from their obli- gation to such person. Henderson v. Railway Company, 17 Texas R. 560. 480 § 189.] ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. -439 SECTION IX. WIDTH OF GAUGE. .JUNCTION WITH OTHER ROADS. 1 . Where the act requires broad gauge, does not prohibit mixed gauge, 2. Permission to unite with other road, signi- fies a road de facto. 3. Equity will enjoin company against chang- ing gauge sometimes. Contract to make gauge of the companies the same, although contrary to law of state, at its date, may be legalized hy statute. § 189. 1. Where the company's special act required them to lay down a railway of such gauge and construction, as to be worked in connection with another company named, (the broad gauge,) a court of equity declined to interfere, by injunction, when the company were laying down part of the line, with double tracks, of the mixed gauge, there being no prohibition in the act against such a construction, the broad gauge being all which was required by the act.^ 2. Where the act of incorporation gave the company the right to construct a road, in a particular line, and also required them to purchase a former railway, along the same route, and gave them the right to connect " their road wfth any road legally authorized to come within the limits of the city of Erie," it was held, that this right extended equally to the road purchased, or built, by them, and that they had the right to connect, with any other railway^ in the actual use of another company in Brie, without inquiry, whether such company were in the legal use of their franchises, at the time, or not. That is a question, which cannot be inquired into, in this collateral manner.^ 3. Where two railway companies agree to operate their roads in connection, between certain points, if one of the companies * changes its gauge, so as to break up the connection contem- plated, an injunction will be granted to enforce the contract.^ 1 Great Western Railway v. Oxford, Worcester, & Wolverhampton Railway, 10 Eng. L. & Eq. R. 297. 2 Cleveland, Painsville, & Ashtabula Railway v. The City of Erie, 27 Penn. St. R. 380. 3 Columbus, Piqua & Ind. Railway v. Ind. & Belief. Railway, 5 McLean's R. C. C. 450. 41 481 '440 THE LAW OF RAILWAYS. [§ 190. 4. A contract entered into by railway companies to make the gauge of both the companies the same, is not illegal, although this be contrary to the law of one of the states, if the contract appear to have been made with reference to an alteration of the powers of the company, in that respect, and that such alteration was procured, before any part of the track was laid.^ * CHAPTER XXV. MANDAMUS. SECTION I. GENERAL RULES OP LAW GOVERNING THIS REMEDY. 1. Regarded as a supplementary remedy. 2. Mode of procedure. (1.) Matter of dis- cretion, (i.) Alternative writ. 3. Proceedings in most of the American courts. 4. English courts do not allow application to be amended. 5. Becent English statute has essentially sim- plified proceedings. 6. Mode of trying the truth of the return. 7. Costs rest in the discretion of court. 8. Mode of service. 9. By late English statutes, mandamus effects specific performance. § 190. 1. The office of the writ of mandamus is very exten- sive. It is the supplementary remedy, where all others fail. Lord Mansfield says,^ "It was introduced to prevent disorder, from a failure of justice and defect of police. Therefore it ought to be used, upon all occasions, where the law has established no specific remedy, and where in justice and good government there ought to be one." " If there be a right and no other specific remedy this should not be denied." The general rules applicable to the use, and the mode of obtaining this writ, are sufficiently discussed, in the digests, abridgments, and elementary works, under this title.^ 1 Kex V. Barker, 3 Burr. R. 1265. See Woodstock v. Gallup, 28 Vt. R. 587. The same principles are declared by Lord Ellenborough, in Rex v. Archbishop of C. 8 East, 219 ; 6 Ad. & Ellis, 321. 2 12 Petersdorff, Ab. 438; 6 Bac. Ab. 309, 418, tit. Mandamus; 3 Black. 482 § 190.J MANDAMUS. *441 2. The mode of proceeding, in obtaining the writ, is controlled very much by statute, in England, at the present time, and in most *of the American states. There are some few points, which are of general application. (1.) The power of granting the original prerogative writ of mandamus, in England, was confined to the Court of King's Bench,^ and in most of the American states, it is given, by stat- ute, to the highest court of law of general jurisdiction.^ This prerogative writ seems anciently to have been issued to inferior jurisdictions, by the Court of Chancery, in England, but not to the King's Bench.^ This writ is not demandable, as of right, but is awarded, in the discretion of the court.* (2.) The form of application is either, by motion in court, and the production of affidavits, in support of the ground of the mo- tion, in which case, if the motion prevails, a rule to show cause why the writ should not issue, or on alternative mandamus is- sues, upon the ex parte hearing, and the definitive hearing is had upon the return of the rule, or the return to the alternative writ. 3. The more common practice in the American courts, (which often hold but one or two short sessions annually, in a county, and where, by consequence, such formal proceedings would be attended with embarrassing delays,) is by formal petition, alleg- ing in detail, the grounds of the application, which is served upon the opposite party, and all parties supposed to have an interest in the questions involved, a sufficient time, before the term, to give an opportunity, for taking the testimony, upon no- tice ; and upon the return of the petition, the case is heard, upon its general merits ; and in either form, if the application prevails, a peremptory mandamus issues, the only proper return to which Comm. 110, 264; 1 Kent's Comm. 322; Curtis's Digest, 333. And that the party may have some remedy in equity will not preclude this remedy. But see infra. Nor that an indictment will he. Pes/, § 199. And it is no bar to this remedy that the party might by statute build the work, at the expense of the other party, by order of a justice. Reg. v. The Norwich & B. Railway, 4 Rail- way C. 112. 3 The Rioters' Case, 1 Vernon R. 175 ; Ang. & Ames on Corporations, § 697. But see R. v. Severn & Wye Railway, 2 B. & Aid. 646 ; R. v. Commissioners of Dean Inclosure, 2 M. & S. 80 ; R. u. Jeyes, 3 Ad. & El. 416. ■1 Rex I). Bishop of London, 1 T. R 331, 334 ; Rex v. Bishop of Chester, id. 396, 404 ; id. 425 ; 2 T. R. 336. 483 * 441 THE LAW OF RAILWAYS. [§ 190. is a certificate of compliance with its requisitions, without further excuse or delay .^ 5 Hodges on Railways, 640, 641, 642, 643, 644. It is first indispensable to demand of the party, against whom the application is to be made, to perform the duty, and the party must, it would seem, be made aware of the purpose of the demand. The King v. Wilts & Berks Canal Navigation, 3 Ad. & Ellis, 477; The King V. Brecknock & Abergavenny Canal Navigation, 3 Ad. & Ellis, 217. The refusal must be of the thing demanded, and not of the right merely. The King V. Northleach & Witney Roads, 5 Barn. & Ad. 978. The refusal must be direct and unqualified, but may be made as effectual, by silence, as by words, or acts, but the party should understand, that he is expected to perform the required duty, upon pain of the legal redress being resorted to, without further delay. The Queen v. Norwich & Brandon Railway, 4 Railw. C. 112; The Queen v. Bristol & Exeter Railway, 4 Q. B. 162. But this should be taken, as a prelimi- nary question, according to the English practice. Queen v. Eastern Counties Railway, 10 Ad. & Ellis, 531. Conditions precedent must be shown to have been performed. But the mercf requisition of an act of parliament that parties claiming damages, by reason of a railway company's works, shall enter into a bond to prosecute their complaint and pay their proportion of the costs, before the company should be obliged to issue their warrant to summon a jury, and if not so done, the company might give notice, requiring the same to be done, before commencing the inquiry, was held not to be a condition precedent, unless required by the company. The Queen v. The North Union Railway; 1 Railw. C. 729. And where an umpire failed to make an award, it was held the company might be compelled, by mandamus, to issue a warrant for the sheriff" to assess the com- pensation, and no formal demand was necessary. Hodges on Railways, 642, and note ; Soutrh Yorkshire & Goole Railway, iti re 18 Law Jour. (Q. B.) 53. A re- turn stating an excuse for non-compliance with a peremptory writ of mandamus, is not admissible. Regina v. Ledgard et als. Mayor, &c. of Poole, 1 Q. B. R. 616. Application by the prosecutor for leave to withdraw his plea and argue the case on the return refused. R. v. Mayor of York, 3 Q. B. R. 550 ; Strong, Peti- tioner, &c. 20 Pick. R. 484. It is the practice, for different persons, in the same or similar situation, to unite in the same application for a mandamus, and it 5s said but one writ can issue in such a case. Rex v. Montacute, 1 Wm. Black. 60 ; Rex v. Kingston, 1 Strange, 578, (n. 1) ; Scott v. Morgan, 8 Dowl. P. C. 328. But it seems to be considered that where the rights are distinct and wholly independent, one writ will not be awarded, but several, and therefore the application should be several. Reg. v. Chester, 5 Mod. 11 ; The case of Andover, 2 Salk. 433 ; Smith v. Erb, 4 Gill, (Md.) R. 437 ; State v. Chester & Evesham, 5 Halst. 292. But several connected matters, which are not repugnant, may be included, by way of defence in the return. Reg. v. Norwich, 2 Salk. 436 ; Wright v. Fawcett, 4 Burrow, R. 2041 ; Rex v. Churchwardens of Taunton, 1 Cowp. 413. Upon a mandamus to restore a corporate officer to his functions, the return should specify the grounds of the amotion. Commonwealth v. The Guardians 484 § 190.] MANDAMUS. * 442-443 ' 4. The general rule of the English cotirts seems to be, that if the first application is denied, on account of defects in the affi- davits, not to permit a second application to be made ; and the rule extends to other writs, resting in the discretion of the court.^ * 5. But the late Common-law Procedure Acts, in England, 1852, 1854, apply to this class of writs, and have essentially sim- plified the proceedings, and rendered them more conformable to reason and justice, than in some of the American courts even, the rule for the issuing of the alternative wi-it being now, in all cases, made absolute, in the first instance, and the whole hear- ing had, upon the return, which in our practice is still further simplified, by admitting the party to make answer to the peti- tion, alleging the grounds of his refusal, which are tried at once.'^ of the Poor of Philadelphia, 6 Serg. & Kawle, 469, unless the officer were remov- able, upon the mere motion of the corporation. Rex v. Guardians of Thame, 1 Strange, 115. 6 Queen v. Manchester & Leeds Railway, 8 Ad. & Ell. 413. And the same rule obtains where the first writ is denied, because no sufficient demand had been made, and a subsequent demand is made. Ex parte Thompson, 6 Q. B. 721. But it is apprehended no such rule of practice could be enforced in this country, and very few, we think, would regard it as desirable. It seems to be relaxing in England, where the alteration of the affidavits is mere form. Regina v. The G. W. Railway, 5 Q. B. R. 597, 601 ; Regina v. The East Lancashire Railway, 9 Q. B. R. 980. And in Reg. u. Derbyshire, S. & W. Railway, 26 Eng. L. & Eq. R. 101, the writ was amended, as to the name of the company. Reg. w. Eastern Counties Railway, 2 Railw. C. 736, amendment allowed. Regina u. Justices of Warwickshire, 5 Dowl. 382 ; Reg. v. Jones, 8 Dowl. 307 ; Shaw v. Perkins, 1 Dowl. (n. s.) 306 ; Reg. v. Pickles, 3 Q. B. R. 599, n. 7 Walter v. Belding, 24 Vt. R. 658 ; Rogers, ex parte, 7 Cowen, R. 526. In the American states the statute of 9 Anne, allowing the prosecutor to traverse the return to the writ, or the answer to the petition, and for the court to deter- mine the truth, either upon affidavit, or by the verdict of a jury, in their discre- tion, has been pretty extensively adopted, either in practice, or by statute. The People V. Beebe, 1 Barb. R. -Sup. Ct. 379 ; The People v. The Commissioners of Hudson, 6 Wend. 559. Where the case is fully heard upon the petition, or rule to show cause, and there is no dispute, in regard to the facts, the court will not delay, for the issuing of the alternative writ and the return thereto, but will in the first instance issue the peremptory mandamus. Ex parte Jennings, 6 Cow. R. 518 ; The People v. Throop, 12 Wend. 183. The rule for the peremptory mandamus is sometimes, in the first instance, made nisi, to allow the respondents to consult, if they will com- ply with the requirements of the judgment. Walter v. Belding, 24 Vt. R. 658. Or sometimes this is done to allow the parties to arrange the matter, or the court to consider the case. Rex v. Tappenden, 3 East, 186. 41 * 485 "444 THE LAW ftp RAILWAYS. [§ 190. 6. If falsehood is alleged in the return to the alternative man- damus, it was the practice at common law, to drive the party to his action for a false return. But by statute in England, and generally, by practice, in this country, the question is tried, in the court, issuing * the writ, and the remedy there applied, dam- ages and costs being given, in the discretion of the court, and execution enforced. 7. Costs in all the proceedings for mandamus rest in the dis- cretion of the court, unless controlled by statute. By the Eng- lish practice it is common to award costs, where the application is denied, but not always where it prevails.^ The more general, and the more« equitable rule, in regard to costs, in proceedings, where the court have a discretion, in that respect, is to allow costs to the prevailing party, unless there is some special reason for denying them.^ The court have such control over their own judgments, that if a peremptory- writ of mandamus be unfairly obtained, it will be set aside upon motion. The People V. Everett, 1 Caines's R. 8. Courts enforce compliance with the peremptory writ, by attachment, as also a return to the alternative writ, without requiring the issue of an alias and pluries, as in the early English practice. The cases are- not altogether agreed, whether defects in the writ are cured by admissions in the return, but upon general prin- ciples of pleading it would seem they are. The King v. Coopers of Newcastle- upon-Tyne, 7 T. R. 548. But see Reg. v. Hopkins, 1 Q. B. R. 161. But where an alternative mandamus is issued, and the defendants make their return, and the relators, instead of demurring, take issue upon the material allegations in the return, they thereby admit that, upon its face, the return is a sufficient an- swer to the case made, by the alternative writ. And if no material fact is dis- proved upon the trial, the defendants will be entitled to a verdict in their favor. The People ex rel. Kipp v. Finger, 24 Barb. R. 341. 8 Reg. V. Mayor of Bridgenorth, 10 Ad. & Ell. 66 ; Reg. v. The Eastern Coun- ties Railway, 2 Q. B. R. 578, 579, and cases cited by counsel. Reg. v. East An- glian Railway, 22 Eng. L. & Eq. R. 274. 1 Wm. 4, c. 21, § 6, makes costs dis- cretionary with the courts, in England. Regina.j). St. Saviour, 7 Ad. & Ell. 925. 9 Reg. V. Thames & Isis Commissioners, 8 Ad. & Ell. 901, 905 ; 5 Ad. & Ell. 804 ; Reg. v. Fall, 1 Q. B. 636 ; Reg. v. Justices of Middlesex, 6 Eng. L. & Eq. R. 267, unless strong reasons for denying costs exist; 1 Q. B. R. 751. Where the prosecutor omitted to proceed with a mandamus, after a return had been made, the Court of Queen's Bench compelled him to elect either to proceed, or pay the costs. Reg. v. Mayor of Dartmouth, 2 Dowl. (n. 8.) 980. If the quo warranto, mandamus, or other like writ, is procured, by the real party in interest, who is able to pay costs, to be prosecuted, by some one, not able to pay costs, the Court of Queen's Bench will grant a rule, requiring the real party to pay costs. Reg. V. Greene, 4 Q. B. R. 646. See also a general rule, adopted immediately 486 § 190.] MANDAMUS. * 445 8. Service of such process, and indeed of all process, by sum- mons, in England, is by delivering the original, where there is but one person summoned, and where there are more than one, by showing the original, and delivering a copy, to each defendant, but * one, and the original left with such one. But service by copy of a writ of mandamus was held sufficient.^" 9. By the latest English statutes upon the subject of manda- mus,ii any party requiring any order, in the nature of specific performance, may commence his action, in any of the superior courts of common law in Westminster Hall, except in replevin and ejectment, and may indorse upon the writ and copy to be served, that the plaintiff" intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand, which may now be enforced in such action, or separately, a writ of mandamus, commanding the defendant to fulfil any duty, in the fulfilment of which the plain- tiff is personally interested. And if a mandamus is awarded it may issue peremptorily in the first instance, in aid of the execu- tion, for damages and costs. The form of the writ is very brief, and compliance with its requisitions is to be enforced by attach- ment. The prerogative writ is still retained, but its use, and also, that of decrees for specific performance in equity, seem to be pretty effectually superseded by these provisions. after the decision of the last case, Easter Term, 1843, requiring a formal rule, for payment of costs in mandamus, to be drawn up immediately on reading all the affidavits on both sides, 4 Q. B. R. 653. The rule for costs is decided upon the reading only of the affidavits, with reference to which the rule is drawn up. Reg. V. St. Peter's College, 1 Q. B. R. 314, overruling Rex v. Kirke, 5 B. & Ad. 1089. Counsel are, in the English practice, required to pay costs occasioned by their delay. Reg. v. Mayor of Cambridge, 4 Q. B. R. 801. But where the judge makes a mistake, the parties, who come to defend his ruling, which they are bound to suppose correct, do not pay costs. Reg. v. London & Blackwall Railway, 3 Railw. C. 409, and note. The party who institutes proceeding^ for mandamus, which he is compelled to abandon, by personal misfortune, as being pauperized by the loss of his trade, must still pay costs, as the court could only conclude he had no grounds to sup- port his petition. Reg. v. London & Blackwall Railway, 4 Jurist, 859. See also Morse, Petitioner, 18 Pick. R. 443. 10 Reg. V. Birmingham & Oxford Railway Co. 16 Eng. L. & Eq. R. 94. 11 17 & 18 Vict. ch. 125. 487 * 445 THE LAW OF RAILWAYS. [§ 191. SECTION II. PABTICULAE CASES WHERE MANDAMUS LIES TO ENFORCE DUTY OF COK- PORATIONS. § 191. The opinion of Jervis, Ch. J., in the case of York & North Midland Railway v. Reg.,^ is perhaps the best commentary 1 18 Eng. L. & Eq. R. 199. " Upon these facts several points arise ; first, does the statute of 1849 cast on the plaintiffs in error a duty to make this railway? Secondly, if it does not, is there under the circumstances a contract between the plaintiffs in error and the land-owners, which can be enforced by mandamus ? Thirdly, and failing these propositions, does a work, which in its inception was permissive only, become obligatory by part performance V These questions will be found upon examinatiou to exhaust the subject, and to comprehend every view, in which the mandamus can be supported. In substance, do these acts of parliament render the company, if they do not make this railway, liable to an indictment, for a misdemeanor, and to actions by the party aggrieved ? For if they do not, a mandamus will not lie, and thus the question depends entirely upon the construction of the special act, and the statutes incorporated therewith. The act of 1849 may cast the duty upon the plaintiffs in error, in one of two ways ; it may do so by express words of obligation, or it may do so by words of permis- sion only, if the duty can be clearly collected from the general purview of the whole statute. The words of the 3d section of the act of 1849, 'it shall be law- ful for the said company to make the said railway,' are permissive only, and not imperative, and it is a safe rule of construction to give to the words used by the legislature their natural meaning, when absurdity or injustice does not follow from such a construction. Indeed, if there were any doubt upon this subject, other parts of the statute referred to in the argument clearly show that these words were intended to be permissive only. The distinction is well put by my brother Erie : ' The company are permitted at their option to take lands, turn roads, alter streams, and exercise other powers, and these matters are made lawful for them ; but they are commanded to make compensation for lands taken, to substi- tute roads for those they turn, and to perform other conditions relating to the exercise of their powers, and these matters are required of them.' It seems clear, therefore, that the duty is not cast upon the plaintiffs in error by the ex- press words of the statute of 1849 ; and, indeed, it was not so urged in the argu- ment; nor was it so put by Lord Campbell, in his judgment in the court below. But it does not follow, merely because the words of the 3d section are permissive only, that there is no duty cast upon the plaintiffs in error by the statute taken altogether, to make this railway. This point was not relied upon in this case in the court below, but it was made the distinct ground of a decision in another case in that court, (The Queen v. The Lancashire & Yorkshire Railway Co.) and was much pressed in the argument before" us in support of this judgment. " It becomes necessary, therefore, to examine the statute in its general provis- 488 § 191.] MANDAMUS. * 445 we could give upon the present state of the Eaglish law upon this subject. ions, and to consider the grounds on which the Court of Queen's Bench proceeds in the case of The Queen v. The Lancashire & Yorkshire Railway Co. 1 E. & B. 228 ; 16 Eng. L. & Eq. R. 328. We agree with Lord Campbell, that the por- tion of the line between Market Weighton and Cherry Burton, to which the man- damus applies, is not to be considered as a separate railway, or even as a separate bralnch of a railway, but it is to be treated as if in its present direction it had been included in the act of 1846. The acts, then, taken together, in substance, recite that it will be an advantage to the public if a railway is made from York to Beverly, through Market Weighton and Cherry Burton, according to certain plans and sections deposited, as required by the practice of parliament, and re- ferred to in the statute, and that the plaintiffs in error are willing to make that railway. On this basis the whole provisions are founded. It has been proved that the work will be advantageous to the public ; it is assumed it will be profit- able to the company, and that, therefore, they will willingly undertake it. Ac- cordingly, the company are empowered to make this line. If they do make it, they may take land ; but if they do take land, they must make compensation. If necessary, they may turn roads, or divert streams; but if they do, they must make new roads and new channels for the streams they alter. Similar provisions pervade the whole statute, and, throughout, the command waits upon the author- ity, and the distinction between 'may' and 'must' is clearly defined. But as it is manifest that such general powers must stop competition, and may, to a certain extent, be injurious to land-owners on the line, the compulsory power to take land is limited to three years, and the time for making the railway to five, after which, the powers granted to the company cease, except as to so much of the line as shall have been completed, and the land, if taken by the company, reverts, on certain terms, to the original proprietors. An argument might have been founded on the terms in which the latter provision is contained. By the 10th section of the act of 1849, it is enacted that the railway shall be completed within five years from the passing of this act. That section was not referred to in the argument for this purpose, but it might be said that these words were compulsory, and imposed a duty upon the company to make the line. The context of the section, however, when examined, shows that such is not the meaning of it. If not completed within five years, the powers of the act are to expire, except as to so much of such railway as shall have been completed. If the section were intended to be obligatory, it would not contain that exception which contemplates that the line may be made in part. It is inconsistent to suppose that the legisla- ture would say to the company in the same section, you may complete a part only, if you can, in five years, and then as to that part the powers of the act shall continue, but you must complete the entire line in that time. Upon the whole, therefore, we find no duty cast upon the company to make this railway in any part of this act of parliament On the contrary, the legislature seems to contem- plate the possibility of the railway being made in part, or being totally abandoned. In the latter case the powers expire in three or five years ; in the former, the statute remains in force as to so much of the railway as shall have been com- 489 * 446 THE LAW OE RAILWAYS. [§ 192. *SECTION III. MANDAMUS TO COMPEL COMPANY TO COMPLETE THEIR EOAD. 1. English courts have required this upon a 12. Bat these cases overruled. Not required general grant. I now, unless under peculiar circumstances. § 192. 1. The English courts, at one time, it would seem, re- garded a parliamentary grant to a railway company, as equiya- pleted within that time, and expires as to the residue. This provision is incon- sistent with the intention to compel the company to make the entire line, as the consideration for the powers granted by the act. " But it is said that a railway act is a contract on the part of the company to make the line, and that the public is a party to that contract, and will be ag- grieved if the contract may be repudiated by the company at any time before it is acted upon. Though commonly so spoken of, railway acts, in our opinion, are not contracts, and cannot be construed as such. They are what they purport to be, and no more. They give conditional powers, which, if acted upon, carry with them duties, but which, if not acted upon, are not, either in their nature or by express words, imperative on the companies to which they are granted. Courts of justice ought not to depart from the plain meaning of the words used in acts of parliament. When they do, they make, but do not construe, the laws. If it had been so intended, the statute should have required the companies to make •the line in express terms ; indeed, some railway acts are framed upon this prin- ciple ; and to say that there is no difference between words of requirement and words of authority, when found in such acts, is simply to affirm that the legisla- ture does not know the meaning of the commonest expressions. But if we were at liberty to speculate upon the intentions of the legislature when the words are clear, and to construe an act of parliament by our own notions of what ought to have been enacted upon the subject, — if, sitting in a court of justice, we could make laevs, much might be said in favor of the course which, in our opinion, is taken By the legislature on such subjects. Assuming that the line, if made, would be profitable to the public, that benefit may be delayed for five years, dur- ing which time competition is suspended. On the other hand, if the line would pay, it probably will be proceeded with, unless the company having the power is incompetent to the task. Individual land-owners may be benefited by the ex- penditure of capital in their neighborhood, without looking to the ultimate result; but it is not for the public interest that the work should be undertaken by an in- competent company, nor that it should be begun, if, when made, it would not be remunerative. By leaving the exercise of the powers to the option of the com- pany, the legislature adopts the safest check on abuse in either of those respects, namely, self-interest. It seems to us, therefore, that these statutes do not cast upon the plaintiffs in error the duty, either by express words or by implication; that we ought to adhere to the plain meaning of the words used by the legisla- ture, which are permissive only, and that there is no reason in policy or otherwise, why we should endeavor to pervert them from their natural meaning. 490 §192.] MANDAMUS. * 447 lent * to an agreement on their part, to build the road. To make this intelligible to the American reader, it is necessary to keep in " But it is said that the land-owners are in a better situation than the public at large, and that the privilege to take their own lands, is the consideration which binds the company to complete the railway. That during the currency of the three years, they are deprived of their full rights of ownership, and if not to be compensated by the construction of the railway, they would, in many cases, suffer a loss, because whilst the compulsory power of purchase subsists, they are prevented from alienating their lands or houses described in the books of refer- ence, and from applying them to any purposes inconsistent with the claim that may be made to them by the railway company. In truth they are not prevented from so doing at any time before the notice to take their land is given, if they act bona fide in the mean time ; the notice to take their lands being the inception of the contract between the land-owners and the company. But if this complaint was better founded, it does not follow because certain land-owners are subjected to temporary inconvenience for the performance of a public good, that, therefore, the company are bound to make the whole railway. If it were a contract be- tween the land-owners and the company, it would not be just, the one sihould be bound and the other free. But to assert that there is a contract between the land-owners and the company, is to beg the whole question ; for, on this part of the case, the question is, whether there is such a contract ? As a matter of fact, we know that in many cases no such actual contract exists. Some few proprie- tors may desire and promote the railway, but many others oppose it, either from disinclination to the project or with a view to make better terms. With the dis- sentients there is no contract, unless it be found in the statute, and to the statute therefore we must look to see what is the obligation that is cast upon the company, in respect of the land-owners upon the line. As in the former case, the words upon this subject are permissive only. The company may take land ; if they do, they must make full compensation. And in that state of things, if there be a bargain between the parties, what is the bargain ? The company say, in the lan- guage of the statute, that the bargain is, that they shall make full compensation for the land taken, and no more ; the prosecutors say, that "the consideration to be paid for the land is the full compensation mentioned in the act, and also the further consideration of the construction of the entire line of railway from York to Beverly. But if this is the price which the prosecutors are to have, each land- owner is entitled to the same value, a,nd yet by this mandamus the other propri- etors on the line from Market Weighton to Cherry Burton, who perhaps are hos- tile to the application, are constrained to sell their lands for an inadequate consid- eration, namely, the full compensation and a part only of the line of railway, to •which, by the hypothesis, they were entitled by the original bargain. If this were the true meaning of the statute, it would, indeed, be unjust, more so than the imposition of the temporary inconvenience to which it is said the land-owners may be subject, and to which we have already referred. But that that is not the true meaning, is clear from the words of the statute, which are permissive, and only impose the duty of making full compensation to each land-owner, as the op- tion of takincr the land of each is exercised ; and further, from the section to 491 '448 THE LAW OF EAILWAYS. [§192. mind, * the English parliamentary rules, in regard to passing acts of incorporation of such companies. The promoters are required which we have already referred, which contemplates the total abandonment of the line, or a part performance of it, and makes provision for the return of the land to the original proprietors in certain cases. Upon this part of the case the authority of Lord Eldon, in Blakemore v. The Glamorganshire Canal Company, 1 Myl. & K. 154, was much pressed upon the court. Speaking of contracts for private undertakings he says : ' When I look upon these acts of parliament I re- gard them all in the light of contracts made by the legislature on behalf of every person interested in any thing to be done under them, and I have no hesitation in asserting that, unless that principle be applied in construing statutes of this description, they become instruments of greater oppression than any thing in the whole system of administration under our constitution. Such acts of parliament have now become extremely numerous, and from their number and operation they so much affect individuals that I apprehend those who come for them to par- liament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do, and that they shall do nothing else ; that they shall do and forbear all that they are hereby required to do and forbear, as well with reference to the interest of the public as with regard to the interest of individuals' There is- nothing in that language to which it is necessary to make the least exception ; indeed it is nothing more than an illusti-ation of the obligatory nature of the duty imposed by acts of parliament, which do impose a duty with reference to other persons. In that case, the statute had secured to •Mr. Blakemore the surplus water, and had commanded the company to do cer- tain things that he might enjoy it. In discussing whether Mr. Blakemore's right ' under the statute was affected by his right before the statute, his lordship might well say he considered the statute the origin of Mr. Blakemore's right in the light of a contract, and the statute then under discussion containing express words of command, he might well add, that those who come for such acts of parliament do, in effect, undertake that they shall do and submit to whatever the legislature em- powers and compels them to do. As we understand them, the words used by Lord Eldon in no respect conflict with the view we take of this case ; but if they mean that words of permission only, when used in the class of cases under con- sideration, should receive a construction different from their ordinary meaning, because, if construed otherwise, they might work injustice, with great respect for his high authority, we dissent from that proposition. We agree with my brother Alderson, who, in Lee v. Milner, 2 Y. & Coll. 6U, said : ' These acts of parlia- ment have been called parliamentary bargains, made with each of the land- owners. Perhaps more correctly they ought to be treated as conditional powers given by parliament to take the lands of the different proprietors through whose estates the works are to proceed. Each land-owner, therefore, has the right to have the power strictly and literally carried into effect as regards his own land, and has the right also to require that no variations shall be made to his prejudice in the carrying into effect a bargain between the undertakers and any one else.' ' This,' he adds, ' I conceive to be the real view taken of the law by Lord Eldon, in the case of Blakemore v. The Glamorganshire Canal Company.' There re- 492 § 192.] MANDAMUS. . * 449 to prepare * plans and sections, and maps of their roads, with the line delineated thereon, so as to show its general course and di- mains but one further view of the case to be considered, and that we have partly disposed of in the observations we have already made ; but inasmuch as Lord Campbell proceeded on this ground only in the court below, although it was not much relied upon before us in the argument, we have, out of respect for his high authority, most carefully examined it, and are of opinion that the mandamus cannot be supported, on the ground that the railway company, having exercised some of their powers and made a part of their line are bound to make the whole railway authorized by their statutes. " It is unnecessary here to determine the abstract proposition that a work which, before it is begun, is permissive, is, after it is begun, obligatory. We de- sire not to be understood as assenting to the proposition of my brother Erie, that many cases may occur where the exercise of some compulsory powers may cre- ate a duty to be enforced by mandamus ; and, on the other hand, we do not say that such may not be the law; If a company empowered by act of parliament to build a bridge over the Thames, were to build one arch only, it would be well deserving consideration whether they could not be indicted for a nuisance in obstructing the river, or for the non-performance of duty in not completing the bridge. It is sufBcient to say that in this case there are no circumstances to raise such a duty, if such a duty can be created by the acts of plaintiff himself. The plaintiffs in error have made the principal portion of their line, and they have abandoned the residue for no corrupt motive, but because Beverly has already sufficient railway communication, and because the residue of the Hue passes through a country thinly populated, and if made, would not be remunerative. But it is said that the railway company are not in the situation of purchasers of land, with liberty to convert it to any purpose, or to allow it to be waste ; that they are allowed to purchase it only for a railway, and having acquired it under the compulsory power of the act, there must be an obligation upon the company to apply the land to that, and to no other purpose. Subject to the qualification in the act, this is undoubtedly true. Having acquired the lands of particular land-owners, the company could not retain them by merely laying rails on the lands so taken, and we agree it never was intended that the land-owners should be left with a high mound or a deep cutting running through his estate, and lead- ing neither to nor from any available terminus. The precaution against such a wasteful expenditure of capital may, perhaps, safely be left to the self-interest of the company, but if such work were to be done, it would not be a practicable railway, and after five years the powers of the act would expire, and the land revest in the original proprietor. It is true that he would sustain some incon- venience without the corresponding advantage of railway communication, but in the mean time he would have received full compensation in the market value of the land, and for all damage by severance or otherwise, and would receive back the land on more reasonable terms. To be a railway it must have available ter- mini. When the statutes passed, all persons supposed the termini would be York and Beverly ; and if the argument be well founded and the company are bound, if they take the land upon any portion of the railway, to complete the whole line, 42 493 * 450-461-452 , the law of railways. [§ 192. rection, * and to deposit copies of the same, with the clerks of the peace ; in the office of the Board of Trade ; the Private Bill Office ; in certain * cases, at the Board of Admiralty ; and with the parish clerk of each parish, through which the proposed line passes, before parliament * assembles, and the plans are usually referred to in the charter, as defining the course of such railway, and thus become binding upon the company, although not so it would seem to follow that one of the proprietary, by compelling the company to take his land on the line from Market Weighton to Cherry Burton, would thus entitle himself to a mandamus to compel them to make the line from Cherry Burton to Beverly, and, the acts having expired, to apply to parliament for a renewal of their powers for that purpose. But although the termini were origi- nally intended to be York and Beverly, it is plain that the legislature contem- plated the possibility of the line being abandoned or being only partially made, because in the one case the powers of the act were to cease, and in the other they were partially continued. An option, therefore, is given to some one. By the course taken, the Court of Queen's Bench has exercised that option, and said the line is to be made, not to Beverly, but to Cherry Burton. In our opinion that option is left to the company, and the company having bond Jide made an available railway over the land taken, the obligation to the land-owner has, in that respect, been fulfilled. The cases upon this subject are very few, and the absence of authority is very striking, when we remember how many acts have passed in pari materia, not only for railways, but also for bridges and turnpike roads. Notwithstanding the numerous occasions on which such proceedings might have been taken, and the manifest interest of land-owners to enforce their rights, no instance can be found of an indictment for disobeying such a statute, or of a mandamus for the purpose of enforcing it. If correctly reported. Lord Mansfield determined this point in The King v. The Proprietors of the Birming- ham Canal, 2 Wm. B. 708, for he says the act imports only an authority to the proprietors, not a command. They may desert or suspend the whole work, and, h fortiori, any part of it. On the other side, the language of Lord Eldon in Blakemore v. The Glamorganshire Canal Company, is referred to as an author- ity for this mandamus. In our opinion it does not bear that construction, although it appears that the Court of Queen's Bench took a different view of that author- ity in the case of The Queen v. The Eastern Counties Railway Company, 10 Ad. & Ell. 531, and was inclined to act upon it, and award a mandamus. The writ was subsequently withheld, in that case, on another ground, but Lord Denman seems to have been of opinion that on a fit occasion a mandamus ought to go. That and the recent cases in the Queen's Bench, now under discussion, are the only cases which bear upon the subject. We feel that Lord Penman and Lord Campbell are high authorities upon this or any other matter, and are both equally entitled to the respect of this court ; but we are bound to pronounce our own judgment, and, after the most careful consideration, are of opinion that the judg- ment ought to be for the plaintiffs in error. The result is, that the judgment of the court below must be reversed. 494 §192.] MANDAMUS.- , *453 regarded, unless so referred to.i Specific notice too is to be served upon each land proprietor, whose land is to be taken.i There is therefore some plausibility, in regarding the obtaining of a charter, under these circumstances, as a binding obligation, on the part of the company, that they will build the road. No act of incorporation of a railway is passed, in the British parlia- ment, until three fourths of the estimated outlay is subscribed. Accordingly, in some of the earlier cases, upon this subject, after considerable discussion and examination, it is laid down,^ that when a railway company have obtained an act of parliament, reciting that the proposed railway will be beneficial to the public, and that the company are willing to execute it, and giving them compulsory powers, upon landholders, for that purpose, and in pursuance of such powers the company have taken land, and made part of their line, they are bound, by law, to complete such line, not only to the extent, which they have taken lands, but to the furthest point. And this is so * held in some cases, although the statute enacts only, that it shall be lavvful for them to make the railway. 2. So also in another case,^ where the undertaking was not yet entered upon, it was held that the company under such cir- cumstances were bound to execute the work, from the time when such act receives the royal assent. And in another case,* where, by the return to the writ, it appeared, that the company had no ' Hodges on Railways, 18, and notes ; North British Railway Company r>. Tod, 4 Railway CaS. 449 ; Regina v. The Caledonian Railway Co. 3 Eng. L. & Eq. R. 285. 8 The Queen v. The York & North Midland Railway Co. 16 Eng. L. & Eq. R. 299. This case was decided by a divided court, Erie, J., dissenting, whose opin- ion ultimately prevailed, in the Exchequer Chamber. Lord Campbell, Ch. J., and the majority of the court, founded their opinion chiefly, upon the celebrated judgment of Lord Eldon, in Blakemore v. The Glamorganshire Canal Navigation, 1 Mylne & Keen, 154. See also Reg. v. Ambergate, &c. Railway Co. 23 Law Times, 246 ; Reg. v. Eastern Counties Railway, 1 Railw. C. 509. But the writ was held defective in this case, in not alleging that the company had abandoned or unreasonably delayed the work. Reg. v. Same, 2 Railw. C- 260. 3 Regina v. The Lancashire & Yorkshire Railway Co. 16 Eng. L. & Eq. R. 327. * Regina v. Great Western Railway Co. 16 Eng. L. & Eq. R. 341. The ex- treme to which this very questionable doctrine was pushed, in this case, seems to have proved, as is not uncommon, in such cases, the point of departure, for its entire overthrow and abandonment. 495 * 454 THE LAW OF RAILWAYS. [§ 193. sufficient funds to build the road, and that the period for exer- cising their compulsory powers, in obtaining lands, had expired, and that the building of the road had thus become impossible, it was held that a mandamus must nevertheless be awarded. Writs of peremptory mandamus, issued, in each of the foregoing cases. But the first, and last, of these three cases, came before the Exchequer Chamber, and were heard, at great length, before all the judges, and an elaborate opinion delivered by Jems, Ch. J., of the C. B., reversing the judgment of the Q.. B., chiefly on the ground, that there was no implied obligation, upon the company, either before or after entering upon the work, to com- plete it.^ ♦SECTION IV. IN WHAT CASES THIS IS THE PROPEK REMEDY. 1. Where the act is imperatwe upon the com- 6. Cannot le svbsiituted for c^nioxBxi, when pany to build road. i that is taken away. 2. Mandamus more proper remedy than in- j 7. Requiring costs to be allowed. junction. 8. Other instances of its application. 3. Commissioners of public works not liable to 9- Lies where the duty is clear, and no other this writ. . remedy. 4. Public duties of corporations may be so en- 10. Not awarded to control legal discretion 1 1 . Does not lie to try the legality of an eiec- 5. Facts tried by jury. Instances of this tion. remedy. § 193. 1. But although it must be regarded, as now defini- tively settled, that the writ will not lie, in any case, coming within the * categories laid down in the foregoing opinion of Jervis, Ch. J., yet where the act of the legislature is imperative upon the company to build their road, this duty will stiU be en- forced, by mandamus.^ 5 York and North Midland Railway Co. ti. Regina, 18 Eng. L. & Eq. R. 199 ; Great Western Railway Co. v. Same, id. 21 1- These decisions, rendered (in April, 1853,) one of which is given at length in the last section, seem to have been acquiescpd in, and they certainly conform to what has ever been regarded, as the law, upon that subject, in this country. 1 Hodges on Railways, 656, in note; Great Western Railway Company v. Reg. Excheq. Ch. 1853. 18 Eng. L. & Eq. R. 211. The land-owners are so far interested in the building of a railway as to be entitled to bring the petition, and different owners of land may join. Reg. v. York and North Midland Railway, . 496 * 193.] MANDAMUS. * 455 2. But it has been held that such public duty cannot be en- forced, by injunction, at the suit of the attorneyTgeneral.^ Cor- porations have been compelled to perform duties, imposed by statute, by writ of mand'amus for a very long time. A turn- pike company was compelled to fence its road, where it passed through the land of private persons, and it was held no ex- cuse that the company had made satisfaction for the damages, awarded to the land-owner, or that, having completed their road, they had no funds with which to build the fences.^ 3. But it has been held, that Commissioners of Woods and Forests, who gave notice, that they intended to take certain lands, in order to ascertain, if they could be obtained, at a cer- tain price, and finding, by the claim of the land-owners, that the land could not be obtained, so as to bring the amount to be ex- pended, within the legislative limit, and the funds, at the dis- posal of the commissioners, abandoned their notice, could not be compelled, by mandamus, to take the land, such commissioners acting in a public capacity, although the rule is otherwise as to private railway companies.* *4. Public duties of corporations have been enforced by man- damus, as repairing the channel and banks of a river, which, by their charter, they had been permitted to alter.^ Also to make 16 Eng. L. & Eq. R. 299. But it has been held, that a land-owner could not apply, for an injunction, to restrain a railway company, from applying for an act of the legislature repealing a former act, and to restrain them from paying back deposits. Hodges on Railways, 657, note; Anstruther v. East Fife Railway, 1 McQueen, 98. Nor can a laud-owner maintain a suit in equity against a com- pany for not completing their line, in pursuance of their act of incorporation. JHeathcote v. North Stafibrdshire Railway Company, 6 Railw. C. 358. The Lord Chancellor here held, reversing the opinion of the Vice-Chancellor, that in such case, a court of equity will leave the party to his legal i-ights. 2 Attorney-General v. Birmingham and Oxford Junction Railway, and two other Companies, 7 Eng. L. & Eq. R. 283. 3 Reg. V. Trustees Luton Roads, 1 Q. B. R. 860. Lord Denman, Ch. J., said, " The law orders these parties to perform the duty if they build the road." Pat- teson, J., said, " If they had not adequate funds they ought not to have made the road." * Reg. V. Commissioners of Woods and Forests, 15 Q. B. R. 761 ; post, App. B. §88. fi Reg. V. Bristol Dock Company, 1. Railw. C. 548, 2 Q. B. R. 64, 2 Railw. C. 599. A return that the law imposed no such duty, but that they had performed it, " as near as circumstances permitted," is insuflScient, as being a traverse of 42* 497 * 455 THE LAW OF RAILWAYS. [§ 193. alterations in the sewers of a city; and where, in :the act of parliament, this duty is defined, " to make such alterations and amendments in the sewers, as may be necessary in consequence of the floating of the harbor," it was held this was a proper form for the command of the writ.® Also to restore a highway, inter- sected by a railway, to its former width.^ 5. In the English practice questions of fact, arising on a man- damus, are tried by a jury.^ So a railway company may, by mandamus, be required to establish an uniform rate of toUs.^ And also to proceed in the appraisal of Ijmd damages, after giv- ing notice to treat.^" So the sherifl", or officer who holds the inquisition, may be compelled to proceed, where he has no legal excuse, as where such officer assumed to direct a verdict against the claim, on the ground the applicant could not recover.i^ the law, or an evasion of the writ. Reg. v. Caledonian Railway, 3 Eng. L. & Eq. R. 285. 6 The King v. The Bristol Dock Company, 6 Barn. & Cress. 181. 7 Reg. V. Birmingham and Gloucester Railway, 2 Railw. C. 694; 2 Q. B. R. 47; Reg. v. Manchester and L. Railway, 1 Railw. C. 523; 3 Q. B. R. 528; 2 Railw. C. 711. But in some cases it is requisite the duty should be strictly de- fined. Reg. V. The Eastern Counties Railway, 3 Railw. C. 22 ; 2 Q. B. 569. 8 Reg. V. London & Birmingham Railway, 1 Railw. C. 317; Reg. u. Manch. and Leeds Railway, 2 Railw.X!. 711 ; Reg. v. Newcastle-upon-Tyne, 1 East, 114. 9 Clarke v. L. & N. Union Canal, 6 Q. B.R. 898. But in this case judgment was given for defendant, by reason of the " insufEciency of the writ." 1" Post, App. B. § 88, 99, et seq. and cases there cited. II Walker v. The London and Blackwall Railway, 3 Q. B. R. 744. In Car- penter V. County Comra. of Bristol, 21 Pick. 258, which was where county com- missioners refused to assess damages sustained in consequence of constructing a railway, on the ground that the party applying did not own the land, and also refused to grant a warrant for a jury to revise their judgment, as required by R. S. eh. 39, § 56 : Held, that the party was entitled to a jury to revise, and that a mandamus would he to compel the commissioner,s to grant a warrant. The court say, " Were application made to county commissioners to estimate damages caused by the laying out of a railroad, turnpike, or highway, the duty required of them would be a judicial duty. If they refused or neglected to per- form it, this court would issue a mandamus commanding them to do it, that is, to exercise their judgment on the matter. But when they had performed this duty, it being within their discretion, no other tribunal would have a right to interfere with, or complain of, the manner in which they had performed it." So also in Chicago, Burlington, and Quincy Railway w. Wilson, 17 Illinois, 123, it was held, that upon appHcation to a judge, to appoint commissioners to condemn land, for the use of a railway, he is compellable to act, if a case is rhade under the statute. His duty is ministerial, and not judicial, and a mandamus was accord- ingly awarded. 498 § 193.] MANDAMUS. ' 456-457 *6. But where the statute in terms, takes away the remedy by certiorari, the court will not indirectly accomplish the same thing by mandamus.^^ 7. A mandamus was- awarded requiring the presiding officer to allow costs, in a case before him,^^ for assessing land damages, including witnesses, attendance by attorney at the inquest, con- ferences, and briefs, but not the expenses of surveyors, as such. 8. And where the commissioners refused ■ to assess /the value of land, taken for a railway, on the ground, that the prosecutor had ho title to the same, it was held, that he is entitled to have their judgment revised, by a jury, and a mandamus will lie, on his behalf, to compel the commissioners to grant a warrant for a jury.^* And a mandamus will issue, at the suit of supervisors of a town, to compel a railway to build a highway,'^ or bridge,^^ for public use. 9. No better general rule can be laid down upon this subject, than that where the charter of a corporation, or the general stat- ute, in force, and applicable to the subject, imposes a specific duty, either in terms, or by fair and reasonable construction and implication, and there is no other specific, or adequate remedy, the writ of mandamus will be awarded. But if the charter, or the general law of the state, affords any other specific and ade- quate remedy, it must be pursued." ^^ " So, too, it must be a complete and perfect legal right, or the 'court will not award the writ.-"^^ And the writ of mandamus is 12 The King v. The Justices of West Riding of Yorkshire, 1 Ad. & Ell. 563. 13 The King v. The Justices of the City of York, 1 Ad. & Ell. 828 ; Reg. v. Sheriff of Warwickshire, 2 Railw. C. 661. W Carpenter v. Bristol, 21 Pick. 258. See Smith v. Boston, 1 Gray, 72. 15 Whitmarsh Township v. Phil., Ger. & N. Railway Co. 8 Watts & Serg. 365. J6 Cambridge & Somerville v. Charlestown Branch Railway, 7 Met. 70. 17 Rex V. Nottingham Qld Waterworks, 6 Ad. & El. 355 ; Dundalk Western Railway v. Tapster, 1 Q. B. R. 667 ; Corregal v. London & Blackwall Railway, 3 Railw. C. 411 ; The People v. The Corporation of New York, 3 Johns. Cas. 79. It seems to be considered, that quo warranto will not lie to an eleemosynary corpo- ration, and therefore mandamus is the necessary remedy to correct abuses. 2 Kyd on Corporations, 337, n. a. In King v. Dr. Gower, 3 Salk. 230, it was held mandamus was not the proper remedy to try the right. Rex v. Bank of Eng- land, Douglas, R. 524 ; Shipley v. Mechanics Bank, 10 Johns. R. 484 ; The State c. Holiday, 3 Halst. R. 205; Asylum v. Phenix Bank, 4 Conn. R. 172. 18 Rex V. Archbishop of Canterbury, 8 East, 213 ; People v. Collins, 19 Wend. R. 56 ; 1 Wend. 318 ; Napier, ex parte, 12 Eng. L. & Eq. R. 451. 499 "457 THE LAW OF RAILWAYS.. [§ 193. never awarded to compel the officers, or visitors of a corporation, who have discretionary powers, to exercise such powers accord- ing to the requisitions of the writ, but to compel them to proceed and exercise them, according to their own judgment, in cases where they refuse to do so.^^ If the visitor or trustee be himself the party interested in the exercise of the function, it is said to form an exception.^" 11. But in a recent caee,^^ it is said to be an inflexible rule of law, that w'here a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office, can only be tried by pro- ceeding on a quo warranto information. A mandamus wiU not lie, unless the election can be shown to be merely colorable. 19 Rex V. Bishop of .Ely, 1 Wm. Black. 81 ; Reg. v. Dean & Chapter of Ches- ter, 15 Q. B. R. 513 ; Appleford's case, 1 Mod. 82. Lord Hale's opinion cited ■with approbation by Lord Campbell, Ch. J., 15 Q. B. R. 520 ; Kex v. Bishop of Ely, 2 T. R. 290 ; Murdock's Appeal, 7 Pick. R. 322 ; Parker, Ch. J., Attala County V. Grant, 9 Sm. & Mar. 77 ; Towle v. The State, 3 Florida, R. 202 ; 2 Q- B. R. 433 ; Ex parte Benson, 7 Cow. 363, and cases cited, 3 Binney, 273 ; 5 id. 87 ; 6 id. 456 ; 5 id. 536 ; 2 Penn. R. 517 ; 5 Wend. 114 ; 10 Pick. R. 244 ; 13 Pick. 225 ; 24 id. 343 ; People v. Columbia C. P., 1 Wend. R. 297. But the officers of a municipal corporation -will be compelled to hold a court, for the revision of the list of burgesses, notwithstanding the time for holding the same, in compliance with the terms of the statute, had elapsed, and notwithstand- ing the mayor at the time of granting the mandamus, was not the same person, who acted at the court. Regina v. Mayor & Assessors of Rochester, 30 Law Times, 73. But it was held, in Heffner v. Coipmonwealth, 28 Penn. St. R. 108, that the plaintiff in the proceeding must show a specific legal right, which had been in- fringed ; and that the damage, which the petitioner suffered, in common with other citizens, by the neglect of a municipal corporation to lay out an alley, although by reason of his land lying adjacent, he was specially exposed to suffer loss, by the neglect, would not entitle him to demand the writ : that the injury sustained by the petitioner must not only be different, in amount, or degree, but must be different, in kind, from that which falls upon the public in general, by the grievance complained of, to entitle him to the writ. The suit should be prose- cuted by some public officer, for the redress of an omission of duty affecting only the public interest, and that of individuals, incidentally. So also where the party is entitled to costs, in a proceeding before commission- ers to estimate land damages, against a railway, unless the duty to award such costs, is one which is plain and obvious, it will not be enforced by writ of manda- mus. Morse, Petitioner, 18 Pick. R. 448. 20 Reg. V. Dean & Chapter of Rochester, 6 Eng. L. & Eq. R. 269. 31 Reg. V. Mayor, &c. of Chester, 34 Eng. L. & Eq. R. 59. 500 § 194] MANDAMUS. * 458 t SECTION V. PROPER EXCUSES, OR RETURNS TO THE WRIT. 1. Company may return thai powers had ex- pired at date of writ. 2. May show want of funds to perform duty. 3. But cannot show that road is not necessary, or would not be remunerative, 4. May quash part of return, and require answer to remainder. 5. Counsel for writ entitled to begin and close. 6. Cannot impeach the statute, in reply to the writ. 7. Peremptory writ cannot issue till whole case tried. 8. Will not quash return summarily. 9. No excuse allowed for not complying with peremptory ivrit. § 194. 1. It seems to be an unquestionable answer to the writ * of mandanaus to compel the company to complete their road, that the time for taking lands under the act had expired at the time of issuing the alternative writ,^o that it had become impos- sible to build the road, as required in the writ.^ But where, at the time of the service of the alternative mandamus, the com- pany had time to institute compulsory proceedings, for taking lands, it was held, that if, instead of doing so, they attempted to defend the writ, and failed, it was at their peril, and the court would not excuse them, upon the ground, that in the mean time, their compulsory powers had expired.^ 2. And where it was attempted to defend againfet the writ, on the ground, that it was not •shown, that the company had funds, the court said, in the last case referred to : " "We shall presume that the company have funds." But it would seem that the want of funds, and of the ability to_ obtain them, if shown on the return to the alternative mandamus, might be an excuse.^ ' Regina v. London & N. W. Railway, 6 Eng. L. & Eq. R. 220, denying the authority of Reg. v. Birmingham & Gloucester Railway, 2 Q. B. R. 47, upon this point, as justifying the writ. And in the former case it was held, the prosecutors were guilty of laches in not sooner applying for the writ. 2 Reg. V. York, Newcastle & Berwick Railway, 6 Eng. L. & Eq. R. 259; Reg. V. Lancashire & Yorkshire Railway, 6 Eng. L. & Eq. R. 265 ; Reg. v. G. W. Railway, 18 Eng. L. & Eq. R. 364. In this case it was held, that the return must show that the company's compulsory powers for taking land had expired, and that they could not obtain the necessary land, without exercising those powers. 3 Lord Campbell, Ch. J., in Regina v. London & N. W. Railway, 6 Eng. L. & Eq. R. 220 ; Beg. v. Ambergate, &c. Raifway, 18 Eng. L. & Eq. R. 222. In Reg. 501 * 459 THE LAW OF RAILWAYS. [§ 194. And the company are not estopped from making this plea, by reason of having, in some instances, exercised their compulsory powers of taking land.* 3. But it is no sufficient excuse, that the road has become un- necessary, or that it would not prove remunerative, or that, in all reasonable probability, the funds, which will come to the hands of the company, will prove inadequate to the completion of the work.^ 4. By the English statute the court may quash part of a return to the writ which is bad in law, and put the prosecutor to plead to, * or traverse the remainder. But if the grounds of defence to the writ be repugnant, the court may, upon that ground, quash the whole.^ 5. The counsel for the crown are allowed to begin, although the return may be in the nature of a demurrer to the writ.' The validity of the writ may be impeached on the return.^ 6. In a case where the approaches to a bridge across a railway were not of the width required by the special act, a return to the writ of mandarnus, that they were as convenient to the public, as the original road, or as they could be made, in execution of the powers of the act, and that to widen them, to the dimensions defined in the act, would require more land, and that their pow- ers for taking land compulsorily had expired, before they were called upon to widen these approaches, is bad.* 7. The peremptory writ will not be issued until all the matters contained in the alternative writ are finally determined in favor of the application^^" V. Eastern Counties Railway, 10 Ad. & Ellis, 531, it was considered no objectiOii to granting the writ that the company had not the requisite funds, and could not raise them, without a new act. * Eegina v. Ambergate, &c. Railway, 18 Eng. L. & Eq. R. 222. 5 Reg. V. York & N. M. Railway, 16 Eng. L. & Eq. R. 299, not reversed upon these points. Reg. v. L. & Y. Railway, 16 Eng. L. & Eq. R. 327. 6 9 Anne, c. 20 ; Reg. v. Mayor of Cambridge, 2 T. R. 456 ; 4 Burrow, 2008 ; Rex V. Mayor of York, 5 T. R. 66. ' Reg. V. St. Panoras, 6 Ad. & Ellis, 314 ; State v. Directors of Bank, 28 Vt. R. 594. 8 Clarke v. Leicestershire & Northamptonshire Canal Co. 3 Railw. C. 730. B Reg. V. Birmingham & Gloucester Railway, 2 Railw. C. 694 ; Rex v. Ouse Bank Commissioners, 3 Ad. & Ellis, 544. 10 Reg. u. Baldwin, 8 Ad. & Ellis, 947. This was where the alternative writ required two sums of money to be paid, and it had been found that one of the 502 § 195.] MANDAMUS. *460 8. The court will not quash a return summarily, or order it taken off the file, unless it is frivolous, so as to be an obvious in- sult, and contempt of court.^^ 9. No excuse for non-compliance with a peremptory writ of mandamus is admissible.^^ It is no ground of objection to a mandamus, that a requisition is made on parties in the alterna- tive, to do one of three things, if the duty enjoined by the act of parliament forms one of them, and there has been a generqj re- fusal to comply with the requisition.^^ And the demand for the rate in this case was held sufficient, notwithstanding the church- wardens required the vestry to lay the rate, or do another act, which last was illegal.^^ *SECTION VI. WHERE THE ALTERNATIVE WRIT REQUIRES TOO MUCH, IT IS BAD, FOR THAT WHICH IT MIGHT HAVE MAINTAINED. § 195. It seems to be well settled, in the English practice, that if the writ issue, in the first instance, for some things, which de- fendant is not bound to do ; it cannot be supported, even as to those things, which he is compellable to perform.^ But the writ may be awarded to complete such portions of their road as the company are still compellable to build, although from lapse of time, it has become impossible to build the entire road.^ But if the alternative writ commands more than is necessary to be done, to comply with the statute, it will be quashed, not- withstanding the party might have been entitled to this remedy, to a certain extent.^ sums was due, and the inquiry was not finished in regard to the other. The court refused to grant a peremptory writ for the payment of the sum, about which the controversy was ended. < n Reg. V. Payn, 3 Nev. & P. 165 ; The King v. Round, 5 Nev. & M. 427. 12 Reg. V. Mayor of Poole, 1 Q. B. R. 616. 13 Reg. V. St. Margarets, Leicester, 8 Ad. & Ellis, 889. 1 Reg. V. Caledonian Railway, 3 Eng. L. & Eq. R. 285 ; Reg. v. East & West India Docks & Birm. June. Railway, 22 Eng. L. & Eq. R. 113. 2 Reg. V. York & North M. Railway, 16 Eng. L. & Eq. R. 299. This case was reversed in Exchequer Chamber upon other grounds. 3 York & North Midland Railway v. Milner, 3 Railw. C. 774, reversing in the Exchequer Chamber, The Queen v. York & N. M. Railw. 3 Railw. C. 764. 503 '461 THE LAW OF RAILWAYS. [§ 196, SECTION VII. ENFORCING PAYMENT OF MONEY AWARDED AGAINST RAILWAYS. 1. The enforcement of payment of money against corporations by -mandamus. 2. Where debt ivill lie, the party not entitled * mandamus. 3. Mandamus proper to compel payment of compensation under statute. 4. Mandamus not allowed in matters of equity jurisdiction. 5. Contracts of company not under seal en- forced by mandamus. 6. Where a statute imposes a specific duty, an action will lie. § 196. 1. It seems to have been the more general practice, to enforce the payment of money awarded against a corporation, in pursuance of a statute duty, by mandamus, where no other specific remedy is provided.^ * 2. But it has been held that an action of debt will lie upon the inquest and assessment of compensation for land.^ And where in granting to a railway the right to erect a bridge across the river Ouse, it was provided, in the act of parliament, that if the erection of such bridge should lessen the tolls of another bridge company, upon.the same river, after a trial of three years, as compared with the three years next preceding the erection of the railway bridge, the railway company should pay to the bridge company, a sum equal to ten years' purchase of such annual de- crease of tolls ; it was held, that debt will lie for such purchase, and that mandamus is no more effectual remedy and ought not to be granted.^ If the party have no right to execution, upon an award, mandamus will be awarded, otherwise not".* 1 The King v. Nottingham Old Waterworks, 6 Ad. & Ellis, 355 ; Rex v. Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. In this case one party moved for a certiorari with a view to quash the proceedings, and the other for a manda- mus, to carry them into effect. The rule for the former was discharged, and for the latter made absolute. Keg. v. Deptford Improvement Co. 8 Ad. & Ellis, 910. 3 Corrigal v. The London & Blackwall Railway, 5 Man. & Gr. 219. 3 Reg. V. The Hull & Selby Railway, 6 Q. B. R. 70 ; Williams v. Jones, 13 M. & W. 628. Courts of equity will not interfere where there is a remedy before sheriffs' jury. East and West India D. & B. Railway v. Gattke, 3 Eng. L. & Eq. R. 59. 4 Rex V. St. Catherine's Dock Co. 4 Barn. & Ad. 360 ; Corpe v. Glyn, 3 B. & Ad. 801 ; Reg. v. The Victoria Park Co. 1 Q. B. R. 288. And in this case Den- man, Ch. J., says, the court should not go beyond our extraordinary interposition by mandamus, to requiye a corporation to make a call upon the shareholders, to 504 § 196.] MANDAMUS. * 462 3. So the court will not enforce an ordinary matter of con- tract, or right, upon which action lies in the common-law courts, as to compel common carriers to perform their public duties, or special contracts,^ the statute not requiring them to carry all goods offered. But where compensation is claimed for damages done under a "statute, the proper remedy is by mandamus, al- though the party may claim that the company went beyond their powers, and thus committed a wrong for which the proper rem- edy is an action.^ 4. Nor will mandamus lie where the proper remedy is in equity,'' and the right is one not enforceable at law, but only in equity, as in * matters of trust and confidence. But in a case where the act of incorporation allowed the company to sue and to be sued in the name of their clerk, it was held that execution could not issue against the clerk personally, and in giving judg- ment, Tindal, Ch. J., said: " There can be no doubt but that the funds of the trustees may be made answerable, for the amount ascertained in the action, in case of a refusal to apply them, either by a mandamus, or a bill in equity." ^ 5. And where after a rule nisi, for a mandamus to compel the company to summon a jury, to assess compensation to land- owners, a contract was entered into, between the land-owners, and the agent of the company, wherein they agreed upon the payment of a stated sum, and also a weekly compensation ; upon the payment of the stated sum, and the execution of the con- tract, the proceedings were discontinued. The company paid the weekly sum for a time, and then discontinued the payment. The application for mandamus being renewed, the court held. pay debts, where the legislature had intrusted them with that power, and they had no standing capital. 5 Ex parte Eobbins, 7 Dowl. P. Cases, 566. 6 Reg. V. North Mid. Railway, 2 Railw. C. 1 ; 11 Ad. & Ellis, 955 ; Thicknesse V. Lancaster Canal Co. 4 M. & W. 472 ; Fenton v. Trent & Mersey Nav. Co. 9 M. & W. 20.') ; Rex v. Hungerford Market Co. 3 Nev. & M. 622. ■^ Rex V. The Marquis of Stafford, 3 T. R. 646. See Edwards v. Lowndes, 1 ■ Ellis & B. 92; 20 L. J. Q. B. 404 ; 16 Eng. L. & Eq. R. 204. The relation of trustee and cestui que trust, gives no right of action, at law, for money due. Par- doe V. Price, 16 M. & W. 451. The proper remedy is in equity, and mandamus will not lie. Reg. v. Trustees of Balby & Worksop Tujnpike, 16 Eng. L. & Eq. R. 276. 8 Wormwell v. HailstODe, 6 Bing. 668. 43 505 * 463 THE LAW OF EAILWAYS. [§ 197. that as the contract was not under their seal, no action will lie upon it, against the company ,9 and it should therefore be en- forced by mandamus.'" 6. It seems to be the general rule of the English law, that where a statute imposes a specific obligation, or duty, upon a corporation, an action will lie to enforce it, founded upon the statute, either debt or case, according to the nature of the claim.'^ SECTION VIII. THE WRIT SOMETIMES DENIED IN MATTERS OF PRIVATE CONCERN. 1. Mandamus denied to compel company to divide profits. 2. Allowed to compel production and inspec- tion of corporation books. 3. Will compel the performance of statute duty^ hut not to undo, what is done, i. Allowed to compel the production of the register of shares, or the registry of the name of the ownei- of shares, and in other cases. 5. It is the common remedy for restoring per- sons to corporate offices of which they are unjustly deprived. § 197. 1. Where the charter and subsequent acts, relating to * the Bank of England, required the corporation, to divide their profits semi-annually, a mandamus to compel the production of the books of the company, so as to show an account of their net income and profits, since the last dividend was declared, more than six months having elapsed, was denied.' Abbott, Ch. J., said, it was in effect "an application, on behalf of one of several partners, to compel his copartners, to produce their ac- counts of profit and loss, and to divide their profits, if any there be." It was also said, that this might very properly be done in a Court of Chancery, but a court of law, is a very unfit tribunal, for such a subject. " A mere trading corporation differs materi- ally from those, which are intrusted with the government of cities and towns, and therefore have important public duties to 9 Reg. V. Mayor of Stamford, 6 Q. B. R. 433. 10 Reg. V. Bristol & Exeter Railway, 3 Railw. C. 777. This seems to us rather a refinement. If the contract was really obligatory upon the company, it might as well be the foundation of an action, as to be enforced by mandamus. 11 Tilson V. Warwick Gas-Light Co. 4 B. & Cres.' 962; Carden v. General Cemetery Co. 5 Bing. (n. c.) 253. 1 Rex V. The Bank of England, 2 B. & Aid. 620. 506 § 197.] MANDAMUS. ■ * 464 perform." Bayley, J., said : " The court never grant this writ, except for public purposes, and to compel the performance of public duties." Best, J., said : " If we were to grant this rule, we should make ourselves auditors, to all the trading corpora- tions in England." 2. But in a later case ^ it was held, that mandamus maybe granted, to compel the production and inspection of corporation books and records, at the suit of a corporator, where a distinct controversy has already arisen, and the relator is interested in the question, and the former cases upon the subject are elabo- rately reviewed, and held to confirm this view.^ 3. The court has refusedt to grant a mandamus to a private trading corporation, to permit a transfer of stock to be made, in their books.* In a late case (1850) the writ was applied for, to compel a railway company to take the company seal off the register of shareholders.^ Lord Campbell, Ch. J., said : " If I had the smallest doubt, I would follow the example of the high tri- bunal" (Q. B. in Ireland) " which is said to have complied with a similar application. But having no doubt, I am bound to act on my own view. The writ of mandamus is most beneficial, but * we must keep its operation within legal bounds, and' not grant it, at the fancy of aU mankind. We grant it, when that has not been donte, which a statute orders to be done, but not for the purpose of undoing what has been done." " It is said the court win compel the corporation to affix its seal, when it refuses to do so, without legal excuse, but will not try the legality of an act, professedly done in pursuance of a statute." The difference seems to be one of form, rather than substance,, and to rest mainly upon the consideration, that after the act is done, its legality had better be tested, in the ordinary mode, by an action at law, or in equity. 2 Rex V. Merchant Tailors' Company, 2 B. & Ad. 115. 3 Rex V. Hostmen of Newcastle-upon-Tyne, 2 Strange, 1223. So to inspect the court roll of a manor, at the instance of a tenapt, who has an interest in a pending question, and has been refused permission to inspect the court rolls, by the lord of the manor. Rex u. Shelley, 3 T. R. 141. But not otherwise. Rex u. Allgood, 7 T. R. 746. But it is not necessary a suit shall be pending, if a dis- tinct question have arisen. R. v. Tower, 4 M. & S. 162. 4 Rex V. The London Assurance Company, 5 B. & Aid. 899. 5 Nash, ex parte, 15 Q. B. R. 92. S07 * 465 THE LAW OF RAILWAYS. [§ 197. 4. But the writ has been granted to compel the production of a register of shareholders, to enable a creditor to proceed against them.^ So too, to compel the registry of the name of the owner of shares, properly transferred, or of the name of the personal rep- resentative, in case of the decease of the owner.'^ But in some cases, of peculiar necessity for specific aid by way of mandamus, as the delivery of a key to the party, entitled to hold it, by the foundation of a private charity,^ the writ has been awarded. 5. And there can be no doubt the Court of King's Bench, has almost immemorially been accustomed to try the validity of mu- nicipal and other public corporate elections, by quo warranto, which, in case of illegality found, wfll displace the incumbents, but not establish those, rightfully entitled to the function,^ man- damus * being requisite for that purpose. But whatever may be the English rule, in regard to merely private corporations, it is certainly settled in this country, that the courts wiU try the valid- ity of an election, and the question of usurpations, and the legal- ity of amotions, in private corporations,'" in this mode. But 8 Reg. V. Worcestershire & Stafford. Kailway, Q. B. Weekly R. 1853-54, 482. 7 Ante, § 42 and § 44 ; Reg. v. L. & C. Railway, 13 Q. B. R. 998. No question is made here but the court will compel the company, by mandamus, to enter a transfer upon their books, in a proper case, but the application was denied on other grounds. 8 Reg. V. Abrahams, 4 Q. B. R. 157. 9 Rex V. Williams, 1 Bur. 402 ; Rex v. Hertford, 1 Ld. Ray. 426'; 1 Sal. 374; Rex V. Breton, 4 Burrow, 2260 ; Rex v. Cambridge, 4 Bur. 2008 ; Rex v. Tre- gony, 8 Mod. Ill, 127; Rex v. Turkey Co. 2 Burrow, 999; Anonymous, 2 Strange, 696. In some English cases the King's Bench seems to have altogether disregarded the distinction between public and private corporations, in exercising control over their functionaries. Rex u. Bishop of Ely, 2 T. R. 290. And in Rex v. St. Catherine's Hall, 4 T. R. 233, the refusal to grant the writ seems to be placed altogether upon other grounds. But it seems a mandamus will not be awarded to compel a voluntary society to recognize the rights of the minority. The King V. Gray's Inn, Douglass, R. 353 ; Rex v. Lincoln's Inn, 4 B. & C. 855. Where there is already one in the office de facto, mandamus will not be awarded, quo warranto being the proper remedy to try the title of the officer in possession. Rex V. Mayor of Colchester, 2 T. R. 259, 260. But in Rex v. Thatcher it was awarded to the commissioners of land-tax to admit the person clerk, having the majority of legal votes. 1 Dow. & R. 426 ; The People v. The Corporation of New York, 3 Johns. Cases, 79. The St. Louis County Ct. v. Sparks, 10 Mis- souri R. 117 ; Bonner v. State, 7 Georgia R. 473 ; Clayton v. Carey, 4 Maryland R. 26. . JO Commonwealth u. Arrison, 15 S. & R. R. 131 ; People «. Thompson, 21 508 § 198.] MANDAMUS. '466 there is one case where the court refused to try the title to an annual office, by writ of mandamus, for the reason that it would prove unavailing.^i But it has been awarded in England to restore a clerk to a butchers' company, a clerk to a company of masons, and sundry similar officers,^ and in this country, to restore the trustee of a private academic corporation,^^ a member of a religious corporation and many similar officers.^* *SECTION IX. THIS REMEDY LOST BY ACQUIESCENCE. PROCEEDING MUST BE BONA FIDE. 1. Remedy must be sought at earliest conve- nient time. 2. Courts will not hear such case, merely to settle the question. 3. In New York may be brought any time, within statute oj" limitations. § 198. 1. The right to interfere in the proceedings of a corpo- ration, by mandamus, is one of so summary a character, that it Wendell, E. 235; s. o. 23 "Wendell, R. 537 ; State v. Boston, Concord & M. R. 25 Vt. R. 433 ; In the matter of the White River Bank, 23 Vt. R. 478 ; Com- monwealth V. The Union Fire and Marine Insurance Co. 5 Mass. 231 ; State v. Buchanan, Wright, R. 233 ; State v. Ashley, 1 Pike, R. 570 ; St. Luke's Church V. Slack, 7 Cush. R. 226. 11 Howard v. Gage, 6 Mass. R. 462. But this case was decided upon the ground that the statute of Anne not being in force in that state, the truth of the return to the alternative writ could not be tried, till the term would expire. But the decision is scarcely maintainable even upon that ground. 12 Angell & Ames on Corporations, § 704. 13 Fuller V. The Trustees of the Academic School in Plainfield, 6 Conn. R 532. The opinion o{ Daggett, J., here discusses the power of amotion of trustees and officers, by eleemosynary corporations, somewhat at length, and comments very judiciously upon the cases upon the subject. 1* Green v. The African Methodist Ep. Society, 1 Serg. & R. 254 ; Common- wealth V. St. Patrick Benevolent Society, 2 Binney, 441, 448 ; Commonwealth v. The Philanthropic Society, 5 Binney, 486 ; Commonwealth v. Penn. Ben. Insti- tution, 2 Serg. & R. 141 ; Franklin Ben. Association v. Commonwealth, 10 Barr. R. 357 ; Commonwealth v. The German Society, 15 Penn. St. R. 251. But if the society have the absolute power of expulsion, it would seem their judgment in the matter is not revisable. s. c. But it was said a private person who makes a highway upon his own land, and dedicates it to public use, had no such interest in the highway, as to enable him to sue for penalties given against a railway which had cut through the highway and not restored it, and a mandamus to enforce the recovery of such penalty was 43 * 509 *466 THE LAW OF RAILWAYS. ' [§ 198. should be asserted, at the earliest convenient time, or it will not be sustained.^ And especially where, in the mean time, the facil- ities for accomplishing a public work, or the public demand for it, have materially changed, the writ will not be awarded.* But it is often proper and necessary to wait tiU public works are completed, before moving for the writ.^ 2. The English courts decline to hear applications for manda- mus, which are not bond fide, but merely to obtain the opinion of the court,* even where the prosecutor may have bond fide pur- chased shares in the corporation, but for the mere purpose of try- ing a question, in which the public have an interest.* 3. In New York it was held, that, as there was no special Um- itation upon this remedy, it might be brought within the time fixed for the limitation of other similai* or analogous remedies.^ But this rule seems liable to objection, in many cases. The English rule, that the party should suifer no unreasonable delay, in the opinion, and discretion of the court, seems more just and equitable, and is countenanced by other American cases.^ The late decisions of the English courts are very strict upon this point.^ denied, on the ground that the prosecutor had no public duty, in regard to the highway. Keg. v. Wilson, 11 Eng. L. & Eq. R. 403. 1 Kex V. Stainforth & Keadby Canal Co. 1 M. & S. 32 ; Rex v. The Commis- sioners of C. Inclosure, 1 B. & Ad. 378 ; Reg. u. Leeds & Liverpool Canal Co. 11 Ad. & Ell. 316 ; Lee v. Milner, 1 Railw. C. 634, Appendix ; Reg. v. London & N. W. Railway, 6 Railw. C. 634, and Reg. v. Lancashire & Yorkshire Railway, id. 654. 2 Reg. V. Rochdale & Halifax T. R^lway, 12 Q. B. R. 448. 3 Parkes, ex parte, 9 Dowl. P. C. 614 ; post, Appendix B, § 88 ; Reg. e. Bing- ham, 4 Q. B. R. 877 ; 3 Railw. C. 390. * Reg. V. Liverpool, M. & N. Railway, 21 L. J., Q. B. 284 ; 16 Jur. 149 ; 11 Eng. L. & Eq. R. 408 ; Reg, v. Blackwall Railway, 9 Dowl. P. Gas. 558. 6 The People v. The Supervisors ofWest Chester, 12 Barb. R. 446. 6 Mayor, &c. of Savannah v. State, 4 Ga. R. 26. t Reg. V. Townsend, 28 Law Times, 100, (Nov. 1856.) 510 § 199-] MANDAMUS. * 467 *SECTION X. MANDAMUS ALLOWED WHBEE INDICTMENT LIES. 1. Party may have mandamus sometimes 3. Will not Ik, wliere there is other adequate where act is indictable. 2. Allowed to compel company not to take up their rails. § 199. 1. It seems to have been considered that the fact, that a railway or other corporation, had exposed themselves to indict- ment, by the very act, or omission, proposed to be remedied, by mandamus, was no sufficient answer to the application.^ But we are not to understand by this, that the two remedies are re- garded, as in any just sense concurrent, and at the election of the party injured. An indictment is ordinarily, no adequate redress for private wrongs. The case of a nuisance put by Lord Den- mcm, in the last case, illustrates the subject fairly. The indict- ment only redresses the public wrong inflicted by a nuisance. One who suffers special damage is entitled to a private action, and sometimes to specific redress, in equity, or by mandamus. 2. Hence, where a railway company, after having completed their road, under an act of parliament, by which it was provided, the public should have the beneficial enjoyment of the same, proceeded to take up the raUwayj a mandamus was awarded to compel them to reinstate it.^ 3. And it may safely be affirmed, that the mandamus wiU be denied, where there is other adequate remedy.^ 1 Reg. V. Bristol Dock Co. 2 Railw. C. 599 ; Keg. v. Manchester & Leeds Rail- way, 3 Q. B. R. 528. 2 Rex V. The Severn & "Wye Railway, 2 B. & Aid. 646. Abbott, Ch. J., said, in giving judgment : " If an indictment had been a remedy equally convenient, beneficial, and effectual, as a mandamus, I should have been of opinion, that we ought not to grant the mandamus ; " but it is not, " for a corporation cannot be compelled by indictment, to reinstate the road." " The court may, indeed, in case of conviction, impose a fine, and that fine may be levied by distress ; but the corporation may submit to the payment of the fine, and refuse to reinstate the road." Grant on Corp. 270. 3 Reg. V. Gamble & Bird, 11 Ad. & EU. 69 ; Reg. v. Victoria Park Co. 1 Q. B. R. 288. 511 '468-469 THE LAW OF RAILWAYS. [§ 200-201. ♦ SECTION XI. JUDGMENT UPON PETITION FOB MANDAMUS BEVI8ABLE IN EEEOB. § 200. In those states, where the court, having jurisdiction to award the writ of mandamus, is not the court of last resort, the judgment upon applications for such writs is revisable upon writ of error.^ But it is said not to be the province of a court of error to issue the writ of mandamus, unless the power is conferred by statute.^ * CHAPTER XXVI. WRIT OF CERTIORARI. SECTION I. TO BEMOVB PKOCBEDINGS AGAINST BAILWAT8.. 1. Lies to bring up unfinished proceedings, or those not according to the common law. 2. This writ is one of very extensive applica- tion, unless controlled by statute. 3. Where the case is fully heard on the appli- cation, judgment may be entered. § 201. 1. Where the proceedings against a railway are in a court of record, and according to the course of the common law, after final judgment, the writ of error is the appropriate process, for their revision, in a superior court, and the writ of certiorari wiU not lie.^ But the certiorari is the proper process to bring up an unfinished proceeding, in an inferior court of record, or a i Reg. w. The Manchester & Leeds Railway, 3 Q. B. R. 528, reversing the judgment of K. B. in s. c. 1 Railw. C. 523, this last hearing being in the Ex- chequer Chamber. 6 & 7 Vict. ch. 67, § 2, gives the right to a writ of error. But upon general principles, it is as much revisable as judgment upon habeas corpus. Holmes, ex parte, 14 Pet. S. C. U. S. R. 540. See also Columbia Ins. Co. V. Wheelwright, 7 Wheat. R. 534. a Angell & Ames on Corp. § 697. 1 The King v. Inhabitants of Pennegoea, 1 Barn. & Cresswell, 142; 8. C. 2 Dow. & R. 209 ; Queen v. Dixon, 3 Salk. 78. 512 § 201.] WIIIT OF CERTIORARI. ' 470 summary proceeding, in such court, not according to the course of the common law, after judgment thereon, and where there is alleged error in the proceedings.^ 2. This writ is of universal application, unless taken away by the express words of the statute, or where the superior court is not the proper tribunal, to proceed with the cause. And in such case, the cause may be brought up, and any error corrected, and then remanded to the inferior court, with a writ of mandamus, in the nature of a procedendo ; or the mandamus may be awarded, in the first instance, directing the inferior court to proceed and finish the case upon its merits.^ * 3. Where the case is fully heard, in regard to its merits, upon the rule to show cause, and there is no dispute about the facts, it is common for the Court of King's Bench to give judgment, with- out waiting for the record to be brought up on certiorari^ similar to the course we have intimated, in regard to applications for mandamus.* 2 Woodstock V. Gallup, 28 Vt. R. 587 ; Reg. v. Bristol & Exeter Railway, 11 Ad. & Ellis, 202 ; Crosse v. Smith, 3 SaJJi:. 79. It is here said : " There is no jurisdiction which can withstand a certiorari. But if the certiorari be taken away, by the express words of the statute, the court will not indirectly accomplish the same thing, by mandamus. Rex v. Justices of W. R. of York, in the Matter of Railway, 1 Ad. & E. 563 ; Rex v. Fell, 1 B. & Ad. 380 ; Rex u. Saunders, 5 Dow. & R. 611. Where the certiorari upon a given subject is taken away, by act of parliament, it must be understood as extending only to the terms of the act, and for something done in pursuance of it. Denman, Ch. J., Reg. u. Sheffield, A. & M. Railway, 1 Railw. C. 537, 545. Patieson, J., " Where there is a total want of jurisdiction and parties have proceeded in defiance of certiorari, it is not taken away." South Wales Railway Co. v. Richards, 6 Railw. C. 197. See Jubb v. Hull Dock Co. 9 Q. B. R. 443. Denman, Ch. J., intimates, that where the certiorari is taken away, in regard to proceedings under an act of par- liament, that will not deprive the party of that remedy, when the proceeding is complained of, as not coming within the act, although some part of the proceed- ings are confessedly within the act, citing Rex v. The Justices of Kent, 10 B. & C. 477. The right to have proceedings reversed in the Supreme Court, does not deprive the party of the right to bring certiorari. Vanwickle v. C. & A. Rail- way ; Bennett v. Same, 2 Green, 145, 162. 3 In re Edmundson, 24 Eng. L. & Eq. 169. This was a case, where the statute required, the complaint to be made within six months, after the cause of action arose, and for non-compliance with this requirement, the court held the proceed- ings liable to be quashed, and granted the certiorari. * Ante, § 190. 613 * 471 THE LAW OE RAILWAYS. [§ 202-203. SECTION II. WHERE THERE IS AN EXCESS OF JURISDICTION. § 202. Where there is aa excess of jurisdiction, the appropriate remedy ordinarily is, by action of trespass. And in such cases the court have more commonly refused to give redress, either by certiorari or mandamus.^ But it is not considered that a stat- utory provision, taking away the writ of certiorari, for any thing done under the act of incorporation, or the general statutes, as to railways, applies to things done, wholly without the jurisdiction conferred.^ ♦SECTION III. JURISDICTION AND MODE OF PROCEDURE. 1. lAes in cases of irregularity, unless taken away by statute. 2. Inquisitions before officers, not known in the law. 3. Granting the writ is matter of discretion. Defects not amendable. § 203. 1. Although it is held that a statutory provision, deny- ing the certiorari, is to be limited to matters within the jurisdic- tion conferred, and will not restrict the power of the court, in regard to matters wholly beyond the jurisdiction, the same rule cannot be extended to mere irregularity, in the exercise of the jurisdiction. For unless the prohibition of the writ could apply to such cases, it could have no application, and it is incumbent upon the court to give it a reasonable operation, and construc- tion.^ 2. An inquisition, taken before two under-sheriffs extraordi- nary, will be set aside, on that ground.^ But an inquisition, 1 Keg. V. Bristol & Exeter Railway, 2 Railw. C. 99 ; 11 Ad. & Ellis, 202; Reg. V. Sheffield & Ashton-under-Lyne & Manchester Railway, 1 Railw. C. 537, 545. 2 Ante, § 201 ; Reg. v. Sheffield, A. & M. Railway, 1 Railw. C. 545 ; South Wales Railway v. Richards, 6 Railw. C. 197 ; Reg. v. Lancashire & Preston Rail- way, 6 Q. B. 759; 3 Railw. C. 725. 1 Reg. V. Sheffield, A. & M. Railway, 1 Railw. C. 537 ; 11 Ad. & E. 194. 2 Denny v. Trapnell, '2 Wilson, R. 379. This decision is upon the ground that the sheriff can only appoint one under-sheriff extraordinary. 514 § 204] INFORMATIONS IN THE NATURE OE QUO WARRANTO. *472 taken before a clerk of the undersherifF, and an assessor, ap- pointed pro hac vice by the sheriff, although none of the persons named in the act, for such an office, will not be quashed on cer- tiorari? 3. The 'granting of the certiorari is matter of discretion, al- though there are fatal defects, on the face of the proceedings, •which it is sought to bring up.* The affidavits should swear positively and specifically, to the existence of the defects, relied upon.* And where the party, applying for the writ, fails, from incompleteness, in the affidavits, he will not have a certiorari granted him, upon fresh affidavits, supplying the defects.* The conduct of the prosecutor, especially if it had a tendency to in- duce the defects complained of, is important to be considered, in determining the question of discretion, in regard to issuing the writ.* CHAPTER XXVII. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 1 . General nature of ike remedy. 2. Its exercise confined to the highest court of ordinary civil jurisdiction. 3. In the English practice, this remedy not ex- tended to private corporations. 4. In this coujitry it has been extended to such corporations. 5. Xhis remedy will only remove an usurper, hut not restore the one, rightfully entitled. § 204. 1. This is a subject of very extensive appHcation to cor- porations, for the purpose of determining, when they have for- feited their corporate franchises, or usurped those, not rightfully belonging to them, and for numerous other purposes. It will be found treated very much at length, in treatises upon corpora- 3 Reg. !/. Sheffield, A. & M. Railway, 11 Ad. & Ellis, 194. Thus showing the disposition of the court, to sustain the proceedings, when not in contravention of the express terms of the statute. ' ■* Reg. V. Manchester & Leeds Railway, 8 Ad. & Ellis, 413. Lord Denman says, " I disclaim the principle, that we are to issue a certiorari, to bring up the inquisition, on the ground that there may probably be .defects ; we must clearly see that facts do exist, which will bring the defects before us." 5 Reg. V. South Holland Drainage, 8 Ad. & E. 429. 515 *473 THE LAW OF RAILWAYS. [§ 204. tions.^ We should scarcely feel justified, in,going into the subject further here, than it has a special application to railways. The form of the proceedings, in modern times, is by information of the attorney general, or other public prosecuting officer, on behalf of the state, or sovereignty, in the nature of a quo warranto, upon which a rule issues to the defendant to show, by what warrant, he exercises the function, or franchise called in question. These proceedings are now very much controlled, in England, and in the American states, by statute, defining the form of process, and the jurisdiction of the courts, in regard to them. 2. In the absence of special provisions, the highest courts of ordinary civil jurisdiction are accustomed to exercise the prerog- ative right of sovereignty, to issue this process, as well as other prerogative writs, such as mandamus, certiorari, procedendo, pro- hibition, &c. In some of the states the courts refuse to exercise any such prerogative rights.^ And in others this power is, by statute, conferred upon the Court of Chancery; but in other forms.^ 3. The English courts do not seem to have allowed the exer- cise of this proceeding-, in the case of mere private corporations, * although there are numerous cases, in the English books, of the exercise of this proceeding, in regard to municipal corporations,* and others, of an important public character. 4. But there is no' question, that in the American' states, this 1 Angell & Ames on Corporations, § 731-765. The information may set forth specifically the ground of forfeiture relied upon, or may call upon the corporation to show by what warrant they still claim to exercise their corporate franchises ; and the information, like any other criminal information, is regarded, as amend- able. Commonwealth v. Commercial Bank, 28 Penn. St. R. 383. 2 State V. Ashley, 1 Pike (Ark.) R. 279 ; State v. Turk, Mart. & Yerg. 287 ; Attorney-General v. Leaf, 9 Humph. 753. See also State v. Merry, 3 Missouri R. 278 ; State v. McBride, 4 id. 303; State v. St. Louis P. M. & Life Ins. Co. 8 id. 330, where the latter state held the writ should issue. 3 State V. Turk, Mart. & Yerg. R. 287 ; State v. Merchants' Ins. Co. 8 Humph. R. 253 ; Attorney-General w. Leaf, 9 id. 753. 4 Rex V. Williams, 1 Bur. R. 402 ; Rex v. Breton, 4 Burrow, R. 2260 ; Rex v. Highmore, 5 Barn. & AW. 771 ; Rex'u. M'Kay, 4 B. &-C. 351. The same rule obtains in regard to this proceeding, in this respect, in England, as to mandamus. Ante, § 193; Rex i>. Sir Wm. Lowther, 1 Strange, 637 ; Rex v. Mousley, 8 Ad. & Ellis, N. s. 957, decided in 1846, where it is held that the mastership of a hospital or a grammar-school, was not of so public a character, as to justify the exercise of this remedy. 516 § 204.] INFORMATIONS IN THE NATURE OF QUO WARRANTO. * 473 form of proceeding is extended to aggregate corporations in gen- eral, and more especially to the case of banks and railways, which partake, in some sense, of a public character.^ The gen- eral principles, which we have found applicable, to the subject of mandamus, will, for the most part, apply to this proceeding.^ 5. The court cannot establish corporate officers, who would have been elected, had all the legal votes offered been received by the inspectors.^ The only remedy is to set aside the election. And where a railway company are authorized to make a line, with branches, and they completed a portion of it, but abandoned other parts of it, this is not a public mischief, which will entitle the attorney-general to file an information, in the nature of a quo warrcmto, against the company, to prevent them from opening the part completed, until the whole is perfect.^ And an information in the nature of a quo warranto, under the Massachusetts statute, will not lie against a railway com- pany, in behalf of a stockholder, merely because they issued stock below the par value; and began to construct their road, before the requisite amount of stock was subscribed, it not appearing that the petitioner's private right was thereby put at hazard.^ s Commonwealth v. Arrison, 15 Serg. & Eawle, 128; The People v. Thomp- son, 21 Wend. R. 235 ; s. C. 23 ib. 537 ; Common v. Union Ins. Co. 5 Mass. R. 231. See ante, § 197 ; State v. B. Concord & M. Railway, 25 Vt. R. 433 ; Grand Gulf Railway and Bank v. State, 10 Sm. & M. 427 ; State v. A. P. Hunton and others, 28 Vt. R. 594. 6 Chap. XXV. 7 In the Matter of the Long Island Railway, 19 Wendell, 37; 2 Am. Railw. C. 453. s Attorney- General v. Birmingham Junction Railway, 8 Eng. L. & Eq. R. 243. 9 Hastings v. Amherst & Belchertown Railway, 9 Cush. R. 596. In this case the charter provided that the road extend " through Amherst." Another section of the charter provided that the road might be divided into two sections, one ex- tending " to the village of Amherst," and the other from " Amherst to Montague." It was held, that taking land for the road, upon a route not terminating " in either village of Amherst," was not the exercise of a franchi^, not granted by the charter. 44 517 * 474-475 THE LAW OF RAILWAYS. [§ 205. * CHAPTER XXVIII. EQUITY JURISDICTION IN REGARD TO RAILWAYS. SECTION I. INJUNCTIONS AGAINST RAILWAY COMPANIES. 1 . Courts of equity will not assume the con- trol of railway construction. 2. Will restrain company from taking lands by indirection. 3. Will restrain railway company, when ex. ceeding its powers. 4. If company have power to pass highways, board of surveyors cannot stop them. 5. Board of surveyors should apply to the tribunals of the country. 6. Equity will restrain company, from ex- ceeding powers, or if they have ceased. 7. Injunctions to enforce the payment of com- pensation for land. 8. Injunction suspended, on assurance of payment, by short day. 9. Course of equity practice must conform to change of circumstances. 10. ITie course of proceeding in American courts of equity is the same. u. 1 1 . Review of the cases upon this subject. § 205. 1. Injunctions in courts of equity, to restrain railways, from exceeding the powers of their charters, or committing irrep- arable injury to other persons, natural, or artificial, have been common, for a long time, in England, and in this country.^ But the courts of equity will not undertake to determine questions of engineering, and take the construction of a railway under their own control, in order to keep them within their powers.^ A question of engineering is ordinarily referred to a disinterested engineer,! a,nd in such case the court bases its order upon the report of such engineer.^ 2. The courts of equity will enjoin a railway, from taking land ostensibly under their powers, for one purpose, when in fact they desire it for another, not within their powers.^ In all cases of doubt, in regard to the extent of the powers of the company, the * conclusion should be against its exercise, and the company should go to the legislature, instead of. the courts, to have their powers enlarged.-^ 1 Webb V. The Manchester & Leeds Railway, 1 Railw. C. 576 ; 4 My. & Cr. 116. 518 § 205.] BQtHTY JURISDICTION. IN REGARD TO RAILWAYS. * 475 3. In an early case,^ it was held by the vice-chancellor, that the fact that the company were proceeding to take lands, after their powers had expired, was no ground of interfering, bjj in- junction, unless it were shown, that irreparable mischief would otherwise ensue. But the lord chancellor held, in the same case, that where it is clearly shown, that a public company is ex- ceeding its powers, this court cannot refuse to interfere by in- junction. 4. It has been held, that in a parish, through which a railway is granted, with the right to traverse the highways of such parish, or alter their levels, by restoring them to their former usefulness, 2 River Dun NaTigation Co. v. North M. Railway, 1 Kailw. C. 135. The gen- eral ground upon which courts of equity will interfere, by injunction, in the case of railways, to keep them within their charter powers, is very fully stated in this case, by Lord Cottenham, chancellor, " I am not at liberty (even if I were in the least disposed, which I am not,) to withhold the jurisdiction of this court as exer- cised, in the first case in which it was exercised, that of Agar v. The Regent's Canal Company, Cooper's Bl. 77, where Lord Eldon proceeds simply on this, — that he exercised the jurisdiction of this court for the purpose of keeping these companies wiihin the powers which the acts give them, ^nd a most wholesome exercise of the jurisdiction it is ; because great as the powers necessarily are, to enable the companies to carry into efiect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there was not a jurisdiction continually open, and ready to exercise its power, for the purpose of keeping them within that limit, which the legislature has thought proper to prescribe for the exercise of their powers. On that ground I should never be reluctant to entertain any such application. I think it most es- sential to the interests of the public, that such jurisdiction should exist, and should be exercised whenever a proper case for it is brought before the court, otherwise the result may be, that, after your house has been pulled down, and a railway substituted in its place, you may have the satisfaction, at a future period, of discovering that the railway company were wrong. It would be a very tardy recompense, and one totally inadequate to the injury of which the party has to complain, and individuals would be made to contend with companies who often have vast sums of money at their .disposal, and that too, not the money of the persons who are contending. It is a most material point to consider, when you enter into a contest with an individual, whether he is spending his own money, or money over which he has a control, or in which he has comparatively a small interest. If these companies go beyond the powers which the legislature has given them, and in a mistaken exercise of those powers interfere with the prop- erty of individuals, this court is bound to interfere. That was Lord Eldon's ground in Agar v. The Regent's Canal Company, and I see no reason whatever to depart from the rule there laid down and acted upon ; but then of course it must be a case in which the court is very clearly of opinion that the company are exceeding the powers which the act has given them.'' 519 *476 THE LAW OF RAILWAYS. [§ 206. or * substituting others, to the acceptance of the board of survey- ors of such parish, and if that is not done, the board of surveyors, to cause it to be done, it was not competent for such board, to take the law into their own hands, and put up fences, so as to obstruct the passage of engines across the highways, on the ground that their passing endangered the safety of the public.^ 5. It was considered that the board of surveyors in such case, should have applied to a court of law, to award a mandamus, re- quiring the railway company, to construct the substituted high- ways, in the proper mode, or to a court of equity, for an injunction, to effect the same object.^ In such case, it was held, that the right of the surveyors was a private right, and that they were in no way interested in the question of public safety.^ 6. Injunctions have been granted against companies proceed- ing to take land, contrary to the provisions of their charter,* or where their powers had expired.* But where the company had rightfully purchased a lease of the land, and were rightfully in possession, a court of equity will not restrain them from proceed- ing to take the fee, upon the ground, that they have no such power under their charter, as such proceeding would, upon the assumption, convey no title to the company, and there would be no necessity, or propriety, in withdrawing the determination of the mere question of title from the courts of law, whenever it shall arise.^ . 7. But where the company had taken possession of lands, and begun their works, before paying, or depositing the stipulated price, according to the requirements of their charter, it was held proper to restrain them, by injunction, and also to dissolve the injunction, upon payment of the price, into the Court of Chan- cery, where the land-owner had chosen to come for redress, although the company's act required the deposit in the Bank of England, where the title was disputed, as in the present case.^ 3 The London & Br. Railway v. Blake, 2 Railw. C. 322. * Stone V. The Commercial Railway, 4 My. & Cr. 122 ; River Dun Nav. Co. v. North Midland Railway, 1 Railw. C. 135. 5 Mouehet v. The Great Western Railway, 1 Railw. C. 567. See post, Appen- dix B. § 97. 6 Hyde V. The Great Western Railway, 1 Railw. C. 277. And in such ease it is not necessary, in a bill for specific performance of a contract of sale of the land to the railway company, to make others having an interest in the land, as 620 § 205.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. * 477 8. In a case where the Court of Chancery considered, that the company had taken possession of land, without paying the price, * according to the true construction of the contract between them and the owner, they held the party entitled to redress by way of injunction. But upon the company stipulating to pay the price, by a short day, the injunction was suspended, to give them opportunity to do so, the company undertaking, that if this is not done, the court shall regard the injunction, as of the day of the arrangement.'^' 9. The rule laid down by Lord Chancellor Cottenham, and re- peated in several cases, that it is the duty of the courts of equity, (and the same is true of all courts, and of all institutions,) to " adapt its practice and course of proceeding, as far . as possible, to the existing state of society, and to apply its jurisdiction to all those new cases, which from the progress daily making in the affairs of men, must continually arise, and not, from too strict an adherence to forms and rules, established under very different circumstances, decline to administer justice, and to enforce rights, for which there is no other remedy," is certainly worthy of the ablest, the wisest, and best judges, who ever administered the chancery law, of England, or America.^ 10. That similar rules of practice prevail in the American courts of equity will appear from an examination of the cases upon this subject. It was held the court wiU not interfere by in- junction unless the danger is imminent and the damage irreme- diable.8 But the cases where courts of equity have interfered, to prevent threatened mischief ^P and injury, without reparation,^^ tenants for instance, parties to the bill. Robertson v. The Same, 1 Railway C. 459. '' Jones V. Great Western Railway, 1 Railw. C. 684. 8 Taylor v. Salmon, 4 My. & Cr. 141 ; Mare v. Malachy, 1 My. & Cr. 659; Walworth v. Holt, 4 My. & Cr. 619-635. " Spooner v. McConnel, 1 McLean C. C. R. 338 ; Mayor of Rochester v. Cur- tis, 1 Clarke, 336. See also Jerome v. Ross, 7 Johns. Ch. 316. 10 McArthur v. Kelly, 5 Ohio, 139. '1 Bonaparte v. Camden & Amboy Railway, 1 Baldwin, 221 ; Gardner v. New- burg, 2 Johns. Ch. R. 162 ; Stevens v. Buckman, 1 Johns. Ch. R. 318 ; Amelung V. Seekamp, 9 Gill & J. 468 ; Ross v. Paige, 6 Ohio, 166 ; Browning v. Camden & Woodbury Railw. 3 Green, 47; Jardcn v. Phil. Wilm. & Bait. R. 3 Wharton, 502; Chapman v. Mad River & Lake Erie Railway, 6 Ohio Stale R. 119. Courts of Chancery have jurisdiction to proceed, by injunction, where public 44* 521 * 478 THE LAW OF KAILWATS. [§ 206. are very numerous in the American Reports of Chancery decis- ions. *SECTION II.. INJUNCTIONS TO PROTECT THK EIGHTS OP LAND-OWNERS, AND OP THE COMPANY. 1 . Company restrained from taking less land than specified in notice. 2. Sometimes injunction refused, where great loss will ensue. 3. Will not enjoin company, to try constitu- tionality of their act. 4. May be restrained from carrying passen- gers beyond their limits. 5. So also from talcing land beyond the reason- able range of deviation. 6. But not where the company have the right to take the land. § 206. 1. In accordance with the opinion of the Lord Chan- cellor, in the note (2) to the last section, it has been held, that officers, under a claim of right, are proceeding illegally, and improperly, to injure, or destroy the real property of an individual, or corporation, or where it is nec- essary to prevent a multiplicity of suits, although the defendants may be sued at law. As where the commissioners of highways, on the petition of the defendant, had laid out and recorded a private road or way, from a lot of defendant, across the ropes and fixtures of the inclined plan of a railway, which was used for the draw- ing up, or letting down cars, for the conveyance of merchandise, or passengers. Mohawk & Hudson Railway v. Artcher, 6 Paige, 83. See also Belknapp v. Bel- knapp, 2 Johns. Ch. 463 ; Livingston v. Livingston, 6 id. 497. The courts of equity will interfere, by injunction, in cases of nuisance often, and where the right is clear, and the wrong manifest, will do it without waiting the result of a trial at law. But where the thing complained of is Jiot in itself a nuisance, but only capable of becoming such, by relation, the courts of equity will not ordinarily interfere, in that mode, until the matter has been tried at law. But where the magnitude of the threatened injury bears no just proportion to the probability of it being justifiable, the court will not refuse its aid presently. Moha,wk Bridge C. v. Utioa & Sehen. R. 6 Paige, 554 ; Bell v. O. & Penn. Bail- way, 25 Penn. R. 160. So also where a railway is being constructed so near a canal, having a prior grant, as to seriously endanger the works of the latter, this being first settled by an issue at law. Hudson & Delaware Canal Co. v. New York & Erie Railway, 9 Paige, 323; In re Long Island Railway, 3 Ed. Ch. R. 487. In Sandford v. The Railway Co. 24 Penn. R. 378, it is said : "If railway cor- porations go beyond the powers, which the legislature has given them, and in a mistaken exercise of those powers interfere with the property of individuals, the court is bound to interpose by bill, injunction, or otherwise, as the case may re- quire." s. p. River Dun Navigation Co. v. North Midland Railway, 1 Railway C. 135 ; Agar v. Regent's Canal Co. Cooper, R. 77. 522 § 206.] EQUITY JURISDICTION IN RBGAKD TO RAILWAYS. * 479 where the * company gave notice to take a certain quantity of land, and subsequently proceeded to summon a jury to estimate In Tucker v. Cheshire Railway, I Foster, R. 29; s. c. 1 Am. Kailw. C. 196, it ■was considered material to the inquiry, whether the defendants' bridge so inter- fered with a former toll-bridge across the Connecticut River, as to justify an in- junction, that railway communication was not in use, at the date of the plaintiff's grant, and that it could not therefore have been in the contemplation of the leg- islature to exclude it, and that a railway bridge did not subserve the same pur- pose for which the toll-bridge was erected. And in Newburyport Turnpike Co. v. Eastern Railway, 23 Pick. 326, it was held, that a statute, giving railways the power to raise or lower any turnpike, or way, for the purpose of having their railroad pass over or under the same, will justify a railway in raising a turnpike-road to enable them to pass it upon a level, and an injunction was denied. And where the charter gave the company the right to construct lateral routes, it was held that a shareholder could not restrain the company, from the exercise of such powers, as were conferred by the charter, and in the manner therein speci- fied, on the ground that it will diminish his dividends, or impair the resources of the company. And that where the charter fixes no limit of time for the exercise of' such powers, the court will not ordinarily prescribe one. But such grants must be express, and will not be implied. Newhall v. Chicago and Galena Rail- way, 14 Illinois R. 273. In Morgan v. New York & Albany Railway, 10 Paige, 290, it was held, that an injunction, which is to deprive the ofiicers of a corporation, of the control of all its property will not be allowed ex parte. In cases of great injury and where irremediable mischief will be likely to ensue, injunctions are commonly allowed ex parte, and the defendant may move to dis- solve before answer. Minturn v. Seymour, 4 Johns. Ch. R. 173. See also Poor V. Carleton, 3 Sumner, 70 ; New York Printing & Dyeing Establishment v. Fitch, 1 Paige, 97. But in cases of importance, involving no pressing peril, an ex parte injunction should not be granted. Accordingly one was denied, to restrain defendant from running a steamboat, and landing passengers, at the plaintiff's dock. N. Y. Print. & Dye. Est. v. Fitch, sitpra. So also to take from the directors of a bank the control of its business, on thfe ground that their election was obtained by fraud. Ogden V. Kip, 6 Johns. Ch. R. 160. See also Stewart v. lattle Miami Railw. 14 Ohio, 353; Ramsdall v. Craighill, 9 Ohio, 197; Walker v. Mad River Railway, 8 Ohio, 38. But where, by special act, a railway was required to pass through a certain street thereafter to be laid, on certain conditions, and not in any parallel street, the Court of Chancery enjoined the company from entering upon private land, for the purpose of locating their road, until the street prescribed in the act, should be opened. Jarden v. Phil. Wil. & Bait. Railway, 3 Wharton, 502. So also from condemning any land, which, by their charter, they have no power to take. Moorhead v. Little Miami Railway, 1 7 Ohio, 340. But where the defendant had addressed letters to the plaintiff, stating the terms 523 '480 THE LAW OE RAILWAYS. [§ 206. a less quantity, that they should be restrained from proceeding, by injunction, at * the suit of the land-owner, the notice to treat constituting the relation of vendor and purchaser between the company and land-owner, as to all the land included in the notice.! 2. In one case Lord Cottenham, Chancellor, declined interfer- ing on behalf of a land-owner, although the possession of the land had been obtained from a tenant of the plaintiff, by the company, by means of circumvention and fraud. The ground of the refusal seems to have been, that the road having been already built, the effect of the injunction prayed for, would be, to turn the defendants out of the use of it, and virtually put it into the plaintiff's control. The Lord Chancellor says : " The case originally may have been a case of waste — ^waste occasioned by the cutting of the train-road, and the laying of the iron rails over the plaintiff's land, but what is now claimed by the defendants is simply a right of way ; and if they are not entitled to that right, they are mere trespassers, and the plaintiffs have their proper legal remedy against them as such."^ 3. But where a land-owner threatened forcible resistance to the progress of the railway, the Court of Chancery declined to upon which he would allow them to carry their railway over his land, and the company commenced their operations upon the land, in conformity with the propositions, and with the knowledge of defendant, it was held that plaintiffs had thereby accepted the defendant's proposition, and were bound by its terms, and that the same was consequently binding upon defendant, citing Mactier v. Frith, 6 Wend. 103, 119. The plaintiffs having substantially performed the contract, and the defendant having shut up the road, after it had been used several months, a perpetual injunction was granted, against defendant obstructing the road, but without prejudice to any claim he might have against the plaintiffs. New York & New Haven Railway v. Pixley, 19 Barb. 428. ' Stone V. The Commercial Railway, 1 Railw. C. 375 ; s. c. 4Mylne & C. 122. But in Mouchett v. The Great W. Railway, 1 Railw. C. 567, the vice-chancellor declined to restrain the company from assessing the value of the fee-simple in land, upon the alleged ground, that they were not authorized to take such estate, as in that case the proceedings will be merely void, and it is not claimed the com- pany are not entitled to the present use and occupancy of the land, or that they are so using it, as to cause irreparable injury to the inheritance. 2 Deere v. Guest, 1 My. & Cr. 516. But see Warburton v. The London & Blackwall Railway, 1 Railw. C. 658. The plaintiff should satisfy the court, that he has sustained substantial damage, from the violation of a legal right, to entitle himself to an injunction. Holyoake v. Shrewsbury & Birmingham Railway, 5 Railw. C. 421. 624 § 206.] EQUITY JUKISDICTION IN RBGAKD TO RAILWAYS. *481 interfere.3 The Court of Chancery declined also to interfere and enjoin a railway company from building their road, at the suit of a land-owner, on the alleged ground of the unconstitutionality of the company's charter. It was held that the case must take the ordinary course of judicial proceedings, and for aU prelimi- nary purposes, and until the hearing upon the merits, the consti- tutionality of the company's act would be assumed.* *4. But where the charter of a railway company gave them the exclusive right of carrying passengers and freight, from At- lanta to Macon, it was held that the company could not, under this charter, carry from their station in Macon, through the city, to the station of another railway, for the convenience of their customers, and they were enjoined from so doing.^ 5. And it was held, that a railway had no right to take land for a warehouse, four hundred yards from their track, and build a track to such point, although the land requisite, for both pur- poses, did not exceed five acres, and the company were perpetu- ally enjoined.^ 6. But a court of equity will not enjoin a railway company from constructing their road across the plaintiff's land, when the charter provides a mode for the land-owner to obtain an ap- praisal of compensation, and he has not resorted to it.^ 3 Montgomery & West Point Railway v. Walton, 14 Ala. R. 207. * Bearing v. York & Cumberland Railway, 31 Me. 172. But the courts of equity will enjoin the company from taking lands for warehouses and other erec- tions, which are not authorized by their charter. Bird v. W. & M. Railway, 8 Rich. Eq. R. 46. B Mayor of Macon v. Macon & Western Railway, 7 Ga. R. 221. 6 Bird V. W. & M. Railway, 8 Rich Eq. R. 46. It was held in this case, that when the court entertain jurisdiction, for the purpose of enjoining the company from the further use of land, they may grant compensation for the injury already committed, by reference to a master, or directing an issue quantum damnificatus. 1 New Albany & Salem Railway v. Connelly, 7 Porter (Ind.) R. 32. 525 ■482 THE LAW OP RAILWAYS. [§ 207. SECTION III. EQUITABLE INTEKFERENCE IN REGARD TO THE WORKS. 1 . No universal rule upon the subject of equi- table int&'Jerence. 2. These matters often arranged, hy mutual concessions, and an issue at law. 3. Oases illustrating the Tnode of proceeding in courts of equity. 4. Where company required to do least possi- ble damage. § 207. 1. In consequence of the discretion, which courts of equity assume t'o exercise, in regard to decreeing specific per- formance of contracts and obligations, or restraining the parties from violating the duties, resulting therefrom, there will be likely to be, more or less, apparent inconsistency, in the disposition of different cases. As no intelligible rule can be laid down upon the subject, it will be useful, briefly to refer to the more impor- tant decided cases, bearing upon the question. 2. Where a controversy arose, between the land-owner and the company, in regard to the right of the company to occupy a highway, by substituting another, in a different direction, and which, it 'was claimed, would very materially affect the value of the plaintiff's land, for building purposes, by depriving him of access to the highway, the vice-chancellor held, that it was not a case for the interference of a court of equity, at least, until the company had completed their substituted road. But the Chan- cellor considered it a case, where the court should interfere, to enable the company to know, at once, whether the proposed road, when properly completed, would meet the requirements of their charter. For this purpose he granted a temporary injunc- tion, against occupying the old road, until the new one shall be completed — the plaintiff undertaking to bring an action against the company — and the company admitting for the purpose of the action, that they have taken the old road, and the plaintiff admitting, that the substituted road is, in effect, completed, in order to try the question, whether, when completed, it will be a proper substitution.^ The company, in another case, were en- 1 Kemp V. The London and Brighton Railway, 1 Eailw. C. 495. In this case, after the proposition of his lordship to send the case to the jury, upon its being suggested, by the counsel for the company, that the form of action would not inform them, what kind of road they were bound to make, his lordship answered, 526 § 207.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. * 483 joined from the use of works, erected on a site prohibited in their charter, but with liberty to use the erection, as before, upon their undertaking to erect lio more, and to apply for a rehearing, or to prosecute an appeal to the House of Lords.^ 3. In a case, where the company were proceeding to arch over a street, in order to erect a station, it was held, that they should be restrained, by injunction, until the question of their right to do so, should be settled in a court of law. And for this purpose an action was directed to be tried, before the Barons of the Ex- chequer, and their opinion being certified in favor of the right claimed, by the company, "if it was necessary, or reasonably convenient for the * construction of a station, and proper ware- houses," the Lord Chancellor held, that the injunction should be dissolved, the fact of the commencement of the works, by the defendants, being sufficient proof of the necessity for, and the convenience of, such buildings.^ So, too, an injunction was continued temporarily against the trustees of a turnpike road, who proposed to remove stone blocks, laid across their road, by a railway company, in order to pass from their railway to a wharf occupied by them, for the conve- nience of loading and unloading goods, upon railway carriages, the company not proposing to alter the surface of the turnpike road, or to cross it, by means of railway carriages. But upon notice being given to the trustees of the turnpike road, and the matter being discussed, both the Vice- Chancellor, and the Lord Chancellor, regarded the acts of the railway company, as mani- festly wrong, inasmuch, as by their act, they had no power to " I am not about to direct an action, to try what sort of road the company are to make. The question before me is, whether the proposed road is such as, under the act, entitles them to take the old road." Bell v. The Hull and Selby Rail- way, 1 Railw. C. 616. The injunction was here retained until the rights of the parties should be determined, by an action at law, to be brought for that purpose, and tried under certain admissions. 2 Gordon v. Cheltenham & Great W. Union Railway, 2 Railw. C. 800. It was considered in this ease, that a party will not be precluded from relief, by acqui- escence in what he may be led to consider, a mere temporary violation of his right, where no evidence is given of expense incurred by another party, in faith of such acquiescence. Clarence Railway v. Great North of England, Clarence, and H. Railway, 2 Railw. C. 763. Sie.e.post, § 220, and cases cited, ante, § 198. 3 Attorney-General v. The Eastern Counties and Northern and Eastern Rail- way Companies, 2 Railw. C. 823. 627 *484: THE LAW Or RAILWAYS.. ' [§207. deal with the turnpike road at all, for the mere purpose of access to their railway, but only to use it, as it was, and if they pro-, posed to cross it, with their railway, they were bound, by the express terms of their act, to do so, by means of a tunnel, or a bridge, and that it was not proper to continue the injunction, during the trial of the question at law.* So, too, where the company were by their act prohibited from erecting any station at a given point, but built a platform and stairs, to enable them to take up and set down passengers, and proposed to build a road for access to such point, they were temporarily enjoined from the use of such erections, which was made final, upon hearing; the vice-chancellor considering that this, when the road was built, was a station ; but that this prohi- bition did not prevent the company from stopping their engines, where they pleased, and that the passengers might then get in, or out, as they best could.^ *So where the company were proceeding to buUd an arch over a mill-race, for the purpose of supporting an embankment, and it appearing, that the mill would suffer damage, if the arch were not built of larger dimensions, an injunction was granted to restrain the company from making, over the mill-race, an arch of less dimensions, than what was requisite, to secure the mill from injury, the company by their act being bound to make com- pensation to persons, whose property might sustain damage.^ ■1 London and Brighton Railway v. Cooper, 2 Railw. C. 312. It seems to be the uniform practice, in the English Railway Acts, to require all road and farm- crossings, to be either, by tunnels or bridges, or else to be protected, by gates, under the control of the officers of the company, which are not allowed to be open, while any train is due. 5 Lord Petre v. The Eastern Counties Railway, 3 Railw. C. 367. But in Eton College V. Great "W. Railway, 1 Railw. C. 200, it is held, that a prohibition from building a station within three miles of Eton College, does not preclude them from taking up and setting down passengers, within that distance, and renting rooms in a public-house for the convenience of such passengers. 6 Coats V. The Clarence Railway, 1 Russell & Mylne, 181. The extent of the requisite arch, in this case, was determined by the report of an engineer, to whom the question was referred by the Lord Chancellor. In Manser v. The N. & E. Railway, 2 Railw. C. 380, the Chancellor held, that in a case, where the affidavits on points of engineering are conflicting, the court will seek for profes- sional assistance, of some impartial engineer, to form a decision upon them. Upon the disputed points, the Chancellor says : " I should like to have the affi- davit of some eminent engineer." 528 § 208.] EQUITY JTJRISDICTION IN REGARD TO RAILWAYS. ^485 4. But where the company were, by their act, required to con- duct their works, doing as little damage as possible, it was held, by the Lord Chancellor, that nothing but necessity could justify the company, in carrying on their works, in such a manner, or on such a level, as would cause serious damage to the owner of the land.^ The maxim, &ic utere tuo ut alienum non Icedas, applies to persons acting under inclosure, and other acts of parhament, of a similar nature.^ SECTION IV. FURTHER INSTANCES OF EQUITABLE INTERFERENCE AS TO WORKS. 1. In a clear case equity will direct the mode of crossing highways. 2. Mandamus the more appropriate remedy in such cases. 3. Towns may maintain bill in equity to pro- tect highways. § 208. 1. The subject of the interference of the courts of equity to enforce contracts between the promoters of railways, and the *land-owners along the proposed line, will be considered, in a subsequent chapter.' Where a railway company were attempting to carry a turnpike-road over their railway, in a man- ner inconvenient to the public use of such road, an injunction was granted to restrain them, from doing it, in that mode, the vice-chancellor explaining, in what mode, the thing should be done, or what results were to be effected, to escape from the injunction.^ But this injunction was granted, without prejudice to any application the company might make to the Board of Trade. But if the case is doubtful, as for instance a claim for "> Manser u. The Northern & Eastern Counties Railway, 2 Railw. C. 380. Some very sensible remarks fell from the Lord Chancellor, in this case, in regard to the one-sidedness of testimony, upon points of engineering, and the embarrass- ment attending the trial of cases, depending upon such questions, unless the courts are enabled to command the aid of masters, wise and experienced in regard to such acts, as come in question. 8 Dawson v. Paver, 4 Railw. C. 81. 1 Post, § 8 ; Appendix A. See also post, § 97 ; Appendix B, for further state- ment of grounds of equitable interference. 2 Attorney-General v. London and Southw. Railway, 3 De G. & S. 439 ; Hodges on Railw. 506; 13 Jur. 467. 45 529 "486 THE LAW OF RAILWAYS. [§ 208, land damages, the court will not ordinarily interfere, by injunc- tion, but leave the party to pursue his claim at law.^ In some cases where the company have given notice of pur- chase of lands, which, under the English statute, has the effect to create the relation of vendor and purchaser, but omit any after proceedings, the land-owner has been allowed a decree, equiva- lent to specific performance.* 2. But the more usual remedy, in such cases, as we have seen, is by ihandamus, and that, although an old jurisdiction, is not taken away by a new remedy. Yet if a new right be given, and a special remedy provided, for enforcing it, such remedy must be pursued.^ 3. And it has been held, that where a railway claim to main- tain * their road upon a public highway, the town, within which the highway is situated, may sustain a bill in equity, for the pur- pose of trying the question of the right of the company, under their charter, to maintain their road in that place.^ 3 South Staffordshire Railway v. Hall, 3 Eng. L. & Eq. R. lOS. See also The London & N. W. Railway v. Smith, 1 Mac. & G. 216, 13 Jur. 417 ; East & W. I. Docks & Birmingham J. Railway v. Gattke, 3 Eng. L. & Eq. R. 59. 4 Walker v. The Eastern Counties Railway, 5 Railw. G. 469. And where the contract contains stipulations, in regard to communications with other lands, and similar accommodations, the arrangement in regard to them will be determined by the master. Saunderson v. Cookermouth & W. Railway, 19 Law J., Ch. 503. But it has been held, that where the contract provides that the price of land shall be settled by an arbitrator, it is not such a contract, as a court of equity will ordinarily enforce. Milnes v. Gery, 14 Vesey, 400 ; Adams v. London & B. Railway, 19 Law J. Ch. 557, 2 Mac. &. Gor. 118. See also on this subject, Mor- gan V. Milman, 13 Eng. L. & Eq. R. 312 ; s. C. aflEirmed, 17 Eng. L. & Eq. R. 203. And the party claiming specific performance must not be premature in his application, or have been guilty of unreasonable delay. Bodington v. Great W. Railway, 13 Jur. 144 ; South E. Railway v. Knott, 17 Eng. L. & Eq. R. 555. 5 Ante, § 81 ; Adams v. London and Blackwall Railway, 6 Railw. C. 271, 282; Williams v. So. Wales Railway, 13 Jur. 443 ; 3 De G. & S. 354. 6 Springfield v. Conn. River Railway, 4 Cush. ,63. In a very recent and well- considered case, Chapman v. Mad R. & Lake Erie Railway, and Sandusky City & Indiana Railw3,y, 8 Ohio St. R. 119, where the first company defendants, hav- ing received from private parties donations of land, subscriptions of stock, and payments in money, in consideration that, it should locate its road in a particular place, and allow private side tracks and warehouse privileges, in connection there- with, it was held, upon a bill in equity, praying an injunction, that the company will not be allowed to effectuate, a change in fact, though not in name, of the line of its road, so as to remove it from such place, by getting up a new company and 530 § 209.] EQUITY JTJRISDICTIO^T IN EBttARD TO RAILWAYS. '487 SECTION V. INJUNCTIONS TO CARET INTO EFFECT OEDERS OF RAILWAY COMMIS- SIONERS. 1 . Eailway companies perform important pub- lic functions. 2. Courts of equity will enforce order of rail- way commissioners, without revising. § 209. 1. The office of the former Board of Trade in England, and that of Eailway Commissioners, in many of the American states, is the same. Apd in England, this office of the Board of Trade, is now, or was for a time, performed by a board denomi- nated The Railway Commissioners. The office of such com- missioners, both in England, and this country, seems to be, the protection of the public, from abuses of railway companies. The jurisdiction of such commissioners is therefore of necessity con- fined to such matters, as affect the public, and does not ordina- rily extend to such private matters, in the management of rail- ways, as affect the stockholders only, in their pecuniary interests, and relations. This result seems to follow, almost of necessity, from the very nature of the * subject-matter. So far as the pub- lic security, and convenience, are concerned, both in regard to the transportation of passengers and freight, and the carrying of parcels, by express, these companies are public functionaries, so to speak, and as such, under the supervision and control of the public police, as much, as other public officers ; but in regard to their stock, and the management of their internal pecuniary functions, they are, to all intents, private companies, as much so, as manufacturing, or other mere business corporations. 2. Courts of equity have sometimes lent their aid, to prohibit railway companies from the violation of the orders of the railway constructing a new road, parallel with its old one, under a different charter, and permitting its old line to go to decay, without compensating the parties, with whom it had made such contract, for the former location. And the responsible defendant having leased the line of the other company's road, and suffered its own to fall to decay, so that an injunction restraining them from using the new line, unless they restored the old one, would not relieve the plaintiffs, and it being questionable whether the company had the means of restor- ing the old line, and the new one being the preferable one, it was held a, proper case for a decree compensating the orator in damages. 531 '488 THE LAW OF RAILWAYS. [§ 210. commissioners, where the public security would be thereby en- dangered. This was done, in a recent case, where the railway commissioners, having inspected a railway, about to be opened, directed the company to postpone the opening, and the company, notwithstanding, proceeded to open their road for business. The Attorney-General, as parens patriw, applied for an injunction, which was granted, the Master of the KoUs, Sir J. Romilly, refus- ing to inquire into the sufficiency of the reasons, which induced the commissioners to withhold their consent, saying that the company could apply to the Court of Queen's Bench, for a man- damus, to the commissioners, to dissolve the prohibition, if they wished to try that question.^ SECTION VI. EQUITABLE INTBEFEEENOE WHEBB COMPANY HAVE NOT FUNDS. 1. English courts mil not allow company to take land, when their funds fail, 2. This has been qualified by later cases, and is very questionable. 3. Equity mil not interfere where company propose to complete but part of works. n. 4. Cases reviewed, and result stated. § 210. 1. The courts of equity seem, at one time certainly, to have considered the undertaking of the company to build the road, so far the equivalent for the privilege conferred upon them, of taking private property, against the will of the owner, that if it were shown conclusively, that the company never could com- plete their * undertaking, they would restrain them, by injunction, from taking land, under the powers granted them.^ But in an- other case,^ Lord Eldon explains the ground of his former decis- ion thus : " In Agar v. The Regent's Canal Company, I acted on the principle that, -where persons assume to satisfy the legislature, that a certain sum is sufficient for the completion of a proposed undertaking, as a canal, and the event is that that sum is not nearly sufficient, if the owner of an estate through which the 1 6 & 6 Vict. c. 55, § 6 ; 7 & 8 Vict. c. 85, § 17 ; Attorney-General u. Oxford, Worcester & Wolverhampton Railway, Weekly Report, 1853, p. 330 ; Hodges on Railways, 671 ; post, § 247. 1 Agar V. The Regent's Canal Co; Cooper, 77. 2 The Mayor of King's Lynn v. Pemberton, 1 Swanst. 244. 532 § 210.] EQUITY JUKISDICTION IN RESARD TO RAILAVATS. * 488 legislature has given the speculators the right to carry the canal, can show that the persons so authorized, are unable to complete their work, and is prompt in his application for relief, grounded on that fact, this court will not permit the further prosecution of the undertaking." This we apprehend would, at the present day, require to be received with considerable allowance. 2. In another case,^ Lord Cottenham thus explains Lord El- don's decision above : " I apprehend that Lord Eldon must have gone upon this ground, that where acts of parliament impose certain severe burdens upon individuals, by interfering with their private rights and private property, for the purpose of obtaining some great public good, if the court sees that the undertaking cannot be completed, and that therefore the public cannot derive the benefit, which was to be the equivalent for the sacrifice made, by the public, the court wiU protect the individual from being compelled tp make the sacrifice, under the circumstances, and until it appears, that the public will derive the proposed benefit fi'om it." And even with this qualification, it seems to us, that it would be impossible for a court of equity, to exercise much control over these enterprises, ^yithout virtually assuming a supervision over the doings of the legislature, and the business of the country, which would be impracticable, and invidious. It is obvious this purpose has been virtually abandoned in the Eng- lish courts of equity.* 3 Salmon v. Eandall, 3 Mylne & Cr. 439. * Blakemore v. The Glamorganshire Canal Navigation, 1 Myl. & K. 154 ; Gray V. The Liverpool & Bury Railway Co. 4 Railw. C. 235. In this last case, the company had, to induce the plaintiff to withdraw opposition, consented to incor- porate into their act, a provision, that the line of the railway should not come within a certain distance of a bridge named, without the plaintiff's consent. Upon examination it turned out that plaintiff owned all the land within the line of deviation, from that point, so that the road could not proceed, without the plaintiff's consent. The Master of the Rolls held this could make no difference, even in the construction of the stipulation. The parties mast be presumed to have understood the matter, and to have made their contract understandingly, and the court should not defeat it. See also Lee v. Milner, 2 M. & W. 824, and the remarks of Alderson, B., lim- iting thei right of a court of equity, to restrain the company from proceeding to take land, to oases where it is evident, they have virtually abandoned the enter- prise, and have no longer any serious expectation of accomplishing it, which to us appears the only practicable ground, upon which a court of equity could inter- fere. Thicknesse v. Lancaster CanakCo. 4 M. & W. 472. 45 * 533 '489-490 THE LAW or RAILWAYS. [§■211. * In the case of Gray v. The Liverpool & Bury Railway, the Lord Chancellor declined to interfere, until the legal right was determined in a court of law, if either party desired it, thelnjunc- tion standing in the mean time, to sustain all existing rights. 3. But a court of equity will not interfere, because a railway company do not propose to complete their entire line. The rem- edy, in such case, if any, being by mandamus.^ A canal com- pany were restrained by injunction, from converting a canal, for erecting which the company were incorporated, into a railway.^ But where the directors of a railway company, with the concur- rence of the shareholders, on finding the original undertaking impracticable, proceeded to construct a small portion of the works, which were nearly completed, the court declined to inter- fere by injunction, at the instance of the minority of shareholders, on the ground of their acquiescence, they having known, or had the means of knowing, the progress of the acts complained of.^ SECTION VII. EQUITABLE CONTROL OF THE MiySTAaBMENT OF RAILWAY COMPANIES. 1 . Courts of equity will not interfere in mat- ters remediable by shareholders. 2. Will not restrain company from declaring dividend till works are Jinished. 3. Will interfere to enforce public duty rather than a private one. 4. Will restrain such companies from divert- ing funds to illegal use. 5. Interference of court of equity cannot be claimed upon the assumption of the prac- tical dissolution of company. * 6. Directors liable to same extent, as other trustees. 7. Managing committee not chargeable with the fraudulent acts of its members. 8. Courts of equity will not enforce resolu- tions of directors, or company. 9. Suits in equity in favor of minority against majority. 10. Minority may insist upon continuing the business till charter expires. 1 1 . Minority may have bill against directors for not resisting illegal tax. 12. Company may expend funds in resisting proceedings in parliament. Equity will not compel directors to de- clare dividend, unless they wilfully re- fuse. Directors only liable for good faith and reasonable diligence. 13 14 § 211. 1. There have been numerous instances of application 5 The Attorney-General ),. The Birmingham & Oxford J. Railway, and other companies, 7 Eng. L. & Eq. R. 283. See Reg. v. Eastern Counties Railway, 10 Ad. & Ell. 531 ; Cohen v. Wilkinson, 5 Railw. C. 741. e Maudsley v. Manchester Canal Co. Cooper's C. Pr. 510. 1 Graham v. Birkenhead, Lancashire, & Cheshire J. Railway, 2 Mac. & G. 146 ; 2 Hall & T. 450. 534 § 211.] EQUITY JUKISDICTION IN KEGAED TO RAILWAYS. '490 to courts of equity, to interfere in the control of the management of railway companies, in respect of their internal concerns. But as a general rule it is said,' whenever the acts complained of are capable of being rectified, by the shareholders themselves, in the exercise of their corporate powers, equity will not interfere, but leave questions of internal management and regulation, to be settled by the shareholders in corporate meeting. And especially is this the case, where the act complained of, is clearly within the power of the company.^ 2. Hence it was held, that equity had no jurisdiction to restrain a railway company, from declaring a dividend, until their works were all completed, there being no provision in the acts, to that effect.2 3. But courts of equity are far more ready, upon a bill prop- erly framed, to interfere to enforce a public duty of a railway company, than a mere private duty. 4. So, too, as we have seen,^ they very often interfere to restrain companies of this kind, from making use of their funds, for a purpose, whoUy aside of the general object of their incorporation, and this wiU be done, at the suit of shareholders, although a majority may have sanctioned, by their votes, the act complained of.* 1 Hodges on Railways, 67. 2 Brown v. Monmouthshire Railway and Canal Co. 4 Eng. L. & Eq. R. 113. But where the charter of a railway company provided, that unless certain por- ■ tions of the worls; should be completed, within a specified time, no dividend should be declared by them, until the works were so completed, so far as their ordinary shares were concerned, the company were enjoined from making any dividend con- trary to the charter. Allen v. Talbot, 30 Law Times, 316, (Feb. 1858.) 3 Ante, § 56 ; Bagshaw v. The Eastern Union Railway, 7 Hare, 114. So may one, or more shareholders, file a bill, on behalf of themselves and others, against any officer, who is diverting the funds of the company, from their lawful use. Salomons v. Laing, 12 Beavan, 377; 6 Railway C. f52; Edwards v. Shrewsbury and Bir. Railway, 2 De Gex & S. 537. 4 In the case of Brown v. Monmouthshire Railway, 4 Eng. L. & Eq. R. 113, Lord Langdale, M. R., after some rather spicy, but highly pertinent strictures, upon the prominent disposition of these public companies to take advantage of every possible evasion, seemingly to gain time, to the serious damage of their own character, for frankness if not for fairness, upon the general merits of the bill, makes the following very prudent and comprehensive exposition of the gen- eral subject : " Having given my best attention to this case, and thinking it of very great importance, and of some difficulty, I am, on the whole, of opinion that 535 * 491 THE LAW OP RAILWAYS. [§ 211. * 5. In a case, where the plaintiffs complained, that the direc- tors of the Victoria Park Company, and certain others, proprie- this bill cannot be sustained. The jurisdiction of this court has, in several cases, been very usefully applied in preventing or checking the erroneous conduct of corporations created by act of parliament for public purposes ; but it is not set- tled to what extent, or subject to what particular limitations, the jurisdiction ought to be exercised ; and unless parliament should think fit to lay down rules for the guidance of the courts, litigation to a considerable extent must, I am afraid, take place. The class of cases in which this court has often been called upon to interfere, are those which arise out of a combination of acts which are in themselves illegal, and considered as breaches of contract with the public, — acts which are breaches of contract, express or implied, with the subscribers to the undertaking, and acts erroneous, or breaches of contract incapable of being rec- tified by the shareholders themselves in the exercise of their own powers. In almost all cases it is necessary to distinguish two things, which, although they often are, and always ought to be, concurrent, are in themselves distinct, and are very apt to be confounded. There is the duty of the committee, directors, or governing body, to the public, and their duty, to the shareholders, whom they represent. In this case, the duty of the company to the public made it impera- tive upon them to complete their works in a limited tinie, and to let the works remain unfinished after the expiration of the time is a violation of their duty to the public, and a violation which, if permitted, would enable the company to do that which this court has repeatedly exercised its jurisdiction and power to pre- vent. If they are allowed to neglect the completion of their works until after the expiration of the time limited by the act, and are then allowed to make profit of so much as they have done, and to abandon the rest, it would seem that the means might at any time be found to abandon any part of their works at their own pleasure, and thus might extensive fraud be committed upon shareholders • who had subscribed for the whole works. Such permitted violation of a duty to the public would show a most unfortunate state of the law, and be, in my opinion, a great injury to the public. But regarding this as a ptiblic wrong, or as a vio- lation of duty to the public, it does not appear to me that this court has jurisdic- tion to interfere. The case does not appear to me to come within the authority of any decided case, or within the principle of the cases in which the court has interfered to prevent application of funds, subscribed for a whole purpose, to the completion of a part of it only; nor can it, I think, be safely said, that in no case whatever ought joint-stock cflmpanies to be allowed to divide any profits, or re- ceive any tolls until all their works have been completed. If parliament so. enacted, it would probably be much better for the public, and also much better for the" companies or shareholders themselves ; but it is plain that the aflFairs of a company might be in such a state, with such probability of being at anytime able to raise all the capital required for the completion of their works, that there would be no risk whatever in dividing some interim profits. But so far as the public interest is concerned, I do not think that this court has, on such a bill as this, jurisdiction to interfere. As to the duties which the governing body of such a company owe to their constituents, the shareholders, this court does not attempt 536 § 211.] Equity jurisdiction in regard to railways. *492 tors of * shares, had entered into speculating purchases of the property of the company, and a majority of the directors being bankrupts, were not competent to exercise such office, and that the defendants were in various modes squandering the property of the company, and praying for the appointment of a receiver, and an injunction to compel the application of the company's resources to the extinguishment of its liabilities, and for the winding up of the affairs of the company, the vice-chancellor held, that upon the facts stated, he must presume the existence of a board of direction de facto, and the possibility of conven- ing a general meeting of proprietors, capable of controlling the acts of the existing board, and that there therefore appeared no insuperable impediment, in the way of the company obtaining redress, in its corporate capacity, for the acts complained of, and that therefore the plaintiffs could not sue in a form of pleading, which assumed the practical dissolution of the corporation.^ In to direct the performance of all such duties, but, on the contrarj', leaves to the companies themselves the enforcement of all the duties arising out of matters which are the subject of internal arrangement. It seems very improper, and very imprudent, to treat as profit any part of their funds or income, at a time ■when they are without the pecuniary means of performing the works which they are bound to perform, in discharge of their duty to the public. The committee, with the sanction of the shareholders, are proceeding in a manner which (being attended with a constant breach of public duty) may result in the most serious injury to the shareholders themselves, in the same manner that any bad manage- ment injures those whose interests are affected by it ; but they do it for them- selves, and they must suffer the consequences. I think, therefore, that the de- murrer for want of equity must be allowed. It appears to me that this court has not jurisdiction to interfere, on the mere ground that the defendants are acting in violation of their duty to the public, and that the misapplication of the income is a proper subject of internal regulation." In Henry v. Great Northern KaMway, 30 Law Times, 10, it is held, that the holders of preference shares, as they are called in England, are entitled to have the company enjoined, from declaring any dividend, in favor of the ordinary shareholders, so long as the company remains liable to a deficit in their funds, caused by an officer of the company having defrauded them by forgeries. This case was affirmed in the Equity Court of Appeal, 30 Law Times, 141. See also Gifford V. New Jersey Railw. 2 Stockton's Ch. R. 171. 5 Foss V. Harbottle, 2 Hare, 461 ; Thames Haven Dock and Railway Co. v. Hall, 3 Railw. C. 441. This last is an action for calls, and the question of the existence of the company was attempted to be raised, after the case was set down for trial. It was held too late to raise such questions, and also that the validity of the authority of directors to make calls, as such, could not be raised in this 537 *493 THE LAW 0¥ RAILWAYS. [§ 211. a later case before the Lard * Chancellor, Cottenham, the opinion of Vice- Chancellor Wigram, in Foss v. Harbottle, is fully con- firmed, and it was conceded that it makes no difference, whether the acts complained of, as being transacted, by the usurping board of directors, were absolutely void and illegal, or merely voidable, at the election of the company. The Lord Chancellor said he had called for one case, where a court of equity had as- sumed to try the validity of the election of corporate officers, de facto exercising certain functions, and this at the suit of individ- ual shareholders, where there appeared no impediment to the corporation seeking redress, by mandamus, or any appropriate remedy, and as no such case ha^ been produced, he should as- sume, that none existed, and he would not be the first to make such a case.^ mode ; and that after plea, it will be presumed that the attorney, bringing the suit, was appointed under the seal of the company, and the court refused to allow a plea, raising these points, to be filed, at this late hour. See also Exeter and C. Railway v. Buller, 5 Railw. C. 211, where it is said, that if the directors refuse to comply with the vote of a majority of the shareholders, a court of equity will compel them to do so, by injunction. But the allegation that shares were' bought up, by interested parties, to change the vote, is nothing which a court of equity will consider. That is what every one may lawfully do, if he do not infringe the terms of the charter. Mozley v. Alston, 1 Phil. C. C. 790. 6 Mozley V. Alston, 1 Phillips, 790 ; Lord v. Copper Miners' Co. 2 Phillips, 740 ; Bailey v. Birkenhead, Lancashire, and Ch. J. Railway, 6 Railw. C. 256. In this last case it was held, that acts not set forth in the bill, although declared to be public acts, could not be referred to, in an argument on demurrer. It should be borne in mind, that the distinction attempted to be drawn, from some of the cases, between void acts of the directors and those which are merely void- able, is important chiefly, in determining the discretion of the Chancellor, and is to be viewed in these cases, much as in other cases, where the authority of agents comes in question. Hodges on Railways, Tl. And in Hichens v. Congreve, 4 Simons, 420, where certain persons agreed for the purchase of certain iron and coal-mines for £10,000, formed a joint-stock company for working them, and stipulated for the sale of the mines to the company for £25,000, the £15,000 to be divided among the projectors and their friends, who acted, as officers of the company, which being acceded to by the company, and the money distributed accordingly, upon a bill brought by some of the shareholders, on behalf of them- seloes and the others, against the persons, who had participated in the £15,000, the latter were decreed to refund, what they had received, and one of them having become bankrupt, after he had paid the amount received by him, into court, under an order upon motion, it was considered, that the plaintiffs were entitled to receive that sum, and were not to be put to prove their demand under 538 § 211.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. * 494 6. But it seems to be well established, that the directors of a corporation are liable personally, each for his own share, in any loss occasioned to the company, for malversation, in the exercise of his functions, whether misfeasance, malfeasance, or non-feas- ance, the same as any other trustee,' and redress may ordinarily be obtained in equity.^ And it seems in such cases, as each director * is liable only, for his own act, and those to which he has assented, and there is no contribution among wrong-doers, there is no necessity, that all the board should be parties to the bill, and although strictly the proceeding should be instituted, in the name of the company, many exceptions are allowed, in this respect, as where the loss falls exclusively, upon a portion of the shareholders, and where the majority are proceeding, in violation of the fundamental law of such companies.^ the commission. Upon the question, who are to receive the benefit of the restitution, the vice-chancellor said, " Those who now are, and those, who, by assignment from the present proprietors, may become members of the com- pany." Directors to whom tlje entire management of the company is intrusted, and who receive a remuneration for their services, out of the funds of the company, are under an obligation to the shareholders at large, to use their hesl exertions, in all matters, which relate to the affairs of the company. And without any stipula- tion to that effect, the duty results, from the employment, not to make any profit out of the employment, beyond their compensation, and not to acquire any ad- verse interest, while they remain directors. Benson v. Heathorn, 1 Y. & Coll. C. C. 326. See also Robinson v. Smith, 3 Paige, 222. So, too, a director is liable to account for premiums received upon the sale of shares. York and N. M. Railway v. Hudson, 19'Eng. L. & Eq. R. 361. It was held in this case, that the directors could not discharge themselves from such a claim, by suggesting that the money had been expended for secret purposes, connected with the enterprise, and that persons in a fiduciary relation could not retain any remuneration for their services. But upon this last point, see Hall v. Vermont and Mass. Railway, 28 Vt. R. 401. Where the stock of certain shareholders, was about to be sold, and the officers of the company appointed an agent to buy it " for the use of the company," but when purchased they took a portion of it to themselves, it was held they were liable, in an action at law, (in Penn.) to any shareholder, for the damage thereby sustained by him. Kimmel v. Stoner, 18 Penn. R. 155 ; Attor- ney-General V. Wilson, 1 Craig & Phillips, 1. Redress in such cases is to be sought ordinarily it would seem in the name of the corporation. Society of Practical Knowledge v. Abbott, 2 Beavan, 559. But very extensive amendments in the frame of the bill, and even in the names of the parties, will be allowed. Jones V. Rose, 4 Hare, 52 ; Fellowes v. Deere, 3 Beavan, 353 ; 7 id. 645 ; Tooker V. Oakley, 10 Paige, 288. ' Preston v. Grand Collier Dock Co. 2 Railw. C. 335 ; s. c. 11 Simons, 327 ; 539 *495 THE LAW OF RAILWAYS. [§ 211. 7. And where the managing committee employed the funds of the company, in buying up the shares, in the market, it was held that the members of the committee were not properly charged with these sums, in winding up the concern.^ But the vice- chancellor said he entertained no doubt of it being a breach of trust, and that" the parties, and all the parties, aiding, or coun- selling it, when properly brought before the master, might be made liable.^ 8. But a court of equity will not entertain a bill to compel a railway ' company to apply funds, raised, by the issue of new stock, according to the resolution by which the new stock was created, by the directors of the cqmpany.® 9. It is a settled rule of equity law, that the minority of the shareholders, in a joint-stock corporation, may maintain a suit, to restrain the directors of the company, or the majority of the shareholders, from entering into a stipulation, whereby the busi- ness of the company is changed, and directed into channels and enterprises, wholly diverse from those originally contemplated, and entered upon, and from which their emoluments had been derived.io / 10. It is the implied law of the association, that the business shall continue, to the limit of the time fixed by the charter, if it prove remunerative, and " it is the right of a partner to hold his associates, to the specified purposes, while the partnership con- tinues." ^^ 11. And where the directors of a bank refused to take the proper measures to resist the collection of a tax, which they them- selves believed to have been imposed upon them, in violation of their charter, this refusal amounts to what is termed in law a breach of trust, and a stockholder may maintain a bill in equity Wall-worth v. Holt, 4 My. & Cr. 619. Each shareholder has a distinct interest in dividends declared on stock, which cannot be represented, by other share- holders, suing on behalf of themselves and the rest of the shareholders. Carlisle V. Southeastern Railway, 6 Railw. C. 670. See also the opinion of Lord Cran- wortli, V. C, Beeman v. Rufford, 6 Eng. L. & Eq. R. 106 ; Hodges on Rail- ways, 71. 8 London & Birmingham, &c. Railway in re, 13 Eng. L. & Eq. R. 201. 9 Yetts V. Norfolk Railway, 5 Railw. C. 487 ; 3 De G. & S. 293 ; 13 Jur. 249. W Kean v. Johnson, 1 Stockton (N. J.) Ch. R. 401 ; ante, § 20. 540 § 212.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. '496 against them, asking for such remedy, as the case might re- 12. And it would seem that the company might expend their funds, to a reasonable amount, in resisting proceedings in parlia- ment, the tendency of which will be to injure the company.^^ 13. But a court of equity will not compel the directors of a corporation to declare dividends, out of the surplus earnings of the. company, unless they are shown to have refused, from a wilful abuse of their discretion.'^ 14. The directors are only liable, for good faith, and reasonable diligence.'^ •SECTION VIII. APPLICATIONS TO LEGISLATURE FOR ENLARGED POWERS. 1 . Equity will not restrain railway companies from petition for enlarged powers. 2. The early English cases favored such ap- plications. 3. Theproper limitations stated. § 212. 1. In general, perhaps, courts of equity would not feel called upon to restrain the directors and agents of the company, from applying to the legislature, for an alteration, or enlargement of their powers, for this is sometimes indispensable for the accom- plishment of the objects of their creation, and very often highly desirable. There are numerous instances in the books, ^ of com- panies being enjoined from proceeding to certain works, until they did obtain such an enlargement of their powers. But it is not uncommon for a court of equity to restrain the company, from applying their existing funds to such purpose.^ And where 11 Dodge V. Woolsey, 18 How. Sup. Ct. Eep. 331. 12 Bright V. North, 2 Phill. 216, before Cottenham, Lord Chancellor. This was the case of the conservators of river banlis, whose funds are raised by a rate upon the adjacent land-owners, and is stronger, perhaps, than that of a railway com- pany. And the Lord Chancellor seemed to entertain so little doubt of the duty of the commissioners, to expend money in opposing any grant in parliament, which would injure the works, under their care, that he did not call for argument, in favor of the exercise of the right. 13 Smith 0. Prattvilfe Man. Co. 29 Ala. R. 503. 1 Frederick v. Coxwell, 3 Y. & J. 514. 2 Stevens v. South Devon Railway, 2 Eng. L. & Eq. R. 138. In this case, and in Parker t: Dun Navigation Co. 1 De G. & S. 192, the company entered into a stipulation, that the objectors should be heard before the parliamentary committee, 46 541 *497 THE LAW OF RAILWAYS. [§ 212. the new scheme is in conflict with the interests of other railways, who, by leave of the legislature, own shares in the company ap- plying for an extension of their line, or an enlargement of their powers, equity will not restrain them absolutely from procuring the contemplated grant, but only from using their funds for that purpose ; and will also prohibit one company from keeping its proceedings secret, as to another company, owning part of their stock, and will generally enjoin the act of a majority of a joint- stock company, where the voice of the minority is not properly heard at the meeting, or is agreed to be disregarded, by previous concert.^ 2. The early cases, upon this subject, before Lord Brougham, as Chancellor, although, in some respects, more liberal, in favor *of allowing applications to parliament, seem to be more in accord- ance with the spirit of enterprise, in this country, than some of the recent English cases.* 3. The most, which upon principle, can be justified, in this direction, is, to restrain the company from applying their existing funds, either to the obtaining of enlarged powers, or to carrying them into effect. But the question of enlarging the powers of the company, or altering its fundamental law, is a matter resting altogether, in the discretion of the legislature. But this, if accomplished, will not bind the existing shareholders, who have not assented to the alteration, but must be carried into effect, by a new subscription probably, and this will subject the corporation to the embarrass- ment of a double accountability, or the apportionment of loss and profits, upon the several portions of the enterprise.* ■without which, it is said, in the English practice, before such committees, where the application is in the name and behalf of the company, shareholders objecting are not allowed to be heard. 3 Great Western Railway v. Rushout, 10 Eng. L. & Eq. R. 72. See also Const u. Harris, 1 Turner & Russell, 496, where Lord Eldon goes into an elabo- rate consideration of the rights of the minority of joint-stock companies, and what acts of the majority are binding upon the company. Attorney-General «. Nor- wich, 9 Eng. L. & Eq. R. 93. i Hare v. The Grand Junction Water Works Go. 2 Russ.*& Mylne, 470. And see Ward v. The Society of Attorneys, 1 Collyer, 370 ; Munt v. The Shrewsbury & Chester Railway, 3 Eng. L. & Eq. R. 144. See Cunliffe v. Manchester & Bolton Canal Co. 2 Russ. & Mylne, 480, in note. Ante, § 56. 542 § 213.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. 498 SECTION IX. SPECIFIC PERFORMANCE. 1. Courts of equity will often hold control over railway contracts, referring the question of law to the courts of law. 2. But where the legal right is clear, equity will not interfere. 3. And where the affidavits are conflicting, court declined interfering. 4. So, too, where the company agreed to stop at a refreshment station. 5. So also, if there is doubt of the legality of the contract, or its character. 6. A contract between different companies for the use of each other's track is perma- nent, and will be enforced in equity. 7. Will decree specific performance in regard to farm accommodations. § 213. 1. There can be no doubt courts of equity will, in proper cases, decree specific performance of conti-acts, between different ^ilways, or between natural persons, and railway com- panies. But where the legal rights of the parties are doubtful, and no irreparable injury is to be apprehended, an action at law, to try the legal question, was ordered, and the business of the companies concerned was ordered to go on, the injunction of the vice-chancellor being dissolved by the Lord Chancellor for that purpose, and an account of passengers and traffic upon the rail- way, * in the mean time, ordered to be kept, to enable the Chan- cellor ultimately to adjust the question of damage, according to the decision of the question at law.^ 2. But it was said, in another case,^ by the Lord Chancellor, reversing the decree of the vice-chancellor, that the court cannot, upon an alleged equity, interfere with an admitted legal right, unless there be a manifest certainty that, at the hearing of the cause, the plaintiff will be entitled to relief: That the title to relief in this case was not so clear, as to justify the court in con- 1 The Shrewsbury & Birmingham Railway v. The London & N. W. Railway & The Shropshire Union Railway, 1 Eng. L. & Eq. R. 122. The question in this case was whether the defendants, according to a certain contract, claimed to exist between the companies, is at liberty to do business, between certain points. It was claimed, among other things, that the contract was wholly void, as against public policy. Furness Railway Company v. Smith, 1 De G. & S. 299 ; ante, § 181. 2 Playfair v. Birmingham, Bristol and Thames J. Railway, 1 Railw. C. 640. Courts of equity will not decree specific performance of the contract of directors of a railway company, which is grossly improvident. 29 Law Times, 186. 543 *499 • THE LAW 0¥ RAILWAYS. [§213. tinuing the injunction, except upon the terms of the -plaintiff giving judgment in the action, and paying the amount sued for into court. 3. And in a case where the time for taking land under the company's act had expired, they having purchased land of A, and of B, and being about to enter upon the land to which they supposed they had purchased the title of B, A, claimed a life- estate in the same, and brought this bill to restrain the company from proceeding to appropriate it. The affidavits being conflict- ing, the court refused to interfere, by injunction, but left the plaintiff to his remedy at law,^ 4. So, too, the court refused to grant an injunction requiring the company to stop their train, at a refreshment station, as the plaintiff claimed they had agreed to do, the company undertaking to pay such a sum of money, as may be assessed as damages, for the violation of the covenant, to be ascertained by the fiourt.* * 5. But where any doubt arises, in regard to the legality of a contract, or if it be not of a class, where specific performance is usually decreed, the court wiU not interfere by injunction.^ 6. A contract between two railways, that each shall run upon the track of a portion of the other's line, is of a permanent char- acter, and cannot be determined, without the consent of both parties, although, in terms, it do not specify " successors," and if 3 Webster v. The Southeastern Railway, 6 Eailw. C. 698. * Kigby V. The G. W. Railway, 1 Cooper's Cases, 6 ; s. c. 4 Railw. C. 491. In this case at law, 4 Kailw. C. 190, it was held to be unnecessary to aver, that the trains passing the station, in violation of the covenant, contained passengers desir- ous of having refreshment, and who gave notice thereof. Alderson, B., said : " I think the meaning of the covenant is, that the parties' have undertaken to stop the trains, in order to the temptation, so to speak, to the passengers to take re- freshment." 14 M. & W. 811. The covenant in this case contained an exception of trains " sent by express, or for special purposes," and this was held not to in- clude what are properly called " express trains." Hodges, 64. 5 Johnson v. Shrewsbury & B. Railway, 19 Eng. L. & Eq. R. 584. This is the case of a railway leasing their line and furniture to plaintiffs, and the bill prayed an injunction against the railway determining the contract, contrary to what they claimed to be its true construction. The court said, that by the working of the line by other parties than the company, the public loses the benefit of the guar- anty thereby afforded for care and attention. Such an agreement, would seem to be illegal, as contrary to public policy. But if legal, the plaintiffs had ample remedy at law. Foster v. Birmingham & Dudley Railway, Weekly R. 185Sj 1854, 378 ; Hodges, 680. 544 § 214.J EQtriTY JURISDICTION IN REGARD TO RAILWAYS. * 500 the line of one of the companies is leased to a third company, a court of equity will restrain the other party, from interfering with the use of the line granted to the third company, or its lessees. A contract for such an easement need not be by deed.^ 7. Courts of equity will decree specific performance of con- tracts by a railway company with a land-owjier, in regard to farm-crossings, and such like works, upon the lands of the com- pany, in which such party has an interest, so material, that the non-performance cannot be adequately compensated at law.^ SECTION X. INJUNCTIONS RESTRAINING ONE COMPANY FROM INTERFERING WITH EXCLUSIVE FRANCHISES OF ANOTHER. 1 . Equity exercises a preventive jurisdiction in svich cases. 2. Will not interfere where the legal right is doubtful. 3. Unless to prevent irreparable injury, multi- plicity of suits, or where legal remedy is inadequate. 4. Statement of facts and mode of procedure in stick a case. Injunction against different lines, so con- necting, as to create competing line. Many cases take similar view. Railway not regarded, as an infringement of the rights of a canal. But will be restrained from filling up the canal. § 214. 1. The subject of the exclusive franchises of corpora- tions * will be considered elsewhere. But equity exercises a jurisdiction of a preventive character, by way of injunction, in regard to alleged infringements of such franchises, which is of a very important character. The general grounds of such interfer- ence are clearly and fully stated, by Wigram, Vice-Chancellor, in the case of Cory v. The Yarmouth & Norwich Railway .^ 6 Great Northern Railway v. Manchester, Sheffield & L. Railway, 1 Eng. L. & Eq. R. 11. 7 Storer v. Great Western Railway, 3 Railw. C. 106 ; ante, § 39. 1 3 Railw. C. 524 ; s. c. 3 Hare, 593. This was a case, where the plaintiff owning a ferry, obtained an act of parliament, allowing him to build a bridge, and enacting that any persons, who should evade the tolls, by conveying passengers, &c. over the river, otherwise, than by the bridge, should subject themselves to a penalty of 405. for each offence, to be recovered, in a summary way, before a jus- tice of the peace. The defendants purchased of the plaintiff a piece of land, for a terminus, within the limits of the ferry, and a clause was inserted, in defend- 46 * 545 * 501 THE LAW OF RAILWAYS. [§ 214. 2. It is considered, that this interference is solely in aid of the legal right ; that if the legal right, is free from doubt, equity may assume to decide it, or to act definitively, upon its acknowledged existence. K it is considered conjectural, and altogether prob- lematical, equity ordinarily will not interfere, until the legal right is established, by the judgment of the appropriate legal tribunal. 3. But in their discretion courts of equity will interfere, by in- junction, during the pendency of the trial, at law, to prevent irrep- arable injury, to avoid multiplicity of suits, and in some cases, where there is given no adequate legal redress. But where the injury is small, and readily susceptible of estimation, equity will not generally interfere, to the prejudice of the trial, at law. 4. But in this case, where the only remedy, given by the act was by recovering penalties, de die in diem, in a summary way, be- fore a justice, which would not settle the right, the court directed an issue, to be tried, at law, to settle the rights of the parties, suggesting the outlines of the issue, the Master to direct the de- tail of the trial, and in the mean timedirected the defendants, to keep an account of aU passengers, and carriages, and all other things, conveyed by them, and in respect of which the plaintiff would be entitled to any payment or toll, if the same had passed over his bridge, and to furnish a copy of such account to the plaintiff, before the trial, if requested. * 5. In a recent very elaborate case,^ this subject is discussed very much at length, by an experienped, and learned judge, and the conclusion arrived at, that the plaintiffs' charter expressly providing, that no other railway should be authorized, by the legislature, within thirty years, leading from Boston, Charles- town, or Cambridge, to Lowell, or to any point, within five miles of the northern terminus of plaintiffs' road, it was not competent ants' act, that they would not erect a bridge over the river, without the plaintiff's consent, and that nothing therein contained should prejudice, or affect the right of the plaintiff to the ferry, or bridge, or to the tolls. The railway company dug a canal to the river, and by means of a steamboat conveyed their passengers from their terminus to a point, in Yarmouth, upon the opposite shore, much below the plaintiff's bridge. The form for an order, for a trial at law in such cases, will be found in the report of this case. 2 Boston & Lowell Railway v. Salem & Lowell and other Railways, 2 Gray's E. 1. See;)os(, § 231, where the substance of the opinion of the court, upon the con- stitutional question, is given. 546 § 214.] EQUITY JUEISDICTION IN REGARD TO RAILWAYS. * 502 for the defendant companies, to so connect their roads, as to make a continuous line, from Boston to Lowell, by Salem and Lawrence, even if it were conceded that the legislature might, by express grant have created a rival road, from Boston to Lowell, infringing the\erms of the plaintiffs' grant. And inasmuch as the defendants had so conducted their business, as virtually to create a rival line, from Boston to Lowell, in contravention of the express terms of the plaintiffs' grant, without the express per- mission of the legislature, it did constitute such an infringement of plaintiffs' charter, as to be a nuisance, to their rights, for which they are entitled to a remedy. And the court accordingly granted a perpetual injunction against the infringement of plaintiffs' rights, in the manner complained of. 6. There are many other cases, taking substantially the same view, of the propriety of equitable interference, to protect corpora- tions, against infringements of their corporate franchises.^ 7. And it has been held, that a grant to a canal company, to * collect tolls for transportation, with an express stipulation against their being j^duced by the act of the legislature, is not impaired, by the grant of a railway, along the same route, with power to take the lands of the canal, for its construction, when necessary.* 3 Newburg & Cochecton Turnpike Co. v. Miller, 5 Johns. Ch. 101, 111 ; Ogden V. Gibbons, 4 id. 150, 160; Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611. A railway bridge is an interference with the charter franchise of a toll-bridge, for a turnpike or highway. Enfield Toll-Bridge Co. v. Hartford & New H. Rail- way, 17 Conn. R. 40. And in s. c. 17 Conn. R.^54, it is considered, that the condition in the plaintiffs' charter, that no person shall erect another bridge, with- in the limits of Enfield and Windsor, is a part of their franchise, and not a dis- tinct covenant. But where the charter of the toll-bridge contained no exclusive grant and no limitation, in regard to the power of future legislatures, to erect other similar bridges, it was held they had no exclusive franchise, and that an injunction would not be granted against another company, chartered by the legis- lature, within such distance, as to lessen the tolls of the first company. Mohawk Bridge Co. v. The Utica & Schenectady Railway, 6 Paige, 554. This was the case of a railway, indeed, which is not so obviously an evasion of the rights and interests, of the toll-bridge company, as a company precisely similar, but even that is no infringement, unless the charter of the first company contained an ex- clusive grant. Charles River Bridge v. Warren Bridge, 11 Pet. R. 420 ; Dyer v. The Tuscaloosa Bridge Co. 2 Porter, R. 296. See also Thompson v. The N. Y. & Harlaem Railway, 3 SaiM. Ch.625 ; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547. * Illinois & Mich. Canal v. Chicago & Rock Island Railway, 14 111. R. 314. 547 ^503 THE LAW OB EAILWAYS. [§ 215. 8. An injunction was granted, at the suit of the state, to re- strain a railway company, from filling up a part of the state canal, and erecting an arch over it, which would obstruct its use, although it appeared that this portion of the canal had laid in a state of abandonment for many years.^ SECTION XI. INJUNCTIONS AGAINST THE INFRINGEMENT OF CORPORATE FRANCHISES IN THE NATURE OF NUISANCE. 1. Allowed to prevent multiplicity of suits, collisions, and riots. 2. Ijord Brougham's definition of the juris- diction. 3. Definition of same by Chief Justice Shaw. 4. Statement of the general grounds of equita- ble interference. § 215. 1. The cases coming under the general denomination of injunctions, to restrain nuisances to corporate franchises, are very numerous and various, too much so, by far, to be here' enumerated. It is a branch of equity jurisdiction, of ancient date, and which, in modern times, has been verja extensively resorted to, by the equity courts, in order to prevent irreparable damage, in various modes, as by multiplicity of suits, by collisions in the nature of riots, among the numerous champions of rival public enterprises, and for many other reasons, recommending this mode of redress, especially to public favor.^ 2. The grounds of equitable interference, in case of nuisance, are well stated by Lord Brougham, in The Earl of Ripon v. Ho- bart.^ " If the thing sought to be prohibited, is in itself a nui- sance, the * court will interfere to stay irreparable mischief, with- out waiting for the result of a trial, and will, according to the circumstances, direct an issue, or allow an action, and if need be, expedite the proceedings, the injunction being in the mean 5 Commonwealth v. Pittsburgh & Connellsville Railway, 24 Penn. R. 159. 1 Attorney-General v. Sheffield Gas Co. 19 Eng. L. & Eq. R. 639. This is a case where the injunction is denied upon the ground of the trivial character of the nuisance or damage, but the general grounds, of the jurisdiction of courts of equity, in such cases, being necessarily involved in the inquiry, are fully and ably discussed, by Turner and Bruce, Lords Justices, in giving their opinions. See also the opinion of Lord Eldon, in Attorney-General u. Nichol, 16 Vesey, 338, upon the same general subject. 8 3 Mylne & Keen, 169. 548 § 216.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. *504 time continued." But, says his lordship in substance, where the thing is only liable to prove such, according to circumstan- ces, the court will not interfere, until the matter has been tried at law. And the same general doctrine is maintained in other cases upon this subject.^ 3. In the case of Boston and Lowell Railway v. Salem and Lowell Railway et al.^ Chief Justice Shaw thus lays down the law upon this subject : — " An injunction wiU generally be granted, to secure a statute privilege, of which a party is in actual possession, unless the right be doubtful." * 4. The equitetble interference, by injunction, goes upon the ground, that the defendant's aets constitute a nuisance, and that the plaintiff sustains special damage thereby, and that the law affords no specific, and adequate remedy. Hence it is not com- petent for one, who suffers damage, in common with others only, to maintain a bill to enjoin a party, from the continuance of a public nuisance, under color of legislative grant.^ SECTION XII. INJUNCTIONS TO PRESBKVB PEOPEETY PENDENTE LITE. 1 . Will not decree specific performance, where mere question of damages. 2. Where injunction might operate harshly, parties put under terms. n. 2. Review of cases upon this subject. § 216. 1. There are some cases where courts of equity have interfered, by injunction, in controversies between different rail- ways, * to preserve the property, pending the litigation. But in a case where one railway company had leased its line and furni- ture, to another company, and this company proposed to disre- gard the contract, on the ground of its illegality ; and were 3 North Union Railway v. Bolton and Preston Railway, 3 Kailw. C. 345 ; Sem- ple V. London and B. Railway, 1 Railw. C. 120. * 2 Gray's R. 1. See also upon this point, ante, § 214, u. 3. Livingston and Fulton V. Van Ingen and others, 9 Johns. R. 507 ; Ogden v. Gibbons, 4 Johns. Ch. 174 ; Osborn v. Bank of U. States, 9 Wheat R. 738, 841. 5 Bigelow V. Hartford Bridge Co. 14 Conn. R. 565 ; O'Brien v. Norwich and Worcester Railway, 17 Conn. 372; Delaware and Maryland Railway v. Stump, 8 G. & J. 479. 549 * 504 THE LAW OF RAILWAYS. [§ 216. about entering into an arrangement, with another company, which would be in violation of the first contract, the court de- clined to interfere, by injunction, as it was not clear, that the first contract was valid, or that the loss to the second company, in not entering into their proposed arrangement, with the third company, might not be greater, than their loss, from violating the first contract.^ 2. In the English equity practice, in some cases, in considera- tion of the consequent delay and inconvenience, resulting from the injunctions, the courts have put the parties under terms, to obey the orders of court, and in default of complying with such orders, the injunction to issue. This is done, so as to effect sub- stantial justice to one party, withoiut imposing unnecessary hard- ship, upon the other.^ 1 Shrewsbury and Chester Railway v. The Shrewsbury and B. Railway, 4 Eng. L. & Eq. R. 171 ; 1 Simons, (n. s.) 410. See also Spiller v. Spiller, 3 Swanst. R. 656 ; The Great W. Railway v. The Bir. and Oxford J. Railway, 2 Phillips, 597 ; Farrow v. Vansittart, 1 Railw. C. 602. The question in this case was, whether a reservation, in the lease of land, of the minerals, and the right to remove them, implied the right to erect a public railway, and the Lord Chancellor continued the injunction, to preserve the property, during the pendency of the necessary trial at law. But by a late English statute, 15 & 16 Vict. ch. 86, sec. 61, courts of equity are authorized, in cases where they deem a trial at law unnecessary, to determine the question themselves. Under this statute the equity courts often avail themselves, as by the 14 & 15 Vict. ch. 83, § 8, they are allowed to do, of the assistance of one of the common-law judges. And it is held that the court will still, in a proper case, give leave to the party, to bring an action at law. Hodges, 676 ; ante, § 190. 2 Northam Bridge and Roads v. The London and Southampton Railway, 1 Railw. C. 653. This is a case, where the plaintiff prayed for an injunction upon defendants, from crossing their road, except by means of a bridge. The question of right being sent to the Court of Exchequer, and determined in favor of plain- tiffs, the Chancellor, upon the defendants undertaking to build the bridge with all possible dispatch, held, that an injunction ought not to be granted, during the time, that must necessarily elapse, in building the bridge. See also Spencer v. London and B. Railway, 1 Railw. C. 159 ; Jones v. Great Western Railway, 1 Railw. C. 684 ; London and Birm. Railway v. The Grand June. Canal Co. id. 224 ; Attorney-General v. The Eastern Counties Railway, 3 Railw. C. 337 ; Langford v. The Brighton L. & H. Railway, 4 Railw. C. 69. This was a controversy in regard to the payment of the price of land, which was in dispute between the parties. The bill prayed, that the defendants be re- strained from going forward with their works, until they shall have paid the amount demanded. The court held, they would not interfere, by injunction, to 550 §217.] EQUITY JURISDICTION IN REGARD TO RAILWAYS. *505 *SECTION XIII. INJUNCTIONS RESTRAINING PARTIES FROM PETITIONING LEGISLATURE. 1 . Bight claimed to exist, hut rarely exercised, by courts of equity. 2. Not sufficient, that it will inter/ere with rights of other parties. Where right doubtful may be sent to court of law for determination. § 217. 1. The jurisdiction of courts of equity to restrain par- ties from petitioning parliament, in fraud of their own contracts, seems to have been assumed to exist, in numerous cases, but its exercise is rare, and with marked circumspection.^ In a late case 2 the Lord Chancellor Cottenham said : " In a proper case, I should not hesitate to exercise the jurisdiction of this court, by injunction, touching proceedings in parliament, for a private bill, or a bill respecting property, but what would be a proper case for that purpose, it may be very difficult to conceive." 2. But it was here distinctly held, that it is not enough to jus- tify such an interference, that the object of the application was to interfere with some right, or interest, of some other party. For every act of the legislature, which is promoted, by private parties, is intended, more or less, to affect private interests of other par- ties. As for instance a railway very essentially affects the inter- ests of those land-owners, through whose lands it passes, and a private interest resulting from ownership of property is as sacred as that which rests upon contract. But no one would suppose, that because the company had obtained an act, or even given notice of taking land, that a court of equity would, at the suit stop the works, if perfect justice can be done, by compelling the company to pay for the land, but will order the proximate value to be deposited, until the amount be determined. 1 The Stockton & Hartlepool Railway v. Leeds & Th. & Clarence Railways, 2 Phill. 666. In this case Lord Cottenham, Chancellor, says: "There is no ques- tion whatever about the jurisdiction. This is the case of a petition against the Clarence company obtaining an act, enlarging their powers, and authorizing the amalgamation of the four companies, upon the ground that the plaintiffs having come into the arrangement, it was a fraud in them to oppose the act, by which it was to be effected. But the court refused the injunction, upon the ground, that the contract was merely inchoate." 2 Heathcote v. The North Staffordshire Railway, 6 Railw. C. 358. 551 * 506 THE LAW OF RAILWAYS. [§ 218. of the * land-owners, enjoin the company from applying to par- liament, to be released from their undertaking. This would still leave them liable to the land-owners, the ^me as before. Such is the substance of the opinion of the learned Chancellor in the la§t case cited. 3. In a case where the construction of the act of parliament is doubtful, the question was sent to a court of law, the injunction being continued in the mean time, under such modification, as to enable the defendants to perform a condition precedent in their contract with land-owners ; and it was said that mere incon- venience could not be viewed, in the light of injury, and that companies have a right to carry on their railway, according to the plan laid down in their act, although a junction contem- plated, in procuring the act, may be frustrated, by the abandon- ment of the line.3 SECTION XIV. INTERFERENCE OP COURTS OP EQUITY IN THE SALE AND DISPOSITION OF THE EFFECTS OF INSOLVENT COMPANIES. 1. Will interfere to save costs and litigation. | 2. All parties interested may come in. § 218. 1. Where there are sundry Ji. fas, against a railway company which is insolvent, and it is threatened to levy upon and sell the road, with its equipments, equity will take jurisdic- tion, direct a sale for aU concerned, and distribute the funds to such, as shaU show themselves entitled, according to the usual course of the courts of equity, in marshalling assets.^ 2. In such a proceeding, any one, who has a claim upon the fund, but who is not a party to the suit, may become a party, by presenting his claim, before the Master, or under the decree, be- fore it becomes final.^ But if he neglects to do so, equity will not aid hirn in setting it aside.^ Equity will not relieve against 3 Clarence Kailway v. The Great N. of England, Clarence & Hartlepool Rail- way, 2 Railw. C. 763. See also Attorney-General v. Manchester & Leeds Rail- way, 1 Railw. C. 436. 1 Macon & Western Railway v. Parker, 9 Georgia R. 377. A query is here suggested, whether the railway bed and superstructure are liable to the levy of the execution. At all events, they cannot be sold in fragments, or distinct por- tions, upon an execution. &52 § 219.] EQUITY JUMSDIOTION IN REGARD TO RAILWAYS. 507 a judgment recovered, through the negligence of the defend- ant.2 ♦SECTION XV. MANNER OP GRANTING AND ENFORCING EX PARTE INJUNCTIONS. 1 . Sitch injunctions especially liable to abuse. 2. In important cases not allowed, except upon notice to other party. 3. Injunction commonly dissolved, upon an- swer, denying equity. 4. Remarks of Lord Cottenham upon this subject. 5. Party who obtains such injunction, on im- perfect state of facts, liable to costs. § 219. 1. The general mode of obtaining ex parte injunctions is sufficiently understood to be by bill, verified by the oath of the party, and accompanying affidavits. This gives very great ad- vantages always, to unscrupulous suitors, and in a country where chancery practice is not a distinct department of the profession, so as to create always the highest standard of professional deli- cacy, and where it is too much the course of public opinion, to justify any degree of professional subserviency, to serve the pur- poses of clients, there are few instruments, in the range of legal proceedings, more susceptible of irreparable abuse, than an ex parte injunction, out of chancery. 2. Hence in modern times, when they are sought for the pur- pose of staying the operations of great public enterprises, either in construction, or operation, it has been more usual, not to allow them, except upon notice to the defendant, Bassett v. The Great Northern & Great Midland Railways, 28 Law Times, 254, January, 1857 ; s. c. 38 Eng. L. & Eq. R. 218. 1 Hodges, 557, 558. 687 '614 THE LAW OF RAILWAYS. [§ 249. powers of taking land in certain cases, or to allow the abandon- ment of railways, or certain parts thereof, which are found not sufficiently remunerative, tcf justify their continued operation.^ ' CHAPTER XXXVI. LEGISLATIVE SUPERVISION. POLICE OF RAILWAYS. SECTION I. OBLIGATIONS AND RBSTRICTIONS IMPOSED BY STATUTE. 1 . The benefits, and necessity of legislative control. 2. Provisions of English statute, in regard to traffic. 3. Control of the gauge. Might of public to use railway. § 249. 1. We have said something upon the subject of the power of the legislature to impose new obligations and restric- tions upon existing railways.'^ We now propose to speak briefly upon the subject, as applicable to railways generally. Railways being a species of highway, and in practice, monopolizing the entire traffic, both of travel and transportation, in the country, it is just and necessary, and indispensable to the public security, that a strict legislative control over the subject should be con- stantly exercised. The difficulty is in knowing how to frame, and how to exercise, this control. 2. The English statutes, and especially the Railway and Canal. Traffic Act, of 1854,^ have attempted a very strict supervision. By section one, the word " traffic " is defined to include, not only passengers and their baggage, and goods, animals, and other things, conveyed by a railway or canal company, but also car- riages, and vehicles of every description, used on such railway or canal. Section two requires such companies to use all people alike, in regard^jto the traffic, to facilitate travel, and transporta- 2 Hodges, 559, 560. a 17 & 18 Vict. c. 31. 688 Ante, § 232. § 249.] LBGISLATIVB SUPERVISION — POLICE OP RAILWAYS. * 615 tion, upon connecting lines, to the utmost of their power, and to give every facility to'^the public, who wish to use such railway or canal. Section three * provides* that any party claiming to have suffered injury, in England, in violation of the act, may make a summary application to the Court of Common Pleas, in Westminster Hall, or any judge of such court, stating, in general terms, the nature of the grievance, who shall issue process to such company and try the accusation in the most summary mode, and after ascertaining the true state of the facts, by the aid of engineers, barristers, or other fit persons, are to give judg- ment, and carry the same into effect, by means of an injunction, mandatory, or prohibitory, as the case may be. This remedy is merely cumulative, and does not deprive the party of any redress to which he was entitled before, or in any other mode. 3. The English statutes provide that the gauge of railways shall be uniformly four feet eight inches, throughout Great Bri- tain, and five feet three inches, in Ireland.^ The Railways Clauses Consolidation Act provides in detail, for the use of railways, by all persons who may choose to put carriages thereon, upon the payment of the tolls demandable, subject to the provisions of the statute,* and the regulations of the company. The view orig- inally taken of railways in England, evidently was, to treat them as a common highway, open to all, who might choose to put carriages thereon.^ But in practice it is found necessary, for the safety of the traffic, that it should be exclusively under the con- trol of the company, and hence no use is, in fact, made of the railway by others.^ 3 9 & 10 Vict. c. 57. 4 5 & 6 "Vict. c. 65. 5 Tlie King v. Severn and Wye Railway, 2 B. & Aid. 6i6, where the Court of King's Bench, by writ of mandamus, compelled a railway company, who were about to take up the rails on their road, to restore them, and to keep the road in a proper state for the public use. The Queen v. Grand Junction Railway, 4 Q. B. 18, 38. 6 Queen v. London and S. W. Railway, 1 Q. B. 558. 58* 689 '616 THE LAW OF RAILWAYS. [§ 250. SEOTION II. REGULATION OF THE KUNNING OF CARS OR TRAINS, BT MUNICIPAL AUTHORITY. 1. May prohibit the use of steam power in 2. May do this by virtue of their general con- trol of police. 3. Police during construction of railways in England. 4. Right of municipalities to make railway grants. § 250. 1. It has been held, that a statute, giving power to the common council of a city, to regulate the running of cars, within *the corporate limits, authorizes the adoption of an ordinance, entirely prohibiting the propelling of cars by steam, through any part of the city.^ 2. We should .entertain no doubt of the right of the municipal authorities of a city, or large town, to adopt such an ordinance, without any special legislative sanction, by virtue of the general supervision, which they have over the police of their respective jurisdictions. Such must have been the opinion of the court, in the case last referred to.i Nelson, Ch. J., says, " A train of cars, impelled by the force of steam through a populous city, may expose the inhabitants, and all who resort thither, for business or pleasure, to unreasonable perils ; so much so, that unless con- ducted with more than human watchfulness, the running of the cars," [in that mode,] " may well be regarded as a public nui- sance." 3. By general statute, in England, the railway companies are to bear the expense of a reasonable police force, during their construction, and as long as workmen are employed in complet- ing any works on, or connected with, the railway.^ 4. An important case^ occurred in the city of New York, in regard to the power of the common council to grant the use of the streets to natural persons, having no legislative grant for that 1 Buffalo and Niagara Falls Railway -v. The City of Buffalo, 5 Hill (N. Y.) R. 209. See also State v. Tupper, Dudley (S. C.) R. 135. 2 North British Railway v. Home, 5 Railw. C. 231. In this, and in some other cases, the provision is contained in the special act. . 3 Attorney-General of New York v. The Mayor and Aldermen of the City of New York, 3 Duer, 119. 690 § 250.] LKSISLATIVE SUPERVISIONS-POLICE OF RAILWAYS. * 61T purpose, for a railway, for the transportation of passengers, by horse-power. The case was an application to the Superior Court, for an injunction against the defendants, to restrain them from making ,the grant. The defendants having in the first instance disregarded the preliminary injunction, and passed the grant, which was accepted in writing, by the grantees, the grantees were also made parties defendants. " Held, that a grant of the powers, privileges, and immunities, conferred by the resolution in question, is the grant of a franchise, and if the municipal incorporation of this city was incompetent to make the grant, the making of it was a usurpation of power which can lawfully be exercised by the legislature of the state only. " That neither of the city charters, nor any statute of the state, * confers power, in express terms, to make such a grant. That the existence of such a power cannot be implied as being necessary to the exercise of any power expressly granted, or the perform- ance of any duty enjoined by law. " That no corporation, municipal or otherwise, possesses any powers, except such as have been granted to it. " That the resolution in question, when duly passed by the common council, and accepted by the grantees in the mode it prescribed, was not a law or ordinance repealable at the pleasure of the corporation, but a contract, within the meaning of that clause of the constitution of the United States which prohibits every state legislature from passing any law impairing the obli- gation of contracts. " That after being passed and accepted, so long as its condi- tions should be complied with, there being no power reserved in it to rescind or modify it, the corporation, if legally competent to pass it, would be incompetent to repeal it at its mere will and pleasure, so as to divest any rights of property acquired by the grantees under it. « That the legislative power of a corporation is restricted by the constitutional and statute law of the state in which it is located, and that no state can grant to a corporation power to do that, which the constitution of the United States prohibits it from doing itself. " That the municipal corporation of this city cannot divest itself of, nor abridge its legislative discretion and duty, to alter 691 * 618 THE LAW OP RAILWAYS. [§ 250. and regulate the streets, as it may deem the public good requires. Nor can it prohibit such use of the streets by its inhabitants, as is granted by a law of the state to every citizen as a matter of strict right. " That the resolution in question is void, on the grounds : — ' " 1. That it grants a franchise, which the common council has no authority to grant. "•2. The grant, by the meaning and legal import of, its terms, may be perpetual. . " 3. The grant, in judgment of law, is a contract between the corporation and the grantees, and in its legal import, restricts the corporation in the future exercise of its legislative powers. " 4. It confers upon the grantees and their associates, exclusive privileges, to a partial use of Broadway, which may be of per- petual duration. * " 5. It absolves them from an obligation imposed on them by a statute of the state. (2 Rev. Stats. 424, § 198.) " 6. It confers rights, and exempts the associates from conse- quences, in the event of the death of one of their number, repug- nant to and in conflict with the settled law of the state. " 7. It authorizes the grantees and their associates, however small may be their number, to become incorporated at any time, under the General Railroad Act, although the road may have been previously constructed, while the act itself does not allow an incorporation, after a road shall have been built, nor of a less number than twenty -five persons. " 8. The grant and its acceptance constitute a contract, which the common council is prohibited from making, by the amended charter of 1849. " 9. The making of a grant by a municipal corporation, con- ferring such privileges and immunities, without lawful authority, being a usurpation of power, and the illegal exercise of a fran- chise, may be enjoined by any court having jurisdiction of the subject-matter, and of the necessary parties." From the newspaper reports of the decisions of the Court of Appeals, in January, 1857, we infer, that the judgment in this case was reversed, but upon grounds not affecting the merits of the question. And although some of the judges intimate an opinion, that it is competent for the municipal authorities of the City, to grant a railway, in the streets of the city, provided it be 692 § 251.] LEGISLATIVE SUPERVISION — POLICE OF RAILWAYS. * 619 not a franchise, or monopoly, and be equally open to all the cit- izens, the court held, that they have not power to grant the fran- chise, for a railway. This may be true in the abstract. For the public authorities may doubtless lay down rails in the highways or streets, and allow all who choose, to travel upon them with their own cars or carriages. And this must be substantially what is here indicated, we apprehend. But no such grant was here intended. And practically no one would accept of any such grant. The decision must, therefore, as to the law, be regarded, as virtually afiirmed. * SECTION III. CARRTINa MAILS, AND TROOPS AND MUNITIONS OF WAR. 1. In England this is controlled by legislation of the nation. 2. The division of sovereignty creates diffi- culty on that point. 3. But it would seem that the state and na- tional legislatures may control it. i. Mail agents may sue company for injury, in England. 5. Same rule adopted in this country. § 251. 1. In England the sovereignty being one, and indivisi- ' ble, there is no doubt of the right to require the aid of the rail- ways of the kingdom, Upon such terms, as a disinterested umpire may adjudge reasonable, in the transportation of the mails, and of troops, and munitions of war. 2. The subject is embarrassed, in this country, by the division of the sovereignty, into state, and national, such companies de- riving all their corporate powers from the state. And the trans- portation of the maUs, as well as troops and the munitions of war, in time of peace, being exclusively a national interest, it has been sometimes supposed, that the national, government, was altogether at the mercy of the railways, in regard to this species of transportation, except, that they might claim to pass upon the same terms, as other passengers and freight. The matter of the .transportation of troops, in time of peace, is one of small importance, and where no serious abuse is likely to intervene. And in time of war, all the resources of the nation are, of course, subject to the control of the national government. 3, But the transportation of the mails is one of constant ex- penditure, and of vast importance, in the aggregate. But as the matter has not been discussed in the judicial tribunals, either of 693 * 620 THE LAW OF RAILWAYS. [§ 251. the states, or nation, we cannot pretend to shed much light upon it. It would seem wonderful, if the legislatures of the states, and of the union, have not the power to control the subject, to the 'same extent, as the British parliament, by general legislation. And accordingly it will be found, that many of the states, in their general railway acts, have introduced provisions, requiring the railways to transport the mails, upon reasonable terms, and providing for an umpirage, where the parties do not agree. 4. In England, it has been held, that the officers of the post- office, who are required to be in charge of the mail, during its transportation, may have an action against the railway company, * transporting the same, for any injury sustained, through their negligence, although there subsist no contract, between the par- ties, and none, in any form, except for the transportation of the mails, with the proper incidents connected therewith, and the injury was received, while in the performance of their official duty, in charge of the mails.^ 1 Collett V. London & North W. Railway, 6 Eng. L. & Eq. K. 305. Lord Campbell, Ch. J. here says : " The duty does not arise from any contract with the plaintiff, but from the obligation imposed by the legislature, upon the company,' to carry the mail-bags, and the officers of the post-office in charge of the letters. If it be the duty of the company to carry the plaintiff, at all, it must be their duty, in doing so, to use reasonable care and skill." That the establishment and maintenance of public posts, is an exclusive pre- rogative of sovereignty, is a proposition admitting of no question. The history of the establishment of public posts, for the conveying public intelligence, and for other purposes, connected with governmental administration, is curious. They are mentioned as having been established, in the Persian empire, as early as the time of Cyrus, (Xen. Cyrop. lib. 8 ;) and in Rome, in the time of Augustus, (Suet, in Vit. Aug. c. 49.) Plutarch, in his life of Galba, mentions, that the magistrates were obliged to furnish horses for this service, upon proper requisition. And the younger Pliny, in writing the emperor Trajan, apologizes for having resorted to the use of the public post-chaises, under his charge, for private purposes, in a case of painful emergence, the death of a near family relative ; and where he desired to have his wife pay her condolence to the sur- viving members of the bereaved family, in the freshness of their grief. • The emperor's reply is a. model of state papers, brief and pertinent. Book X., Letter 122. Louis XL, it is said, first established them in France, in 1474; and it was not till the 12th of Charles II. that the post-office was established in England, by act of parliament. The history of the subject shows, that it has always been regarded, as one of the rights pertaining to sovereignty, and that the citizen, or subject, felt bound to lend all requisite aid, in its accomplishment. That the sovereign should be at 694 § 252.] CONSOLIDATION OR AMALGAMATION OP COMPANIES. * 621 5. Almost precisely the same point was decided in a late case ^ in New York, in regard to the United States mail agent, who was injured, while on board the company's cars, in the discharge of his official duties, in charge of the United States mail, there being no contract for carrying plaintiff, except with the govern- ment, and in connection with carrying the mail. The decision of the court is expressed in the language of Lord Campbell, Ch. J., in the case of Collett v. London & N. W. Railway. * CHAPTEE XXXVII. THE CONSOLIDATION OR AMALGAMATION OF COMPANIES. SECTION I. THE POWER OP THE LEGISLATURE TO COMBINE COMPANIES. § 252. There seems to be no question made in England of the power of different railway companies, or railway and canal com- panies, to amalgamate, or combine their interests and their stock, by agreement, with the consent of parliament under a special act. This is every day practice there, and seems to be a very useful and just mode of arranging the business of different lines, or the same continuous line often, where competition is liable to do harm, both to the traffic, and the shareholders. Some few questions, of no great importance, have already been decided upon this subject. In a case where two canals were combined with the grant of a railway, and the railway company were, by the special act, to pay the canal companies a specified price per share for all their shares, "from and immediately after the open- ing of the railway, from A. to G. for public ^se ; " the railway being so opened, the whole length of the Grantham Canal, but not the whole line, as specified in the act, the remaining portion the mercy of the citizen, in this respect, involves the same inconsistency, as that it should be so in regard to the other rights of eminent domain, a Nolton v. "Western Railway, 10 How. Pr. R. 97. * 622 THE LAW OF EAILWAYg. [§ 252. being that which competed with the Nottingham Canal ; the Grantham Canal brought an action for the price of their shares. It was decided, in the court below, that no recovery could be had, until the whole railway was opened for public use, accord- ing to the terms of the act.^ But in the same case in the Ex- chequer Chamber,^ it was decided, by a divided court, that the railway being opened, so far as competed with the *G. canal, it, was the fair import of the act, although containing no distribu- tive words, that each canal company might recover its several interest, whenever the railway was fully opened, as to competi- tion with their interests.^ But in this country it seems to be regarded as indispensable, under the restriction in the United States constitution, that the consent of all the shareholders, to the amalgamation of different companies, should be obtained.* But except in the case of un- paid subscriptions, and analogous matters, the shortest acqui- escence of the stockholders, in the combination of different companies, by act of the legislature, will be likely to be held, by the' courts, as conclusive of their right to interfere.^ 1 Grantham Canal Co. v. Ambergscte, Nottingham & Boston & Eastern J. K. 6 Eng. L. & Eq. E. 328. 2 12 Eng. L. & Eq. E. 439. 3 This seems to be a very just and reasonable decision, but not altogether con- sistent with the terms of the act. But it is a striking illustration of the strong inclination of the English courts, both of law and equity, ordinarily, to escape from merely verbal an4 technical obstructions to the attainment of the full justice of the case. * 4 Fisher v. Evansville & Crawfordville Railway, 7 Porter (Ind.) E. 407. See also, Kean v. Johnson, 1 Stockton, Ch. R. 405-424, for an elaborate opinion upon this subject, where the special master, sitting for the chancellor, arrives at the conclusion, that the legislature have no power to consolidate different railway companies, without the consent of all the shareholders, and as the statute pro- vides, that nothing therein contained should aifect "any right whatever," it should receive the construction, that the consolidation provided for should be effected, in the only practicable mode known to the law, which would not affect rights, i. e. by the consent of all the shareholders. Chapman v. M. E. & L. E. E. & S. & Ind. Eaijway, 6 Ohio St. R. 1 19. The act of amalgamation is not void, but voidable at the election of shareholders. McCray v. The Junction Eailw. 9 Ind. E. 358. Stock subscriptions are thereby released. lb. 5 Chapman & Harkness v. Mad River & Lake Erie Eailway, and Sandnsky City & Indiana Railway, 6 Ohio St. R. 119. Two companies cannot consolidate their funds, or form a partnership, unless authorized by express grant of the leg- islature, or necessary implication. N. Y. & Sharon Canal Co. and Sharon Canal 696 § 253-254.] AMALGAMATION OF COMPANIES. 623 SECTION II. WHAT AMOUNTS TO AN AMALGAMATION OF RAILWAY COMPANIES. I. Mere association or alliance not sufficient. | 2. Agreement to amalgamate from a day past. § 253. 1. It has been held that one railway company associ- ating, allying, and connecting itself with another, in regard to traffic, *in which they have a common interest, does not amount to an amalgamation between the two companies.' An amalga- mation seems to imply such a consolidation of the companies, as to reduce them to a commgn^nterest. 2. An agreement to amalgamate from a day past seems to be considered, in equity, as an actual amalgamation, from that time. But an agreement to do so, from a future time, cannot amount to an amalgamation until the time arrive.^ 4. Consolidated company may apply funds to pay debts of former companies. 5. Instance illustrating the right to amalga- mate. SECTION III. WHAT CONTKACTS MADE BEFOKE AMALGAMATION ENFOECED AFTERWARDS. 1 . Where the amalgamation is legal, all prior contracts may he enforced. 2. But where any formalities are not complied with, it is otherwise. 3. Admissions by the company contracting, good against consolidated company. « § 254. 1. Where the amalgamation is strictly legal, and no impediment arises in regard to the form of the remedy, it would seem a contract, made before amalgamation, should be capable of being enforced after. And where a clerk to a railway com- pany had executed a bond, with surety, for the faithful discharge of his duty to one company, which was subsequently amalga- mated, by act of parliament, with another railway company, saving Co. V. Fulton Bank, 7 Wendell, 412. The majority of a corporation, cannot bind the minority, by the acceptance of a fundamental alteration of their charter. Ante, § 56. See jMacon & Western Railway v. Parker, 9 Ga. R. 377. 1 The Shrew.sbury & B. R. v. Stour Valley, and The London & N. W. R. 21 Eng. L. & Eq. R. 628 ; Midland G. W. R. of Ireland v. Leech, 28 Eng. L. & Eq. R. 17. 59 697 * 624 THE jfiAW OF RAILWAYS. _ [§ 254. to the consolidated company all remediea upon contracts to either, it was held an action will lie upon such bond.^ So, too, such bond is good security to the new company, for the faithful conduct of such clerk in the employ of such new company.^ 2. But where "the amalgamation is illegal, calls cannot be en- forced, or if the provisions for the amalgamation had not been * fully carried into effect, no suit for calls in the name of the new company can be sustained.^ 3. And in an important case, in the United States Supreme Court,* it seems to have been held, that in an action against the amalgamated company, upon a contract for construction, made by one of the consolidated companies, the admission, or act of the company, making the contr^t; will bind the aggregate com- pany, by way of estoppel in pais. 4. And where a railway and canal company were formed, by the union of several ancient canals, and three railway compa- nies, and power was given to the united companies to issue new shares, for the piirpose of raising capital, it was held no misap- plication of the funds of the new company, to apply them first to the payment of a large debt of one of the canal companies.^ 5. Where the preliminary contracts, by which two railway companies were set on foot, each provided, that the managing committees, or directors, might " demise or sell the undertaking, or any part thereof, or amalgamate the same or any part thereof, with amy other railway^ or railways, and the directors of the two companies rnade, and carried into effect, an amalgamation of the two companies, which necessarily interfered with each ofitier's business, it was held^ that the amalgamation of these two com- panies came fairly within the preliminary contracts, and that an action for calls might be maintained against any shareholder in either company, who had executed the preliminary contracts." ® 1 London, Br. & S. C. Railway v. Goodwin, 3 Exch. K. 320 ; s. c. 6 Kailw. C. 177. And the same point is so ruled in Eastern Union Railway v. Cochrane, 24 Eng. L. & Eq. R. 495. In the former case the breach was committed before, and in the latter, after the amalgamation. 2 Eastern Union Railway Co. w. Cochrane, 24 Eng. L. & Eq. R. 495. 3 Midland G. W. Railway of Ireland u. Leech, 3 House L. Cases, 872 ; s. c. 22 Eng. L. & Eq. R. 45 ; ante, § 56. 4 Philadelphia, Wilmington, and Baltimore Railway v. Howard, 13 How. R. 307. 5 Cooper w. The Shropshire Union Railway and Canal Co. 6 Railw. C. 136. 6 Cork and Yougal Railway v. Patterson, 18 C. B. 414. See ante, § 56, n. 1. 698 § 255.] MISCELLANEOUS MATTERS. * 625-626 •CHAPTER XXXVIII. MISCELLANEOUS MATTERS. SECTION I. JURISDICTION OF THE UNITED STATES COURTS. § 255. Contrary to the earlier decisions of the United States courts, it is now settled, that a corporation is to be regarded, as a "citizen " of the state, where it exists, and as such may be sued, in that circuit, by a citizen of any other state.^ And it makes no difference, that the shareholders, and mem- bers of the corporation, reside in different states, as it is the arti- ficial being, created by the act of incorporation, which is the party, and not the corporators.^ But a railway gompany cannot be said, either at law, or in equity, to reside in a different district from the one where it exists, and was chartered. Nor can a circuit court of the United States take cognizance of a controversy in one district or state, where the subject-matter of the controversjilies beyond the limits of the district, and where the process of the court cannot reach the locality of the controversy.^ This was the case of a railway in Indiana, entering into an agreement with a railway in Mich- igan, to allow *them to build and operate their road, under their charter. Another railway Company in Indiana, claiming that their rights were being infringed, filed a bill in equity, in the United States district court for the district of Michigan, to enjoin 1 Marshall v. Baltimore and Ohio Railway, 16 How. 314. Mr. Justice Grier, in giving the opinion in this case, cites the case of Louisville, Cincinnati, & Charleston Railway v. Letson, 2 How. 497, as having virtually decided the ques- tion, and, as having been so regarded and recognized, by the profession and the court. See also Works v. Junction Railway, 5 McLean, R. 425 ; Culbertson a. Wabash Nav. Co. 4 McLean, R. 544. 2 Louisville Railway u. Letson, 2 Howard, R. %97. See also ante,% 20, and cases cited. 3 Northern Indiana Railway v. Michigan Central Railway, 15 How. U. S. 233. See Wheedon v. Cam. and Amboy Railway (Sup. Court of Penn.) ; January No. 1857, Law Reg. p. 296. 699 * 626 THE LAW OF RAILWAYS. [§ 256. the company in that state, who were proceeding under the con- tract, without making the other party to the contract a party to the bill. The circuit court upon hearing, dismissed the bill, and the supreme court affirmed the decree. ■ The supreme court held also, that the other party to the agreement was a necessary party to the bill. In a suit in Indiana, in the circuit court of the United States, between the same parties, it was held that a corporation is not amenable to process, except in the state, where its business is done. A corporation in Indiana cannot sue, in that state, a cor- poration doing business in the state of Michigan. Where the subject is essentially local, the action must be brought in the state where the injury is done.* It has been held, that an insurance company, chartered by one state, and having its principal place of business there, is to be regarded as a citizen of that state, for the purpose of maintain- ing suits, or being sued, in the circuit courts of the United States. But it was also held, in this case, that a judgment recovered against such company in another state, by service of process upon an agent of the company, doing business there, on behalf of the company, and who was permitted, so to transact such business, by consent of the legislature of that state, upon condi- tion that service of pi^cess upon such agent should be regarded, as service upon the company, was a valid judgment, and entitled to the same consideration, in the state where the company was located, as in the state where rendered.^ SECTION II. LIABILITY FOR DOING AN ACT PROHIBITED BY THE COMPANY'S CHARTER^ WITHOUT SPECIAL DAMAGE TO THE PARTY INTERESTED. § 256. Where the owner of a ferry across the river Mersey was protected in his rights, by a section in the special act of a railway, 4 Northern Ind. Railway v. Mich. Cent. Railway, 5 McLean's C. C. R. 444. See also Woolsey v. Dodge, 6 i9. 142. 5 Lafayette Insurance Co. v. French, 18 How. R. 404. In a recent case before the House of Lords, the question was determined, that an English railway com- pany may be sued in Scotland, by process of foreign attachment. London & Northwestern Railw. v. Lindsay, 30 Law Times, 357. 700 § 267-258.] MISCELLANEOUS MATTERS. * 627 prohibiting the company, from extending their road across the river, until certain other works were finished, it was held, that he might maintain an action against the railway company, for vio- lating such provisions of their act, which were obviously inserted for his protection only, and not with any reference to the public interests, withovtt showing the special damage he had thereby sustained.^ *SECTION III. MODE OF BECKONING TIME. § 357. By the English statute, twenty-one days are allowed the shareholders, after notice of the making of calls, in which to make payment. This means twenty-one clear days, exclusive of the first and last days.^ But it is questionable whether the same construction would be applied to a similar provision, in this country, unless the terms of the statute were very explicit, in that direction. The more common mode, in this country, in reckoning time, specified in a statute, is to exclude the day from which the period is reckoned, and to include the day of its ac- complishment.2 SECTION ly. SERVICE OF PROCESS UPON NON-RESIDENT COMPANIES. § 258. Where a statute provided, that unless the company designated some agent, within certain precincts, upon whom ser- vice might be made, it shouM be competent to summon the com- pany, by service upon any officer, superintendent, or managing agent of the company, within the precinct, and service was made upon the freight agent of the company, it was held competent for the company to defeat the service and the jurisdiction of the court, by showing that they had a director, within the precinct upon whom service should have been made.^ 1 Chamberlaine v. Chester Railway, 1 Exch. R. 870. 1 In re Jennings, 1 Irish Eq. R. (n. s.) 236 ; Hodges, 107. 2 Bigelow V. Wilson, 1 Pick. R. 485, opinion of Wilde, J. 1 Wheeler v. New York & Harlaem Railw. 24 Barb. 414 ; Ante, § 255, n. 5. *59 701 * 631-632 THE LAW OF RAILWAYS. [§ 2. APPENDIX A. CHAPTER 11. PUBLIC RAILWAYS. PKBLIMINART ASSOCIATIONS. SECTION I. MODE OP INSTITUTING RAILWAY PKOJECTS. § 2. The mode of instituting railway enterprises, in England, is more formal, and essentially different, firom that adopted in most of the American states. There the promoters usually as- sociate, under two provisional deeds, the one called a " Subscri- bers' Agreement," and the other a « Subscription, or Parliamen- tary Contract," which are expected only to serve as the basis of a temporary organization, till the charter is obtained. This is specifically and often in detail, to some extent, provided for, in the subscribers' agreement. A board of provisional directors is provided, to carry forward the enterprise, whose powers are de- fined in the subscribers' agreement, or deed of association, and whose acts will not bind the members, unless strictly within the powers conferred by the deed. Under this form of association the subscribers are bound, by the act obtained/ if within the powers conferred by the deed, even where it involves the purchase of canal, and other property, by the company.^ And courts of equity often interfere to restrain the * provisional directors, from exceeding their powers under the deed,^ 1 Midland Great Western Railway v. Gordon, 16 M. & W. 804. 2 Gilbert v. Cooper, 4 Eailw. C. 396. All parties concerned must be made parties to the bill, even shareholders of whom it is alleged a rival company pro- pose to purchase shares, to destroy the independence of one of the companies) connected with the common enterpHse. Greathed v. S. W. & Dorchester Rail- way, 4 Railw. C. 213. 702 § 2.] PRELIMINARY ASSOCIATIONS. * 633 or misapplying the funds, or delaying payment of the debts of the association.^ The provisional directors usually issue scrip certificates, which pass from hand to hand, by delivery merely, and after the charter is obtained, the scrip-holders are registered, as shareholders in the company, and thereby become entitled to all the rights, and sub- ject to all the liabilities of the shareholders.* And if the original subscriber sell the scrip to one, who omits to have his name registered as a shareholder, by reason of which the original subscriber cause his name to be registered, and sell the shares again, he will be held to account for the avails of the second sale, as a trustee for the first purchaser.^ But the company are not obliged to accept of the holders of scrip, as shareholders, in discharge of the original subscribers, it has been said, but may insist upon registering the original sub- scribers to the deed of association, to whose aid it may be pre- sumed the promoters looked in undertaking the enterprise, which by their act of incorporation they are morally, and in some cases legally, bound to carry forward.^ But the English decisions, upon the whole, hardly seem to justify this proposition. The subscriber cannot abandon the obligation at will.'' But if the scrip is * transferable, by delivery, it would be strange, if the holder was not entitled to be registered, as a shareholder, the same, as the assignee of a fully registered share in the stock. And for the company, after having issued scrip certificates, in a 3 Lewis V. Billing, 4 Railw. C. 414 ; Bagshawe v. Eastern Union Railway, 6 Railw. C. 152; s. c. 7 Hare, 114; Bryson v. Warwick & Birmingham Canal Co. 23 Eng. L. & Eq. R. 91. In this last case, the railway company being only pro- visionally registered, expended £10,000 in the purchase of the stock of the de- fendants. The railway finally failing to go into operation, in the process of wind- ing up, one of the shareholders was allowed to institute proceedings in equity, on behalf of himself and others, being shareholders, to compel defendants to refund the money, and the court held the contract illegal, and compelled the defendants to refund the money received under it. * Ante, § 47 ; Birmingham, B. & Th. J. Railway v. Locke, 1 Q. B. 256 ; Lon- don Grand J. Railway v. Graham, id. 271 ; The Cheltenham & G. W. U. Railway V. Daniel, 2 Railw. C. 728 ; Sheffield & A. & M. Railway v. Woodcock, 2 Railw. C. 522. 5 Beckitt V. Bilbrough, 19 Law J. 522 ; 8 Hare, 188. ' * Hodges on Railways, 97. 1 Kidwelly Canal Co. v. Baby, 2 Price, 93 ; Great North of Eng. Railway v. Biddulph, 2 Railw. C. 401, where the question is raised, but not determined. 703 * 633 THE LAW OF RAILWAYS. [§ 2. form calculated to invite purchases, and when they were aware of the use constantly made of such scrip, to refuse to register the names of the holders, as shareholders, and members of the company, would amount to little less, than express fraud. Hence we conclude they have no right to decline accepting such scrip- holder, as a shareholder.* But where false scrip had been issued, beyond the amount allowed in the charter, and the full number of shares, allowed, by the charter, already registered, it was held the company could not, upon that ground, refuse to register the shares of such, as had purchased the genuine scrip.^ But we have had occasion to say more upon this subject elsewhere.'" By the laws of some of the states a given number of persons associating, in a prescribed form, for particular purposes, as relig- ous, manufacturing, and banking purposes, and often for any lawful purpose, are declared to be a corporation. In such cases no application to the legislature is required. But generally, rail- ways in this country, have obtained special acts of incorporation. There is, in most of the states, no provision for any preliminary association, and these enterprises are, for the most part, carried forward, by individuals, or partnerships, and questions arising, in regard to the binding force of the acts of the promoters, either upon, or towards the corporation, must depend upon the general principles of the law of contract." By the general law of some of the states, the petitioners are required to furnish surveys of the proposed route, properly delin- eated upon charts, by competent engineers, with estimates, and other information requisite for the fuU understanding of the sub- ject. And these profiles and plans are required, where the petition is granted, to be deposited in some public office, for inspection and preservation.^^ 8 Midland G. W. Railway v. Gordon, 5 iJailw. C. 76. 9 Daly V. Thompson, 10 M. & W. 309. 10 Ante, § 39, 47. 11 Angell & Ames on Corporations, § 86-94. 12 Laws of Mass. 1833, ch. 176 ; 2 Railroad Laws & Oh. 616 ; lb. 657 ; Laws of Mass. 1848, ch. 140 ; Laws of Rhode Island, 1886 ; 2 Rail. Laws & Ch. 838; Laws of Conn. 1849, ch. 37 ; lb. 1153 ; Rev. Statutes of Maine, ch. 81, § 1 ; 1 Rail. Laws & Ch. 305. Similar provisions exist in many of the other states. But they are very general, and ordinarily the plans furnished are so imperfectly made, as not to afford much protection to land-owners. And a compliance with these requirements not being, in any sense indispensable to the validity of special 704 § 3.] PRELIMINARY ASSOCIATIONS. * 634 *SECTION II. CONTRACTS OF THE PROMOTEUS NOT BINDING AT LAW, UPON THE COMPANY. § 3. The promoters of railways, in this country, where the law makes no provision, for the preliminary association becoming a corporation, can only bind themselves, and their associates, at most, by their contracts.^ The promoters are in no sense identi- acts, they are probably not very strenuously enforced by legislative committees, especially in cases, where opposition is not made to the new incorporation, which is not very common, unless the project interferes with some rival work. 1 Moneypenny v. Hartland, 1 C. & P. 352. Abbott, Ch. J., said : " Before an act passes for such a work, as this, the surveyors and other persons employed on it, look to the committee, or body of adventurers, who first employ them." S. P. Kerridge v. Hesse, 9 C. & P. 200 ; Doubleday v. Muskett, 7 Bing. R. 110. And one who attends the meetings of such preliminary association, and takes part will ordinarily be precluded from denying his liability as a partner. Harrison v. Heathorn, 6 Man. & Gr. 81 ; Sheffield, Ash. and M. Railway u. Woodcock, 7 M. & W. 574. If the defendants have suffered themselves to be held out, as part- ners In the enterprise, and engaged in carrying it forward, and others have per- formed service for the association, upon their credit, they are liable. Wood v. The Duke of Argyll, 6 Man. & Gr. 928 ; Steigenberger v. Carr, 3 id. 191. But express proof is required of authority from the partners, or of a necessity to draw bills, in the conduct of the business, to.justify the directors in drawing bills on the credit of the association. Dickinson v. Valpy, 10 B. & G. 128. From the foregoing cases, and Bell v. Francis, 9 C. & P. 66, and some others, it would seem, that the directors and managing committee are always liable, for services ren- dered such associations, on their employment and credit, and that such other members of the association are liable also, as the terms of the association, or their own active agency in the employment of servants and agents, fairly justify such employees in looking to, for compensation. Post, § 4, n. 8. In regard to admissions made by provisional committee-men, and others, who have taken part in instituting railway projects, some allowance is made in the English courts, for probable mistakes and misapprehensions, by those not well acquainted with the liabilities of such persons. Newton v. Belcher, 6 Railw. C. 38 ; s. c. 12 Q. B. 921. And where others have not acted upon such admissions, the party has been allowed to show, that they were made under mistake, either of law, or fact, and if so, the party has been held not to have incurred any addi- tional liability thereby. Newton v. Liddaird, 6 Railw. C. 42 ; s. c. 12 Q. B. 925. The rule laid down by Bailey, J., in Heane v. Rogers, 9 B. & C. 577, upon this subject, is here expressly recognized by Lord Denman, Ch. J. " The general doctrine laid down in Heane v. Rogers, that the party is at liberty to prove, that his admissions were mistaken, or untrue, and is not estopped, or concluded by them, unless another person has been induced by them to alter his condition, is 705 * 635-636. THE LAW OF RAILWAYS. [§ 4. cal ' with the corporation, nor do they represent them, in any relation of agency, and their contracts could of course only bind the company, so far as they should be subsequently adopted by it, as their successors, much in the same mode, and to the same extent, and under the same restrictions and limitations, as the contracts of one partnership bind a succeeding partnership,' in the same house. But a contract by a joint-stock association, that each member shall pay all assessments made against him, cannot be enforced, by a corporation subsequently created, and to which, in pursu- ance of the original articles of association, the funds and all the effects of the former company have been transferred.^ Nor is the act of all the corporators even, the act of the corporation, unless done in the mode prescribed, by the charter and general laws of the state.^ Nor can an incorporated company sustain an action, at law, upon a bond executed to a preliminary associ- ation, bythe name of the individuals and their successors, as the governors of the Society of Musicians, for the faithful account- ing of A. B., their collector, to them and their successors, govern- ors, &c. the company being subsequently incorporated.* SECTION III. SUBSCRIBERS TO THE PBELrMINART ASSOCIATION INTER SESE. § 4. The project for a railway being set on foot by a provis- ional committee of directors, or managers, the subscribers may insist *upon the terms of subscription. The subscribers are not applicable to mistakes, in respect of legal liability, as well as in respect of fact." And this estoppel, it was held in the principal case, only extends to parties and privies, to the particular transaction, in which the admission was made, and that third parties, having no interest in it, either originally, or by derivation, can claim no benefit from it. This is in accordance with the established principles of the law of evidence, at the present time. See the opinion of the court in Strong v. Ellsworth, 26 Vt. R. 366. 2 Wallingford Manufacturing Co. u.Fox, 12 Vt. E. 304; Goddard'u. Pratt, 16 Pick. 412, where it is held, the original copartners are still liable, upon contracts made with third parties, ignorant of the dissolution, by the incorporation, the company having carried on business in the name of the partnership. 3 Wheelock v. Moulton, 15 Vt. R. 519. * Dance v. Girdler, 4 Bos. & P. 34. See Gittings v. Mayhew, 6 Md. R. 113. ' 706 § ^O PKBLIMINAUT ASSOCIATIONS. * 636 bound by any special undertaking of the directors, or any portion of them, beyond, or aside of the powers, conferred by the terms of the deed, or contract of association.^ And the association is not binding, until the provisions by which it is, by its own terms to become complete, are complied with. If before that, the scheme be abandoned, the provisional subscribers, or allottees, may recover back their deposits of the provisional committee, in an action for money had and received.^ So, too, if one is induced to accept of shares, in the provisional company, by fraudulent representations, he may recover back the whole of his deposits.^ But if one actually become a subscriber, he is bound by the terms of subscription, without reference to prior oral representa- tions, and must bear a portion of the expense incurred, if the subscription so provide.* But if the directors, in such provis- ional company, in order to induce subscriptions, promise the subscriber, that in the event of no charter being obtained, he shall be repaid his entire deposit, this contract is binding upon them, and may be enforced, by action, notwithstanding the sub- scriber's agreement authorized the directors to expend the money in the mode they did.^ But the contract of the directors will not excuse the subscriber from paying calls, if the terms of the subscriber's agreement re- quire it.^ The contract of the directors in such case, and the . deed of association, are wholly independent of each other, and neither will control the other.'^ But it has been held, that persons, by taking shares in a pro- jected railway, do not bind themselves to pay any expense incurred, unless it is so provided in the preliminary contracts of 1 Londesborough ex parte, 27 Eng. L. & Eq. R. 292; Ex parte Mowatt, 1 Drewry, 247. 2 Walstab v. Spottiswoode, 4 Railway C. 321. 3 Jarrett v. Kennedy, 6 C. B. 319. 4 Watts V. Salter, 10 C. B. 477. And if one subscribe the agreement, and parliamentary contract, he will be liable, although he have not received the shares allotted to him or paid the deposits. Ex parte Bowen, 21 Eng. L. & Eq. 422. 5 Mowatt V. Londesborough, 25 Eng. L. & Eq. R. 25 ; s. c. in error, 28 Eng. L. & Eq. R. 119 ; Ward v. Same, 22 Eng. R. 402. 6 Ex parte Mowatt, 1 Drewry, 247. 7 Dover & Deal Railway, ex parte Mowatt, 19 Eng. L. & Eq. R. 127. 707 * 637-638 THE LAW OF RAILWAYS. [§ 5. association, or the expense is incurred, with their sanction, and upon their credit.^ And * even where such shareholder consents to act on the provisional committee, it will not render him liable, as a contributory, to the expense of the company.^ But in general the form of the deeds of association is such, that if one takes shares without reservation he is to be regarded, as a contributory to the expense,^" and especially where he acts as one of the provisional committee, and also accepts shares allotted to him.^o But one who has obtained shares in a projected railway com- pany, but without executing the deed of settlement, or any deed referring to it, was held not liable to contribute to the expense incurred, in attempting to put the company in operation," and especially if the acceptance of the shares is conditional, upon the full amount of the capital of the company being subscribed, which was never done.^^ »SECTION IV. CONTRACTS OF THE PROMOTERS ADOPTED BY THE COMPANY. § 5. The company when fully incorporated may assume the liabilities of the preliminary association, incurred in obtaining 8 Maudslay ex parte, 1 Eng. L. & Eq. K. 61. 9 Carmichael ex parte, 1 Eng. L. & Eq. R. 66 ; Clark ex parte, id. 69. '» Burton ex parte, 13 Eng. L. & Eq. R. 435 ; Markwell ex parte, 13 Eng. L. & Eq. R. 456 ; Upfill's case, 1 Eng. L. & Eq. R. 13 ; Watts v. Salter, 12 Eng. L. & Eq. R. 482. See also St. James's Club in re, 13 Eng. L. & Eq. R. 589, as to the effect of proof, of the subscriber being present when a resolution is passed. 11 The Galvanized Iron Co. v. Westoby, 14 Eng. L. & Eq. R. 386. It was formally considered, that all persons engaged in obtaining a bill in par- liament for building a railway, were partners in the undertaking, and for that reason a subscriber, who acted as their surveyor, could not maintain an action for work and labor, done by him in that character, against all, or any one of the subscribers. Holmes v. Higgins, 1 B. & C. 74. See also Goddard v. Hodges, 1 C. & M. 33. But it is now regarded, as well settled, in all the courts in Westminster Hall, that there subsists between the subscribers to such an enterprise, no relation of general partnership whatever, and no power to bind each other, for expenses in- curred in carrying forward the enterprise. Each binds himself only, by his own acts and declarations, unless he acts by virtue of some authority conferred by the deeds of association. Parke, Baron, in Bright v. Hutton, 3 H. L. Cases, 368. 708 § 5.] PRELIMINARY ASSOCIATIONS. * 638 the special act, or as is sometimes the case, where the association make an assignment of their property.^ But even an express provision in the charter, that the company shall be solely liable for the debts of the association will not exonerate the association unless by the consent of the creditors.^ But when the company assume the debts of the association, by the assent of their cred- itors, they will be relieved.^ And an agreement, aside of the deed of association, that one of the promoters shall indemnify another, is held valid. Connop v. Levy, 5 Railway C. 124 ; s. c. 11 Q. B. 769. But a general indemnity against costs will only extend to costs in suits lawfully brought. Lewis v. Smith, 2 Shelford, Bennett's ed. 1030. And in regard to liability, for expenses incurred, in carrying forward railway projects, it often happens, that one who has been active may thereby make him- self liable to tradesmen, and others, who have performed service, in behalf of the enterprise, upon the expectation he would see them paid. In Lake v. Duke of Argyll, 6 Q. B. 479, Denman, Ch. J., said : " But where persons meet to prepare the measures necessary for calling the society into existence, attendance on such meeting, and concurrence in such measures, may be strong evidence, that any individual there present, and taking part in the proceedings, held himself out, as a paymaster, to all who executed their orders ; and though not liable, as a mem- ber, or shareholder, yet his declared intention to become the president, or a member, in whatever event, or to take a share, under any condition, may be ma- terial evidence to show that he authorized contracts, with those whose services were required by what may be called the constitutional body." But a charge to the jury, that before surveyors, in such case, could recover of the provisional committee, they must be satisfied, that defendants did, by them- selves, or their agent, employ the plaintiff to do the work, or that, being informed of their having done it, on their credit, by the employment of some one, not authorized, they consented to be held liable, was affirmed in the Exchequer Chamber. Nevin.s v. Henderson, 5 Railway C. 684 ; Williams v. Piggott, 5 Rail- way C. 544. See also Spottiswoode's case, 39 Eng. L. & Eq. R. 520. 1 Haslett's Ex'rs v. Wotherspoon, 1 Strob. Eq. R. 209 ; Salem Mill Dam Co. V. Ropes, 6 Pick. 23. 2 Witmer v. Schlatter, 2 Rawle, R. 359. 3 Whitwell V. Warner, 20 Vt. R. 425. But by the English statutes companies provisionally registered, are not allowed to make any contract, not indispensable to carrying forward the project to full registration. And where the directors of such a company contracted for plans, sections, and books of reference, to the value of £3,000, it was held a violation of the statute and illegal, and that no recovery could be had upon it. Bull v. Chapman, 20 Eng. L. & Eq. R. 488 ; 7 & 8 Vict. ch. 110. 60 709 *639 THE LAW OF RAILWAYS. [§ 6-7. [ SECTION V. HOW CONTRACTS OF THE PROMOTERS MAY BE ADOPTED BY THE COMPANY. § 6. Wherever a third party enters into a contract with the promoters of a railway, which is intended to enure to the benefit of the company, and they take the benefit of the contract, they wUl be bound to perform it, upon the familiar principle that one, * who adopts the benefit of an act, which another volunteers to perform in his name, and on his behalf ; is bound to take the burden with the benefit.^ SECTION VI. CONTRACTS BETWEEN THE PROMOTERS AND OPPOSERS OF A BILL, FOR THE CHARTER OF A RAILWAY. § 7. The cases in the English books, upon the subject of con- tracts, between the promoters of railway projects in parliament and those, who have counter interests, and who are ready to per- sist in opposition to such projects, unless they can secure some compromise with the promoters, are considerably numerous, and involve a question of no inconsiderable importance. We shall^ therefore, examine them somewhat in detail. One of the earliest cases, upon this subject,^ was decided by the Lord Chancellor, Cottenham, upon full argument, and great consideration, as early as 1836. But as this case professes to rest mainly, upon a leading opinion of Lord Chancellor Eldon? upon a somewhat analogous subject, it may not be improper here to give the substance of that decision. The application to parliament, for the plaintiff's company, if granted, it was conceded, would injuriously affect the tolls upon another bridge not far distant. The proprietors of this bridge 1 Gooday v. The Colchester & Stour Valley Railway, 15 Eng. L. & Eq. R. 59^ ; Preston v. Liverpool & M. Railway, 7 Eng. L. & Eq. R. 124 ; Edwards v. Grand Junction Railway, 1 Mylne & Cr. 650. The eases in support of this general proposition are very numerous, and will be more fully examined in the next section. 1 Edwards v. The Grand Junction Railway, 1 Mylne & Cr. 650. 2 Vauxhall Bridge Co. v. The Earl of Spencer, Jacob, 64, (1821.) 710 § "^-J PRELIMINARY ASSOCIATIONS. *640 were opposing the plaintiff's grant, before the parliamentary committee, with a view to secure some indemnity against such loss, to be speciaUy provided for by the plaintiflF's act, upon con- dition, that the plaintiffs should open their bridge, for the public travel. The promoters of the plaintiff's grant, and the proprie- tors of the rival bridge, had come to an agreement, in regard to the extent of the indemnity, and upon naming it to the commit- tee, with a view to have it inserted in the act, one member of the committee objected to such course, as calculated to sanction im- proper influences upon public * legislation. The promoters of the new bridge then proposed to the proprietors of the rival one,- to give them security for the proposed indemnity, by way of Bond with surety which should quiet their opposition, and the bill pass. This was acceded to and the securities given, and the bill passed accordingly. The opinion of Lord Eldon is an afiirmance of the decision of the vice-chancellor, retaining the bill till the matter should be tried at law.^ But the intimations of the chancellor indicate certainly, that he regarded the contract as perfectly valid, and the bill was afterwards dismissed, by consent. Lord Eldon said, " in the view I take of the case, it will not be an obstacle to the plaintiffs, that they do not come with clean hands, for it is settled, that if a transaction be objectionable, on grounds of public policy, the parties to it may be relieved ; the relief not being given for their sake, but for the sake of the public. Thus it is in the case of marriage brocage bonds. The principle was much discussed in the case of Neville v. Wilkinson,^ where Mr. Neville being about to marry, inquiry was made by the lady's father to what extent he was indebted. Wilkinson, who was applied to at the desire of Neville, concealed a demand which he had against him ; after the marriage he attempted to recover it, and a bill was filed to restrain him. I remember arguing it, with obstinacy, but Lord Thurlow thought, that having made a mis- representation, a court of equity must hold him to it, and that, although the plaintiff was a pa/rticeps criminis ; so it was held in the case of Shirley v. Ferrers,* in the Exchequer. " It is argued that this was a fraud upon the legislature, but I think it would be going a great way to say so, for non constat, if 2 s. c. 2 Mad. 356. 3 1 Br. C. C. 543. 4 Cited 11 Vesey, 536. 711 * 641 THE LAW OF RAILWAYS. [§ 7. it had been pushed to the extent of taking the opinion of the house, that it might not have passed the bill in its former shape. It cannot be said that the agreement is contrary to legislative policy, because one member of the committee makes an objection which is not sanctioned or known by the house at large. Indeed, such things are constantly done, and with the knowledge of the house ; for they are in the habit of saying, with respect to these private acts, that though they will not of themselves pass them into laws, yet they will if the parties can agree ; and matters soirietimes are permitted to stand over to give an opportunity of coming to a settlement. " It is then said, that the money was to be paid out of the funds * of the Vauxhall Bridge company, which by the act were •devoted to other purposes. The proprietors of Battersea Bridge, however, say that they have nothing to do with the funds of the company; that they have contracted with a number of inde- pendent persons, to whom they look for the payment of the bonds ; and if the obligors agree with the company to pay the bonds Avith their money, what have the obligees to do with that, unless by antecedent contract ? They had no demand in law or equity against the company. If, then, the Vauxhall proprietors choose to sanction what the legislature has not directed, namely, the indemnifying the persons who have become obligors in the bonds, that is one thing ; if they have not, then the individual officers who have paid the money over in discharge of the bonds, ought not to have paid it, and may now be called on to pay it back ; as between them and the company, the money must be consid- ered as being still in their hands. If the transaction is to be considered merely as between the obligors and the obligees, the latter not refusing the money from whatever hands it came, but not entangling themselves in any contracts between the obligors and the company, then the obligees would not be affected by those contracts. But if so, still the case depends upon the valid- ity of the bonds ; for I think the Vauxhall Bridge company may, with propriety, say, if the money was paid in consequence of an arrangement for the discharge of the bonds, and if the bonds ^werc' bad, that then it may be called back. When the cause was heard by the vice-chancellor, he did that which he was not bound to do ; for he certainly had jurisdiction, and might have decided upon the validity of the bonds. But he directed that to 712 § 8.] PRELIMINARY ASSOCIATIONS. * 642 be tried at law, where all the objections may be raised upon the pleadings in the same manner as here ; and considering that in matters of this nature, both courts of law and equity have juris- diction exercised upon the same principles, I do not see any occasion to vary the decree." SECTION VII. CONTKACTS OF THE PROMOTERS ENFORCED IN EQUITY. § 8. Edwards v. The Grand Junction Railway,^ is an appli- cation to a court of equity to enforce such a contract against a railway * company, whose charter was obtained, by means of the quieting opposition in parliament, in conformity to the contract. The trustees of a turnpike road were opposing in parliament the grant to the defendants, unless their rights were guarantied in such grant. The promoters of defendants' charter, and the trus- tees of the turnpike road, came to an agreement, in regard to the proper indemnity to be inserted in the act, but to save delay, it was secured by way of contract, on the part of the promoters, providing for a renewal of the covenants, on the part of the com- pany, in a brief time specified, after it should go into operation. The controversy in the present case was with reference to the width of a bridge, by which the railway proposed to convey the turnpike road over their track. The contract stipulated that such viaducts should be of the same width, as the road at that point, which was fifty feet. The charter only required them to be of the width of fifteen feet, and the company having declined to assume the contract of the promoters, were proceeding to build the bridges thirty feet-wide only. The bill prayed an injunction, which was granted by the vice-chancellor, and confirmed by the chancellor, who held that an agreement to withdraw or withhold opposition to a bill in parliament, is not illegal ; and a court of equity will enforce a contract founded upon such a consideration ; and that an incorporated company will be bound by the agree- ment of its individual members, acting, before incorporation, on its behalf, if the company had received the full benefit of the consideration, for which the agreement stipulated, in its behalf." The opinion of the Lord Chancellor will best show the grounds of J 1 My. & Cr. 650. 60* 713 * 643 THE LAW OB RAILWAYS. [§ 8. the decision. "But then the railway company contend, that they, being now a corporation, are not bound by any thing which may have passed, or by any contract which may have been en- tered into by the projectors of the company before their actual incorporation. " If this proposition could be supported, it would be of exten- sive consequence at this time, when so much property becomes every year subjected to the power of the many incorporated companies. The objection rests upon grounds purely technical, and those applicable only to actions at law. It is said that the company cannot be sued upon this contract, and that Moss en- tered into a contract, in his own name, to get the company, when incorporated, to enter into the proposed contract. It cannot be •denied, however, that the act of Moss was the act of the projec- tors of the railway ;. it is, therefore, the agreement of the parties who were seeking an act of incorporation, that, when incorpo- rated, certain things should * be done by them. But the ques- tion is, not whether there be any binding contract at law, but whether this court wiU permit the company to use their powers under the act, in direct opposition to the arrangement made with the trustees prior to the act, upon the faith of which they were permitted to obtain such powers. If the company and the pro- jectors cannot be identified, still, it is clear that the company have succeeded to, and are now in possession of all that the projectors had before ; they are entitled to all their rights, and subject to all their liabilities. If any one had individually projected such a scheme, and in prosecution of it had entered into arrangements, and then had sold and resigned all his interest in it to another, there wOuld be no legal obligation between those who had dealt with the original projector and such purchaser ; but in this court it would be otherwise. So here as the company stand in the place of the projectors, they cannot repudiate any arrangements into which such projectors had entered. They cannot exerdse the powers given by parliament, to such projectors, in their isor- porate capacity, and at the same time refuse to comply with those terms, upon the faith of which all opposition to their ob- ^taining such powers was withheld. The case of The East Lon- 'don Water Works Company v. Bailey, 4 Bing. 283, was cited to prove that, save in certain excepted cases, the agent of a corpo- ration must, in order to bind the corporation, be authorized by a 714 § 8.] PRELIMINARY ASSOCIATIONS. * 644 power of attorney ; but it does not therefore follow that corpora- tions are not to be affected by equities, whether created by con- tract or otherwise, affecting those to whose position they succeed, and affecting rights and property over which they claim to exer- cise control. What right have the company to meddle with the road at all ? The powers under the act give them the right ; but before that right was so conferred, it had been agreed that the right should only be used in a particular manner. Can the com- pany exercise the right without regard to such an agreement ? 1 am clearly of opinion that they cannot ; and having before expressed my opinion that the contract is sufficiently proved, it follows that the injunction granted by the vice-chancellor is in my opinion proper, and that this motion to dissolve it must be refused' with costs." " The case of The VauxhaU Bridge Company v. Earl Spencer, 2 Mad. 356, Jac. 64, (4 Cond. Cha. Eep. 28,) was cited for the trustees ; and it certainly is a strong authority in favor of their claim; Lord Eldon having in that case expressed an opinion, that the withdrawing opposition to a bill in parliament might be a good * consideration for a contract, and having recognized the right of an incorporated company to connect itself with a con- tract made by the projectors of the company, before the act of incorporation. On the other hand Dance v. Girdler, 1 Bos. & Pull. N. E.. 34, was cited for the railway company ; but that was an attempt to make a surety liable beyond his contract ; and Sir James Mansfield, in his judgment in that case, relied much upon the want of identity between the society with whom the contract was made and the corporation ; and the question there was as to a legal liability, not as to an equitable right. It was contended for the railway company that, to enforce this equity would be unjust towards the shareholders of the company who had no notice of the arrangement. To this two obvious answers may be made ; first, that the court cannot recognize any party interested in the, corporation, but must look to the rights and liabilities of the corporation itself; and, secondly, that there is nothing in the effect of the injunction inconsistent with the provisions of the act ; for although the act provides that bridges shall not be less than fifteen feet in width, it does not provide that they shall not be made wider. The company might under this act clearly agree that this or any other bridge should be fifty feet wide." 715 *645 THE LAW OF RAILWAYS. [§ 9- SECTION VIII. CONTRACTS OF THE PROMOTERS BINDING UPON THE COMPANY AT LAW. § 9. We have next in order of time the important case of Simp- son V. Lord Howden,! before the Master of the Rolls, and the Lord Chancellor on appeal, where it is held, that equity will not interfere to decree the surrender of an illegal contract, where the illegality appears upon the face of the contract, the remedy at law being adequate. We have then the same case, at law, be- fore the Queen's Bench® and decided, on full argument, where it is held, that a contract to pay Lord Howden £5,000, in consid- eration of his withdrawing opposition to a bill for incorporating « The York & North Midland Railway Company," he being a peer in * parliament, and owning estates, in the vicinity of the proposed line, was illegal, being a fraud upon the legislature. This decision was subsequently reversed in the Exchequer Cham- ber.3 The case being the leading case upon the subject, at law certainly, may require a more extended statement. The agree- ment under seal, between the plaintiff and defendant, (the case now standing, Howden v. Simpson,) recited that a company had been formed for making a railway ; that defendants were proprietors; that a bill had been introduced into parliament, according to which, the line would pass through plaintiff's estates and near his mansion, and that he was a dissentient and 1 1 Railway Cases, 326, (1837 ;) 1 Keen, 583 ; 3 Mylne & Cr. 97. 2 10 Ad. & Ellis, 793. 3 The case was reversed mainly on the ground that the plea did not allege that the parties, at the time of entering into the contract, intended to keep it secret from the legislature. 10 Ad. & Ellis, 793 ; 1 Railw. C. 347. But the Ex- chequer Chamber held that the agreement on the face of it was valid, and that the plaintiflf was not bound to communicate to the legislature the bargain he had made with the company, and that a member of the legislature could make any terms for the sale of his land, and compensation for injury to his comforts and property, which it is lawful for a private individual to make. The judgment of the Exchequer Chamber was affirmed in the House of Lords, on full argument, before the Chancellor, Lord Lyndhurst, Lord Brougham, and in the presence of the two chief justices, and ten of the judges. 8 Railw. Cas. 294. But Lord Campbell adhered to his former opinion that the contract must have been held illegal, if it had appeared, that it was an element in the contract, that it should be kept secret, and not communicated to parliament. 716 § 10.] PRELIMINARY ASSOCIATIONS. * 646 opposed the passing of the bill ; that defendants had proposed that, if he would withdraw his opposition, and assent to the rail- way, they would endeavor to deviate the proposed line : and plaintiff agreed that, on condition of the stipulations in the agree- ment being performed, he did thereby withdraw his opposition and give his assent : and defendants covenanted that in case the then biU should be passed in the then session they would, in six months after it received the royal assent, pay plaintiff ^65,000 as compensation for the damage which his residence and estates would sustain from the railway passing according to the devi- ated Une, exclusive of, and without prejudice to further compen- sation to plaintiff, in the event of the deviated line not being ultimately adopted, and without prejudice to such further com- pensation, for any damage, as in the agreement after mentioned. Plaintiff declared in debt, and averred that he withdrew his opposition to the bill, which passed into a law in the then ses- sion, that six months had since elapsed, but that defendants had not paid the £5,000. * Plea, that the railway, at the time of making the agreement, and according to the act, was intended to pass through the lands of divers individuals ; that the agreement was made pri- vately and secretly by the parties thereto, mthout the consent or knowledge of the said individuals, and was concealed from them continually until the act was passed, and wa^ not disclosed to, or known in parliament, and was concealed from the legislature, during the passing of the act ; and that plaintiff, at the time of passing the act, and still, was a peer of parliament. SECTION IX. WHAT CONTRACTS, BETWEEN THE PROMOTERS OF RAILWAYS AND OTHERS, WILL BE ENFOKCBD, EITHER IN LAW OR EQUITT, AGAINST THE CON- TRACTING PARTIES, OR THE COMPANY. § 10. Since the decision of Howden v, Simpson, in the Ex- chequer Chamber, and the House of Lords (1842), the English courts seem to have acquiesced in the principles there estab- lished, until a very recent period. The validity of such a con- tract, is recognized, in regard to the company purchasing the interest of the lessee of lands near the line of the proposed rail- 717 *647 THE LAW OF RAILWAYS. [§11- way.^ And where the promoters of one railway entered into an agreement with a land-owner on the proposed line, to take his land at a specified price, (20,000Z.) by which he was induced to withdraw opposition ; and the promoters of a rival line, who pro- posed also to pass through the same land, had petitioned for a charter, and the merits of the two projects were, under the sanc- tion of the committee of the House of Commons, referred to arbitration, and the solicitors of the two bills agreed, that the adopted line should take the engagements entered into with the land-owners, by the rejected line, it was held, that the second company prevailing, were bound, as a condition of entering upon the lands of plaintiff, to fulfil the terms of the agreement with the first company.^ And where one railway company were prohibited from open- ing their line for traffic, until they had built a branch railway, * connecting their line, with that of another company, it was held, that a court of equity was bound to enforce the prohibition, on motion of the other* company, though the probable result would be, to cause inconvenience to the public, and not to ben- efit the other company.^ SECTION X. COtTRTS OF BQTJITY WILL ENFOKCE CONTRACTS WITH THE PEOMOTBKS. § 11. The English courts of equity do not hesitate to restrain railways, from proceeding to take land, under their compulsory powers, where the proprietor of the estates had surceased oppo- sition to the bill, by an arrangement with the projectors, by which they stipulated, that the company should pay a certain sum, which it had declined to do. This was done notwithstand- ing the proprietor was a peer of parliament, and notwithstanding the tender of an undertaking, on the part of the company, not to enter upon the land, until the further order of the court, arid not- 1 Doo V. The London and Croydon Railway, 1 Railw. C 257. 2 Stanley v. The Chester and Birkenhead Railway, 1 Railw. C. 58 ; 9 Simons, 264. 3 Cromford and High P. Railway v. Stockport, D. & W. Bridge Railway, 29 Law Times, 245. 718 § 12.] PKBLIMINART ASSOCIATIONS. * 648 withstanding the time, within which the company, by their char- ter, were authorized to take land would have expired, before the hearing of the cause.i And although this case is questioned, by some writers,^ the learned Lord Chancellor St. Leonards said the cases establish the proposition, that a bond fide contract of this sort, not evading the act of parliament, but enabling the com- pany to assist its views, and carry the act into effect, was valid, without reference to the reasonableness of the amount agreed to be paid.^ ♦SECTION XI. SUCH CONTRACTS ENFOECED WHERE THE RAILWAY IS ABANDONED. § 12. It has sometimes been held, that an absolute agreement made, by the promoters of a railway, to pay one a certain sum 1 Lord Petre v. Eastern Counties Railway Co. 1 Eailw. C. 462. 2 Shelford, 400. 3 Hawkes v. Eastern Counties Railway Co. 15 Eng. L. & Eq. E. 358 ; s. c. be- fore the vice-chancellor, 4 Eng. L. & Eq. R. 91, where it is considered that a railway company having agreed to purchase an estate, although moved to do so, for the quieting of opposition to a bill before parliament, to enable them to ex- tend a branch in a certain direction, which was subsequently abandoned, were nevertheless bound to perform their agreement with the owner of the estate. See also Shelford on Railways, 400. The case of Hawkes v. The Eastern Counties Railway Co. came before the Lord Chancellor St. Leonards, on appeal from the vice-chancellor in 1852, where the whole subject of the legality and binding character of this class of contracts is learnedly discussed, as well as the propriety of decreeing specific performances, and most of the cases elaborately and learn- edly reviewed and compared. The conclusion to which that eminent judge ar- rives is, that even in a case, where the company were not able to carry their project into full effect, but had abandoned it, they were nevertheless bound spe- cifically to perform contracts of this kind, and that it was no objection to decree- ing specific performance, that it would involve the necessity of paying the price of the land out of the general funds of the company, which had been raised, for provisional purposes merely, and with po view of ultimately purchasing land and building the road ; and that the land could be of no use to the company, under present circumstances. One can scarcely fail to perceive in this case, that a prin- ciple, perhaps sound and just under some circumstances, is here pushed quite to its extreme verge. Damages at law might have been the more proper dispo- sition of all interests concerned. The opinion of the Lord Chancellor is a masterly exposition of the view which he adopts. After disposing of the preliminary questions he proceeds : " In the case of Webb v. The Direct London and Portsmouth Railway, 9 Eng. L. & Eq. 719 * 649 THE LAW OF RAILWAYS. [§ 12. to * quiet opposition, is valid, notwithstanding the contemplated work is never carried forward, and the injury to the opposer, K. 249, there was originally a decree for specific performance, and after the de- cision in thi^ case was made — the court having relied on that case — that decision was reversed. Now, it appears to me that that case was reversed upon the un- certainty of the contract ; and if it was reversed upon any other ground, I should have required further time before I could accede to the doctrine that a company entering into such a contract as this is, could, upon any grounds of supposed ille- gality, get rid of the contract. If, as in some of these cases, several of which have been cited, the contract is so worded that it really depends upon this, that the company are not to pay unless they require the land ; that is, they are to pay when they take the land, which assumes that they are not to pay unless they do take the land — that may be considered a conditional contract. I have nothing to say to such cases; but where, as in this case, it is an absolute and unqualified contract to take the land, I should certainly hold that no subsequent conduct on the part of the company could relieve them from the obligation they were bound by at the time they entered into it. The act of parliament having passed, this was as good a contract as a man ever entered into. I must look at it at the time when it was executed — at all events, at the time the act passed. It contemplated the act passing, and the act did pass exactly in the terms pointed out in the agree- ment. Well, then, it is a valid contract. Suppose, as was observed in argument very properly, suppose this agreement had been entered into after the passing of the act, would any man at the bar say that was a contract not to be executed ? Looking at the authorities which have concluded that question, why should it not be as binding, being entered into befbre the act passed, as it must be admitted it would have been if executed immediately after the act passed ? There is no magic in these things. The good faith, the truth, and the honesty of the transac- tion is to be looked at — there is no rule of law in it. If, therefore, Webb v. The Direct London and Portsmouth Railway Company is considered to decide any thing adverse to the decision in this case, I should support the decision of this case, as far as my authority went. With great deference to others, I should sup- port this decision certainly at the expense of the contrary view, that is, contrary to the view taken on that appeal, if that were to be so ; but I apprehend it turned on the uncertainty of the contract. In Lord James Stuart u. The London and Northwestern Railway Company, the Master of the Rolls there decreed a specific performance, upon the authority of Webb v. The Direct London and Portsmouth Railway Company, before it was reversed. It was said that the reversal of that therefore displaced his authority. That also was reversed. There again were two questions : first, a question whether there was any concluded agreements any binding agreement— any thing amounting to a positive contract ; and next, there was great delay. Those cases were relied upon, and I can only repeat that I am not saying either of those decisions was not a proper decision, and I am not called upon to say that; but I say, if they are to be considered in opposition to a specific performance in a case like that before me, that I should totaUy disagree with them. It is a new view of the doctrine of this court, and it is a view which 720 §12.] PEBLIMINARY ASSOCIATIONS. * 650 which the * contract of quietus assumes, is never sustained.* But such a contract is certainly based upon a principle of very ques- could not be supported consistently with the many authorities which exist on this subject. " Then it is argued with great force and insisted upon that there is illegality here, because the company is applying its funds to purposes not authorized by the act of parliament. Now, for that several cases were quoted. MacGregor v. The Dover and Deal Railway Company, 17 Jur. 21 ; s. c. 16 Eng. L. & Eq. R. 180 ; East Anglian Railway Company v. Eastern Counties Railway, 21 Law J. Rep. (n. s.) C. p. 23 ; s. c. 7 Eng. L. & Eq. R. 505 ; and the case of Bagshawe V. The Eastern Union Railway Company, 2 Hall & Tw. 201 ; s. c. 2 Mac. & Gor. 389. Those were all cases in which the company were really going beyond their powers ; and one cannot but lament to see great companies like these, with an attorney always at their command, with every means of consulting counsel daily if they think proper, and which they resort to sufficiently, and with enormous capital, entering into a contract, with a full knowledge of all their powers, and with legal advice constantly at command, turning round upon the party with whom they have contracted, and endeavoring to evade the contract upon the ground that the contract they entered into is beyond their powers and absolutely illegal on the face of it. One cannot but regret that these companies should resort to so unseemly a defence in courts of justice. I do trust we shall not hear of many more of these cases, but that these companies will take care that in en- tering into contracts with individuals who are not so well protected, they do not go beyond their powers, and one cannot but feel that they do not enter into a contract of this sort if it be illegal, without being perfectly aware of its illegality. Nothing can be more indecent than for a great company to come into a court of justice, and to say that a contract — a solemn contract which they have entered into — is void on the ground of its not being within their powers, not from any subsequent accident, not from any mistake or misapprehension, but because they thought fit to enter into it and meant to have the benefit of it, if it turned out for their benefit, and to take advantage of the illegality in case the contract should prove onerous and they should desire to get rid of it. Such highly dishonorable conduct I trust we shall not often see in courts of justice. "Now, these cases last referred to it is not proper for me to find fault with. They are cases in which it appears that the company did enter into engagements clearly beyond their powers, and the parties contracting with them must be sup- posed to have known that. It has been decided that they cannot be enforced, and I have nothing to say against those decisions ; but this case does not fall within those decisions. There is nothing that has been stated to me of any sort or kind excepting this: That a Mr. Duncan, in part of his evidence, refers to the intention of the parties to form a junction with the Ambergate line, and in that way going right through the plaintiff's property, they being unable other- wise to get at the point which they proposed to get at by the curvilinear diverg- ing line, which parliament rejected. Then they say, it is a fraud on the act of 1 Bland «. Crowley, 6 Railw. C. 756 ; 6 Exch. 522. 61 721 * 651 THE LAW OF RAILWAYS. [§ 12. tionable policy, * and courts would more incline to give the con- tract, when consistent with the words used, such a construction, parliament. There is no such thing in the contract — no such thing in the answer. This court has not permitted any evidence to be given on a point of defence that was not raised in the answer; because if it had been raised, Mr. Hawkes could have shown there was no foundation for it. I believe there is no foundation. I believe that the company had in view that they might, by this short cut through Mr, Hawkes's property, get to a certain point ; but Mr. Hawkes had nothing to do with that. The act provided for taking this "property for the very purpose authorized by the act of parliament itself. The cases, therefore, do not touch this question at all, and, consequently, I am not embarrassed by their authority. " Then it is said, there is no mutuality ; and, therefore, that the company could not enforce it, because they have no means of carrying the railway on ; and that involves also the question of the expiration of the time. I have already referred to authority to show that expiration of time in a case of this sort amounts to nothing, where, as in this case, it is the fault of the company itself that the time has been allowed to expire. They have thought proper to allow the time to ex- pire., Their conduct, upon this correspondence, admits of no excuse. With full knowledge of all they intended to do, they are told the deeds are ready to be examined with the abstracts ; they make an appointment to go down, without raising a word of complaint, to examine the abstracts with the deeds. They break that appointment. They make no other appointment. They are told that the vendor has vacated the possession of the property, and that it is at their dis- posal, and that he has sought another residence, as he must necessarily have done, and then they serve a formal notice, telling him they will have nothing to do with the contract ; that they do not want the property, and do not mean to make the line. What has mutuality to do with it ? There are many cases where the court has not looked to the doctrine of mutuality as it ought to have done, and has in- ferred a contract against a party where that party could not have sufficiently enforced a contract against any one else. Those are cases of great hardship ; but here I must look at this' contract at the time the act of parliament was passed, and at the time it was entered into. Where then is there any want of mutu- ality ? Could not the company, "within an hour after the act passed, have en- forced the contract against Mr. Hawkes ? Nobody disputes or doubts it. Wherfi there is the want of mutuality, it is not because a man, subsequently to the con- tract, chooses to introduce impediments to the performance of the contract on his own part, but it is where it is impossible to do that which he had contracted for ; and he cannot, therefore, turn round against the man with whom he has con- tracted; and throw upon that man the loss. Who is to bear the loss in this case ? The company say the loss is to fall upon Mr. Hawkes. Who is to blame ? The company ; not Mr. Hawkes. The company, therefore, modestly desire, in conse- quence of their own act, in breaking this agreement as they have done, and rejecting the line after they had obtained authority to make it, throwing up the line and endeavoring to repudiate their solemn contract, that the whole loss and burden is to be thrown on the party who is not to blame. Fortunately the law, 722 ^2.] PRELIMINARY ASSOCIATIONS. •652 that it shall be the * purchase of a pecuniary interest, or indem- nification for a pecuniary loss, which are legitimate subjects of justice, and equity of the case are agreed. There is nothing to prevent my en- forcing the contract in the case. " Then certain other cases were cited, as showing I ought not to interfere to enforce performance of the contract. Gage v. The New Market Kailway Com- pany,21 LawJ. Rep. (sr. s.) Q.B.398; s.c. UEng.L. &Eq.E. 57,wasone. That seems also to turn on the conditional agreement. There was an agreement there, that the company, before they entered on the land which they might require, should pay, and it was considered there was no absolute agreement to pay. No doubt, the Lord Chief Justice said, if there had been a covenant to pay, or a covenant to pay a sum as a sum in gross, that the court would have treated it as void. The case was not before the court ; but they evidently considered it within the other cases, where they had held that the company could not bind itself be- yond its powers. It required great consideration how far that doctrine should be carried. I dare say it will be necessary that it should be ultimately carried else- where before it can be finally decided. It is a great and serious question how far these companies can be allowed to enter into contracts solemnly under their seal, and then turn round upon the parties and say they have exceeded their powers, and, consequently will not perform their contract. Then in the other case of Gooday v. The Colchester and Stour Valley Kailway Company, 19 Law Times, 334 ; s. C. 15 Eng. L. & Eq. R. 596, there was no agreement binding upon the company. " I can find no authority upon the subject, (and I have looked carefully through every thing which has been cited, and I postponed disposing of the case in order that I might have that opportunity,) to shake the opinion I entertained when the agreement was closed, that this is a very clear case for specific performance. I am very glad that the law turns out to be consistent with the equity of the case ; and, therefore, I dismiss this appeal, and with costs." This case was afiirmed in the House of Lords, 35 Eng. L. & Eq. R. 8, and elaborate opinions delivered, by the Lord Chancellor, Cranworth, Lord Campbell, and Lord St. Leonards. The case is obviously put somewhat upon the ground of the peculiar state of facts involved. 1. It is a contract under the seal of an exist- ing company, and not the contract of the projectors of a contemplated company merely. 2. Although the contract had respect to an extension of the existing line, by means of a branch line, which, as to the existing shareholders, the com- pany had no richt to construct, and even with the consent of the legislature, could not construct, with funds of the existing company, yet nothing of this seems to have been known to Mr. Hawkes. He does not seem to have been made aware of any purpose of the company tt) do any act beyond their powers, or in conflict with the rights of the shareholders. These several points are thus stated in the notes of the case : — ■ Where an act creating a railway company, or giving new powers to an existing company, authorizes the purchase of lands for extraordinary purposes, a person who agrees to sell his land to the company is not bound to see that it is strictly required for such purposes ; if he does not know of anj- "jtention to misapply the 723 * 653 THE LAW OF RAILWAYS. [§ 12. bargain and sale, than to * regard it, as the purchase of good- will, or the price of converting ill-will unto favor, which are funds of the company, but acts ionajide in the matter, he may enforce perform- ance of the contract. SemUe, That where the directors of a railway company, wanting part of a property, purchase more of it than is required, though that may become a ques- tion between them and the shareholders, they cannot on that account avoid the contract with the seller. Promoters of a company to make a line of railway, or persons standing in a similar situation, as directors of an existing company applying to parliament for authority to make a new line, may lawfully enter into a contract for land that will be necessary for the purposed line should the bill pass, and when it has passed, such contract will be valid, and may be enforced. The mere want of legal power to make the contract at the moment of entering into it, will not affect its validity afterwards. Secus, where the act itself is illegal, and parliament is to be asked to legalize it. Where a contract for the purchase of land is made by the projectors of a pro- posed line of railway, though an action at law may be maintained upon the con- tract, a court of equity will not, simply on that account, refuse its interference to compel specific performance. Under the first head the following suggestions of Lord Chancellor Cranworth are of interest : " A railway company cannot devote any part of its funds to an object not within the scope of its original constitution, how beneficial soever that . object might seem likely to prove. " Thus in Colman v. The Eastern Counties Railway Company, 10 Beav. 1 ; 4 Eailw. C. 513 ; Lord Langdale, at the instance of a shareholder, restrained the company and its directors from applying any part of their funds in assisting a company which had been formed for establishing a steam communication between Harwich and the northern ports of Europe. The directors of the railway'com- pany thought that such an application of a part of their funds would be likely materially to promote the interests of their shareholders by encouraging and in- creasing the traffic on their line. But Lord Langdale, though admitting that such an expenditure might very likely conduce to the interest of the railway company, yet restrained the directors by injunction from so applying any part of their funds, on the ground that they had no right to expend the money of the com- pany on any project not directly within the terms of its incorporation. "In Salomons v. Laing, 12 Beav. 339, the same learned judge restrained the directors of the South Coast Railway Company from applying any part of the funds of that company in the purchase of shares of another company, (the Ports- mouth,) by which purchase the defendants hoped to benefit the company of which they were directors. The court held that the defendants had no right to deal with the funds in a manner not authorized by their act. " The same principle was recognized and acted upon by Sir James Wigram and Lord Cottenham in Bagshawe v. The Eastern Union Railway Company, 6 Railw. C. 152. There the legislature had authorized the defendants to raise, by way of additional share,oitwo sums of 200,000i. and 100,000i. the former for the ?24 § 12.] PKELIMINARY ASSOCIATIONS. * 653 certainly not regarded ordinarily, as the just basis of con- tracts.^ pui-pose of enabling them to construct a branch line to Harwich, and the latter for enabling them to purchase and complete a cross line to Hiidleigh. The plain- tiff had purchased scrip certificates for shares in these undertakings, or one of them, on which all calls had been paid, and he stated by his bill, that the direc- tors, though the whole of the two sums, 200,000Z. and 100,000?. had been raised, yet had abandoned the intention of constructing the Harwich line, and were about to apply the sums so raised to the completing of their line from Ipswich to Norwich. The bill prayed, amongst other things, a general account of all sums 80 applied, that the directors might be decreed personally to make them good, and for an injunction to restrain any further similar application of any part of the said two sums of 200,000?. and 100,000Z. To this bill there was a general de- murrer, but it was overruled, first by Sir James Wigram, and afterwards, on appeal, by Lord Cottenham ; the ground of the decision there, as in the other cases, being that the directors had no right to expend any part of the sums raised for a special purpose upon any other objgct than that for which they were so raised. " In all these cases, the discussion was raised by shareholders calling in ques- tion the misapplication or intended misapplication of the corporate funds by the directors. But the doctrine has been acted on in the courts of common law to the extent of holding that a contract, even under the seal of a company, cannot in general be enforced, if its object is to cause the corporate property to be di- verted to purposes not within the scope of the act of incorporation. Thus, in the case of The East Anglian Railway Company v. The Eastern Counties Railway Company, H C. B. 803 ; 8. c. 7 Eng. L. & Eq. R. 505, the Court of Common Pleas, after an elaborate argument, held that no action could be maintained against the defendants on a covenant into which they had entered for payment to the plain- tiffs of the costs incurred in applications to parliament made at the instance of the defendants for obtaining from the legislature powers which the defendants considered it desirable for their interests that the plaintiffs should possess. The Chief Justice, in delivering the judgment of the court, says, (11 C. B. 809 ; s. c. 7 Eng. L. & Eq. R 510,) ' The statute incorporating the defendants' company, gives no authority respecting the bills in parliament promoted by the plaintiffs, and we are, therefore bound to say, that any contract relating to such bills is not justified by the act of parliament, is not within the scope of the authority of the company as a corporation, and is therefore void.' " This case was afterwards recognized and acted on by the Exchequer Cham- ber, in the case of MacGregor v. The Official Manager of the Deal & Dover Railway Company, 18 Q. B. R. 618 ; s. c. 16 Eng. L. & Eq. R. 180. It must, 2 Gage V. Newmarket Railway Co. 7 Railw. C. 168 ; s. c. 14 Eng. L. & Eq. R. 57; Porcher v. Gardner, 14 Jur. 43 ; 19 L. J. 63 ; 8 C. B. 461 ; Shelford on Railways, 402. See also Cumberland Valley Railway Co. v. Baab, 9 Watts, 458 ; Hawkes v. Eastern Counties Railway Co. 7 Railw. Cases, 219 ; 8. c. 4 Eng. L. & Eq. R. 91. 61 * 725 * 654 THE LAW OF RAILWAYS. [§ 12. *But in many cases these provisional contracts have been enforced, notwithstanding the projected works have been aban- therefore, be now considered as a well-settled doctrine, that a company incorpo- rated by act of parliament for a special purpose, cannot devote any part of its funds to objects unauthorized by the terms of its incorporation,-liowever desirable such an application may appear to be. " I have referred to these cases, and there are others to the same effect, for the purpose of showing how firmly the law on this subject is established, and of guarding myself against being supposed to throw any doubt upon it. But I do not think that the present case comes within the principle on which these decis- ions have rested. The making of the Wisbeach & Spalding Branch was not treated by the legislature as a new and independent object to be carried into execution by distinct funds raised for that special purpose. The power to make the new line was, according to the construction I put on the act, merely an addi- tion to the powers conferred by the former acts. So that after the Wisbeach & Spalding act came into operation, the rights and powers of the company were to be regarded as if they had originally been powers, to make the new line, and to raise the additional capital. The new works were to be considered as having formed part of the original undertaking, and the new shares were to be consid- ered as part of the general capital. From the time, therefore, when the Wis- beach & Spalding bill received the royal assent, (and until that happened there was no binding contract,) the directors had just the same right to apply their funds to the purchase of land for the purposes of the new line, as, before the passing of that act, they had for the purchasing of land for the original line. This consideration, therefore, seems to me clearly to distinguish the present case from all those cases cited in the argument. The contract here was to apply the funds of the company to a purchase within the scope of its incorporation, and not to any purposes foreign to it, and I see no objection, therefore, to the con- tract on this first ground. " But it was argued, secondly, that even supposing the contract not to be open to objection on the ground of its being an attempt to appropriate the company's funds to an object foreign to their original purposes, still, that it could not be supported, inasmuch as it was an agreement to purchase for the new railway lands not wanted for the purpose of making it. The directors had originally de- sired to obtain powers to make a straight cut from their new line to join the Ambergate, Nottingham & Boston Railway, and for that purpose it would have been essential to them to possess the plaintiff's land, but they failed in their ob- ject of obtaining power to form this straight cut, and then there was not, it was said, any necessity for them to get possession of the plaintiff's land. A small portion only of it, about an acre and a half, is within the line of deviation, and it was argued that a contract to purchase the whole, (nearly six acres,) was a con- tract ultra vires, inasmuch as the company could only purchase what was really necessary or proper for the construction of the line. But the answer to this argument appeared^ to me satisfactory. The contract was not necessarily, and on the face of it, ultra vires. If the land in question was really wanted by the appellants for what are called extraordinary purposes, they were authorized to 726 § 12.] PBELIMINART ASSOCIATIONS. * 655 doned,^ *But where the contract is a mere arrangement to purchase land at a specified price, for the purpose of building purchase it. Besides the line of deviation actually cuts the respondent's house in two, and in such circumstances the appellants had no right to take a part without taking the whole, if the plaintiff required them to do so; and it is a reasonable inference that the contract to purchase the whole was made because, wanting what was within the limits of deviation, the directors knew that they could not stop short with what was within those limits. Be that, however, as it may, there was nothing to show the respondent that his land was not wanted for the legitimate objects of the company, and in such a case it cannot he permitted to the directors to allege that the contract was invalid as being beyond their powers ; for as argued at the bar, it could be no answer to an action for iron rails bargained and sold, that th^ contract had been entered into, not in order to obtain rails for the use of the line, but in order to keep them in hand for the purpose of a future use, on a speculation that iron was likely to rise in value. I consider, therefore, that this second objection is as untenable as the first." In regard to the second point adverted to in the notes of this case. Lord Camp- bell made some comments which seem to us of very considerable weight as appli- cable to the general subject involved : " During the argument there was much discussion on the question how far such a company is bound by contracts entered into by the promoters of the act of parliament by which the company is consti- tuted. That question really does not properly arise here ; but I think it right to guard myself against the peril of being supposed to acquiesce in the doctrine con- tended for- by the respondent's counsel, that there is complete identity between the promoters of the act and the company, and that as soon as the act has re- ceived the royal assent, a bill in equity might be filed against the company for specific performance of any contracts respecting land into which the promoters had entered. If the company should adopt the contract and have the full benefit of it, I think the company would be bound by it in equity, and therefore I ap- prove of the decision in Edwards v. Grand Junction Canal Company, 1 Myl. & Cr. 650 ; 1 Railw. C. 173 ; although the language of Lord Cottenham in that case may require qualification and must be taken with reference to the facts with ■which he was dealing. 'But it seems to me that the extension contended for of the principle on which that case, and several similar cases which have followed it, rest, is quite unreasonable, and would lead to very mischievous consequences. " Here then is a contract admitted to be under the common seal of the com- pany. The appellants make an idle allegation that the seal was affixed without the sanction of a majority of the members of the company, but no fraud is im- puted to Mr. Hawkes. The directors have repeatedly recognized the validity of the contract, and in an action at law upon it, under a plea of non est factum, they 3 Shrewsbury and Birmingham Railway Co. v. London and Northwestern Railway Co. 20 L. J. Ch. 90; 8. c. 14 Jur. 921; 1 Eng. L. & Eq. R. 122; Hawkes v. Eastern Counties Railway Co. 20 L. J. 243 ; s. c. 4 Eng. L. & Eq. R. 91 ; Preston v. Liverpool, Manchester & Newcastle-upon-Tyne Junction Rail- way Co. 1 Simons, (n. s.) 586; 7 Railway C. 1 ; 7 Eng. L. & Eq. R. 124. 727 * 656 THE LAW OE RAILWAYS. [§ 12. the railway, and the * quieting of opposition does not enter into the consideration, the company are not bound to pay over the could have had no defence, though, if they could allege and prove that Mr Hawkes was guilty of illegality in entering into it, the action would be barred. " But dismissing the charge that he was bargaining for the application of the funds of the company to a line to be made without the authority of parliament, the contract is merely the ordinary contract between a company meaning to apply to parliament for authority to extend a line of railway, and the owners of the land through which the extended line is meant to pass, to be carried into effect if the solicited act of parliament be obtained. The shareholders of the company might if they pleased object to their funds being applied to defraying the expense of soliciting the bill, but if they remain quiet it may fairly be in- ferred that they all approve of the extension ; and when the bill to authorize the extension has received the royal assent, no shareholder can any longer complain. According to the manner in which such bills are usually framed, the extended line becomes part of the concern to be managed by the company for the profit of the body of shareholders, power being given to the company to increase the capital, or by some means to provide the money necessary to complete the ex- tended line. Since the case of Simpson v. Lord Howden, 9 CI. & Fin. 61, it is impossible to contend that an agreement by a land-owner to withdraw opposition to a bill for a railway intended to pass through his property is not a good and valuable consideration. I adhere to the doctrine laid down in a passage quoted from my judgment in the case of the Mayor of Norwich v. The Norfolk Railway Company, 4 Ell. & Bl. 3 9 7 ; s. c. 30 Eng. L. & Eq. R. 1 20 ; but that referred to doing something which was positively criminal and indictable, the obstruction of a nav- igable river by building a bridge across it. This cannot lawfully be done in the hope that an act of parliament may be obtained to legalize it. But where no offence is to be committed against the public, and there is a mere want of author- ity for a transaction among private individuals or commercial companies, which authority can only be obtained by act of parliament, no objection whatever can be successfully made to the parties entering into an agreement for completing the transaction when the necessary authority is so obtained." In regard to decreeing specific performance of contracts of this character, the Lord Chancellor makes some pertinent remarks : " The third point made in sup- port of this appeal was, that even taking the contract to have been a good and valid contract, into which the company might lawfully enter, stiU, the case was one in which a court of equity ought not to interfere, but ought to leave the plaintiff to assert his legal rights by action. It was argued that the court has fre- quently acted on this principle in suits where a vendor has been seeking, as in this case, to enforce against a railway company the specific performance of a contract for the purchase of land, when the time within which the line was to be made had expired. And reference was in particular made to two cases decided by Lord Justice KnigU Bruce and myself, when I held the office of lord justice. I allude to the cases of Webb «. The Direct London and Portsmouth Railway Company, 1 De G. Mac. & G. 521 ; s. c. 9 Eng. L. & Eq. R. 249, and Stuart v. The 728 § 12.] PRELIMINARY ASSOCIATIONS. * 657 money, unless they enter " upon some portion of the land, and under such circumstances an absolute covenant to pay the money, by the company, would be ultra vires and void.* London and Northwestern Railway Company, 1 De G. Mac. & G. 721 ; s. c. 11 Eng. L. &Eq. R. 112. " In the former of these cases (the particulars of which his lordship fully stated) the court proceeded on two grounds. In the first place, the terms in which the deed was framed were such as to lead the court strongly to the conclusion that the whole contract was meant to be conditional on the line being formed, and that if it should be (as in fact it was) abandoned by its projectors, then all the provisions of the agreement were to fall to the ground ; a construction, I may observe, which receives great support from the subsequent case of Gage v. The Newmarket Railway Company, 18 Q. B. Rep. 457 ; s. c. 14 Eng. L. & Eq. R. 57. But independently of that difficulty the case appeared to be one in which a court of equity ought not to interfere in favor of the plaintiff, for that, by any such interference, we should be doing injustice in the attempt to add to the legal remedy. The injury which the plaintiff sustained by the non-performance of the contract was this ; though he was left with the whole of his land untouched, he lost all claim to the £4,500 and might, perhaps, have sustained damage conse- quenfon his having been for five years liable to have any portion of it, not ex- ceeding eight acres, taken by the company for the purpose of the railway. That was evidently a case for compensation by action for damages, and not for relief hy way of specific performance. Indeed, I hardly know how a decree for spe- cific performance could have been there enforced, for no particular eight acres had been contracted for, and the company had no power to select eight acres, except for the purpose of making the railway, the power to make which had long since ceased. On these grounds the court refused to interfere, leaving the plain- tiff to the legal remedy on his covenant." " I have thought it necessary to explain the grounds on which the decision in these two cases rested, for the purpose of showing that they are not at variance ' with the decision now under appeal. Here there is no uncertainty as to the sub- ject-matter of the purchase. The vendor did not sleep on -his rights, and wait until it was impossible for the purchaser to make the line. On the contrary, from the very day on which the contract was to be completed, he insisted on its performance, having shortly before that time quitted possession of the property, and within less than five months afterwards he filed his bill. It is true that the directors, after the filing of the bill, allowed the time to pass, within which they were bound to complete the line. But the plaintiff is not to blame for that. He did not, either actively or passively, mislead the defendants, and it would be im- possible to hold that he is not entitled to the relief he asks, without going to the length of saying that no vendor of an estate, contracting to sell to a railway com- pany, can ever have a decree for a specific performance if the company should see fit afterwards to abandon the undertaking, with a view to which the contract was made." 4 Gage u. The Newmarket Railway, 14 Eng. L. & Eq. R. 57. In this case, the views of Lord Campbell, in delivering the opinion of the court, do not seem to 729 * 658 THE LAW OF EAILWAYS, [§ 13. ♦SECTION XII. PRACTICE or COURTS OF EQUITY IN DECREEING SPECIFIC PERFORMANCE. § 13. The English courts of chancery have, in many instances, enforced specific performance of contracts, between different lines be altogether reconcilable with those expressed by the Lord Chancellor, in Hawkes v. The Eastern Counties Railway, but as they seem to us more consistent with the views maintained in this country, upon analogous subjects, and those which we anticipate, may probably find more favor, in the English courts, when the outward pressure of circumstances, shall by lapse of time be removed, we here adopt them. Lord Campbell, Ch. J. : " We are of opinion, that the defend- ants are entitled to our judgment. Taking the deed as set out on oyer, we think that there is no breach well assigned upon it. The covenant there (without say- ing any thing as the declaration does about ' reasonable time ') is merely in these words : ' That in the event of the bill hereinbefore mentioned being passed in the present session of parliament^ the said company shall, before they shall enter upon any part of the lands of the said Sir Thomas Rokewood Gage, in the said county of Sufiblk, pay to the said Sir T. R. Gage, his heirs and assigns, the sum of £4,900 purchase-money, for any portion of his lands not exceeding forty-three acres, which the said company may, under the powers of their act, require and take for the purposes of their undertaking ; that in addition to purchase-money, as aforesaid, the said company shall pay to the said Sir T. R. Gage, his heirs and assigns, before they shall enter upon any part of the said land, the sum of £7,100 as a landlord's compensation for the damage arising to his estate by the severance thereof, in respect of the lands, not exceeding forty-three acres, to be taken by them.' The question we have to determine is whether, the company never hav- ing entered upon any part of the plaintiff's lands, he is now entitled to sue for these two sums, or either of them ? The £4,900 is declared to be the purchase- money for the land to be required and taken ; and the only time of payment mentioned is before the company enter on the land. Therefore, if no land is re- quired or taken, and the company never enter on any part of the land, there seems great difficulty in saying that there has been a breach of covenant in not paying the money. So the £7,100 is declared to be a compensation for the severance of the land taken from the rest of the plaintiff's land, and the same time of payment is defined. But there has been no severance to be compensated, and the time for payment has not arrived. The deed does not bargain for a sum of money to be paid absolutely by the company to the plaintiff, as a considera- tion for his withdrawing his opposition to the bill, but provides a peculiar mode of estimating the value of the land to be taken, and of the compensation to be made for severance-damage, instead of the modes pointed out by the general acts upon this subject. We therefore do not think that the company can be con- sidered as having absolutely covenanted to pay £12,000 to the plaintiff, in a reasonable time after the passing of the act. If this deed could bear such a con- 730 § 13.] ^ PRELIMINARY ASSOCIATIONS. ' * 659 • of railways, fixing mutual arrangements, in reference to their future operations, even where acts of parliament were necessary to carry such contracts into full effect, and sometimes after a change of circumstances, materially affecting the interest of the parties concerned. And those courts have often enforced an in- junction, in cases of this kind, where interests of great magnitude were concerned, even where the right of the plaintiff was ques- tionable, upon the ground, that things were required to be kept in a safe train, until the rights of the respective parties could be definitely determined.^ . But the practice of the English courts of equity, in regard to this subject, resting chiefly in discretion, as might be expected, is very uncertain, and the cases not easily reconcilable. In many cases, where the right of the plaintiff is doubtful, the injunction to stay the progress of the road, till the contract was performed, has been denied, and the party remitted to pursue his rights in a court of law. ^ The latter course would seem to be most consist- structiou, we should have thought it so far ultra vires and void. Here the railway company are the covenanters ; and if the present action lies, the capital paid up by the shareholders must be answerable for the damages to be recovered. We con- sider that this would be a misappropriation of the funds of the company, which the directors could not lawfully make. All the cases relied upon by the plain- tiff's counsel are clearly distinguished from the present, except Webb v. The London and Portsmouth Railway Company, before Vice-Chancellor Turner. Notwithstanding our high respect for that learned judge, we cannot concur in the reasons for his decision ; and although it has not been expressly overturned, its authority was greatly shaken when it came before the Lords Justices of Appeal. We do not feel it necessary to give any opinion upon the case of Bland v. Crow- ley, in which the learned judges of the Court of Exchequer were divided, as the deed there discussed varies materially from the present. Nor would it be proper to give any opinion upon Stuart v. The London and Northwestern Railway Com- pany, as we learn that when it came before the Lords Justices of Appeal, it was sent by them to be decided in a court of law. We are happy to think that the question in this case being on the record, it may be brought before a court of error." See § 16, and notes. The same principle was further enforced and illustrated, in a recent case, in the House of Lords. Edinburgh, Perth, and Dundee Railway v. Philip, 28 Law Times, 345, 39 Eng. L. & Eq. R. 41. 1 Great Western Railway Co. v. The Birmingham & Oxford Junction Rail- way Co. and others, 2 Phillips, Ch. Cases, 697. The remarks of Cottenham, Lord Chancellor, in this last case, are very pointed, in defence of the practice, in the English courts of equity, of enforcing contracts, made by the projectors of railways, against the company itself, after it comes into operation. 2 Webb V. Direct London & Portsmouth Railway Co. 9 Eng. L. & Eq. R. 249. 731 * 660 " THE LAW OF RAILWAYS. , [§ IS. ent with * the ordinary proceedings of potirts of equity, in appli- cations for specific performance. When the same case was before the Vice-Chancellor, Turner, he seemed to re- gard the plaintiff as entitled to specific performance, but the Lords Justices, upon appeal, entertained no doubt that the party should be remitted to his rights in a court of law. See Preston v. Liverpool, Manchester & Newcastle Junction Railway Co. 1 Simons (n. s.) 586 ; s. c. 7 Eng. L. & Eq. R. 124. . The Court of Appeal, in a similar case, Lord J. Stuart v. London & Northwestern Railway Co. 7 Kailw. C. 44 ; 11 Eng. L. & Eq. R. 112, put their refusal to decree specific per- formance, upon the grounds, that the party, if he had any right, could obtain complete redress at law, and that, after the abandonment of the project, or mate- rial departures from it, it would be impossible for the railway to hold the land to any beneficial purpose, after paying the money, and that therefore the principle of mutuality wholly failed. The Lord Chancellor, St. Leonards, seemed also to be of opinion, that the only ground, upon which the decision, in Webb v. London & Portsmouth Railway Company, 9 Eng. L. & Eq. R. 249, could be vindicated, was the want of mutuality. But it would seem, that this whole class of cases, where contracts have been made to take land, either at a given price per acre, or for a gross sum, or to pay a sum of money, for the damage to an estate, in gross, by reason of a railway coming in a certain line, either across or near the premises of the obligee, should be regarded as conditional, unless the contrary appeared, in express terms, or by the strongest implication. Any other view of these parliamentary contracts, as they are denominated, gives them very much the air of wagering policies, or legislative gambling ! See also upon this subject. Potts V. The Thames Haven Dock & Rail. Company, 15 Jur. 1004 ; s. c. 7 Eng. L. & Eq. R. 262, where it is held, that in pursuing a claim for specific perform- ance of an agreement of a railway company to purchjise land of trustees, that the persons beneficially interested in the land were not necessary parties to the pro- ceeding. A query is suggested, whether a specific performance could be de- creed, there having been no valuation of the land, and in this case there had been great delay on the part of the company, owing to their pecuniary embar- rassment, but after considerable discussion, it was agreed to give the company further time, and the claim was ordered to stand over. It has been held, that where a private company leased land, with a clause of reentfy and were subse- quently incorporated, with an express provision, in their charter, that all con- tracts made before the act of incorporation shall be binding upon the corporation, and they have the same rights, as if these contracts were entered into with, them, that they might maintain ejectment for the land. London Dock Co. v. Knebel, 2 M. & Rob. 66. The case of Strasburgh Railway Co. v. Echternacht, 21 Penn. 220, was this:— Several persons signed a paper agreeing that if the Strasburgh RaUway should be incorporated with certain privileges, they would subscribe the number of shares set opposite their names respectively, and the charter was obtained with the privileges in question, but the defendant, who was one of the subscribers above mentioned, refused to take the stock, and it was held, that the promise was without consideration, and therefore not a contract, but a mere naked expression 732 § 14.j PRELIMINARY ASSOCIATIONS. * 661 *SECTION XIII. SPECIFIC PERFORMANCE IN COURTS OF EQUITY. § 14. But the courts of equity have been mainly influenced by ^what they esteem the policy of enforcing these parliamentary contracts, for the arrangement of conflicting interests, in regard to such projected railways. And they have declined to interfere, by injunction, where no such contract had been definitely made,^ notwithstanding such representations on the part of the pro- of intention, which equity will not enforce by specific performance, and that if it was a binding agreement it should be enforced at law. Leave has sometimes been given by courts of equity to oppose a bill in parlia- ment, unless certain compromises, between the projectors and landholders on the proposed line should be effected. Davis v. Combermere, 3 Kailw. C. 506 ; Monypenny v. Monypenny, 4 Eailw. C. 226. •It is said in a late English work upon the subject, Hodges on Railways, 164, that it is well settled, that agreements made with railway companies by landhold- ers, to sell their lands, and to withdraw or withhold opposition to a bill in parlia- ment, are not illegal. See also Capper v. The Earl of Lindsey, 3 House of Lords Cases, 293 ; 8. c. 14 Eng. L. & Eq. R. 9. This case was first argued in the Court of Exchequer, and subsequently in the Exchequer Chamber, on error, and finally in the House of Lords, in the year 1851. The ease is not found in any of the English treatises on railways, except Hodges, and as it was long dis- cussed, at the bar, and thoroughly examined, by almost all the judges, in .the House of Lords, it ought perhaps to be regarded, as the final determination of the English courts upon the subject. The question of legality seems to have been taken for granted here. And in the Earl of Lindsay v. The Great North- ern Railway Co. 19 Eng. L. & Eq. R. 87, 1853, before V. C. Wood, it is said,. " that the agreement is legal in itself, is now settled, by authority." In this case, which was a contract that the trains should stop at a particular station, the court decreed a specific performance, giving the companies time to make the necessary arrangements, before making the decree absolute. But one railway company cannot bind itself to defray the expense of an appli- cation to parliament, by another company, for the establishment of another line of railway, expected incidentally to benefit the first company. Such contract is beyond the ordinary scope of the powers of a railway company, and conse- quently illegal, and such a covenant cannot be enforced inp^court of law, how- ever beneficial to the covenantor the objects of the coi^ant, if carried out, might be. East Anglian Railway Company v. The Eastern Counties Railway Company, 7 Eng. L. & Eq. R. 505 ; McGregor «. The Deal & Dover Railway Company, 16 id. 180 ; Ante, § 56, 187. 1 Harcrreaves v. Lancaster & Preston J. Railway Company, 1 Railw. Cas. 416. 62 733 * 662 THE LAW OF EAILWATS. [§ 15. meters, as misled the agents of the land-owner. Thus showing, very explicitly, that the main ground upon .which the English courts of equity have proceeded, in decreeing specific perform- ance, and enforcing it by injunction, has been, to compel good faith on the part of such incorporations, in carrying into effect any contracts on their part. For, it is said by the English courts having obtained advantages, in consequence of the contracts and" assurances of the agents employed, in the projects, it would tend to destroy all confidence in any such arrangement, if they were not enforced, which would be *of evil example and tend to great practical inconvenience. But where the parties stand upon their legal rights, as secured in the act of incorporation, a court of equity will riot interfere.^ In a late case these provisional con- tracts se'em to be regarded as conditional, depending, ordinarily, for their obligation, as against the corporation, upon their having done any thing under their charter, which the agreement enabled them to do, so as thereby to have received the benefits of it.^ SECTION XIV. COURTS OF EQUITY WILL RESTRAIN A PARTY FROM OPPOSITION, OR PETI- TION IN PARLIAMENT. § 15. It is held in the English courts of equity altogether com- petent, and within their appropriate jurisdiction, to restrain a party from opposing a bill in parliament, by petition, if a proper 2 Aldred v. North Midland Railway Company, 1 Railw. Cas. 404 ; Provost and Fellows of Eton College v. Great Western Railway Company, 1 Railw. Cas. 200. 3 Gooday v. Colchester & Stour Valley Railway Company, 15 Eng. L. & Eq. R. 596. In this case the Master of the Rolls said, " Since the act was obtained) nothing has been done nor any step taken, to construct the railway. There is no distinct evidence indeed, that the railway has been abandoned, but no money has been paid, no land taken, nor any movement made towards carrying on the scheme, and the compulsory powers of the act have never ceased. Under these circumstances, I cannot say, that the company has adopted the agreement, or is bound by its terms ; and therefore I do not think I can compel them to admit the contract, in an acti^at law." Very recently, in Williams v. The St. George's Harbor Company, 3^aw Times, 84, it was held by the Master of the Rolls, that an agreement entered into by the promoters of a company before incorporation, is not binding on the company when incorporated, unless they subsequently do some act amounting to an adoption of^it. This seems now to be the settled doc- trine in the English courts. 734 §16-] PKBLIMINARY ASSOCIATIONS. * 663 case is made out, and by parity of reason from pursuing a peti- tion in favor of an act of parliament.^ But such cases are not common * in practice, and dependent upon peculiar circumstances. As where proceedings in parliament are in violation of express covenants, or for some other reason, in bad faith, and where damages, at law, are no adequate compensation. These cases are therefore determined much upon the same grounds as other cases of specific performance, and come properly under consid- eration in this connection. SECTION XV. CONTRACTS TO WITHDRAW OPPOSITION TO RAILWAY PROJECTS, AND TO KEEP THIS SECRET, AGAINST SOUND POLICY, AND WOULD SEEM TO BE ILLEG«AL. § 16. The principle of the foregoing decisions, upon the sub- ject of specific performance of contracts, with the promoters of railway projects, being enforced in courts of equity, against the company, is, to say the least of it, somewhat obscure. Regarded, as illegal contracts, it does not seem very apparent how they can, with much show of consistency, be specifically enforced in a court of equity. Ordinarily such contracts are not the subject of an action, for their enforcement, in any court. That there may be extreme cases, where one has gained an unconscionable ad- vantage, by enticing a less experienced person into participation, in an illegal transaction, that a court of equity will compel the successful party to relinquish the fruits of the fraud, may be true. 1 The Stockton & Hartlepool Railway Company v. The Leeds & Thirsk and The Clarence Railway Companies, 5 Riilw. Cas. 691. In this case the injunction was granted by the Viee-Chancellor of England, Shadivell, but the order dis- charged, by the Lord Chancellor, CoUenham, on the ground, that no proper case, for the interference of a court of equity, was made out, but distinctly affirming the jurisdiction. The Lord Chancellor says : " This court, therefore, if it see a proper case, connected with private property, or interest, has just the same juris- diction to restrain a party from petitioning against a bill in parliament, as if he were bringing an action at law, or asserting any other right, connected with the enjovment of the property or interest which he claims." Heathcote v. The North Staffordshire Railway Company, 6 Railw. Cas. 358. In this last case it was held by the Lord Chancellor, that a contract to make a railway is not one of which a court of equity will compel the specific performance, but will leave the parties to their legal rights. 736 * 664 THE LAW OP RAIIWAYS. . [§ 16. But the general proposition laid down, by Lord Eldon, upon this subject in the Vauxhall Bridge case,^ does not seem to gain much support from the case cited by him.^ It seems to us impossible to justify such contracts, beyond the *mere sale of a definite pecuniary interest. And even that, it seems to us, should be secured by the insertion of definite pro- visions in the charter. We cannot find that any attempt has been made, in this country, to enforce against a corporation, a contract made with the promoters, to quiet opposition, in the legislature. That it is often charged, that such, and similar contracts, are made by the promoters of railway projects, with the friends of rival projects, and other opposers, and with the members of the legislature even, and large sums of money dis- bursed, in fulfilment of such contracts, which is expected to be refunded by the company, and which is so refunded sometimes, is undeniable. But we apprehend, there is in this country, but one opinion in regard to the legality and decency of such con- tracts, and that those who expect to profit by them, have far too much sagacity, to trust their redress to* the judicial tribunals of the country. But that turnpike and bridge companies, and ex- isting railways, whose profits are to be seriously affected, by the establishment of new railways, and land-owners, whose property is to be affected by such railways, may properly stipulate, for reasonable indemnity, as the price of withdrawing opposition, there can be, we apprehend, no question. But it seems to us, that the only proper mode of securing this indemnity is, by the insertion of special clauses, in the charter of the new company. There can be no question in regard to the duty of courts of equity, in a proper case for their interference, to enforce an indemnity secured by the act.^ 1 Ante, § 7, Jacob, 64. 2 Neville v. Wilkinson, 1 Brown, C. C. 543. The principle of this case, if we comprehend it, is a familiar one. It is that one who has represented to a creditor of his debtor, or to the father of the intended wife of his debtor, that his debt did not exceed a specified sum, shall not be allowed to enforce against such debtor any larger sum, the marriage having taken place in confidence of such representa- tion. This representation was made indeed .by connivance, between 'the hus- band, and his creditor, to deceive his wife's father. But so far as the creditor is concerned, the decision seems to rest upon the familiar principle of an estoppel in pais. Shiriey v. Ferrers, cited in St. Jphn v. St. John, 11 Vesey, 536. 3 Gray v. The Liverpool & Bury Railway, 4 Railw. C. 235 ; ante, § 181. 736 § 1^-] PRELIMINARY ASSOCIATIONS. * 665 We infer from the late decision of the House of Lords upon this subject, that the views of the courts, in that country, are already undergoing some change upon this subject. In the case of Caledonian and Dumbartonshire Junction Railway v. Helens- burgh Harbor Trustees,* the facts were that the magistrates of Helensburgh agreed with the provisional committee of a pro- jected railway company, to allow the company certain privileges of taking land in the town, and laying rails for a side track, to the harbor of H., the company to pay all the expenses of enlarg- ing the harbor, and of obtaining an act of parliament, for that purpose. The Harbor Act was obtained, and also the Railway Act. In the latter there was no provision authorizing, or refer- ring to, the previous * agreement, and the railway company refused to perform their part, and did not claim performance of the other part. On a bill for specific performance, brought by the harbor trus- tees, held, reversing the decision of the court of session, that specific performance could not be decreed, because the railway company had no power to make a harbor, which would be en- tirely beside the object of their incorporation. It is said by the Lord Chancellor, and by Lord Brougham, " It seems that Edwards v. The Grand Junction Railway, 1 Railw. C. 173, and Lord Petre v. The Eastern Counties Railway, id. 463, and other similar cases, which have followed them, are un- supported in principle, but these cases are distinguished from the present, by the nature of the contracts sought to be enforced, which were matters within the scope of the respective charters. The custom sometimes adopted by committees in parliament of omitting special clauses from acts of incorporation, on the agree- ment of the promoters, that the objects proposed to be attained by these clauses, should be carried out, appears to be illegal, and improper." It seems very obvious, that if these clauses can be foisted into the act of incorporation, by oral testimony, at the will of inter- ested parties, it is exposing the operation of the act, to all the inconveniences and inconsistencies, which might be expected to follow, from subjecting writteil contracts to the same mode of 4 Before the House of Lords in June, 1856 ; Law Rep. Oct. 1856, 350 ; s. c. 2 Macq. H. of L. 391 ; 8. c. 39 Eng. L. & Eq. R. 28. 62* 737 * 666 THE LAW OF, RAILWAYS. [§ 16. exposition. Sound views and true policy, seem to us, to require a strict adherence to the act of the legislature, as in other cases. And it is very questionable, whether, in this country, the con- tract to sell a definite pecuniary interest, — as land which is required for the construction of the road, or turnpike and canal property, the value of which is to be seriously affected by the railway going into operation, — at a price agreed, made with the promoters of the railway, but not inserted in the act, and which is not unreasonable, can be enforced against the company. It is certain, we think, that a contract going altogether beyond this, and stipulating large sums, beyond the supposed value of any pecuniary interest to be secured, and for the obvious purpose of quieting opposition, or securing favor and support, could not be enforced here, even against the contracting parties, and much less against the company, or at all events that it ought not to be.5 5 And in the more recent cases upon this subject very little countenance is given to the doctrine of the earlier English cases, which held the contracts of the * prom6ters of railways binding upon the company, upon the slightest grounds of adoption, and often by the most forced constructions. In the case of Preston v. Liverpool, Manchester & N. Hallway, 35 Eng. L. & Eq. R. 92, although the case is professedly decided upon the construction of the particular contract, yet it is not difficult to perceive, in the very sensible reasons assigned for the construction adopted, a manifest disposition to abandon the former ground, assumed by the courts upon this subject. The point is thus stated in the note to this latter case : " H. & Y. projectors of a railway company entered into a treaty with the plain- tiff, (a land-owner,) whereby the latter agreed not to oppose their bill in parlia- ment, and an agreement was executed, by them, as the executive directors of the railway company, by which the company, upon its incorporation, was to pay to ■ the plaintiff 1,000Z. for land of which he was the freeholder, and which was re- quired for the purpose of making the railway, and 4,000Z. for residential damages. There were other stipulations in regard to tunnelling a portion of plaintiff's property, and erecting a station upon another portion. The company was incor- porated, but not being able to raise sufficient funds, no attempt was made to con- struct the railway, and the money subscribed was returned to the shareholders. Held that the contract was conditional, upon the making of the railway, and therefore that the plaintiff was not entitled to moneys payable thereunder. And qu^re, whether a company can be considered, as the successors or assignees of the projectors, so as to come into existence subject to their contracts." See Ed. P. & Dundee Railway v. Philip, in Ho. L. 28 Law T. 345. 39 Ens. L. & Bq. R. 41. In the recent case of the Bank of Pennsylvania v. Commonwealth, 19 Penn. 738 §86.] REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. * 667 APPENDIX B. CHAPTER XII. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. SECTION I. COMPANY BOUND TO PURCHASE THE WHOLE OF A HOUSE, ETC. § 86. By the English statute,^ railway companies are bound to purchase the whole of a house and lands adjoining, if required, where they give notice to take part ; and also if the house or the principal portion of it, be within fifty feet of the railway, and deteriorated by it. The act includes house, garden, yard, warehouse, building, or manufactory ; but it was considered, that this did not extend to a lumber-yard.^ Under a similar provis- ion, in a special charter, it was held, that the company were not bound to take the entire premises, where the principal dwelling- house only, was within the prescribed limit.^ It has been cohsidered that this* statute gave an option to the land-owner, whether the company should take the whole, or part 144, the court said, " la interpreting an act of incorporation, the court will not . examine what took place, while it was passing through the legislature." It was held also, in Commonwealth v. Fitchburg Railway, 8 Gush. R. 240, that the petitions to the legislature, upon which the act was granted, were inadmissi- ble, upon the question of construction of the act, in regard to the course and direction of the line of the road. 1 8 & 9 Vict. ch. 18, § 92. 2 Stone I). Commercial Railway, 9 Simons, 621 ; s. C. 1 Railw. C. 375; Reg. v. Sheriff of Middlesex, 3 Railw. C. 396. 3 Reg. V. L. & Greenw. Railway Co. 3 Railw. C. 138. 739 * g68 THE LAW OF RAILWAYS. [§ 86. of the house, so situated.* And in this last case it was held, that *a narrow strip of' land adjoining an iron and tin-plate factory, which had been used as a place of deposit for rubbish, and over which, a person bad a right of way, was such a part of the manufactory, that the company were bound to take the whole.* It has also been determined, that the railway, after giving notice to purchase part of a house, &c., and being requued, by the owner, to take the whole, cannot be compelled by manda- mus to take the whole, as the act of parliament imposes no such obligation. The statute is intended to protect the owner from 4 Sparrow u. The Oxford, Worcester, & Wolverhampton Railway, 13 Eng. L. & Eq. R. 33- By Lord Cranworth and Sir Knight Bruce, L. J. See also Barker V. N. Staffordshire Railway, 5 Railw. C. 401, 419, where Lord Cottenham, Ch., intimates an opinion, that certain parcels of land (and a brine-pit and steam- engine upon one of them) adjoining salt-works, are not a part of the manufac- tory. But his lordship gives a very satisfactory reason for denying the aid of the court, viz: " That a party having known his rights, and having had his claim, in respect of them, disposed of, [upon the original bill, and by leave of court th'en filing a supplemental bill,] if he then raises a new ground of equity, does not pre- sent his case in a form, to entitle him to ask for the extraordinary interposition of this court." In Sparrow v. The Oxford, &c. Railway Co. 13 Eng. L. & Eq. R. 33, Lord Cranworth, L. J., made some very significant suggestions, in regard to the rights of land-owners to compensation. " The only remaining question,'' said his lord- ship, " is one which has been raised now for the first time, namely, that if they cannot take the land, they are now entitled to burrow under it, as it were to make a tunnel, which they say they are able and willing to do, without taking, or touching, any part of the surface. It was argued in this way, ' Suppose the manufactory were, at the top of a hill, and you were burrowing under it, at the ' distance of a thousand feet, are they then taking part of the manufactory ? ' I do not feel myself called upon to answer that question, but if I were, I rather believe you are, on the principle of the maxim, Cujiig est solum, ejus est usque ad inferos. Do you mean to say, that if you are an inch below the surface, you would not be taking any part of the manufactory ? I am inclined to think that however deep below [the tunnel was made,] it would be within the enactment. If that has been a casv,s omissus I think it ought to be construed in a way most favorable to those, who are seeking to defend their property from invasion." In the case of Ramsden v. The Manchester S. Junction Railway, 1 Exch. R. 723, it was determined, that a railway company could not tunnel, even a highway, with- out first making compensation, to the owner of the freehold, under the Land Clauses Act. The company are not bound to take property more than fifty feet from the centre line of the road, unless it is incapable of separation. Queen v. London & G. Railway, 3 Ad. & Ell. (n. s.) 166. 740 § 87.] REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. * 669 being compelled to selfa part, but does not compel a company, wanting a part only, to take the whole, if they choose to waive their claim altogether, and the mandamus having claimed the whole, could not go for a part only.' *SECTION II. THE COMPANY COMPELLABLE TO TAKE INTEESECTED LANDS, AND THE OWNER TO SELL. § 87. By the 93d section of the English statute the company is compellable to take lands, not in a town, or built upon, which are so intersected by the works, as to leave either on one, or both sides, a less quantity of land than half a statute acre. And by section 94 if the quantity of land left on either side of the works,! is of less value than a railway crossing, and the owner have not other lands adjoining, and require the promoters to make the crossing, the owner may be compelled to sell the l£y;id. It was held, that the term " town" in a turnpike act, imported a " collection of houses," and that the extent of the town was to be determined by the popular sense of the term, and to include all that might fairly be said to dwell together.^ And in another case, it is said, that the term includes all the houses, which are continuous, and that this includes all open spaces occupied, as mere accessories to such houses.^ 5 Queen v. The London & S. W. Railway Co. 5 Railw. C. 669. The remark of Lord Denman, in closing his opinion, in this case, is applicable to similar cases everywhere. " We have to lament the waste of time that has occurred, from the obscurity thrown about the case, by the superfluous matter foisted into the record." 1 8 and 9 Vict. ch. 18, § 93 and 94 ; Falls v. Belfast & B. Railway, 11 Irish L. R. 184. This statute does not apply to lands in a town or built upon. Marriage u. The Eastern Go's. R. and the London & B. Railw. 30 Law Times, 264. 2 Reg. V. Cottle, 3 Eng. L. & Eq. R. 474. 3 Elliott V. South Devon Railway, 2 Exch. R. 725. 741 670 THE LAW OF RAILWAYS. [§ 88. SECTION III. EFFECT OF NOTICE TO TREAT FOE THE PURCHASE OF LAND. § 88. Inasmuch as the time for taking land, by the English statute, is limited to three years, an important question has arisen there, in regard to the effect of instituting proceedings, by giving notice to treat, within the time limited, although not in season to have the matter brought to a close before its expi- ration. This having been done, and the land-owner having intimated his desire, that a jury should be summoned, but the company taking no further steps, the question was, whether a writ of mandamus would lie, after the prescribed period had elapsed, to compel *the company to proceed to' summon a jury. It was determined in the affirmative.^ So, too, where the company have taken possession of land, by depositing the value of the land in the Bank of England, and executing a bond to the party to secure payment, subject %o future proceedings, as they may do, and where the company took no further steps, to ascertain the sum to be paid by them, as compensation, until the time limited for exercising their com- pulsory powers had expired, it was held that having rightfully entered upon the land, before the expiration of the prescribed period, an ejectment could not be maintained against them, after that period. The proper remedy for the land-owner is by writ of mandamus.2 1 The Queen u. Birmingham and Oxford Junction Railway, 6 Railw. C. 628 ; Birmingham and Oxford June. Railway Co. v. Regina, 4 Eng. I.. & Eq. R. 276, where the judgment of the Q. B. was fully affirmed in the Exchequer Chamber. The court say, " The notice to treat is an inchoate purchase, and after that has been given, in due time, it is competent for the land-owner to compel the com- pletion of the purchase." But where an annuitant, having power to enter upon land and distrain for his security, was served with notice, by a railway company of their intention to purchase, and the company subsequently purchased the properly of a prior mortgagee, who had a power of sale,.it was held the annui- tant could not, in equity compel the company to pay the owners of the annuity, he alleging no fraud, or other improper conduct, on the part of the company. Hill V. Great N. R. 27 Eng. L. & Eq. R. 198, reversing the decision of one of the vice-chancellors in s. c. 23 Eng. L. & Eq. R. 565. 8 Doe d. Armistead v. The N. Staffordshire Railway, 4 Eng. L. & Eq. R. 21 G. 742 § 89.] KEMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. * 671 So, too, if they have made the deposit, and given a bond for the payment of the price, under this same section^ a day before the efflux of the time limited, although they had not entered upon the land, their powers to purchase, or enter upon the lands, are saved.^ ♦SECTION IV. REQUISITES or THE NOTICE TO TREAT. § 89. As by the English statute, the notice to treat is made the act of purchase, it is of the first importance, that it should de- scribe the lands accurately. But even M^here the notice was indefinite, if it be accompanied with a plan, which shows the very land proposed to be taken, it will be sufficient ; ^ or reference may be made to the parliamentary plan.^ The company can only claim to use what their notice and the annexed plan shows clearly was submitted to the appraisers to value.^ It was held long ago, in the English courts, under similar stat- utes, for taking land, by compulsion, that the notice to treat con- stituted the act of purchase, and that after giving it, there remained no longer, to the company, any power to retract, and they wiU be compelled by mandamus to complete the purchase.^ The expression " deviation" which appears in the acts of parliament and in the English cases, is here determined to import the distance from the line of railway upon the parliamentary plans which are the basis of the charter, and one hun- dred yards " deviation" is commonly allowed, in the acts. Worsley v. The South Devon Railway Co. id. 223. 8 The Marquis of Salisbury v. The Great Northern Railway Co. 10 Eng. L. & Eq. R. 344. The position is here distinctly assumed, that after the notice to treat, the "parties stand in the relation of vendor and purchaser, and the company are not at liberty to recede. All the after proceedings are merely for the purpose of ascertaining the price of the land. Sparrow v. Oxford and Worcester Railway Co. 9 Hare, 436 ; 12 Eng. L. & Eq. R. 249. 1 Sims V. The Commercial Railway, 1 Railw. C. 431 ; Hodges on Railways, 197. 2 Kemp V. The London & Br. Railway Co. 1 Railw. C. 495. 3 The King v. Hungerford Market Co. 4 B. & Ad. 327 ; Same v. Commission- ers of Manchester, id. 332, n.; Doo v. The London & Cr. Railway, 1 Railw. C. 257; Burkinshaw v. Birm. & Ox. June. Railway Co. 5 Exch. R. 475 ; 4 Eng. L. & Eq. R. 489 ; Ed. & Dundee Railway Co. v. Leven, 1 Mac. House of Lords 743 *672 THE LAW OF KAILWAYS. [§ 90. And where the company had given notice to take twenty perches of land, they cannot subsequently give notice to restrict the land to one perch.* But the company having issued one notice, may issue a second, requiring additional lands.^ They are at liberty, by new notices, from time to time, to take such additional lands, as the progress of the work shows will be requisite. Nor will the company be deprived of the power to take land for the necessary use of the works, when the emergency arises, by having previously attempted to take it, for other purposes, not warranted by their act.^ * And the company having opened their main line for travel, but not completed the stations and works, are at liberty to take any lands, within the limits of deviation, for a branch railway.'^ But it was held, that, where the Commissioners of Woods and Forests, gave notice of taking lands for a public park, as they were acting in a public capacity, the notice given by them did not constitute a quasi contract, enforceable by mandamus.* SECTION V. THE NOTICE MAY BE WAIVED, BY THE PARTY ENTERING INTO NEGOTIATION. § 90. It is a general rule in regard to all summary and inferior jurisdictions, that the basis of their jurisdiction must appear upon the face of the proceedings.^ Hence in proceedings to take Cases, 284 ; Stone v. The Commercial Railway Co. 1 Railw. C. 375. When vari- ance from notice will not vitiate precept, see Walker v. The London & Bl. Rail- way Co. 3 Ad. & Ellis, (n. s.) Q. B. 744 ; see arge, § 88, and notes. * Tawney v. Lynn & Ely Railway Co. 4 Railw. C. 615. 5 Stamps V. Bir. Wolv. & Stour Valley Railway, 6 Railw. C. 123 ; s. c. 7 Hare, 251. 6 Webb V. Manchester & Leeds Railway, 1 Rsilw. C. 576 ; Simpson v. Lan- caster & Carlisle Railway, 4 Railw. C. 625 ; Williams v. South Wales Railway Go. 13 Jur. 443 ; s. c. 3 DeG. & S. 354. 7 Sadd V. The Maldon, W. & Braintree Railway Co. 2 Eng. L. & Eq. R. 410. B Queen v. The Comm. of Woods & Forests, {Ex parte Budge,) 15 Ad. & Ellis, (n. s.) 761. 1 Rex V. Bagshaw, 7 T. R. 363; Rex v. Mayor of Liverpool, 4 Burrow, R. 2244 ; Rex v. Trustees of the Norwich Roads, 5 Ad. & Ellis, 563. 744 § 91.] REMEDIES Br LAND-OWNEES UNDER ENGLISH STATUTE. '673 land, in invitum, under a notice to treat, the notice being re- garded, as essential to the jurisdiction, it has more generally been held indispensable to the jurisdiction, that it should be set forth upon the proceedings.^ But where the land-owner enters into negotiation, with the company, and agrees to waive the notice, he is afterwards es- topped from taking the objection, that he rtever received notice.^ And it was held, that the party, whose duty it was to give the notice, and who was shown, by the returns, to have appeared before the jury, cannot object to the inquisition, upon the ground, that it did not disclose a proper notice to treat.^ In another case, where application was made to the King's Bench, to issue a certiorari, to bring up and quash an inquisition for land damages, in a railway case, on the ground of some alleged defect, the court say, the granting the writ is matter of discretion, though there are fatal defects, on the face of the pro- ceedings which it is sought to bring up ; and that it is almost an invariable rule, * to deny the writ, where it appears the party has suffered no injury, or has assented to the proceedings below.* SECTION VI. TITLE OF THE CLAIMANT MUST BE DISTINCTLY STATKD. § 91. In reply to a notice to treat, the claimant may state the particulars of his claim, and proceed to treat. In this case the statement should give a clear description of the claimant's intep- est in the land, as a defect here is liable to affect the validity of the after proceedings. In one case where the claimant's answer, to the notice to treat, stated, that, as trustees under a will, they claimed an estate in copyhold, and a certain sum, as compensation for their interest in the lands, and appointed an arbitrator, and the other party appointing one, and an umpire being agreed upon, he awarded a certain sum, as the value, to be paid to the trustees, " for the pur- chase of the fee-simple, in possession, free from all incum- brances,; " the company applying to set aside the award, upon 2 Reg. V. The Committee for the South Holland Drainage, 8 Ad. & Ellis, 429. 3 Reg. V. The Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. * Reg. V. The Manchester & Leeds Railway Co. 8 Ad. & Ellis, 413. 63 745 * 674 THE LAW OF RAILWAYS. [§ 91. t'le ground that other persons claimed an interest in the lands, the court held the award bad, for not finding the interest of the claimants in the land, or that they had a fecTsimple, which it appraised. But the court did not set the award aside, but left the company to dispute.it, when it should be attempted to be enforced.^ If the lands are in possession of a receiver, or the committee of a lunatic, a special application should be made to the Court of Chancery.^ The claimant cannot object, that the award de- scribes the land, as a fee-simple, in possession, whereas, the land is in possession of a tenant. Lord Denman, Ch. J., in givipg judgment, says, " The answer is, that such assumption, if really made, is in favor of the claimant, and therefore no matter of complaint for him. But it does not appear clearly, that any such assumption * was made. The expression ' fee-simple in pos- session,' in the claim, is used in contradistinction to fee-simple in reversion, or remainder." * 1 The North Stafibrdshire Railway Co. v. Landor, 2 Exch. K. 235. a In re Taylor and York N. Midland Railway, 6 Eailw. Cas. 741. In this case the Lord Chancellor said, " All the world ought to be aware, that the sanction of the Lord Chancellor is necessary to be obtained in the first instance, in cases like the present." 3 Bradshaw and The East & W. L Docks & Birmingham J. Railway Co. 12 Ad. & Ellis, (n. s.) 562. The vendor of land to a railway company, does not waive his lien for damages, by accepting a certificate of deposit made by the cashier of the company, for the purchase-money, the money not being paid when called for. Mims v. Macon & W. Railway Co. 3 Kelly, 333. Where a company received a grant of certain salt mines, subject to a condition, which they did not comply with, but retained the lands for a different purpose, and afterwards when the period for performing the condition had expired, a general grant of all unoc- cupied salt lands in the state, necessary to use, for constructing a railway, was made to a railway company, who proceeded and occupied the lands above-named, it was held that the first grantors had no interest, or title, enabling them to main- tain an action for damages. "They had the lands set apart to their use, for making salt, and had no right to enter upon, and occupy them for any other purpose," are the words of the court. Parmerlee v. Oswego & Syracuse R. R. Co. 7 Barb. 593. The statute of Pennsylvania gives the right to construct lateral railways over intervening lands, to the owner of lands, mills, quarries, coal, or other mines, lime-kilns, or other real estate, in the vicinity of any railway, canal, or slack- water navigation. It was held, that one who was in possession of the land, on ■which a coal-mine was, at the commencement of the proceeding to recover land damages, and who had erected a two-story dwelling-house upon the land, was 746 § 92.] REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. * 675 * SECTION VII. THE CLAIM OP THE LAND- OMWEB MUST CORRESPOND WITH THE NOTICE. § 92. In one case the claim of the land-owner described more land, than the notice to treat, being intersected land, less than one half acre, which the company are bound to take, if so re- quired. But the claim did not properly designate the portion, which, it was claimed, the company should take, under their notice, and that which they were required to take, as intersected land. The umpire received evidence as to the value of the inter- sected land, and awarded one entire sum, as compensation, for the whole. Held that the award was bad, there being no valid submission, as to intersected lands.^ an OTjner of the coal-mine, within the act. Shoenberger v. MulhoUan, 8 Barr, 134. It is sufficient in such case that the petition be signed by the lessee and agent of the ownei-. Harvey v. Lloyd, 3 Barr, 331. It is considered necessary that the mortgagee of land should become a party to the proceedings for condemning, or granting land to a railway, in order to give good title to the company. Stewart v. Raymond Railway, 7 S. & Mar. 568. Or that he should give his consent, in writing, in the case, to the proceeding, taken by the mortgagor. Meacham v. Fitchburg Railway, 4 Gush. 291 ; 1 Am. Railw. Gas. 584. Where the state held land for a state prison, and granted the charter of a rail- way, in the usual form, authorizing the company to locate their road, so that it might pass over the land of the state, so held, but without any expression in the act of a design to aid the company, in their undertaking, it was held the state might recover damages for the land taken. The court say, " The inquiry relates solely to the property of the commonwealth, which it holds ih fee, in its capacity, as a body politic. It appears to us the question is purely one of intention." "We think if the legislature had intended to aid the enterprise, by an appropri- ation of money, land, or other means — such aid being unusual — the purpose to do so would have been in some way expressed." Commonwealth v. Boston & Maine Railway, 3 Gush. 25; 1 Am. Railw. Gas. 482, 496, 497. 1 The N. Staffordshire R. Co. ... Wood, 2 Excheq. R. 244. 747 676-677 THE LAW OF RAILWAYS. [§ 93. •CHAPTER XIIL ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. SECTION I. LANDS TAKEN OK INJURIOUSLY AFFECTED, WITHOUT HAVING PREVIOUSLY MADE COMPENSATION TO THE PARTIES. § 93. The eighty-fourth section of the English statute, The Lands Clauses, &c. provides that no entry shall be made upon any lands, by the company, untU compensation shall have been made, under the act, or deposited in the Bank of England, ex- cept for the purpose of preliminary surveys, and probing, or boring, to ascertain the nature of the soil, ■which may be done, by giving notice, not more than fourteen days, or less than three days, and making compensation for any damage, thereby occa- sioned to the owners, or occupiers of such lands. It has been considered, that if the company enter upon lands, without complying with the requisitions of the statute, they are liable in trespass, or ejectment.^ And in some cases an injunc- tion will be granted. But where the company entered to make preliminary surveys, without giving the requisite notice, the court refused to order the injunction, but reserved the question of costs,^ And where the entry was regularly made upon the land, for •preliminary surveys, and afterwards the contractors, without the knowledge of the corporation, but with the consent of the occupying tenants, brought some of their wagons, and rails, and ' Doe d. Hutchinson v. The Manchester, Bury, and Rosendale Railway, 14 M. & W. 687. 8 Fooks V. The Wilts, Somerset, and Weymouth Railway Co. 5 Hare, 199 ; S. C. 4 Railw. C. 210. In this case, the injunction was denied chiefly upon the ground, that the alleged trespass was complete before the application. The court intimate, that if the company should attempt to proceed further, it might be proper to restrain them by injunction. The point, of the company being in the wrong, is distinctly recognized, by the court. 748 § 93.] ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. * 677 Other implements, upon the land, but did not commence the works or do any damage, and this was without the assent of the owner, and his agent thereupon filed a bill to obtain an injunc- tion, against taking possession of the lands, until they had com- plied with the statute, the vice-chancellor said, that although the company were bound, by the acts of their contractors, the acts doae were not a taking possession, within the meaning of the statute, and that the bill was improperly filed.^ But where the company agreed with the land-owner, that the question of compensation should be settled, by arbitration, and thereupon entered upon the land, by consent of the owner, and the arbitrator made an award, which became the subject of dis- pute, and the owner thereupon gave the company notice to quit, and brought ejectment, it was held he could not recover, although the company had not tendered the money awarded, or a convey- ance, but, that the owner's remedy was to proceed upon the award.* The notice to quit under the circumstances did not make the company trespassers. By the eighty-fifth section, if the company find it necessary to enter upon land, for the purpose of carrying forward their works, before the amount of compensation can be settled," they may de- posit in the bank the amount claimed, or in other cases the appraisal, and, also give the party a bond, with surety, to be ap- proved by two justices in a penal sum, equal to the amount, so deposited, conditioned for the payment, or deposit of the amount finally fixed, as the ultimate value, and interest thereon, and then take possession of the land and proceed with their works. The company can obtain their money, so soon as the condition of the bond has been complied with. But the vendor must join in the petition, for the money to -be paid the company, or else it must be shown, that he has been served with a copy of the petition.^ 3 Standish i<. Mayor of Liverpool, 1 Drewry, 1 ; s. c. 15 Eng. L. & Eq. R. 255. * Doe d. Hudson v. The Leeds and Bradford Railway Cil ^Eng. L. & Eq. R. 283. The decision here goes chiefly upon the ground of the consent of the land- owner to the entry of the company, and to refer the compensation to an arbitrator. ^ Ex parte South Wales Railway Co. 6 Railw. C. 151. But in ex parte The Eastern Counties Railway Co. 5 Railw. C. 210, the money was ordered to be paid to the company upon affidavits showing the claim settled. The land-owner has no lien upon the money deposited for costs, but the company are entitled to the money upon payment of -the sum finally settled for the value of the land 63 * 749 *678 THE LAW OF RAILWAYS. [§ 94. It * does not invalidate the bond, if it bear date before the date of the valuation.® SECTION II. THE PROCEEDINGS REQUISITE TO ENABLE THE COMPANY TO ENTER UPON , LAND. § 94. In some cases specified in the English statute, it is nec- essary to have a provisional valuation of land, by a surveyor appointed by two justices, to determine the amount of the secur- ity to be given before the entry of the company upon the land. Where in such cases the justices appointed a surveyor, who had all along acted for the company, to appraise the value ; it was held no sufficient reason to interfere, by injunction, but the court reprobated such a practice. The court also declined to interfere, by injunction, on the ground, that the sureties on the bond, were The Great Northern Railway Co. ex parte, 5 Eailw. Cases, 269 ; London and South W. R. ex parte Stevens, 5 Railw. C. 437. The bond must be given in the very terms of the statute. Hosking v. Phillips, 3 Exch. R. 168, opinion of Parke, B. And it will make no difference that the obligee is a gainer by the deviation from the statute. Poyrfder v. G. N. Rail- way Co. 5 Eailw. C. 196. But where the company choose to treat for the claimants' title only, it is suffi- cient if the bond follow the statute, so far as it applies to that particular case. Willey V. Southeastern Railway Co. 6 Railway Cas. 100. Opinion of Lord Chancellor, 107-8. If the company enter by consent of the tenant, and do per- manent damage to the land, the owner may nevertheless obtain an injunction and compel them to make a deposit, and give a bond, as required by the statute. Armstrong v. Waterford and Limerick Railway Co. 10 Irish Eq. R. 60. If there is a mortgage upon land, the company must treat with the mortgagee, or provide for the expense of reinvestment for his benefit, or their entry will be regarded as unlawful. Eanken v. East and West India Docks & Bir. J. Railway, 12 Beavan, 298; 19 L.J. Ch. R. 153. Under the gen^r^statutes, in many of the American states, where there are conflicting claims to The land, required by a railway company, the company are required to make application to the court of chancery, and deposit the money, in bank, subject to the final order of that court. In such case it has been con- sidered, that the company had no interest in the controversy, after depositing the money for the price of the laud. Haswell v. Vermont Central Railway, 23 Vt. 228. 6 Stamps V. Birmingham, Wolverhampton, & Stour VaUey Railway, 6 Railw. C. 123. 750 § 94.] ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. *679 the company's solicitors, and were upon similar bonds, to a large amount.^ * In the same case it was considered, that depositing money and executing a bond to tenants in common, in their joint names, was irregular.^ It was held that the proceedings under the 85th section of the English act, to obtain possession of the land, before the amount of compensation is settled, may be ex pcurte, and altogether without notic.e.^ * The English statute subjects the company to a penalty for entering upon lands before taking the steps* required, by the statute, but provides, that the penalty shall not attach to any company, who have bond fide done what they deemed to be a compliance with the statute.^ If one enter upon lands after verdict estimating damages, but before judgment on the verdict, he is liable in trespass, but only for the actual injury, and not for vindictive, or exemplary dam- ages.* It has often been made a question in this country, where the charter of a railway provides one mode of assessing land dam- ages, and a subsequent general railway act provides a different mode, which the company are bound to pursue. It has been held the company might still pursue the course pointed out in their charter. 5 ' Langham v. Great Northern Railway Co. 5 Raihv. C. 265-6. This case was in favor of five plaintiffs, three tenants in common, and two devisees in trust for the sale of the lands, and it was queried, whether there was not a misjoinder. 2 Bridges u. The Wilts, Somerset, and Weymouth Railway Co. 4 Railw. C. 622. This is a decision of the Lord Chancellor affirming that of the vice-chancellor of England. Poynder v. The Great N. Railway Co. 5 Railw. C. 196. In this case the bond was held to be informal, for being made to be performed " on demand," the Lord Chancellor refused a perpetual injunction, but allowed it, till the bond was corrected. 3 Hutchinson v. The Manchester, Bury, and Rosendale Railway Co. 15 M. & W. 814. Pollock, Ch. B., thus lays down the rule of construction of this statute : " A penal enactment ought to be strictly construed, but a proviso, which has the effect of saving parties from the consequences of a penal enactment, should be liberally construed." 4 Harvey v. Thomas, 10 Watts, 63. 5 Vischer v. Hudson River Railway, 15 Barbour, 37; Hudson River Railway t). Outwater, 3 Sand. Sup. Ct. 689. Ante, § 72, n. at the end. 751 '680-681 THE LAW OF RAILWAYS. [§ 95-96. *SECTION III. MODE OP OBTAINING COMPENSATION ITNDBK THE STATUTE, FOR LANDS TAKEN, OR INJURIOUSLY AFFECTED, WHERE NO COMPENSATION IB OF- FERED. § 95. Where land js taken by the company, or injuriously affected, by their works, and no compensation has been offered, by the company, the claimant may, where the amount exceeds fifty pounds, have the same assessed either by arbitrators, or a jury, at his election. If he desire to have the same settled, by arbitration, he shall give notice to the company of his claim, stating his interest in the land, and the amount he demands, and unless the company, within twenty-one days, enter into a written agreement, to pay the amount claimed, the same shall be settled, by arbitration, in the manner pointed out in the statute ; or if the party desire to have the same settled, by a jury, he shall so state, in his notice of claim, and unless the company agree to pay the sum claimed, in the manner stated above, they shall, within twenty-one days, issue their warrant to the sheriff, to summon a jury, to settle the same, in the manner pointed out in the act, and in default thereof they shall be liable to pay the amount claimed, to be recovered in the superior courts.^ SECTION IV. THE ONUS OP CARRYING FORWARD PROCEEDINGS. § 96. It has been held under the English statutes, that after the company have taken possession of land, either by right or by wrong, the onus of taking the initiative steps, to have the purchase-money, or compensation, assessed, lies upon the claim- ant.^ It was * considered, in this case, that the remedy under ' 8 & 9 Vict. ch. 18, § 68. 1 Adams v. The London & Blackwall Railway Co. 6 Railw. C. 271, 282. The opinion of the Lord Ch. on appeal. It was also considered, in this case, that if the company failed to perform their duties, in the proceedings, the more appro- priate remedy was by mandamus, and not by application to the courts of equity for decree of specific performance* 752 § 96.] ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. * 681 the 68th section ^ applied to all cases, where the company took possession of the land under the 85th section.^ But if questions in equity are pending, they must be dis- posed of, before the common-law remedy can be pursued.* This was a case where the determination of the matters, pending in equity, was necessary, to enable the parties to know, what was to be submitted to the assessors.* In proceedings under the 68th section, it is not necessary for the company to give the claimant notice of their issuing a warrant to the sheriff, to summon a jury, ten days before they issue it, as is required in proceedings under the other sections.^ It was held, that if the claimant recover a larger sum, than was offered by the company, he is entitled to recover costs, under section 68, as well as under other sections.^ It is considered, that the land must be actually taken, or actu- ally injuriously affected, by the company, before the claimant can take proceedings under section 68. Hence if the company give notice of their intention to take lands, but do not afterwards actually take possession, or injuriously affect them, the claimant can only proceed by mandamus. It has been decided, that the claimant, in such case, cannot make a demand of a certain sum, and then recover it, if the company do not issue their warrant to the sheriff.^ '■^ See ante, § 95. 3 See ante, § 93, 94. Doe d. Armistead v. North Staffordshire Railway Co. 4 Eng. L. &Eq. E. 216. * Southwestern Railway Co. v. Coward, 6 Railw. C. 703. 5 Railstone v. The York, Newcastle, & B. Railway Co. 15 Ad. & Ellis (n. s.) R. 404. This case is somewhat questioned in Richardson v. Southeastern Rail- way, 6 Enc. L. & Eq. R. 426. But in this same case, in error, in the Exchequer Chamber, 9 Eng. L. & R. 464, the question as to costs is affirmed and the court say, it is not necessary to say, whether they consider the case of Railstone v. The York, N. & B. Railway Co. sound or not, as it does not necessarily affect the question before the court. 8 Burkinshaw v. Bir. & Oxford J. Railway Co. 5 Excheq. R. 475. 70li ' 682 THE LAW OF RAILWAYS. [§ 9T. *SECTIO]SfV. , EQUITY WILL NOT ISTTEEFEKB, BY INJUNCTION, BECAUSE LANDS ARE BEING INJURIOUSLY AFFECTED, WITHOUT NOTICE TO TREAT, OK PREVIOUS COM- PENSATION. § 97. It is said courts of equity will not interfere by injunc- tion, because lands are being injuriously affected, by the com- pany's works, and no notice to treat, or previous compensation has been made, if it appears the company are only exercising their statutory powers. The claimant should allow the works to be completed, and then take his remedy under the statute.^ It was objected in one case, that the company would be likely to greatly alter the appearance of the land, which they had entered upon, and that a jury could not understandingly assess the- value, after the damages were sustained, but the court said, it was no ground for the interference of a court of equity.^ The courts in England hold, that in this class of claims, it is proper to wait till the full extent of the injury is known.^ And equity will not enjoin the party from proceeding under the stat- ute, in a case, where it is alleged, that he has no legal claim under the statute,* as in such case, the company may defend against the award, and this seems to be the course finally deter- mined. But some actions at law have been brought and sus- tained to try the right, by order of the courts of equity.^ So, too, where the bill alleges that the party has upon con- ' 8 & 9 Vict. ch. 18, § 68. 2 Laugham v. Great Northern Railway, 5 Railw. C. 263. The counsel for defendant not called to answer this portion of plaintiff's argument. ■ 3 Hutton V. The London & Southw. Railway Co. 7 Hare, 259. * East & West India Docks & Bir. J. Railway Co. v. Gattke, 3 Eng. L. & Eq. R. 59 ; South Staffordshire Railway Co. v. Hall, id. 105. In this last case, the opinion of Lord Cranworlh seems to overrule that of Lord Cottenham in The London & N. W. Railway Co. v. Smith, 5 Railw. C. 716. The Sutton Harbor Im- provement Co. V. Hitchins, 9 Eng. L. & Eq. R. 41 ; The London & N. W. Rail- way Co. V. Bradley, 6 Railw. C. 551. See also Monchet v. G. W. Railway Co. 1 Railw. C. 567. But see the case of L. & Y. Railway v. Evans, 19 Eng. L. & Eq. R. 295, where the case of L. & N. W. Railway v. Smith is still further ques- tioned. s Glover v. The North Staffordshire Railway Co. 5 Eng. L. & Eq. R. 335. 754 § 98.] ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. * 683 sideration, agreed to receive compensation in a particular mode, equity will enjoin him from taking proceedings under the statute.^ *SJECTION VI. SHEKIFF'S JURY, OK ARBITKATOR, CANNOT DETERMINE THE QUESTION OF RIGHT IN THE CLAIMANT, BUT ONLY THE AMOUNT OF DAMAGES. § 98. There has been some contrariety of opinion, among the English judges, in regard to the right of the company, before the sheriff's jury, to raise the question of the claimant's right to re- cover any compensation, under the sixty-eighth section, wheve lands are taken, or alleged to be injuriously affected, by the works of the company ; and whether the jury can go into any inquiry beyond that of the value of the claimant's interest in the land. The latest decisions upon this point hold, that the jury is confined to the question of the amount of compensation.^ In the very latest English case upon this subject,^ the judges of the Court of Queen's Bench differed in opinion, and delivered opinions seriatim. Coleridge, J., and Lord Campbell, Ch. J., and Wight-man, J.,ho\ding,tha.t the jury had nothing befsre them, but the quantum of damages, and that whether the company declined to issue their warrant to the sheriff, or did issue it, in both cases, the right to recover any damage on account of a claim for the injuriously affecting of land, was to be tried upon the action, to recover the amount assessed, in the courts. The proceedings under the statute, were held, by the majority of the court, to be merely for the purpose of fixing the amount of the claim. If, indeed, the company stood still, upon the question of right, they were liable, in the event of the claimant's recovery, for the full amount of the claim made ; but if they proceeded to a hearing before the arbitrator, or the jury, whichever course the claimant should elect, they might not only contest the amount there, but the right of any recovery, in the action, which the claimant was compelled to bring, to obtain execution against the company, but that it was improper to go into any inquiry before the arbitrator, or the jury, in regard to the right to recover any thing, inasmuch 6 Duke of Norfolk v. Tennant, 10 Eng. L. & Eq. R. 237. 1 Regina v. Metropolitan Comm. of Sewers, 18 Eng. L. & Eq. R. 213. 2 Regina v. The London & Northwestern Railway Co. 25 Eng. L. & Eq. R. 37. 755 * 684 THE LAW OF RAILWAYS. [§ 99. as this tended improperly to' embarrass the mind of the triers, in regard to the damages. And in this case where the jury went into the question of right, and determined the claimant had no right, but added, if he had such right, his claim 'should be. val- ued at £150, the majority of the co*urt determined, that the former part of the verdict could not be rejected, and let the ver- dict stand, as a good finding of the sum named, which last point seems rather too refined for common apprehension, even after reading attentively, the elaborate opinion of the majority of the court, by Coleridge, J. Mr. Justice Erie dissented from the principal decision of the court, and held the verdict good in all respects. But this case must be regarded, as settling the question, of the right of the jury, to pass upon the claim, beyond its mere amount, at least, under the Efiglish statutes. ■ In most of the American states, the assessment of land dam- ages, by whatever tribunal, becomes final, unless appealed fi-om,- and execution issues, without resort to a future action, or if an action is necessary upon awards of arbitrators, this will not jus- tify a reexamination of the case, either upon the question of title, or amount of damages. But in some of the states, the proceedings are similar to those above named in the English courts.^ SECTION VII. THB EXTENT OF COMPENSATION TO LAND-OWNERS, AND OTHER INCIDENTS BY THB ENGLISH STATUTES. § 99. In one of the early cases ' upon this subject Lord Den- man, Ch. J. said, we think it not unfit to premise, " that where such large powers are intrusted to a company to carry their works through so great an extent of country, without the consent of the owners and occupiers of land, through which they are to pass, it is reasonable and just, that any injury to property, which can be shown to arise from the prosecution of those works, should be fairly compensated to the party sustaining it." But this must be received under some limitations. For it is supposable, that ' 3 Ante, § 72. 1 Eeg. V. Eastern Counties Railway, 2 Ad. & Ellis, (Q. B.) 347. 756 § 99,] ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. * 685 possible remote injuries may accrue to property, of a general and public character, which it was never intended to compensate. Some points arising under the English statute may be here referred to. It was held that where the powers conferred upon a * canal company were unlimited, as to time, no limitation as to their exercise could be assigned, so as to require their exercise within a reasonable time,^ and, consequently, that the works might be resumed, at any period.^ Future damages to accrue to land-owners cannot be estimated properly ^ until after the com- pletion of the works.^ The compensation when given, fixes the rights of the parties, upon the basis of its estimation, as, if the estimation is had upon the footing of an entire severance of the land, the land-owner has no right to cross the track.* And where •this did not sufficiently appear, by the record of the verdict, that not having been made, held that parol evidence might be given, of the finding, and of the grounds upon which it proceeded.* Where consequential damages to existing works, by the erec- tion of new ones, are required to be compensated, the period for estimation is limited, to the yearly value of the works, antecedent to the passing of the act.^ The devisee is entitled to claim consequential damages and not the executor.* But where one contracted to sell freehold estates and died, before the money was paid ; under the London Bridge Improvement Act, it was held the money should go to the executor.^ Bufthe cases are not uniform upon this subject 2 Thicknesse v. The Lancaster Canal Co. 4 M. & W. 472. Lord Abinger, Ch. B. intimates an opinion here, that possibly, after a long delay of the company to proceed with their works, and the erection of fences and buildings, by the land- owners, in faith of the abandonment of the works by the company, a court of equity might restrain the company from completing their enterprise, notwith- standing the grant of power to do so, by parliament ; but a court of law could do no such thing, p. 490, 491. 3 Lee V. Milner, 2 M. & W. 824. * Manning v. The Eastern Counties Railway, 12 M. & W. 237. But unless it appeared, by the record upon what basis the assessment was made, it seems questionable, whether, upon general principles, oral evidence is admissible to show that basis. Ante, § 74, u. 7. 5 Manning v. The Commissioner under the W. I. Dock Act, 9 East, K. 165. 6 The King v. The Comm. under London Dock Acts, 12 East, R. 477. "^ Ex parte Hawkins, 3 Railw. C. 505, and note. No other party seems to have had a counter interest in this case. 64 757 * 686 THE LAW OE RAILWAYS. [§ 100. and the usual course seems to be, that the money for consequen- tial damage, goes to the party interested in the inheritance, or else is divided according to the interest of the several estat^s.^ In one case it was held, that the vendee was entitled to compen- sation, which * accrued during the time of the vendor's title, but not liquidated till after the conveyance.^ But in general the vendor is entitled to land damages accruing during his time, although not collected, and often where the works are not completed till after the conveyance.^*^ The pre- sumption is, if the jury assess compensation to one person, that it is only for his interest in the premises." SECTION VIII. BIGHT TO TEMPOEAEY USE OF LAND TO ENABLE THE COMPANY TO MAKE ERECTIONS UPON OTHER LANDS. § 100. Where one railway act gives the company power to pass another railway, by means of a bridge, provided the width between the abutments of the bridge is not less than twenty-six feet, and at the points w;here the bridge is to be built, the land of the second company is forty-seven feet wide, the first company have no right to build the abutments of their bridge upon the land of the second company, but having purchased adjoining land for that purpose, they have a right, at law, to the temporary use of the land of the second company, for the purpose of build- ing, and this right was in effect secured to the first company by an injunction out of chancery .^ So, too, where a railway company had permission to carry their road over a canal, by means of a bridge of a given descrip- tion, it was held that they might, as incident to the right of erecting the bridge, make a temporary bridge over the canal, supported partly on piles, driven into the bed of the canal, to enable them to transport earth across the canal to build the 8 The Midland Counties Railway Co. v. Oswin, 3 Railw. C. 497 ; Danforth v. Smith, 23 Vt. R. 247. 9 King V. Witham Nav. Co. 3 B. & Aid. 454. 1" Rand v. Townshend, 26 Vt. R. 670. •1 Rex V. Nottingham Old Waterworks, 6 Ad. & Ellis, 355. 1 Great North of England, Clarence & Hartlepool Junction Railway v. The Clarence Railway, 1 Collyer, 507. 758 § 101.] ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. * 687 necessary embankment, in the construction of the permanent bridge.2 And such a temporary bridge having been erected for the bond 'fide purpose of building the permanent bridge, might also be used for other purposes, for which alone it could not have been erected.^ SECTION IX. RESERVATIONS TO LAND-OWNERS TO BUILD PRIVATE RAILWAY ACROSS PUBLIC RAILWAY. § 101. Where the special act of a railway company provided, that nothing in the act contained shall prevent any owner, or occupier, of any ground, through which the railway may pass from carrying at hjs or their own expense, any railway, or other road, any cut, or canal, which he, or they may lawfully make in their own land, across the said main railway, within the lands of such owner, or occupier, it was held, that this provision was not confined to the owners, or occupiers, of such land, at the time, but was intended to apply to all future time, so long as such principal railway shall continue, and extended to all persons owning, or occupying lands adjoining the railway, upon opposite sides, whenever the title was acquired, even where they pur- chased the land upon opposite sides, at different times.^ 2 London and Birmingham Railway v. Grand Junction Canal Co. 1 Railw. Gas. 224. 8 Priestley v. The Manchester & Leeds Railway, 2 Railw. C. 134. 1 Monkland & Kir. Railway v. Dixon, 3 Railw. C. 273. The court here (H of L.) denied an interdict against such owner or occupier, prolonging his railway, for the benefit of any persons, with whom he might make an agreement for that purpose. 759 ' 688-689 THE LAW OP RAILWAYS. [§ 102-103. •CHAPTER XIV. THE MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES. SECTION I. BY JUSTICES OF THE PEACE. § 102. By the English statute, where the compensation claimed shall not exceed £50, the same is to be settled by two justices. So, also, as to damages claimed for lands, injuriously affected. So, too, if the company enter upon any private road, or way. And justices may fix the compensation, in certain cases, for the temporary use of land. And the compensation to tenants for a year, or from year to year. They may apportion the rent, too, where the whole land is not taken. In some of these cases, their jurisdiction extends beyond .£50. The mode of enforcing payment of money awarded, by such justices, is to obtain an order, which may be enforced by distress, upon the goods and chattels of the party liable. The certiorari is taken away in such cases, but an order of such justices may still be brought up, to be quashed, for want of jurisdiction.^ The justices are to take into consideration, the value of the land, and any injury, which may accrue from severance. ♦SECTION II. BY SURVEYORS. § 103. The assessment of compensation, by surveyors, under the English statutes, is merely provisional, in most cases, as where the party is out of the kingdom, or cannot be found, two justices are required to nominate an able practical surveyor, who is, under certain solemnities, required to make a valuation of the land taken, or injuriously affected, the amount of which the com- 1 See the subject discussed ante, § 202, 203. 760 § 104.] MODE OF ASSESSING COMPENSATION. * 690 pany are required to deposit in the bank, before proceeding with the works. And if such party be dissatisiied with the sum thus deposited, he may, before applying to chancery for the money, require the question to be submitted to arbitration, as in other cases of disputed compensation. Surveyors are required to assess damages for severance of land, the same as justices of the peace.^ SECTION III. BY AKBITEATION. § 104. By the English statutes, if the amount of compensation claimed exceed the jurisdiction of two justices, any party claim- ing compensation, may compel an arbitration, by taking the requisite steps in due time. Unless both parties concur in the same arbitrator, each party, upon the request of the other, is required to name one. The appointment of the arbitrator is to be under the hand of the party, and delivered to the arbitrator, and is to be (Jeemed a submission, by such party. Such sub- mission is irrevocable, even by the death of the party. If either party neglect, for fourteen days, after request by the other party, to name an arbitrator, one may be named, by the other party, who shall decide the controversy. If either party name an arbitrator, who is incompetent, the other party must retire from the arbitration, or he will be bound by his acquies- cence.i The secretary of a railway company, by the English statutes, would seem to * have power to bind the company, by signing the submission, whether the arbitration is compulsory, or not.2 It was held that the appointment of an arbitrator, or referee, implied the notification of such appointment, to the other party, within the time limited in the submission, or the doings of such referee were void.^ And not only so, but the notice must be explicit. It is not sufficient to say, " Take notice, that it is my 1 Hodges on Railways, 250, 251, 252. 1 In re Eliott, 2 DeG. & Sm. 17. a Collins u. South Staffordshire Railway-Co. 21 Law J. (Ex.) 247 ; 12 Eng. L . & Eq. R. 565. 3 Teww. Harris, 11 Q. B. 7. 64* 761 * 691 THE LAW OF RAILWAYS. [§ 104. intention to nominate S. M.," notwithstanding it was added, " if the company failed to appoint. I the said T. B. will appoint S. M. to act on behalf of both parties."* And in this case it is said, it would'seem that the appointment, by the claimant, of an arbitrator to act for both parties, is not valid, unless he has pre- viously appointed an arbitrator, on his part, and notified such appointment to the company. There should be two separate appointments, although it may be of the same person, it is here suggested.^ The arbitrator has no power beyond the awarding of a pecu- niary compensation, for the land taken by the company, and cannot direct, what right of way shall remain in the tenant, to the portion of laud not taken.^ Nor can he apportion the rent to the tenant.^ If the land-owner gives no notice of claim, in reply to the notice to treat, the company may treat -it as a case of disputed compensation.'^ If the compensation claimed be less than 50?., it may be settled by two justices. But if more than 50/. be claimed, or oflFered, and the claimant desire to have it settled by arbitration, it is at his option, and he must give; notice of such desire, before the company issue their warrant to the sheriff to summon a jury, to assess the compensation, which they may do, in ten days, after giving the claimant nptice, that they shall do so, unless in the mean time he elect to have the matter settled by arbitration.^ * And under the Massachusetts statute, giving railways the right to alter highways, upon giving notice to the selectmen of the towns, where such highways are situated, and conforming to their requirements, or the decision of the county commissioners. * Bradley v. London & N. W. Railway Co. 5 Exch. K. 769. 5 But where both parties petition for a jury to revise the damages, one warrant is sufficient. Davidson v. Boston & Maine Railway, 3 Cush. 91. And if two warrants are issued, the sheriff should execute, and return them, as one. Id. And where there are several applications, which by statute are to be determined by one jury, the proper mode is to issue but one warrant to the sheriif, but if several warrants issue irregularly, yet if the officer summon a single jury, who hear and determine each case, their verdicts will not be set aside, for such irregu- larity. Wyman v. Lexington & West Cambridge Railway, 13 Met. 816. 6 Ware v. Regent's Canal Co. 25 Eng. L. & Eq. R. 444. ■? 8 & 9 Vict. cL 18, § 21, 22, 23, 38. 762 § ■'•^^•] NOTES OF LATER CASES. * 692 in regard to the alteration of the highway, it was held, that if the selectmen give no notice, to the company, as to what alterations they require, the presumption is, that they require none, but leave the whole matter to the company. And to entitle adjoining land-owners to recover damages of the railway under the statute of Massachusetts, it is not necessary, that the selectmen should have acted in the premises. The rem- edy in such case is not, by an action against the town, but by proceedings under the statute against the company .^ In such case the company are estopped to deny, that the con- struction of their road, as in fact made, was done, by their ser- vants, in compliance with the requirements of the charter.^ And embankments made, by them, for the purpose of carrying a highway over the railway, are to be regarded as a part of the railway.* APPENDIX C. NOTES OF LATER C A S E S .^ CORPOKATION. Records evidence. The records of a corporation are the regular evidence of its doings. Hudson V. Carman, 41 Maine R. 84. But if books have not been kept, or have been lost, or destroyed, or are not accessible to the party, doubtless an acceptance of the charter may^e proved by implication, from its acts, if such acts are capable of proof. Per Tenny, Ch. J. ib. citing CoflSn v. Collins, 17 Maine, 440. The records of the corporation are competent and sufficient evidence who are the corporators, and of the number of shares held by each. Penobscot Railw. v. White, 41 Maine K. 512. 8 Parker v. Boston & Maine Railway, S Cush. R. 107. 1 The following cases have come to hand since the present edition was put to 763 * 692-697 THE LAW OP RAILWAYS. Effect of judgment against the corporation, in actions against stockholders. Such judgment is not in general evidence, in suits against stockholders, upou the same liability, [unless perhaps when the stockholders are made liable ex- pressly upon the ground of the creditor failing to obtain payment of the company, and then only of that fact, and perhaps the amount of the claim. But in all cases of this kind, the judgment is permitted to be proved, in the action against the stockholders.] Hudson v. Carman, 41 Maine R. 84. Acts of corporate officers. Corporations are not in general responsible for the unlawful or unauthorized acts of their officers. Mitchell v. Rockland, 41 Maine R. 363. Where the charter requires notice to be given, by the persons named in the act, of the time and place of opening the books for subscription to the capital stock, such notice may be given by a majority of such persons. Penobscot Railw. V. White, 41 Maine R. 512. Capital stock. Subscribers to the capital stock are regarded as members of the corporation, after its organization. lb. Power to contract. The powers of corporations are conferred exclusively by their charters. But it is the duty of courts to give them such a construction, as to effect the leading purposes of the grant, where that can be done consistently with the language used. Straus v. Eagle Insurance Co. 5 Ohio St. 59. But unless expressly resti'ained by its charter, business cprpoi^tiohs have the power to make such contracts, and in such forms, as are requisite to accomplish the purposes of the grant. lb. Promissory notes, or bills, made or received by said corporations, are prima facie valid. But it is competent to show that the transactions out of which they arise, are not within the powers of the corporation, and thus to defeat their ope- ration, lb. LIABILITY OF SUBSCRIBERS TO CAPITAL STOCK. CALLS. In an action by a railway company to recover for calls upon subscriptions to the capital stock, it is not necessary for the company to show compliance with the provision of its charter requiring the company not to begin its construction, until a certain proportion of the estimated cost shall have been subscribed by responsible persons. lb. The right to make calls, upon subscriptions to the capital stock, does not de- pend upon the extent, or nature, of the indebtedness of the company, nor can such questions properly be raised, in an action to recover such calls. lb. In such actions it is not competent for a person who subscribed, before the organization of the company, upon condition, that not less than the least sum required by the charter should be subscribed, to show that the shares were sub- scribed for, by persons of no actual or reputed pecuniary responsibility. But he may show that such subscriptions were not made, or taken in good faith. lb. 764 NOTES OF LATER CASES. "692-697 But this cannot be shown by the declarations of subscribers, made long after entering into such subscriptions, and after the organization of the company; because they have no legal tendency to show, either the bad faith of the sub- scriber, in entering into the subscription, or of the company, in accepting it. lb. Where the charter of a corporation requires, that one thousand shares of the /lapital stock shall be subscribed before the organization of the company takes place, the decision of the majority of the subscribers, that this condition has been complied with, and the actual organization of the company, in pursuance of such determination, must be regarded as binding upon the minority ; and cannot sub- sequently be inquired into, ib. ; [unless perhaps, as stated in the body of the work, where the proceedings of the majority attending the meeting, at which the organization is effected, are in bad faith ; and in such cases, the minority must take proceedings immediately or they will be bound by the organization.] It is not competent for a defendant, who is resisting a call, but who in fact signed the paper calling the meeting of the directors, and attended the meeting, at which such calls were made, to give evidence of the motives from, or the cir- cumstances, under which he did such acts, such acts not affecting the legality of the calls so made. Ib. A verbal promise made by the agent of a railway company to induce subscrip- tions to the capital stock, and which has that effect, that payment should be delayed, a longer time than that named in the charter, is not binding upon the company. First, Because the written contract cannot be varied by^a contem- poraneous parol agreement ; and Second, The promise being inconsistent with the charter is void, for want of power in the corporation to make it. Thigpew v. Miss. Central Kailw. 32 Miss. R. 348. The membership in the corporation, acquired by each subscriber to the capital stock of a railway company, is a suffi- cient consideration for the contract of subscription. Ib. Where the charter of a railway company requires of each subscriber to the capital stock, the payment of a certain proportion of the subscription, at the time of entering into the contract, this condition must be complied with or the con- tract of subscription will not be valid. Fiser v. Miss. & Tenn. Railw. 32 Miss. R. 359, citing 6 Sm. & Mar. 537, 13 id. 538. But if such payment be made subsequent to the subscription, but before any calls have been made,. it will be regarded as a ratification of the subscription, and will thereafter become binding. Ib. An averment in the declaration, in an action for calls, that the subscription was made " according to the statute incorporating the company,'' will, upon gen- eral demurrer, be held to import, that the subscriber had complied with all the requirements of the charter, to the validity of such subscription. Ib. So too if the payment of the sum required at the time of subscription be made anterior to that time, it will be held sufficient. Barrington v. Miss. Central Railw. 32 Miss. R. 763. Where, by charter, a railway company have power to collect subscriptions to its capital stock, by such instalments, as the president and directors shall deem proper, they may make contracts with subscribers, for the payment of subscrip- tions, in any reasonable instalments, as to time and amount. And if such con- dition were ultra vires, it would render the whole contract void, and not merely the condition. Roberts v. Mobile & Ohio Railw. 32 Mjss. R. 373. 765 *692-69T THE LAW OP RAILWAYS. * Amendments of the charter, releasing subscribers. Where the original charter of a railway company defined the route of its road through a certain town, and one, who resided upon the route, subscribed for shares in the capital stock, upon the representation of the president, that the road should be located according to the charter ; and afterwards, at the instancy of the corporation, the legislature so amended the charter, as to remove all restrictions in regard to the route, and thereupon the company abandoned the original route, and located the road materially different, and against the interest and consent of such subscriber, it was held : First, That the location of the road on the route prescribed in the original charter, and on which the defendant resided, was, under the circumstances, a consideration [and the pre- vailing consideration] for his subscription to the stock of the company. Second, That the amendment of the charter was material and fundamental ; and not binding upon dissenting stockholders, who had subscribed for stock, under the circumstances above stated. Third, That by the facts in this case the subscribers situated, as above detailed, were released from their subscriptions. Hester v. Memphis and Charleston Railw. 32 Miss. R. 378. Where one subscribed for shares in the capital stock of a railway company, it is not competent, in defence of calls on such subscription, to show by oral testi- mony, that he made such subscription on a condition as to the location of the road, which had not been complied with. North Carolina Kailw. v. Leach, 4 Jones, 340. One of the commissioners, there being five, has no authority to give any assurance to subscribers, as to the route which shall be adopted by the com- pany in the location of their road. lb. A subscriber who seeks to avoid his subscription to the stock of a railway company, on the ground that one terminus of the road has been materially altered from that designated in the charter, must show that the alteration was made without his concurrence. lb. And whether even his dissent, inasmuch as he might have prevented it by injunction, or man- damus, will avail in defence of his subscription, qucere ? It is no sufficient defence to an action for calls upon a cash subscription, that the company had subsequently to the defendant's subscription, taken a large land subscription, at enormous prices. Hornaday v. Indiana & Illinois Central Eailw. 9 Ind. R. 263. EMINENT DOMAIN. Where the charter of the company authorized them to take land, so much as might be necessary for their use, and also to take, for certain purposes, earth, gravel, stone, timber, or other materials, on or from the land so taken ; it was held, that the company were not thereby empowered to take materials, from land not taken. Parsons v. Howe, 41 Maine R. 218. Private way, by oral license. It was held that it was not competent for the owner of the land, in such case, either to obstruct such way, or give permission to any other one to do so, till he had revoked the license. And therefore where the owner of such way had sus- tained an injury in consequence of some one placing building materials in it, by permission of the owner of the land, it was held a good cause of action against the person so placing them there. Corby v. Hill, 31 Law Times, 181. 766 NOTES OF LATER CASES. * 692-697 Title of railway company to land condemned for their use. ■ This subject is extensively discussed in the case of Astley v. The Man. Sh. & Lin. Railw. 31 Law Times, 188, and the conclusion arrived at that the company are.owners, except so far as restrained by statutes. But this rule will not apply in this country. In North Carolina only such damages as are peculiar to the owner of the land taken by a railway company are to be taken into account, in estimating damages for land taken. Those which are common to all the land in the vicinity are not to be considered. Freedle v. North Carolina Railw. 4 Jones, 89. The statute remedy is exclusive of all others. McCormack v. Terre Haute & Richmond Railw. 9 Ind. R. 283. The common council of a city have no power to grant permission to a railway company, to take or injure the property of a citizen. Portzman v. The Ind. & Cin. Railw. 9 Ind. R. 467. Such companies have implied authority to make such side-tracks and continuations, at the termini of their road, as may be rea- sonable and necessary for the transaction of their business and the accommoda- tion of the public, and may take private property for these purposes. lb. The right to use and enjoy the street is an appurtenance to the adjoining land, and an injury to the appurtenance is an injury to the whole property. lb. Tor such an injury the land-owner cannot pursue the statutory remedy, but must sue for consequential damages. lb. S. P. Evansville & Crawfordville Railw. v. Dick, id. 433. It was further held, that the continuation of the track of the Indianapolis and Cincinnati Railway two hundred rods beyond the depot, in the town of Lawrenceburgh, was not an unreasonable extension. lb. This seems to have been more a question of fact than of law. Damages for right of way. In Ohio, in C. P. & Ind. Railw. v. Simpson, 5 Ohio St. R. 251, it is held that the benefits resulting to the land-owner, from the construction of the road, are to be deducted in estimating damages for land taken by a railway company, under their, charter. A statute making provision for such mode of estimation is not unconstitutional. lb. By the constitution of this state, compensation to the land-owner for land taken for public use, is to be made in money. The damage caused by severance of land in a particular mode, is to be taken into account in estimating damages to the owner whose land is taken by a railway company. C. C. & B. Railw. v. Ball, ib. 569. Although general resulting bene- fits to the land-owner, in common with that occurring to other land-owners in the vicinity, is not to be taken into account, in estimating damages for land appro- priated to the use of a railway ; yet where a local incidental benefit to the residue of the land is blended or connected, either in locality or subject-matter, with a local incidental injury to such residue of 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. Ib. But whether, if such benefit is no way connected with the injury, it can be properly considered in estimating the damages done to the land-owner. Qumre f ib. If the party attend the inquest, he cannot object that the statute does not require notice to the land-owner. Kramer v. Cleveland & Pittsb. Railw. 5 Ohio St. R. 140. 767 * 692-697 THE LAW OF RAILWAYS. Opinion of Witnesses. The opinion of witnesses, in regard to the extent of damages which a land- owner will sustain, by the appropriation of a part of his land for the construction of a railway over it, is not admissible. Cleveland & Pittsburgh Kailw. v. Ball, 5 Ohio St. R. 568, citing Great Western Railw. v. Campbell, 4 Ohio St. E. 583. But he may express his opinion of the value of the land. lb. CONTRACTS FOK CON8TEUCTION. Clause referring all questions to arbitrator. In Scott V. The Corporation of Liverpool, 31 Law Times, 147, it was recently decided by Vice-Chaneellor Stuart : That where in a building contract, the cor- poration reserved the power to determine the contract, which they exercised ; and it was also agreed, "that any dispute, or difference which might arise between the contracting parties, should be referred to and settled by the engi- neer ; that it should not be competent for either party, to except at law or equity to his determination ; and that without the certificate of the engineer no money should be paid to the plaintiffs:" it appearing, that the engineer had never refused to discharge his duty according to the contract, and had nothing to dis- qualify him to act, and was ready and willing to proceed and determine all mat- ters at issue between the parties ; that there was no ground for the equitable interference of the court. Damages for ireach of contract. In a very recent case, before the Queen's Bench, Randall v. Roper, 31 Law Times, 81, (April, 1858,) the subject of damages, for breach of contract, arose in a somewhat novel form. The defendant sold to the plaintiff, a spurious article warranted as "chevalier seed barley;" the plaintiff resold to others on similar warranty; the seed was sown and very inferior crops grown. The sub-pur- chasers made claims on plaintiff for damages, for breach of warranty, but brought no actions, nor had the plaintiff paid them any thing, at the time of trial. Held nevertheless, that the plaintiff could recover from the defendant such sum as the jury might think proper, for the damages fo which the plaintiff was liable to the sub-purchasers. This seems to us a somewhat more reasonable rule of damages, than was adopted recently by the English courts, in regard to the non- arrival of passenger trains in time. Arile, § 154, n. 2, pp. 342, 343. But where one contracted to furnish a fire box for a threshing machine, and ordered it, at defendant's shop, and when furnished and put to use it proved defective, and plaintiff was compelled to pay £25 as damages, it was held he could not recover it of the manufacturer, that not being in the probable contem- plation of the parties at the time of the contract. Portman v. Nichol, 31 Law Times, 152. COMMON CARRIERS. Felony of servants. Where a box carried by a railway company was delivered to plaintiff, in such a condition, as to show that the lock had been picked and it appeared that a box 768 NOTES OF LATER CASES. * 692-697 of jewels had been abstracted, it was held no evidence tending to show the felony of the company's servants, as the cause of the loss. It is not enough to show facts, consistent with a felony having been committed by the company's servants, but something must be shown, inconsistent with the felony having been commit- ted by any one else. Metcalfe v. London & Brighton, &c. Kailw. 31 Law Times, 165. Common carriers are liable for damage accruing to goods, after being laden upon their ship, and before commencing the transportation; even where the insurers take possession, and do not allow the carriers to complete the transporta- tion, the goods not being in proper condition for such transportation. The rule of damages in such case is the diminution of the value of the goods, at the place where they were damaged) and. the cost of rescuing them, in the nature of salvage. The recovery may be had by the insurers, in their own name. Rogers v. West, 9 Ind. R. 400. Right of plaintiffs to sue jointly. The box, (containing jewelry,) belonged to one of the plaintiffs, but the jewelry was their joint property. It was delivered to the defendants by a servant under instruction from both plaintiffs, but was addressed to one of the plaintiffs only at a specified place. The box never reached its destination. The action was brought by the plaintiffs jointly to recover the value of the property lost. Held that there was evidence of a joint contract by the two plaintiffs with the company, and that the action was well brought by the two jointly. John & George Metcalfe v. The London, Brighton & So. Coast R. 31 Law Times, 166. Search warrant. The freight depot of a railway is not exempt from the operation of a search warrant, issued for the purpose of finding intoxicating liquors, kept for sale, con- trary to the provisions of the general statute of the state. Nor is it necessary such warrant should be executed during the usual business hours, when such depot is kept open, for receiving and delivering goods ; or that the officer, execut- ing the warrant, should ask permission of the person, keeping the depot, to enter and search it. Androscoggin Railw. v. Richards, 41 Maine, R. 233. Usage. Evidence of the prevailing usage, among manufacturers, dealers, and carriers, may be resorted to, for the purpose of determining, whether sawed marble,, in slabs, is to be rated as unwrought marble. Bancroft v. Peters, 4 Mich. R. 619. Damages for injury to passengers, where death ensues. A son of the plaintiff was killed, while a passenger on defendants trains. He was in the habit of occasionally visiting his parents, who were in poor circum- stances, and making them presents, from which they derived considerable benefit. In an action by the plaintiff, as executor, the jury gave £120 damages. This was made up partly of loss occasioned to the plaintiff by the death of his son, and partly of the expenses of funeral, and mourning. Held, that legal liability alone is not a test of injury in respect of which damages may be recovered in 65 769 * 692-697 THE LAW 0¥ RAILWAYS. such cases, but that a. reasonable expectation of pecuniary advantage, by the relatives remaining alive, may be taken into the account. But the expenses of the fungral, and of mourning, cannot be considered. Dalton o. Southeastern Railw, 31 Law Times, 152. And in another case, Franklin v. The same com- pany, 31 Law Times, 154, (May, 1858,) it was determined, that damages are not to be given, as a soldtium, or in respect of the loss of a legal right, but in respect of a reasonable expectation of a pecuniary benefit, either of a right or otherwise, from the continuance of the life. It is not necessary that actual benefit should have been derived; reasonable expectation of sensible and practical pecuniary benefit is sufficient. Stoppage in Transitu. It seems to be a settled principle in the law of common carriers, that the right of an unpaid vendor to stop in transitu, is not defeated by the goods, in the course of the transit, coming into the hands and control of a particular person named by the vendee, as his agent, for the purpose of receiving and forwarding the goods. Carfeen v. Campbell, Penn. Sup. Ct. May, 1858, 6 Law Reg. 561, citing Dixon Vi Baldwin, 5 East R. 175 ; Covell v. Hitchcock, 23 Wendell, 611 ; Hayes v. Moville, 2 Harris, 48. In the case of Vaughn v. The Tafif Vale Railway, tried in the Court of Ex- chequer, in April, 1858, before Mr. Justice Bramwell, it appeared that the plain- tiff's wood was set on fire by sparks from the defendants' engines, passing along the line of their railway. The wood contained grass, &c. of a very inflammable nature. There was no evidence how the mischief actually did occur. Evidence was given that the defendants had taken every possible precaution against sparks or fire of any\sort escaping at all ; " the defendants certainly were not guilty of negligence," it is stated in the report. The learned judge told the jury, " that if the fire was occasioned, by fire from the engine on the line of the railway, the defendants were liable." This seems to be going further than any just principle will warrant. If the defendants show themselves guilty of no negligence, they are not liaBle, upon any just principle, unless their business is regarded as unlaw- ful. A rule nisi was obtained, for a new trial. FENCES. In the case of Vicksburgh & Jackson Railw. v. Patton, 81 Miss. R. 156, it was decided, that in that state, the owner of cattle and horses and other domestic ani- mals, which are not of a. dangerous character, may lawfully permit them to range at large on uninolosed commons; and if, in so doing, they wander upon the premises of another not inclosed by a lawful fence, he is not liable for the tres- pass, and they cannot be distrained damage feasant. The owner of uninclosed land may prosecute his lawful business thereon, but in so doing he must exercise reasonable care and diligence to avoid injuring the cattle of others, which may have wandered on the premises. lb. A railway company has the exclusive right to the use and possession and en- joyment of the land upon which their track is located, and they may run their 770 NOTES OF LATER OASES. * 692-697 enjrines and oars on the same at whatever time and with whatever speed they see proper, and not inconsistent with the safety of the persons and property commit- ted to their charge ; but this right over the land is no higher nor more extensive than that of its original owner; and hence if their track be uninclosed, they must run their engines and cars with reasonable care and prudence, so as to avoid injury to cattle which may be depasturing on the track ; and if they fail to do so, they will be liable for the injury done. lb. A railway company is bound by law to keep their road and machinery in good order, and to have a sufficient number of faithful and trustworthy employees to manage and control the running of their engines and cars ; and if, by their fail- ure in any of these respects, the cattle of another depasturing on their unin- closed track be injured or destroyed, they will be responsible to the owner in damages. lb. Tliough there be negligence or fault on the part of the plaintiff, remotely con- nected with the injury, yet if the defendants' fault or negligence was the imme- diate and proximate cause of the injury, the plaintiff may maintain his action for damages. lb. It is competent for a plaintiff, on the trial of an action against a railway com- pany for damages done by them to his property by the negligent and careless running of their engine and cars, to introduce evidence to show that the general character of the engineer in charge of the train when the injury was done, was that of a reckless and untrustworthy agent. lb. Quere ? The jury may allow exemplary damages against a railway company, if it appear that the property was destroyed or injured by the gross negligence or wilful and wanton mischief of its agents. lb. DOMESTIC ANIMALS. The killing a cow, or other domestic animal, on a railway, by the company's trains, is not prima facie evidence of negligence. Scott v. Wilmington & Raleigh Railw. 4 Jones^»432. A distinction is here taken, by the court, between injuries to permanent property along the line of a railway, as by fires communicated by the company's engines, and damage to animals, which are constantly changing location. In the former case, as for a space of time, no damage accrued, the occurrence of injury raises a presumption of some new cause, which may more justly be imputed to the management of company's trains, unless repelled by evidence. See also to same efiect Ind. & Cin. Railw. v. Caldwell, 9 Ind. R. 397. AGENTS OP RAILWAY COMPANIES. A conductor is to be regarded as a "special agent" of the railway company, within the statute of the state of Indiana, allowing the service of process upon such agents. New Albany & Salem Railw. v. Grooms, 9 Ind. 243. It was recently, (April, 1858,) held by the Queen's Bench, in Whitfield v. Southeastern Railw. 31 Law Times, 113, that an action for libel will lie against a railway company, where malice in law may be implied from the publication. The plaintiffs were a banking establishment, having houses, at different points, in the counties traversed by defendants' railway. The defendants were tlie owners, 4P by their agents, managed the electric telegraph along the line of their rail- 771 * 692-697 THE LAW OP RAILWAYS. ■way. The libel consisted in a dispatch, sent across the wires, to the effect, that plaintiffs' bank " had stopped payment." Mode of executing contracts by corporations. In the case of Hamilton v. Newcastle & Danville Railw. 9 Ind. Rep. 359, it was held, that prima facie the company had power to execute promissory notes for its legal indebtedness ; that it could do this only by its agents ; that no writ- ten or sealed authority to the agent was necessary to be shown ; that where the charter of a corporation contains no express provision to that effect, it is not requisite that its acts should be under seal ; that if it was the valid note of the corporation, no averment of consideration was necessary ; if the note be in the name of the company, and signed by the president, as an officer of the com- pany, this is sufficient to bind them. A bill of exchange drawn by a railway company upon its secretary, is in effect a promissory note, but must be presented for payment, but not for the purpose of entitling the party to interest, if given for a debt which bore interest. M. & M. Bailw. «. Hodge, 9 Ind. Rep. 163. Fraud by directors of company. One who claimed to have been induced to buy shares in a mining company, by the false representations of the directors, after four or five years, during which time the mine had been worked, and the concern proved worthless, brought his action, for money had and received, against the directors, and it was held by the Court of Queen's Bench, that he could not recover, on the ground of delay and acquiescence. Clarke v. Dickson, 31 Law Times, 97. w EQUITY JURISDICTION. A bill in equity is the appropriate remedy, where, in the case of a public incorporated company, the old board of trustees refuse to surrender the control of the corporation, to the new board, duly constituted. The writ of quo warranto tries the rights only, and gives no relief for breach of trust ; [nor will it induct the rightful board.] This can only properly be done in equity [or by writ of mandamus]. Dart v. Houston, 22 Ga. 606. Specific performance in equity. The English courts refuse any decree for sjjecific performance against a party, who has not the power to perform the decree. As where the managing director of a company agreed with a contractor, that if he would accept part of the price of his work*ip preference shares, the company should accept of such shares in payment of future calls upon the shares ; but the company declined to do so, on the ground of the invalidity of the contract : It was held that the proper remedy was an action for darilages against the director. Ellis v. Colman, 31 Law Times, 144. TAXATION. By the charter of the Michigan Southern Railway, it was subject to a specific tax upon all sums of capital stock paid in : and upon all loans made to Ife 772 NOTES OF LATER CASES. * 692-697 company for purposes of construction and equipment. It was held : That this included $300,000 of the stock of the company, which they allowed, as a " bonus " or "dividend" to the original purchasers of the road, no part of which was ever " paid in," though standing on the books, as a part of the capital stock : That it included the discount made in the sale of the bonds of the company for con- struction : And that it also included the amount of the bonds of the company issued and exchanged for the b^ds of another railway company, which latter were still on hand undisposed of. • Municipal subscription for stoch. The city council of Aurora were by their charter empowered " to take stock in any incorporated company for making roads to said city." The city council subscribed the limited amount, $50,000, in the capital stock of the Ohio and Mississippi Railway, which passes through the city of Aurora. Held : That a railway through the city was a road to the city, within the meaning of the charter. City of Aurora v. W^t, 9 Ind. R. 74. The general power of such corporations to subscribe for railway stock is here reaffirmed. CONSTITUTIONAL QUESTIONS. Within the last year the question of the distinction, between public and pri- vate corporations, in regard to the right of legislative control, came under con- sideration in Dart v. Houston, 22 Ga. R. 506, in the case a£ an incorporated academy. The corporation was endowed exclusively by the state, and the former board of trust was created, and had been enlarged, by act of the legislature. In 1854 an act passed the legislature, requiring the appointment of a board of trustees annually, by the grand jury of the county, and that the old board, who had before filled the vacancies, occurring in their number, should surrender all authority and control, to the new board. The act was held constitutional, the corporation being a public one. lb. In the case of Michigan Central Railw. v. Michigan Southern Railw. 4 Michigan R. 361, a construction was placed upon the charter of the plaintiffs, wherein it is provided that no other road should be granted by the legislature, which should ap- proach, within certain prescribed distances from the plaintiff's line, at two points, that this provision is not infringed by the granting of a " chain or series of rail- ways, 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." The decision is dissented from, by two of the judges ; and is a reversal of the decision of the chancellor, at the circuit ; and, if we fully understand its scope, is a departure from some of the leading cases referred to upon this subject, in the body of this work. But as it turned upon the construction of the par- ticular charter, it may be sound. It has been very recently decided in Ohio, that it is competent for the legisla- ture to authorize municipalities to levy special assessments, for the purpose of im- proving streets, upon real estate, peculiarly and specially benefited, and in pro- portion to such benefit. Hill v. Higdon, 5 Ohio St. R. 243. Prescription. Twenty years' uninterrupted possession by a private person, of land dedicated 65 * 773 * 692-697 THE LAW OF RAILWAYS. to a city, for streets or public squares, under a claim of right, will bar the claim of the city. Cincinnati v. Evans,,5 Ohio St. R. 594. Same v. The Presbyterian Church, 8 Ohio R. 298. KAILWAY INVESTMENTS. An important question has been recently determined in the Court of Chancery in Maryland, in regard to 'priority of lien, 'as between mere certificates issued by a railway company, pledging the income of the road for the payment of interest, and the ultimate redemption of principal, called " Income Bonds," and a subse- quent formal mortgage of the road, and its appurtenances. These certificates purpqrted on their face to be secured by a " specific pledge of the income of the road ; " and were sold under the express assurance from the directors and agents of the road, that no subsequent mortgage of the road would be executed till the final»redemption of these bonds. The bUl was brought by certain holders of these bonds, qji behalf of themselves and all others standing in the same relation, who might choose to come in under the bill, thus being in the nature of a creditor's bill. It was brought against the company, the Central Ohio Railway, and the agents who efiected the sales of such bonds in the market, and made the representations upon which the pur- chases were made. The concluding portion of the opinion is of sufficient importance to be given at length. # " The next question is, did the pledge of the income bonds form a lien in equity upon the land, &c. ? If it had been given by a formal recorded deed, or by devise, the decisions in Maryland referred to, would so determine. But the case in Simons's Report is relied on for a contrary doctrine. The mere legal title to property, without any equity to sustain it, would present a different case ; but where the legal and equitable estate passes, it would confer a right, which the holder of it, without special notice of a prior equity, could not be divested of That is, however, not this case ; for here it rests chiefly, if not entirely, on the notice and knowledge of the defendants, that a prior equitable lien existed by the terms of the income bonds on the very tolls and earnings of the road (which I regard as meaning the income of the road) ; in other words, the third mortgage conveyed the corpus or property, before specifically pledged by these very de- fendants and the railroad company, which they now hold and set up in derogation • of the equity of the income bonds, known to them to exist, and of which they had notice, and the Garretts received and hold now for their own security the third mortgage bonds, with express notice of the equitable liens of the income bonds which they themselves had previously sold to the complainants in this suit. "In the case of Smith v. Richards, 13 Peters, 36, 37, the supreme court of the. United States have affirmed the doctrine that a party selling property must be presumed to know whether the representations he makes of it, are true or not. And in a court of equity, representations, founded on a mistake resulting from negligence, are binding, whatever may have been the motive of the seller, and where, as in this case, the party whose conduct and conversations have been relied on, was the agent of the railway company and himself a creditor, how much stronger the application of this decision. 774 NOTES OF LATER CASES. * 692-697 " Does it make any difference in such a case, whether the. conversations or representations were before or after the sale of the bonds.? " An injury, arising from the suppression of the truth, is as prejudicial as that from the assertion of falsehood, Allen v. Addison, 7 Wendell, 9. So that if at the time of selling the income bonds, the Messrs. Garrett knew that a third mortgage would be issued in a few months thereafter, which would practically supersede and impair the security of the income bonds, and that they, as the agents and creditors of the Central Ohio Railway, would hold the last-named bond as of a higher lien and preference over the income bonds, and to their disparagement, then how forcibly would the doctrine apply, that they were suppressing a most vital and important fact, which it was their duty to communicate, and from the concealment of which the complainants are now entitled to relief for the injury thereby occasioned ; that the Messrs. Garrett must have known the purposes and policy of their principals (the road,) cannot be doubted, and they knew better than any one else at the time, what securities would be given to its creditors if any were to be issued, being themselves, as their answer shows, largely interested as creditors to the amount of three or four hundred thousand dollars, and holding as they now do the third mortgage bonds to a large amount, as security to them- selves, over and above the income bonds also held by them, and which they doubtless have subordinated in rank to the third mortgage bonds, having a much larger amount of the third mortgage bonds to secure their whole debt without in any evipnt being compelled to fall back on the income bonds, which they regard as inferior in priority to the third mortgage bonds which they now hold. " On the whole, therefore, I am of opinion that the complainants are entitled to such relief as a court of chancery in such a case can give. But before indi- cating the nature of that relief and the form of the decree, I will refer to some of the cases relied on at the bar. " In the case of Myatt v. W. Helens' Railway Company, 42 E. C. Law Reports, 715, the company, by act of parliament, was authorized to borrow money on a mortgage of the rates and tolls of their road, and it was held, that the mortgagee could not take the land in that case, and Lord Denman says in his opinion, that he sees no reason to suppose the legislature intended so inconvenient a thing as to compel the company to part with that property by which the undertaking was to be carried on. " The case, 13 Simons's Reports, Perkins v. Debtford Pier Company, 281, much relied on, was on a similar special act, which authorized the borrowing of money on the tolls and rates alone by special mortgage and not referring to the land, &c.; but in the Maryland reported cases, see Torrence v. Torrence, Coakley and Wife v. Myer, the true rule is laid down when a devise of the rents conveys the land ; also it was decided in the case of Hudson v. Walker & Vance, 2 Harris & Gill, 415, that the grantee of a second mortgage recorded with notice of a prion mortgage which was not duly recorded, is bound by the equitable rights of the first mortgagee, unless upon inquiry, he is led to believe that the incumbrance was removed, " that was as to personal property, but the principle should apply as fully in equity to real estate. (See page 341, opinion of the court; see also, 9 Gill; 315, as to notice.) And Judge Story, in his work on Equity, 2 vol. sec- tion 1231, who says, following out this doctrine : " It is a general principle in eauity, that as against the party himself, or any claiming under him, voluntarily ^ ' 775 *QQ2-497 THE LAW OF RAILWAYS. or with notice, such as an agent, that is, under an agreement or on contracts, creating a lien on, real estate or personal property, it raises a trust." Without, therefore, longer pausing to examine all the authorities, English and American, cited and to be found in the books, I am clear in regarding this case as one on the evidence, coming within the operation of that rule of equity which names an agreement or contract creating a lien, binding on the parties or party, who, with knowledge and notice of such agreement or contract, afterwards by a subsequent agreement or contract by specialty or otherwise, attempts to supersede the firgt contract or impair the liens arising under it ; and a court of equity should give relief in such a case. I shall decree, therefore, in conformity to this opinion, and upon the fullest authorities, as I understand them, that the defendants, especially the Messrs. Garrett & Sons, who are within the direct jurisdiction of a Maryland court of chancery, shall hold the third mortgage bonds now in their hands, in trust, for the benefit of the complainants in this case, whose prior equitable lien under the income bonds, I regard as paramount, and to be preferred over the third mortgage bonds, so held by the defendants as hypothecated to them, or as agents of their co-defendants, the Central Ohio Railway Company ; and that they shall also account and set forth the nature and amount of their claim against the said Central Ohio Railway Company, and further show how th>e same was in- curred, so that a full account be rendered in the premises, and the injunction heretofore issued is therefore continued. " It has been objected, however, that as the CentrSil Ohio Railway Company and their property, are in the state of Ohio, no decree of this court could be made available ; and that no jurisdiction can, therefore, be had of the case ; from this I dissent, and indeed, it was not pressed in the argument. • " A court of chancery in Maryland, has jurisdiction over the parties defendant answering this bill, and submitting themselves to its jurisdiction> certainly over the Messrs. Garrett & Sons, the agents here of said road, whose agreements, con- tracts, and acts in Maryland must bind their principals, and a decree, therefore, would be of as much efficacy as if all the defendants resided in Maryland. "It has been also objected, but not urged in the argument, that if representations were made by the Messrs. Garretts, upon which the complainants purchased the income bonds in question, they were verbal, and, not being in writing, under the statute of frauds, cannot be regarded. " And that this being in the nature of a creditor's bill, and the Central Ohio Railway Company not being insolvent, on a prayer for distribution, this court ought not to interfere. " I do not concur in this view, and regarding the evidence as admissible, and the rights of the parties litigant properly under the jurisdiction of a, Maryland court of chancery, upon this record and case I shall so adjudge and decree. " A decree in accordance with this opinion Tvill be signed by me." Negligence. It IS the duty of the judge, in jury trials, in regard .to questions of negligence, to define negligence, as applicable to the state of facts, attempted to be shown, but to refer the question, where and to whom the negligence attaches, to the jury. Reeves v. Delaware L. & W. R. Penn. Sup. Ct. 1858, May term. It is the general rule, in the American courts, that where both parties are in 776 NOTES OF LATER CASES. * 692-697 fault, or guilty of the negligence which causes the loss, neither can recover against the other. lb. At the intersection of a railway and turnpike, the traveller by the highway has a right to be within the rails long enough to cross them, but he is bound to look out for trains, and must not rush heedlessly, nor remain unnecessarily on a spot where the law allows engines to be propelled. lb. What constitutes negligence, in any particular relation, is ordinarily a mixed question of law and fact ; but what duty the law implies, as incident to any par- ticular relation or employment, is always a question of law for the court. M. R. & L. E. Eailw. V. Barber, 5 Ohio St. R. 567. LIABILITY or RAILWAYS FOR INJURY TO SERVANTS BY DEFECT OP MACHINERY. Conductors. In regard to their conductors and other servants and employees, a railway com- pany cannot be regarded as in any sense guarantors of the sufficiency and safety of their machinery, but are responsible only, when injury occurs to such servants, without fault on their part, and through the neglect of the company to furnish machinery and apparatus reasonably safe, for the uses to which it is put. And in such cases, conductors, &c. may demand of the company reasonable care and dili- gence in procuring and keeping such machinery and apparatus, as is safe for the uses to which it is to b^jut ; and beyond this, it is one of the hazards of his con- tract, that such conducror must take the risk of accidents. But a conductor,. not being under the control of any superior, in immediate and constant contact, is bound to exercise an independent and prudent forecast as to perils ; and inspection of the machinery to guard against such perils, and the liability to accidents ; and if he receive an injury, while neglecting such duty, or through mismanagement of his train in any particular, or through any defect or insufficiency of the machinery, of which he was previously aware, or which would ha^^Ken discovered by that careful inspection which it was his duty to have made,Tie cannot recover of the company ; nor can he recover, if the defect in the machinery causing the accident, were unknown both to the conductor and the company, and neither party was in fault. It is the duty of the company to furnish the requisite number of hands, for the safe management of their trains ; and if they do not, the conductor may legally decline to continue in the service ; but if under these circumstances, he still con- tinues to operate the train, he voluntarily assumes the risk and waives the obli- gation of the company in this respect to himself and can have no redress for damages so incurred. See 6 Ohio St. R. . MASTER AND SERVANT. Acts of Contractor, Sfc. The employer is only responsible for injuries resulting from the negligent man- ner of doing work, while he retains the control and direction over the mode and 777 * 692-697 THE LAW OF RAILWAYS. manner of doing it. In such cases, although the work is done by a contractor, the employer is liable for all injuries resulting from the negligence of the con- tractor, or his servants, or agents, the same as if they came under his own imme- diate control. City of Cincinnati ®. Stone, 5 Ohio St. R. 38, ante, § ] 68, and notes. Just as we tate leave of this volume, we are informed of the decision of two important questions, by the Supreme Court of Massachusetts, in cases not yet reported, even in the Law Reporter. 1. That the Commonwealth is proprietor of flats, where the tide ebbs and flows Commonwealth v. Roxbury. 2. That a railway, having leased one of its branches to another company, is still liable to an action as common carriers of goods for loss or damage on such branch road, while operated by the lessees. These decisions, as reported to us, are in accordance with the general princi- ples of the English and American law, as stated in the body of the work. But if the cases, when reported officially, shall be found fully to sustain these distinct, propositions, of which we have no means, at present, of forming an opinion, they must be regarded as highly important, on account of the disposition manifested, in some quarters, to question the former well-established doctrines upon the sub- ject. We had expected to be able to obtain the opinions at length,, but have not been able to do so. 778 INDEX. ABANDONMENT, sale of road not equivalent to, 106. ACCIDKNT, ■when inevitable, or the act of God, 232. ACCOUNT, ordered, after company completed work, 216. ACTIONS, against carriers of goods, action for calls, 85-88. party interested may have action, 239-245. consignor being owner, proper party, 322. not estopped by act of consignee, 322. recovery by bailee bars claim of general owner, 322. consignee being owner should sue, 322. where death caused by negligence, 336-341. ADMISSIONS, (See Amalgamation.) what amounts to estoppel in pais, 86, 664. AGENTS. (See Directors, Contractors.) can only bind the company within their employment, 291. may receive countermand of goods, 291. will make no difference, if agent assume to bind company, 291, 292. ratification of other similar contracts, evidence against company, 292. notice of want of authority in, 292, 293. may bind company, even if he disobeys instructions, 293. of other companies bind carrier, 293. liability for acts of contractors and their agents, 377-380. liability of company for acts of, 380-385. liberal discretion allowed, 380. company liable for torts committed by, 380. and for wilful act, if done in the course of his employment, 381-384. respondeat superior, 382-384. company may be regarded as present, and assenting, 384-386. general, of company, extent of authority, 407, 408. (See Appendix C.) ALTERATION, in charter, fundamental, will release subscribers, 91. 780 INDEX. ALTERATION,— conimMetZ. not unless unlawful, 94, 96. location of road, if one be made, which substantially affects the consideration of subscnp- tions, they will be released, 95, 96. (See Calls, Subscription.) AMALGAMATION, power of legislature to amalgamate, 621, 622. what amounts to. mere association not sufficient, 622, 623. agreement to, from day past, 623. what contracts made before, binding. if legal, all prior contracts may be enforced, 623. formalities must be complied with, 623, 624. admissions made before, binding, 624. funds of consolidated company may be applied to debts, 624. illustration of right to, 624. ANIMALS. (See Negligence, Fences.) APPEAL, costs, 145. mode of trial, 145. (See Appendix C. 692-697.) ARBITEATiON, claim for compensation for land. attorney, without express power, may refer claim, 182. awa,rd binding, unless objected to in court, 183. agreements to submit, as conditions precedent to right of action, 223, 224. of claim for land damages under English statute, 689-691. AKRANGEMENTS OF TRAFFIC, leases, and similar aontracts, require assent of legislature, 418-422. companies may make special contracts, 418. but cannot transfer duty of one company to another, 418, 419. original company liable after lease, 419. courts of equity enjoin from leasing, 420. but such contracts made by legislative consent, are to receive a favorable construction, 420. contracts between different companies, regulating traffic, 435, 436. ASSESSMENT, (See Calls.) ASSIGNEE, of insolvent, not liable for debts of company, 65, 66. ASSIGNMENTS, (See Creditors.) ATTACHING CREDITORS, of railway property. what rights acquired, 590, 591. (See Ckeditoks.) ATTORNEY, power to refer claim. may refer claim for compensation for land, without express power, 182. INDEX. 781 AWARD, (See Arbitration.) valid if substantially correct, 206. court will not set aside where it does substantial justice, 206, 207. agreements to obtain, before suit, 223, -224. ' B. BAGGAGE, (See Common Carhieks.) of passengers, company liable for as common carriers, 242, 243. checks of company evidence of receipt of, 242. company liable for, as far as they check, 242. and until actual delivery, 243. but not unless given in charge of proper servants, 244. party interested may have action, 245. does not include merchandise, carried covertly, 312. although passenger have no other trunk, 312. includes jewelry, &c. 312, 313. BANKRUPTCY, in actions for calls, is a valid defence, 89, 90. BILL OF LADING, between consignor and carrier, \a prima facie evidence, 307. not as to intermediate carriers, 308. may be explained, by oral evidence, 308, 309. containing express promise to deliver, by day named, 309. stipulation to deduct from freight, for delay, 309. if full freight demanded, carrier must refund, 309. must be forwarded according to, 309. BONDHOLDERS. (See Railway Investments.) BONDS, (See Railway Investments.) of railway secured ly mortgage, 564-568. holder may enforce, 595. issued by cities and towns, 596. rights and remedies, 672-596. judgment not allowed on coupons, till produced, 596. BORROWED CAPITAL. (See Railway Investments.) BY-LAWS, may regulate conduct of passengers, 24. must be reasonable, and not against law, 24. must not be against common right, 24. power to make may be implied, 24, 25. but not where it is expressly given to a certain extent, 24, 25. not required to be made in any particular form, 25. unless so required in the charter, 25. in England must be under the common seal, 25. model code, framed by Board of Trade, in England, 25, 26. company may discriminate, as to fares, psud in cars, or at stations, 26. 66 782 INDEX. BY-LAWS,— continued. ■ may expel passengers from cars, for violation of rules, 27. legislature may control this, as to existing companies, 27. cannot refuse to be responsible for baggage, 27. regulating the use of stations and grounds, 29, 30, 31, and notes, statutes of corporation, 30. rmes and regulations, 31. requiring larger fares for shorter distances, 31. may require passengers to go through in same train, 32. must be published, or shown to be known to party, 32, 33. may exclude merchandise from passenger trains, 34. requiring passengers to show ticket, 32. where check marked " good for this trip only," 32, and note, where passenger refuses to surrender ticket, ib. CALLS, must be paid by vendor, if necessary to pass title, 46. often matter of construction and inference, who shall pay, 47. paid by vendor, through neglect of vendee, vendor allowed to recover of vendee, 47, 48. upon shares included in legacy, 55, n. made after transfer, 58-60, and notes, when made, 63, 64. should be made by directors, 64. . in case of death and insolvency, successor to title liable for, 65. party upon the registry liable, 68. bankrupts remain liable, 68. cestuis que trust not liable, 69. when vendee liable, 47, 48. conditions of subscriptions must be performed, 77, 78, 79, 80, 81, and notes, party liable for, 82-84. may be made payable by instalments, 81. how party may be released from, 84, 85. defences to actions for. informality in organization of coinpany insufficient, 85, 86. acquiescence estops the party, 86. default in first payment insufficient, 86, 87. company may waive such condition, 87, 88. subscriber liable for, although subsequent act requires more capital, than has been subscribed, 88. (See Appendix C. 692-697.) CANAL, exclusive franchises not interfered with, by railway, unless it obstruct its use, 502. . CAPITAL STOCK, (See Railway Investments.) must all be subscribed before organization, if required, 7. INDEX. 783 CAPITAL STOCK,— continued. colorable subscriptions, binding at law, 8. must be distributed according to charter, 8, 9. if limited, must be subscribed before calls made, 37, 77, 79. cannot be reduced by the act of the corporation, 37, 38. personal estate, 38. shares in, not goods, wares, or merchandise, 38, 39. held in trust, in case of insolvency, goes to other trustees, 65. contracts for payments in shares in. may recover nominal value, 227. but where recovery is on quantum meruit, only market value, 227. where incumbrances are incurred subsequently, 229. CATTLE. (See Nbgligbncb. Fences. Tokts. Appendix C. 692-697.) CERTIORARI, to remove proceedings against railways, 469, 470. to bring up unfinished proceedings, or those not according to the course of common law, 469. the remedy of universal application, 469. where case fully heard on application, 470. where there is an excess of jurisdiction, 470. jurisdiction and mode of procedure, ill. lies in case of irregularity, 471. granting writ, matter of discretion, 471. defects not amendable, 471. CESTUI8 QUE TRUST, ,(See Railway Investments.) not liable for calls, 69. CHANCERY JURISDICTION. (See Equity.) organization of company. ground and extent of, 8. CHARTER. (See Constitutional Questions.) . acceptance of must be shown. subscription to stock sufficient sometimes, 10. must be done in form prescribed, 10. may be shown by way of inference and presumption, 10, 11. may be shown by parol, 11. amendment of, 12, n. 13, n. ' time of continuance, 13, n. fiindamental alteration of, 90-96. subscriptions before date of, 97-99. CHECK (See Common Carkiers. Baggage.) evidence against company, 242. CHURCH, use of locomotive in vicinity of, 519. CITIES. (See Municipalities.) COMMERCE, right of Congress to regtdate, may determine what erections under state grants are a nuisance, as being an obstruction to navigation, 169. 784 INDEX. COMMISSIONERS, to receive subscriptions and organise company, must all act, 9. may take securities for subscriptions, 97. to assess land damages, § 72, 139-146. fees, 145. cause for setting aside report, 145. revision by court, 145. conditional report, debt will not lie upon, 145. (See Railway Commissioners.) must all act, 146. COMMON CARRIERS, duty at common law. ■who are, 232. extent of liability, 232. liability for parcels carried by express, 236-239. railways are, 234-236. liable to be sued by party in interest, 239. rights and duties of express carriers, 239-242. responsibility for baggage of passengers, 242-245. when carrier's responsibility begins, 246-249. responsibility begins upon delivery of goods, 246, 247. delivery, at usual place of receiving goods, sufficient, 246, 247. where goods are delivered to be Carried, 247. acceptance of goods, at unusual place, 247. question of fact often, 247. acceptance by proper servants, 248. except in warehouse, 248, 249. when carrier's responsibility terminates, 249-260. responsible for delivery of parcels, 249. but npt of ordinary freight, 249, 250. affected by usage, and course of business, 250, 2511 bound to keep goods reasonable time, after arrival, 252, 253. afterwards, only liable for ordinary neglect, 254, 255, 256, 257. excused when consignee assumes control of goods, 259. responsibility attaches, on delivery, at usual place of receiving, 260. general duty — equality of charges — special damage. bound to carry, for all who apply, 261. * may demand freight in advance, 261. not bound to receive goods which they are not accustomed to carry, 262. or where they are not in safe condition to carry, 262. cannot refuse to carry, because owner will not disclose contents, 263. must carry packed parcels, if required, 263. liable for special damage, for delay in transportation, 264. notice restricting carrier's responsibility, effect of, 264-269. effect of special contracts upon carrier's responsibility, 270-280. burden of proof upon carrier, after receipt and loss shown, 274. effect of notice, and special contracts, in regard to ordinary and extraordinary liaMlity, 280, 281. INDEX. 785 COMMON CARRIERS,— coniinwed. responsibility beyond their own route. English rule, 281, 282. . by American rule, not liable, unless special contract, 282, 287. power to make such contract, 287-289. authority of agents and servants, to bind company, 290-293. limitation of duty, by course of business, 293-297. cases when not liable for gross negligence, 297-300. English Carriers' Act, 297, 298. must give specification and pay insurance, 298, 299. loss by felony of servants, 299. not liable where disguise used, in packing, 299. entitled to have explicit declaration of contents, 299, 300. but refusal of this will not excuse for not carrying, 300. statute does not excuse carrier for delay, 300, 301, 302. not liable for losses by internal decay, 303. or by bad package, 303. right to stop in transitu, 303-306. effect of bill of lading, 307-309. to what extent party may be witness, 310-312. extent of responsibility for baggage, 312, 313. lien for freight, 314-317. time of delivery of goods, 318, 319. have an insurable interest in goods, 319. rule of damages, 320-322. incidents of actions against, 321, 322. where consignor obtains advance on bill of lading, 322. liable notwithstanding insurance to owner, 360. (See Appendix C. 692-697.) COMMON CARRIERS OF PASSENGERS, (See Passenger Carriers.) COMPANY, (See Railway Investments.) act, by meeting, by directors, by agents, 16. may own other property than stock, unless restrained, 36. cannot mortgage its franchise, etc. without consent of legislature, 36. Uable to action and writ of mandamus, for not recording transfer of shares, 62. but not for refusing to record mortgage of shares, 63. bound to same duty, in obtaining right of way by consent, as by deed, 105. liable for materials accepted, and used, 227. liable for an act prohibited, though no special damages, 626. COMPENSATION, for franchise taken. whole should be taken, 129. value should be paid, 129, 130. for land condemned. general inquiry, 133-135. remote damages not to be considered, 135. general rule of estimating, 135. prospective to be assessed, 136. 66* 786 INDEX. C OMFBTSSAIIOTS,— continued. •where value " in money " is required, 136. ' damages and benefits cannot be considered, 136, 137. provisions of English statute, 137. advantages and disadvantages must be stated sometimes, 138. when to be made, conflicting opinions, 147. must be ready for land-owner, before land taken, 148. rule in Civil Law, and Code Napoleon, 148. rule in different American states, 148, 149. cases reviewed, 149, 150. where general law provides a different mode from charter, 679. extent of compensation, 684, 686. future damages under English statute, 685. mode of estimating under English statute. by justices, 688. by surveyors, 689. by arbitrators, 689-691. for land, assessment enforced by mandamus, 456, 461. CONDITIONS PRECEDENT, organization of company. %' must be complied with, before organization, 7. charter location of road is sometimes, 8. calls. must be complied with before calls, 77. legislature cannot repeal those affecting calls, 80. nonpayment of sum required on subscription, 37, 38. may be waived by parties, 37, 38, 79, 80, 87. location of road. must be substantially performed, 95-98. and strictly, where so required by subscription, 95-98. taking land. must be complied with, 118. must' be alleged in petition, 118. CONDITIONS SUBSEQUENT, . organization of company. how enforced, 8. the construction of road with care, 105. calls. need not be complied with, 78, 79. CONDUCTOR, of railway train. rights, duties, and liabilities, 30-35, 351, 352. CONSIGNEE, (See Common Carriers.) must have reasonable time t6 remove goods, 253, 254. where goods arrive out of time, may remove after notice, 256-257. where misinformed as to arrival of goods, 259. CONSOLIDATION. (See Amalgamation.) CONSTITUTIONAL QUESTIONS, right and importance of legislative control, 5. INDEX. 787 CONSTITUTIONAL QUESTIONS,— con«m«erf. when railway grants are paramount and exclusive. no such restrictions exist in England, 537. in the United States depend upon the Federal Constitution, 537, 538. what is requisite to render the grant exclusive, 539. construction of such grants, 540-548. grants of the use of navigable waters for manufacturing, 541-543. forfeiture for the benefit of county, 544-546. repeal of charters, 547. grounds upon which acts of legislation may be declared void, 547, 548, n. 13. power of the legislature to impose restrictions upon existing corporations. may subject them to police regulations, 549-560. case in Maryland, 550. extent of a reservation to repeal, charter, 559. effect of an express exemption from legislative control, 559, 560. construction of exclusiiie railway grants. construction should be strict against the company, 561. extent of implied grants in such cases, 561, 562. ambiguous terms construed most against company, 562. (See Appendix C. 692-697.) CONSTITUTIONAL RESTRICTIONS, inviolability of franchises, 130. power of state legislature over such franchises, 131. CONSTRUCTION, (See Mandamus.) line of railway, right of deviation, 186-193. distance how measured, 193, 194. of railway to be done with least damage. does not extend to form of the road, but mode of construction, 195. this will not control special provisions in act, 195. bound to restore works interfered with, for all uses, 195. of works, sufficient if apparently good, at time, 199. (See Appendix C. 692-697.) of charter in regard to nature of works. review of cases upon the subject, 199. terms of contract, money penalties, excuse for non-performance, 199-203. form of execution, extra work, deviations, 203, 204. where one party repudiates the contract, 205. decisions of arbitrators, 206, 207. engineers, 207, 209. relief in equity, as to decisions of, 210-217. fraud in contracts, for construction, 217-221. engineer's estimates wanting through fault of company, 222-225. contracts for materials and machinery, 225-227. mechanic's lien, 231. of charter in regard to extent of powers. of statutes not affected by what passed between the promoters and op- posers, 666. Y88 INDEX. CONSTRUCTION,— conimued. of statutes should be most favorable to those whose property is thereby sought to be invaded, 668. (See Constitutional Questions. Contracts.) CONTRACTS, (See Dikectors. Arrangements of Traffic.) to transfer stock in future, if bond Jide, are valid, 45. vendor to have stock, at the time due, '45, 46. ^ to remove impediments to transfer, 45, 46. must be prepared, by party taking initiative, 52, 53. to release subscriptions, to capital stock, not binding, 99, 100. for stock, to be paid in other stock, 85. for consiruclion. assume unusual forms, 199. estimates made by engineer, 199. money penalties, liquidated damages, 199. must show full performance, or legal excuse, 201. not entitled to any thing for part performance, 202. no particular form of execution required, 202. must conform to requirements of charter, 203. extra work must be performed according to contract, 204. party repudiating, excuses the other, 205. new, valid, 205. construction of. whether " earth " includes " hard pan," 205. practical, binding, 208. new, is condonation of old claims, 216. for materials and machinery. manufacturer not hable for latent defects, 225. for materials as ordered, implies that the company will give the order, 225, 226. stipulation in, may be waived, by acquiescence, 226. to pay in the stock of company. entitle the party to recover nominal value of stock, 227. what is requisite to render permanent, 236, under seal of company, ^nma/acie binding, 408, 409. necessity and effect of being under seal, 423. cases upon this subject reviewed, 423-429. between different companies, in regard to traffic, 435, 436. ultra vires and illegal, 410-415, 436, 437, 664. (See Constitutional Questions.) to make erections not authorized by charter, 437. to indemnify other companies against expense, 437. to divide profits, 487. companies exonerated from, by act of legislature, 437, 438. forfeited by decree of engineer, does not forfeit former earnings, 201. not under seal, enforced by mandamus, 462. to quiet opposition, 664-666. to obtain unequal favor, 410-415. (See Dividends.) INDEX. 789 CONTRAriTOR, bdffd by deviation, unless he object, at the time, 189. •will be enjoined from interfering, after company terminate the contract, 222, 223. liability of company for acts of agents and sub-agents of. company not liable for such acts, 377, 378. unless -where contractor employed to do the vecy act, 378. distinction between movable and immovable property, 378, 379. no difference, as to mode of employment, 379. rule stated, 379. CORPORATIONS, (See Compant.) private, 5. not subject to legislative control, because they accept public aid, 560i pi. 6, n. 6. public, 6. subject to legislative control, 6, 560. organization of, 7. defect of organization must be plead, 9. records of, evidence, 9. definition of, and residence, 11, n. majority of shareholders cannot dissolve, 12. liable for fraud of agents, 211, 219. duty enforced by mandamus, 445-452. compelled to complete road, 446-453. public duty of, enforced by mandamus, 455. compelled to divide profits, 462, 463. produce books, 463, 464. perform statute obligation, 463. restore one to corporate office, 464, 465. CORPORATORS, entitled to proportionate share of net profits, 603, 604. COSTS, in proceedings to estimate compensation to land-owners, not allowed, unless given by statute, 144. " costs" do not include witness fees, 144. " costs and expenses" include witness fees, &c. 145. commissioners' fees, 145. on appeal, 145. enforced by mandamus, 456. in equity, 514. COUNTIES, (See Municipalities.) COUPONS, (See Railway Investments.) attached to railway bonds. ncotiable instruments, 595. not recoverable unless produced, 595. COVENANT, in the lease of a railway. to work efficiently, construed with reference to facilities in lessee's power, 431-435. 790 INDEX. CREDITORS, (See Attaching Ckbditors.) who have obtained judgment, may have bill in equity agains^pbscribers 77. dissolution of railways. different modes of effecting, 602, 603. shareholders not liable in general, 603. subscribers liable for expenses if scheme abandoned, 604. cannot exonerate themselves by contract with directors, 605. company cannot give away effects to prejudice of, 605. right reserved to repeal charter, 605, 606. levy of execution upon property of company. charter lien paramount to all others, 606. road or tolls not subject to levy of execution, 606. mode of obtaining under English statute, 606, 607. execution against shareholders. remedy by distinct action more common, 608. may proceed in equity, 608. payments in land, 608, 609. assignments in contemplation of insolvency, 609. CUSTOM, (See Usagb.) party contracting bound by general, 51. local, binding, if known to the parties, 51-53. how far admissible to explain memoranda of contract, 52, 53. delay in delivery of goods excused by, .319. D. DAMAGES, (See Torts. Directors. Dividends.) rule in regard to sale of shares, 54. by delivery of inferior article, 56, u. in estimating compensation to land-owners. excessive, is ground of setting aside proceedings, 146. consequential. included in appraisal of compensation to land-owner, 152, 154. blasting rock for road-bed, 152. adjoining lands used, 153, 154. injuries from fire, &c. 154, 155. water flowing upon land, 154. representations as to mode of constructing road, 154, 155. statute may give remedy, 155, 156. otherwise no remedy, where no land taken, 156. by work, upon adjoining land, 157. in contracts payable in stock. may recover nominal value, 227. on quantum meruit, only market value, 227. where contract part payable in stock, 228, 229. under general counts, governed by contract, 231, common carriers. INDEX. 791 DAMAGE S, — continued. for delay in transportation of goods, 234. in actions generally, 320, 321. passenger carriers, where death ensues, 337-339. where trains do not arrive in time, 842-345. rule of damages, for injuries to passengers, 345-348. prospective must be included, 345. must be obvious, and not merely conjectural, 345, 346. counsel fees not included, 346. excessive, ground of new trial, 346. pain and mental anguish, 346, 347. plaintiff may give evidence of nature of his business, 347. rests much in the discretion of jury, 347, 348. in actions for loss of service, cannot include mental anguish, 348. for wrongfully expelling passengers from cars, 351, 352. exemplary, in cases of wilful injury, 396. DAMAGES SPECIAL, will depend upon circumstances, and whether known to both parties, 263, 343, 351, 352, 396. DEATH, (See Passenger Carriers.) title of shares transferred by, 65. DEED, (See Pdrchase.) executed blank, not valid, by English cases, 48. otherwise in America, 49. of land, includes use of water, as then used, 106, 107. not explainable by parol, 107. DEFENCES, in actions for calls, informality in organization insufficient, 85, 86. default in first payment insufficient, 86, 87. infancy, statute of limitations, bankruptcy, 89, 90. DELIVERY, of goods to carriers, 246-248. by carriers. must be in reasonable time, 318. company not liable for delay, caused by unusual press of business, 318, 319. or by loss of a bridge, by freshet, 319. delay excused, by custom, and course of navigation, 319. DEPOT, (See Station.) DEVIATION, (See Line of Railway.) in construction of railway. right of, lost by election, 191, 192. how measured, and what it imports, 670, n. 2. DIRECTORS, (See Mandamus.) should be elected, at general meeting, or on special notice, 17. power may be restrained,' by statutes, 17, 18. not where charter confers it, 17. courts will not interfere to control, 1 7. 792 INDEX. DIRECTORS,— conimuerf. may be compelled to divide actual profits, 17. but if tbey divide more, will become liable personally, 1 7. act of directors de facto binds company, 18. if company receive avails of contract, are bound by it, 18. qualifications of. may not be contractors, 22. if so, office vacated, 22. may be banker, for company, 22. may be, by virtue of stock mortgaged, 22. bankruptcy, and absence, do not vacate office, 22. may be compelled to fill vacancies, in board, 22. the proper authority to make calls, on shares, 64. cannot use funds of company, except for purposes of the charter, 94, 101. alone liable, for circumstantial misconduct, 100, 101. cannot make profits for themselves, 101. president cannot bind company to pay additional price for work done un- der contract, 205. may bind company, unless restrained, 290, 291. extent of authority, 399-401. notice to one, if express, notice to company, 399, 400. cannot apply to legislature for enlarged powers, 400. requirements of charter must be strictly followed, 400. cannot alter fundamental business of company, 400. difficulty of defining proper limits of authority, 400-404. when they iecome personally liable, 402-405. not so liable for lawful acts, 402-404. unless upon express undertaking, 404, 405. liable personally, if they exceed their powers," 405. effect of usage and course of business, 405. liable, if contract ultra vires, or not in usual form, 405. compensation for services, 406. company not liable, unless express contract, 406. may vote annuity, to disabled officer, 406. records of proceedings, 21, 407. authority to borrow money and buy goods, 407-409. extent of authority, express or implied, 407. presumed to assent to acts of general agent, 407, 408. contracts under seal of company prima /acie binding, 408, 409. strangers bound to take notice of want of authority, 409. cannot subscribe for stock of other companies, 409. may borrow money, if requisite, 409. duty to serve interests of company, 410-415. general duty of office defined, 410-415. claim for secret service, and influence, 410-414. right to dismiss employees ; rule of damage, 416, 417. how far under control of courts of equity ,'489-496. liable as trustees, 493, 494. INBEX. 793 T>IRECTO-RS,—cmmued. not chargeable with fraudulent acts of members, 494. equity will not enforce resolution of, 494, 495. compel, to resist illegal tax, 495. will not compel, to declare dividend, unles8 refusal wilflil, 495. DIRECTORS' MEETINGS, all must be notified, 19. majority must attend, 19. board need not be full, 20. usurpations tried by shareholders, or quo warranto, 20. usage excuses irregularities often, 20. adjourned meeting, not Special, 20. decision of majority valid, 20, 21. DISTANCE, how measured. afifected by subject-matter, 193. in contracts for railway construction, 194. general rule, 194. as to turnpike roads, 1 94. DIVIDENDS, . company not obliged to pay, till indebtedftess cancelled, 44. equity will not restrain company from declaring, 490-492. when declared and how payable. declared only out of net earnings of company, 597. right of shareholders to, several, joint in the fund, 597, 598. lien upon shares extends to, 598. surety may claim benefit of, 598. action will not lie for, till after demand, 598. party entitled to, where stock fraudulently transferred. fraudulent transferree not entitled to, 598, 599. bona fide purchaser is, 599-601. owner may forfeit claim, 600, 601. one who buys of registered owner may hold against cotflpany, 601. review of cases, 599-601. guaranty of upon railway shares, 601-602. rule of damages for breach of such contract, 601-602. owner of preferred stock may enjoin company from, making, while deficit in funds, 492. See Appisndix C, 692-697. DOMESTIC ANIMALS. (See Fences.) injuries to, 361-367. company not liable unless bound to keep animals off their track, 361, 362. where animals wrongfully abroad, 361, 362. owner in fault, 362, 363. company, liable for gross neglect, or wilful injury, 363. or if they might have avoided the injury, 364. required to keep gates closed, 364. not liable for proper use of engines, 365-367. questions of negligence, determined by jury, 365, 366. 67 794 INDEX. DOMESTIC ASIMALS,— continued. by court when testimony not conflicting, 366. company, liable for remote consequence of negligence, 366. where statutory duty neglected, 366, 367. where made liable absolutely, requisite proof, 374. against what animals company bound to fence, 374-376. E. EMINENT DOMAIN, ■ definition of the right, HI. necessary for intercommunication,' 111, 112. antiquity of its recognition, 112," limitations upon its exercise, 112, 113. resides in the states of the Union, principally, IIS. duty of making compensation, 113, 116, 133-138. mode of estimating, 139-146. where to be made, 147-152. in navigable waters, 113. rivers, above tide-water, 113, 114. through land owned by United States, 114, n. legislative grant indispensable, 115, n. 117. consequential damages, 116. such grants strictly construed, ,1 1 6. interference of courts of equity, 117. conditions precedent, 118-120. preliminary surveys, 120-122. power to take temporary possession of public and private ways, 122. land for ordinary and extraordinary purposes, 123. by railway in another state, 123. title acquired by the company, 124-129 corporate franchises condemned, 129-132. appraisal includes consequential damages, 152-155. ^ action for consequential damages, 155-15S. right to occupy highway, 158-1,64. right to build over navigable waters, 166-169. obstruction of streams, 170-172. obstruction of private ways, 172, 173. statute remedy exclusive, 1 73-1 75. lands injuriously affected, 175-180. different estates protected, 180-182. arbitration, 183. statute of limitations, 183, 184. extent of, 132. EMPLOYEES, (See Agents and Servants. Directors.) right to dismiss. rule: of damages for dismissing, 415-417. sometimes said they may recover salary, 416, 416. INDEX. '795 EMPLOYEES,— confanueJ. this rule not favored, in England, 416. American cases, 417. term of wages, provided in contract, after dismissal, liquidated damages, 417. statute remedy for laborers, extends to those of sub-contractor, 417. ENGINEER, (See Estimates.) being shareholder, not valid objection to estimates, 211, 216. duty in conducting train, 396-398. ENTRY, upon lands. > for preliminary surveys, U9, 120. materials, 120, 121, 676-678. proceedings requisite to enable company to enter upon land, 678, 6J9. after verdict and before judgment, 679. to make erections upon other lands, 686, 687. EQUITY, will not set aside sale of shares, based upon misapprehension of both par- ties, 61: interference in regard to subscriptions for stock, 99-101. iff regard to forfeiture of shares, 102, 103. will interfere to restrain company from taking land, before making com- pensation, 174. will not enjoin the exercise of legal right, 1 76. or a doubtful claim, 177. when remedy, at law, is adequate, 177. will not restrain company from proceeding according to charter, unless some distinct contract be shown, 191. interfere to relieve party from expense incurred, where no defi- nite contract has been closed, 221. Jurisdiction in regard to railways, 474. will not assume the control of railway construction, 474. restrain company from taking lands, by indirection, 474. when exceeding its powers, 475. board of surveyors from interference, 475, 476. such board must apply to the proper tribunals, 476. will restrain company, whose powers have ceased, 476. enforce payment of compensation for land, 476. injunction suspended, on assurance of payment, 476, 477. practice must conform to change of times, 477. review of cases upon the subject, 477-^79. injunctions to protect the rights of land-owners and the company, 478-480. company restrained 'from taking less land, than notice, 478. injunction refused where great loss will ensue, 480. will not enjoin company, to try constitutionality of act, 480. company enjoined from carrying passengers beyond their route, 481. from takinc land for a warehouse, and building a track to it, 481. injunction denied to restrain company from taking land, 481. 796. INDEX. EQUITY,— continued. equitable interference in regard to the work?. these matters arranged, by stipulations, in court, 481, 482. cases illustrating the mode of proceeding, 482t,484. ' where company required to do least damage, 484. ■will direct the mode of crossing highways, 484, 485. ■ mandamus the more appropriate remedy, 485. municipalities may maintain bill to protect highways, 485, 486, injunctions to carry into effect orders of Railway Commissioners, 486, 487. railway companies perform important public functions, 486, 487. will enforce order of Railway Commissioners, without revising, 487. equitable interference where company have not funds. English courts will not allow company to take land, if funds fail, 487. qualified, in later cases, 488, 489. will not compel company to complete whole road, 489. cases reviewed and result stated, 488, 489. equitable control of the management of railways. will not interfere in matters remediable by shareholders, 490. will not restrain company from declaring dividend, 490." will enforce public duty, rather than private, 490. will restrain company from diverting funds to illegal use, 490^-492. will not interfere because company ceases to act, 491— 49S. directors liable as trustees, 493, 494. committee not chargeable with fraudulent acts of members, 494. will not enforce resolutions of directors, 494, 495. will sustain suit of minority against majority, 495. minority may insist upon continuing business, 495. may have bill against directors for not resisting tax, 495. company may expend funds, in opposing proceedings in legislature, 496. will not compel directors to declare dividend unless refusal wilful, 495. directors liable only for good faith and diligence, 495. applications to legislature for enlarged powers. will not enjoin company against, 496. ^ English cases favor such applications, 496, 497. proper limitations stated, 497. specific performance. will hold control of contracts, referring law, to the courts of law, 498. where legal right clear, will not interfere, 498. will not interfere, on conflicting evidence, 498. or where company contracted to stop at refreshment station, 498. or if there is doubt of the legality of contract, 499. contract for use of company's track is permanent, 499. will decree specific performance in regard to Farm accommodations, 499. restraining company from interfering with exclusive franchise. will exercise a preventive jurisdiction in such cases, 499, 500. will not interfere where legal right doubtful, 500. unless, to prevent irreparable injury, &c. 500. will restrain difierent companies from forming competing line, 501. INDEX. 797 ^QVIIY,— continued. railway not an infringement of rights of canal, 501, 502. unless it obstruct the canal, 502. infringement of corporate rights in nature of nuisance. will interfere to prevent multiplicity of suits, &c. 502. definition of this part of equity jurisdiction, 502, 503. to preserve property pendente lite. will not decree specific performance in question of damages, 503, 504. paijties put under terms, if injunction will operate harshly, 504. review of cases upon the subject, 504, 505. restraining parties from petitioning legislature. will rarely interfere in such oases, 505, 606. in case of insolvent companies. will interfere to save costs and litigation, 506. all parties interested may come in, 506. manner of granting and enforcing ex parte injunctions. liable to abuse, 507. in important matters, notice should be given, 507. dissolved upon answer denying'equity, 507. course of practice, and costs, 508, 509. right to injunction lost by acquiescence. to extinguish right, must have operated on other parties, 510. not delay J;o learn extent of injury, 510. definition of acquiescence, 510, 511. injunction may he mandatory. must be specific, 511. is but specific performance, 512. remedy in charier does not supersede resort to equity. charter provisions, 512. English statute, 512. wilful breaches of injunction. statement of case, 513. opinion of vice-ehaneellor, 513, 514. costs, 514. will not interfere, where company exercising statutory powers, 682. ESTATES, • different ones in estimating compensation to land-owners. tenant's good will and chance of renewal, 180. change of location of track, compensation to tenants, 180. church property, in England, 181. tenant cannot sue for penalty, for obstructing private way, 181. heir entitled to such compensation, 181. lessor and lessee, both entitled to compensation, 181. right of way, from necessity, protected, 181. mill owner can claim compensation for obstructing water, 182. occupier of land entitleji to compensation, 182. tenant without power of alienation forfeits estate, by license to company, 182. 67* 798 INDEX. ESTIMATES, for advances, under English practice, %&■'!■. if agreed to be final, can only be set aside, in equity, aod for partiality or mistake, 207, 208. do not bar matters, not refei?recl, 20&. can only be set aside- in eqiiity, 216., proof of fraud must be very clear, 216. conclusive as to quality, but not quantity, 216. wanting through fault of company. contractor may maintain bill in equity, 221. grounds of equitable interference, 222. stipulation requiring engineer's estimate, valid^ 223. not equivalent to a stipulation, that no. actipn. shall be brought, a?4j„ ESTOPPEL, ' the delivery of a release as that of the eompany, 40^, in pais. what amounts to, 86, 510, 511. EVIDENCE, (See RBCOB»a„E3i3?iiE.Te-) oral to explain writing, 51-53. in estimating compensation fw land.. only legal can be received, as in. other trials,, 142. may show what company paid, fop land adjoiiuing,. 142. but not, what they had been, condeasiued to pay, 143. . witness cannot give opinion of value, 143. experts, 143. of former similar dealings with same party competent, 2,7il, 273. in case of loss of baggage. at common law party could not be witness, 310. some of American courts hold otherwise, 310, 311. cases reviewed, 310-312. « agents and servants of company competen^, 311. jury may find contents of trunk, &c. from presumption, 311, 312. preponderating must be given, 322, injury to passengers. declarations, of the party, in. regaipd' to, 350. of negligence in regard to fires from company's engines, 357, 358. of experts in regard to management of railway train, 396-399. (See Appendix C. 692-697.) EXECUTION, (See Levy.) EXEMPTION, (See Taxation.). EXPERTS, (See Evidence.), misconduct of railway operatives shown by, 396-398i testimony of, proper to be reoeivedi as to management of' traiai, 396, 397. company not bound toexculpa/te, 8'97;. neither party bound to produce- such tesHmonyi 397. but the omission to do so may require expjjination., 397^ 998t. as where company 6mit to produce employees, in- theiT exculpation, 398. EXPRESS CARRIERS. (See Common Carriers.) company liable, where they allow servants to act as, 236, 237. INDEX, 799 EXPRESS CATLniEnS,— continued. upon European railways, 239. liable for not maiking delivery to consignee, 239, 240. contract with local carriers may be rescinded, 241. cannot charge in proportion to value of parcels, and restrict liability, 241. not responsible beyond their own routes, 241. where statute prohibits discrimination, 241, 242. EXTRA WORK, in performing contracts for construction, must be done according to contract, 204. but if company have benefit of work, are liable, 204. FARES, (See Tolls.) company may discriminate in regard to, 34, 35. , will be presumed to have been paid, 262. how established, 399. FARM ACCOMMODATIONS, (See Fences.) where included in appraisal, 138. FENCES, taken into account in estimating, land damages.. must be stated in report, 139. vpon whom rests the obligation to maintain, 368-374. by English statute, separate provision, 368. this is enforced by mandamus, 369. otherwise, part of the land damages, 369, 370. land-owner not obliged to build, till expense provided for, 370. some states hold the expense toi be divided between company and land- owner, 370,371, 372. assessment of land damages, on condition company build, 372. in some states owner of domes0 animals not obliged to restrain tjaem, 372, 373. lessee of railway bound to keep up fences and farm accommodations, 373. company bound to fence land acquired by grant, 373. . farm-crossings required where necessary, 373." where land-owner declines them, 373. not required for safety of servants and employeesv 373, 374. against what cattle company bound to erect, 374-376. Company bound to fence road for protection of passengers, 372,, 23 Vt. R. 387. at common law, owner bound to restrain his cattle, 374. obli'^ation to build only extends to cattle rightfully on land, 374, 375. in the absence of any' provision, company not bound to maintain, 375. may agree with land-owner to build, 376. time when they are required to be erected, 373. FERRY- (See Appendix C. 692-697.) damages by obstructing access to, 178. 800 INDEX. FERRY, — continued. as common carriers, 244, 245. cannot transfer duties to railway company, -without consent of legislature, 422. FIRES, communicated by company's engines, 357-360. what is evidence of negligence, 357, 358. company liable for, when in fault, 3>59. party not precluded from recovery, by placing building in exposed situa- tion, 359. where property insured, insurers entitled to benefit of claim against com- pany, 359, 360. company may insure, 360. (See Appendix C. 692-697.) FIXTURE, rolling stock, when considered, 590, 591. FOREIGN CORPORATION, the rights of, in other states, 23, 24 and notes, 123. FORFEITURE, of shares. a cumulative remedy, 73, 74. requirements of the charter and general laws, must be strictly pursued, 73, 74, 102. if not, equity will set aside, 102. must credit stock, at full market value, 102. provisions of English statute, 102, 103. FRANCHISES, public, may be conferred on private person, 4-5. ordinary franchises of railways, 11. prerogative franchises. eminent domain and taking tolls, or fare and freight, 23. these implied in the grant of railijlys, 23. corporate franchises. may be condemned for railway, 129. compensation must be made, 129. railway franchise may be taken, 130. exolusiveness of grant cannot protect, 132. legislature cannot make inviolable, 132. exclusive, equity will restrain company from interfering with, 499-503. right, to mortgage. (See Railway Investments.) FRAUDS, in oUaining subscriptions to capital stock, 70, 100, 101. may be proved by parol, 70 equity will relieve against, 100, 101. in contracts for construction. by way of misrepresentation in obtaining subscriptions, 100, 101. relievable in equity, on general principles, 217. illustration of point, by leading case, 217-220. INDEX. 801 FRAUDULENT PRACTICES, of directors, to raise price of shares, 60. will render sales voidable, in court of equity, 60. by declaring dividen^l^hen not earned, 61. ■will subject directors to action, 61, 62. (See Pirbctobs.) FREIGHT, (See Tolls.) may be demanded in advance, 261. ' lien for, 314-317, G. GAUGE, width of, 438, 439. act requiring broad, does not prohibit mixed, 438. permission to unite with other road, 438. equity will enjoin a chapge, 438, 439. contract to make, may be legalized, by subsequent statute, 439 GENERAL COUNTS, recovery may be had upon, when contract performed, 231. GRANT, assent of company, to beneficial, presumed, 10, of right of way. company may take by, 104. disabled parties may make, 104. consideration, to take the place of the land, 105. to pass railway, by consent, 105. company bound, by conditions, in deed, 106. grantee takes the land, with its incidents, 106, 107. not explainable, by parol, 106, 107. of power to take land. must be strictly construed, 105, 115. rule adopted in the American courts, 116, 117. ■ of right to build railway to place of shipping, 168. contains necessary implications, 168. paramount or exclusive. . (See Constitutional Qdestions.) GUARANTY OF STOCK AND BONDS, notice of meeting for such purpose, 16, n. how far binding and how executed, 404, 596, n. of dividend on shares, 601-602. H. HIGHWAY, right to use in constructing railway, without additional compensation. decisions conflicting, 158. review of cases on subject, 158, 159, 160. land-owner entitled to compensation, 158. 802 INDEX. HIGHWAY,— continued. this is the just rule, 159, 160, 668. but not generally entitled to damages, for alteration of highway, or laying railway, in street, 161. _ legislature should require additional compenStion, 161. has been held land-owner may maintain action, 162. " review of cases, 163, 164. mode of crossing, by railway. English statutes require it should not be on level, 196. or if so, that gates shall be maintained, 196. if near station, speed to be slackened, 196. injuries, by defects in, 391-393. company liable for defects in streets, caused by their works, 391. municipalities primarily liable in such cases, 391, 392. but may recover indemnity against company, 392. - towns liable to indictment, 392. company liable to mandamus* or action, 392. cannot alter course of highways, 196, 197. or obstruct by trains, or otherwise, 515. company liable to indictment for obstructing, 515, 616. cannot build stations in, 520. towns primarily liable for injuries, by obstructing, 191, 192. INDICTMENT, against railway companies. for obstructing highway, 515, 516. company liable to, for misfeasance, 516, 517. not liable to, for proper use of engines, 517. jury to determine abuse of powers, 517, 518. must produce no serious public inconvenience, 518. conviction may be general, 518. signals required, at road-crossings, 518, 519. how far railways may become nuisances. use of public streets, for railway, not nuisance, 519. use of locomotives in vicinity of church, 519. city government may grant railway use of streets, 519, 520. must not unnecessarily interfere with public quiet, 520. obstruction of navigable waters, 520. excess of authority, 520. building stations in highway, 520. offences against railways. railway tickets chattels, 521. railway pass subject of forgery, 521, 522. obstructing railway carriages, &c! 522. form of, for death of person caused by negligence, 339. INDEX. 803 INEVITABLE ACCIDENT, definition of, 232, 233. must come from a strictly superior power, 233. INFANCY, in actions for calls. ■ is a valid defence, if insisted upon, in time, 89, 90. INFORMATION. (See Quo Warranto.) " INJUNCTION, (See Equity.) general grounds of allowing, 478-485. not granted where it will operate harshly, 504. , general rules applicable to subject, 504-509. right to, lost by acquiescence, 510, 511. may be mandatory, 511, 512. INSANE PERSONS, killed through. want of care in those having custody of them, 340. INSOLVENT COMPANIES, (See Equitt, Creditors.) INSTALMENTS, (See Calls.) INSURABLE INTEREST, carriers have in goods, 319. entitled to benefit of policy, procured by owner, 359, 360. carrier liable, notwithstanding insurance of owner, 360. INSURERS, may recover of company, after paying loss to insured, 359, 360. INTEREST, contract to pay upon subscriptions paid, 100. allowed against carrier by way of damages, 234. INTERNAL DECAY, < injuries from, carrier not liable for, 303. INTERNAL IMPROVEMENTS, right of the states and the United States to make, 534. INVESTMENT IN RAILWAYS. (See Railway Investments.) extent of, in Great Britain and America, 6, n. 3. Of JUDGMENT, in actions against shareholders. against company, not evidence against shareholders, 9. on mandamus revisable in error, 468. JUNCTION. (See Gauge.) between different lines established by Railway Commissioners, 612. JURISDICTION of United 'States courts. a railway corporation is regarded as a party, resident in the state of its creation and operation, 625. it makes no difference where the corporators reside, 625. all suits against the company must be brought in the district where it exists, 625, 626. 804 INDEX. JURY, (See Evidence, Experts, Negligence.) cases proper to be tried by, in courts of common law, 145. may find specially, 141. competency of juror, 145. may find contents of trunk, &c. from presumption, 311. may determine question of negligence, where there is any conflict in evi- dence, 333, 365, 366. try facts in return to writ of mandamus, 455, 456. LABORERS. " (See Employees.) LANDS. (See Equity Compensatioht.) may he taken for building railway. legislative grant requisite, 114, 115. compensation must be made, 115. limitation of the power to take, 116. interference of courts of equity in regard to, 116. rights, acquired by the company, 117. limited to the grant, 117. for what purpose company may enter upon, 119-126. for extraordinary purposes' company may take, 122, 123. for what use, may be taken, 126. reverts to owner, 127, 128. injuriously affected. obstruction of way, loss of cdstom, 175. cutting ofi" wharf, 1 76. but not crossing of highway, near dwelling, 1 76. in England statute only extends to damage done by -erecting ■Wotks, afid not to the use of them, 1 76. unforeseen at time of appraisal in England, lit. remote injuries not within the statute, 178. extent of Massachusetts' statute, 178, 179. grant to take land for road, extent of, 192, 193. remedy under English statute, 680. LAND-OWNER. (See Compensation.) may traverse right of railway to take land, or to change route, 183, 184. contract with, against public security, will not be enforced in equity, 190. remedies by, under English statute. bound to purchase the whole of a house, &c. 667, 668. company compellable to take intersected land, 669i. effect of notice to treat, 669, 670. requisites of the notice to treat, 671, 672. the notice may be waived by adverse party, 67'2. title of, must be distinctly stated, in reply to notice to treat, 6?3. lands in possession of receiver, or committee of luiiatic, 673. fee-simple in possession, 673, 674. ^ different interests in land must be purchased, 674. INDEX. 805 LAND-OWNER,— conhnueci. claim must be of same extent, as notice to treat, 675. onus of carrying forward proceedings, 680, 681. LEASE. (See Lessee.) LEGATEE of shares. entitled to election, interest, and new shares, 66. will take shares, owned by testator, at date of will, although converted into consolidated stock, 66. but not subsequently acquired, consolidated stock, 66. LEGISLATIVE SUPERVISION, • benefits and necessity of, 614. English statute in regard to traffic, 614, 615. control of gauge; right of public to use road, 615. regulation of the mode of running hy municipal authority, 615-618. carrying mails, troops, and munitions of war. this controlled by legislation, in England, 619. difficulties in the way of such a control here, 619. state and federal legislatures may control, 619. mail agents may sue company, for injuries, 619, 620. LESSEES, (See Akrangements op Traffic.) of railways. duty in regard to passengers, 424-431. liable for their own acts, and many acts of the lessors, 434, 435. LEVY, upon property of company, 606. of execution against shareholders,"606-609. LICENSE, * to build railway, extent of, 105. not revocable, in equity, when executed, 106. LIEN, (See Transfer.) upon shares, for indebtedness of owner, may be created, 44. such lien not implied, 44. for calls, is valid, 47. in favor of laborers. ' < cannot be enforced without destroying works, 231. for freight. damage to goods may be deducted, 314, 315. where freight paid, in advance, no lien, 315. wrongdoer cannot create lien, for freight, 315, 316. does not extend to general balance of account, 317. may be waived, 317. deUvery of goods, obtained by fraud, will not defeat, 317. attaches, in favor of last carrier, for whole freight, 317. goods cannot be sold, at law, to satisfy, 817. created by mortgage of railway, 573, 574. 68 806 INDEX. LIMITATIONS, (See Tortb.) claim for compensation for land. general limitation of actions will bar this claim, 183. filing petition, not su£Bcient to save bar, 183. accruing of action, 396. admissions of corporators, or president, not sufficient to remove bar, 396. LINE OF RAILWAY, manner of defining, in English charters, 186, 670, 671. between two towns, construction of, 192. through certain towns, does not require the order, named in charter, to be preserved, 19~ limited by town, imports its present extent, 193. M. MAILS, , transportation of, by railway companies, 619. MAJORITY, may control company unless restrained, 11. cannot change organic law, 12. except in the mode prescribed, 12. cannot accept amended charter, 1 2. or dissolve corporation, 12. may obtain enlarged powers, 13. may use common seal, and funds for that purpose, 13. but not to convert canal into railway, 13. right of minority lost by acquiescence, 13. acquiescence of one plaintiff" fatal, 14. may bind company in alterations of charter not fundamental, 92-95. may obtain enlarged powers with new funds, 420, 421. may defend against proceedings, in legislature, 421, 422. but cannot ratify acts, ultra vires, by legislative sanction, 422. MANDAMUS, directors of company. to compel directors to fill vacancy, 22. transfer of shares. to compel company to register, 63. registry of name of successor to title of shares, 64. company to collect of subscribers, and pay creditors, 75, 77. construction of railway. does not lie, where company have an election, 197. general rules governing, 440-445. * regarded as a supplementary remedy, 440. mode of procedure, 440, 441. in the American courts, 441, 442. English statute, 443. not amendable in English practice, 442, 443. mode of trying truth of return, 443, 444. INDEX. 807 MANDAMUS,— coniinuerf. costs, 444. mode of service, 444, 445. eflfects specific performance, 445. to enforce duty of corporation, 445, 446-452. to compel company to complete road, 446-453. when this the proper remedy, 453. ' where act is imperative upon company to build road, 458, 454. in such case injunction less appropriate, 454. to enforce public duties of corporations, 455. facts may be tried by jury, 455, 456. cannot be substituted for certiorari, 456. requiring commissioner to allow costs, 456. to assess compensation for land, 456. to enforce specific duty, and no other remedy, 456. never issued to control the exercise of discretion, 457. or to try the right to an office, 457. proper excuses, or returns to the alternative writ, 457-459. that powers of company had expired, at date of writ, 457, 458. want of funds, 457. but not that the road is unnecessary, or would not be remunerative, 458. part of return may be quashed, 458, 459. counsel for petitioner entitled to go forward, 459. cannot impeach the statute, 459. peremptory writ cannot issue, till whole case determined, 459. return will not be quashed summarily, 459. no excuse allowed for not complying with peremptory writ, 459. alternative writ requires too much, is bad for all, 460. enforcing payment of money awarded against railways, 460-46/. where debt lies, cannot have mandamus, 461. lies to compel payment of compensation for land, 461. not allowed in matters of equity jurisdiction, 461, 462. contracts not under seal, enforced by, 462. sometimes denied in matters of private concern, 462-465. to compel company to divide profits, 462, 463. . production of corporation books, 463. performance of statute obligation, 463. but not to undo, what is done, 463. to compel production of register of shares, 464. or the registry of the owner's name, 464. for restoring persons to corporate office, 464, 465. lost by acquiescence. Proceedings must be bona fide, 466. allowed where indictment lies, 467. to compel company not to take up rails, 467. will not lie, where there is other adequate remedy, 467. judgment on, revisable in error, 468. MARBIED WOMAN, suits where the injured party is, 341. 808 INDEX. MASTER AND SERVANT, (See Agent, Contbactok, and Servants.) when liable for injury, by fellow-servant, 386-390. MATERIALS, company liable for those taken by contractor, 120, 121. right to take, without the limits of survey questioned, 121. MEASUREMENT, of wall, to be built by cubic yard, 280. MECHANICS' LIEN, (See Lien.) MEETINGS, specral must be called according to charter, 16. but if all attend, it is sufficient, 16. special, must notify all important business, 16. general, need not notify business, 16. may be both general and special, 16. adjourned, still the same, 16. courts will presume they were held, at place required, 16. requisite notice, 19, 20, and notes. any number who attend, after legal notice to all, is a quorum, 20, 21. MINERALS, (See Eminent Domain. Equity.) MORTGAGE, of franchise, 36, 572-591. _ of shares, 63. of things not in esse, 591. MORTGAGEE, (See Railway Investments.) of shares in railway. liable for debts of company, as owner, 57, 58, 59. notice requisite to perfect title, 65. rights and remedies, 564-596. MORTGAGT)R, of shares. may proceed in equity to obtain retransfer, 57, n.' MUNICIPALITIES, (See Taxation.) right of to subscribe for stock, in railway, 533-536. bonds issued by, 596. power to make railway grants, 616-618. N. NAVIGABLE WATERS, right to conslrupt railway across. legislature may grant right, 165, 167. riparian proprietor owns only to water, 166. his rights in the water subservient to public right, 166. state legislative grant paramount, 167. state interest in flats, where tide ebbs and flows, 167. rights of adjoining owners, 167. railway grant, to place of shipping, 168. large rivers held navigable water here, 168, 169. INDEX. 809 NAVIGABLE W ATERS,— continued. riparian owner may recover damage by being out off from wharves, or the navigation, 169. obstruction of, indictable, 520. NEGLIGENCE, in construction of road. by diverting watercourses, 167. or erecting their works, 1 74. the proper remedy for negligence in construction, 179. which exposes to inevitEiole accident, makes carrier liable, 234. by carrier. when carrier not liable for, if gross, 297-300. by passenger carrier. of those who carry party affects him, 332. ordinarily a question for the jury, 333. what is evidence of in regard to fires from company's engines, 357, 358. how proved, 365, 398. in regard to domestic animals, 361-368. NEW SHARES, when party entitled to claim, 56. NEW TRIALS, allowed for excessive damages, 346. NOTICE, (See Directors.) of claim against common carrier, 235. effect of in limiting carrier's responsibility, 265, 272-274, 276-280. assented to by consignor, amounts to special contract, 265, 266. carrier must show, that consignor acquiesced in, 266. decisions, in New York, 267, 268. American cases generally, 268. exceptions, 269. ' will not excuse negligence, 269, 272, 276-280. result of all the cases, 269. written, will not affect one who cannot read, 270. carrier must see, that notice is carried home to consignor, 270, 271. former dealings, with same party, presumptive evidence, 271, 272. as to ordinary or extraordinary responsibility, 280, 281. of want of authority, in agents, 292, 293. NUISANCE, (See Indictment. Equity.) infringement of corporate rights in nature of, 502, 503. how far railways may become, 519, 520. ♦ 0. ORGANIZATION, when it takes effect, 8. want- of must be pleaded, 9. cannot be raised collaterally, 9. records of company evidence of, 9. 68* 810 INDEX. ORGANIZATION,— con«mue(i. chancery jurisdiction in regard to, 9, u. effect of colorable subscriptions, 9, n. ORIGIN, of railways in England, 1. in America, 3. of use of steam-power on railways, 3. OVERISSUE OF SHARES, (See Railway Investments.) effect of upon company and holder, 569-571. OWNER, * of shares, company may regard the register as evidence, 66, 67. equity will protect the rights of equitable, 67. P. PACKAGE, where not safe, 262. disguise used, 299. carrier not liable for loss, through defect of, 303. PARENT AND CHILD, father cannot sue for loss of service of child killed, 339. (But see Passenger Carriers.) nor can any recovery be had for death of an insane child, where the neg- lect of the father produced the result, 340. PAROL EVIDENCE, (See Custom.) how far admissible to explain writing, 52, 53. PARTIES, to bill in equity to vacate sale of shares, procured by false representations of the directors, 60, 61. , in contesting railway securities, 573. where securities fraudulently transferred to several parties, 570. PASSENGER, (See By-Laws.) may be excluded from cars, for disorderly behavior, 32. arrest of by company's servants, 33. PASSENGER CARRIERS, right to expel passenger for misconduct, 33, n. degree of care required, 323-329. are not insurers, as to passengers, 327, 328. liability, where both parties are in fault, 329-334. company not liable, unless in fault, 329, 330. not liable, where plaintiff's fault contributes to injury, 330. are liable, for wilful misconduct, 330, 331. • and for gross neglect, 3?1. being in baggage car, will not preclude recovery, 331, 332. or out of place, in the train, 332. party affected, by negligence of those who carry him, 332. not excused if they might have avoided the injury, 333. INDEX. 811 PASSENGER CABBJEKS,— continued. party, to recover, must be lawfully in place, where injured, 333. passengers bound to conform to regulations of company, 333, 334. injuries by leaping from the carriages, 334-336. party may recover, when he had reasonable cause to leap from carriage, and was injured, 334, 335. but not, where his own misconduct exposes him, 334-336. injuries producing death, 336-341. remedy exclusively statutory, 336. if deceased in fault, no recovery, 337. damages, 337-339. no recovery where caused by neglect of fellow-servant, 340. or defect of machinery, 341. where the injured party is a married woman, 341. liability where trains do not arrive in time, 342, 343. may excuse themselves by special notice, 342. liable for damages, by discontinuance of trains, 342. but not for injury, on stage line, advertised in connection with railway, 343. what will excuse refusal to carry, 344, 345.. rule of damages for injuries to passengers, 345-348. cannot drive within the precincts of railway station, 348. duty resulting from sale of through passenger tickets, 349, 350. not the same as where goods, or baggage, are ticketed through, 349. is a sale of tickets, for the separate roads, 349. first company, agents of the others, 350. where business of whole line is consolidated, 350. not a case of partnership, 350. declarations of party, 351. _ competent to show state of health, 350. not to show how injury occurred, 350. passengers wrongfully expelled from cars, 351, 352. company not liable for exemplary damages, 351. if party sustain special damage, company liable, 352. • are liable as trespassers, for not delivering baggage, 352. paying money into court, in actions against, 352, 353. on general count, 352. in count, on special contract, 353. liability where one company uses the track of another, 353, 354. not liable for torts committed by strangers, 354. liable to passengers from other roads, 354. duty of lessors and lessees of railways, to passengers, 424-431. company bound to keep its own road safe, 424-428. bound to fence road for protection of passengers, 372. cases which hold that passengers can only sue road carrying them, 429, 430. bound to make landing-places safe, 430. this duty does not extend to^assengers, on freight trains, 430. 812 INDEX. PASSENGER CAB.BI'E^S,— continued. all owners of property bound to keep it, so as not to injure others, 430. same rule extends to railways, where parties rightfully upon them, 430, 431. (See Appendix C. 692-697.) PAYING MONEY INTO COURT, in actions against carriers of passengers, 352, 353. PAYMENT, in contracts for construction. in depreciated orders, if accepted, binding, 208, 209. in stock of company, 206, n. 1, 227-229. time and mode of, 230. no time specified, to be when work done, 230. usage will control, 230. * PENALTY, in contracts for construction. regarded, as liquidated damages, 200, 201. not incurred, unless upon strictest construction, 201. cannot be set aside, in equity, unless for fraud, 216. in railway mortgages will be relieved against, 591. as where it is agreed principal shall fall due, upon neglect to pay interest, 591. PIRACY, if carrier lose goods by. it is a loss by vis major, as by public enemy, 233. PLANS AND SURVEYS, only binding, in the construction of charter, when referred to, and for the purpose referred to, 189. determine when company niay take land, 191. POLICE OF RAILWAYS, (See Railway Commissioners.) regulation of, by municipal authority. may prohibit use of steam-power in streets, 615, 616. without aid from legislature, 616. during construction of railways, 616. right of municipalities, to make railway grants, 616-618. POWERS, (See Equity.) application to legislature for enlargement of, 496,497. PRACTICE, (See Procedure.) in proceedings to estimate land damages. right of appeal, 146. notice, 146. summons, 146. finding upon separate items, 146. where diflerent mode of proceeding is prescribed, by general law, subse- quent to charter, 146, 679. PREFERRED STOCK, (See Railway Investments.) right to issue, 593. PRELIMINARY ASSOCIATIONS, (See Promoters.) INDEX. 813 PRELIMINARY SURVEYS, may be made, without compensation, 119. company not trespassers, 1 20. PROCEDURE, (See Practice.) in estimating compensation for lands, 133-146, 679. legislature may prescribe, 139. notice required, 140. exceptions of form waived, 140. unless made in time, and placed upon record, 140. proper parties, 140. title may be inquired into, 141. parties joining must have joint interest, 141. jury may report facts specially, 141. land must be described in verdict, 141. special finding, upon distinct claims, 142. different interests, 142. where charter provides one mode, and subsequent general statute another, 146, 147, 679. PROJECTORS, (See Pkomoteks.) PROMOTERS, mode of instituting railway projects in England, 631-633. company bound by contracts of promoters, according to charter, 631, 632. provisional directors issue scrip, 632. if vendor of scrip, sell to another, is liable for price obtained, 632. holders of scrip entitled to be registered as shareholders, 632, 633. general acts of incorporation in some states, 633. liable for the expenses incurred, 633-635. contracts of promoters not binding upon company, 634, 635. liability of subscribers inter sese, 635-638. ^ extent of liability measured by deed of association, 635, 636. deed of association not binding, until terms complied with, 636. power of directors limited by deed, 636. liable for expense incurred by their consent, on their credit, 636, 637. not liable as partners, 637. contracts of, adopted by the company, 638. how this may be done, 638, 639. contracts with the opposers of a railway bill, 639-646. what contracts of this kind enforced against company, 639-647. how far courts of equity enforce such contracts, 647-659. when railway is abandoned, 648-657. practice of courts of equity, in decreeing specific performance of such contracts, 658-662. courts of equity sometimes restrain the party, from petition, or opposition, in parliament, 662, 663. contracts to withdraw opposition, and keep secret, illegal, 663-666. not enforced, unless under peculiar circumstances, 663. more properly secured, by provision inserted iu charter, 664. this the only mode of enforcing such contract here, 665. English cases receding from former ground, 666. 814 INDEX. PURCHASE, (See License.) of land for railway, 104. of persons incapacitated, 104. price to take place of land, 105. right against land-owners, and other railways, limited by charter, 105. company bound to same duty, as where land is condemned, 105. license to build railway, not limited by charter, 105. company bound by conditions in deed to them, 106. parol license good till revoked, 106. Q. QUO WARRANTO, information in the nature of, 472, 473. general incidents of this remedy, 472. issued by highest courts of ordinary civil jurisdiction, 472. in English practice this remedy limited to public corporations, 473. in American courts extends to railways, banks, &c. 473. will try the right, but not restore party rightfully entitled, 473. R. RAILWAYS, private, in England, originally ; questions in regard to, 1. public grants in America, 3. some exceptions in this' country, 3. private corporations, 5. public, where stock is owned by state, 5. in such case, under legislative control, 5. public trust, 14. ' company may be restrained from taking up rails, and required to maintain in condition fit for public use, 3. right to cross, gives no right to take land, 125. conflicting right to take lands, 125, 126, 164, 165. common carriers, 234. as such, liable for goods, and baggage, 235, 236. RAILWAY COMMISSIONERS, supervision of railway legislation, 610, 611. supervision of railways. opening railways in England, 611, 612. establish connections between different lines, 612. courts of equity will not interfere with decisions of, 612, 613. English courts have concurrent jurisdiction sometimes, with Railway Com- missioner, 613. returns to be made to. traffic and accidents, 613. control of third class and mail trains, 613. may exteiid time for completing road, 613. * ■ INDEX. 815 RAILWAY CROSSINGS, (See Torts.) on a level always dangerous, 393. company not excused by use of required signals, 893. party cannot recover if his own act contribute to injury, 394. but if precautions omitted, not liable, unless, &c. 394. RAILWAY INVESTMENTS, extent of, in Great Britain, 5 and n. productiveness in Great Britain and France, 5. power of the company to do acts affecting the value of their slock and bonds. Overissue of stock. English statute requires subscriptions before incorporation, 564. speculations to raise the price of stock, 564. issuing shares, at different prices, fraudulent, 564-568. mode of issuing bonds and mortgages objectionable, 564-568. difficulty of legislative restrictions not invincible, 568. something might be accomplished, 568. losses fall severely upon small investments, 568, 569. overissue of shares, 569. case before Superior Court of New York, 569. same before the Court of Appeals, 569, 570. duty of purchasers to make reasonable inquiry, 570, 571. right of canal company to mortgage tolls, 571. rights and remedies of bondholders and mortgagees. tolls only mortgaged under English statute, ejectment will not lie, 572. if successive liens created will lie, 572, 573. ^ English statutes allow no covenant to refund the money borrowed, 573. but where no restriction, company bound by covenant, 573. right of receiver can only be contested, by leave of court, 573. all standing in same right necessary parties, 573. priority of right how determinable, 574. lien created by charter, subject to contractor's lien, 574. some cases hold franchise may be mortgaged, without consent of legisla- ture, 574, 575. power to buy and sell real estate, implies power to mortgage, 575. receiving money estops company from denying validity of mortgage, 575. company cannot convey franchise of corporate action, 575-577. right to mortgage subsequent acquisitions, 577-591. general power to execute mortgages, 577-591. form of remedy, 577-591. rolling stock and furniture, passes by mortgage, 590, 591. i * this is an accessary, if not a fixture, 590, 591. what defences allowed the company, as to borrowed capital. if transaction illegal or ultra vires, no estoppel, 592. may contract with reference to future statute, 592, 593. cannot allege their own fraud in defence, 593. right to issue preferred stock, Sfc. company may issue preferred stock, as means of borrowing money, 593. loan may be converted into capital, 593. 816 INDEX. RAILWAY mYESTMESTS,— continued, investing trust funds in railway securities. general duty of trustees, as to investments, 594. railway securities too uncertain, 594. illustration of the subject, 594. holder of railway bonds may enforce them, 595. so too of the coupons for interest, 595. and bonds issued by cities and towns, 596. (See Appendix C. 692-697.) READINESS TO PERFORM, contracts for sale of shares. vendor must be ready to convey, 5(5. vendee, to pay price, 51 RECEIVER, when to be appointed, 591, 609, n. 2. " RECORDS, of company, prima facie evidence o/" organization, 9. of the performance of conditions by the company, 79. of directors' meetings. evidence, 21,407. REGISTER, of company. evidence of membership, 68. REl^EDY, by statute, for compensation for land. exclusive of all others, 157, 173, 174. company liable in trespass, for taking land, where they, do not proceed under statute, 1 74. and in case, if guilty of negligence, in the course of construction, &c. 174. REPORT, (See Commissioners.) RESERVATION, in land granted to railways. of minerals, 157, 158. of right to build private railway across public railway, 687. RESPONDEAT SUPERIOR, (See Agents.) RETURNS, (See Railway Commissioners.) RIPARIAN OWNER, (See Navigable Waters.) owns only to water, 166. may recover damage for obstruction by railway, 169. RIVAL INTEREST, not allowed to maintain suit, 15. ROLLING STOCK, accessary to the road, 590, 591. as such, passes by the mortgage of the road as real estate, 590, 591. such mortgage need not be recorded as a chattel mortgage, 590, 591. may be levied upon by creditors, where held in excess, 591. INDEX. 817 RULES, of stoch-excTiange. not binding upon parties to former sales, 50. S. SALE, of shares. * of spurious shares bondfde, vendor liable to refund price, 49, 50. no implied warranty, to entitle vendor to further damages, 50. of road. is no abandonment, so as to cause reverter, 106. SEAL, how far contracts of corporation must be made, 423. SERVANTS, (See Passenger. Agents.) company liable for the act of, 33. may bind company in regard to parcels, 237, 238. primarily hable, for use of defective machinery, 341. injuries to, hy neglect of fell$w-servaiits and use of machinery, 386-390. in general, company not liable, 386, 387. unless improper servants, or machinery, are employe*, 387. not liable for deficiency of help, or not fencing road, 387. distinction attempted between servants of different grades, 387, 388. some states, and countries, take different view of law, 388-390. case of slaves, 388. ship-owners do not impliedly undertake, that ship is sea-worthy, 389, 390. rule does not apply, where servant has no connection with work, 390. SERVICE, of writ of mandamus, 444, 445. SHARES, ■ (See Stock.) in railway. personal estate, 39, 40. k agreement to allot, will not be decreed specifically, 55, 56. held in trust. (See Directors.) go to new trustees, in cases of death, insolvency, &c. 65. forfeiture of shares, relief in equity, 102, 103. obtail^d by fraud. equity will accord to those entitled, 70, n. SHAREHOLDERS, general rights enumerated, 26. original subscriber may transfer shares, 41-44. liable to action for diverting funds of company, 76. and to bill in equity, 76. liability to creditors, 603, 608. SIGNALS, (See Railway Crossing.) SLAVES, liability of company for injuries to, 388, 394, 395. 69 818 ' INDEX. SPECIFICATION OF CLAIM, party may recover beyond, where evidence justifying it, is received, with- out objection, 206, 2Q7., SPECIFIC PERFORMANCE, (See Equity.) for sale of shares. will be decreed, in regard to contract for sale of shares, 54, 55. of contract to purchase lands iy company. will be decreed against the vendee, 54, 55. will never be decreed where not in the power of party, 55, 56. for sale of lands. of contracts before, and after, date of charter, 107. of contracts, where terms are left indefinite, 107. where umpire is to fix price, 107, 108. where mandamus also lies, 108. but not unless signed by company, 108. or where the terms are left uncertain, 108. wl-.ere the company had an election and make it, 108, 109. but not where the parties understood the contract difierently, 109. order, in regard to construction of highways, 109, 110. effected by niandamus, 445. of contracts with the promoters of railway projects, 647-662. SPDRIOUS SHARES, sale of. vendor acting &ona _;?(?«, pnly bound to refund money received, 49, 50. no implied warranty of title, in such ease, 50. STATE, patronage in maintaining railways, 5. owning the stock in a corporation. cannol divert the funds of compaijy from creditors, 75, 76. statute authorizing it inva,lid, 75, 76. STATIONS, persons having no business to transact there, may be excluded, 27, 28. regulations tnay be made informally, in regard to the conduct of others, 28. superintendent may expel for violation of rules, 28. probable cause will justify, 28. in civil suits, must prove violation of rules, 28, 29. principles of the rule stated, in note, 29. STATUTE, • whire it imposes duly. action will lie to enforce, 462. STEAMBOATS, railway company cannot purchase, 91, 92. STOCK, (See Capital Stock. Railway Investments.) in railways, and similar companies, formerly, treated as real estate, 39,*40. STOCKHOLDERS, (See Shareholders.) STOCKJOBBING, strictly applies to speculations in public stocks, 46. INDEX. 819 STOCKJOBBING,— conftnuerf. buying and selling railway shares, where difference only is expected to be paid, 46. STOPPAGE IN TRANSITU, general requisites, to right, defined, 303-307. carrier liable, if he do not surrender goods, 304. may detain, to ascertain the right, 304. right exists, as long as goods remain, under control of carrier, 304, 305. uncertainty, in regard to intermediate consignees, 305. right determines, when goods reach consignee's agent, 305, 306. carrier compellable to solve question at his peril, 306. . conflicting rights may be determined, by action, 306, 307. or carrier may deliver to rightful claimant, 307. STREAMS, obstruction of by company's works. company cannot divert, without compensation, 1 70. liable for imperfect works, connected with, 170. or if they adopt works, built by others, 179, 180. STREETS, right to use in constructing railway, 126, 127. use of railway in, not nuisance, 519. grant from municipalities, 519, 520, 616-618. use of steam-power in, may be prohibited, 615, 616. owner of fee entitled to compensation, 160. (See Highways.) SUBCONTRACTORS, (See Employees.) SUBSCRIBERS, for stock in company not carried into operation. may be made liable for expense incurred, 77. responsible, when to be regarded, 80. SUBSCRIPTION, for stock.- where company not formed according to general laws, 7. when binding, how released, 70, n. to definite stock, promise to pay implied, 71-74, and notes. alitor of stock indefinite, ib. must be in conformity with charter, 82. but company may waive condition, in theiT favor, 37, 38. colorable, valid, 69. directors compellable to register, 69, 70. cannot be varied, by oral evidence, 70. to indefinite stock does not bind party to pay assessments, 70, 71. aliter, if it be a definite stock, 71-73. what amounts to, 81, 82. upon condition, before, and after performed, 80, 88. payable otherwise than in money, not binding, 89, 99. before date of charter, 9 7. at reduced prices, not binding, 99, 100. " contracts to release not valid, 99, 100. obtained by fraud, relief in equity, 100-102. 820 INDEX. SURVEYS, may enter upon land for making, without compensation, 119. company not trespassers, 120. location of, must be shown by company, 121. T. TAX, illegal, directors may be compelled to resist, 495. TAXATION, is an unrestrained power, 111, n. assessments upon works, and upon shares. net profits in each parish, 523. increased by traffic, diminished by repairs, 624. depreciation of road by use, 524. mode of estimating yearly profits, 524, 525. rule in several states, 525-527. , exemptions from, by legislative act, 526, 527. liability to taxation upon shares, same as for other personal property, 527, 528. not liable to, under general laws, 528. necessary erections, not taxable, separate from road, 528. those which are for convenience and profit are, 529. legislative exemption from. general nature of such exemption, 529. includes stock, 530. qualifications of the rule, 530, 531. exemption of stock, includes property of company, 531. with exceptions, 531. consolidation of companies, where some exempt and others not, 531. construction of qualified exemption, 531. general exemptions held invalid, 531, 532. company cannot be taxed both directly and indirectly, 532. qualified exemption valid, and inviolable, 532, 533. * such exemptions held temporary, in some cases, 533. right of towns, cities, a'nd counties, to subscribe for ^railway stock. such subscriptions valid, if authorized by legislature, 533, 534. subscriptions to such works, in other states, &o. 535. lateral railway acts in Pennsylvania, 535. dissent from the legality of such subscription, 535, 586. strict construction of these acts, 636. cases reviewed, 633-535. legislature may legalize former subscription by city, 535 TELEGRAPH COMPANIES, in their construction. right to pass directly across, does not include boring under railway, 197. definition of terms, across and under, 198. ' « * INDEX. 821 TENANT, (See Estates.) entitled to compensation for interest in land, 180-182. TICKETS. (See By-Laws, Indictment, Common Carriers, Passenger Carriers.) for different roads, with coupons attached, 349, 360. TIME, mode of reckoning, 627. TITLE, of land. when vests in company, 118, 119. company-have only right of way, 124, 126, 127. can take nothing away, but for construction, 124. eflfect of deed in fee, 124, 125. further assurance may be sought, 128. cannot be impeached, 129. cannot be inquired into under English statute, 683, 684. in the American states, 684. TOLLS, excessive tolls, fare, and freight, 355, 356. where taken may be recovered back, 355. right to use road, on payment of, 356. fare and freight, limited, 356. guaranty of definite profit is lawful, 356. restriction of freight, extends to whole line, 356. lessees not bound to carry for same freight, which they pay as toll, 356. mode of declaring for, 356. requisite proof, and mode of establishing, 356. TORTS, (See Wrongdoer.) company, as carriers of passengers, not liable for, if committed by stran- gers, 354. liability of company for, S93-39S. railway crossing upon level, 393. company not excused, by use of required signals, 393, 394. party in fault cannot recover, 394. unless the company might have avoided the injury, 394. not liable, for omitting signals, unless that produce injury, 394. not liable for damage to cattle trespassing, 394-396. or to slaves asleep upon track, 394, 395. general duty of company, towards those exercising legal rights, 395, 396. action accrues from injury, 396. when injury wanton, jury may give exemplary damages, 396. TOWNS, (See Municipalities.) TRAFFIC, (See Arrangements.) contracts between different companies regulating, 436. what renders contract perpetual, 436. includes transportation of goods and passengers, by EngUsh statutes, 614. TRAINS, (See Passenger Carriers. Experts.) liability where they do not arrive in time, 342, 343. KF 2289 R31 1858 Author Vol. Redfield, Isaac Fletcher. -Yitie A practi c al treatise ^—- upon the law of railways.