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 THE 
 
 LAW OF RAILWAYS: 
 
 EMBRAOIKO 
 
 CORPORATIONS, EMINENT DOMAIN, CONTRACTS, 
 
 COMMON CARRIERS OF GOODS AND PASSENGERS, 
 
 TELEGRAPH COMPANIES, CONSTITUTIONAL 
 
 LAW, INVESTMENTS, &c., &c 
 
 BY 
 
 '- / r^ / 
 
 ISAAC F. REDFIELD, LL.D., 
 
 CHIEF JCSTICB OF VERMONT. 
 
 FOURTH EDITION, GREATLY ENLARGED. 
 
 VOL. I. 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 18G9.
 
 Entered according to Act of Congress, in the year 1867, by 
 
 Isaac F. Redfield, 
 
 In tlie Clerk's Office of the District Court of the District of Vermont. 
 
 Entered according to Act of Congress, in the year 1858, by 
 
 Isaac F. Redfield, 
 
 In the Clerk's Office of the District Court of the District of Vermont. 
 
 Entered according to Act of Congress, in the year 1867, by 
 
 Isaac F. Redfield, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts. 
 
 Entered according to Act of Congress, in the year 1869, by 
 
 Isaac F. Redfield, 
 
 In the Clerk's Office of the District Court of the District of Massachusetts. 
 
 CAMBRIDGE: 
 FOKSS OF JOHN WILSON AND BON.
 
 ^ 
 
 ri 
 
 
 PREFACE TO THE FOURTH EDITION. 
 
 In presenting this edition of our first book to the pro- 
 fession, we have to crave the indulgence of an elder 
 brother, in alluding briefly to the origin and history of the 
 work. The book was undertaken at a period when we had it 
 in our power to command considerable portions of time, in 
 every year, for uninterrupted study. The work was there- 
 fore prepared ^vith great labor and care ; and so carefully 
 printed as to attract special attention abroad on that account. 
 It was everywhere received in a spirit, and with a degree of 
 cordial commendation, both at home and abroad, which the 
 author had scarcely dared to expect. But it was gratifying 
 to feel that his eff"orts to give the entire law upon every 
 topic he touched, as fully as if a special brief had been pre- 
 pared upon the particular points, and, as nearly, as might 
 be allowable, in the form of successive judicial opinions 
 upon the several subjects, was duly appreciated by the pro- 
 fession, or certainly by those who had leisure and oppor- 
 tunity to examine the work carefully. 
 
 But for some reasons the first two editions did not obtain 
 so extensive a sale as to become at all remunerative for the 
 very large amount of labor bestowed. This led us to sus-
 
 IV PREFACE TO THE FOURTH EDITION. 
 
 pect that the baldness of our title, " The Law of Railways," 
 might have led the mass of the profession, who were not 
 much engaged in railway litigation, to suppose that our 
 book treated of no other topics. We were conviriced that 
 the book was not generally understood to comprehend com- 
 pact treatises upon Corporations ; Eminent Domain ; Con- 
 tracts FOR Construction ; Mandamus ; Certiorari ; Equi- 
 table Control of Public Works ; Taxation ; Indictments 
 against Corporations ; Quo Warranto ; Constitutional 
 Questions affecting Legislative Grants ; Investments, 
 Stocks, Mortgages, Police, Amalgamation, &c., as well as 
 all other matters in the law, more exclusively affecting rail- 
 ways. 
 
 When the third edition was called for, we resolved to 
 make the treatment of the above topics, and all others in the 
 book, as complete as possible ; and to that end had expend- 
 ed a large amount of labor ; but before the work was more 
 than half through the press, we received an unexpected 
 public appointment abroad, which compelled us to push the 
 first half of the second volume through the press, in a few 
 days, and to leave the remaining materials in very judicious 
 hands, to be used as far as needful in completing the volume 
 in proper size ; and which we are happy to say was exceed- 
 ingly well done. But the difficulty in knowing precisely 
 what to omit, in our absence, led to the natural result of 
 using the whole ; which swelled the second volume to some- 
 what unwieldy proportions ; and presented some matters, 
 which we had originally prepared for other occasions, in a 
 shape not fully assimilated to the present work. 
 
 By enlarging in the present edition the scope of the work 
 on CojDioN Carriers of Goods and Passengers, and Tele-
 
 PREFACE TO THE FOURTH EDITION. Y 
 
 GRAPHS, SO as to embrace the entire range of those topics, 
 and form complete treatises upon those important subjects, 
 and nearly so upon all the subjects treated ; we are now 
 enabled to omit all matter contained in the third edition, not 
 enthely in harmony with the plan of the work. This mat- 
 ter will be .published soon, in a separate volume of leading 
 cases and opinions upon the Law of Railways, with extensive 
 notes, as a supplement to the main work, but sold separately 
 to such as may desire it, whether with or without the main 
 work. 
 
 As this edition is but the carrying out of our original 
 purpose in regard to the thud edition, by perfecting the 
 treatment of each topic, so as to embrace complete treatises 
 upon each, and extending the title so as to give some hint 
 of what the book contains ; it may be proper to add, that 
 the third edition met with a very extended and rapid sale, 
 80 as to prove more remunerative to the author in two 
 years than in the ten preceding years. And as the work 
 seems now to have obtained the very general confidence of 
 the profession at home, and as the author has received many 
 vei7 flattering testimonials in regard to the last edition, 
 while abroad, he trusts no apology will be required for 
 quoting a brief extiact from that of the Lord Chief Justice 
 of England, especially as it breathes so much of that cordial 
 fraternal spirit towards his American brothers, engaged in 
 the same great field of labor, and which it will be the pleas- 
 ure of every noble hearted and cultivated patriot, in this 
 country, to reciprocate. 
 
 His Lordship says, in regard to the AVills and Railways : 
 " Having now read the books through, I beg, in offering 
 you my most sincere thanks for your gift, to add the expres-
 
 VI PREFACE TO THE FOURTH EDITION. 
 
 sion of my admiration for the great learning, research, and 
 power of reasoning, displayed in these valuable treatises. 
 They must, I am convinced, prove standard works on the 
 subjects of which they treat, and must prove a very valuable 
 addition to the juridical literature, which, I am happy to 
 think, is common to our two countries. America may in- 
 deed be proud of her jurists, who have done so much for 
 the promotion of legal science." 
 
 We cannot but feel some well grounded trust, that the 
 present edition will be found useful to the general practi- 
 tioner, who desires to have, always at hand, in compact 
 form, the synopsis of the law upon the many important 
 topics discussed in these two volumes. And to that end we 
 have done all in our power to make the book as complete 
 as possible. There will, no doubt, be found some errors 
 and defects, since it is not possible to exclude all errors 
 from so extended and complicated a work, or to have it 
 contain all that every one would most desire. If it shall 
 prove a reasonably successful accomplishment of the author's 
 purpose, it will be a sufficient reward for a large amount 
 of labor, through many years, which no faithful book-maker, 
 in the profession of the law, can reasonably expect to have 
 
 fully compensated in any other mode. 
 
 I. F. R. 
 Boston, Sept. 1, 1869.
 
 PREFACE. 
 
 Tms work was undei*taken with the purpose of supplying, 
 what seemed to the writer a want, if not a necessity, 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 treatise had attempted 
 this. And the attempt has confirmed the expectation, that 
 the accomplishment of such an undertaking would be attend- 
 ed 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 benefit except to the student. 
 This, too, will be found in the approved treatises ah'cady 
 published upon these several subjects. On the other hand, 
 a digest of the cases upon any plan, however comprehensive 
 or philosophical might be the analysis, would appear an 
 unsatisfactoi7 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 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.
 
 VIU PREFACE. 
 
 The plan of the work is mainly new, and the effort has 
 been to render it natural, simple, and comprehensive. The 
 manner of arranging the heads to the several subdivisions 
 has been adopted chiefly with a view to enable the profes- 
 sion to find at once whatever the work contains upon any 
 topic or question. 
 
 How far the design of the author has been accomplished, 
 he submits to the indulgent judgment of his professional 
 brethren who have hitherto shown him so much forbear- 
 ance. In justice to himself, perhaps it should be here men- 
 tioned, that the work has been prepared under some 
 disadvantages, from the constant pressure of ofiicial duties 
 which could not be requu-ed to accommodate themselves, in 
 any respect, to the demands of this subordinate labor. It 
 has thus happened, that, although a considerable time has 
 elapsed since the work was seriously taken in hand, it has 
 of necessity been done, to a great extent, at such intervals, 
 more or less extensive, as circumstances would allow the 
 writer to command, and always in haste. 
 
 If some mistakes should be discovered, therefore, and 
 some graver faults even, it is hoped that the profession will 
 bear with them ; with the assurance that, if the work should 
 be found of sufficient importance to require another edition, 
 they will be corrected ; and that, if no such demand should 
 be made, the work has probably received as much labor as 
 it deserves. 
 
 I. F. R. 
 Windsor, Vt., Nov. 20, 1857.
 
 ANALYSIS OF THE CONTENTS. 
 
 g^" The citations to other portions of the work are thus expressed, ^ — pi. n. — . and the 
 ^^ are placed in the inner marfrin of the paces, for convenience of reference. The 
 paging of the third edition is preserved in this edition at the bottom of the page. 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 FAOa 
 
 1, Origin of railways in England 1 
 
 2. First built upon one's own land, or by special license from the owner . 2 
 
 8. Questions in regard to private railways 2 
 
 4. Railways in America, public grants 3 
 
 6. Use of steam-power on railways 3 
 
 6. The franchise of a railway not necessarily corporate nor unassignable . 4 
 
 CHAPTER n. 
 
 PUBUC RAILWAYS AS CORPORATIONS. — PREUMINARY A880CL1TION8. 
 
 SECTION I. 
 MODB OF IK8TITUTIKO RAILWAY PROJECTS. 
 
 1. Subscribers' Associations in England 6 
 
 2. Subscribers bound by subsequent charter 6, 6 
 
 3. Issue and registry of scrip certificates 6 
 
 4. Origina' subscriber liable to unregistered purchaser 6 
 
 6. Holders of scrip entitled to registry 6, 7 
 
 " 6. Preliminary associations not common in this country 7 
 
 7. Petitioners for incorporation file plan and surveys 7 
 
 8. Present English statutes 7, 8 
 
 9. Preliminary associations may be registered 8 
 
 10. Not now held responsible as partners in England 8 
 
 SECTION IL 
 
 COHTRACT8 OV THB PROMOTERS HOT BIHDINO AT LAW VTOK THE COMPANY. 
 
 1. In this country promoters only bind themselves and their associates . 9, 10 
 
 2. Contracts of promoters not enforciblc by company 10, 11 
 
 3. But by consenting to a decree in equity scttmg up the contract, the 
 
 company will be held to have adopted it 11
 
 X ANALYSIS OP THE CONTENTS. 
 
 SECTION III. 
 
 SUBSCBIBBRB TO THE PRELIUINART jLSSOCIATIOK INTER SESB. 
 
 1. Liability for acts of directors limited by terms of subscription ... 11 
 
 2. Association not binding until preliminaries are complied with . , 11, 12 
 8. Contracts, how far controlled by oral representations of directors . . 12 
 
 4. Subscribers not excused by directors from paying calls 12 
 
 6. Not liable for expenses except by terms of agreement 12 
 
 6. Deeds of association generally make provision 13 
 
 7. One who obtains shares without executing the deed not bound to 
 
 contribute 13 
 
 n. 11. No relation of general partnership subsists between subscribers 13-15 
 
 SECTION IV. 
 
 CONTRACTS OF THE PROMOTERS ADOPTED BY THE COMPANY. 
 
 1. Liability may be transferred with assent of creditors 14-16 
 
 n. 3. Powers of provisional company to contract limited by statute . 15, 16 
 
 V. 
 
 HOW CONTRACTS OF THE PROMOTERS MAY BE aADOPTBD BY THE COMPANY. 
 
 Cannot assume the benefit without the burden 16 
 
 VI. 
 
 CONTRACTS BETWEEN THE PROMOTERS AND OPPOSER8 OF A BILL FOB THE 
 CHARTER OF A RAILWAY. 
 
 1. English cases numerous 17 
 
 2-5. Lord Eldon's opinion in the case of Vauxhall Bridge Co. . . . 17-19 
 
 VII. 
 
 CONTRACTS OF THE PROMOTERS ENFORCED IN EQUITY. 
 
 1-3. Case of Edwards v. Grand Junction Railway 19-22 
 
 VIII. 
 
 CONTRACTS 0^ THE PROMOTERS BINDING UPON THE COMPANY AT LAW. 
 
 1-3. Case of Howden v. Simpson 22-24 
 
 SECTION IX. 
 
 WHAT CONTRACTS BETWEEN THE PROMOTERS OF RAILWAYS AND OTHERS WILL BE 
 ENFORCED, EITHER IN LAW OR EQUITY, AGAINST THE CONTRACTING PARTIES 
 OR THE COMPANY. 
 
 1. Contract to take land of opposing party 24 
 
 2. Contract prejudicial to the public 26 
 
 SECTION X. 
 
 COURTS OF EQUITY WILL ENFORCE CONTRACTS WITH THE PROMOTERS. 
 
 1. 5ona _/?(Zc contract, not evading statute, valid . 25 
 
 n. 3. Statement of English cases .... 25-36
 
 ANALYSIS OP THE CONTENTS. XI 
 
 SECTION XI. 
 
 SUCH CONTRACTS ENFORCED WHERE THE RAILWAY IS ABAKDOXED. 
 
 1. Where a certain sum is to be paid to quiet opposition 26-32 
 
 2. Merely provisional contracts not always enforced 33-38 
 
 SECTION XII. 
 
 PRACTICE OF COCRTS OF EQUITY IN DECREEING SPECIFIC PERFORMANCE. 
 
 1. Mutual arrangements protected in chancery 38 
 
 2. But decisions are conflicting. In cases of doubtful right, plaintiff is 
 
 remitted to common-law remedies 38, 39 
 
 n. 2. Statement of cases 38-42 
 
 SECTION XIII. 
 
 SPECIFIC PERFORMANCE IN COURTS OF EQUITY. 
 
 Object of courts to compel good faith when a definite contract is made . 40-43 
 
 SECTION XIV. 
 
 COURTS OF EQUITY WILL RESTRAIN A PARTY FROM OPPOSITION OR PETITION IN 
 
 PARLIAMENT. 
 
 1. Such cases not common in practice 43, 44 
 
 2. Such cases are not readily recognized 44 
 
 • SECTION XV. 
 
 CONTRACTS TO WITHDRAW OPPOSITION TO RAILWAY PROJECTS AND TO KEEP THIS 
 SECRET, AGAINST SOUND POLICY, AND SEEM TO BE ILLEGAL. 
 
 1. Principle of foregoing decisions obscure 44,45 
 
 2. Not adopted in this country unless terms inserted in charter . . . 45, 46 
 
 3. Recent change of views in English courts 46 
 
 8-5. Statement of late case in which principle of Edwards v. Grand Junc- 
 tion Ilailway is doubted 46 
 
 6. Act of incorporation should not be varied by oral testimony ... 46, 47 
 
 7. Contracts to quiet opposition not favored in this country 47 
 
 n. 5. Recent English and American decisions 47, 48 
 
 8. Regarded as ultra vires 48, 49 
 
 9. May be enforced, if legislature not exposed to be misled 49 
 
 CHAPTER m. 
 
 RAILWAYS AS CORPORATIONS. 
 
 SECTION I. 
 ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 
 
 1. The existence of corporations dates very early 60 
 
 2. The different kinds of corporations, sole and aggregate .... 50,51 
 
 3. This work treats principally of aggregate joint-stock corporations . . 51 
 
 4. Corporations are either ecclesiastical or lay . . , 51 
 
 5. So they are divided into eleemosynary and civil corporations ... 52 
 
 6. Corporations are public or private 62
 
 Xll ANALYSIS OF THE CONTENTS. 
 
 7. Private corporations where stock is private property 62 
 
 8. Public corporations where stock is owned and management retained by 
 
 the State 52, 53 
 
 9. It does not affect the private character of a corporation that the State 
 
 or the United States own a portion of the stock 54, 56 
 
 SECTION II. ■ , 
 
 HOW CORPORATIONS ARE CREATED. 
 
 1. Corporations created by grant of the sovereignty. This may be proved 
 
 by implication or by presumption 55, 56 
 
 2. The sovereignty may establiiih corporations by general act, or by dele- 
 
 gation or procuration 56 
 
 3. Different forms of defining a corporation 56 
 
 4. The corporate action of corporations restricted to State creating them 56, 57 
 
 5. It may act by its directors and agents in other States 57, 58 
 
 n. 10. But cannot properly transfer its entire business to another place . 57 
 
 6. A college located at one place cannot establish a branch at another . 68 
 
 SECTION III. 
 
 THE CONSTITUTION OF CORPORATIONS. 
 
 1. Definitions of the different sense of the term constitution, as applied to 
 
 corporations 58, 59 
 
 2. How corporations may be composed or constituted 59 
 
 n. 1. The question illustrated more in detail 59 
 
 3. Distinction of legislative, electoral, and administrative assemblies not 
 
 essential 59 
 
 4. Corporation can only act by its name. Subject discussed . . . 59, 60 
 
 5. Any deviation from the name allowed, if the substance and sense be 
 
 preserved 60 
 
 6. Courts of equity will not restrain corporations from applying for 
 
 enlarged powers 60, 61 
 
 7. Change of constitution. Effect of change of name 61 
 
 8. Courts of equity will enjoin a new corporation from assuming the name 
 
 of one of established credit 61 
 
 9. Promissory note payable to A. B., treasurer of a corporation, may be 
 
 sued in the name of A. B. Promissory note for subscription waives 
 condition 62 
 
 10. Corporation may be estopped to deny its existence. How described . 62 
 
 11. How the existence and non-existence of corporations may be proved . 62 
 
 12. Party to written contract, payable to corporation, cannot deny cor- 
 
 porate existence 62, 63 
 
 13. Proof of corporation in fact sufl&cient in all cases 63 
 
 CHAPTER IV. 
 
 PROCEEDINGS UNDER THE CHARTER. 
 
 SECTION I. 
 
 ORGANIZATION OF THE COMPANY. 
 
 1. Conditions precedent must be performed 64 
 
 2. Stock must all be subscribed, ordinarily 65 
 
 3. Charter, location of road, condition precedent 65 
 
 4. Colorable subscriptions binding at law 65, 66
 
 ANALYSIS OP THE CONTENTS. Xlll 
 
 6. Conditions subsequent, how enforced 66 
 
 6. Stock distributed accordin;? to charter 66 
 
 7. Commissioners must all act 66, 67 
 
 8. Defect of organization must be pleaded specially 67 
 
 9. Question cannot be raised collaterally 67 
 
 10. Records of company, evidence 67, 68 
 
 11. Membership how maintained 68 
 
 12. By subscription and transfer of shares 69 
 
 13. Offers to take shares not enforced in equity, and may be withdrawn . 69 
 
 SECTION n. 
 
 ACCBFTANCB Or CHARTER, OR OF XODIFICATIOS OF IT. 
 
 1. New or altered charter must be formally accepted 69, 70 
 
 2. Subscription for stock sometimes sufficient 70 
 
 8. Inoperative unless done as required 70 
 
 4. Assent to beneficial grant presumed 70 
 
 5. Matter of presumption ana inference 70 
 
 6. Organization or acceptance of charter may be shown by parol ... 70 
 
 7. Corporators assenting are bound 70, 71 
 
 8. Charter subject to recall until accepted 71 
 
 SECTION ni. 
 
 ORDINARY POWERS. — CONTROL OF MAJORITY. 
 
 1. Ordinary franchise of railways 71, 72 
 
 2, 3. Majority control, unless restrained 72 
 
 4. Cannot change organic law 72, 73 
 
 5. Except in the prescribed mode 73 
 
 6. Cannot accept amended charter 73 
 
 7. Or dissolve corporation 73 
 
 8. May obtain enlarged powers 74 
 
 9. Courts of equity will not restrain the use of their funds for that purpose 74 
 
 10. But will, if to convert canal into railway 74 
 
 11. Right to interfere lost by acquiescence 74, 75 
 
 12. Acquiescence of one plaintiff, fatal 75 
 
 13. Railway a public trust 75, 76 
 
 14. Suit maintained by rival interest 76 
 
 15. Courts of equity will not restrain the majority from winding up unless 
 
 for fraud, &c 76 
 
 SECTION IV. 
 
 N MEETINGS OF COMPANY. 
 
 1. Meetings, special and general 77 
 
 2. Special, must be notified as required 77 
 
 8. Special and impoi-tant matters, named in notice 77, 78 
 
 4. Notice of general meetings need not name business 78 
 
 6. Adjourned meeting, still the same 78, 79 
 
 6. Company acts by meetings, by directors, by agents 79 
 
 7. Courts presume meetings held at proper place 79 
 
 8. Every stockholder may vote, but not by proxy 79 
 
 SECTION V. 
 
 ELECTION OF DIRECTORS. 
 
 1. Should be at general meeting, or upon special notice 80
 
 XIV ANALYSIS OP THE CONTENTS. 
 
 2. Shareholders may restrain their authority 80, 81 
 
 3. Company bound by act of directors, de facto 81 
 
 4. Act of officer de facto, binds third persons 81, 82 
 
 SECTION VI. 
 
 MEETINGS OF DIBECTORS. 
 
 1. All should be notified to attend 82 
 
 2. Adjourned meeting still the same 83 
 
 8. Board not required to be kept full 83 
 
 4. Usurpations tried by shareholders or courts 83 
 
 6. Usa^e will often excuse irregularities 83 
 
 6. Decisions of majority valid 83, 84 
 
 n. 8. Recoi-ds of proceedings, evidence 84 
 
 7. The action must be taken at a formal meeting 85 
 
 SECTION VIL 
 
 QT7ALIFICAT10X OF DIRECTORS. 
 
 1. One cannot be a contractor and director 85 
 
 2. May be their banker and director 85 
 
 3. May be director by virtue of stock mortgaged 85 
 
 4. Bankruptcy or absence will not vacate office 85, 86 
 
 6. Company compelled to fill vacancies in board 86 
 
 CHAPTER V. 
 
 PREROGATIVE FRANCHISES. 
 
 1. Control of internal communication in a state a prerogative franchise 87 
 
 2. Such a grant confers powers pertaining exclusively to sovereignty, as 
 
 taking toUs, and the right of eminent domain 87 
 
 CHAPTER VI. 
 
 BT-LAWS AXD STATUTES. 
 
 SECTION I. 
 POWER OF MAKING BT-LAWS OR STATUTES. 
 
 1. May control conduct of passengers 88 
 
 2. Must be reasonable and not against law 88, 89 
 
 3. Power may be implied, where not express 89 
 
 4. Not required to be in any particular Ibrm unless by special provision . 89 
 
 6. Model code of by-laws framed by board of trade in England ... 90 
 
 7. Company may demand higher fare if paid in cars 91 
 
 8. Public statutes control by-laws 91, 92 
 
 9. Cannot impose penalty 92 
 
 10. Cannot refuse to be responsible for baggage 92 
 
 11. Statutes operate upon members from promulgation; upon others, from 
 
 knowledge of the same 92 
 
 12. Regulations, for accommodation of passengers, must yield to the 
 
 right of others to be carried 92, 93
 
 ANALYSIS OP THE CONTENTS. XV 
 
 SECTION n. 
 
 BT-XJk.W8 BEOCLATIKO TBB USE OF STATIONS AXD GROUITDS. 
 
 1. May exclude persons without business 93, 94 
 
 2. May regulate the conduct of others 94 
 
 8. Superintendent may expel for violation of rules 94 
 
 4. Probable cause will justify 94 
 
 6. In civil suit must prove violation of rules 94-96 
 
 6. Regulation of stations and traffic by means of injunction. Equality 
 
 of charges 96 
 
 7. Through trains will not be required unless reasonably necessary for 
 
 public accommodation 97 
 
 8. Mode of enforcing search warrants in freight stations 97 
 
 9. The right of railway companies to exclude persons having no business 
 
 from their stations 97 
 
 SECTION IIL 
 
 BT-LA.W8 AS TO PASSENGEHS. 
 
 1. By-laws as statutes 98 
 
 2. As mere rules, or regulations 98, 99 
 
 3. Requiring larger fares for shorter distances 99 
 
 4. Requiring passengers to go through in same train 99-102 
 
 6. Arrest of passenger by company's servants 102 
 
 7. Company liable for act of servant 103 
 
 8. By-law must be published 103 
 
 9. Excluding merchandise from passenger trains 103, 104 
 
 10. Discrimination between fares paid in cars and at stations 104 
 
 11. Liability for excess of force 106 
 
 12. Office at facto may enforce rules of company 106 
 
 13. Company cannot enforce rule against passenger, when in fault them- 
 
 selves. The consent of the company to tariff of fares how pre- 
 sumed 106, 107 
 
 14. Discrimination on the ground of color 107 
 
 CHAPTER Vn. 
 
 V CAPITAL STOCK. 
 
 SECTION I. 
 
 LmiTATIOirS. 
 
 1. General rights of shareholders 108 
 
 2. Capital stock not the limit of property 108 
 
 3. Cannot mortgage, unless on special license of the legislature . . 108, 109 
 
 SECTION II. 
 
 OOKDITIOHa PRECEDEITT, WHICH THE PUBLIC AUTHORITIES MAT EKFOHCB. 
 
 1. Stock, if limited, must all be subscribed 109 
 
 2. Payments at time of subscription 109, 110
 
 XVI ANALYSIS OF THE CONTENTS. 
 
 SECTION m. 
 
 SHARES PERSONAL ESTATE. 
 
 1. Railway shares personal estate at common law 110, 111 
 
 2. Not an interest growing out of land, or goods, wares, and merchandise 111 
 
 3. Early cases treated such shares as real estate Ill, 112 
 
 CHAPTER Vm. 
 
 TRAIfSFER OF SHARES. 
 
 SECTION I. 
 RESTRICTIONS UPON TRANSFER. 
 
 1. Express provisions of charter to be observed 113- 
 
 2. If not made exclusive, held directory merely 114,115 
 
 3. Unusual and inconvenient restrictions void 115, 116 
 
 4. But a lien upon stock for the indebtedness of the owner is valid . . 116, 117 
 
 6. But such lien is not implied 118 
 
 6. Where transfer is wrongfully refused, vendee may recover value of the 
 
 company 119 
 
 SECTION II. 
 
 CONTRACTS TO TRANSFER STOCK. 
 
 1. Transfer under English statutes. Registered companies . . . .119, 120 
 
 2. Contracts to transfer stock valid, where bona fide 120 
 
 3. Vendor must have the stock, when due 120, 121 
 
 n. 3. Vendor must procure the consent of directors, where requisite . . 120 
 
 4. Force of usages of stock exchange 121 
 
 5. Company will reform the registry at its peril 122 
 
 6. 10. Company may compel one to accept shares on contract . . . 122, 123 
 
 7. Stock standing in joint names belongs to survivors 122 
 
 8. Mode and effect of correcting registry 122 
 
 9. If the company vary the contract, specific performance will be de- 
 
 nied 122,123 
 
 10. Closing contracts by offer and acceptance 123 
 
 11. Form of transfer. Two may join in one transfer 123 
 
 SECTION III. 
 
 INTERVENING CALLS OR ASSESSMENTS. 
 
 1. Vendor must pay calls, if that is requisite to pass title 123,124 
 
 2. Generally it is matter of construction, and inference 124 
 
 n. 2. Calls paid by vendor after executing transfer 124, 125 
 
 SECTION IV. 
 
 TRANSFER BY DEED IN BLANK. 
 
 1 and 2. Blank transfer formerly held invalid in England 125, 126 
 
 3. Rule different in America 126 
 
 4. Deed executed in blank and filled by procuration valid 126
 
 ANALYSIS OP THE CONTENTS. XVU 
 
 SECTION V. 
 
 SALB OF SrURIOUS SnARES. 
 
 1. Vendor, who acts bona fide, must refund money 127 
 
 8. No implied wa,rranty in such case, which wifl entitle the vendee to 
 
 special damage 128 
 
 4. Rule of the stock-exchange, made after the sale, not binding upon 
 
 parties 128 
 
 n. 1. Discussion of the extent of implied warranty 127 
 
 SECTION VI. 
 
 BEADIXESS TO PERFORM. — CUSTOM AXD D8AGE. 
 
 1. Vendor must be ready and offer to convey 128 
 
 2. Vendee must be ready to pay price 128, 129 
 
 8. General custom and local usage 129-131 
 
 4. The party taking the initiative must prepare the writings 131 
 
 n. 3. Oral evidence to explain memoranda of contract 129-131 
 
 SECTION vn. 
 
 DAMAGES. — SPECIFIC PERFq^MANCB. 
 
 1. Damages, difference between contract price and price at time of de- 
 
 livery 132 
 
 2. Equity will decree specific performance of contract for sale of shares 132, 133 
 
 SECTION VIII. 
 
 SPECIFIC PERFORMANCE. 
 
 1. Specific performance decreed against the vendee 134 
 
 2. This was denied in the early cases 134 
 
 3. Owner of original shares may transfer them 134,135 
 
 4. Will not decree specific performance where not in the power of the 
 
 party 136 
 
 SECTION IX. 
 
 TRCSTEB EirriTLBD TO INDEMKITT AGAINST FOTDRE CALLS. 
 
 1. Trustee entitled to indemnify, on general principles 186 
 
 2. English courts hesitated in regard to railway shares 136 
 
 3 and 4. Cases reviewed 136, 137 
 
 5. Mortgagees liable, as stockholders, for the debts of the company . 137, 138 
 
 6. The ostensible owner must respond to all responsibilities 139 
 
 7. Executors responsible personally 139, 140 
 
 SECTION X. 
 
 FRACDCLENT FHACTICES TO RAISE THB PRICE OF SHARES. 
 
 1. Courts of equity will vacate sales SO procured 140,141 
 
 2. Necessary parties 141-143 
 
 3 and 4. Diviclends declared when none are earned will vacate sales 
 
 and subject directors to indictment 143 
 
 6. Equity will not interfere where vendor acted h<ma fide, unless the 
 
 shares were valueless 143, 144 
 
 h
 
 XVlll ANALYSIS OP THE CONTENTS. 
 
 6. Manafrers of company liable in tort to party injured 144 
 
 7 and n. 10. Purchasing shares in another company considered . . . 144, 145 
 8. Bonajide purchaser of shares fraudulently issued acquires same rights 
 
 as other shareholders 145 
 
 SECTION XL 
 
 LIABILITY OF COMPANY FOR NOT BEGISTERINQ TKAX8FERS. 
 
 1. The company liable to action 145 
 
 2. May be compelled to record transfers by mandamus 146 
 
 8. But not compellable to record mortgages of shares 146 
 
 4. Grounds of denying mandamus 146, 147 
 
 6. Bill in equity most appropriate remedy 147 
 
 6. Rule of Damages 147 
 
 SECTION xn. 
 
 WHEK CALLS BECOME PERFECTED. 
 
 1. Calls are made when the sum is assessed, notice may be given afler- 
 
 wards 148 
 
 2 and 3. Directors the proper authority to make calls 149 
 
 4. The manner of giving notice and of proof 149 
 
 SECTION xm. 
 
 TRANSFER BT DEATH, INSOLVENCY, OR MARRIAGE. 
 
 1. Mandamus lies to compel the registry of successor 150 
 
 2 and 3. In case of death personal representative liable to calls . . . 150, 151 
 
 4. Kotice requisite to perfect the title of mortgagee 151 
 
 5. Stock in trust goes to new trustees 151 
 
 6. Assignees of insolvents not liable for the debts of the company . , . 151 
 
 SECTION xrv. 
 
 LEGATEES OF SHARES. 
 
 1. Entitled to election, interest, and new shares 161,152 
 
 2. Shares owned at date of will pass, although converted into consoli- 
 
 dated stock 152 
 
 3. Consolidated stock subsequently acquired will not pass 152 
 
 SECTION XV. 
 
 SHARES IK TRUST. 
 
 1 and 2. Company may safely deal with registered owner 152, 153 
 
 8. But equity will protect the rights of ces<«j« }u« /ru«< 152,153 
 
 4 and n. 2. Discussion of the rights of cestuis que trust in stock certifi- 
 cates 158, 154 
 
 . SECTION XVI. 
 
 THE KXTENT OF TRANSFER REQUISITE TO EXEMPT FROM CLAIM OF CREDITORS. 
 
 1. How transfer of stock perfected as to creditors 154, 155 
 
 2. Reasonable time allowed to record transfer 155 
 
 8 and 4. In some of the states no record required 155 
 
 n. 3. Question further considered 155
 
 ANALYSIS OF THE CONTENTS. XIX 
 
 CHAPTER IX. 
 
 ASSESSMENTS OK CALLS. 
 
 SECTION I. 
 PAHTT LIABLE FOR CALLS. 
 
 1. The party upon the register liable for calls 156 
 
 2. Bankrupts remain liable fur calls 156 
 
 8. Ceatnis que trust not liable for calls in law or equity 167 
 
 4. Trustee fompelled to pay for shares 157, 158 
 
 6. One on registry may show his name improperly placed there . . . 168 
 
 SECTION n. 
 
 COLORABLE 8CB8CRIFTIONS. 
 
 1. Colorable subscriptions valid 158, 169 
 
 2. Directors may be compelled to register them 159, 160 
 
 8. Oral evidence to varj' the written subscription inadmissible .... 160 
 
 4. Register evidence although not made in the time prescribed . . . 160, 161 
 
 6. Confidential subscriptions void 161 
 
 SECTION IIL 
 
 MODE OP ENFORCING PAYMENT. 
 
 1. Subscription to indefinite stock, raises no implied promise to pay the 
 
 amount assessed 161-163 
 
 2. If shares are definite, subscription implies a promise to pay assess- 
 
 ments. Right of forfeiture a cumulative remedy 163 
 
 8. Whether issuing new stock will bar a suit against subscriber, 
 
 quaere 164, 165 
 
 4. It would seem not . 165, 166 
 
 6. But the requirements of the charter and general laws of the state, must 
 
 be strictly pursued in declaring forfeiture of stock 166, 167 
 
 6. Notice of sale must name place 167 
 
 7. Validity of calls not affected by misconduct of directors in other 
 
 matters 167 
 
 8. Proceedings must be regular at date 167 
 
 9. Acquiescence will estop the party, often 167 
 
 10. Forfeiture of shares 167, 168 
 
 11. Irregular calls must be declared void, before others can be made to 
 
 8ui)ply the place 168 
 
 SECTION IV. 
 
 CREDITORS MAT COMPEL PAYMENT OF SUBSCRIPTIONS. 
 
 1. Company compelled to collect of subscribers by mandamus .... 168 
 
 2, 8, and 4. Amount due from subscribers, a trust fund for the benefit of 
 
 creditors 168, 169 
 
 6. If a state own the stock it will be the same 169 
 
 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 . 169 
 8 and 9. The general doctrine above stated found in many American 
 
 cases 169, 170 
 
 10. Judgment creditors may bring bill in equity 170
 
 XX ANALYSIS OP THE CONTENTS. 
 
 11. Promoters of railways liable as partners, for expenses of procuring 
 
 charter 170, 171 
 
 12. Railway company may assign calls before due, in security for bona fide 
 
 debt. No notice required to perfect assignment against attachments 
 
 or judgment liens 171 
 
 SECTION V. 
 
 C0NDIT10K8 PRECEDENT TO MAKIXG CALLS. 
 
 1. Conditions precedent must be pOTormed before calls 171,172 
 
 2. But collateral or subsequent conditions not 172-176 
 
 3. Definite capital must all be subscribed before calls 176 
 
 4. It is the same where defined by the company as in the charter . . . 177 
 
 5. Conditional subscriptions not to be reckoned 177 
 
 6. Legislature cannot repeal conditions precedent 178 
 
 7. Limit of assessments cannot be exceeded for any purpose . . . . 178 
 
 8. Where charter lails to limit stock, corporation may 179 
 
 9. Altenition in charter reducing amount of stock 179 
 
 SECTION VI. 
 
 CALLS MAY BE MADE PATABLE BY ISSTALMEST3. 179, 180 
 
 SECTION VII. 
 
 PARTY LIABLE FOR CALLS. 
 
 1. Subscribers liable to calls 180 
 
 2 and 6. What constitutes subscription to a capital stock .... 180-182 
 
 3. How a purchaser of stock becomes liable to the company .... 181 
 
 4. One may so conduct as to estop him from denying his liability . . 181, 182 
 6. The register of the company evidence of membership 182 
 
 6. Subscriptions must be made in conformity to charter 182 
 
 7. Transferee liable for calls. Subscriber also in some cases . . . 182, 183 
 
 8. Original books of subscription primary evidence 183 
 
 9. If lost secondary evidence admissible 183 
 
 10. What acts will constitute one a shareholder 183 
 
 11. May take and negotiate or enforce notes for subscriptions .... 183 
 
 12. But note fraudulently obtained not enforceable 183 
 
 13. Subscriptions as executor distinct contracts from those in .private 
 
 capacity 184 
 
 SECTION vin. 
 
 RELEASE FROM LIABILITY FOR CALLS. 
 
 1 and 2. Where the transfer of shares, without registry, will relfeve the 
 
 proprietor from calls 184, 185 
 
 3. Where shares are forfeited by express condition, subscriber no longer 
 
 liable for calls 185 
 
 4. Dues cannot be enforced which accrue upon shares after they were 
 
 agreed to be cancelled 185 
 
 SECTION IX. 
 
 DEFEXCES TO ACTIONS FOR CALLS. 
 
 1. Informality in organization of company in.«ufficient 186, 187 
 
 2. Slight acquiescence estops the party in some cases . 187
 
 ANALYSIS OP THE CONTENTS. XXI 
 
 3 and 4. Default in first payment insufficient 187, 188 
 
 5. Coujpany and subscriber may waive that condition 189 
 
 6. Contract for stock, to he paid in otlicr stocic 190 
 
 7 and 8. Infancy, Statute of limitations and bankruptcy .... 191, 192 
 9. One commissioner can give no valid assurance to the route . . . . 192 
 
 10. What representations matters of opinion 192 
 
 SECTION X. 
 
 FCNDAMBXTAL ALTERATION OF CHARTER. 
 
 1. Will release the subscribers to stock 193 
 
 2. Railway company cannot purchase steamboats 193, 194 
 
 3. 7. Majority may bind company to alterations, not fundamental 194- 
 
 196,198,199 
 
 4. Directors cannot use the funds for purposes foreign to the organiza- 
 
 tion 196, 197 
 
 5. 9. Hut where the le;rislaturc or the directors make legal alterations 
 
 in the charter, or the location of the road, it will not release sub- 
 scribers . . 197,198,200 
 
 6. But if subscriptions arc made upon condition of a particular location, 
 
 it must be complied with 198 
 
 8, 9. Consideration of subscription, being location of road, must be sub- 
 stantially performed 199, 200 
 
 10. Express conditions must be performed 200 
 
 ' ■ " .201 
 
 201, 202 
 . 202 
 . 202 
 
 11. How far alterations may be made without releasing subscribers 
 
 12. It may be done where such power is reserved in the charter . 
 
 13. Personal representative liable to same extent as subscriber . 
 
 14. Money subscriptions not released by sul)sequent ones in land 
 
 15. Corporation cannot emigrate into another state even by legislative 
 
 permission 202 
 
 SECTION XI. 
 
 8UBSCRIPTIOX8 BEFORE DATE OF CHARTER. 
 
 1. Subscriptions before date of charter good 202, 203 
 
 2. Subscriptions upon condition not performed 203-'J05 
 
 n. 4. Wiiere the condition is performed 203-205 
 
 3. Subscription by a stranger to induce company to build station . . . 205 
 
 4. Subscription on condition, an offer merely 205 
 
 5. Conditional subscription takes effect upon perfonnanco of the con- 
 
 dition" . 205 
 
 6. How far commissioners may annex conditions to subscription . . . 205 
 
 7. Such conditions void, if fraudulent as to company 205, 206 
 
 SECTION XII. 
 
 81TB8CRIFTIOX DPON SPECIAL TERMS. 
 
 1. Subscriptions not payable in money 206 
 
 2. Subscriptions at a discount, not binding 206, 207 
 
 n. 2. Contracts to release subscriptions not binding 207 
 
 3. Subscriptions after organization 208 
 
 4. President may accept conditional subscriptions 208 
 
 6. Recent case in Alabama 208 
 
 6. True rule to be deduced from all the cases 208 
 
 7. Important case on par values 209 
 
 8. DitHcidty of maintaining them 209
 
 XXU ANALYSIS OP THE CONTENTS. 
 
 9. Sad effects of opposite course on commercial fair dealing .... 209, 210 
 
 10. Can a corporation stipulate to pay interest on stocks 210 
 
 11. Such a certificate oi stock is not thereby rendered inoperative for 
 
 legitimate purposes 210 
 
 SECTION xin. 
 
 EQUITABLE RELIEF FROM SUBSCRIPTIONS OBTAI^*ED BT FRAUD. 
 
 1. Substantial misrepresentations in obtaining subscriptions will avoid 
 
 them 211 
 
 2. But for circumstantial misconduct of the directors, in the matter, they 
 
 alone are liable 212 
 
 3. Party purchasing must make reasonable examination of papers referred 
 
 to on all doubtful points. But no relief will be granted, where there 
 
 is no fraud, or intentional misrepresentation 212 
 
 4. Directors cannot make profit for themselves 212, 213 
 
 SECTION XIV. 
 
 FORFEITURE OF SHARES. — RELIEF IN EQUITY. 
 
 1. Requirements of charter and statutes must be strictly pursued . . . 213 
 
 2. If not, equity will set aside the forfeiture 213 
 
 3. Must credit the stock at lull market value 213, 214 
 
 4. Provisions of English statutes 214 
 
 5. Evidence must be express, that all requisite steps were pursued . . 214 
 
 SECTION XV. 
 
 BIGHT OF CORPORATORS AND OTHERS TO INSPECT BOOKS OF COMPAST. 
 
 1. May inspect and take minutes from books 214 
 
 2. Discussion of the extent to which such books are evidence . . . 214, 215 
 
 3. For what purposes such books are important as evidence 215 
 
 4. This will not embrace the books of proceedings of directors .... 215 
 
 5. Party claiming to be shareholder may inspect register 216 
 
 6. Allowed when suit or proceedings pending 216 
 
 7. Party may have aid in the inspection 216 
 
 CHAPTER X. 
 
 RIGHT OF WAY BY GRANT. 
 
 SECTION I. 
 
 OBTAIKINO LANDS BT EXPRESS CONSENT. 
 
 1. Leave granted bv Enj^lish statute 217 
 
 2. Persons under disability 217 
 
 3. and n. 2. Money to take the place of the land 217, 218 
 
 4. Consent to pass railway 218 
 
 6. Duty of railway in all cases 218 
 
 6. License to build railway. Extent of duration 218 
 
 7. Company bound bv conditions in deed 219 
 
 8. Parol lii'ense good" till revoked 219,220 
 
 9. Sale of road no abandonment 220 
 
 10. Deed conveys incident ; not explainable 220, 221 
 
 11. One cannot derogate from compulsory grant 221
 
 ANALYSIS OP THE CONTENTS. XXllI 
 
 12. But this does not apply to accidental incidents 221 
 
 18. Case in N. Y. Court of Appeab somewhat at variance with the pro- 
 ceding cases 221 
 
 14. A nuinic-ipal corporation may be bound by implied contract in the 
 
 grant of land, so as not to be at liberty to recede from it . . . 221, 222 
 
 15. A mere agreement to sell, although in writing, will not justify the 
 
 conjpany in entering upon the land, or defeat proceedings under 
 
 the statute to recover damages for taking the land 222 
 
 SECTION II. 
 
 SPECIFIC PERFORMANCE IN EQUITY. 
 
 1. Contracts before and after date of charter 223 
 
 2. Contracts where all the terms not defined 223 
 
 3. Contracts for land umpire to fix price 223, 224 
 
 4. Where mandamus also lies 224 
 
 6. Contracts not signed by company 224 
 
 6. Where tenns are uncertain 224 
 
 7. Contracts giving the company an option 224, 226 
 
 8. Contracts not understood by both parties 225 
 
 9. Order in regard to construction of highways may bo enforced at the 
 
 suit of the municipality 225, 226 
 
 10. The courts sometimes decline to decree specific performance on the 
 
 ground of public convenience 227 
 
 11. No decree of specific perlbrmance when contract vague and uncertain, 
 
 and for other reasons 227 
 
 12. Courts of equity will not in the final decree make the price a charge on 
 
 the land, unless so declared at first 227 
 
 CHAPTER XI. 
 
 EMINENT DOMAIN. 
 
 SECTION I. 
 GENERAL PRINCIPLES. 
 
 1. Definition of the right 228 
 
 2. Intercommunication 228 
 
 3. Necessary attribute of sovereignty 229, 2.S0 
 
 4. Anti(|uitj' of its recognition 230 
 
 5. Limitations upon its exercise 280 
 
 6. Resides principally in the states 230 
 
 7. Duty of making compensation 230, 231 
 
 8. Navigable waters , 231 
 
 9. 10, and 11. Its exercise in rivers, above tide- water 231 
 
 SECTION II. 
 
 TAKINO LANDS IN INVITDM. 
 
 1. Legislative grant requisite 282 
 
 2. Compensation must be made 238 
 
 8. ConscHjuential damages 233 
 
 4. Extent of each liability 233 
 
 5. These grants strictly constnied 2.'J3, 234 
 
 6. Limitation of the power to take landfl 234,235
 
 XXIV ANALYSIS OF THE CONTENTS. 
 
 7. Interferenceof courts of equity 235 
 
 8. Rule of construction in American courts 235,236 
 
 9. Strict, but reasonable construction 236 
 
 10. Rights acquired by company 236 
 
 11. Limited by the grant 236 
 
 12. Late decision of the House of Lords 236, 237 
 
 SECTION in. 
 
 CONDITIONS PRECEDENT. 
 
 1. Conditions precedent must be complied with 237, 238 
 
 2. That must be alleged in petition 238 
 
 8. When title vest« in company 238, 239 
 
 4. Filing the location in the land office is notice to subsequent purchasers 239 
 
 5. After damages are assessed and confirmed by the court the owner is 
 
 entitled to execution 239 
 
 6. If the company use the land 239,240 
 
 7. Subscriptions payable in land without compensation, a court of equity 
 
 will enforce pajTuent 240 
 
 SECTION IV. 
 
 PRELIMINARY SURVEYS. 
 
 1 . May be made without compensation 240 
 
 2. Company not trespasser 240, 241 
 
 3. For what purposes company may enter upon lands 241 
 
 4. Company liable for materials 241, 242 
 
 5. Right to take materials 242 
 
 6 and 7. Location of survey 242 
 
 SECTION V. 
 
 POWER TO TAKE TEMPORARY POSSESSION OF PUBLIC AND PRIVATE WATS. 
 
 1. The railway company may take possession of public or private ways, 
 
 in building their works. Responsibility 243 
 
 2. Remedy under the statutes, unless special damage 243 
 
 3. Party excavating highway in building sewer and having restored it, no 
 
 further responsible 243 
 
 SECTION VI. 
 
 LAND FOR ORDINARY AND EXTRAORDINARY USES. 
 
 1. By English statute may take land for all necessary uses .... 244, 245 
 
 2. Companies have tlie same power here 245 
 
 3. So also of companies connecting at state lines 245, 246 
 
 SECTION VII. 
 
 TITLE ACQUIRED BY COMPANY. 
 
 1. Company have only right of way 246,247 
 
 2. Can take nothing from soil except for construction 247 
 
 8. Deed in fee-simple to company 248 
 
 4. For what uses may take land 248, 249 
 
 6. Right to cross railway, extent of 249
 
 ANALYSIS OP THE CONTENTS. XXV 
 
 6. Conflicting rights in diflVrent companies 249, 250 
 
 7,8. Rule in the American states 260,251 
 
 9. Right to use streets of a city 261 
 
 10. Law not the same in all the states 261, 252 
 
 11. Rule in Massachusetts 252 
 
 12. 13. Land reverts to the o^vner 252, 263 
 
 14. True rule stated 263 
 
 15. Conditions must be performed 253 
 
 16. Further assurance of title 263 
 
 17. Condemnation cannot be impeached 263, 264 
 
 18. Where public acquire fee, it will never revert to grantor 25-4 
 
 SECTION VIIL 
 
 COBPORATE FRANCHISES CONDEMNBO. 
 
 1. Road franchise may be taken 255 
 
 2. Compensation must be made 255, 256 
 
 3. Railway franchise mav be taken 256 
 
 4. Rule di'fined . • .\ 256 
 
 5. Constitutional restrictions 256 
 
 6. Not well defined 256, 257 
 
 7. Must be exclusive, in terms 257 
 
 8. Legislative discretion 257 
 
 9. Highways and railways compared 257 
 
 10. Extent of eminent domain 257, 258 
 
 11. Exclusiveness of the grant, a subordinate franchise 258 
 
 12. Legislature cannot create a franchise, above the reach of eminent 
 
 domain 258 
 
 13. Legislature may apply streets in city to any public use 259-261 
 
 SECTION IX. 
 
 COHPEXSATION. — MODE OF ESTIMATIXO. 
 
 1. General inquiry simple 261 
 
 2. Remote damage and benefits not to be considered 261 
 
 3. General rule of estimating compensation 261,262 
 
 4. Prospective damages assessed 262 
 
 6. In some states value ** in money" is required 263 
 
 6 and 7. Damage and benefits cannot be considered in such cases . . 263, 264 
 
 8. Ruleof the English statute 265 
 
 9. Farm accommodations 265, 266 
 
 10. Benefits and damage, if required, must be stated 266, 267 
 
 n. 13. Course of the trial in estimating land damages 266, 267 
 
 11. Items of damages not indispensal)le to be stated 267 
 
 12. In contracts for land statutory privileges must be stated to be secured 268 
 
 13. Questions of doubt referred to experts 268 
 
 14. Special provisions as to crossing streets only permissive '268 
 
 15. In an award of farm accommodations, time of the essence of the award 268 
 
 SECTION X. 
 
 MODE OP PROCEDURE. 
 
 1. legislature may prescribe 269 
 
 2. Must be upon proper notice 269 
 
 3. Formal exceptions waived, by appearance 270 
 
 4. Unless exception is upon record 270 
 
 5. Proper parties, those in interest 270
 
 XXVI ANALYSIS OP THE CONTENTS. 
 
 6. Title may be examined 270, 271 
 
 7. Plaintiffs must show joint interest 271 
 
 8. Jury may find facts and refer title to the court 271 
 
 9. Land must be described in verdict 271 
 
 10. Distinct finding on each claim 272 
 
 11. Ddlerent interests 272 
 
 12. What evidence competent 272 
 
 18. Proof of value of land 272,273 
 
 1-i. Opinion of witnesses 274 
 
 15. Testimony of experts 274, 275 
 
 16. Matters incapable of description 275 
 
 17. Costs 276, 277 
 
 18. Expenses 277 
 
 19. Commissioners' fees 277 
 
 20. Appellant failing must pay costs 277 
 
 21. Competency of jurors 277 
 
 22. Power of court to revise proceedings 278 
 
 23. Debt will not lie on conditional report 278 
 
 24. Excessive damages, ground of setting aside verdict 278 
 
 Note. Other matters of practice 278,279 
 
 25. No effort to agree required in order to give jurisdiction 279 
 
 SECTION XL 
 
 THE TIME COMPEX8ATION TO BE MADE. 
 
 1. Opinions conflicting 280 
 
 2. Chancellor Kent's definition 280 
 
 3. That of the Code Napoleon .280,281 
 
 4. Most state constitutions require it to be concurrent with the taking . 281 
 
 5. English cases do not require this 282, 283 
 
 6. Adequate legal remedy sufficient 283, 284 
 
 7. Where required, payment is requisite to vest the title 284, 285 
 
 8. Some states hold that no compensation is requisite 285 
 
 SECTION XII. 
 
 APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 
 
 1. Consequential damage barred 286 
 
 2. Such as damage, by blasting rock 286 
 
 8. But not where other land is used unnecessarily 287, 288 
 
 4, But loss by fires, obstruction of access, and cutting off springs, is barred 288 
 6. Loss by flowing land not barred 289 
 
 6. Damages, from hot building upon the plan contemplated, are barred . 289, 290 
 
 7. Special statutory remedies reach such damages 290 
 
 8. Exposure of land to fires .290,291 
 
 9. No action lies for damages sustained by the use of a railway .... 292 
 
 SECTION xni. 
 
 ACTION FOR CONSEQUENTIAL DAMAGES. 
 
 1. Statute remedy for lands " injuriously affected " 293 
 
 2. Without statute not liable to action 293 
 
 8. Are liable for negligence in construction, or use 294, 295 
 
 4. Statute remedy exclusive 295 
 
 6. Minerals reserved 295, 296 
 
 6. Damages for taking land of railway for highway 296 
 
 7. Compensation for minerals, when recoverable 296
 
 ANALYSIS OP THE CONTENTS. XXVll 
 
 SECTION XIV. 
 
 EIGHT TO OCCUPT HIGim''AT. 
 
 1. Decisions conflicting 297 
 
 2. First ladd that owners of the fee were entitled to additional damages . 297 
 
 3. Principle seems to require this 298-300 
 
 4. Many rases take a dinerent view 301-801 
 
 5. Legislatures may and should require such additional compensation . . 305 
 
 6. Courts of equity will not enjoin railways from occupying streets of a city 305 
 
 7. Some of tlie states require such compensation 306-308 
 
 n. 11. All do not. But the English courts, principle, and many of the 
 
 state courts, do require it, as matter of right 308, 309 
 
 8. Recent decision upon the right to occupy the highway 309-313 
 
 1. The decisions in the state of New York require compensation to the 
 
 owner of the fee • 309, 310 
 
 2. Distinction between streets of cities and highways in the country . . 310 
 
 8. Legislature may control existing railways 810 
 
 4. In Ohio the owner of the fee may claim indemnity against additional 
 
 injury 310,311 
 
 6. True distinction, whether the use is the same 311 
 
 6. The present inclination seems to be to require additional conipensa- 
 
 tion for laying street railway in highway 311 
 
 7. Cases in the opposite direction. Judge Ells worth^s opinion . .311,312 
 
 8. Explanation of the apparent confusion 812 
 
 9. Where permanent erections made in street, compensation must be 
 
 made 312 
 
 10. Rights of land-owners as to obstructing railway 812,313 
 
 11 & n. 25. Recent cases in New York, property rights of the com- 
 pany 313-315 
 
 1. The interest demands reasonable protection 315, 316 
 
 2. The legislature have power to impose a permanent burden upon 
 
 streets 316 
 
 8. But this is not to be assumed as matter of construction 816 
 
 4. Decisions not uniform. Generally held that street railway franchise 
 
 exists in the easement for the highway. Analogy of steam roads . 316 
 
 6. Street railways do not increase the servitude of the highway . . . . 317 
 
 6. Must always be regarded, and treated, as a portion of the highway . 817 
 
 7. The estate or franchise of street railways, exclusive, as to passenger 
 
 tralfic 317 
 
 8. 9. This point further illustrated 317, 318 
 
 10. I low far the legislature may effect the exclusiveness of this franchise . 318 
 
 11. Where compensation is required, no abridgment of right implied . . 318 
 
 12. The franchise and property must remain subject to legislative and 
 
 municipal control 818,819 
 
 13. Some states allow additional land-damages for change of grade of the 
 
 street 319 
 
 14. This not demandable, unless the change is required for something 
 
 in addition to highway, or unless given by special statute . . . 319, 820 
 15-19. Summary of the argument under this head 820 
 
 SECTION XV. 
 
 COWFUCTISO HIOHTS IN DIFFERENT COMPANIES. 
 
 1. Railway company subservient to another, can only take of the other 
 
 land enough for its track 821 
 
 2. Where no apparent conflict in route, first located acquires superior 
 
 right 321
 
 XXVlll ANALYSIS OP THE CONTENTS. 
 
 SECTION XVI. 
 
 RIGHT TO BUILD OVER NAVIGABLE WATERS. 
 
 1. Legislature mav grant the right 322 
 
 2. Riparian proprietor owns only to the water 323 
 
 3. His rights in the water subservient to public use 323 
 
 4. Legislative grant paramount, except the national rights 323 
 
 6. State interest in fiats where tide ebbs and Hows 324-327 
 
 6. Rights of adjoining owners in Massachusetts 327, 328 
 
 7. Railway grant to place of shipping 328 
 
 8. Principal grant carries its incidents 328 
 
 9. Grant of a harbor includes necessary erections 328 
 
 10,11. Large rivers held navigable in this country 328,329 
 
 12. Land being cut off from wharves is " injuriously affected" .... 329 
 
 13. Paramount rights of Congress infringed creates a nuisance. Party 
 
 specially injured may have action 329 
 
 14. Case in New Hampshire 330 
 
 15. Obstruction, if illegal, ^er sc a nuisance 330 
 
 SECTION XVII. 
 
 OB8TRUCTIOX OF STREAMS BY COMPANY'S WORKS. 
 
 1. Cannot divert stream, without compensation 330, 331 
 
 2. Company liable for defective construction 331 
 
 3. So also if they use defective works, built by others 331 
 
 4. Company liable to action, where mandamus will not lie .... 331, 332 
 
 5. Company liable for defective works, done according to their plans . . 332 
 
 6. When a railway " cuts off " wharves from the navigation 332 
 
 7. Stream must be restored and maintained 332 
 
 8. Company cannot cast surface water on adjoining land, except from 
 
 strict necessity 332, 333 
 
 SECTION XVIII. 
 
 OBSTRUCTION OF PRIVATE WAYS. 
 
 1. Obstruction of private way matter of fact, need not be illegal . . . 333 
 
 2. Farm road on one's own land, not private way 333 
 
 3. But railway may lawfully pass along public street 333, 334 
 
 SECTION XIX. 
 
 STATUTE REMEDY EXCLUSIVE. 
 
 1. Remedy for land taken, exclusively under the statute 334 
 
 2. But if company do not pursue statute are liable as trespassers. Liable 
 
 for negligence also 335 
 
 3. Courts of equity often interfere by injunction 336 
 
 4. Important case in the House of Lords 336 
 
 6. Right at law must be first established 337 
 
 6. Where statute remedy fails, common-law remedy exists 337 
 
 7. The general rule adhered to in America 337 
 
 8. Company adopting works responsible for amount awarded for land 
 
 damages ^ 337
 
 ANALYSIS OP THE CONTENTS. XXIX 
 
 SECTION XX. 
 
 LAXDS 1NJCRIOC8LT AFFECTED. 
 
 1. Obstruction of way, loss of custom 338,839 
 
 2. Equity will not enjoin legal right 339, 340 
 
 3. Liable for building railway, so as to cut off wharf ....... 340 
 
 4. Not liable for crossing highway on level 340 
 
 5. English statute only includes damages by construction .... 340, 341 
 
 6. Equity will not enjoin a doubtful claim 341 
 
 7. Damages unforeseen, at the time of the appraisal, may be recovered, 
 
 in England 341, 342 
 
 8. Injuries to ferrj', and towing-path, compensated 342 
 
 9. 10. Remote injuries not within the statute 342, 343 
 
 11. Damages compensated, under statute of Massachusetts 343 
 
 12. Damages not compensated, as being too remote 343 
 
 13. For negligence in construction, remedy at common law 344 
 
 14. Or neglect to repair 344 
 
 15. Recovery under the statute, &c 344 
 
 16. Possession by railway, notice of extent of title 344,345 
 
 17. Railways have right to exclusive possession of roadway 345 
 
 SECTION XXI. 
 
 DIFVEBENT ESTATES PROTECTED. 
 
 1. Tenant's good-will and chance of renewal protected 345, 346 
 
 2. Tenants entitled to compensation for change of location 346 
 
 3. Church property in England, how estimated 346 
 
 4. Tenant not entitled to sue, as owner of private way 346 
 
 6. Heir should sue for compensation 347 
 
 6. Lessor and lessee both entitled to compensation 347 
 
 7. Right of way, from necessity, protected 347 
 
 8. Mill-owner entitled to action for obstructing water 347 
 
 9. Occupier of land entitled to compensation 347, 348 
 
 10. Tenant, without power of alienation, forfeits his estate, by license to 
 
 company 348 
 
 11. Damages not transferable by deed of land, after they accrue . . . 348 
 
 SECTION XXIL 
 
 ARBITRATION. 
 
 1. Attorney, without express power, may refer disputed claim .... 349 
 
 2. Award binding, unless objected to in court 349 
 
 SECTION XXIII. 
 
 8TATCTB OF LIMITATIONS. 
 
 1. General limitation of actions applies to land claim 349, 350 
 
 2. Filinjj petition will not save bar 350 
 
 3. Acquiescence of forty years by land-owner, effect of 350 
 
 4. The estoppel will take effect if the use is clearly adverse .... 350, 351
 
 XXX ANALYSIS OF THE CONTENTS. 
 
 CHAPTER Xn. 
 
 REMEDIKS BY LAXD-OWNERS UNDER THE EXGLISH STATUTE. 
 
 SECTION I. 
 COMPANY BOUND TO PURCHASE THE WHOLE OF A HOUSE, ETC. 
 
 1. The company to take the accessories with the house .• 352 
 
 2. But the owner has an election in regard to that 352, 353 
 
 8. A deposit of the appraised value means the value of all the company 
 
 are bound to take 358 
 
 4. Company bound to take all of which they take part, and pay 
 
 specisJ damage besides 353, 354 
 
 5. Where the company desire part, not compellable to take whole unless 
 
 they persist in taking part 354 
 
 6. Land separated from house by highway not part of premises . 354, 355 
 
 * SECTION n. 
 
 THE COMPANY COMPELLABLE TO TAKE INTERSECTED LANDS, AND THE OWNER 
 
 TO SELL. 
 
 1. When less than half an acre remains on either side, company must 
 
 buy 355 
 
 2, Owner must sell where land of less value than railroad crossing . 355, 356 
 3 and 4. Word " town," how construed 356 
 
 SECTION in. 
 
 EFFECT OF NOTICE TO TREAT FOR THE PURCHASE OF LAND. 
 
 1. Important question under statute of limitations 356 
 
 2. Company compelled to summon jury 356 
 
 3. Ejectment not maintainable against company 357 
 
 4. Powers to purchase or enter, how saved 357, 358 
 
 6. Subsequent purchasers aflfected by notice to treat as the inception of 
 
 title . . : 358 
 
 6. But the notice may be withdrawn before any thing is done under it . 358 
 
 7. Not indispensable to declare the use, or that it is for station, and an- 
 
 other company to participate in use 358 
 
 SECTION IV. 
 
 REQUISITES OF THE NOTICE TO TREAT. 
 
 1. Notice to treat must, in terms or by reference, accurately describe 
 
 land 859 
 
 2. After notice to treat company compellable to purchase. Company 
 
 cannot retract after giving notice to treat 859 
 
 3. New notices given for additional lands 360 
 
 4. Power to take land not lost by former unwarranted attempt .... 360 
 
 5. Lands may be taken for branch railway 360 
 
 6. Effect of notice in case of a public park 860
 
 ANALYSIS OP THE CONTENTS. XXXI 
 
 SECTION V. 
 
 THE KOTICB MAT BE WAITED, BT THE PABTT ENTERIHO nTTO THE NEGOTIATION. 
 
 1, Notice must be set forth in proceedings 360, 861 
 
 2. Agreement to waive operates as an estoppel 861 
 
 8. Certiorari denied where party has suffered no injury 361 
 
 SECTION VI. 
 
 TITLE OF THE CLAIMANT MD8T BE DISTINCTLY STATED. 
 
 1. Claimant's reply to notice should be clear and accurate 861 
 
 2. Award bad, which docs not state claimant's interest 3C1, 362 
 
 8. Where lands are held bv a receiver or commission for a lunfitic. Ex- 
 pression " fee-simple in possession" 862 
 
 n. 8. Analogous American cases 362, 363 
 
 SECTION VII. 
 
 THE CLAIM OF THE LAND-OWNER MUST CORRESPOND WITH THE NOTICE. 868 
 
 CHAPTER xm. 
 
 ENTRY UPON ULNDS BEFORE COMPENSATION IS ASSESSED. 
 
 SECTION I. • 
 
 LANDS TAKEN OR INJtTRIOnSLY AFFECTED, WITHOUT HAVING PREVIOUSLY MADB 
 COMPENSATION TO THE PARTIES. 
 
 1. No entrj- under English statutes without previous compensation, ex- 
 
 cept for preliminary survey 364 
 
 2. Legal remedies against company offending 364 
 
 3. What acts constitute taking possession under statute 365 
 
 4. Company may enter with iand-owner''s consent after agreement for 
 
 arbitration 365 
 
 5. Bond may be given in certain cases 365, 366 
 
 6. Company restrained from using land until price paid, even after line in 
 
 operation. But this rule dissented from 366, 367 
 
 SECTION II. 
 
 THE PROCEEDINGS REQUISITE TO ENAHLE THE COMPANY TO ENTER UPON LAND. 
 
 1. Provisional valuation under English Statutes 367 
 
 2. Irregularities in proceedings 367, 368 
 
 3. Penalty for irregular entry upon lands 368 
 
 4. Entrj- after verdict estimating damages, but before judgment . . , 368 
 6. Mode of assessing damages provided in charter not superseded by sub- 
 sequent general railway act 368 
 
 SECTION m. 
 
 MODE OF OBTAINING COMPENSATION X^XDER THE STATUTE, FOR LANDS TAKEN, OR 
 INJURIOUSLY AFFECTED, WHERE NO COMPENSATION IS OFFERED. 
 
 1 . Claimant may elect arbitration or jury trial 368, 369 
 
 Q. Method of procedure 369
 
 XXXH ANALYSIS OP THE CONTENTS. 
 
 SECTION IV. 
 
 THE ONUS OF CABBYING FOBWABD PBOCEEDINOS. 
 
 1 . Rests upon claimant after company have taken possession 369 
 
 2. Miscellaneous provisions 369, 370 
 
 3. Proceedings cannot be had unless actual possession is taken, or injury 
 
 done 370 
 
 SECTION V. 
 
 EQUITY WILL NOT INTEBFEBE, BY INJUNCTION, BECAUSE LANDS ABE BEING INJU- 
 BIOUSLY AFFECTED, WITHOUT NOTICE TO TREAT, OB PBEVIOU8 COMPENSATION. 
 
 1. Claimant must wait until works are completed 370, 371 
 
 2. Even if appearance of land will be greatly altered 371 
 
 3. How far equity interferes where legal claim of party is denied . . . 371 
 
 4. Where a special mode of compensation has been agreed upon . . . 371 
 
 SECTION VI. 
 
 sheriff's jury, or ARBITRATOR, CANNOT DETERMINE THE QUESTION OF EIGHT IN 
 THE CLAIMANT, BUT ONLY THE AMOUNT OF D^VMAGES. 
 
 1. Later English decisions sustain this view 372 
 
 2 and 3. Statement of recent case 372, 373 
 
 4. In most American states assessment is final 373 
 
 6. Plaintiff will recover damages assessed if he suffered any legal injury . 373 
 
 SECTION VII. 
 
 THE EXTENT OF COMPENSATION TO LAND-OWNERS, AND OTHER INCIDENTS BY THE 
 
 ENGLISH STATUTES. 
 
 1. Liberal compensation allowed 374 
 
 2. Decisions under English statutes 374, 375 
 
 3. Limit of period for estimating damages 375 
 
 4. Whether claim for damages passes to the devisee or executor . , . 375 
 
 5. Vendor generally entitled to damages accruing during his time . . . 375 
 
 SECTION VIII. 
 
 BIGHT TO TEMPORAEY USE OF LAND TO ENABLE COMPANY TO MAKE EBECTIONS 
 
 UPON OTHER LANDS. 
 
 1. Right to pass another railway by a bridge gives a temporary use of 
 
 their land, but no right to build abutments upon it 376 
 
 2. Right to construct a bridge across a canal gives right of building a tem- 
 
 porary bridge 376 
 
 3. And if thus erected honajide may be used for other purposes . . . 376 
 
 SECTION IX. 
 
 KEBEBVATIONS TO LAND-OWNERS TO BUILD PRIVATE RAILWAY ACROSS PUBLIC 
 
 BAILWAY. 377 
 
 SECTION X. 
 
 DISPOSITION OF 8UFBBFLCOU8 LANDS. 
 
 1. Vest in adjoining owner unless disposed of in ten years . . . .377,378 
 
 2. Former owner not excluded. Effect of cottage in field 378
 
 ANALYSIS OF THE? CONTENTS. XXxiii 
 
 CHAPTER XrV. 
 
 TH£ XODE OF A8SS8SINO COBCPENSATION UNDER THE ENGLISH STATUTES. 
 
 SECTION I. 
 
 BT JUSTICES OF THE PEACE. 
 
 1. Where compensation claimed does not exceed £50 879 
 
 2. Mode of enforcing award 379 
 
 8. Value of land and injury accruing from severance to be considered . . 879 
 
 SECTION n. 
 
 BT SUBVETOS8. 379, 380 
 
 SECTION in. 
 
 BT ARBITRATION. 
 
 1. May be claimed in cases exceeding jurisdiction of justices of the peace 880 
 
 2. How made compulsory 380, 881 
 
 8. What form of notice is sufficient 881 
 
 n. 5. Analogous American cases 381 
 
 4. Arbitrator's power limited to award of pecuniary compensation . . . 381 
 6. Where land-owner gives no notice, company may treat it as case of 
 
 disputed compensation 881, 382 
 
 6. Similar rule under Massachusetts statute regarding alteration of high- 
 
 ways 882 
 
 7. And land-owners may recover without waiting for selectmen to act , . 882 
 
 8. Company estopped in such case from denying that road was constructed 
 
 by their servants. Embankments part of the railway 382 
 
 9. Finality of award 382 
 
 10. May employ experts. Damages embraced 382, 383 
 
 11. Construction of general award 883 
 
 CHAPTER XV. 
 
 CONSTRUCTION OF RAILWAYS. 
 
 SECTION I. 
 LINE OF RAILWAY. — RIGHT OP DEVIATION. 
 
 1. Manner of defining the route in English charters 884 
 
 2. Question involved stated 885-387 
 
 8. Plans only binding, when and for the purpose referred to, in the 
 
 act 887, 888 
 
 4. Contractor bound by deviation, unless he object 388 
 
 6. Courts of equity will not enforce contract against public security . . 388 
 
 6. Right to construct accessory works 888, 389 
 
 7, 8. Company may take lands designated, in their discretion . . . 889, 390 
 
 9. Equity cannot enforce contract, not incorporated into the act . . . 390 
 
 10. Right of deviation lost by election 890, 891 
 
 11. Railway between two towns, extent of grant 891 
 
 12. Grant of land for railway includes accessories 891 
 
 c
 
 XXXIV ANALYSIS OP THE CONTENTS. 
 
 18. Route designated need not be followed literally 391, 892 
 
 14. Terminus being a town, is not extended, as the town extends . . . 392 
 
 15. Party accepting compensation waives informality 392 
 
 16. Powers limited in time expire with limitation 392, 393 
 
 17. Construction of charter as to extent of route 393 
 
 18. Map may be made to yield to other grounds of construction . . 393 
 
 19. Power to change location must be exercised before construction . . 393 
 
 20. Binding force of plans made part of charter 393, 394 
 
 21. Grant terminating at town liberally construed 394 
 
 SECTION n. 
 
 DISTANCE HOW MEASURED. 
 
 1. This is affected by subject-matter 894 
 
 2. Contracts to build railway, by rate per mile 394 
 
 3. General rule to measure by straight line 395 
 
 4. Same rule in regard to turnpike roads 395 
 
 6. Rate fixed by mile means full mile ; no charge for fractions .... 395 
 
 SECTION m. 
 
 MODE OF CONSTRUCTION, TO BE DONE WITH LEAST DAMAGE. 
 
 1. Does not extend to form of the road, but the mode of construction . 396 
 
 2. Special provisions of act not controlled by this general one .... 396 
 
 3. Works interfered with, to be restored, for all uses 396 
 
 SECTION IV. 
 
 MODE OF CROSSING HIGHWAT8. 
 
 1. English statutes require it should not be at grade 397 
 
 2. Or if so, that gates should be erected and tended 397 
 
 3. And if near a station, railway train not to exceed four miles an 
 
 hour 397, 398 
 
 4. Cannot alter course of highway 398 
 
 6. Mandamus does not lie where company have an election .... 398, 399 
 
 7. Railway cannot alter highway to avoid building bridge 399 
 
 8. Extent of repair of bridge over railway 399 
 
 9. Permission to connect branches with main line not revocable . . 399, 400 
 
 10. Grant to build railways across main line implies right to use them 
 
 as common carriers 400 
 
 11. Railway responsible for injury by falling into culvert when covered 
 
 by snow 400 
 
 12. The right to lay line across railway carries right to lay as many 
 
 tracks as are convenient for the business 400 
 
 13. Damages for laying highway across railway 400 
 
 14. Laying highway across railway at grade. Company not estopped by 
 
 contract with former owner of land 400, 401 
 
 SECTION V. 
 
 BIGHTS OF TELEGRAFH COMPANIES. 
 
 1. Right to "pass directly across a railway," does not justify boring 
 
 under it 401 
 
 2. Exposition of the terms "under" and " across" 401 
 
 3. Erecting posts in highway a nuisance, even if sufficient space re- 
 
 main 401,402 
 
 n. 4. Opinion of Crompton, J 402-404
 
 ANALYSIS OP THE CONTENTS. XXXV 
 
 SECTION VI. 
 
 DCTT nr SEOARD TO 8CB8TITDTED WORKS. 
 
 1. Bound to repair bridge substituted for ford, or to carry highway over 
 
 railway . , 403,404 
 
 2. The same rule has been applied to drains, substituted for others . . 404 
 
 3. The extent of this duty as applied to bridge and approaches . . . 404 
 
 SECTION vn. 
 
 CON8TRCCTION OF CHAHTEH IN REGARD TO KATDRE OF WORKS, AND MODE 
 
 OF C0S8TR0CT10N. 406 
 
 SECTION vra. 
 
 TERMS OF COSTRACT. — MONET PENALTIES. — EXCUSE FOR KOK-PERFORMANCE. 
 
 1. Contracts for construction assume unusual forms 406 
 
 2. Estimates made by enjrineer 406 
 
 8. Money penalties, liquidated damages. Full performance . . . 406-408 
 
 4. Excuses for non-performance 408 
 
 5. Penalty not incurred, unless upon strictest construction 408 
 
 6. 7. Contractor not entitled to any thing for part-performance . . . 408, 409 
 n. 2. Proper construction of the terms used in these contracts . . . 407, 408 
 8. Contract for additional compensation must be strictly performed . . 409 
 
 SECTION IX. 
 
 FORM OF EXECUTION. — EXTRA WORK. — DEVIATIONS. 
 
 1. No particular form of contract requisite generally 409, 410 
 
 2. But the express requirements of the charter must be complied with . 410 
 
 3. Extra work cannot be recovered of the company, unless done upon the 
 
 terms specified in contract 411 
 
 4. If the company have the benefit of work are liable 412 
 
 SECTION X. 
 
 IF OKB PARTT RBPUDIA.TB THE CONTRACT, THE OTHER MAT SUB PBESBirTLT. — ' 
 INEVITABLE ACCIDENT. 
 
 1. Party repudiating excuses the other 412 
 
 2. New contract vafid 413 
 
 8. President cannot bind the company 413 
 
 4. Effect of inevitable accident 413 
 
 SECTION XI. 
 
 DECISIONS OF REFEREES ASD ARBITRATORS IN REGARD TO CONSTRUCTIOX 
 
 CONTRACTS. 
 
 1. Award valid if substantially correct 414 
 
 2. Court will not set aside award, where it does substantial justice . 414, 415 
 
 SECTION xn. 
 
 DECISIONS OF COMPAKT's ENOIIOCBRS. 
 
 1. Estimates for advances, mere approximations, under English practice 416 
 
 2. But where the engineer's estimates are final, can only be set aside for 
 
 partiality or mistake 416
 
 XXXVl ANALYSIS OP THE CONTENTS. 
 
 8. Contractor bound by practical construction of the contract . . . 416, 417 
 
 4. Estimates do not conclude matters not referred 417 
 
 5. If contractor consent to accept pay in depreciated orders, he is bound 
 
 by it 417 
 
 6. Right of appeal lost by acquiescence 417 
 
 7. Engineer cannot delegate his authority 417, 418 
 
 8. Arbitrator must notify parties, and act bona fide 418 
 
 SECTION xm. 
 
 RELIEF IN EQUITY FROM DECISIOXS OF COSCPANT'S EITGIKEERS. 
 
 1. Facts of an important case stated 418-423 
 
 2. Claim of contractor in the bill 424 
 
 3. Bill sustained. Amendment alleging mistake in estimates .... 425 
 
 4. Relief only to be had in equity 425 
 
 6. Proof of fraud must be very clear 425 
 
 6. Engineer being shareholder, not valid objection 425 
 
 7. Decision of engineer conclusive as to quality of work, but not as to 
 
 quantity 425 
 
 8. New contract condonation of old claims 425 
 
 9. Account ordered after company had completed work 425 
 
 10. Money penalties cannot be relieved against unless for fraud .... 425 
 n. 1. Review of the cases upon this subject 418-424 
 
 11. Engineers' estimates not conclusive unless so agreed 425, 426 
 
 12. Contractor, whose work surrendered by supplemental contract, entitled 
 
 to full compensation 426 
 
 13. Direction of umpire binding on contracting parties, and dispenses with 
 
 certificate of full performance 426 
 
 SECTION XIV. 
 
 FRAUDS IK CONTRACTS FOR CONSTRUCTION. 
 
 1. Relievable in equity upon general principles 426 
 
 2. Statement of leading cases upon this subject 427-429 
 
 3. Where no definite contract closed, no relief can be granted . , . 430, 431 
 
 SECTION XV. 
 
 ENOINEER's ESTIMATE WANTING THROUGH FAULT OF COMPANT. 
 
 1. In such case contractor may maintain bill in equity 431 
 
 2. Grounds of equitable interference 431, 432 
 
 3. After company terminate contract, contractor will bfe enjoined from 
 
 interference. And same rule sometimes extends to company . . 432, 433 
 
 4. Stipulation requiring engineer's estimate, not void 433 
 
 6. Not the same as an agreement, that all disputes shall be decided by 
 
 arbitration 433, 434 
 
 6. Engineer's estimate proper condition precedent 434 
 
 7. Same as sale of goods, at the valuation of third party 434 
 
 8. The result of all the English cases seems to be, mat only the question 
 
 of damages properly referable to the engineer 434, 435 
 
 9. The rule in this respect diflFerent, in this country 435 
 
 SECTION XVI. 
 
 CONTRACTS FOR MATERIALS AND MACHINERT. 
 
 1. Manufacturer not liable for latent defect in materials 435, 436 
 
 2. Contract for railway sleepers, terms stated 436, 437
 
 ANALYSIS OP THE CONTENTS. XXXVU 
 
 3. Construction of such contract 437 
 
 4. Party may waive stipulation in contract, by acquiescence ..... 437 
 
 5. Company liable for materials, accepted and used 437 
 
 SECTION xvn. 
 
 COKTBACT8 TO PAT IN THK STOCK OF THB COMPANT. 
 
 1. Breach of such contract generally entitles the party to recover the 
 
 nominal value of stock 438 
 
 2. But if the party have not strictly performed on his part, can only 
 
 recover market value 438 
 
 3. Cash portion overpaid, will only reduce stock portion dollar for 
 
 dollar 4.39-441 
 
 n. 2. Lawful incumbrance on company's property, will not excuse con- 
 tractor from accepting stock 488-441 
 
 SECTION xvra. 
 
 TIME AHD MODE OF PAYMENT. 
 
 1. No time specified, payment due only when work completed .... 441 
 
 2. Stock payments must ordinarily be demanded 441 
 
 3. But if companv pay monthly, such usage qualifies contract .... 442 
 
 4. Contract to build wall by cubic yard, implies measurement in the wall 442 
 
 SECTION XIX. 
 
 REMEDY ON CONTRACTS FOR RAILWAY CONSTRUCTION. 
 
 1. Recovery on general counts 442 
 
 2. Amount and proof governed by contract 442 
 
 SECTION XX. 
 mechanics' lien. 
 
 1. Such lien cannot exist in regard to a railway 443 
 
 2. Opinion of Scott, J 443 
 
 SECTION XXL 
 
 REMEDIES ON BEHALF OF LABORERS AND BUB-CONTBACTORS. 
 
 1. Sub-contractors not bound by Stipulations of contractor . . . .443,444 
 
 2. Laborers on public works have a claim against the company .... 444 
 
 3. But a sub-contractor cannot go against the proprietor of the works, 
 
 although a laborer employed by him may 444 
 
 CHAPTER XVI. 
 
 EXCESSIVE TOLLS, FARE, AND FREIOHT. 
 
 1. English companies created sometimes for maintaining road only . . 445 
 
 2. Where excessive tolls taken may be recovered back 445, 446 
 
 3. So also may excessive fare and freight 446 ■ 
 
 4. Bj' English statute, packed parcels must be rated in mass 446 
 
 6. Nature of railway traffic requires unity of management and control . . 446
 
 XXXVlll ANALYSIS OP THE CONTENTS. 
 
 6. Tolls upon railways almost unknown here. Fare and freight often 
 
 limited 446 
 
 7. Guaranty of certain profit on investment lawful 447 
 
 8. Restriction of freight to certain rate per ton, extends to whole line . . 447 
 
 9. Need not declare for tolls 447 
 
 10. Mode of establishing and requisite proof 447 
 
 11. A provision in a railway charter for the payment of a certain tonnage 
 
 to the state is only a mode of taxation 447 
 
 12. Where a company is allowed to take tolls on sections of their road this 
 
 makes each section a distinct work 448 
 
 13. 14. Discussion of cases in New York in regard to the difference between 
 
 fares taken in the ears and at the stations 448, 449 
 
 16. Fares fixed by statute are payable in legal tender notes 449 
 
 CHAPTER XVn. 
 
 LIABILITY FOR FIRES COMMUNICATED BY COMPXNY^B EKGINE8. 
 
 1 . Fact of fires being communicated evidence of negligence 450 
 
 2. This was at one time questioned in England 450 
 
 3. Opinion of Tindal, Ch. J., upon this point 450,451 
 
 4. English companies feel bound to use precautions against fire . . , 451, 452 
 6. Rule of evidence, in this country, more favorable to companies . . 452, 453 
 
 6. But the company are liable for damage by fire through want of care on 
 
 their part 453 
 
 7. One is not precluded from recovery, by placing buildings in an exposed 
 
 situation 453, 454 
 
 8. When insurers pay damages on insured property, may have action 
 
 against company 454 
 
 9. Where company made liable for injury to all property, are allowed to 
 
 insure 454, 455 
 
 10. Construction of statutes making companies liable for loss by fires . . 455 
 
 11. Extent of responsibility of insurer of goods, to company 455 
 
 12. Construction of statute as to engines, which do not consume smoke 455, 456, 
 
 457 
 
 13. Construction of Massachusetts statute and mode of trial 456 
 
 14. 15. For what acts railway companies may become responsible without 
 
 any actual negligence 456-461 
 
 16. Company not responsible for fires resulting from other fires caused by 
 
 them 462, 463 
 
 CHAPTER XVm. 
 
 rNJURIES TO DOMESTIC ANIMALS. 
 
 1. Company not liable unless bound to keep the animals off the track 464, 465 
 
 2. Some cases go even further, in favor of the company 465 
 
 3. Not liable where the animals were wrongfully abroad 465 
 
 4. Not liable for injury to animals, on land where company not bound to 
 
 fence 466 
 
 6. Where company bound to fence are prima facie liable for injury to 
 
 cattle 466 
 
 6. But if owner is in fault, company not liable 466,467 
 
 7. In such case company only liable for gross neglect or wilful injury . . 467 
 
 8. Owner cannot recover, if he suffer nis cattle to go at large near a 
 
 railway 467, 468 
 
 9. Company not liable in such case, unless they might have avoided the 
 
 injury 468, 469
 
 ANALYSIS OP THE CONTENTS. XXXIX 
 
 10. Where company are required to keep gates closed, are liable to any 
 
 party injured by omission 469 
 
 11. Opinion of Gibson, J., on this subject 470-472 
 
 12. 17. Not liable for consequences of the proper use of their engines . 472, 473 
 
 13. Questions of negligence ordinarily to be determined by jury .... 472 
 
 14. But this is true only where the testimony leaves the question doubt- 
 
 ful 472 
 
 15. Actions may be maintained sometimes, for remote consequences of 
 
 ne<j;ligence 472, 473 
 
 16-18. Especially where a statutory duty is neglected by company . . 473, 474 
 
 19. The question of negligence is one for the jury 474 
 
 20. One who suffers an animal to go at large can only recover for gross 
 
 neglect 474 
 
 21. Testimony of experts receivable as to management of engines . . 474, 475 
 
 22. One who suffers cattle to go at large must take the risk 476 
 
 23. The company owe a primary duty to passengers, &c 475, 476 
 
 24. In Maryland company liable unless for unavoidable accident .... 476 
 26. In Indiana common-law rule prevails 476 
 
 26. In Missouri, modified by statute 476, 477 
 
 27. In California cattle may lawfully be suffered to go at large .... 477 
 
 28. 29. Abstract of late cases in Illinois 477, 478 
 
 80. The weight of evidence and of presumption 478, 479 
 
 31. Company not liable except for negligence 479 
 
 32. Company must use all statutory and other precautions 479 
 
 83. Not competent to prove negligence of the same kind on other occa- 
 sions 479 
 
 CHAPTER XIX. 
 
 FENCES. 
 
 SECTION I. 
 
 UPOX WHOM BESTS THB OBLIOATIOST TO MAINTAIN FENCES. 
 
 1. By the English statute there is a separate provision made for fencing . 481 
 
 2. This provision is there enforced against the companies by mandamus . 481 
 8. But where no such provision exists, the expense of fencing is part of 
 
 the land damages 481, 482 
 
 4. And where that is assessed, and pajTnent resisted by the company, the 
 
 land-owner is not obliged to fence 482-484 
 
 6. In some cases it has been held the fencing is to be done equally, by 
 
 the company and the land-owner 484 
 
 6. Assessment of land damages, on condition company build fences, raises 
 
 an implied duty on their part 485-488 
 
 7. In some states, owners of cattle not required to confine them upon 
 
 their own land 488 
 
 8. Lessee of railway bound to keep up fences and farm accommodations . 488 
 
 9. Company bound to fence land acquired by grant 488 
 
 10. Farm-crossings required wherever necessary 489 
 
 11. Where land-owner declines farm accommodations, has no redress ; courts 
 
 of equity will not decree specific performance 489, 490 
 
 12. Fences and farm accommodations not required for safety of servants 
 
 and employees 490 
 
 13. Requisite proof where company liable for all cattle killed 490 
 
 14. Party bound to fence assumes primary responsibility 490, 491 
 
 16. Company not responsible for injury at road crossings 491 
 
 16. Railway companies not responsible for injury to cattle by defect of 
 
 fence about yard 491
 
 Xl ANALYSIS OF THE CONTENTS. 
 
 17. Case of horse escaping through defect of fence 491, 492 
 
 18. It must appear the injury occurred through default of company . . . 492 
 
 19. Cattle-guards required in villages, but not so as to render streets 
 
 unsafe 492 
 
 20. Company responsible for injuries through defect of fences and cattle- 
 
 guards 492,493 
 
 21. Courts of New Hampshire maintain common-law responsibility . . . 493 
 
 22. Company responsible as long as they control road 493, 494 
 
 23. Maintaining fences along the line of railway, matter of police . . . 494 
 
 24. Rule as to land-owner agreeing to maintain fence, &c 494 
 
 25. Company not responsible for defect of fence unless in fault .... 494 
 
 26. Railway not responsible in Indiana unless in fault 494, 495 
 
 27. Company not liable where fence thrown down by others 495 
 
 28. Where owner in fault he cannot recover unless, &c 495 
 
 29. Rule of damages for not building fence, &c 495 
 
 80. Land-owner must keep up bars 495 
 
 81. Illustrations of the general rule 496 
 
 32. In actions under statute case must be brought within it 496 
 
 33. In Pennsylvania one required to keep his cattle at home 497 
 
 SECTION n. 
 
 AGAINST WHAT CATTLE THE COMPANY IS BOUND TO FENQB. 
 
 1. At common law every owner bound to restrain his own cattle . . . 497 
 
 2. And if bound to fence against other's land, it extends only to those 
 
 cattle rightfully upon such land 497, 498 
 
 8. Company may agree with land-ovmer to fence, and this will excuse 
 
 damage to cattle 498, 499 
 
 n. 5. Review of cases upon this subject 499 
 
 4. Owner may recover unless guilty of express neglect 499 
 
 5. Comment upon the last case 499, 500 
 
 6. Statement of case in Massachusetts . 500 
 
 7. Further comment on the last case 500, 501 
 
 8. Rule of responsibility as held in Kentucky 501 
 
 9. Rule laid down in Ohio 501 
 
 10. Rule in Indiana 501, 502 
 
 11. Distinction between suffering cattle to go at large and accidental 
 
 escape 602 
 
 CHAPTER XX. 
 
 TJABn.mES IN REGARD TO CONTRACTORS, AGENTS, AND SUB-AGENTS. 
 
 SECTION I. 
 
 LIABILITY FOE ACTS AND OMISSIONS OP CONTRACTORS AND THEIR AGENTS. 
 
 1. Company not ordinarily liable for the act of the contractor or his 
 
 servant 503 
 
 2. But if the contractor is employed to do the very act, company is 
 
 liable 504 
 
 3. American courts seem disposed to adopt the same rule 504 
 
 4. Distinction attempted between liability for acts done upon movable 
 
 and immovable property not maintainable 505 
 
 5. Cases referred to where true grounds of distinction are stated . . . 505 
 
 6. No proper ground of distinction in regard to mode of emplojTnent . 505 
 
 7. Proper basis of company's liability explained 606, 606
 
 ANALYSIS OP THE CONTENTS. xli 
 
 8. So long as one retains control of work, he is responsible for the con- 
 
 duct of it 606 
 
 9. A master workman is only responsible for the faithfulness and care of 
 
 his workmen, in the business of their employment 606 
 
 10. Railway company responsible for injuries consequent upon defects of 
 
 construction, in the course of tlie work by a contractor .... 607 
 
 11. But ordinarily the employer is not responsible for the negligent mode 
 
 in which work is done, the contractor being only employed to do it 
 
 in a lawful and reasonable manner 607 
 
 SECTION n. 
 
 LIABILITY OF THE COMPANT FOB THE ACTS OF THEIB AGENTS AND SEETANTS. 
 
 1. Courts manifest disposition to give such agents a liberal discretion 607, 608 
 
 2. Company liable for torts committed by agents in discharge of their 
 
 duties 608 
 
 3. May be liable for wilful act of servant in the range of his employ- 
 
 ment 608, 609 
 
 4. Some of the cases hold it necessary to show the asseqt of the com- 
 
 pany 609 
 
 n. 6. Cases upon this subject reviewed 509-612 
 
 6. Most of the cases adhere to the principle of respondeat superior . 610, 611 
 
 6. But it seems not to have been considered that the company is pres- 
 
 ent 612,613 
 
 7. The cases seem to regard the company as always absent 618 
 
 8. In cases where the company owe a special duty, the act of the servant 
 
 is always that of the company 613 
 
 9. It seems more just and reasonable to regard the company as always 
 
 present in the person of their agent , 613 
 
 10. What shall amount to ratification of the act of an agent by a corpora- 
 
 tion difhcult to define 614 
 
 11. How corporations may be held responsible for the publication of a 
 
 libel 614,616 
 
 12. The powers of a corporation are such only as are conferred by charter 516 
 
 13. False certificate of capital being paid in money 516 
 
 14. Gas company not bound to supply gas to all who require it ... . 616 
 16. Company may become responsible for false imprisonment . . . 515, 516 
 
 16. Company responsible for injury done by various animals kept by them 
 
 or sunered to remain about their stations 516, 617 
 
 17. The general manager of a railway company may bind them for medical 
 
 aid for servant injured in their employment 617 
 
 SECTION m. 
 
 INJDBIE8 TO SERTANTS, BT XEOLECT OF FELLOW-SEBVANTS, AND C8E OF MACHINERT. 
 
 1. In general no such cause of action exists against company . . . 517, 618 
 
 2. But if there is any fault in employing unsuitable servants or machinery 
 
 they are liable 618-620 
 
 3. But not liable for deficiency of help or for not fencing road .... 620 
 
 4. Has been questioned whether rule applies to servants of different 
 
 grades 620,621 
 
 6. Rule not adopted in some states. Case of slaves. Scotland . .621,622 
 
 6. No implied contract, by ship-owners, that ship is sea-worthy . . 623, 624 
 
 7. But rule does not apply where servant has no connection with the par- 
 
 ticular work 624 
 
 n. 16. Cases reviewed in England, Scotland, and America .... 622-624 
 
 8. Recent J)nglish case illusti'ating the English doctrine 624, 626 
 
 9. Statement of the law in Kentucky and review of the subject . . . 626, 626
 
 Xlii ANALYSIS OF THE CONTENTS. 
 
 10. Subject reviewed by Chief Justice Shaw 527, 630 
 
 11. Company may show in excuse, that the damage accrued from the ser- 
 
 vant disregarding his instructions ^ 530 
 
 12. The servants of one company, not fellow-servants with those of another 
 
 company, using the same station, where the injury occurred . . . 530 
 
 13. The fact that the injury occurred by reason of the intoxication of a 
 
 fellow-servant, and that his being an habitual drunkard was, or 
 ought to have been, known by the company, tends to show culpable 
 
 neglect on their part 530, 531 
 
 Late case in Missouri "..... 531 
 
 1. Where a passenger is injured on a railway the prima facie pre- 
 
 sumption is, that it resulted from the want of due care on the 
 part of the company 531 
 
 2. But, nevertheless, it is competent to prove the damage occurred 
 
 without their fault 531, 532 
 
 8. One who rides upon a free pass, or in a baggage-car, is not thereby 
 deprived of his remedy against the company for injuries received 
 through their want of due care, provided he was at the time a 
 passenger and without fault on his own part 532 
 
 SECTION IV. 
 
 INJUBIE8 BY DEFECTS IN HIOHWATS CAUSED BY COMPANY'S WORKS. 
 
 1. Liable for injuries caused by leaving streets in insecure condition . 533-537 
 
 2. Municipalities liable primarily to travellers suflfering injury . , . 537, 538 
 
 3. They may recover indemnity of the company 538,539 
 
 4. Towns liable to indictment. Company liable to mandamus or action . 539 
 
 5. Construction of a grant to use streets of a city 539 
 
 6. Such grant does not give the public any right to use the tracks . . . 540 
 
 7. Bound to keep highways in repair 540 
 
 8. Municipalities not responsible for injuries by such grant 540 
 
 9. Canal company not excused from maintaining farm accommodations by 
 
 railway interference 540 
 
 10. Railway' track crossing private way 540, 541 
 
 11. One being wrong-doer in opening company's gates cannot recover . . 541 
 
 SECTION V. 
 
 LIABILITY FOR INJURY IN THE NATURE OF TORTS. 
 
 1. Railway crossings upon a level always dangerous 541, 542 
 
 2. Company not excused by use of the signals required by statute . . . 542 
 
 3. Party cannot recover if his own act contributed to injury .... 542-544 
 
 4. But company liable still if they might have avoided the injury . . 545-547 
 
 5. If company omit proper signals, not liable, unless that produce the 
 
 injury 547 
 
 6. Not liable for injury to cattle trespassing, unless guilty of wilful 
 
 wrong 547, 548 
 
 7. General definitions of companj^'s duty 549, 550 
 
 8. Action accrues from the accrumg of the injurj' 650, 551 
 
 9. Where injury Is wanton, jurj' may give exemplary damages .... 551 
 
 10. One who follows direction of gate-keeper excused 551 
 
 11. Company responsible for injury at a crossing opened by themselves for 
 
 public use 551 
 
 12. The responsibility of railway companies for damages to persons cross- 
 
 ing, mainly matter of fact, and each case depends on its peculiar 
 circumstances 661, 662
 
 ANALYSIS OP THE CONTENTS. zlui 
 
 SECTION VI. 
 
 MISCONDUCT or RAILWAT OPERATIVES SHOWX BT EXPERTS. 
 
 1. The inana<:;oment of a train of cars is so far matter of science and art, 
 
 that it is proper to receive the testimony of experts 652, 563 
 
 2. In cases of alleged torts company not bound to exculpate 653 
 
 8. So, too, the plaintiff is not bound to produce testimony from experts . 663 
 4. The jury are the final judjres in such cases. But omission to produce 
 
 testimony of experts will often require explanation 553, 554 
 
 n. 6. General rules of law in regard to the testimony of experts . . 654, 565 
 
 CHAPTER XXI. 
 
 BAILWAY DIRECTORS. 
 
 SECTION I. 
 XXTE5T OF THE AITTHORITT OV RAILWAY DIRECTORS. 
 
 1. Notice to one director, if express, is sufficient 556, 657 
 
 2. Applications to the legislature for enlarged powers, and sale of com- 
 
 pany's works, require consent of shareholders 557 
 
 8. Constitutional requisites must be strictly followed 557 
 
 4. Directors, or shareholders, cannot alter the fundamental business of 
 
 the company 558, 559 
 
 5. Inherent difficulty of defining the proper limits of railway enterprise . 559 
 n. 9. Opinion of Lord Langdale, ana review of cases on this subject . 559--563 
 
 6. An act ultra vires can only be confirmed by actual and not construc- 
 
 tive assent 560-563 
 
 7. The directors of a trading company may give bills of sale in security 
 
 for debts contracted by them 563 
 
 8. Directors cannot bind company except in conformity with charter . . 564 
 
 9. Company cannot retain money obtained by fraud of directors . . . 564 
 
 10. But It must appear the plaintiff was misled without bis own fault . . 564 
 
 11. Company, by adopting act of directors, are liable to make recompense 
 
 564, 565 
 
 12. A prospectus and report should contain the whole truth 665 
 
 13. Directors cannot issue shares to procure votes and control corpora- 
 
 tion 565 
 
 14. What will amount to fraud in the reports of the company 665 
 
 16. Directors responsible for fraudulent acts and representations . . . 566 
 
 16. Extent of power of directors 666 
 
 SECTION n. 
 
 WHEN DIRECTORS BECOME PERSONALLY LIABLE. 
 
 1. Not liable personally, for any lawful act done as directors . . . 666, 667 
 
 2. But are liable upon express undertaking to be personally holden . . 667 
 8. Are liable personally, if they assume to go beyond their powers . . 568 
 
 4. Extent of powers affected often by usage and course of business . 568, 669 
 
 5. But if contract is Iwyond the |>ower of company, or not in usual form, 
 
 directors personally liable 569 
 
 6. Statement of case illuatrating last point 669
 
 xliv ANALYSIS OP THE CONTENTS. 
 
 SECTION ra. 
 
 COMPENSATION FOR 8EBVICB OF DIRECTORS. 
 
 1. In England, directors of railways not entitled to compensation for ser- 
 
 vices 569, 570 
 
 2. But the company may grant an annuity to a disabled officer .... 570 
 
 3. In this country are entitled to compensation, in conformity to the 
 
 order of the board 570 
 
 4. Some American cases follow the English rule 571 
 
 6. Official bonds strictly limited to term for which executed 671 
 
 SECTION IV. 
 
 RECORDS OF THE PROCEEDINGS OF DIRECTORS. 
 
 1. English statutes require minutes of proceedings of directors and make 
 
 it evidence 571 
 
 2. Presumptions in favor of their containing all that passed 572 
 
 8. Company will ratify unauthorized act of directors by acquiescence . . 572 
 
 SECTION V. 
 
 AUTHORITY OP DIRECTORS TO BORROW MONET, AND BUY GOODS. 
 
 1. Authority of directors to bind company, express or implied . . . 572, 573 
 
 2. General agent will bind company within scope of his duties. Direc- 
 
 tors presumed to assent to his contracts 573 
 
 8. Contracts under seal of compa-ny prima facie bind them .... 573, 574 
 
 4. Strangers must take notice of general want of authority in directors, 
 
 but not of mere informalities 574, 575 
 
 5. Cannot subscribe for stock of other companies 575 
 
 6. May borrow money if requisite 575 
 
 7. How far directors may bind company by accepting land in payment of 
 
 subscription 575, 676 
 
 SECTION VI. 
 
 DUTY OF RAILWAY DIRECTORS TO SERVE THE INTERESTS OF COMPANY. 
 
 1. General duty of such office defined 576 
 
 2. Claim for secret service and influence with directors 576 
 
 3. Opinion of Justice Hoffman upon the legality of such contracts . . 576-581 
 n. 3. Cases reviewed upon the subject of secret services 577-581 
 
 4. Directors cannot buy of themselves for the company. What amounts 
 
 to ratification 581, 582 
 
 5. The point further illustrated. Authority of directors •• 582 
 
 6. Purchase of shares to buy peace 582 
 
 7. Director may loan money to company 682 
 
 8. Director de facto sufficient 583 
 
 9. Hotel company may lease premises to others 683 
 
 10. Director cannot recover for work done for company 583 
 
 11. Contract of projector not binding on company 583 
 
 12. Director cannot act where interested 583, 584 
 
 13. Court will not act on petition of member who is a mere puppet for 
 
 others 584
 
 ANALYSIS OP THE CONTENTS. xlv 
 
 SECTION vn. 
 
 BIOHT TO 'dismiss EVPLOTEES. — RITLB OF DAMAGES, WHEIT DOIOE WBONOFULLT. 
 
 1. Some cases hold, that if wrongfully dismissed may recover salary . . 684 
 
 2. English courts do hot favor this view. Case stated by English judges 
 
 584, 685 
 
 8. The American cases have sometimes taken the same view 585 
 
 4. Where the contract provides for a term of wages, after dismissal, it is 
 
 to be regarded as liquidated damages 586 
 
 6. Statute remedy, in favor of laborers of contractors, extends to laborers 
 
 of sub-contractors 586 
 
 CHAPTER XXn. 
 
 ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. 
 
 SECTION L 
 
 LEASES, AND SIMILAR C05TRACTS, BEQUISB THE ASSENT OF LEOISLATXTBE. 
 
 1. By English statutes one company may pass over road of another, but 
 
 contract binding 687 
 
 2. But cannot transfer duty of one company to another, without legisla- 
 
 tive grant 687, 588 
 
 8. OriginiQ company liable to public, after such lease. But lessee not 
 
 excused ................... 688-590 
 
 4. Courts of equity enjoin companies from leasing, without legislative 
 
 consent 691 
 
 6. But such contracts, made by legislative grants, are to be carried into 
 
 effect 691 
 
 6. Majority of company may obtain enlarged powers, with new funds . . 691 
 
 7. So the majority may defend against proceedings in legislature . . . 692 
 
 8. Legislative sanction will not render valid contracts ultra vires . . 692, 593 
 
 9. Railway company cannot assume duties of ferry, without legislative 
 
 grant 698 
 
 10. The grant to a railway of the implied ri^ht to establish a ferry over a 
 
 public river directly beyond the terminus of its road, does not ex- 
 tend the responsibility of the company to the ferry 693 
 
 11. Such a ferry may become an encroachment upon another by carrying 
 
 passengers gratuitously 693 
 
 12. The grant to a railway of a ferry in express terms will not authorize 
 
 them to carry any thing except passengers and freight passing over 
 their line 593 
 
 SECTION n. 
 
 NECESSITT OF CONTBACTS OF COBPOBATIOX8 BEINO UITDEB SEAL. 
 
 1. The English courts manifest great reluctance to abandon the former 
 
 rule of law on this subject 694 
 
 n. 2. Elxtended review of the English and some of the American cases 694-601 
 
 2. Reference to later decisions 696-601 
 
 3. What amounts to a seal according to modem use 601
 
 xlvi ANALYSIS OP THE CONTENTS. 
 
 SECTION ni. 
 
 DUTT OF THE RESPECTIVE COMPANIES TO PASSENGEB8 AND OTHERS. 
 
 1. Company bound to keep road safe. Act of other companies no excuse 602 
 
 2. Some cases hold that passengers can only sue the company carrying 
 
 them 603 
 
 8. Passenger-carriers bound to make landing-places safe 604 
 
 4. But those who ride upon freight trains, by favor, can only require such 
 
 security as is usual upon such trains 604 
 
 6. Owners of all property bound to keep it in state, not to expose others 
 
 to injury 604, 605 
 
 6. This rule extends to railways, where persons are rightfullp^ upon them . 605 
 n. 3. Cases, as to the necessity of privity of contract existmg, reviewed 
 
 603, 604 
 
 7. One who keeps open public works is bound to keep them safe for use 
 
 605, 606 
 
 8. Corporations presumptively responsible to the same extent as natural 
 
 persons in the same situation 606 
 
 9. A railway company drawing the cars of a connecting road over its own 
 
 line is responsible as a common carrier 606, 607 
 
 SECTION IV. 
 
 EXTENT OF THE POWERS AND DUTIES OF LESSEES OF KAILWATS. 
 
 1. Statement of the points in an important English case 607-610 
 
 2. Lessees of railways liable for their own acts, and for many acts of 
 
 lessors 610, 611 
 
 SECTION V. 
 
 CONTRACTS BETWEEN DIFFERENT COMPANIES REGULATING THE TRAFFIC. 
 
 1. Such contracts generally held valid and binding 611, 612 
 
 2. Arrangements to avoid competition valid 612 
 
 SECTION VI. 
 
 WHAT 18 REQUISITE TO CONSTITUTE A PERPETUAL CONTRACT BETWEEN DIFFER- 
 ENT RAILWAY COMPANIES. 
 
 1. Railway connections commonly temporary 612, 613 
 
 2. The matter is one mainly of public convenience and so subject to leg- 
 
 islative control 613 
 
 SECTION vn. 
 
 CONTRACTS BT RAILWAYS ULTRA VIRES, AND ILLEGAL. 
 
 1. Contracts to make erections not authorized by their charter . . . 613, 614 
 
 2. Contracts to indemnify other companies against expense 614 
 
 3. Contracts to divide profits 614 
 
 4. Illustration of the doctrine ultra vires 615 
 
 5. How far railways may accept bills of exchange. Railway companies 
 
 not empowered to make bills and notes except from necessity . 615, 616 
 
 6. Contracts uUra vires cannot be specifically enforced against the direc- 
 
 tors 616
 
 ANALYSIS OP THE CONTENTS. xlvii 
 
 7. Moner unlawfully borrowed company must refund 616, 617 
 
 8. How far acts ultra vires confinned by acquiescence 617 
 
 9. Companv not restrained from making unlawful payments on the ground 
 
 of policy 617,618 
 
 10. Decision rests on no safe grounds 618 
 
 11. It seems too much like paying black mail to buy peace 618 
 
 1. The power of a receiver to sue in the name of the corporation . . 619 
 
 2. Foreign railway corporation acquired no prerogative rights by leas- 
 
 ing a portion of the track of a domestic railway 619 
 
 S. Statement of the contract and ground of holding it void, as being 
 
 ultra vires 619 
 
 4. Further reasons why such contracts cannot be specifically performed 
 
 here 619,620 
 
 n. S. Comments upon the preceding propositions 620 
 
 SECTION vni. 
 
 COMPAKIS8 BXOKXBATBD FBOM CONTBACT8, BT ACT Or LBOISLATURB . 620, 621 
 
 SECTION IX. 
 
 WIDTH OF GACOE. — JCNCTIOX WITH OTHER ROADS. 
 
 1. Where the act requires broad gauge, does not prohibit mixed gauge . 621 
 
 2. Permission to unite with other road, signifies a road de facto . . . 621 
 
 3. Equity will sometimes enjoin company against changing gauge . . . 622 
 
 4. Contract to make gauge of the companies the same, although contrary 
 
 to law of state, at its date, may be legalized by statute .... 622 
 
 CHAPTER XXIII. 
 
 MANDAMUS. 
 
 SECTION I. 
 
 OBHBBAL RULES OF LAW OOTERNINO THIS REMEDT. 
 
 1. Regarded as a supplementary remedy 623 
 
 2. Mode of procedure 624 
 
 (1.) Matter of discretion 624 
 
 (2.) Alternative writ 624, 625 
 
 3. Proceedings in most of the American courts 626 
 
 4. English courts do not allow application to be amended 626 
 
 6. Recent English statute has essentially simplified proceedings . . . 626, 627 
 
 6. Mode of trying the truth of the return 627,628 
 
 7. Costs rest in the discretion of court 628 
 
 8. Mode of service 628, 629 
 
 9. By late English statutes mandamus eOects specific performance . . . 629 
 
 SECTION n. 
 
 PARTIdTLAR CASES WHBRE MAKDAXCS LIBS TO BKFOBCB DUTY OF CORPORA- 
 TIONS 630, 681
 
 xlviii ANALYSIS OP THE CONTENTS. 
 
 SECTION m. 
 
 MANDAMCS THE APPBOFKIATE REMEDY TO RESTORE OFFICERS AXD MEMBERS 
 OF CORPORATION'S TO THE DISCHARGE OF THEIR PROPER FUXCTIOXS, 
 WHERE THET HAVE BEEN DEPRIVED OF THE SAME THROUGH THE AGEN'CT 
 OF THE CORPORATION. 
 
 1. The writ formerly granted only to restore to public office .... 632-635 
 
 2. Now granted in all cases where of value and sufficiently permanent 636, 637 
 
 8. Not available, where election annual and facts traversed 637 
 
 4. Claimant must have permanent and vested interest 637 
 
 SECTION IV. 
 
 KANDAJCCS TO COMFBL COXPAHT TO COKPLETB THEIR ROAD. 
 
 1. English courts have required this upon a general grant .... 638, 639 
 
 2. But these cases overruled. Not required now, unless under peculiar 
 
 circumstances 639 
 
 3. Becent case in New York Court of Appeals 640 
 
 SECTION V. 
 
 IK WHAT CASES THIS IS THE PROPER REMEDY. 
 
 1. Where the act is imperative upon the company to build road . . . 640 
 
 2. Mandamus more pro|>er remedy than injunction 641 
 
 3. Commissioners of public works not liable to this writ 641, 642 
 
 4. Public duties of corporations may be so enforced 642 
 
 5. Facts tried by jury. Instances of this remedy 643 
 
 6. Cannot be substituted for certiorari, when that is taken away . . . 643 
 
 7. Requiring costs to be allowed 643, 644 
 
 8. Other instances of its application 644 
 
 9. Lies where the duty is clear, and no other remedy 644 
 
 10. Not awarded to control legal discretion 644, 645 
 
 11. Does not lie to try the legality of an election 646 
 
 12. Lies to compel transfer of stock 646 
 
 SECTION VL 
 
 PROPER EXCUSES, OR RETCRX8 TO THE WRIT. * 
 
 1. Company may return that powers had expired at date of writ . . 646, 647 
 
 2. May show want of funds to perform duty 647, 648 
 
 8. But cannot show that road is not necessary, or would not be remunera- 
 tive 648 
 
 4. May quash part of return, and require answer to reminder .... 648 
 
 6. Counsel for writ entitled to begin and close 648 
 
 6. Cannot impeach the statute in reply to the writ 648 
 
 7. Peremptory writ cannot issue till whole case tried 648 
 
 8. Will not quash return summarily 649 
 
 9. No excuse allowed for not complying with peremptory writ .... 649 
 
 SECTION vn. 
 
 WHERE THE ALTERNATIVE WRIT REQUIRES TOO MUCH, IT IS BAD, FOR THAT 
 
 WHICH IT MIGHT HAVE MAINTAINED 649, 650
 
 ANALYSIS OF THE CONTENTS. xlix 
 
 SECTION vra. 
 
 BHFOBCIWO PAYMENT OF MONET AWARDED AOAINST RAILWAYS. 
 
 1. The enforcement of payment of money against corporations by mandA- 
 
 mus 650 
 
 2. Where debt will lie the party not entitled to mandamus 651 
 
 3. Mandamus proper to compel payment of compensation under statute . 651 
 
 4. Mandamus not allowed in matters of equity jurisdiction .... 651, 652 
 6. Contracts of company not under seal enforced by mandamus . . . 652 
 6. Where a statute imposes a specific duty, an action will lie .... 652 
 
 SECTION IX. 
 
 THS WHIT 80MBTIMK8 DENIED IN MATTERS OF FRIVATB CONCERN. 
 
 1. Mandamus denied to compel company to divide profits 653 
 
 2. Allowed to compel production and inspection of corporation books . 653 
 
 3. Will compel the performance of statute duty, but not to undo what is 
 
 done 654 
 
 4. Allowed to compel the production of the register of shares, or the reg- 
 
 istry of the name of the owner of shares, and in other cases . . 654, 655 
 
 5. It is the common remedy for restoring persons to corporate offices of 
 
 which they are unjustly deprived 655, 656 
 
 SECTION X. 
 
 THIS REMEDT LOST BT ACQUIESCENCE. — PROCEEDING MCST BE BONA FIDE. 
 
 1. Remedy must be sought at earliest convenient time 657 
 
 2. Courts will not hear such case, merely to settle the question . . . 657, 658 
 
 3. In New York may be brought any time within statute of limitations . 658 
 
 SECTION XI. 
 
 MANDAMUS ALLOWED WHERE INDICTMENT LIES. 
 
 1. Party may have mandamus sometimes where act is indictable . . . 658 
 
 2. Allowed to compel company not to take up their rails 659 
 
 3. Will not lie where there is other adequate remedy 659 
 
 SECTION xn. 
 
 JUDGMENT VPOH PETITION FOR MANDAMUS RBTI8ABLB IN EBBOB . 669, 660 
 \ 
 
 CHAPTER XXIV. ' 
 
 WRIT OP CERTIORARI. 
 
 SECTION I. 
 TO REMOTE PROCEEDINGS AOAINST RAILWAYS. 
 
 1. Lies to bring up unfinished proceedings, or those not according to the 
 
 common law 661, 662 
 
 2. Tliis writ is one of very extensive application, unless controlled by 
 
 statute 662 
 
 3. Where the case is fully heard on the application, judgment may be 
 
 entered 663 
 
 d
 
 1 ANALYSIS OP THE CONTENTS. 
 
 SECTION II. 
 
 WHERE THERE IS AN EXCESS OF JURISDICTIOX 663 
 
 SECTION III. 
 
 JURISDICTION AND MODE OF PROCEDURE. 
 
 1. Lies in cases of irregularity, unless taken away by statute .... 664 
 
 2. Inquisitions before officers, not known in the law 664 
 
 8. Granting the writ is matter of discretion. Defects not amendable . 664, 665 
 4. Not allowed for irregularity in proceedings, or evidence, or form of 
 
 judgment 665 
 
 CHAPTER XXV. 
 
 INFORMATIONS IN THE NATURE OF QUO WARRANTO. 
 
 1. General nature of the remedy . • 666,667 
 
 2. Its exercise confined to the highest court of ordinary civil jurisdiction 667 
 
 3. In the English practice, this remedy not extended to private corpora- 
 
 tions 667 
 
 4. In this country it has been extended to such corporations 668 
 
 5. This remedy will only remove an usurper, but not restore the one • 
 
 rightfully -entitled 668 
 
 6. Will not lie where railway company open part of their road .... 669 
 
 7. Nor where company issue stock below par, or begin to build road be- 
 
 fore subscription full 669 
 
 8. Form of the judgment 669, 670 
 
 9. Rules in regard to taxing costs 670 
 
 10. Used to test corporate existence and power 670 
 
 11. Penalties provided by charter cannot subsequently be increased to a 
 
 forfeiture 670 
 
 12. But a grant of corporate franchises may be annulled when its purposes 
 
 have failed : • • ^'^^' ^'^1 
 
 13. Scire facias the proper remedy to determine forfeiture 671 
 
 14. Insufficient excuses for failure to repair a turnpike road 671 
 
 15. This remedy does not supersede any equitable redress 671
 
 TABLE OF CASES. 
 
 Paoi. 
 A. & N. L. Railw. v. Smith 173 
 
 A. & S. Railw. c. Baugh 487 
 
 r. Carpenter 261 
 
 A. & St. L. Railw. V. Commission- 
 ers of Cumljerland County 270, 277 
 Aberdeen Railw. v. Blakie 85 
 
 Abervstwith Railw., in re 48 
 
 Abraham v. Great Northern Railw. 822 
 c. Reynolds 529 
 
 Ackland v. Lewis 112 
 
 Adair v. Shaw 169 
 
 Adams r. Ferick 151 
 
 r. Frye 126 
 
 V. London & . Blackwall 
 
 Railw. 369 
 
 V. Saratoga «& Wash. Railw. 
 
 294 298 
 Adderly c. Storm 137^ l:^ 
 
 Adler r. Milw. Patent Brick Co. 171 
 Adley r. WhitsUble Co. 89 
 
 Agar e. Athena;um Life Ass. Co. 574 
 V. Regent's Canal Co. 195 
 
 Agricultural Bank r. Burr 1 16 
 
 V. Wilson 116 
 
 Agricultural Branch Railw. v. 
 
 Winchester 176 
 
 Aikin r. Western Railw. 593 
 
 Alabama & Tenn. Rivers Railw. r. 
 
 Kidd 508 
 
 Albany N. Railw. V. Lansing 261, 
 
 267, 294 
 Aldham v. Brown 47 
 
 Aldred r. North Midland Railw. 42, 
 
 390 
 Aldrich r. Cheshire Railw. 288, 335 
 Aldridge r. Great Western Railw. 450 
 Alexander r. Cr}-stal Palace Railw. 354 
 Alexandra Park Co., in re 438 
 
 Algeo r. Algeo 685 
 
 Alger p. Miss. & Mo. Railw. 477 
 
 Alleghany p. Ohio & Pennsylvania 
 Railw. 307, 308 
 
 Paoi. 
 
 Alleghanv City p. McClurkan 563 
 
 Allen p. ilayward 505 
 
 p. Montgomerv R. 164 
 
 Allyn p. Prov. W. & B. Railw. 270 
 Alton Railw. v. Northcott 416 
 
 Ambergate, N. & Boston & E. J. 
 R. p. Coulthard 179 
 
 r. Midland Railw. 335 
 
 p. Mitchell 148, 149 
 
 Ambergate R. p. Norcliffe 179 
 
 Ammermon p. Wyoming Land Co. 540 
 Anderson p. Kerns Draining Co. 67 
 p. N. & R. Railw. 67 
 
 p. Ohio & Miss. Railw. 166 
 Andover, Case of 626 
 
 Andover Turnpike p. Gould 162 
 
 p. Hay 162 
 
 Andrews r. City of Portland 408 
 
 p. Ohio & Miss. Railw. 174 
 Androscoggin Railw. Co. p. Rich- 
 ards 97 
 Androscoggin & Kenebec Railw. p. 
 
 Androscoggin Railw. 613 
 
 Anglo California G. M. Co. p. 
 
 Lewis 167 
 
 Anonymous 56, 60, 655 
 
 Anstruther v. East Fife Railw. 641 
 Anthony Street, matter of 271 
 
 Appleby p. Meyers 413 
 
 Appleford's case 645 
 
 Applegate p. Lexington & Ohio 
 
 Railw. 298 
 
 Armington p. Bamet 229, 266 
 
 Armstrong p. Burnet 151 
 
 p. Waterford & Limer- 
 ick liailw. 366 
 Arnold p. Mayor of Poole 349, 595, 598 
 p. Ruggles 112 
 Arthur p. Commercial & Railroad 
 
 Bank 248 
 
 Ashby p. Eastern Railw. 270, 271, 340 
 Ashtabula & New L. Railway v. 
 Smith 62, 205, 392
 
 Hi 
 
 TABLE OF CASES. 
 
 Ashton V. Lord Longdale 111 
 
 Ashworth v. Stanwix 618 
 
 Aspinwall v. Ohio & Miss. Railw. 202 
 Assop V. Yates 619 
 
 Aston V Boore 225 
 
 Asylum v. Plienix 644 
 
 Athenaniin Life Ins. Co., in re 
 
 Sheffield 143 
 
 Atkinson v. Marietta & Cin. 
 
 Railw. 265, 393 
 
 Atlantic, &c., Railw. v. Sullivant 62, 
 
 238 
 Atlantic Cotton Mills r. Abbott 176 
 Atlee V. Backhouse 446 
 
 Attala Co. r. Graham 645 
 
 AttVGen. V. Bir. & Oxford J. R. 641, 
 
 669 
 V. Corporation of Rye 60 
 V. Davy 83 
 
 V. Detroit & Erie Plank- 
 Road Co. 398 
 V. Dorset Railw. 268 
 V. Great North'n Railw. 61, 
 144 
 V. Hudson River Railw. 324 
 V. Leaf 667 
 V. London & Southamp- 
 ton Railw. 405 
 V. Nichol 337 
 V. S. & S. Railw. 227 
 V. Sheffield Gas Con- 
 sumers' Co. 337 
 V. Stevens 320 
 V. Tewkesburv & Great 
 
 Malvern 'Railw. 9, 394 
 Aug. & Sav. Railw. v. McElmurry 643 
 Aurora v. West ^ 392 
 
 Aurora Branch Railw. v. Grimes 472 
 Austin, ex parte 642 
 
 Australian Royal Mail Co. v. Mar- 
 
 zetti 696 
 
 Aycock V. Williams 662 
 
 Ayles ». L. E. Railw. 602 
 
 Aylesbury R. v. Mount 182, 185 
 
 V. Thomson 156 
 
 Ayres v. Morris & Essex Railw. 88 
 
 B. 
 
 B. & S. Railw. V. Compton 290 
 B. O. & M. Railw. V. Smith 245 
 Babcock v. Western Railw. 218, 328 
 Backhouse v. Bonomi 550 
 Backus V. Lebanon 266, 268 
 Bagge, ex paiie 114 
 Bagnall ». London & North West- 
 ern Railw. 342 
 
 Bagshawe ». Eastern Union Railw. 6, 
 
 27, 31 
 
 Bailey ». Hollister 201 
 
 r. Mayor of New York 332 
 
 V. Phil. & Wil. Railw. 323 
 
 V. Western Vermont Railw. 
 
 437 
 Baker, ex parte 664 
 
 r. Johnson 247, 283 
 
 Baldwin v. Western Railw. 550 
 
 Bale r. Clelland 665 
 
 Balls V. Met. Board & Co. 353 
 
 Baltimore & Ohio Railw. v. Lara- 
 born 487 
 V. Thomson 291, 347, 554 
 V. Wheeling 200 
 Baltimore, &c. R. v. Northern, &c. 
 
 R. 663 
 
 Baltimore & Susquehanna Railw. 
 
 V. Nesbit 238, 284 
 V. Musselman 197 
 
 V. Woodruff 453, 649 
 Banet ». Alton & Sangamon Railw. 
 
 164, 172, 198 
 Bangor & Piscataqua Railw. v. 
 
 Harris 253 
 
 Bangor Bridge Co. v. McMahon 162, 
 
 165 
 Bangor House Proprietary v. 
 
 Hincklev 162 
 
 Bank v. McChord 126 
 
 Bank of Augusta v. Earle 56 
 
 of Columbia v. Patterson 410 
 of Commonwealth v. Curry 126 
 of Manchester v. Allen 70 
 
 of Metropolis v. Guttschlick 410 
 of Middlebury v. Edgerton 4 
 of Pennsylvania v. Common- 
 wealth 391 
 of South Carolina v. Gibbs 69 
 of United States v. Dan- 
 dridge 70 
 V. Planters' Bank 54, 59 
 of Utica V. Smalley 116 
 of Walthara v. Waltham 112 
 Barber v. Essex 638 
 Barclay v. Howard's Lessee 260 
 Bardstown & Lou. Railw. v. Met- 
 calfe 64, 234 
 Bargate v. Shortridge 114 
 Barker v. Midland Railw, 94 
 V. North Staffordshire 
 
 Railw. 352 
 
 V. Troy & Rutland Railw. 394, 
 
 411, 438, 440 
 
 Barlow, in re 656, 667 
 
 Barnard v. Bagshaw 145 
 
 V. Wallis 3, 232 
 
 Barned v. Hamilton 132
 
 TABLE OF CASES. 
 
 liii 
 
 Barnes r. Ward 606 
 
 Barnesley Canal Co. ». Twibill 336 
 
 Barrett, ex parte ^ 147 
 
 r. Great Northern Railw. 97 
 
 r. Maiden & Melrose 
 
 Railw. 617 
 
 c. Stockton & D. Railw. 236 
 Barrington v. Miss. Central Railw. 110 
 Barron v. Baltimore 230 
 
 Barrows v. Mass. Medical So. 656 
 Barry r. Croskey 5G8 
 
 r. Men-Hants' Exchange Co. 108 
 Bartlett v. Baker 507 
 
 Barton v. Port Jackson, «&c. Plank- 
 Road Co. 562 
 Barton's Case 168 
 Bass V. Chicago, Bar. & Quincv 
 
 Railw. 456, 477 
 
 Bassett 0. Norwich & Nashua 
 
 Railw. 623 
 
 Bateman v. Mid- Wales Railw. 615 
 Bates r. Boston & N. Y. Cen. 
 
 Railw. 601 
 
 V. New York Ins. Co. 115 
 
 Bath River Navigation Co, r. Wil- 
 lis 238 
 Batty ». Duxbury 638 
 Batty e v. Gresley 84 
 Bayley r. Wilkins 129 
 Bayliffe v. Butterworth 129 
 Bayntine v. Sharp 451 
 Beach r. Smith 110, 190 
 Beardmer c. London & North- 
 western Railw. 887 
 Beaty o. Knowler 236 
 Beaufort r. Swansea Harbor Trus- 
 tees 382 
 Beaulicu r. Finglam 461 
 Beckett c. Midland Railw. 872, 339 
 Beckitt V. Bilbrough 6 
 Beckwith r. Svdebotham 654 
 Bedford Railw'. r. Bowser 179, 206 
 Beebe v. Ayres 102 
 Beekman v. Saratoga & Sch. Railw. 228 
 Beene v. Cahawba & M. R. 164 
 Beers c. Housatonic Railw. 472 
 Belfast & Angelica Plank-Road 
 
 Co. V. Chamberlain 68 
 
 Bellv. Francis 9 
 
 r. Gough 323 
 
 r. Hull & Selby Railw. 329, 340 
 r. London & N. W. Railw. 657 
 r. Midland Railw. 400 
 
 Bellefontaine & Iowa Railw. r. 
 
 Bailey 474 
 
 Beman r. Rufford 75, 591 
 
 Bend c. Susquehannah Bridge Co. 64, 
 
 182 
 Benedict v. Coit 805 
 
 Bennett, ex parte 165 
 
 Bennet r. Railw. 269, 278 
 
 V. C. & A. Railw. 668 
 
 r. Dutton 102 
 
 Benson, ex parte 646 
 
 Bentinck v. Norfolk Estuary 242, 389 
 Benton r. Phil., W. & B. Railw. 296 
 Beverley v. Lincoln Gas Light & 
 
 Coke Co. 410, 494, 698 
 
 Bigelow V. Miss. Central & Tenn, 
 
 Railw. 279 
 
 Bill V. Darenth Valley Railw. 600 
 
 V. Sierra Nevada L. W. Co. 61 
 Binney v. Hammersmith & City 
 
 Railw. 858 
 
 Binney's Case 111 
 
 Birkenhead, L. & Ch. Railw. r. 
 
 Webster 179 
 
 Birkenhead Railw. v. Pilcher 191 
 
 Birmingham v. Sheri<lan 132 
 
 Birmingham, B. & Th. J. Railw. 
 
 V. I^cke 6. 165, 182 
 
 Birmingham & Oxford J. Railw. r. 
 
 Reg. 356 
 
 Birmingham Railw. c. Locke 156 
 
 Bish V. Johnson 197 
 
 Bishop V. North 2 
 
 Bissell p. Mich. So. & N. Ind. 
 
 Railw. 690 
 
 Black River Railw. v. Clarke 67 
 
 Black River & Utica Railw. r. 
 
 Barnard 66 
 
 V. Clarke 188 
 
 Blackwell r. Wiswall 606 
 
 Blair v. Corby 444 
 
 Blake r. Ferris 604 
 
 r. Rich 260 
 
 V. Thirst 607 
 
 Blakemore v. Bristol & Exeter 
 
 Railw. 604 
 
 r. Glamorganshire Ca- 
 nal Co. 391. 634, 
 635, 636, 638 
 Bland v. Crowley 28, 37 
 
 Bligh V. Brent 111 
 
 Bliss r. Hosmer 241 
 
 r. Pass. River Railw. 833 
 
 Blodgett V. Morrill 159, 160 
 
 Blood p. Nashua & Lowell Railw. 347 
 Bloodgood r. M. & H. Railw. 229, 
 240. 269, -281, 283, 310, 511 
 Blount V. Hipkins 134, 151 
 
 Bloxam, ex parte 1 4 
 
 Bluck V. Mnllalue 682 
 
 Blumenthal v. Brainerd 864 
 
 Blundell r. Winsor 118 
 
 Boardman r. Gore 126 
 
 Bog Lead Co. v. Montague 122 
 
 Bogg r. Midland Railw. 846
 
 liv 
 
 TABLE OF CASES. 
 
 Bonaparte v. Camden & Amboy 
 
 Railw. 63, 269, 281 
 
 Bond V. Morse 568 
 
 Bonner r. State 655 
 
 Boody r. Rut. & Bur. Railw. 440, 441 
 Booker, ex parte 160 
 
 Boothbv F. Androscoggin & K. 
 
 Railw. 344 
 
 Bordentown & South A. Turnpike 
 
 V. Camden & Amboy Railw. 473 
 Borough of Sewickley 661 
 
 Bosanquet v. Shortridge 118 
 
 Bostofk V. North Staffordshire 
 
 Railw. 249 
 
 Boston & Lowell Railw. v. Boston 
 
 & Maine Railw. 613 
 
 ». Proctor 101 
 
 r. Salem & Lowell Railw. 257 
 
 Boston & Maine Railw. v. Babcock 224 
 
 V. Bartlett 204, 226 
 
 V. County of Middlesex 296 
 
 V. Lawrence 401 
 
 Boston & Providence Railw. r. 
 
 Midland Railw. 282, 387, 390 
 
 Boston & Worcester Railw. v. Old 
 
 Colony & F. R. Railw. 277 
 
 Boston Type & Stereotype Foun- 
 dry r. Spooner 67 
 Boston Water Power Co. v. Boston 
 
 & Worcester Railw. 265, 322 
 
 Boswell r. Townsend 444 
 
 Boughton V. Carter 831 
 
 Boulton r. Crowther 804 
 
 V. Skelebley 153 
 
 Bowen, ex parte 12 
 
 Bowlby F. Bell 129 
 
 Bowman v. Trov & Boston Railw. 474 
 r. Wathen 328 
 
 Boyd r. Chesapeake & Ohio Canal 
 
 Co. 557 
 
 r. Kegley 254 
 
 Boynton v. Peterboro' & Shirley 
 
 Railw. 281, 347 
 
 Brace r. New York Central Railw. 492 
 
 Bracken v. Rushville Gravel Road 220 
 
 Bradley v. Boston & Maine Railw. 542 
 
 r. Holdsworth 111 
 
 r. London &N. W. Railw. 381 
 
 V. N. Y. & N. H. Railw. 55, 
 
 229, 236, 295, 279, 305 
 
 Bradshaw, in re 279 
 
 p. E. & W. I. Docks & 
 
 Birm. J. Railw. 362 
 
 V. Rogers 230 
 
 Brainard v. Conn. River Railw. 225, 
 
 229 
 Brainerd r. Clapp 252 
 
 Brand v. Hammersmith & City 
 lUilw. 292, 339 
 
 Branin v. Conn. & Pass. Railw. 444 
 Branson v. Philadelphia 222, 265 
 
 Braynton v. London & Northwest- 
 em Railw. 388 
 Breed v. Eastern Railw. 363 
 Breedlove r. M. &c. Railw. 68, 180 
 Brewster ». Hough 259 
 Bridges v. Wilts, Somerset & Wey- 
 mouth Railw. 868 
 Briggs, ex parte 644 
 V. Ferrell 689 
 r. Taylor 602, 620 
 Brigham v. Agricultural Branch 
 
 Railw. 892 
 
 Bright r. Hutton 13 
 
 Briglitwell v. Mallory 112 
 
 Briscoe v. Bank of Commonwealth 
 
 of Kentuckj- 260 
 
 British Provident Life Ins. Co., 
 
 ea; j9arie Grady 617 
 
 Broadbent r. Imperial Gas Co. 275 
 Broadway Bank v. McEIrath 155 
 
 Brock V. Conn. & Pass. Railw. 490 
 Brockett v. Railw. 891 
 
 Brooklyn Central & J. Railw. v. 
 
 Brooklyn City Railw. 304, 539 
 
 Brooks V. Buffalo & Niagara Falls 
 
 Railw. 547 
 
 V. New York & Erie Railw. 465, 
 498 
 Broom v. Comm. 79 
 
 Brotherhood, in re 617 
 
 Broughton v. Manchester Water- 
 works 675 
 Brown v. Beatty 264, 335 
 V. Bellows 223 
 V. BjTme 130 
 V. Cayuga & Susquehannah 
 
 Railw. 295, 331, 611 
 
 t>. Chadboume 322 
 
 V. Cincinnati 261 
 
 V. Duplessis 311 
 
 V. Illius 296 
 
 V. Maxwell 518, 528 
 
 V. Overbury 434 
 
 V. Peterson 254 
 
 V. Providence, Hartford, & 
 
 Fishkill Railw. 288, 502 
 V. Providence, Warren, & ■ 
 Bristol Railw. 274, 287 
 Brownlee v. Ohio, Ind., & 111. 
 
 Railw. 160, 174, 203 
 
 Brownlow v. Metropolitan Board 605 
 Bryan v. Lewis 118 
 
 Bryon r. Met. Saloon Omnibus Co. 564 
 Bryson v. Warwick & Birmingham 
 
 Canal Co. 6 
 
 Buck V. Squiers 298 
 
 Buckerridge v. Ingram 111
 
 TABLE OP CASES. 
 
 Buckfield Branch Railw. v. Irish 165 
 Bueknam v. Bucknam 299 
 
 Buffalo r. HoUoway 638 
 
 Buffalo & AUeglmny Railw. v. 
 
 Carey 68 
 
 Buffalo & New York City Railw. 
 
 V. Dudley 165, 199, 207 
 
 Buffalo, Coming, & New York 
 
 Railw. r. Pottle 200 
 
 Buffum V. New York °& Boston 
 
 Railw. 274 
 
 Building Association v. Sende- 
 
 meyer 147 
 
 Bull r. Chapman 15 
 
 Buncombe T. Co. r. McCarson 67 
 Burbridge v.' New Albany & S. 
 
 Railw. 847 
 
 Burgess v. Gray 603, 505, 506 
 
 V. Great Western Railw. 604 
 Burkinshaw p. Birm. & Ox. J. 
 
 Railw. 359, 370 
 
 Burlington & Mo. River Railw. v. 
 
 White 201 
 
 Burmester v. Norris 74 
 
 Bumes v. Pennell 142, 656 
 
 Burnet r. M. Bisco 172 
 
 Burnett t. Lynch 125, 138, 139 
 
 Bums V. Dodge 284 
 
 V. Mill. & Miss. Railw. 254, 336 
 
 Buraside v. Steamboat Co. 454 
 
 Burr V. Wilcox 183 
 
 Burrell v, Jones 568 
 
 Burroughs v. Housatonic Railw. 453 
 
 Burt V. Farrer 64 
 
 Burton, ex parte 13 
 
 ». North Missouri Railw. 476 
 
 r. Phil., Wil.& Bait. Railw. 
 
 295, 472, 513 
 
 V. Railw. Co. 548 
 
 r. The Railway Co. 547 
 
 Bash r. Bevan 623, 659 
 
 r. Steinman 504, 605 
 
 Butler V. Hunter 607 
 
 V. Mehrling 276 
 
 V. Pennsylvania 260 
 
 Butman v. Veraiont Central Railw. 290 
 
 Button r. American Tract Society 60 
 
 Butts V. Woods 670 
 
 Buxton r. N. E. Railw. 476 
 
 C. C. & C. Railw. V. Elliott 467, 488 
 V. Keary 521, 529 
 
 C. H. & D. Railw. r. Waterson 467 
 C. H. & N. W. Railw. v. Goss 504 
 C. P. & A. Railw. r. City of Erie 67 
 C. P. & lud. Railw. o. Smipson 273 
 
 Cabot and West Springfield Bridge 
 
 Co. r. Chapin 176 
 
 Cahill V. Kalamazoo Ins. Co. 84 
 
 Calder Navigation Co. v. Pilling 88, 
 
 92 
 Caledonian Railw. v. Lockhart 382 
 r. Ogilvy 340 
 
 V. Sprot 296 
 
 Caledonian & Dumbartonshire 
 Junction Railway c. Helens- 
 burgh Harbor Trustees 46 
 Callender v. Marsh 304 
 V. Painesville & H. 
 
 Railw. 62 
 
 Cambridge & Somerville v. Charles- 
 town Br. Railw. 644 
 Cam. & Amboy Railw. v. Briggs 236, 
 
 447 
 Camden v. Mulford 661 
 
 Camden Bank v. Halls 126 
 
 Cameron v. Charing Cross Railw. 344 
 Campbell v. Mesier 485 
 
 Canal Commissioners v. People 298 
 Canal Co. v. Archer 262 
 
 Canandaigua & N, Railw. v. Payne 261, 
 
 293 
 Cape Sable Company's Case 111 
 
 Capper r. Earl of Lindsey 40 
 
 Carden r. Gen. Cemetery Co. 652 
 Cardiff C. & C. Company, in re 
 
 Norton 144 
 
 Carie V. B. & P. Canal & R. R. 
 
 Co. 52, 519, 628 
 
 Carlisle ». Cahawba & Marion 
 
 Railw. 172 
 
 Carman v. Steubenville & Ind. 
 
 Railw. 287, 505 
 
 Cannichael, ex par<« 12 
 
 Carnochan v. Norwich & Spalding 
 
 Railw. 348, 358 
 
 Carpenter v. County Commission- 
 ers of Bristol 271,643,644 
 V. Ins. Co. 133 
 
 Carr v. Georgia Railw. & Banking 
 
 Co. 236, 253, 334 
 
 r. Royal Exchange Ins. Co. 127 
 
 Carrington r. Wycomb Railw. 356, 
 
 378 
 Carroll v. New York & New Haven 
 
 Railw. 635 
 
 Carson p. Western Railw. 294 
 
 Carter v. Great Eastern Railw. 368 
 Case V. Thompson 281 
 
 Catchpole v. Ambergate Railw. 145 
 Caterham Railw. v. London & Br. 
 
 Railw. 96 
 
 Cayzer r. Taylor 520 
 
 Central Bridge Corporation v. City 
 of Lowell 265
 
 Ivi 
 
 TABLE OP CASES. 
 
 Central ^Military Track Railw. r. 
 
 Rockafellow 484, 498 
 
 Central Ohio Railway v. Law- 
 rence 475 
 Central Plank-Road Co. v. Clem- 
 ens 199 
 Central Railw. Co. r. Bunn 197 
 r. Hitfield 221 
 Central Railw. r. Kisch 212 
 Central Turnpike Co. v. Valentine 109 
 Centre Turnpike Co. r. Smith 445 
 Chadsey v. MeCreery 62 
 Chamberlain r. East End of Lon- 
 don & Crystal Palace Railw. 342 
 V. Painsville & Hud- 
 son Railw. 81, 173 
 V. West End of Lon- 
 don & C. Railw. 339 
 Chambers r. London, Chatham & 
 
 Dover Railw. 854 
 
 r. Manchester & Mil- 
 ford Railw. 615 
 Champion v. Memphis & Charles- 
 ton Railw. 199, 392 
 Champlain & St. Lawrence Railw. 
 
 r. Valentine 323 
 
 Champlin v. Pendleton 298 
 
 Chandler r. Broughton 513 
 
 Chapin r. Boston & Providence 
 
 Railw. 273 
 
 r. Sullivan Railw. 247, 493 
 V. Venn. & Mass. Railw. 126 
 Chapman v. Albany & Sch. Railw. 
 
 294, 298, 301, 305 
 V. Atlantic & St. Law- 
 rence Railw. 455 
 V. Mad River & Lake 
 
 Erie Railw. 177 
 
 Chappie's Case 157, 192 
 
 Charitable Corporation v. Sutton 577 
 Charles River Bridge v. Warren 
 
 Bridge 70, 236, 257, 260 
 
 Charles River Railway v. County 
 
 Commissioners of Norfolk 350 
 
 Charlestown Branch Railw. v. Mid- 
 dlesex 281 
 Charlotte & S. C. Railw. r. Blake- 
 
 ly 164, 187 
 
 Chase r. New York Central Railw. 
 
 289, 448 
 Chasemore ». Richards 332 
 
 Chatham v. Brainerd 298 
 
 Cheale v. Kenward 133 
 
 Cheltenham & Great Western Un- 
 ion Railw. V. Daniel 124, 182 
 r. Medina 182 
 Cheney v. Boston & Maine Railw. 99 
 Chesapeake & Ohio Canal Co. v. 
 Baltimore & Ohio Railw. 256 
 
 Chester Glass Co. ». Dewey 116, 
 
 162 
 Chestnut Hill Turnpike Co. p. 
 
 Rutter 511 
 
 Chicago, Burlington, & Quincy 
 Railw. V. Cauffman 478 
 
 V. Coleman 573 
 
 r. Parks 91, 104, 105 
 
 V. Wilson 244, 643 
 
 Chicago & Miss. Railw. r. Patch- 
 in, 252, 472, 480, 488 
 Chicago & Mont. Railw. r. Bull 277 
 Chicago & Rock Island Railw. r. 
 Still 547 
 ». Ward 483 
 Child V. Coffin 116 
 V. Hudson Bay Co. 88, 89 
 Childs r. Somerset & Kennebec 
 
 Railw. 411, 440 
 
 Chilton V. London & Croydon 
 
 Railw. 90, 98 
 
 Chinnock, ex parte 157 
 
 Chouteau Sprmg Co. v. Harris 115 
 Church V. Imperial Gas Light Co. 595, 
 
 598 
 c. Northern Central Railw. 
 
 271 
 Cincinnati Coll. p. State 236 
 
 Cincinnati & Spring Grove Ave. 
 
 Railw. V. Cumminsville 310 
 
 Cincinnati, Indiana & Chicago 
 
 Railw. V. Clarkson 207 
 
 Cincinnati, W. & Z. Railw. v. 
 
 Clinton Co. Commissioners 229 
 
 Cin. & Ohio & Miss. v. Ind. & 
 
 Cin. Railw. 588 
 
 City of Cincinnati v. Stone 504 
 
 of London ». Vanacre 79 
 
 of Roxbury ». Boston & 
 
 Providence Railw. 226 
 
 Claflin V. Wilcox 512 
 
 Clarence Railw. v. Great North 
 
 of England Railw. 218, 235 
 
 Clark V. Boston Cone, & Mont. 
 
 Railw. 333 
 
 r. Dickson 141 
 
 V. Guardians of Cuckfield 
 
 Union 596, 598, 599, 601 
 V. Mayor of Syracuse 229 
 
 c. Monongahela Nav. Co. 187 
 p. Syracuse & Utica Railw. 467, 
 468, 487, 498 
 V. Vermont & Canada Railw. 
 
 262, 489 
 
 Clark's Case 89 
 
 Clarke, ex parte 12 
 
 p. Dickson 141, 142 
 
 p. Imperial Gas Light Co. 570, 
 
 676
 
 TABLE OP CASES. 
 
 Ivii 
 
 Clarke, v. Leicestershire & North- 
 ainptonsbire Canal Co. 
 
 648 
 V. M., Sh. & L. Railw. 268 
 V. N. & L. Union Canal 643 
 V. Rochester, L. & N. F. 
 
 Railw. 488 
 
 Clarkson r. Hudson River Railw. 279 
 Clary v. Hoagland 662, 663 
 
 Clay V. Rufford 657 
 
 Clayton v. Carey 655 
 
 Cleaver v. Commonwealth 666 
 
 Clement r. Can6eld 488, 589 
 
 Cleve. & Pittsb. RaUw. v. Ball, 274, 
 
 276 
 V. Kelley 440 
 Cleveland & Toledo Railw. r. 
 
 Prentice 272 
 
 Cleveland Iron Co. v. Stephen- 
 son 565 
 Cleveland, Painesville, & Ashta- 
 bula Railw. r. City of Erie 621 
 Cleveland & C. Railw. r. Bar- 
 tram 101 
 Clipper V. Logan 654 
 Clive p. Clive 151 
 Coates V. Mayor of New York 229 
 Cobb r. Mid Wales Railw. 855 
 V. Roberts 657 
 Cockbum, ex parte 115 
 V. Union Bank 644 
 Cockerell v. Van Dieman^s Land 
 
 Co. 214 
 
 Coe p. Wise 605 
 
 Coffin p. Collins 70, 84 
 
 Coggs p. Bernard 577 
 
 Coil p. Pittsburg Female College 69 
 Colcock p. Louisville Railw. 413 
 
 Colcough r. Nashville & N. W. 
 
 Railw. 272, 295, 335 
 
 Cole p. Crystal Palace Railw. 854 
 
 p. Dyre 669 
 
 Coleman, ex parte 147 
 
 College of Pnysicians p. Salmon 59 
 Collins V. Blantem 573 
 
 V. South Staffordshire 
 
 Railw. 881 
 
 Collinson r. Newcastle & Darling- 
 ton Railw. 846 
 Colman p. Eastern Counties Railw. 81, 
 195, 196, 234, 559, 611 
 Colonial Life Ass. Co. p. Home & 
 
 Col. Life Ass. Co. 61 
 
 Columbia Ins. Co. p. Lawrence 455 
 
 p. Wheelwright 660 
 
 Columbine p. Chichester 185 
 
 Columbus & Shelby Railw. p. 
 
 Watson 490 
 
 Columbus, P. & I. Railw. c. Simpson 262 
 
 Columbus, P. & I. Railw. p. Ind. 
 
 & Belief. Railw. 691, 622 
 
 Colvin p. Tunipike Co. 197 
 
 Commonwealth p. Alger 325 
 
 p. Arrison 655, 668 
 
 p. Boston *& Maine Railw. 
 
 277, 327, 863 
 p. Canal Commissioners 84 
 V. Central Passenger 
 
 Railw. 817 
 
 c. Clarkson 417 
 
 r. Commissioners 626 
 
 V. Commissioners of Al- 
 leghany 659 
 p. Com. Bank 666 
 p. CuUen 197 
 c. Del. & Hud. Canal 
 
 Co. 667 
 
 p. Erie & Northeastern 
 
 Railw. 236, 307, 892 
 p. Farmers' Bank 669 
 
 p. Fisher 283, 304 
 
 p. Fitchburg Railw. 387, 392 
 p. Guardians of the Poor 
 
 of Phil. 626 
 
 p. German Soc. 656 
 
 p. Hartford & New Haven 
 
 Railw. 400 
 
 p. Haverhill 401 
 
 r. Mayor of Lancaster 170 
 p. Morris 69 
 
 p. Penn. Benevolent Inst. 656 
 p. Perkins 642 
 
 p. Philanthropic Soc. 656 
 p. Pittsburgh 623, 624, 642 
 p. Power 94, 95, 98 
 
 p. Richer 231 
 
 p. Roxbury 326 
 
 p. Smith 668 
 
 p. St. Pat. Benevolent 656 
 p. Tewksbury 229 
 
 V. Trustees of St. Mary's 
 
 Church 80 
 
 p. Union Fire & Marine 
 
 Ins. Co. 656, 668 
 
 p. West Chester Railw. 66 
 
 Compton p. Susquehannah Railw. 238, 
 
 283 
 Conn. & Pass. Rivers Railw. p. 
 
 Bailev 159, 164, 198, 204 
 
 Conn. & Pass. Railw. p. Baxter 178, 
 
 174 
 Connecticut & Pass. Railw. p. Hol- 
 
 ton 247 
 
 Connecticut River Railw. p. Clapp 267 
 Concord Railw. p. Greely 2G2, 274, 
 
 275, 338 
 Congor r. Galena, &c. U. Railw. 502 
 Connop p. Levy 13
 
 Iviii 
 
 TABLE OF GASES. 
 
 Conro V. Port Henry Iron Co. 80 
 
 Conservators of the Tone v. Ash 56 
 Contoocook Valley Railw. r. Barker 177 
 Conybeare v. New B. & Canada 
 
 Railw. & Land Co. 142, 564 
 
 Cook V. Parham 523 
 
 Cooke v. Oxley 172, 203, 204 
 
 Cooley V. Brainerd • 364 
 
 Cooling, in re 342 
 
 V. Great Northern Railw. 342, 
 446 
 Coon V. Sy. & Utica Railw. 518, 520, 
 
 528, 529 
 Coop V. Champ. Trans. Co. 453 
 
 Coope V. Glyn 651 
 
 Cope V. Thames Haven Dock & 
 
 Railw. 596 
 
 Copeland v. Northeastern Railw. 123 
 Coppin V. Braithwaite 103 
 
 Corby v. Hill 219 
 
 Corey v. Buffalo, Coming, & N. 
 
 y. Railw. 308 
 
 Cork & B. Railw. v. Goode 192 
 
 Cork & Brandon Railw. v. Caze- 
 
 nove 191 
 
 Cork & Youghal Railw. v. Patter- 
 son 193 
 Cornwall v. Sullivan Railw. 497 
 Cornwall G. C. M. Co. v. Ben- 
 nett 167 
 Corregal v. Lon. & Bl. R. 644, 651 
 Cort V. Ambergate, Not., B. & E. 
 
 J. Railw. 412 
 
 Corwin v. New York & Erie 
 
 Railw. 471 
 
 Coster V. New Jersey Railw. 251, 279 
 Costigan ». Mohawk & Hudson 
 
 Railw. 584 
 
 Cotheal v. Brouer 214 
 
 Cotber V. Midland Railw. 389 
 
 Cott V. Lewiston Railw. 332 
 
 Couch V. Steel : 524 
 
 Cowell V. Buckelew 660 
 
 Cox V. Burbridge 459 
 
 Coy r. Utica & Sch. Railw. 473 
 
 Cozens V. Bognor Railw. 239, 366 
 
 Craig V. Rochester City & Br. 
 
 Railw. ' 809 
 
 Cram v. Bangor House 84 
 
 Crawford v. Chester & Holyhead 
 
 Railw. 889 
 
 V. Delawne 310 
 
 Crawfordsville Railw. v. Wright 513 
 
 Creed v. Lancaster Bank 110 
 
 Crittenden v. Wilson 334 
 
 Crocker v. Crane 66, 190, 278 
 
 ». New London, Willi- 
 
 mantic & Palmer Railw. 
 
 104, 612 
 
 Croft ». Allison 608 
 
 ». London & N. W. Railw. 344 
 Cromford & High Peak Railw. 
 
 V. Lacey 182, 187 
 
 V. Stockport, D. & W. 
 
 Bridge Railw. 25 
 
 Cromford Canal Co. v. Cutts 342 
 
 Crosby v. Hanover 246, 255, 260 
 
 Croskey v. Bank of Wales 15 
 
 Cross V. Mill Co. 165 
 
 Crosse ». Smith 662 
 
 Crouch V. London & N. W. Railw. 446 
 Cruger v. Hudson River Railw. 279 
 Cullen V. Thompson 564 
 
 Cumberland Coal Co. v. Sherman 517 
 Cumberland Valley Railw. c. Baab 32, 
 
 172 
 V. Hughes 605 
 Cumming v. Prescott 85, 151 
 
 Cunliff V. Manchester & Bolton 
 
 Canal Co. 74, 194 
 
 Cunningham v. E. & K. Railw. 174 
 
 V. Rome Railw. 345 
 
 Curran ». State of Arkansas 169 
 
 Currier v. Boston & M. Railw. 276 
 
 V. Lowell 538 
 
 V. Marietta & Cin. Railw. 233 
 
 Curtis V. Eastern Railw. 333 
 
 V. Leavitt 573 
 
 V. Vermont Central Railw. 
 
 271,483 
 Cushman v. Smith 240, 264, 280 
 
 Cutbill r. Kingdom 77 
 
 Cutler V. ^Middlesex Factory Co. 162 
 
 D. 
 
 Dadson v. East Kent Railw. 853 
 
 Dalton r. Midland Railw. 146 
 
 Daly V. Thompson 7 
 
 Dana v. Bank of United States 80 
 
 Danbury & N. Railw. v. Wilson 163, 
 165, 191, 196, 198, 203 
 Dance v. Girdler 11, 22 
 
 Dand v. Kingscote 2 
 
 Danforth v. Smith 376 
 
 Danner v. South Carolina Railw. 470 
 Danville, &c. Co. v. State 666, 670 
 Danville Bridge Co. v. Pomeroy 439 
 D'Arcy v. Tamar, K. & C. Railw. 85 
 Darling v. Neill 662 
 
 Darnley v. London, Chatham & 
 
 Dover Railw. 268, 490 
 
 Dart V. Houston 646 
 
 Dartmouth College v. Woodward 52, 
 
 53, 56, 70, 256 
 
 Dartmouth & Tobay Railw. in re 48
 
 TABLE OF CASES. 
 
 lix 
 
 Dascomb v. Buffalo & State Line 
 
 Railw. 542. 544 
 
 Dater v. Troy T. & Railw. 608 
 
 Daucby r. Brown 115 
 
 Davidson v. Boston & Maine 
 
 Railw. 231, 271, 281, 282, 327, 381 
 
 r. Sevinour 576 
 
 r. Tu'Uoch 142, 567 
 
 Davis V. Charles River Branch 
 
 Railw. 270, 271 
 
 V. Combermere 40 
 
 V. E. T. & Ga. Railw. 239 
 
 r. La Crosse & Milwaukee 
 
 Railw. 336 
 
 r. Lamoille County Plank- 
 Road 605 
 V. Leominster 638 
 V. London & Blackwall 
 
 liailw. 336 
 
 e. Meeting H. in Lowell 88 
 
 F. Russell 284 
 
 Day c. Day 152 
 
 r. Newark India Rubber Co. 57 
 
 r. Owen 88, 93 
 
 Dajton V. Borst 163, 169, 170 
 
 Dean r. Sullivan Railw. 248, 250, 335, 
 
 487 
 Dean and Canons of the English 
 
 Catliedrals 60 
 
 Dearborn v. Boston, C. & Mon- 
 treal Railw. 53, 262. 286 
 Degg p. Midland Railw. 518, 528 
 De Grave v. Mayor of Monmouth 600 
 Del. & Atlantic Railw. r. Irick 197, 
 
 203 
 Delaware Canal Co. r. Sansom 164 
 Denny v. North W. Christian Uni- 
 
 versitv 163 
 
 V. Trapnell 664 
 
 Denton r. Livin^ton 112 
 
 V. Macniel 10 
 
 De Pass's Case 157 
 
 Deposit & G. Life Ass. Co. r. 
 
 Ayscough 191 
 
 Derby r. Phil. & Read. Railw. 508 
 Devlin r. Second Avenue Railw. 426 
 Devoe r. Penrose Ferry Bridge 
 
 Co. 824 
 
 De Varaigne v. Fox 251 
 
 De Wint v. Wiltse 483 
 
 Dewers c. Pike 567 
 
 Dickinson t. Valpy 9 
 
 Diggle r. London & Blackwall 
 
 Railw. 410, 596, 599, 601 
 
 Dillingham v. Snow 56 
 
 Dimes v. Grand Junction Co. 420 
 
 Direct Shrewsburj' and Leicester 
 
 Railw. in re 165 
 
 Directors, &c. r. Railw. 270, 272 
 
 Dixon r. Ranken 522 
 
 Doane r. Scannell 668 
 
 Dobson, ex parte 126 
 
 Dodd V. Salisbury & Y. Railw. 244, 
 
 389 
 Dodge r. Bums 254 
 
 r. County Commissioners 286, 
 287, 288 
 Doe d. Armistead c. North Staf- 
 fordshire Railw. 357, 369, 388 
 Doe V. Bcebe 231 
 r. Bristol & Exeter Railw. 388 
 r. Greorgia Railw. & Banking 
 
 Co. 284 
 
 r. Leeds & Bradford Railw. 365 
 V. Manchester, Bury, & Rosen- 
 dale Railw. 364 
 Domestic <& Foreign Missionary 
 
 Society's Apnea! 60 
 
 Donaldson v. i uUer 585 
 
 Donnahcr v. State of Mississippi 53, 
 
 229 
 Donnigon v. Ch. & N. W. Railw. 488 
 Doo V. London & Croydon Railw. 24, 
 
 359 
 Dorian r. E. Br. & W. Railw. 263, 
 
 274 
 Doubleday v. Muskett 9 
 
 Doughty V. Somerville & Easton 
 
 Railw. 238, 269 
 
 Dovaston v. Payne 250, 299, 497 
 
 Dover & Deal Railw., ex parte 
 
 Mowatt 12 
 
 Dover Harbor r. L. C. & Dover 
 
 Railw. 268 
 
 Downer v. Bank 116 
 
 Downie c. White 159 
 
 Downing r. Mount Washington 
 
 Road Co. 615 
 
 Downton, ear parte 646 
 
 Drake r. Hudson River Railw. 282, 
 
 298, 305 
 
 Draper r. Gordon 136 
 
 c. Noteware 623, 659 
 
 r. Williams 219 
 
 Drew V. New River Co. 536 
 
 V. Sixth Avenue Railw. 516 
 
 Druid, Case of the 514 
 
 Drummond, ex parte 157 
 
 Drybutter v. Bartholomew 111 
 
 Dublin & W. Railw. v. Black I'Jl 
 
 DuBois r. Delaware & Hudson 
 
 Canal Co. 415, 417 
 
 Dudden v. Union 296 
 
 Duke ». Cahawba Nav. Co. 67 
 
 Duke of Norfolk r. Tennant 371 
 
 Dun r. Charleston 334 
 
 Duncan v. Cliamberlayne 151 
 
 r. Hodges 126
 
 TABLE OF CASES. 
 
 Duncan v. Luntley 114 
 
 V. Railroad Co. 521 
 
 Duncuft V. Albrecht 111, 132, 133. 
 
 134 
 Dundalk W. R. r. Tapster 644 
 
 Dunham r. Trustees of Rochester 232 
 V. Troy Union Railw. 557 
 Dunn r. City of Charlestown 218 
 
 r. North Missouri Railw. 443 
 Dunston v. Imperial Gas Co. 410, 570 
 Durfee r. Old Colony & Fall 
 
 River Railw. 615 
 
 Durgin r. Munson 530 
 
 Durham & Sunderland R. v. 
 
 Walker 2, 8 
 
 Durkee v. Vermont Central Railw. 132 
 Dutchess Cotton Manufacturing 
 
 Co. V. Davis 163 
 
 Duvergier r. Fellows 113 
 
 Duxbury r. Vermont Central 
 
 Railw. 639 
 
 Dyer v. Jones 412 
 
 V. Walker & Howard 69 
 
 D^nien v. Leach 519 
 
 E. 
 
 E. & W. I. Docks & B. J. Railw. 
 V. Gattke 295, 334. 338, 371, 651 
 
 Eagle r. Charing Cross Railw. 339 
 
 Eakin v. Raub 281 
 
 Eakright ». L. & N. I. Railw. 67, 174 
 
 Eales V. Cumberland Black Lead 
 Co. 14 
 
 Eames r. Boston & Worcester 
 Railw. 496 
 
 Earl of Lindsay r. Great Northern 
 Railw. 42 
 
 Earl of Shrewsbury v. North Staf- 
 fordshire Railw. 683 
 
 Earle v. Hall 505 
 
 East Anglian Railw. v. Eastern 
 Counties Railw. 27, 32, 42, 196, 614 
 
 East Lancashire Railw. r. Hatters- 
 ley 432 
 r. L. & Yorksh. Railw. 591 
 
 East London Water Works Co. r. 
 Bailey 21 
 
 East Pascagoula Hotel Co. r. 
 West 67, 110 
 
 East Penn. Railw. v. Hiester 274 
 
 r. Hottenstine 274 
 
 East Tennessee & Ga. Railw. v. 
 St. John 548 
 
 East Wh. M. M. Co., in re 147, 646, 
 
 655 
 
 Eastern Counties Railw. ex parte 366 
 V. Broom 102 
 
 Eastham v. Blackburn Railw. 279 
 
 Easton p. Little Miami Railw. 501 
 Eastwood V. Bain 664 
 
 Edgerly v. Emerson 84 
 
 Edinboro' & Dundee Railw. r. 
 
 Leven 359 
 
 Edinburgh & G. Railw. v. Stirling 
 
 & D. Railw. 611 
 
 Edinburgh, L. & N. H. Railw. v. 
 
 Hibblewhite 165, 213 
 
 Edinburgh, Perth, & Dundee 
 
 Railw. V. Philip 37, 47 
 
 Edmondson, in re 663 
 
 Edwards r. Grand Junction Railw. 16, 
 
 17, 19, 34, 46 
 
 V. Great Western Railw. 446 
 
 V. Lowndes 651 
 
 V. Union Bank of Florida 
 
 509 
 Egbert v. Brooks 136 
 
 Elder v. Bemis 605 
 
 Elderton v. Emmens 685 
 
 Electric Tel. Co., in re 157 
 
 V. Bunn 157 
 
 EUicottville Plank-Road v. Buffalo, 
 
 &c. Railw. 299 
 
 Elliott, in re 381 
 
 r. Fairhaven & Westville 
 
 Railw. 312 
 
 V. Northeastern Railw. 342 
 
 V. South Devon Railw. 356 
 
 Ellis r. Coleman 616 
 
 V. Essex Bridge Co. 116 
 
 V. London & Southwestern 
 
 Railw. 466 
 
 V. Marshall 70, 195 
 
 V. Sheffield Gas Consumers' 
 
 Co. 504, 505 
 
 V. Swanzey 298 
 
 Ellison r. Mobile & Ohio Railw. 174 
 Elsworth V. Cole 119 
 
 Elwood V. Bullock 88 
 
 Elysville v. O'Kisco 164 
 
 Embury v. Conner 218, 229 
 
 Emmerson's Case 145 
 
 Enfield Toll Bridge r. Hartford & 
 
 N. H. Railw. 236, 255, 257, 258 
 Enthoven v. Hoyle 125 
 
 Eppes V. U. G. & T. Railw. 208 
 
 Erie & Northeastern Railw. v. 
 
 Casey 262 
 
 Ernest v. Croysdell 617 
 
 p. Nichols 657 
 
 Ernett v. Hudson River Railw. 646 
 Ernst r. Hudson River Railw. 545 
 
 Essex Bridge Co. r. Tuttle 164 
 
 Etty r. Bridges 151 
 
 Eustis r. Parker 63 
 
 Evaus V. Haefner 247, 284
 
 TABLE OF CASES. 
 
 Ixi 
 
 Evans V. Heart of Oak Benefit So- 
 ciety 637 
 Evansville & C. Railw. c. Cochran 263, 
 
 482 
 r. Fitzpatrick 263, 482 
 Vi Stringer 482 
 
 Evansville & Crawfordsville Railw. 
 
 r. Dick 283, 2ol, 309 
 
 Everhart p. West Chester & Phila- 
 delphia Railw. 184, 187, 199 
 Eversiieldr.MidsussexRailw. 244, 389 
 Eward v. Lawrenceburg & Upper 
 Miss. Railw. 514 
 
 F. Street, Matter of 262 
 
 Falconer v. Campbell 70 
 
 Faley p. Hill 422 
 
 Fall River Iron Works e. Old 
 
 Colony & F. R. Railw. 323, 394, 
 
 671 
 Falls r. Belfast & B. Railw. 355 
 
 Farlow, ex parte 345 
 
 Fanners' Bank of Maryland v. 
 
 Iglehart 116 
 
 Famum v. Blackstone Canal Co. 57 
 Farrow p. Vansittart 2 
 
 Farwell t. Boston & Worcester 
 
 Railw. 518, 522, 527, 528, 5l^9, 532 
 Faulkner v. i^rie Railw. 519 
 
 c. Hebard 198 
 
 Faunce r. Burke 408 
 
 Faviell p. Eastern Counties Railw. 349 
 Fawcett r. York & North M. 
 
 Railw. 469 
 
 r. Whitehouse 577 
 
 Feamley p. Morley 445 
 
 Feamside & Dean's Case 140 
 
 Feathcrstonhaugh p. Porcelain Co. 566 
 Feldcr p. liailw. Co. 512 
 
 Feltham v. England 521 
 
 Felts p. Memphis 656 
 
 Fenton r. Trent & Mersey Nav, 
 
 Co. 342, 651 
 
 Fenwick ». Bell 554 
 
 Feoffees of Heriot's Hospital r. 
 
 Gibson 385 
 
 Ferguson v. Brighton & S. C. 
 
 Railw. 354 
 
 Ferris p. Van Buskirk 489 
 
 Fewings p. Tisdal 586 
 
 Ffooks p. London & S. W. Railw. 75 
 Field p. Field 84 
 
 p. I^lean 121 
 
 r. Newport, Ab. & Hereford 
 
 Railw. 445 
 
 V. New York Central Railw. 453 
 
 Field p. Vermont & Mass. Railw. 276 
 Filder p. L. Brighton & South 
 
 Coast Railw. 515, 884 
 
 Finlay r. Bristol & Exeter Railw. 596 
 Finney p. Glasgow & S. W. Railw. 447 
 Fir^t Parish in Sutton p. Cole 60 
 
 Fiser p. Miss. & Tenn. Railw. 110 
 Fish p. Dodge 505 
 
 Fiaher p. Essex Bank 155 
 
 c. Evansville & Crawfords- 
 ville Railw. 201 
 p. Price 121 
 Fishmongers' Co. p. Robertson 595 
 Fitch p. N. H. M. L. & Stoning- 
 
 ton Railw. 593 
 
 Fitchburg Railw. r. Boston & 
 Maine Railw. 220, 270, 272, 327 
 V. Charlestown M. Fire 
 
 Ins. Co. 454 
 
 V. Grand Junction Railw. 
 
 & Depot Co. 405 
 
 Fitzpatrick p. New Albany & Sa- 
 lem Railw. 624 
 Flagg p. Lowber 579 
 Flaniank, ex parte 218 
 Fleming, ex parte 626 
 Fletcher p. Auburn & Syracuse 
 
 Railw. 283, 297, 301 
 
 r. Boston & Maine Railw. 590 
 
 V. Great Western Railw. 296 
 
 r. Rylands 457 
 
 Flower r. London, Br. & S. Coast 
 
 Railw. 235 
 
 Fooks p. Wilts, Somerset, & Wey- 
 mouth Railw. 364 
 Foote V. City of Cincinnati 103 
 Ford p. Ch. & N. W. Railw. 283, 311 
 Forrest p. Manchester, S. & L. 
 
 Railw. 558 
 
 Forster p. Cumberland Valley 
 
 Railw. 350 
 
 Fort Edward, &c. Plank-Road Co. 
 
 p. Payne 170 
 
 Forward p. Hampshire & Hampden 
 
 Canal Co. 256 
 
 Fosberry o. Waterford & Limerick 
 
 Railw. 404 
 
 Foster v. Bank of England 216 
 
 p. Essex Bank 195, 508, 513 
 
 ». Oxford W. & W. R. 85 
 
 V. Walter 60 
 
 Fotherly p. Met. Railw. 644 
 
 Fowler p. Kennebec & Portland 
 
 Railw. 408 
 
 Fox p. Northern Liberties 509 
 
 r. Sute of Ohio 230 
 
 Franklin Ben. Asso. v. Common- 
 wealth 656 
 Franklin Bridge Co. p. Wood 8
 
 Ixii 
 
 TABLE OF CASES. 
 
 Franklin Glass Co. v. Alexander 162 
 V. White 162 
 
 Franklyn v. Lamond 126 
 
 Fraser t'. Whalley 665 
 
 Frazier ». Pennsylvania Railw. 619, 
 
 628 
 Frederick v. Clarke 661 
 
 Freedle v. North Carolina Railw. 273 
 Freeman v. Winchester 164 
 
 Fremont v. Crippen 623 
 
 Fry's Ex'r ». Lex. & Big. S. 
 
 Railw. 109, 165, 198, 199, 392 
 
 Fuller r. Dame 577 
 
 r. Trus. of Academic School 
 
 in Plainfield 656 
 
 Fumiss V. Hudson River Railw. 288, 
 
 835 
 Fyler v. Fyler 150 
 
 G. 
 
 Gage r. Newmarket Railw. 29, 32, 
 
 35,36 
 Gahagan v. Boston & Lowell 
 
 Railw. 551, 553 
 
 Galena & Chicago Railw. r. Grif- 
 fin 479, 494 
 V. Jacobs 549 
 V. Loomis 547 
 V. Yarwood 553 
 Galloway v. Mayor & Commonalty 
 of London & Metropolitan Railw. 237 
 Galvanized Iron Co. v. Westoby 13 
 Gandell v. Pontigny 585 
 Ganettr. Salisbury & Dorset Junc- 
 tion Railw. 408, 433 
 Gano V. State 666, 667 
 Gardiner v. Boston & Worcester 
 
 Railw. 306 
 
 r. Smith 489, 492 
 
 Gardner v. Charing-Cross Railw. 358 
 
 V. Newburgh 228, 281, 282. 
 
 331 
 
 Garrett & Salisbury v. Dorset J. 
 
 Railw. 408, 433 
 
 Garrick v. Taylor 122 
 
 Garris v. Portsmouth & Roanoke 
 
 Railw. 467 
 
 Garrison v. Memphis Ins. Co. 454 
 
 Gaskell r. Chambers 570 
 
 Gawthern v. Stockport, Desley, & 
 
 W. Railw. 321 
 
 Gayle v. Cahawba R. 164 
 
 Gebhart v. Junction Railw. 162 
 
 Gerhard v. Bates 144 
 
 Getty V. Huilson River Railw. 824 
 Gibbons r. Ogden 326 
 
 Gibbs V. Trustees of Liverpool 
 
 Docks 605 
 
 Gibson v. East India Co. 410 
 
 Giesy V. Cincinnati, Wil. & Zanesv. 
 
 Railw. 250, 263 
 
 Gifford V. New Jersey Railw. 196 
 
 Gilbert v. Cooper 6 
 
 ». Havermeyer 847 
 
 Giles V. Hutt 166 
 
 V. Taff Vale Railw. 512 
 
 Gillet V. Moody 170 
 
 Gillett r. Western Railw. 400 
 
 Gillinwaterr. Mad. & Ind. Railw. 524, 
 
 534 
 
 V. Miss. & A. Railw. 238 
 
 Gilman v. Eastern Railw. 530 
 
 V. Hall 412 
 
 Gilpin V. Howell 112 
 
 Gilshannon v. Stony Brook Railw. 520, 
 
 629, 534 
 Gittings V. Mayhew 11 
 
 Glamorganshire Canal Co. v. 
 
 Blakemore 391 
 
 Glass Co. V. Dewey 162 
 
 Gleason v. Briggs 542 
 
 Glover V. London & Northwestern 
 
 Railw. 612 
 
 V. North Staffordshire 
 
 Railw. 233, 293, 371 
 V. Powell 327 
 
 Goddard v. Hodges 13 
 
 r. Pratt 10 
 
 GofF V. Great Northern Railw. 515 
 Gold V. Vermont Central Railw. 277 
 Gold Mining Co. ex parte 584 
 
 Gooday v. Colchester & Stour 
 
 Valley Railw. 16, 30, 43 
 
 Goodman v. Pocock 584 
 
 Goodrich ». Eastern Railw. 330 
 
 V. Reynolds 183 
 
 Goodtitle v. Kibbe 280 
 
 Goodwin v. Glazier 659 
 
 r. Union Screw Co. 572 
 
 Gorman r. Board of Police 656 
 
 V. Pacific Railw. 468, 472 
 
 Goshen Turnpike Co. v. Hurtin 163 
 
 Gould r. Hudson River Railw. 231, 
 
 308, 323 
 Governor & Company of Copper 
 Miners v. Fox 596, 597, 698, 599, 
 
 601 
 Governor & Company of Plate 
 
 Manufacturers v. Meredith 304 
 
 Grady, ex parte 147, 618 
 
 Graflf ». City of Baltimore 286 
 
 r. Pittsburg & Steubenville 
 
 Railw. 119, 183 
 
 Graham, ex parte 69 
 
 r. Birkenhead 75
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Grand Gulf Railw. & Bank 
 
 r. State 648 
 
 Grand J. & Depot Co. v. County 
 
 Commissioners 821 
 
 Grand Junction Railw. r. White 483 
 Grannahan v. Hannibal & St. Jo- 
 seph Railw. 444 
 Grant r. Mechanics^ Bank of Phil- 
 adelphia 117 
 Gratz r. Redd 164 
 Gravenstine's Appeal 76 
 Gray r. Coffin 151 
 p. Hook 677 
 p. Liverpool & Bury Railw. 46, 
 218, 238 
 r. Monongahela Navigation 
 
 Co. 196 
 
 V. Portland Bank 164 
 
 Gravble p. York & Gettysburg 
 
 Turnpike Co. 187, 188 
 
 Gravs p. Lynchb. & Salem Turn- 
 pike Co. 67, 164 
 Great Falls & Conway Railw. p. 
 
 Copp 178 
 
 Great Luxembourg Railw. p. Mag- 
 nay 581 
 Great North of England, Clarence 
 & Hartlepool Junction Railw. p. 
 Clarence Railw. 876 
 Great North of England Railw. p. 
 
 Biddulph 6, 148 
 
 Great Northern Railw. ex parte 866 
 p. Eastern Counties 
 
 Railw. 687 
 
 r. Harrison 436 
 
 p. Kennedy 165 
 
 p. S. Yorks. Railw. 447 
 Gi^at Western Railw. r. Bacon 479 
 p. Birmingham & Ox- 
 ford June. Railw. 38, 
 691 
 p. Decatur 806 
 
 p. Geddis 479 
 
 p. Goodman 103 
 
 p. Helm 478 
 
 p. Metropolitan Co. 144 
 p. Mortbland 479 
 
 p. Oxford, Worcester 
 & Wolverhampton 
 Railw. 621 
 
 Great Western Railw. Co. p. Reg. 
 
 639,640 
 p. Rushout 82, 691 
 
 p. Thompson 484 
 
 Greathed p. S. W. & Dorchester 
 
 Railw. 6 
 
 Green p. African Ep. Meth. Soc. 656 
 
 r. Boody 247 
 
 p. Miller 84 
 
 Gr«en p. Morris & Es'x Railw. 266, 279 
 
 p. Murray 131 
 
 p. S€}inour 70 
 
 p. Winter 186 
 
 Greenaway p. Adams 186 
 
 Greene p. Dennis 8 
 
 Greenville and Columbia R. p. 
 
 Cathcart 166 
 
 p. Coleman 197, 199 
 
 p. Nunnamaker 266 
 
 p. Partlow 261, 2G2 
 
 p. Smith 164 
 
 p. Woodsides 188 
 
 Greenway p. Mead 661 
 
 Greenwood p. Wilton Railw. 270, 338 
 
 Gregory p. Patchett 618 
 
 Gregg p. Gregg 497 
 
 Grizcwood p. Blane 121 
 
 Groux & C. Co. p. Cooper 61 
 
 Guest p. Homfray 225 
 
 Gunn p. London & Lancashire 
 
 Ass. Co. 16, 683 
 
 H. 
 
 H. & P. Plank-Road Co. p. Br)'an 
 
 188 208 
 H. B. Coal Co. P. Teamie ' 167 
 
 Habersham p. Savannah, &c. Canal 
 
 Co. 641 
 
 Hackett p. Boston, Cone. & Mont. 
 
 Railw. 276 
 
 Haddon p. Ayers 682 
 
 Hager p. Reed 182 . 
 
 Hagerstown Turnpike Co. p. 
 
 Creger 8 
 
 Haight p. City of Keokuk 310 
 
 Haines p. Taylor 387 
 
 Haldeman p. Fenn. Railw. 264 
 
 Hale p. Union Mutual Fire Ins. 
 
 Co. 608 
 
 Hall p. Chaffee 226 
 
 p. Norfolk Estuary Co. 118, 131 
 p. Pickering 514 
 
 p. Power 94, 96 
 
 p. Selma & Tenn. Railw. 188 
 p. U. S. Insurance Co. 1 16, 182 
 p. Vt. & Mass. Railw. 41, 42, 670 
 Halloran p. N. Y. & Harlem 
 
 Railw. 466 
 
 Halstead p. Mayor of New York 232 
 Hambro p. Hull & London Fire 
 
 Ins. Co. 664 
 
 Hamdcn p. New Haven & North- 
 ampton Co. 639 
 Hamilton p. Annapolis & Elk 
 
 Ridge Railw. 254, 281
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Hamilton v. New York & Harlem 
 
 Railw. 305 
 
 V. Newcastle & Dan- 
 ville Railw. 568 
 V. Smith 8 
 Hamilton Avenue, Matter of 260 
 Hamilton Plank-Road v. Rice 197, 
 
 203 
 Hammack v. White 462 
 
 Hammon r. Southeastern Railw. 451 
 Hanna r. Cin. & F. W. Railw. 197 
 Hannibal & St. Joseph Railw. ». 
 
 Higgins 531 
 
 V. Rowland 278 
 
 Hannuie v. Goldner 120, 128 
 
 Harborough v. Shardlow 285 
 
 Harbv v. E. & W. I. Docks & B. 
 
 J. Railw. 396 
 
 Hard, Adm'r, v. Vt. & Canada 
 
 Railw. 521, 529 
 
 Harding r. Goodlet 218 
 
 Hare ». London & N. W. Railw. 122, 
 
 612 
 V. Waring 128 
 
 Hargreaves v. Lancaster & Preston 
 
 J. Railw. 42 
 
 V. Parsons 111 
 
 Harlaem Canal Co. r. Seixas 164 
 
 Harrington v. Du Chastel 577 
 
 Harris, ex parte 122 
 
 V. Roof 578 
 
 Harris v. Stevens 97 
 
 Harrisburg v. Crangle 282 
 
 Harrison v. Heathom 9 
 
 V. Lexington & Ohio 
 
 Railw. 220 
 
 Hart V. Mayor of Albany 232 
 
 V. Western Railw. 454 
 
 Hartford & N. H. Railw. ». Boor- 
 man , 156, 185 
 V. Croswell 193, 194 
 V. Kennedy 163 
 Hartly v. Harm an 586 
 Harvard Branch Railway v. Rand 277 
 Harvevw. Lackawanna & Bloomsb. 
 Railw. 265, 345 
 V. Lloyd 271, 363 
 V. Thomas 368 
 Hasking v. Phillips 867 
 Haslett's Executors v. Wother- 
 
 spoon 15 
 
 Has well V. Vermont Central 
 
 Railw. 366 
 
 Hatch V. Vermont Central Railw. 233, 
 264, 293, 304, 331, 341, 343 
 Hattersley v. Shelbume 48, 617 
 
 Hawkes v. Eastern Coimties Railw. 25, 
 26, 32, 34, 36 
 Hawkins, ex parte 375 
 
 Hawley r. Baltimore & Ohio 
 
 Railw. 518, 528 
 
 Hawthorne v. Newcastle-upon- 
 Tyne & N. Shields Railw. 421 
 Hay ». Cohoes Company 286, 511 
 Hayden v. Cabot 539 
 V. Noyes 89 
 Hayes v. Shackford 242 
 r. Western Railw. 618, 520 
 Hayne v. Beauchamp 66, 110 
 Haynes v. Barton 348 
 r. East. Tenn. & Ga. 
 
 RaUw. 521 
 
 r. Palmer 185 
 
 V. Thomas 308 
 
 Ha}'ward v. Mayor of New York 252 
 
 Hazen v. Boston & Maine Railw. 242, 
 
 262, 514 
 Healey v. Story 567 
 
 Heane v. Rogers 10 
 
 Heart v. State Bank 112, 118 
 
 Heaston v. Cincinnati & F. W. R. 67, 
 
 ... . ^ 
 
 V. Cincinnati & C. Railw. 
 
 148, 149 
 Heathcote v. North Staffordshire 
 
 Railw. 43, 641 
 
 Hedges r. Metropolitan Railw. 358 
 Heffner r. Commonwealth 645 
 
 Helm V. Swiggett 646, 655 
 
 Hemingway v. Fernandes 2 
 
 Henderson & Nashville Railw. v. 
 
 Leavell 172 
 
 Henderson v. Australian Royal Mail 
 
 Steam Nav. Co. 597 
 V. Mayor of New Or- 
 leans 281 
 V. Railw. 160, 621 
 Hennessey v. Farrel 409 
 Henry v. Alleghany & Pittsb. 
 
 Bridge Co. 293, 304 
 
 V. Dubuque & Pacific Railw. 
 
 251, 265, 274, 284, 483, 487 
 
 V. Rut. & Bur. Railw. 570 
 
 V. Vennilion Railw. 169, 170, 
 
 187, 206 
 
 V. Vermont Central Railw. 295 
 
 Hentz V. Long Island Railw. 305 
 
 Herbein v. The Railroad 276 
 
 Herkimer M. & H. Co. v. Small 164 
 
 Herrick v, Vermont Central Railw. 
 
 411, 416, 423, 429 
 Herring ». Wil. & R. Railw. 548 
 
 Hersey v. Merrimac Mutual Fire 
 
 Insurance Co.' 275 
 
 Hertford v. Boore 225 
 
 Hester v. Memphis & Charleston 
 
 Railw. 201 
 
 Hetherington r. Hayden 248
 
 TABLE OP CASES. 
 
 Ixv 
 
 Hewett V. Swift 516 
 
 Hewitt V. Price 120, 121 
 
 Hewson v. London & S. W. Railw. 354 
 Hibbard v. New York and Erie 
 
 Railw. 101, 103 
 
 Hibblewhite v. McMorine 120, 121, 
 
 125, 128 
 Hibcrnia Turnpike Co, v. Hender- 
 son 187 
 Hiekock r. Plattsburgh 232 
 Hicks V. Launceston 68 
 Higgins r. Livingstone 669 
 Highland Turnpike Co. v. McKcan 
 
 68, 109, 187, 188 
 Hightowcr v. Thornton 164, 170 
 
 Higley v. Lancaster & Y. Railw. 367 
 Hilcoat r. Arrhbishops of Canter- 
 bury & York 846 
 Hill V. Great N. Railw. 367 
 r. Manchester Waterworks 
 
 Co. 574 
 
 r. Mohawk & H. Railw 263, 264 
 
 V. South Staffordshire Railw. 596 
 
 V. Western Vermont Railw. 248 
 
 Hilles V. Parish 57 
 
 Hilliard v. Goold 91, 104, 106, 557 
 
 V. Richardson 505 
 
 Hilton r. Giraud 111 
 
 Hindu V. Pinkerton 575, 601 
 
 Hitchcock V. Danbury & Norwalk 
 
 Railw. 392 
 
 c. Giddings 143 
 
 Hoagland v. Bell 158 
 
 p. Cin. & F. W. Railw. 163 
 Hoare, ex parte 138, 617 
 
 Hobbittr. London & N. W. Railw. 503 
 Hochster c. De Latour 412 
 
 Hodges r. Kut. & Bur. Railw. 570 
 Hodgkinsonp. National Live Stock 
 
 Ins. Co. 582 
 
 Hodson p. Davies 130 
 
 Hogg r. Zanesville Canal Co. 324 
 
 Holi'omb V. N. H. D. B. Co. 84 
 
 Hohlen r. Rut. & Bur. Railw. 489, 491 
 Hole p. Barlow 337 
 
 V. Sittingbourne & Sheerness 
 Railw. 607 
 
 HoUiday r. St. Leonard's Shore- 
 ditch 606 
 Hollister p. Union Co. 296 
 Holmes v. Gilliland 68 
 r. Higgins 13 
 Homersham p. Wolverhampton 
 
 Waterworks 411,595 
 
 Honnerp. Illinois Central Railw. 618, 
 
 528 
 Hooker p. N. II. & N. Y. Railw. 296 
 pj N. II. & Northampton 
 Co. 289, 331 
 
 Hooker p. Utioa & Minden Turn- 
 pike 250 
 Hop & Malt Company, in re 141 
 Hopkins p. Prescott 577 
 Horn p. Atlantic & St. Lawrence 
 
 Railw. 466, 489 
 
 Hornaday p. Ind. & 111. Cent. R.R. 202 
 Horner's Estate, in re 218 
 
 Horton p. Westminster Improve- 
 ment Comm. 674 
 Hortsman p. Lexington & Cot. 
 
 Railw. 219 
 
 Iloskinj^ V. Phillips 366 
 
 Plotchkiss p. Auburn & Rochester 
 
 Railw. 270 
 
 Ilousatonic Railw. p. Waterbury 468 
 
 Howard p. Gage 637, 656 
 
 p. Wilmington & Susque- 
 
 hannah Railw. 408 
 
 Howden v. Simpson 23, 24 
 
 Howe p. Dirrel 669 
 
 p. Starkweather 112 
 
 Hubbard v. ('happel 63 
 
 p. Russell 331 
 
 Ilubbersty p. Manch., Sheff. & 
 
 Lincolnsh. Railw. 124 
 
 Ilubgh p. N. O. & C. Railw. 524 
 
 Iluddersfield Canal Co. p. Buckley 
 
 165, 182, 184 
 Hudson p. Carman 67, 84 
 
 Hudson & Delaware Canal Co. p. 
 
 N. Y. & Erie Railw. 257 
 Hudson River Railw. p. Cutwater 
 
 283, 868 
 Ilueston V. Eaton & II. Railw. 336 
 Hugh r. N. O. & C. Railw. 526 
 
 Hughes p. Chester & Holyhead 
 Railw. 400 
 
 p. Parker 41 
 
 p. Providence & Worces- 
 ter Railw. 299. 398 
 Hull Co. p. Wellesley 15, 167 
 Humble p. Langston 115, 124, 125, 
 128. 134, 136, 137. 138 
 p. MitcheU 111, 132 
 Humfrey p. Dale 130 
 Hunt p. Adams 126 
 p. Gunli 16 
 p. Shrewsbury & Chester 
 
 Railw. 195 
 
 p. Test 678 
 
 Hurd P. Rut. & Bur. Railw. 487 
 
 Ilutchins, Adm'r v. State Bank 112 
 
 Hutchinson p. Manchester, Bury. & 
 
 Rossendale Railw. 368 
 p. York & Newcastle 
 
 Railw. 501 
 
 p. York. Newcastle. & 
 Berwick R. 6>18, 528
 
 Ixvi 
 
 TABLE OF CASES. 
 
 Hutton 0. London & S. W. Railw. 
 
 217. 288, 371 
 Huyett V. Phil. & Read. RaUw. 453 
 Hyain, ex parte 157 
 
 Hyains v. Webster 243 
 
 Hyatt V. Whipple 68 
 
 m. Central Railw. r. Buckner 544 
 Illinois & Michigan Canal v. Chica- 
 go & R. I. Railw. 260 
 Illinois & Wisconsin Railw. v. Van 
 
 Horn 274, 276 
 
 Illinois Central Railw, v. Davney 515 
 V. Dickerson 496 
 
 V. Goodwin 479 
 
 V. Kanouse 488 
 
 V. Phelps 478, 496 
 V. Reedy 488, 553 
 ». Swearingen 479, 
 494, 496 
 V. United States 230, 
 499 
 V. Williams 496 
 
 Illinois Grand T. Railw. v. Cook 392 
 Illinois River Railw. v. Beers 194 
 
 V. Casey 73 
 
 V. Zimmer 73 
 Imlay v. Union Branch Railw. 307 
 Imperial Gas Light Co. v. Broad- 
 bent 336, 339 
 Imperial Mercantile Credit Asso- 
 ciation, in re 76 
 Ind., &c. Railw. r. Elliott 499, 502 
 V. Meek 491, 502 
 V. Moore 495, 499 
 V. Snelling 499 
 r. Wright 495 
 Ind. & Cin. Railw. v. Guard 496 
 V. Jewett 84 
 V. Kercheval 492 
 V. Kinney 497 
 V. McKinney 496 
 V. Oestel 494 
 Ind. & Cincin. Railw. v. Caldwell 465, 
 
 488 
 
 Ind. & Madison Railw. v. Solomon 603 
 
 Ind. Central Railw. v. Hunter 262, 264 
 
 V. Leamon 494 
 
 Ind., Pittsb., & Cleve. Railw. v. 
 
 Truitt 494 
 
 Indian. Railw. v. Gapen 491 
 
 Indiana & Ebensburg Turnpike 
 
 Co. V. Phillips 195 
 
 Indiana, &c. Railw. v. Fisher 492 
 
 ». Kercheval 494 
 
 Indiana Central Railw. v. Moore 498 
 V. Cakes 270, 
 335 
 Indianapolis Railw. v. Adkins 495 
 
 r. Klein 521, 528 
 ». Love 521, 528 
 V. Sparr 476 
 
 V. Williams 476 
 Indianapolis, &c. Railw. v. Kin- 
 ney 466 
 r. Meek 504 
 V. Townsend 491 
 ». Wharton 477 
 Inge r. Birmingham W. & S. V. 
 
 Railw. Co. 133 
 
 IngersoU v. Stockbridge and Pitts- 
 field Railw. 589 
 Inglis V. Great Northern Railw. 165, 
 
 571 
 
 Ins. Co. V. Smith 118 
 
 V. Woodruff 455 
 
 Irish Peat Co. v. Phillips 15 
 
 Irvin V. Turnpike Co. 198, 256 
 
 Irvine v. Swann 194 
 
 V. Turnpike Co. 194 
 
 V. Walker 194 
 
 Isbell V. N. Y. & N. H. Railw. 499, 
 
 501, 503, 547 
 
 Isham V. Ben. Iron Co. 112 
 
 Jackson ». Cocker 113, 134 
 
 V. Laniphire 236 
 
 V. North Wales Railw. 431 
 r. People 661 
 
 V. Rutland & Burlington 
 
 Railw. 250, 465, 497 
 Jacob V. Louisville 263 
 
 Jacobs V. Peterborough and Shir- 
 ley Railw. 224 
 Jacques v. Chambers 134, 1.50, 151 
 James v. Portsmouth & Concord 
 
 Railw. 442 
 
 V. Woodruff 146 
 
 James River & Kanawha Co. v. 
 
 Turner 262 
 
 Jameson v. Ware 439 
 
 Janes ville v. Milw. & Miss. Railw. 311 
 
 Jarrett v. Kennedy 12 
 
 Jefferson Railw. ». Applegate 491 
 
 V. Dougherty 491 
 
 Jencks v. Coleman 102 
 
 Jenkins ». Union Turnpike Co. 187 
 
 Jennings, ex parte 627 
 
 V. Broughton • 211 
 
 V. Great Western Railw. 106
 
 TABLE OF CASES. 
 
 Ixvii 
 
 Jepherson v. Hunt 348 
 
 Jetter r. New Y. & H. Railw. 608 
 
 Jewell p. Stead 895 
 
 Joel V. Morrison 512 
 
 Johns V. Johns 112 
 
 Johnson, ex parte 657 
 
 r. A. & St. L. Railw. 289 
 
 V. Anderson 298 
 
 r. Bank of United States 126 
 
 V. Concord Railw. 101 
 
 r. Hudinon River Railw. 548 
 
 V. MeKessack 664 
 
 V. Shrewsbury & B. 
 
 Railw. 588 
 
 r. Wabash & M. V. 
 
 Railw. 205 
 
 Johnston v. S. W. R. R. Bank 66 
 
 Joliet. &c. Railw. p. Barrows 662 
 
 Joliet & N. I. Railw. p. Jones 467 
 
 Jones p. Bird 606 
 
 r. Chainl>erlain 441 
 
 p. Mersey Board 605 
 
 p. Portsmouth & Concord 
 
 Railw. 441 
 
 p. Waltham 538 
 
 Josephs p. Pebrer 135 
 
 Joy p. Jackson & Michigan Plank- 
 Road Co. 71 
 Jubb p. Hull Dock Co. 346, 662 
 Judson p. New York & New 
 
 Hayei) Railw. 40O 
 
 Junction Railw. p. Reeve 205, 575 
 Justice, &c. p. Hunt 661 
 
 K. 
 
 K. P. & R. Railw. p. Marsh 392 
 
 Kartri<<;lit p. Buffalo Commercial 
 
 Bank 146 
 
 Kcan p. Johnson 74 
 
 Kea.«<y p. Louisville 264 
 
 Keech p. Bait. & Wash. Railw. 68, 
 
 476 
 Keegan p. Western Railw. 518 
 
 Keith p. Cheshire Railw. 488. 489 
 
 Kellogg p. Krauser 276 
 
 Kelly p. Mayor of New York 504 
 
 Kemp p. London & Br. Railw. 359 
 Kems p. O'Reilly 416 
 
 Kennard p. Burton 546 
 
 Kcnnelwc & Portland Railw, p. 
 
 Kendall 164 
 
 P. Waters 160 
 
 Kennedy p. Colton 205 
 
 p. Panama Mail Co. 212 
 
 Kennett Nav. Co. p. Withington 335 
 
 Kennett's Petition 294 
 
 Kenosha, Rookford,& Rock Island 
 
 Railw. p. Marsh 198 
 
 Kent p. N. Y. Central Railw. 444, 586 
 Kentucky, Louisville, &c. Railw. 
 
 p. Milton 484 
 
 Keppell p. Bailey 2 
 
 Kerr, Matter of 258 
 
 Kerridge p. Hesse 9 
 
 Kerwhacker p. C. C. & C. Railw. 488, 
 
 547 
 Kerwin, ex parte 126 
 
 Kidwcll p. Bait. & Ohio Railw. 417 
 Kidwelly Canal Co. p. Raby 6, 203 
 Kimball p. Cocheco Railw. 347 
 
 p. Kennebec & Portland 
 
 Railw. 279 
 
 Kimble p. White Water Valley 
 
 Canal 334 
 
 King p. Boston & Worcester Railw. 518 
 r. Brecknock & Abberga- 
 venny Canal Naviga- 
 tion 626 
 p. Bristol Dock Co. 342, 642 
 p. Chipping Norton 111 
 p. Conmiissioners of Man- 
 chester 859 
 p. Commissioners of Thames 
 
 & Isis 342 
 
 p. Commissioners under Lon- 
 don Dock Acts 375 
 p. Dr. Gower 644 
 p. Elliott 65, 110, 190 
 p. Great Marlow 84 
 V. Gray's Inn 655 
 p. Hungorford Market Co. 359 
 p. Inhab. of Pennegoes 661 
 p. Justices of West Riding 
 
 of Yorkshire 648 
 
 p. Justices of York 643 
 
 p. Langhorn 77, 82 
 
 p. Leeds & Sclby Railw. 342 
 p. London Dock Co, 342 
 
 p. Newcastle-upon-Tyne 627 
 p. Pagham 304 
 
 p, Pasmore 70 
 
 p. Pease 462 
 
 p. Pedley 505 
 
 p. Proprietors of Bir. Canal 636 
 V. Northlcach & Witney 
 
 Roads ' 625 
 
 p. Theodorick 77 
 
 p. Wilts & Berks Canal Nav. 625 
 p. Whitaker 84 
 
 p. Win wick 84 
 
 p. Witham Nav. Co. 376 
 
 p. Wvcombe Railw. 354, 858 
 Kirk p. Bell 562 
 
 p. Guardians of Bromley 
 
 Union 411
 
 Ixviii 
 
 TABLE OF CASES. 
 
 Kish r. Venezuela Railw. 665 
 
 Klein v. Alton & Sangamon 
 
 Railw. 164, 188 
 
 Knapp V. L. C. & Dover Railw. 857 
 
 r. MiAuley 239 
 
 Knight V. Abert 466 
 
 V. Barber 111 
 
 r. Carrolton Railw. 391 
 
 V. Fox 603 
 
 V. Toledo & Wabash Railw. 496 
 
 Knorr v. Germantown Railw. 334 
 
 Knox Co. V. Aspinwall 626, 642 
 
 Koch t?. Dauphin 251 
 
 Kramer r. Cleve. & Pittsb. Railw. 274 
 
 Kyle r. Auburn & Roch. RaUw. 290, 
 
 481 
 
 L. 
 
 L. & Y. Railw. V. Evans 341, 371 
 
 Lacharme r. Quartz Rock Mari- 
 posa Gold Mining Co. 654 
 Lackland r. Xorth Missouri Railw. 312 
 Lade r. Shepherd 301 
 Lafayette & Ind. Railw. c. Shriner 
 
 466, 468, 490, 497 
 Lafayette Plank-Road Co. v. New 
 
 Albany, &c. Railw. 288, 292, 344 
 Laird v. Birkenhead Railw. 226 
 
 Lake v. Butler 395 
 
 17. Duke of Argyll 13 
 
 Lake Erie, &c. Railw. v. Eckler 444 
 Lake Ontario, A. & N. Y. Railw. 
 
 V. Mason 148, 190, 191 
 
 Lamb v. Lynd 644 
 
 Lamert v. Heath 130 
 
 L'Anioureux v. Gould 204 
 
 Laniprell v. Billericay Union 596, 597, 
 
 598, 599 
 Lancashire & Y. Railw. r. Evans 341 
 V. East L. Railw. 611 
 Lancaster & Carlisle Railw. v. 
 
 Maryport & Carlisle Railw. 321 
 Lancaster Canal Co. r. Pamaby 602 
 Lances' Appeal 229 
 
 Lane, ex parte 147, 572 
 
 Langley v. Boston & Maine Railw. 590 
 Langlois v. Buffalo & Rochester 
 
 Railw. 490, 520 
 
 Lantis, in re 664 
 
 Lathrop's Charity 348 
 
 Lauderbrun v. Duffy 288 
 
 Laugbamr. Great Northern Railw. 367, 
 
 371 
 Laugher r. Pointer 503, 606 
 
 Lawrence r. Great N. Railw. 288, 331, 
 
 341 
 V. Knowles 129 
 
 Lawrenceburg & Upper Miss. 
 
 Railw. r. Montgomery 534 
 
 Lawton V. Fitchburg Railw, 483 
 
 Leach v. Fobes 132 
 
 Lead Mining Co. v. Merryweather 583 
 Leame v. Bray 512 
 
 Leavitt r. Towle 299 
 
 Lebanon v. Alcott 335 
 
 Lee V. Milner 874, 635, 657 
 
 Leech v. Caldwell 416 
 
 Leeds & T. Railw. v. Feamley 191, 192 
 Lefever r. Lefever 141 
 
 Legg r. Belfast & Bellamy Railw. 348 
 Lehigh Val.ey Railw. v. Lazarus 290 
 V. Trone 288, 
 329 
 Leigh p. Hind 394 
 
 Lemmex r. Vermont Central Railw. 
 
 289 
 Leominster Canal Co. v. Shrews- 
 bury & Hereford Railw. 592 
 Leonardsville Bank v. Willard 68 
 Lesher v. Wabash Nav. Co. 241, 246 
 Levering v. Railway Co. 238 
 Leviston r. Junction Railw. 335 
 Lewey's Island Railw. v. Bolton 166 
 Lewis V. Billing 6 
 V. New Y. Central Railw. 449 
 V. Railw. 347 
 V. Robertson 110 
 r. Smith 13 
 Lewis V. Wilra. & Manchester 
 
 Railw. 348 
 
 Lewiston r. County Commissioners 242 
 Lexington & Ohio Railw. v. Apple- 
 gate 305 
 Lexington & Ohio Railw. v. Onns- 
 
 by 224 
 
 Lexington & West Cambridge 
 Railw. V. Chandler 164, 166, 176, 
 
 187 
 V. Staples 167 
 
 Lichfield v. Simpson 338 
 
 Lincoln v. Saratoga & Schenecta- 
 dy Railw. 272 
 Lincoln & K. Bank v. Richardson 195 
 Lind V. Isle of Wight Ferry 357, 639, 
 
 641 
 Lindsay r. Commissioners 285 
 
 Lindsey v. Att'y Gen. 666 
 
 V. Luckett 656 
 
 Lindus p. Melrose 567 
 
 Linfield r. Old Colony Railw. 542, 
 
 611 
 Lister v. Labley 282 
 
 Littler. Newport, A. &H. Railw. 242, 
 
 389 
 
 Little i^Iiami Railw. v. Collett 263 
 
 V. Naylor 391
 
 TABLE OF CASES. 
 
 Ixix 
 
 Little Miami Railw. v. Stevens 521, 
 
 258 
 Littleton Manuracturiitg Co*, v. 
 
 Parker 177 
 
 Livennore v. Jamaica 263, 278 
 
 Livingston c. Lynch 194 
 
 r. Mayor of New York 
 
 298 
 Lloyd r. Mayor of New York 611 
 Loch r. Venables 152 
 
 Loder p. Kckule 182 
 
 Lodge No. 1 V. Ix)dge No. 1 74 
 
 Ixtgan V. Courtown 187 
 
 Londesborougli, ear pflrr/e 11 
 
 London, B. & S. C. Railw. in re 848 
 V. L. & S. W. & Ports- 
 mouth Railw. 588 
 London & Bir. Railw. r. Grand 
 
 Junction Canal Co. 336, 876 
 V. Winter 602 
 London & Blac-kwall Railw. r. 
 Board of Works 279 
 
 r. Letts 348 
 
 London & Brighton Railw. r. 
 Fairclough 120, 126, 165 
 
 r. Wilson 186 
 London & N. W. Railw. p. Ack- 
 
 royd 222 
 
 V. Bradlev 341, 371 
 p. McMichael 179 
 p. Skerton 404 
 
 p. Smith 371 
 
 Ix>ndon & 8. W. Railw. ex parte 
 
 Stevens 366 
 
 p. Southeastern Railw. 588 
 London Dock Co. p. Knebell 39 
 
 V. Sinnott 600 
 
 London Grand J. R.iilw. p. Free- 
 man 1.56, 181 
 V. Graham 6, 156, 182 
 London Insurance v. London & 
 
 Westminster Insurance Co. 61 
 
 Londonderry & Coleraine Railw. 
 
 in re 148 
 
 Long Island Railw., Matter of 81, 92, 
 156, 485, 6(]8 
 Lord p. Wormwood 497 
 
 Lord Belhaven's Case 560 
 
 Lord James Stuart p. London & 
 
 Northwestern Railw. 27, 35, 37, 39 
 Lord Petre p. Eastern Counties 
 
 Railw. 25, 46 
 
 Lord Shrewsbury p. North Staf- 
 
 fortlshire Railw. 16 
 
 Lorymer p. Smith 118 
 
 Lou. & Frankfort Railw. p. Ballard 
 
 475, 501 
 Louisville, Cincinnati, & Charleston 
 Railw. p. Letson 72 
 
 Louisville & Frankfort Railw. p. 
 
 Milton 467, 486 
 
 Louisville & Nashville Branch Turn- 
 pike Co. p. Nasliville & Ken- 
 tucky Turnpike Co. 881 
 Louisville & Nashville Railw. v. 
 
 Collins 526 
 
 p. Thompson 219, 262 
 
 Louisville Railw. p. Chap(>el 285 
 
 Lovering p. Railw. 263 
 
 I^w p. Conn. & Pass. Railw. 41, 49 
 
 p. Galena & Chicago Union 
 
 Railw. 244i 661 
 
 I^wber p. Mayor of New York 579 
 
 Lowe p. E. «&'K. Railw, 205 
 
 V. London & N. W. Railw. 437, 
 
 696 
 
 Lowell V. Boston & Lowell Railw. 
 
 604, 613, 635 
 Lowry p. Muldrow 183 
 
 Ludlow p. New York & Harlem 
 
 Railw. 220 
 
 Lund, ex pari e 157 
 
 p. Midland Railw. 236 
 
 Lunt p. London & N. W. Railw. 551 
 Lycoming County p. Gamble 448 
 
 Lyman p. Boston & Worcester 
 
 Railw. 452 
 
 p. Norwich University 650 
 Lyndsay p. Conn. & Pass. Rivers 
 
 Railw. 472 
 
 Lyon p. Jerome 241, 281 
 
 M. 
 
 M. & M. Railw. p. Hodge 668 
 
 M. & M. Savings Co. p. O. F. Hall 
 
 Ass. 671 
 
 Macedon & Bristol Plank-Road p. 
 
 Lapham 203 
 
 Macedon Plank-Road r. Lapliain 197 
 MacGregor p. Dover & Deal Railw. 
 
 27, 32, 42, 196 
 Macham p. Fitchburg Railw. 364 
 
 Mackey p. New lork Central 
 
 Railw. 644 
 
 Maclaren p. Stainton 162 
 
 Macon p. Macon & Western Railw. 236 
 Macon & Western Railw. p. Davis 
 
 471, 542 
 V. McConnell 345 
 Mad. & Ind. Railw. p. Kane 487 
 
 Maddick p. Marshall 14 
 
 Maddox p. Graham 650 
 
 Madison <& I. Railw. p. Bacon 518, 
 
 528 
 Magetti v. N. York & Harlem Railw. 
 
 536
 
 Ixx 
 
 TABLE OP CASES. 
 
 Mahon v. Utica & Sch. Railw. 297 
 Maiden & Melrose Railw. v. 
 
 Charlestowii 399 
 
 Maltby v. N. W. Va. Railw. 166 
 
 Manchester & Lawrence Railw. r. 
 
 Fisk 447 
 
 Manchester & Leeds Railw. v. 
 
 Re^inam 405 
 
 Manchester, Sh. & Lincolnshire 
 
 Railw. V. Great Northern Railw. 250 
 
 V. Wallis 465, 497 
 
 V. Ward 456 
 
 Mangles v. Grand Collier Dock Co. 
 
 156, 159, 187 
 Manley r. St. Helen's Canal & 
 
 Railw. Co. 533 
 
 Mann v. Cooke 156, 163, 207 
 
 ». Currie 156, 164, 182 
 
 V. Great S. & W. Railw. 266, 
 
 333, 487 
 
 V. Pentz 159, 164, 170, 185 
 
 Manning v. Commissioners under 
 
 W. I. Dock Act 375 
 r. Eastern Counties Railw. 
 
 374 
 Manser v. N. & E. Railw. 336 
 
 Mansfield & Sandusky Railw. v. 
 
 Veeder 416 
 
 March r. C. & P. Railw. 331 
 
 Marine Bank of Chicago v. Ogden 
 
 409 
 Markham ». Brown 94 
 
 Markwell, ex parte 13 
 
 Marlborough Man. Co. v. Smith 116, 
 
 118, 557 
 Marquis of Salisbury v. Great 
 
 Northern Railw. 309, 357 
 
 Marriage v. Eastern Counties 
 
 Railw. &c. 355 
 
 Marsh ». N. Y. «& Erie Railw. 467 
 Marshall v. Bait. & Ohio Railw. 577 
 J}. Burton 663 
 
 V. Queensborough 575 
 
 r. Stuart 522 
 
 Martin, ex parte 281 
 
 V. Board of Police 656 
 
 V. Lon., Ch., & Dover 
 Railw. 848 
 
 Mason v. Brooklyn & Newtown 
 RaUw. 393 
 
 r. Kennebec & Portland 
 
 Railw. 270, 288, 334 
 V. London, Chatham, & 
 
 Dover Railw. 362 
 
 ». Stokes 639 
 
 Mass. Iron Co. v. Hooper 118 
 
 Masterton v. Mayor of Brooklyn 412 
 Maudslay, ex paiie 12 
 
 Maundv. Monmouthshire Canal Co. 510 
 
 Maunsell v. M. Great Western 
 
 (Ireland) Railw. 48, 617 
 
 May V. Burdett 460 
 
 Mayo Co. in re 661, 664 
 
 Mayor v. Randolph 304 
 
 Mayor and Burgesses of Lynne 
 
 Regis. 60 
 
 Mayor, «S:c. of City of New York ». 
 
 Second Avenue Railw. 221 
 
 Mayor, &c. of Pittsburg v. Penn. 
 
 Railw. 264 
 
 Mayor of Lichfield v. Simpson 336 
 Mayor of Ludlow ». Charlton 410, 
 595, 597, 598 
 Mayor of Lynn v. Denton 215 
 
 Mavor of New York v. Bailey 505 
 V. Furze 332 
 Mavor of Norwich v. Norfolk 
 
 Railw. 35, 614 
 
 Mayor, &c. of Savannah v. State 658 
 !Mayor of Southampton v. Graves 214 
 Mazetti ». N. Y. & Harlem Railw. 539 
 McAllister v. Ind. & Cin. Railw. 174 
 McArdle v. Irish Iodine Co. 599 
 
 McAulay v. Western Vermont 
 
 Railw. 284 
 
 McCall V. Byram Manuf. Co. 57 
 
 V. Chamberlain 477 
 
 McClaskv V. Grand Rapids & Ind. 
 
 Railw." 87, 162 
 
 McCluer v. Manchester & Law- 
 rence Railw. 590 
 McClusky V. Cromwell 444 
 McConnell v. Caldwell 662 
 McCool V. Galena & Chicago Union 
 
 Railw. 501 
 
 McCormack v. Terre Haute & 
 
 Richmond Railw. 334 
 
 McCormick v. Lafayette 282 
 
 McCoy V. Harnett Co. 630, 642 
 
 McCready v. Railw. Co. 453 
 
 McCullough V. Annapolis & Elk 
 
 Ridge R. 84 
 
 McCullough V. Maryland 55 
 
 McDaniels v. Flower Brook Man. 
 
 Co. 79 
 
 McDougall ». Jersey Imperial Ho- 
 tel Co. 65, 144 
 McDowell V. N. Y. Central Railw. 493 
 McElroy v. Nashua & Lowell 
 
 Railw. 602 
 
 McEwen v. Woods 129 
 
 McFarland v. Orange & Newark 
 
 Horse-Car Railw. 393 
 
 McGatrick v. Wason 523 
 
 McGinity v. Mayor of New York 605 
 McGowin v. Remington 133 
 
 McGregor v. Official Manager of 
 
 Deal & Dover Railw. 614
 
 TABLE OF CASES. 
 
 Ixxi 
 
 Mc-Heran v. Melven 662 
 
 Mclntire v. State 261 
 
 Mcintosh V. Great Western Railw. 481 
 V. Midland Counties 
 
 Railw. 424 
 
 MiKinley v. Ohio, &e. Railw. 496 
 McLaughlin v. Charlotte & S. C. 
 
 Railw. 30.5, 338 
 
 r. D. &M. Railw. 69, 210 
 
 c. Pryor 518 
 
 ^IcMahan r. Morrison 197 
 
 McMahon v. Cincinnati Railw. 268 
 
 McManus r. Carmichael 828 
 
 p. Crickott 609, 618 
 
 McMasters r. Commonwealth 264 
 
 McMichael ». London & N. W. 
 
 Railw. 191 
 
 McMillan r. Maysville & Lexing- 
 ton Railw. 166, 178 
 V. Railroad Co 618 
 
 V. Saratoga & Wash. 
 
 Railw. 490, 618, 624 
 p. Scott 136 
 
 McRae v. Russell 188 
 
 McRee p. Wilmington & Raleigh 
 
 Railw. 257 
 
 Mcacham v. Fitchburg Railw. 261, 270 
 Mead v. Keeler 68, 678 
 
 Mcason's Estate 111 
 
 Meikel v. German Savings Fund 
 
 Society 62 
 
 Mellen v. Western Railw. 831 
 
 Mellors p. Shaw 518, 628 
 
 Memphis & Charleston Railw. v. 
 
 Payne 284 
 
 Memphis & Charlotte Railw. p. 
 
 Bibb 474 
 
 Memphis Freight Co. p. Memphis 229 
 Memphis Railw. p. Wilcox 426 
 
 Menilon p. County Comm. 661 
 
 Mercer p. McWilliams 240, 282 
 
 p. Whall 267 
 
 Mercer County p. Pittsburgh & 
 
 Eric Railw. 441 
 
 Merrihew p. Milwaukie & Mis- 
 
 sissinpi Railw. 104 
 
 Merrill p. Ithaca & Oswego Railw. 442 
 Merritt p. Northern Railw. 219 
 
 Mersey Docks p. Gibbs 649 
 
 Mersey Docks & Harbor Board p. 
 
 Penhallow 605 
 
 Met. Railw. p. Woodhouse 367 
 
 Aletcallc p. Hetherington 606 
 
 Methodist Episcopal Church p. 
 
 Jacques 136 
 
 Mexican & South Am. Co. in re 157 
 
 Meyer p. North Missouri Railw. 476 
 
 Mich. Southern & Northern Ind. 
 
 Railw. p. Fisher 469 
 
 Michigan, &c. Railw. r. Shannon 492 
 Micklethwait p. Winter 266 
 
 Middlesex Turnpike Co. v. Lock 194 
 r. Swan 162 
 Middletown Bank p. Magill 116 
 
 Midland Counties Railw. v. Oswin 218, 
 
 876 
 Midland G. W. Railw. e. Gordon 6, 
 
 7, 166 
 Midland Railw. p. Davkin 466 
 
 Miers p. Z. & M. T. Co. 170 
 
 Mifllin p. Ilarrisburg, Portsmouth, 
 
 M. & L. Railw. 804 
 
 Mil. & Miss. Railw. t. Eble 489 
 
 Milburn p. Citv of Cedar Rapids 810 
 Miles p. Bough ' 148, 672 
 
 Milhau p. Sharp 233, 806 
 
 MillDam Co. p. Dane 196 
 
 Miller p. Auburn & Syracuse 
 
 Railw. 219, 297 
 
 p. Ewer 67 
 
 p. Illinois Central Railw. & 
 
 Schuyler 133 
 
 p. Pittsburg & Connellsville 
 
 Railw. 175, 207 
 
 r. Second Jefferson Build- 
 ing Association 186 
 MilUgan p. Wedge 603 
 Milner p. Field 434 
 Milnes p. Gery 228, 434 
 Milnor p. Georgia Railw. & Bank- 
 
 - ing Co. 416 
 
 p. New Jersey Railw. 260 
 
 p. Railway Companies 324 
 
 Milwaukie & Miss. Railw. p. Eble 264, 
 280, 483, 487 
 Mims p. Macon & W. Railw. 862 
 
 Miners' Bank p. United States 64 
 
 Minhinnah p. Haines 642 
 
 Minor p. Mechanics' Bank of Alex- 
 andria 64 
 Minot P. Curtis 60 
 Mississippi Central Railw. p. Mil- 
 ler 479 
 Miss. & Mo. Railw. p. Byington 264 
 Miss., &c. Railw. p. Cross 666, 669 
 Miss. & Tcnn. Railw. p. Harris 110 
 Miss., O. & R. Railw. p. Cross 892 
 Mitchell p. Alestree 451 
 p. Crassweller 612 
 p. Ne whall 129 
 p. Rockland 666 
 p. Rome Railw. 188, 194 
 Mixer's Case, in re. Royal British 
 
 Bank 666 
 
 Mohawk & Hudson Railw., Matter 
 
 of 82 
 
 Mohawk Bridge Co. r. Utica & 
 Sch. Railw. 257
 
 Ixxii 
 
 TABLE OP CASES. 
 
 Mold V. Wheatcroft 226, 861 
 
 Monchet v. G. W. Railw. 371 
 
 Money v. Macleod 677 
 
 Moneypcnny v. Hartland 9 
 
 Monkland & Kir. Railw. v. Dixon 377 
 Monmouth Canal Co. v. Harford 3 
 Monongahela Navigation Co. r. 
 
 Coons 231, 233, 293 
 
 Montgomery & West Point Railw. 
 
 V. Varner 274 
 
 Monypunny v. Monypenny 40 
 
 Moore v. Fitchburg Railw. 616 
 
 V. Great Southern & West- 
 ern Railw. 339 
 V. Hudson River Railw. 438, 
 441 
 V. New Albany & Salem 
 
 Railw. 199 
 
 Moorhead v. Little Miami Railw. 236, 
 
 391 
 Morgan v. Birnie 417 
 
 V. King 330 
 
 V. New York & Albany 
 
 Railw. 170 
 
 V. Vale of Heath Railw. 518 
 
 Morris & Essex Railw. v. Blair 321 
 
 V. Newark 294, 
 
 306 
 
 Morris Canal & Banking Co. v. 
 
 Ryerson 344 
 
 V. Townsend 87 
 
 Morrison v. Steam Nav. Co. 647 
 
 Morse, Petitioner 266, 628, 645 
 
 V. Auburn & Syracuse 
 
 Railw. 613 
 
 r. Rut. & Bur. Railw. 497 
 
 Morss V. Boston & Maine Railw. 487 
 Mortimer v. Mt;Callan 121 
 
 V. South Wales Railw. 373 
 Morton v. Barrett 136 
 
 Moshier v. Utica & Sch. Railw. 473 
 Mount Washington Road Co., 
 
 Matter of 264 
 
 Mowatt, ex parte 11, 12 
 
 V. Londesborough 12 
 
 Mozley v. Alston 86, 591 
 
 Mullins V. People 661 
 
 Mumma v. Potomac Co. 170 
 
 Munger v. Tonawanda Railw. 251, 
 
 253, 498 
 Munn V. Barnum 128 
 
 Munt V. Shrewsbury & Chester 
 
 Railw. 195, 196 
 
 Murch V. Concord Railw. 589, 603 
 Murd^ck's Appeal 646 
 
 Murphy v. City of Chicago 222, 540 
 Murray v. De Rottenham 136 
 
 V. Railroad Co. 398, 470, 554 
 V. South Car. Railw. 518, 628 
 
 Mutual Savings Bank v. Meriden 
 
 Agency Co. 675 
 
 Myers v. Myers 136 
 
 V. Perigal 111 
 
 N. 
 
 N. B. & C. L. Co. V. Muggeridge, 122, 
 
 565 
 N. C. Railw. V. Leach 160 
 
 N. Hampshire Central Railw. v. 
 
 Johnson 175 
 
 N. O. & C. Railw. v. Second Mu- 
 nicipality of New Orleans 391 
 N. Penn. Railw. v. Rehman 248 
 N. Y. & N. H. Railw. v. Ketchum 571 
 Napier, ex parte 644 
 Narragansett Bank v. Atlantic 
 
 Silk Co. 215 
 
 Nash, ex parte 654 
 
 Nashville & C. Railw. v. Cowardin 391 
 Nashville & Ch. Railw. v. Peacock 490 
 Nashville Railw. v. Cowardin 246 
 
 V. Dickerson 262 
 
 Nason ». Woonsocket Union Railw. 
 
 290 
 Nathan v. Whitlock 169, 170 
 
 Natusch V. Irving 194, 195 
 
 Neal V. Pittsburgh & Connelsville 
 
 Railw. 239 
 
 Neall ». Hill 668 
 
 Nellis V. New York Central Railw. 
 
 448 
 Nelson v. Eaton 575 
 
 r. Vt. & Canada Railw. 589 
 Nesbitt V. L. C. & C. Railw. 413, 417 
 Neuse River Nav. Co. v. Commis- 
 sioners of Newbern 210 
 Neville v. Wilkinson 18, 45 
 Nevins v. Henderson 14 
 Nevitt V. Bank of Port Gibson 170 
 New Albany, &c. Railw. v. Hig- 
 
 man 295 
 
 ». Huff 295 
 
 V. McNaraara 467 
 
 V. Pace 494 
 
 New Albany & Salem Railw. v. 
 
 Conelly 335 
 
 ». Grooms 629 
 
 V. Maiden 494 
 
 V. Pickens 164 
 
 V. Tilton 494 
 
 New Albany Railw. v. O'Daily 312 
 New Bedford Turnpike Co. ».. 
 
 Adams 162 
 
 New Hampshire Central Railw. v. 
 Johnson 165, 176
 
 TABLE OP CASES. 
 
 Ixxiii 
 
 New Jersey Railw. r. Suytlam 2fi7 
 New London v. Brainard 286 
 
 New Orleans & O. Railw. v. I^a 216 
 New Orleans, &c. Railw. v. Har- 
 ris 73 
 New Orleans, Jai^kaon, &c. Railw. 
 
 r. Harris 72 
 
 New River Co. v. Johnson 339 
 
 New York & Erie Radw. r. Skin- 
 ner 470, 484, 486, 487, 498 
 ». Younfj 24o 
 
 New York Central Railw. in re 2o3 
 r. Marvin 279 
 New York Citv River R. r. Pat- 
 rick ' 184 
 New York Exchange Co. v. De 
 
 Wolf 161 
 
 Newhurv r. Conn. & Pass. Rivers 
 
 Railw'. . 638 
 
 Newburyport Bridj»e Co. v. Story 162 
 Newcastle, &c. Turnpike Co. v. 
 
 North Staffordshire Railw. 404 
 
 Newcastle & R. Railw. v. P. & 
 
 Ind. Railw. 256 
 
 Newport Mech. Co. v. Starbird 60 
 Newry & Enniskillen Railw. v. 
 
 Coombe 192 
 
 V. Edmunds 148, 168 
 
 Newr}', W. & R. Railw. v. Moss 157 
 
 Newton r. Belcher 10 
 
 V. Liddiard 10 
 
 Niagara Falls & Lake Ontario 
 
 Railw. p. Hotchkiss 236 
 
 Nicholson r. New York & New 
 
 Haven Railw. 267, 299, 306 
 
 Ni'klin V. Williams 560 
 
 Nicol, ex parte, in re Royal British • 
 
 Bank 142 
 
 r. N. Y. & Erie Railw. 251, 2.')3 I 
 Nixon V. Brownlow 193 | 
 
 p. Tair Vale Railw. 412, 422 
 Norris r. Androscoggin Railw. 474 ! 
 V. Cooper 8 
 
 V. Irish Land Co. 150 
 
 V. Vermont Central Railw. 219, 
 406 
 North American Colonial Associa- 
 tion of Ireland v. Beiitlcv 148 
 North British Railw. v. Tod 384, 638 
 North Carolina Railw. v. Leach 192, 
 
 -01 
 North Eastern Railw. c. Elliott 221, 
 
 296, 298 
 North Mo. Railw. v. Gott 235, 279 
 V. Lackland 236 
 p. Winkler 178 
 
 North Penn. Railw. v. Rehnian 497 
 North Shields Quay Co. v. David- 
 sou 169 
 
 North Staffordshire Railw. p. Dale 399 
 p. Landor 362 
 p. Wood 363 
 North W. Railw. p. McMichael 191 
 Northam B. & Roads Co. r. Lon- 
 don & Southampton Railw. .397 
 Northeastern Railw. p. Payne 391 
 V. Sineath 484. 
 487 
 Northern Ind. Railw. p. Martin 491 
 Northern Railw. p. Concord & 
 Claremont Railw. 229. 259 
 p. Miller 163, 197 
 p. Page 101 
 Northop p. Newtown & Bridge- 
 port Turnpike Co. 118 
 Northumberland r. At. St. Law. 
 
 Railw. 644 
 
 Northwestern Railw. p. Martin 422 
 Norton p. Valentine 331 
 
 Norwich & Lowestoft Navigation 
 
 Co. p. Theobald 1 10, 176 
 
 Norwich & Worcester Railw. p. 
 
 Cahill 410 
 p. Killingley 399 
 Noyes p. Rutland & Burlington 
 
 Railw. 508, 600 
 
 p. Smith 624, 528, 529 
 
 r. Spaulding 115, 121 
 
 Nowell p. Andover & R. Railw. 668 
 
 Nulbrown p. Thornton 134 
 
 Nutter r. I^exingtou & West Cam- 
 
 bridire Railw. 176 
 
 O. 
 
 Oakes p. Oakos 152 
 
 O'Brien p. Phil., Wil., & Bait. 
 
 Railw. 546, 550 
 
 O'Connor p. Pittsburgh 804 
 
 r. Spaight 421 
 
 O'Donald p. E. Ind. & CI. Railw. 62 
 
 Ogdensb., Rome, & C. Railw. v. 
 
 Frost 65, 164 
 
 Ogdensburgh Railw. v. WoUey 175 
 Ogle p. Graham 124 
 
 O'Harra p. Lexington Railw. 281 
 
 Ohio, &c. Railw. p. Ridge 53 
 
 Ohio & Mississippi Railw. p. Dun- 
 bar 689 
 p. Ind. & Cin. Railw. 589, 619 
 V. Irvin 477 
 r. Jones • 496 
 r. Meisenhiemer 496 
 r. Mucklins 584 
 V. Quicr 492 
 V. Taylor 478
 
 Ixxiv 
 
 TABLE OP CASES. 
 
 Ohio & Pennsylvania Railw. v. 
 
 Wallace 266 
 
 Old Colony Railw. v. Evans 133 
 
 Old Colony & F. R. Railw. r. 
 
 County of Plymouth 400 
 
 Oldtown & Lincoln Railw. ». Vea- 
 
 zie 177 
 
 O'Neal V. King 177 
 
 Oriental I. Steam Co. v. Briggs, 69, 
 
 123 
 Ormond v. Holland 519, 628 
 
 Ornamental Pyrographic Wood- 
 work Co. V. Brown 65 
 Orono r. Wedgeworth 68 
 Orpen, ex parte 117 
 Orr V. Bank of United States 103 
 r. Bigelow 118 
 r. Gl. A. & M. J. J. Railw. 167, 
 
 570 
 Osborne v. Bank of U. States 55, 196 
 Oswego Falls Bridge Co. ». Fish 236 
 Ottawa V. Chicago, »&c. R. 662 
 
 Overmyer r. Williams 249 
 
 Overton v. Freeman 603 
 
 Owen V. Purdv 71 
 
 V. Van Uster 669 
 
 Owings V. Speed 214 
 
 Oxford Turnpike Co. ». Bunnell 118 
 Oxford, Worcester, & Wolver- 
 hampton Railw. V. South Staf- 
 fordshire Railw. 249 
 
 P. & K. Railw. V. Dunn 
 
 165 
 
 P. W. Co. V. Brown 
 
 64 
 
 Pacific Railw. v. Chrystal 
 
 263 
 
 I'. Hughs 
 
 199 
 
 V. Renshaw 
 
 197 
 
 Pack V. Mayor of New York 
 
 604 
 
 Page V. Heineburg 
 Palmer v. Lawrence 
 
 248 
 
 164 
 
 V. Woodbury 
 
 666 
 
 Palmer & Hungerford Market, 
 
 
 Matter of 
 
 345 
 
 Palmer Co. v. Ferrill 
 
 264 
 
 Pardoe v. Price 
 
 651 
 
 Parish v. Parish 
 
 132 
 
 Parker v. Adams 
 
 642 
 
 V. Boston & Maine Railw. 
 
 270, 
 
 272, 290, 382 
 
 538 
 
 V. Bristol & Exeter Railw. 
 
 446 
 
 V. Cutter Milldam Co. 
 
 322 
 
 V. Great Western Railw. 
 
 446 
 
 V. Perkins 
 
 224 
 
 r. Rensselaer & Saratoga 
 
 
 Railw. 
 
 689 
 
 V. Smith 
 
 666 
 
 Parker v. Thomas 174 
 
 Parkes v. Great Western Railw. 418 
 Parks, ex parte 647 
 
 V. Boston 262, 347 
 
 Parmelee v. Oswego & Syracuse 
 
 Railw. 
 Parnaby r. Lancaster Canal Co. 
 
 3G2 
 602, 
 605 
 669 
 242 
 515 
 292 
 
 Parrott v. Eyre 
 
 Parsons v. Howe 
 
 Paterson Gas Light Co. v. Brady 
 
 Patten v. Northern Central Railw 
 
 Paulding ». London & N. W. 
 
 Railw. 437 
 
 Paxton V. Popham 573 
 
 Peabody v. Buentillo 663 
 
 Peachy r. Rowland 603 
 
 Peake v. Wabash Railw. 176 
 
 Pearce v. M. & I. & P. & L.Railw. 5.o9 
 V. Wycombe Railw. 387 
 
 Peavey v. Calais Railw. 234, 328 
 
 Peck V. North Staffordshire Railw. 455 
 Pell V. Northampton & Banbury 
 
 Railw. 367 
 
 Penn. Commonwealth ». Central 
 
 Passenger Railw. 315 
 
 Penn. Railw. u. Duquesne Borough 404 
 V. Heister 278 
 
 V. Keiffer 277 
 
 V. McClure 278 
 
 r. Riley 278 
 
 Pennsylvania Railw. v. Common- 
 wealth 447 
 V. Porter 238 
 Pennsylvania v. Wheeling Bridge 
 
 Co. 324, 329 
 
 Penny, in re 664 
 
 Penobscot & Kennebec Railw. v. 
 
 Dunn 19, 177, 178 
 
 Penobscot Railw. v. Dummer 165, 176, 
 
 177 
 V. White 84, 108, 
 176, 566 
 People V. Albany & Vt. Railw. 640 
 V. Auditor of Public Ac- 
 counts 624 
 ». Batchelor 78 
 V. Beebe 
 V. Benton 
 
 V. Board of Delegates 
 V. Board of Health 
 
 627 
 415 
 661 
 661, 663, 
 664 
 
 V. Caryl 
 
 V. Collins 
 
 V. Columbia C. P. 
 
 V. Commissioners of Hud 
 
 son 
 V. Cor. of N. York 
 ». Everett 
 
 92 
 644 
 645 
 
 627 
 
 644, 6.55 
 
 627 
 
 J
 
 TABLE OP CASES. 
 
 Ixxv 
 
 People V. Finger 627 
 
 V. First Judge of Columbia 277 
 V. Haws 624, 644 
 
 r. Hayden 2bS 
 
 p. Head 628, 665 
 
 V. Hester 661 
 
 V. Hilliard 659 
 
 V. J. & M. Plank-Road Co. 448, 
 670 
 r. Jillson 92 
 
 r. Kerr 260, 809 
 
 p. Major of Brooklyn 229, 268, 
 264 
 V. Mead 642 
 
 r. Michigan Southern Rail- 
 way 283 
 V. New York & Harlem 
 
 Railw. 222, 314 
 
 V. N. Y. Central Railw. 547 
 V. Pacific Mail Steam S. 
 
 Co, 289, 654 
 
 V. Peabody 664 
 
 V. Rensselaer & Saratoga 
 
 Railw. 328 
 
 V. Ridgely 666 
 
 V. River Kaisin & L. Erie 
 
 R. 668 
 
 r. Romert 625 
 
 r. Scannell 668 
 
 V. St. Louis 324 
 
 V. Superv. of West Ches- 
 ter 658 
 V. Third Avenue Railw, 313 
 V. Thompson 655, 668 
 V. Throop 214, 627 
 r. Troy House Co, 66 
 t>. Trustees of Geneva Col- 
 lege 58 
 r. Van Alstyne 661 
 r. Vanderbilt 330 
 V. Wheeler 661 
 r. White 250, 252, 260 
 V. Wood 659 
 Peoria & Oquawka Railw. r. Bit- 
 ing 165, 199 
 Perkins r. Eastern Railw, 466, 497 
 V. Hart 585 
 Perrine v. Ches. & Del. Canal 
 
 Co. 236 
 
 Perry v. Marsh 624 j 
 
 Perth Amboy Steamboat Co. v. 
 
 Parker 67 
 
 Peru Railw. v. Ha-^kett 491 
 
 Peters v. St. Louis & L M. Railw. 444, 
 
 687 
 Pettibone p. La Crosse, & Milwau- 
 
 kie Railw, 387 
 
 Pfeifer v. Sheboygan & Fond du 
 Lac Railw. 337 
 
 Phelps r. Lyle 86 
 
 Phene v. Gilian 136 
 
 Phil. & Germ. Railw. p. Wilt 467. 614 
 Phil. & Reading Railw, p. Derby 611, 
 
 634 
 Phil., Germantown, & N, Railw. 
 
 p. Wilt 103. 466. 509, 511 
 
 Philadelphia & Reading Railw, p. 
 
 Philadelphia 260 
 
 p, Yeiser 283, i88 
 
 Philadelphia & Trenton Railw. 233, 
 
 293, 297 
 Philad. & West Chester Railw. p. 
 
 Hickman 188, 206 
 
 Phiindi'lphia Railw. p. Trimble 271 
 Philadelphia. Wilmington. & Haiti- 
 more Kailw. p. Cowell 211 
 p. Howard 422. 600 
 p. Quigley 514, 567 
 p. Trimble 483 
 Phillijis p. Veazie 688 
 Phoenix Life Assurance Co. 157 
 Pickard p. Smith 605 
 Pickering p. Cape Town Railw. 413 
 p. Ilfracombe Kailw. 171 
 Pickett p. Metropolitan Railw. 341 
 Pier p. Final 100 
 Piggott p. Eastern Counties Railw, 450 
 Pinkerton p. Manchester & Law- 
 rence Railw, 147, 166 
 Pinkett p. Wright 168 
 Piscataqua Bridge p.' New Hamp- 
 shire Bridge 259 
 Pi-scataqua Ferry Co. p. Jones 110, 
 163, 174, 188 
 Pittsburgh p. Scott 283 
 Pittsburgh & Conncllsville Railw. 
 p. Clarke 116, 156 
 p. Stewart 208 
 Pittsburg & Steubenville Railw. 
 p. Clark 114 
 p. Hall 272 
 Pittsfield & North Adams Railw, 
 
 p. Foster 270, 279 
 
 Planche v. Colburn 412, 586 
 
 Plank-Road r. BulF. & P. Railw, 250 
 p. Buffalo, &c. Railw, 281 
 p. Payne 163 
 
 Plank-Road Co., Case of 324 
 
 Plant p. Long Island Railw. 294, 298, 
 
 304 
 Planters' & Merchants' Bank p. 
 
 Leavens 112 
 
 Plate Glass Ins. Co. p. Sunlev 185 
 Plum p. Morris Canal & Bank Co, 304 
 Plymouth Railw, c. Colwell 248, 393 
 Pochelu V. Kemper 62 
 
 Poler p. New York Central Railw. 
 
 472, 489
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 Pollard V. Hajran 230 
 
 Pollock V. Stables 129 
 
 Polly V. S. & VV. Railw. 241 
 
 Pomeroy v. Ciii. & Milw. Railw. 311 
 Pontfhartraiii Uailw. v. Lafayette 
 
 & Pont. Railw. 892 
 
 Poole V. Mi.UlK'ton 122 
 
 Pope V. Great Eastern Railw. 359 
 
 Porcher v. Gardner 32 
 
 Port of London Assurance Com- 
 pany's Case 81 
 Porter ». Androsoofrgin & Ken.R. 600 
 V. Biickfield Branch Railw. 414 
 V. County Commissioners 270 
 Portland, Saeo, & Portsmouth 
 
 Railw. V. Graham 166, 187 
 
 Pott V. Flather 132 
 
 Potts V. Tliames Haven Dock & 
 
 Railw. Co. 39 
 
 Pottstown Gas Co. v. Mnrphv 288 
 Poulton ». London & S. W. Railw. 516 
 Powell V. Han. & St. Jos. Railw. 476 
 Powers V. Bears 278, 283, 336 
 
 Powles ». Page 557 
 
 Poynder v. Great N. Railw. 241, 366, 
 
 368 
 Pratt V. Atlantic & St. Lawrence 
 
 Railw. 455 
 
 Prendergrast v. Turton 213 
 
 Presbvterian Society v. Auburn & 
 Roch. Railw. 53, 297, 301, 302, 
 
 304 
 Preston v. Dub. & Pacific Railw. 247 
 V. Eastern Counties Railw. 331 
 V. Grand Collier Dock Co. 159 
 V. Liverpool & M. Railw. 16 
 V. Liverpool, Manchester, 
 
 & N. Railw. 34, 39, 47 
 
 V. Norfolk Railw. 331 
 
 Price I', (rrand Rapids & I. R. Co. 163 
 
 V. Powell 554 
 
 V. Price 111 
 
 Prichard v. La Crosse & Mil. Railw. 
 
 471 
 Priestley ». Foulds 404 
 
 V. Fowler 518, 522, 528 
 
 V. Manchester & Leeds 
 
 Railw. 336, 376 
 
 Proprietors of Locks & Canals v. 
 Nashua & Lowell Railw. 271 291, 
 
 348 
 Proprietors of Quincy Canal v. 
 . Newcomb 299 
 
 Protzman v. Ind. & Cin. Railw. 233, 
 
 251, 309 
 Providence Bank v. Billings 56, 236 
 Provost & Fellows of Eton College 
 
 V. Great Western Railw. 42 
 
 Pryn v. Combrian Railw. 227 
 
 Pulling V. London, Chatham, & 
 
 Dover Railw. 354 
 
 Pulsford V. Richards 211 
 
 Putney r. Cape Town Railw. 413 
 
 Q. 
 
 Quarman v. Burnett 608, 605 
 
 Queen v. Birmingham & Gloucester 
 
 Railw. 508 
 
 V. Birmingham & Oxford 
 
 J. Railw. 356 
 
 r. Blizzard 303 
 
 V. Bloyzard 668 
 
 V. Bristol & Exeter Railw. 625 
 V. Commissioners of Woods 
 & Forests, ex parte 
 Budge 360 
 
 r. Eastern Counties Railw. 232, 
 233, 625, 636 
 r. Great North of England 
 
 Railw. 510 
 
 V. Lane. & iTorkshire Railw. 
 
 631 
 V. Lofthome 303, 668 
 
 V. London & G. Railwav 353 
 p. London & S. W. Rai'lw. 354 
 V. L. & Southampton R. 346 
 V. Man. & Leeds Railw. 626 
 V. North Union Railw. 342, 625 
 V. Norwich «& Brandon R. 625 
 V. Stone 359 
 
 V. York N. Midland R. 638 
 Quicke, ex parte 357, 640 
 
 Quimby r. Vermont Central Railw. 
 
 149, 482, 484, 549, 552, 
 
 553 
 
 Quiner v. Marblehead Ins. Co. 116 
 
 R. 
 
 R. & G. Railw. v. Davis 53, 286 
 
 Radcliffp. Mayor of Brooklyn 293, 
 . 308, 332 
 
 Railsback v. Liberty & Abington 
 Turnpike Co. 67, 198 
 
 Railstonc v. York, Newcastle, & 
 B. Railw. 370 
 
 Railway, ex parte 299 
 
 ». Boyer 272 
 
 V. Bucher 271 
 
 V. Davis 250 
 
 V. Gilson 262 
 
 V. Huminell 345 
 
 r. Johnson 277 
 
 V. Lagarde 263 
 
 r. Mayor of York 626
 
 TABLE OP CASES. 
 
 Ixxvii 
 
 Railway r. Norton 
 
 
 
 649 
 
 
 r. Skinner 
 
 
 470, 
 
 471 
 
 Railw 
 
 Co. r. Barron 
 V. (iilson 
 r. Graham 
 t. Richards 
 
 
 
 602 
 
 266 
 
 165 
 
 97 
 
 
 V. Rodcrigues 160, 166 
 
 ,203 
 
 
 V. Skinner 
 
 
 469, 
 
 484 
 
 
 r. Washington 
 
 
 290 
 
 Ram»den v. Dvson 
 
 
 
 219 
 
 
 V. Manchester, 
 
 S. 
 
 J. & 
 
 
 
 A. Railw. 
 
 280 
 
 ,297, 
 
 353 
 
 Ranch 
 
 r. Llovd & Hill 
 
 
 
 549 
 
 Rand v. Townshend 375 
 
 r. White Mountain Railw. 132 
 Randall v. Clieshire Turnpike Co. 605 
 Randle r. Williams 664 
 
 Randleson v. Murray 505 
 
 Rangiloy r. Midland R. 243 
 
 Ranger v. Great Western Railw. 888, 
 406, 407, 415, 418, 422, 427 
 Ranken p. E. & W. I. & B. J. 
 
 Railw. 366 
 
 Ranson t\ Stonington Savings Bank 652 
 Raphael r. Thames Valley R. 227 
 
 Rapson p. Cubitt 503 
 
 Rathbone v. Tioga Nav. Co. 219, 248, 
 
 410 
 Reaveley, ex parte 192 
 
 Redmond v. Dickerson 576 
 
 Reedie r. London «& N. W. Railw. 503, 
 
 6C'6 
 Reese & Fisher v. Bank of Com- 
 merce 117 
 Reg. V. Abrahams 655 
 r. Baldwin 648 
 V. Bell 662 
 r. Bingham 657 
 V. Bir. & Oxford 629 
 e. Blackwall Railw. 658 
 r. Brighton & E. C. Railw. 628 
 r. Bristol & Exeter Co. 652, 662, 
 663 
 V. Bristol Dock Co. 642, 658 
 t. Burslem Board of Health 630 
 r. Chester 626, 645 
 V. Comm. of Woods & For- 
 ests 642 
 r. Deptford Improvement Co. 650 
 V. Derby 626 
 V. Dundalk & Enniskillen 
 
 Railw. 641, 647 
 
 E. Anglian Railw. 628 
 
 E. Lancashire Railw. 6*26 
 
 Fall 628 
 
 Frere 99 
 
 Gamble & Bird 659 
 
 General Cemetery Co. 123 
 
 Great W. liailw. 
 
 626, 647 
 
 Reg. V. Green 628 
 
 r. Grimshaw 83 
 
 r. Hammond 662 
 
 r. Hampton 667 
 
 V. Heart of Oak Benefit So. 656 
 r. Hull «& Selby Railw. 651 
 
 p. Jones 626 
 
 p. Ju.stices of Middlesex 628 
 
 p. Justices of Warwickshire 626 
 p. Lane. & York Railw. 639, 
 647, 648, 657 
 p. L. & Blackwall liailw. 628 
 p. L. & C. Railw. 655 
 
 ■ p. L. & L. Canal Co. 661 
 
 p. Ledgard et als. M. of Pool 625 
 p. Lundie 89 
 
 p. Mariquita Mining Co. 215 
 p. Mayor of Bridgenorth 628 
 p. Mayor of Cambridge 628, 648 
 p. Mayor of Chester 647 
 
 p. Mayor of Dartmouth 628 
 
 p. Mayor of Poole 619 
 
 p. Mayor of Stanifonl 652 
 
 p. Mavor & Asses, of Rochester 
 645 
 p. Mid. Counties & Sh. Junc- 
 tion Railw. 146 
 p. Midland Co. & J.>R. 655 
 p. Norwich 626 
 p. Norwich & B. Railw. 624 
 p. Payn 649 
 p. Pickles 626 
 p. Port of Southampton 624, 649 
 p. Registrar 60 
 p. Reynolds 664 
 p. Roedale & Hal. & S. R. 657 
 p. Saddlers' Co. 89. 216, 649 
 p. Southeastern Railw. 398 
 p. South Holland Drainage 665 
 p. South Wales Railw. 249 
 p. St. Margarets Leicester 649 
 p. St. Olaves 663 
 p. St. Peter's College 628 
 p. Sheffield A. & M. Railw. 662, 
 663, 664 
 V. St. Saviour 628 
 p. Thames & Issis Com. 628 
 p. Townsend 658 
 p. Trustees of Balby & Work- 
 sop 651 
 p. Trustees of Luton Roads 641 
 V. Victoria Park Co. 168, 651, 
 659 
 p. Waterford & L. Railw. 244 
 p. Wilson 657 
 V. Wing 115 
 V. Worcestershire, S. & Stafford 
 Railw. 654 
 V. York, N. & B. B. 647
 
 Ixxviii 
 
 TABLE OF CASES. 
 
 Regina c. Ambergate & C. Railw. 359, 
 
 638, 648 
 V. Birmingham & Glouces- 
 ter R^lw. 405, 642, 647, 
 648 
 V. Caledonia Railw. 388, 638, 
 642, 649 
 V. Commissioners of NorPk 592 
 V. Committee for South 
 
 Holland Drainage 361 
 
 V. Cottle 356 
 
 V. E. & W. I. Docks & 
 Birm. J. Railw. 396, 397, 
 649 
 V. Eastern Counties Railw. 
 295, 340, 375, 405, 626, 
 628, 638, 639, 643, 647 
 V. Ely 404 
 
 V. Fisher 342 
 
 c. General Cemetery Co. 146 
 V. L. & Greenw. Railw. 352 
 ». Liverpool, Manchester, 
 & Newcastle-upon-Tyne 
 Railw. 145, 643, 658 
 
 V. London & Birmingham 
 
 Railw. 405, 643 
 
 V. London & Northwestern 
 RaUw. 372, 646, 647, 657, 
 662 
 V. Londonderry & Cole- 
 
 raine Railw. 148 
 
 V. Manchester & Leeds 
 
 Railw. 361, 642, 643, 658, 
 
 660, 664 
 
 V. Met. Coram, of Sewers 372 
 
 V. Musson 322 
 
 V. North :Midland Railw. 342, 
 
 651 
 
 c. Rigby 405 
 
 V. Russell 403 
 
 V. Saffron- Walden Railw. 395 
 
 V. Sharpe 405 
 
 p. Sheriff of Middlesex 352 
 
 V. Sheriff of Warwickshire 643 
 
 ■». Southeastern Railw., in 
 
 re Penny 343 
 
 V. Stein forth 657 
 
 tJ. Train 402 
 
 V. Trustees of Swansea 
 
 Harbor 361 
 
 tJ. United Kingdom Tele- 
 graph Co. 401 
 V. W. Midland R. 647 
 V. York & N. M. Railw. 359, 
 481,641, 649 
 Reitenbaugh v. Chester Vallev 
 
 Railw. 238, 263, 264, 266 
 
 Rensselaer & Sar. Railw., Matter 
 of 484, 487 
 
 Rensselaer & W. PI. Rd. Co. r. 
 
 Barton 165 
 
 Renthrop v. Bang 250 
 
 Renwick v. N. York Cen. Railw. 545 
 
 Renter v. Electric Telegraph Co. 599 
 
 Revere v. Boston Copper Co. 73, 194 
 
 Rex V. Allgood 654 
 
 t. Amery 70 
 
 r. Archbishop of C. 623, 644 
 
 ». Bagshaw 360 
 
 p. Bank of England 644, 653 
 
 V. Barker 623, 637 
 
 V. Bishop of Chester 624 
 
 V. Bishop of Ely 645, 655 
 
 V. Bishop of London 624 
 
 p. Breton 655 
 
 r. Cambridge 655 
 
 V. Churchwardens of Taunton 626 
 
 p. Clarke 670 
 
 p. Coin St. Aldwins 84 
 
 p. Comm. of C. Enclosure 657 
 
 p. Commissioners of Dean 
 
 Enclosures 624 
 
 p. Commissioners of Nene 
 
 Outfall 343 
 
 • p. Doncaster 78 
 
 p. Faversham 77 
 
 p. Fell 6G2 
 
 p. Guardians of Thame 626 
 
 p. Hertford 655 
 
 p. Highmore 667 
 
 p. Hostman of Newcastle-upon- 
 Tyne 653 
 V. Hungerford Market 345, 346, 
 
 651 
 p. Inhabitants of Kent 404 
 
 p. Inhabitants of Lindsay 404 
 p. Jeyes 624 
 
 p. Justices of Kent 663 
 
 p. Justices of W. R. of York 
 
 in matter of Railw. 662 
 
 p. Kerrison 404 
 
 p. Kingston 626 
 
 p. Kirke 628 
 
 p. Lincoln's Inn 655 
 
 p. Liverpool & Manchester 
 
 Railw. 346 
 
 p. London Assurance Co. 654 
 p. Martin 67 
 
 p. Jklay 77 
 
 p. JSIayor of Colchester 655 
 
 p. Mayor of Liverpool 360 
 
 p. Mayor of York 648 
 
 p. Medley 514 
 
 p. Merchant Tailors' Co. 653 
 
 p. M'Kay 667 
 
 p. Montacute 626 
 
 p. Morris 405 
 
 p. Mott 128
 
 TABLE OF CASES. 
 
 Ixxix 
 
 Rex V. Mousley 667 
 
 c. Nottingham Old Water 
 
 Works 376, 644, 650 
 
 r. Ouse Bank Com. 648 
 
 V. Saunders 662 
 
 r. Severn R. 3 
 
 V. Severn & Wye Railw. 624, 657 
 ©. Shelley 654 
 
 r. Sir William Lowther 667 
 
 V. St. Catherine's Dock Co. 651 
 r. St. Catherine's Hall 655 
 
 r. St. Pancras 648 
 
 ©. Tappenden 627 
 
 r. Thatcher 656 
 
 r. Tower 654 
 
 V. Tregony 655 
 
 r. Trowns & Wyr. R. 624 
 
 r. Trustees of Norwich Roads 360 
 r. Truro 668 
 
 • r. Trustees of Swansea Har- 
 bor 650 
 t. Turkey Co. 656 
 ». Tvrrell 670 
 r. Vice-Ch. of Cambridge 70 
 V. Wallis 670 
 p. Williams 655, 667 
 r. Worcester Canal Co. 145, 150 
 V. Wright 402, 403 
 Rexfonl p. Knight 252, 264, 282 
 Reynolds v. Dunkirk & State line 
 
 Railw. 226 
 
 Rice p. Courtis 155 
 
 p. Dublin & Wicklow Railw. 395 
 
 p. Turnpike Co. 263 
 
 Rich p. Basterfield 605 
 
 Richard p. La Crosse & Milwaukee 
 
 Railw. 472 
 
 Richards o. Sacramento Valley 
 
 Railw. 487 
 
 p. Scarborougli Public 
 
 Market Co. 390 
 
 Richardson, ex parte 14 
 
 p. Southeastern Railw. 370 
 p. Vermont Central 
 
 Railw. 293, 304 
 
 Richmond p. N. London R. 358 
 
 p. Sacramento Valley 
 
 Railw. 477 
 
 Richmond & Petersburg Railw. p. 
 
 Jones 470 
 
 Riclimond Railw. v. Louisa Railw. 256 
 Ricker r. Fairbanks 416 
 
 Rirkett p. Met. Railw. Co. 338, 344 
 Ricketts p. E. & W. L Docks & B. 
 
 J. Railw. 465, 497 
 
 Ridley p. Plymouth Banking Co. 658, 
 
 672 
 Rioter's case 624 
 
 Ripley p. Sampson 162 
 
 River Dunn Nav. Co. v. N. Mid- 
 land Railw. 196 
 Robbins, ex parte 651 
 p. Milwaukee & Horicon 
 Railw. 262, 847 
 Robinson p. Chartered Bank 116 
 p. Nesbitt 171 
 V. New York & Erie 
 
 Railw. 295 
 
 V. Supervisors 661 
 
 Roberts p. Button 567, 568 
 
 p. Great Western Railw. 491 
 
 p. Knapp 272 
 
 p. Ohio & Mobile Railw. 180 
 
 p. Price 82 
 
 p. Read 660 
 
 p. Smith . 628 
 
 Robson, in re 662 
 
 Rocliester & Syracuse Railw. p. 
 
 Budlong 262, 272, 276, 278 
 
 Roch. White Lead Co. p. Roch- 
 ester 832 
 Roe p. Birkenhead, Lancashire, & 
 
 Cheshire Junction Railw.^ 102 
 
 Rogers, ex parte 72, 627 
 
 p. Bradshaw 256, 281, 282, 298 
 p. Huntingdon 117 
 
 p. Huntingdon Bank 116 
 
 p. Kennebec & Portland 
 
 Railw. 295, 322 
 
 p. Newburyport Railw. 41i0, 
 
 501 
 
 Romaine p. Kinshimer 662 
 
 Roman p. Fry 110, 116 
 
 Rood p. New York & Erie Railw. 452 
 
 Rose p. Truax 578 
 
 Rosenthal v. Madison PI. Rd. Co. 60 
 
 Rosevelt p. Brown 138, 156 
 
 Ross p. Adams 348 
 
 p. Boston & Worcester Railw. 456 
 
 p. E. T. & E. Railw. 280 
 
 p. Elizabethtown & Somer- 
 
 ville Railw. 269, 272 
 
 V. Lafayette & Ind. Railw. 180 
 
 p. Madison 611 
 
 Roach p. Great Western Railw. 421 
 
 Rounds p. Mumford 304 
 
 Rowe p. Shilson 406 
 
 Roxburyp. Boston & Prov. Railw. 226 
 
 Royal British Bank, in re 666 
 
 Brockwall's Case 211 
 
 Mixer's Case 664 
 
 p. Turquand 673, 674 
 
 Royal Exchange Insurance Co. p. 
 
 Moore 127 
 
 Rubottom r. McClure 282 
 
 Ruck p. Williams 606 
 
 Rundlc p. Delaware & Raritan 
 
 Canal Co. 53, 260
 
 Ixxx 
 
 TABLE OP CASES. 
 
 Runyan v. Lessee of Coster 57 
 
 Russell r. Hudson River Railw. 521 
 Rust V. Low 250, 497 
 
 Rut. & Bur, Railw. v. Procter 559 
 Ryan v. Cumberland Valley Railw. 518, 
 
 528 
 r. New Y. Central Railw. 463 
 Ryder v. Alton & Sangamon Railw. 
 
 164, 181 
 
 S. 
 
 S. Carolina Railw. r. Blake 244 
 
 S. T. & A. Railw. in re 344 
 
 S. P. Met. Railw. v. Woodhouse 640 
 Sabin v. Bank of Woodstock 155 
 
 V. Vermont Central Railw. 286, 
 288 
 Sacramento Railw. v. Moffatt 347 
 
 Sacramento Valley Railw. v. Mof- 
 fatt 482 
 Sadd V. Maldon, W. & Br. Railw. 360, 
 
 389 
 Sagory v. Dubois 164 
 
 Salem Mill-Dam Co. v. Ropes 15, 109, 
 
 162, 176 
 Salem & S. Dan vers Railw. v. 
 
 County Comm. 300, 665 
 
 Salomons v. Laing 31, 557, 561 
 
 Sampson r. Bowdoinham Steam- 
 Mill Co. 81 
 San Antonio v. Lewis 410 
 Sanders v. Guardians of St. Neot's 
 
 Union 595, 698 
 
 Sanderson r. Cockermouth & 
 
 Washington Railw. 223 
 
 Sands c. Sanders 148, 149 
 
 Sargent v. Franklin Ins. Co. 115, 116, 
 
 118, 145 
 . V. Webster 84 
 
 Sater ». B. & Mt. PI. Railw. 262 
 
 Saunders, ex paHe 147 
 
 Savin v. Hylake Railw. 16 
 
 Savings Bank v. Davis 77 
 
 Sawyer v. Xorthfield 538 
 
 V. Rut. & Bur. Railw. 589, 
 603 
 Sayles v. Blane 125, 156 
 
 Sayre r. Louisville Union Benevo- 
 lent Association 88 
 V. North W. Turnpike Co. 55 
 Scadding r. Lorant 78 
 Scaggs r. Bait. & Wash. Railw. 465, 
 
 674 
 Schofield p. School District 296 
 
 School Board v. People 659 
 
 School Directors of Bedford 
 
 Borough F. Anderson 654 
 
 Schuler r. Northern L. Railw. 254 
 
 Schumieier p. St. Paul & P. Railw. 265 
 
 Schuylkill Co. p. Thobum 262 
 
 Scott p. Avery 433, 434 
 
 p. Clark 666 
 
 p. Corporation of Liverpool 416 
 
 p. Eagle Fire Co. 80 
 
 p. P^bury 10 
 
 p. London Dock Co. 464 
 
 p. Morgan 626 
 
 p. Oakely 48 
 
 p. W. & R. Railw. 465, 472 
 
 Scottish Northeastern Railw. p. 
 
 Stewart 37, 48, 615, 639 
 
 Scudderp. Woodbridge 521, 523, 529 
 Sea, Fire & Life Assurance Soci- 
 ety, Matter of 171 
 Searle p. Lachawanna Railw. 292 
 Seaver v. Boston «& Maine R. 528, 555 
 Seddon p. Connell 142 
 Selma & Tenn. R. p. Tipton 66, 1G4, 
 
 188, 203 
 Semmes p. Mayor of Columbus 581 
 Semple p. London & Birmingham 
 
 Railw. 246 
 
 Seneca Railw. p. Auburn & Roch. 
 
 Railw. 305 
 
 Seneca Road Co. p. Aub. & Roch. 
 
 Railw. ^ 293, 298 
 
 Senior v. Met. Railw. 344 
 
 Serendat v. Saisse 506 
 
 Serrell p. Derbyshire Staff. & 
 
 Wor. J. Railw. 569 
 
 Sewall p. Boston Water Power 154 
 Sewell p. Lancaster Bank 117 
 
 Seymour v. Maddox 519, 528 
 
 V. Sturgess 1()2 
 
 Shamakin Valley Railw. v. Liver- 
 more 248 
 Sband p. Henderson 336 
 Sharp p. Great Western Railw. 436 
 Sharrod r. London & N. W. Railw. 
 
 465, 511 
 Shaw p. Boston & Worcester 
 
 Railw. 543, 551 
 
 p. Fisher 132, 133, 134 
 
 p. Holland 132 
 
 p. Perkins 626 
 
 P.Rowley 124 
 
 p. Spencer 153 
 
 Shattuck p. Stoneham B. Railw. 278 
 
 Shears p. Jacobs 563 
 
 Shedd p. Troy & Boston Railw. 101 
 
 Sheffield, A. & M. Railw. p. 
 
 Woodcock 6, 9, 85, 120, 181 
 
 Sheldon p. Hudson River Railw. 453 
 Shepard p. Buffalo, N. Y. & Erie 
 
 Railw. 471 
 
 p. New York &, Erie 
 
 Railw. 472
 
 TABLE OF CASES. 
 
 Ixxxi 
 
 Shepardson r. M. & B. Railw. 283 
 
 Sherman ». Mayor of New York 417 
 
 V. New York Central R. 600 
 
 V. Roch. & Sy. Railw. 611, 
 
 518 
 
 V. Vermont Central R. 411 
 
 Shipley v. Mechanics' Bank 644 
 
 Shirley v. Ferrers 18, 45 
 
 Shoemaker c. Goshen Turnpike 
 
 Co. 209 
 
 Sboenberger v. Mulhollan 272, 863 
 Shorter ». Smith 260 
 
 Shortridge v. Bosanquet 114 
 
 Shrewsbury & Binnin^hani Railw. 
 r. London & Nortnwestem R. 34, 
 688, 591, 600, 611, 614 
 r. London & N. W. & Shrop- 
 shire Union Railw. 688, 690 
 Shrunk r. SchuylkiU Nav. Co. 231, 
 
 304 
 Shurtz V. S. & T. Railw. 65, 66 
 
 Sigfried v. Levan 126 
 
 Silk Manuf. Co. v. CampbeU 665 
 
 Sills r. Brown 554, 655 
 
 Simpson r. Denison 445, 558, 587, 612 
 V. Lancaster & Carlisle 
 
 Railw. 360 
 
 V. Lord Howden 22, 34 
 
 r. Scottish U. Fire & Life 
 
 Ins. Co. 624 
 
 V. So. Staff. Waterworks 
 
 Co. 234 
 
 V. Westminster Palace 
 
 Hotel Co. 683 
 
 Sims 0. Commercial Railw. 359 
 
 Sinclair v. Pearson 511 
 
 Sirrell v. Derbyshire, Staffordshire, 
 
 & Wor. J. Railw. 570 
 
 Sixth Avenue Railw. v. Kerr 313 
 
 Skerratt c. North StalFordshire 
 
 Railw. 481 
 
 Skip V. Eastern Counties Railw. 518, 
 620, 528, 536 
 Slater, ex parte 157 
 
 V. Emerson 409 
 
 Slaymaker p. Gettysburg Bank 112 
 Sleath p. Wilson 511 
 
 Small r. Herkimer M. & H. Co. 164 
 Smart r. Guardians of the Poor 
 
 of Westham Union 696 
 V. Railway 283 
 
 Smith V. Allison 392 
 
 V. Birmingham Gas Co. 612 
 e. Boston 299, 644 
 
 r. Boston & M. Railw. 254 
 c. Commonwealth 627 
 
 V. Crocker 126 
 
 r. Eastern Railw. 466 
 
 V. £rb 626 
 
 Smith V. Great Eastern Railw. 517 
 V. Helmer 288 
 
 V. Hull Glass Co. 573 
 
 V. Ind. & HI. Railw. 179 
 
 ». Law. 78 
 
 V. London & St. Katherine^s 
 
 Dock Co. 604 
 
 V. Maryland 824 
 
 V. McAdams 288 
 
 V. New York & Harlem 
 
 Railw. 520. 608 
 
 V. Pelah 451 
 
 V. Reese River Silver Min- 
 ing Co. 141 
 Smyth, ex parte 667 
 ». Darley 82 
 Snodgrass v. Gavit 436 
 Snow V. Housatonic Railw. 618 
 Snowden v. Davis 446 
 Society of Practical Knowledge v. 
 
 Abbott 110 
 
 Solomons v. Lang 144 
 
 Som. & Ken. Rauw. v. Cushing 179 
 Somerset Canal Co. v. Harcourt 360 
 Soraerville & E. Railw. v. Doughty 262, 
 
 267 
 Soper V. Buffalo & Roch. Railw. 657 
 South Bay Meadow Dam. Co. v. 
 
 Gray 108, 165, 199 
 
 South Carolina Railw., ex parte 391 
 V. Blake 350, 391 
 South Essex Gas Light & Coke 
 
 Co. in re 688 
 
 South Staffordshire Railw. v. Bum- 
 side 166 
 V. Hall 371 
 South Wales Railw. ex parte 366, 481 
 South Yorkshire & Goole Railw. 
 
 in re 626 
 
 South Yorkshire Railw. v. Great 
 
 Northern Railw. 689 
 
 South Yorkshire & River Dun Co. 
 
 V. Great Northern Railw. 588, 616 
 S. Wales R. Co. v. Richards 662, 663 
 Southampton Bridge & I. Co. v. 
 
 Local Board of Health 606 
 
 Southeastern Railw. v. Brodgen 422 
 V. European & Am. Tel. Co. 
 
 401, 511 
 r. Queen 397 
 
 Southmayd r. Ru^ 116 
 
 Southwestern Railw. v. Coward 870 
 Southwick p. Estes 608 
 
 Spackman, ex parte 147, 660 
 
 p. Lattimore 16 
 
 Sparks o. Liverpool Waterworks 218 
 Sparling p. Parker 111 
 
 Sparrow v. Evansville & Craw- 
 
 fordsville Railw. 201
 
 Ixxxii 
 
 TABLE OP CASES. 
 
 Sparrow r. Oxford, &c. Railw, 234, 
 352,353,858. 
 Spartanburgh & Union Railw. r. 
 
 De Graffenreid 201 
 
 Spear v. Crawford 164 
 
 V. Richardson 276 
 
 Spear & Carlton v. Newell 685 
 
 Spooner v. McConnell 324 
 
 Spottiswoode's Case 14 
 
 Springfield v. Conn. River Railw. 236, 
 
 242, 256, 298, 303 
 
 Sprj' V. Emperor 446 
 
 Squire v. Campbell 385 
 
 St. George v. Reddington 883 
 
 St. James's Club, in re 13 
 
 St. John V. Eastern Railw. 516 
 
 V. St. John 46 
 
 St. Louis, Alton & Terrehaute 
 
 Railw. V. South 105 
 
 St. Louis & C. Railw. v. Dalby 105 
 St. Louis C. Ct. V. Sparks 655 
 
 St. Luke's Church v. Slack 656 
 
 St. Mar)''s Church 59, 72 
 
 St. Thomas Hospital v. Charing 
 
 Cross Railw. 354 
 
 Stacy r. Vt. Central Railw. 238, 285 
 Stahl V. Berger 126 
 
 Stainbank v. Femley 140 
 
 Stamps V. Bir., Wolv., & Stour 
 
 Valley Railw. 360, 366 
 
 Standish r. Mayor of Liverpool 365 
 Stanhope's Case 660 
 
 Stanley v. Chester & Birkenhead 
 
 Railw. 24 
 
 r. Stanley 138 
 
 Stanton v. Wilson 203 
 
 Stapley v. London, B. & So. 
 
 Coast Railw. 641, 552 
 
 Stark, ex parte 572 
 
 Starr v. Child 298 
 
 State V. A. P. Hunton 668 
 
 V. Ashley 656, 667 
 
 r. B. & O. Railw. 234 
 
 ». B. C. & M. Railw. 620,. 668 
 V. Bank of Louisiana 80 
 
 V. Boston, Concord, & Mon- 
 treal Railw. 87, 245, 656 
 V. Bradford Village 670 
 
 V. Brown 666, 667 
 
 V. Chester 626 
 
 V. Comm. of Mansfield 391 
 
 V. Commercial Bank of Man- 
 chester 668 
 V. Common Council 655 
 ». County Judge 642 
 r. Davenport 642 
 V. Dawson 71, 285 
 V. Digby 262 
 V. Directors of Bank 648 
 
 State V. Franklin Bank 
 
 112 
 
 r. Garretson 
 
 285 
 
 V. Goold 
 
 104 
 
 V. Gorham 
 
 539 
 
 V. Great Works MiH. & Man. 
 
 Co. 512 
 
 r. Hartford & N. Haven R. 641, 
 659 
 r. Hastings 626 
 
 V. Hessenkam 313 
 
 r. Holiday 644 
 
 V. Hudson 664 
 
 r. Jersey City 661 
 
 V. Keokuk 642 
 
 V. Lynch 656, 659 
 
 V. McBride 667 
 
 V. Merry 667 
 
 V. Miller 264 
 
 V. Miss. &c. Railw. 666 
 
 V. Morris & Essex Railw. 568 
 V. Norwalk & Danbury Turn- 
 pike Co. 391 
 r. Overton 98, 100 
 r. Rives 229, 253 
 V. Ross 106 
 ». St. Louis P. M. & Life 
 
 Ins. Co. 667 
 
 V. Thompson 101 
 
 r. Tudor 79 
 
 V. Turk 667 
 
 JO. Vermont Central Railw. 610 
 V. 'WheeHng Bridge Co. 326 
 
 V. Wilmington & Manch. 
 
 Railw. 693 
 
 State Fire Ins. Co. 617 
 
 State of Marvland r. Baltimore & 
 
 Ohio Railw'. 646 
 
 Stearns r. Old Colony & Fall River 
 
 Railw. 491 
 
 Stears v. S. Essex Gras Light & 
 
 Coke Co. 683 
 
 Steel r. Southeastern Railw. 332, 603, 
 
 505 
 Steele v. Harmer 576 
 
 r. Midland Railw. 855 
 
 V. N. Met. Railw. 4 
 
 Steigenberger v. Carr 9 
 
 Stein r. Ind., «&c. Association 62 
 
 Stephens c. De Medina 129 
 
 Stetson V. Faxon 299 
 
 Stevens v. Rutland & Burlington 
 
 Railw. 194 
 
 r. South Devon Railw. 76, 
 691, 621 
 St«wart B. Anglo-California Grold 
 
 Mining Co. 218 
 
 ». Cauty 129, 131 
 
 r. Hamilton College 203 
 
 V. Raymond Railw. 284
 
 TABLE OF CASES. 
 
 Ixxxiii 
 
 Stewart^s Estate, in re 218 
 
 Stikeman v. Dawson 192 
 
 Stiles r. Western Kailw. 411 
 
 Stilphin V. Smith 91 
 
 Stockbridge ». West Stockbridge 3 
 Stockton & Darlington liailw. r. 
 
 Brown 235, 389 
 
 Stockton & Hartlepool Railw. v. 
 
 Leeds & Thirsk & Clarence 
 
 liailws. 43 
 
 Stoddard r. Onondaga Annual 
 
 Conference 67 
 
 Stokes r. Grissell 395 
 
 r. Lebanon & Sparta Turn- 
 pike Co. 164 
 Stone r. Cambridge 242 
 V. Commercial Railw. 336, 352, 
 359 
 Stoneham Branch Railw. v. 
 
 Gould 166, 176 
 
 Stornifeltz v. Manor Turnpike Co. 286 
 StralFon's Executors, ex parte 114 
 
 Strang p. Beloit & M. liailw. 272, 278 
 Strapley r. London & N. W. 
 
 Railw. 537 
 
 Strasburg Railw. r. Echternacht 39 
 Stratford & M. Railw. v. Stratton 176, 
 
 179 
 Straus V. Eagle Ins. Co. 183, 568 
 
 Stray v. Russell 121 
 
 Strong V. Ellsworth 10 
 
 Strong, Petitioner 626 
 
 Stubbs r. Lister 214 
 
 Stubley r. London & N. W. 
 
 Railw. 552 
 
 Stucke V. Milw. & Miss. Railw. 487 
 Sturges V. Knapp 582 
 
 Sturtevant ». Milw., Wat., & B. 
 
 Railw. 336 
 
 Sullivan v. Philadelphia & R. Railw. 485 
 r. Tuck 133 
 
 Sunbury & Erie Railw. r. Hum- 
 
 niell 290 
 
 Susquehannah Canal Co. e. Wright 231 
 
 Sutton V. Clark 304, 462, 606 
 
 r. Louisville 264 
 
 r. Tatham 129 
 
 Sutton Harbor Improvement Co. 
 
 r. Hitchins 371 
 
 Suydam p. Moore 466, 547 
 
 Swan p. North British Australasian 
 
 Co. 14 
 
 Swansea Harbor Trustees, m re 382 
 Swansea Vale Railw. p. Budd 216 
 
 Swatara Railw. p. Brune 190 
 
 Sweeney p. Old Colony & New- 
 port Railw. 651 
 Symonds r. City of Cincinnati 229, 
 
 261 
 
 T. 
 
 Taff-Vale Railway p. Nixon 422 
 
 Taggart r. West Alary land Railw. 110, 
 
 176 
 Talmadgc p. Rensselaer & Sara- 
 toga Railw. 467 
 Tanner p. Tanner 152 
 Tar River Nav. Co. p. Neal 164 
 Tarrant p. Webb 519, 528 
 Tate p. Ohio & Miss. Railw. 308 
 Tattersall p. Groote 433 
 Taunton p. Royal Ins. Co. 618 
 Taunton & South Boston Turnpike 
 
 Co. p. Whiting 162 
 
 Tawney p. Lynn & Ely Railw. 360 
 Tavler p. Great Indian Peninsula 
 
 Ilailw. 147 
 
 Taylor p. Chichester & Midhurst 
 
 Railw. 48 
 
 p. Clemson 232, 390 
 
 p. County Commissioners 270 
 p. Fletcher 183 
 
 p. Griswold 79 
 
 p. Hughes 116 
 
 p. Southeastern Railw. 452 
 p. St. Louis 304 
 
 V. Stray 131 
 
 r. York & N. M. Railw. 
 
 in re 362 
 
 Tempest p. Kilner 111,132 
 
 Tennant p. Goldwin 460, 462 
 
 Tenney p. East Warren Lumber 
 
 Co. 652 
 
 Terre Haute, &c. Railw. p. Smith 494 
 Terry p. New York Central Railw. 467 
 Tew p. Harris 381 
 
 Thames Haven Dock & Railw. Co. 
 
 p. Hall 81, 349 
 
 p. Rose 81, 83, 86 
 Thames Steamboat Co. p. Ilousa- 
 
 tonic Railw. 512 
 
 Thames Tunnel p. Sheld«n 118, 180 
 Thayer p. St. Louis, Alton, &c. 
 
 Railw. 496 
 
 V. Vermont Central Railw. 
 
 411, 412 
 Tbicknesse p. Lancaster Canal Co. 374, 
 
 651 
 
 Thigpen p. Misa. Central Railw. 174 
 
 Thomas p. Winchester 603 
 
 Thompson, ex parte 626 
 
 p. Charnook 433 
 
 p. Grand Gulf Railw. 280, 
 
 284 
 
 V. New Orleans & Car- 
 
 rolton Railw. 505 
 
 V. New York & II. 
 
 Railw. 2.%
 
 Ixxxiv 
 
 TABLE OF CASES. 
 
 Thompson v . Thompson 111 
 
 V. West Somerset Railw. 308 
 Thome v. Taw Vale Railw. 3 
 
 Thorpe v. Hughes 187 
 
 V. Rut. & Bur. Railw. 53, 257 
 Thumell v. Balbirnie 434 
 
 Tilleard, in re 48 
 
 Tillet V. Charing-Cross Company 223, 
 
 227 
 Tillotson V. Hudson River Railw. 332 
 Tilson V. Warwick Gas Light Co. 652 
 Timmons v. Central Ohio Railw. 624 
 Tinsman v. Belvidere Delaware 
 
 Railw. 295 
 
 Tippetts V. Walker 111 
 
 Titcomb v. Fitchburg Railw. 404 
 
 Todd V. Taft 133 
 
 Toledo, &c. Railw. v. Fowler 495 
 
 Toledo & Wabash Railw. v. Daniels 494 
 V. Thomas 494, 499 
 Toledo Bank v. Bond 65, 236 
 
 Tombs r. Rochester & Syracuse 
 
 Railw. 489 
 
 Tomlinson v. Man. & Birm. Railw. 234 
 V. Tomlinson 111 
 
 Tonawanda Railw. v. Hunger 467, 498 
 Tooke, ex parte 148 
 
 Toomey v. London, Br. & So. Coast 
 
 Railw. 603 
 
 Tower V. Prov. & Wor. Railw. 467, 499 
 Towle V. The State 645 
 
 Towns V. Cheshire Railw. 465, 497 
 Townsend v. Ash 111 
 
 Townshend v. Susquehannah T. Co. 605 
 Tracy v. Yates 188 
 
 Trasicr. Hartford & NewH. Rail. 463 
 Tremain v. Cohoes Company 286 
 
 Trenton Water Power Co. v. 
 
 Chambers 267 
 
 Troup, in re 617 
 
 Trow V. Vermont Central Railw. 469, 
 
 647 
 Troy r. Chesliire Railw. 298, 335 
 
 Troy & Boston Railw. v. Lee 262, 267 
 ». Northern Turnpike Co. 
 
 267, 272, 279, 293 
 V. Tibbitts 164, 189, 203 
 
 e. Warren 203 
 
 Troy & Greenfield Railw. v. New- 
 ton 178 
 Troy & Rutland Railw. r. Kerr 164, 
 
 189, 588 
 Troy T. Co. r. McChesney 163 
 
 Trueman r. Loder 130 
 
 Trustees r. State 659 
 
 Trustees Swansea Harbor, in re 383 
 Tuckahoe Canal Co. v. Tuckahoe 
 
 Railw. 286 
 
 Tucker v. Seaman's Aid Society 61 
 
 Tunney v. Midland Railw. 525 
 
 Tuohey v. Great S. & W. Railw. 339 
 Tarquand v. Marshall 568 
 
 Turner v. Sheffield & R. RaUw. 287, 
 
 335 
 
 Turnpike Co. v. Hosmer • 391 
 
 V. Wallace 54 
 
 Turnpike Road v. Brosi 847 
 
 Tyrrell v. WooUey 567 
 
 U. 
 
 U. S. e. Arredondo 236 
 
 V. New Bedford Bridge Co. 326 
 Underhill v. New York & Harlem 
 
 Railw. 472 
 
 r. Saratoga & Wash. 
 Railw. 220 
 
 Underwood v. Bedford & Cam- 
 bridge Railw. 353 
 r. Hart 411 
 
 Union Bank v. Knapp 215 
 
 V. Laird 116 
 
 Union Bank of Tennessee v. State 112 
 Union Locks & Canal Co. v. Towne 
 
 193 
 Uniontown v. Commonwealth 642 
 
 United States ». N. Bedford Bridge 
 
 Co. 324 I 
 
 V. Railway Bridge 
 
 Co. 230, 329 
 
 r. Robeson 434 
 
 V. Vaughan 116 
 
 United States Bank v. Dandridge 410 
 
 V. Han-is 248, 252 
 
 V. Planters' Bank of 
 
 Georgia 60 
 
 Unity Ins. Co. ». Cram 68 
 
 Unthank v. Henry County Tump. 
 
 Co. 166 
 
 UpfiU's Case 13, 165 
 
 Upton V. South Reading Railw. 261, 
 
 273 
 Utica & Schenectady Railw. v. 
 
 Brinkerhoff 172, 203 
 
 Utica Bank ». Hillard 215 
 
 V. 
 
 Vail V. Morris & Essex Railw. 269, 
 
 271, 278 
 
 Van Wickle v. Railw. 238, 269, 278 
 
 Van Winkle r. C. & A. Railw. 663 
 
 Vandegrift ». Railw. 513 
 
 r. Rediker 468, 498, 508, 
 
 547
 
 TABLE OP CASES. 
 
 Ixxxv 
 
 Yanderbilt v. Rensselaer & Sar. 
 
 Railw. 484 
 
 V. Richmond T. Co. 611 
 Vanderkar r. Rensselaer & Sar. 
 
 Railw. 482, 498 
 
 Vanflerwerker r. Vermont Cen- 
 tral Railw. 411 
 Varick r. Edwards 136 
 Varillat r. N. O. & Car. RaUw. 651 
 Varrick v. Smith 229 
 Vaughan r. TalT-Vale Railw. 452 
 Vaughn ». Co. of Gunmakers 635 
 Vauxhall Bridge Co. ». Earl of 
 
 Spencer 17, 21, 46 
 
 Vawter r. Ohio & Miss. Railw. 192 
 
 Veazie v. Mayo 222, 310 
 
 V. Penobscot Railw. 311, 899 
 
 Vermont Central Railw. c. Baxter 241, 
 
 246, 589 
 V. Burlington 392 
 V. Clayes 203 
 
 V. Hills 221 
 
 Vermont & Mass. Railw. r. Fitch- 
 burg Railw. 607 
 Vicksburg & Jackson Railw. r. 
 
 Patton 468 
 
 Vii'ksburg, Shreveport, & Texas 
 
 Railw. r. McKean 166, 173, 187,190 
 Victory v. Fitzpatrick 335 
 
 Vilas r. Milw. & Miss. Railw. 222, 337 
 Vinal V. Dorchester 588 
 
 Violet r. Simpson 550 
 
 Visscher v. Hudson River Railw. 368 
 Von Schmidt r. Huntington 74 
 
 Vose V. Grant 170 
 
 Vt. & Canada Railw. r. Vt. Cen- 
 tral Railw. 283 
 
 W. 
 
 W. & L. RaUw. V. Kearney 404 
 
 V. Washington 278 
 W. N. W. Co. t>. Hawksford 15 
 
 Wadhams v. Lackawanna & Blooms. 
 
 Railw. 284 
 
 Wainwright ». Ramsden 346 
 
 Waitnian, ex parte 151 
 
 Wakefield r. Conn. & Pass. River 
 
 Railw. 643 
 
 Waldo V. Chicago, St. Paul, & Fond 
 
 du Lac Railw. 233 
 
 V. Martin 677 
 
 Waldron c. Portland S. & P. Railw. 467 
 
 V. RensMelaer & Sar. 
 
 Railw. 466 
 
 Walker, ex parte 151, 683 
 
 ». Bartlett 125, 136, 138 
 
 V. Boiling 523 
 
 Walker r. Boston & Maine Railw. 231. 
 
 267, 270, 325 
 
 V. Devereaux 66, 169 
 
 V. Eastern Counties Railw. 223 
 
 V. Great'Western Railw. 517 
 
 r. London & Bl. Railw. 369, 
 
 643 
 
 V. Milne 111 
 
 V. Mobile & Ohio Railw. 174 
 
 V. Ware lUilw. 239 
 
 Walker's Case 116 
 
 Wallingford Manufacturing Co. v. 
 
 Fox 10 
 
 Walstab v. Spottiswoode 12 
 
 Walter v. Belding 627 
 
 Wansbeck Railw. in re 406 
 
 Warburton v. Great Western 
 
 Railw. 630 
 
 Ward V. Griswoldville Manuf. Co. 164 
 
 V. Londesborough 12 
 
 V. Ivowndes 630, 642, 647 
 
 r. Southeastern Railw. 122 
 
 Ware v. Grand Junction Water Co. 
 
 74, 194 
 V. Regents' Canal Co. 289, 342. 
 381 
 Waring r. Manch., Sheffield, & L. 
 
 Railw. 422 
 
 Warner v. Erie Railw. 519 
 
 V. Mower 78 
 
 Warren v. State 811 
 
 Warren Railw. v. State 399 
 
 Warring r. Williams 126 
 
 Wash. & Bait. T. Road Co. r. State 
 
 671 
 Waterbury v. Hartford, Prov. & 
 
 F. Railw. 645 
 
 Waterford, Wexford, & W. Railw. 
 V. Dalbiac 176 
 
 V. Pidcock 186 
 Waterman v. Conn. & Pass. River 
 
 liailw. 295, 344 
 
 Water Power Co. r. Chambers 219 
 Watennan v. Troy & Greenfield 
 
 Railw. 207 
 
 Waters v. Moss 477 
 
 V. Quimby 615 
 
 Watson e. Reid 225 
 
 Watkins c. Great Northern Railw. 242, 
 
 834, 335 
 Watts V. Porter 171 
 
 p. Salter 12," 13 
 
 r. Watts 136 
 
 Webb r. Direct London & Ports- 
 mouth Railw. 26, 27, 35, 
 37, 38. 89 
 V. Man. & Leeds Railw. 234, 
 241, 360, 5.'>4 
 Webber r. Eastern Railw. 274
 
 Ixxxvi 
 
 TABLE OF CASES. 
 
 Weeden v. Lake Erie & Mad River 
 
 Railw. 207 
 
 Welcome v. Leeds 640 
 
 Weld V. London & Southwestern 
 
 Railw. • 9, 393 
 
 V. Southwestern Railw. Co. 357 
 Welland Railw. v. Berrie 168 
 
 Welles V. Cowles 111 
 
 Wells r. Howell 497 
 
 r. Som. & Ken. Railw. 232 
 
 West Chester Railw. v. Miles 107 
 
 West Cornwall R. v. Mowatt 156 
 
 West London Railw. ». London & 
 
 N. W. Railw. 607 
 
 West Philadelphia Canal Co. v. 
 
 Innes 182, 185 
 
 West River Bridge ». Dix 255, 258 
 Western Maryland Railw. ». Ow- 
 
 ings 336 
 
 Western Railw. ». Babcock 225 
 
 Weston r. Bennett 410 
 
 V. Foster 250 
 
 Westropp V. Solomon 128 
 
 Wetraore v. Story 305 
 
 Weyant v. N. Y. & Hariem Railw. 523 
 Whaalan v. M. R. & Lake Erie 
 
 Railw. 521, 529 
 
 Wheeler v. Roch. & Sy. Railw. 251, 
 
 290, 483 
 Wheelock v. Moulton 11, 112 
 
 V. Young & Pratt 241 
 
 Whipple V. Walpole 275 
 
 Whitaker v. Boston & Maine Railw. 644 
 Whitcomb v. Vermont Central 
 
 Railw. 218, 295 
 
 White V. Boston & Prov. Railw. 335 
 r. Brown 465 
 
 V. Chariotte & S. C. Railw. 261 
 V. Concord Railw. 276, 484 
 
 V. Fitchburg Railw. 273 
 
 V. Quincy 404 
 
 r. South Shore Railw. 290 
 
 V. Vermont & Mass. Railw. 127 
 White's Casu 635 
 
 White Mountain Railw. v. East- 
 man 84, 159, 165, 177 
 White River Bank, Matter of 656 
 White River Turnpike Co. v. Ver- 
 mont Central Railw. 255, 256, 298 
 Whitefield v. Southeast Railw. 517 
 Whitehouse v. Androscoggin Railw. 
 
 286, 288 
 
 V. Fellowes 605 
 
 Whiteman v. Wilm. & Sus. Railw. 509 
 
 Whitfield V. Southeastern Railw. 514, 
 
 667 
 p. Zelnor 408 
 
 Whitman v. Boston & Maine Railw. 
 
 219, 222, 264, 271 
 
 Whitmarsh Township r. Phil., Ger., 
 
 & N. Railw. 644 
 
 Whitney v. At. & St. L. Railw. 488 
 Whittier ». Portland & Ken. R. 295 
 Whitwell V. Warner 15, 656 
 
 Wiggett V. Fox 623, 629 
 
 Wiffgin V. Free Will Baptist So- 
 ciety 77 
 Wight r. Shelby Railw. 160, 186, 189 
 Wigmore r. Jay 618, 528 
 Wiley & Moor 126 
 Wilkins v. Roebuck 564 
 Wilkinson v. Anglo - California 
 
 Gold Co. 145 
 
 V. Loyd 113, 120, 131 
 Willard v. Newbury 638 
 
 Willcocks, ex parte 84 
 
 Willey V. Southeastern Railw. 366 
 Williams v. Androscoggin & Ken- 
 nebec Railw. 409 
 V. Archer 132 
 r. Chester & Holyhead 
 
 Railw. 410 
 
 V. Great Western Railw. 92 
 r. Hartford & New Ha- 
 ven Railw. 238 
 r. Jones 506, 509, 651 
 V. Judge of County Ct. 659 
 V. Michigan Central R. 467, 
 468, 498 
 V. Natural Bridge Co. 299 
 V. New Albany & Salem 
 
 Railw. 490 
 
 V. New York Central 
 
 Railw. 229, 298, 299, 
 
 805, 308, 487 
 
 ». Pigott 14 
 
 c. South Wales Railw. 360 
 
 V. St. George's Harbor 
 
 Co. 11, 43 
 
 V. Wilcox 402 
 
 Willing V. Baltimore Railw. 278 
 
 Wills V. Bridge 123, 125 
 
 V. Murrav 78, 83 
 
 Willyard v. Hamilton 282 
 
 Wilmington & Manchester Railw. 
 
 r. Saunders 70 
 
 Wilmington & Raleigh Railw. v. 
 
 Robeson 173 
 
 Wilmot V. Corporation of Coven- 
 try 575 
 Wilson r. .^tna Insurance Co. 434 
 r. Anderson 3 
 p. Blackbird Creek Marsh 
 
 Co. 324, 326 
 
 p. Cunningham 3, 650 
 
 p. Goodman 669 
 
 p. Keating 158 
 
 p. Merry 620
 
 TABLE OP CASES. 
 
 Ixxxvii 
 
 Wilson r. Mien . 668 
 
 V. Railway Co. 470 
 
 e. West Hartlepool Railw. 
 
 Co. 666, 601 
 
 V. Wilson 86 
 
 V. York & Md. Railw. 418 
 
 Win. & St. Peters R. v. Denman 262, 
 
 266 
 V. Waldron 264 
 Winch V. Birkenhead, L. & C. 
 
 Railw. 691 
 
 Winchester, Bishop of, v. Midhants 
 
 Railw. 367 
 
 Winter r. Muscogee Railw. 193, 196 
 Winterbottom r. Wright 603 
 
 Witman v. Schlatter 15 
 
 Witter V. Miss. O. & R. Railw. 392 
 Wolfe V. Covington & Lexington 
 
 Railw. 294, 298 
 
 Wolverhampton N. W. Co. v. 
 
 Hawksford 161 
 
 Wood r. Auburn & Roch. Railw. 563 
 r. Duke of Argyll 9 
 
 r. Dummer 169 
 
 r. Epsom & L. Railw. 358 
 
 ©. McCann 678 
 
 V. North Staffordshire 
 
 Railw. 
 e. Stourbridge Railw. 
 r. Vermont Central Railw. 
 Woodfin r. Insurance Co. 
 Woodfolk p. Nashv. & C. Railw. 
 
 405 
 344 
 442 
 92 
 260, 
 263, 264 
 506 
 623, 662 
 126 
 
 Woodman t. Joiner 
 
 Woodstock p. Gallup 
 
 Wooley r. Constant 
 
 Woolson r. Northern Railw. 497 
 
 Wootton's Estate 848 
 
 Worcester & Nashua Railw. v. 
 
 Hinds 176 
 
 Worcester Turnpike r. Willard 162 
 
 Works p. Junction Railw. 829 
 
 Wormwell r. Hailstone 652 
 
 Worrall p. Judson 138 
 
 Worsley p. South Devon Railw. 857 
 
 Wright r. Coster 304 
 
 p. Fawcett 626 
 
 p. Gossett 492 
 
 Wrighte.Ind. &c. Railw. 499 
 
 t. N. Y. Central Railw. 618, 
 
 619, 528, 529, 632 
 
 e. Petrie 170 
 
 V. Scott 828 
 
 V. Warren 151 
 
 p. Wilcox 608 
 
 Wyatt p. Great W. Railw. 641 
 
 Wycombe Railw. p. Donnington 
 
 Hospital 225 
 
 Wyman v. Lexington & West 
 
 Cambridge Railw. 272 
 0. Penn. & Ken. Railw. 
 WjTin p. Alford 
 p. Allard 
 
 p. Shropshire Union Railw. 
 & Canal 
 Wynne p. Price 
 Wynstanley p. Lee 
 Wyrley Nav. p. Bradley 
 
 494 
 548 
 647 
 
 621 
 
 134, 138 
 
 337 
 
 296 
 
 Y. 
 
 Yarborough p. Bank of England 508 
 Yeizer, Case of 290 
 
 York & Cumberland R. p. Pratt 176 
 York & Maryland Line Railw. p. 
 
 Winans 689 
 
 York & N. Midland R. p. Milner 650 
 
 p. Reg. 630, 
 
 639 
 
 Young p. Harrison 282 
 
 p. N. Y. Central Railw. 504 
 
 V. Yarmouth 638 
 
 Z. 
 
 Zabriskie p. C. C. & C. Railw. 68, 
 
 78, 667, 663 
 
 r. Jersey City & Bergen 
 
 Railw. 312 
 
 Zack V. Penn. Railw. 266 
 
 Zimmerman p. Union Canal Co. 231, 
 
 283, 804
 
 ANALYTICAL INDEX OF APPENDIX OF CASES. 
 
 BEPORTED SINCE THE EDITION WKST TO PRESS. 
 
 Corporations. 
 
 PAOB 
 
 Receivers appointed to close up when same are insolvent 675 
 
 Commissioners appointed by special act of the legislature to arrange con- 
 nections between different companies 676 
 
 Right of owner of shares to demand registry of transfer 675 
 
 Costs of litigation when properly chargeable to company 676 
 
 Transfer of shares as collateral sfecurity 676 
 
 Specific contract for sale of shares 676 
 
 Right to inspect entries in books of company ~ 676 
 
 E.MINENT Domain. 
 
 Location of railway confirmed by statute 676 
 
 Difficulty of access 677 
 
 Company when liable in ejectment 677 
 
 Relief by injunction for nuisance in navigable highway 677 
 
 Notice to take land 677 
 
 Covenants against building upon adjoining lands 677 
 
 Extent of lien for price of land taken by railway company 677 
 
 May take land for substituted road, even when not strictly indispensable . 678 
 
 Extent of powers of company in building branches and new lines . . . 678 
 
 When assessment of land damages to be set aside 679 
 
 The interest of a railway company, laid in the streets of a city, in such 
 
 streets 679 
 
 Injuries to land affecting easements therein, not taking of land .... 679 
 
 Responsibility of conjpauy for legal use of franchise 680 
 
 Company cannot assign powers 680 
 
 Effect of ac(iuiescence on the part of railway company 681 
 
 Time and mode of exercising compulsory powers against land- owners . . 681 
 
 Concessions by natural persons to public company construed strictly . . 682 
 
 Right to enter upon lands for preliminary surveys 682 
 
 Rule of estimating land damages 682 
 
 Contracts 683 
 
 Rf:striction8 in regard to Tolm 683 
 
 Fires caused by Sparks from Companies' Engines 683 
 
 Injuries to Domestic Animals 686 
 
 Cattle suffered to go at large by law 686 
 
 Cattle, estrays, &c 686 
 
 9
 
 XC ANALYTICAL INDEX OP APPENDIX OF CASES. 
 
 Fences 686 
 
 Company not bound to fence against cattle trespassing 687 
 
 Injury by Fellow-servants or Machinery 687 
 
 Responsibility of master for tortious acts of seryant 688 
 
 Injuries in the nature of Touts 688 
 
 Directors. 
 
 Directors responsible for the authority they assume 691 
 
 Directors when responsible for the act of co-directors 691 
 
 Power of directors and duty of courts in controlling their action .... 691 
 
 The duty of the directors to serve the interests of the company .... 692 
 Directors personally responsible to refund money expended by them in 
 
 " rigging the market " 693 
 
 Mandamus 693
 
 TABLE OF CASES OF APPENDIX OF CASES. 
 
 A. 
 
 Arnold r. Hudson River Railw. 679 
 Attorney Creneral v. Earl of Lons- 
 dale 677 
 
 B. 
 
 Bailey v. De Crespigney 677 
 
 Bait. & Ohio Railw. v. Bahrs 690 
 
 V. Breinig 690 
 
 Bannon v. Bait. & Ohio Railw. 690 
 
 Belmont t?. Erie Railw. 691 
 
 Boyle r. Phil. & Reading Railw. 683 
 
 C. 
 
 Cadmus r. Central Railw. 679 
 
 Card V. N. Y. & Harlem Railw. 685 
 Chicago & Alton Railw. p. Utley 686, 
 
 687 
 Cleveland & Pittsburgh Railw. v. 
 
 Speer 680 
 
 Col. Bank of Australasias. Cherry, 
 
 &c. 691 
 
 Commonwealth r. Eagle Ins. Co. 675 
 Cook r. Met. Railw. 690 
 
 Drake v. FhU. & Erie Railw. 
 
 E. 
 
 687 
 
 686 
 
 Eames e. Salem & Lowell Railw 
 Eastern Railw. r. Concord & 
 
 Portsmouth Railw. 676 
 
 East Penn. Railw. v. Schollenber- 
 
 ger 682 
 
 Edgerton v. N. Y. & H. Railw. 690 
 Enright p. San F. & San J. Railw. 
 
 686, 687 
 Ernst V. Hudson River Railw. 690 
 
 Eyton V. Denb. R. & C. RaUw. 678 
 
 F. 
 
 Femow p. Dubuque & So. West. 
 
 Railw. 687 
 
 Flint & Pere M. Railw. p. Dewey 692 
 Fox p. Western Pacific Railw. 682 
 
 Frankford & Bristol Turnpike p. 
 
 Phil. & Tren. Railw. 684 
 
 G. 
 
 Graham p. Columbus & Ind. C. 
 
 Railw. 677 
 
 Great Western RaUw. p. Hanks 686 
 
 H. 
 
 Hannibal & St. Jo. Railw. p. Ken- 
 
 ney 685 
 
 Hanover Railw. p. Coyle 689 
 
 Harrison, Adm'x, p. Central Railw. 
 
 688 
 Hawkins p. Maltby 676 
 
 Heyl p. Phil., W. & B. Railw. 681 
 Hill p. Portland & Roch. Railw. 688 
 Hornstcin p. Atlantic & Great 
 Western Railw. 682 
 
 I. 
 
 HI. Cent. Railw. p. Whalen 687 
 
 Ind., P. & C. Railw. p. Marshall 686 
 
 J. 
 
 Joint Stock Discount Co. p. Brown 691 
 
 Lackawanna & Blooms. Railw. p. 
 
 Doak 684 
 
 Lamb p. North London Railw. 678
 
 XCll 
 
 TABLE OP CASES OF APPENDIX OP CASES. 
 
 Land Credit Co. of Ireland v. Lord 
 
 Fermoy 693 
 
 Langton v. Waite 676 
 
 Lehey v. Hudson River Railw. 690 
 Louisville, &c. Railw. v. State 693 
 
 M. 
 
 Maxted v. Paine 676 
 
 Mayberry v. Concord Railw. 687 
 Mich So. & North Ind. Railw. v. 
 
 Fisher 685 
 
 Morgan v. Met. Railw. 677 
 Morris & Essex Railw. v. Central 
 
 Railw. 678 
 
 N. 
 
 N. Y. & H. Railw. v. Forty-second 
 
 St. & G. S. F. Railw. 679 
 
 Neill V. Midland Railw. 688 
 
 O. 
 
 Ottoman Co. v. Farley 693 
 
 Pell V. Northampton & B. Railw. 677 
 People V. Hatch 693 
 
 Perley v. Eastern Railw, 683 
 
 Ph., W. & Baltimore Railw. v. 
 
 Kerr 689 
 
 Phil,, Wil., & Bal. Railw. v. Wil- 
 liams 681 
 Pittsburgh, Ft. Wayne & Chicago 
 
 Railw. V. Devinney 688 
 
 V. Dunn 690 
 
 V. Gilleland 680 
 
 Price V. Denb. R. & C. Railw. 676 
 
 V. N. J. Railw. & Transp. 
 
 Co. 685 
 
 R. 
 
 Rayner, ex parte 676 
 
 Reg. V. Tarn worth 676 
 
 S., F., A. & S, Railw, v. Cald- 
 well 682 
 Salem v. Eastern Railw, 677 
 Schwartz v. Hudson River Railw. 690 
 Shauck V. Northern Cent. Railw, 688 
 Shepherd v. Buffalo, &c. Railw, 686 
 Smith & Co., Be 675 
 Snyder v. Penn, Railw, 688^ 
 Stewart & Foltz's Appeal 680 
 Storey v. Ashton 688 
 
 Toledo, P. & W. Railw. v. Arnold 
 
 686 
 
 V. Rumbold 686 
 
 Tracy v. Troy & Boston Railw, 686 
 
 U, 
 
 Unangst's Appeal 
 
 682 
 
 W. 
 
 Warner v. Erie Railw. 688 
 
 Waud, Be 676 
 
 Weger v. Penn. Railw. 688 
 
 Western Penn. Railw. v. Hill 677 
 
 Weston's Case 675 
 Wilcox V. Rome & Watertown 
 
 Railw. 689 
 
 Wooliey V. North London Railw. 676
 
 THE LAW OF RAILAYAYS. 
 
 •CHAPTER I. 
 
 INTRODUCTION. 
 
 1. Origin of railways in England. \ 4. Railuxofs in America, public grants. 
 
 2. First built upon ontfs own land, or by 5. Use of steam power on railways. 
 
 special license from the owner. i 6. The franchise of a railway not necessarily 
 
 8. Questions in regard to private railways. \ corporate, nor unassignable. 
 
 § 1. 1. Although some of the Roman roads, like the Appian 
 Way, were a somewhat near approach to the modern railway, 
 being formed into a continuous plane surface, by means of blocks 
 of stone fitted closely together, yet they were, in the principle of 
 construction and operation, essentially different from railways. 
 The idea of a distinct track, for the wheels of carriages, does not 
 seem to have been reduced to practice until late in the seventeenth 
 century. In 1676, some account is given of the transportation of 
 coals near Newcastle, upon the river Tyne, upon a very imperfect 
 railway, by means of rude carriages, whose wheels ran upon some 
 kind of rails of timber.* About one hundred years afterwards, an 
 iron railway is said to have been constructed and put in operation at 
 the colliery near Sheffield. From this time they were put into very 
 extensive use, for conveying coal, stone, and other like substances, 
 short distances, in order to reach navigable waters, and sometimes 
 near the cities, where large quantities of stone were requisite for 
 building purposes. 
 
 * Roger North's Life of Lord Keeper North, vol. 2, p. 281 ; Ency. Americana, 
 Art. Railway, vol. 10, p. 478. And in all the mediseval towns in Europe, we 
 notice double granite flagging, along the streets, for the wheels of carriages. 
 And in the main street in Milan, and some other Italian towns, there are double 
 tracks of this kind for carriages to pass in opposite directions. These granite 
 blocks in the streets, for the wheels of carriages, are seen in Canterbury and in 
 York, England ; and in most of the Italian cities. But they seem never to have 
 suggested the idea of railways. 
 
 1 'l
 
 ifi INTRODUCTION. CH. I. 
 
 2. These railways, built chiefly by the owners of coal-mines * and 
 stone-quarries, either upon their own land or by special license, 
 called way-leave, upon the land of others, had become numerous 
 long before the application of steam power to railway transportation. 
 
 3. Some few questions in regard to the use of these railways, or 
 tramways, at common law, have arisen in the English courts.^ 
 But as no such railways exist in this country, it would scarcel^Lbe 
 expected we should here more than allude to such cases.^ 
 
 • Walford on Railways, 2 ; Keppell ». 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 covenanter, and from which he 
 derives the material transported. Id. 
 
 ' Walford, 3-10. The points chiefly discussed in the reported cases in refer- 
 ence to private railways and railways at common law, are : — 
 
 1. That these way-leaves, or reservations, by which one man has the right to 
 build a railway upon the land of others, or in the rightful occupation of others, 
 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». 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 improve- 
 ment, coming fairly within the contemplated use of their grant or reservation, 
 although wholly unknown at the date of their grant. Bishop r. North, 3 Railw. 
 C. 459 ; 8. c. 11 M. & W. 429. 
 
 2. That this will not justify the grantee of a way-leave for a railway, for a 
 special purpose, to erect one for general purposes of transporting merchandise 
 and passengers. Dand v. Kingscote, 2 Railw. C. 27 ; s. c. 6 M. & W. 174. Far- 
 row V. Vansittart, 1 Railw. C. 602 ; Durham & Sunderland R. v. Walker, 3 Railw. 
 C. 36 ; 8. c. 2 Q. B. 940. 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 exception, for it is not parcel of the thing granted, and 
 it is not a reservation, as it did not issue out of the thing 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 Greo. 3, c. 100, § 54,) the pro- 
 prietors 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 ; 8. c. 11 M. & W. 429. 
 *2
 
 § 1. INTRODUCTION. 8 
 
 * 4. All railways and other similar corporations in thi« country 
 exist, or are presumed to have originally existed, by means 
 of an express grant from the legislative power of the state or 
 sovereignty.* 
 
 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 tliis country, with one or 
 two exceptions, have been built since that date.* 
 
 3. That If the railway was such an one as the company, at the time when it 
 was made, might lawfully make, for the purposes for which, when made, they 
 might lawfully use it, the plaintiff, as reversioner, had no ground of complaint, 
 by reason of the intention of the company to use it for other purposes, for which 
 they had no right to use it, until such intentions were actually carried into effect. 
 Durham & Sunderland R. r. Walker, 8 Railw. C. 86 ; 8. C. 2 Q. B. 940. 
 
 But where other parties have acquired the right to use a railway originally 
 erected by private enterprise and for private purposes, the English courts at an 
 early day restrained the owners of the railway by mandamus from taking up 
 their track, and required them to maintain it in proper condition for public 
 use. Rex r. Severn R. 2 B« & Aid. 646. But see Thome v. Taw Vale R. 18 
 Beavan, 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 ; 8. c. 1 Cr. & Ph. 85 ; Mon- 
 mouth Canal Co. ». Harford, 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 ; Wal- 
 ford, supra. 
 
 * 2 Kent, Comm. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. 
 400; Hagerstown Turnpike Co. r. Creeger, 5 liar. & J. 122 ; Greene v. Dennis, 
 6 Conn. 292, 302, Hosmer Ch. J. ; Franklin Bridge Co. v. Wood, 14 Ga. 
 80. But from the case of Wilson r. Cunningham, 3 California 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 negligence in its use, whereby third parties were injured. 
 Post, § 250. 
 
 * The celebrated trial of locomotive engines upon the Liverpool and Man- 
 chester Railway, for the purpose of determining the relative advantage of 
 stationary and locomotive power upon such roads, and which resulted in favor 
 of the latter, was had in October, 1829. The Quincy Railway, for the trans- 
 portation of granite solely, by horse power, was constructed about two years 
 before this. But the Boston and Lowell Railway, one of the 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 rail- 
 
 •8
 
 4 INTRODUCTION. CH. I. 
 
 * 6. There is nothing in the prerogative right of maintaining and 
 operating a railway and taking tolls thereon which is necessarily 
 of a corporate character, or which might not, with perfect propriety, 
 belong to, or be exercised by, natural persons, or which in its 
 nature may not be regarded as assignable.* n 
 
 ways for puq)oses of general traffic were constructed about the same date in most 
 of Ihe older States, and very soon throughout the country. 
 
 • Bennett, J., in Bank of Middlebury v. Edgerton, 30 Vt. 182. 
 
 •4
 
 PRELIMINABT ASSOCIATIONS. 
 
 •CHAPTER II. 
 
 PUBLIC RAILWAYS AS CORPORATIONS. — PRELIMINARY ASSOCIATIONS. 
 
 SECTION L 
 
 Mode of instituting Railway Projects. 
 
 1. SubtcrOier^ associations in England. 
 
 2. SubscrAers bound bjf subsequent charter. 
 8. Issue and registry of scrip certificates. 
 
 4. Original subscriber liable to unregistered 
 
 purchaser. 
 6. Holders of scrip entitled to registry. 
 6. Preliminary associations not common in 
 
 this country. 
 
 7. Petitioners far incorporation Jile plans 
 
 and surveys. 
 
 8. Present English statutes. 
 
 9. Preliminary Associations may be regis- 
 
 tered. 
 10. Not now held responsible as partners in 
 England. 
 
 § 2. 1. The mode of instituting railway enterprises, in England, 
 is more formal and essentially different, from that adopted in most 
 of the American States. There the promoters usually associate 
 under two provisional deeds, the one called a " Subscribers' Agree- 
 ment," and the other a " Subscription, or Parliamentary Contract," 
 which are expected only to serve as the basis of a temporary organ- 
 ization till the charter is obtained. This is specifically and often 
 in detail to some extent provided for, in the subscribers' agreement. 
 A board of provisional directors is provided to carry forward the 
 enterprise, whose powers are defined in the subscribers' agreement 
 or deed of association, and whose acts will not bind the members 
 unless strictly within the powers conferred by the deed. 
 
 2. Under this form of association, the subscribers are bound by 
 the act obtained, if within the powers conferred by the deed, even 
 where it involves the purchase of canal, and other property by the 
 company.^ And courts of equity often interfere to restrain the 
 provisional directors from exceeding their * powers under the deed,^ 
 
 • Midland Great Western Railway v. Gordon, 16 M. & W. 804. 
 
 • Gilbert v. Cooper, 4 Railw. C. 396 ; 8. c. 15 Sim. 343. All parties con- 
 cerned must be made parties to the bill, even shareholders of whom it is alleged 
 a rival company propose to purchase shares, to destroy the independence of one 
 
 •6, 6
 
 6 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 or misapplying the funds, or delaying payment of the debts of the 
 association.^ 
 
 3. Tlie provisional directors usually issue scrip certificates, which 
 pass from hand to hand by delivery merely, and after the charter 
 is obtained, the scripholders are registered as shareliolders in the 
 company, and thereby become entitled to all the rights, and subject 
 to all the liabilities of the shareholders.* 
 
 4. 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.* 
 
 5. But the company are not obliged to accept of the holders of 
 scrip as shareholders, m discharge of the original subscribers, it 
 has been said, but may insist upon registering the original subscri- 
 bers to the deed of association, to whose aid it may be presumed 
 the promoters looked in undertaking the enterprise, which by their 
 act of incorporation they are morally, and in some cases legally, 
 bound to carry forward.^ But the English decisions, upon the 
 whole, hardly seem to justify this proposition. The subscriber 
 cannot abandon the obligation at * will.' But if the scrip is trans- 
 ferable, by delivery, it would be strange if the holder was not enti- 
 
 of the companies connected -with the conunon enterprise. Greathed r. S. W. & 
 Dorchester Railway, 4 Railw. C. 213 ; s. c. 10 Jur. 343. 
 
 ' Lewis r. Billing, 4 Railw. C. 414; 8. c. 10 Jur, 851. 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 ; s. c. 4 De G. Mac. & G. 
 711. In this last case, the railway company being only provisionally registered, 
 expended £10,000 in the purchase of the stock of the defendants. The railway 
 finally failing to go into operation, in the process of winding up, one of the 
 shareholders was allowed to institute proceedings in equity, on behalf of him- 
 self 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. 
 
 * Pogt, § 47 ; Birmingham, B. & Th. J. Railway ». Locke, 1 Q. B. 256 ; 
 London Grand J. Railway r. Graham, id. 271 ; s. c. 2 Q. B. 281 ; The Chelten- 
 ham & G. W. U. Railway r. Daniel, 2 RaUw. C. 728 ; Sheffield & A. & M. 
 Railway c. Woodcock, 2 Railw. C. 522 ; s. c. 7 M. & W. 674. 
 
 * Beckitt r. Bilbrough, 19 Law J. 522 ; 8 Hare, 188. 
 
 * Hodges on Railways, 97. 
 
 ' Kidwelly Canal Co. r. Raby, 2 Price, 93 ; Great North of Eng. Railway v. 
 Biddulph, 2 Railw. C. 401 ; s. c. 7 M. & W. 243, where the question is raised, 
 but not determined. 
 *7
 
 2. MODE OP INSTITUTING RAILWAY PROJECTS. 7 
 
 tied to be registered, as a shareholder, the same as the assignee of 
 a fully registered share in the stock. And for the company, after 
 having issued scrip certificates, in a form calculated to invite pur- 
 chases, and when they were aware of the use constantly made of 
 such scrip, to refuse to register the names of the holders, as share- 
 holders and members of the company, would amount to little less 
 than express fraud. Hence we conclude they have no right to 
 decline accepting such scripholder, as a shareholder.^ But where 
 false scrip had been issued, beyond the amount allowed in the char- 
 ter, and the full riumber 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 shall have occasion to say more upon this subject 
 elsewhere.^^ 
 
 6. By the laws of some of the States a given number of persons 
 associating, in a prescribed form, for particular purposes, as relig- 
 ious, manufacturing, and banking purposes, and often for any 
 lawful purpose, are declared to be a corporation. In such cases 
 no application to the legislature is required. But, generally, rail- 
 ways in this count;*y 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.^^ 
 
 7. By the general law of some of the States the petitioners are 
 required to furnish surveys of the proposed route, properly delin- 
 eated upon charts, by competent engineers, with estimates, and 
 other information requisite for the full understanding of the 
 subject. And these profiles and plans are required, where the 
 * petition is granted, to be deposited in some public ofiice, for in- 
 spection and preservation.^ 
 
 8. Since the publication of the second edition of this work, the 
 mode of procedure in obtaining parliamentary powers for railways, 
 
 " Midland G. W, Railway v. Gordon, 6 RaUw. C. 76 ; 8. c. 16 M. & W. 804. 
 » Daly r. Thompson, 10 M. & W. 309. " Post, §§ 39, 47. 
 
 " Angell & Ames on Corporations, §§ 86-94. 
 
 «» Laws of Mass. 1833, ch. 176; 2 Railroad Laws & Ch. 616; id. 657; Laws 
 of Mass. 1848, ch. 140; Laws of Rhode Island, 1836; 2 Rail. Laws & Ch. 838; 
 
 •8
 
 8 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 in England, has been considerably changed. The former laws have 
 been repealed, and the whole consolidated into one statute,^ 
 called " The Companies ' Act, 1862," which applies to other com- 
 panies as well as railways. 
 
 9. The usual course now is for the preliminary association to 
 register itself as a preliminary company under the Act of 1862, 
 for the purpose of obtaining a special Act of Parliament. This 
 is effected by the promoters signing a memorandum of association, 
 in which the powers of the company are specially limited to certain 
 acts or purposes. 
 
 10. If the association be not registered under the statute so as 
 to constitute it a corporation with limited powers, there may be 
 danger that the individual members, who are active in promoting 
 the enterprise, may incur the responsibility of general partners.^* 
 But in England, it seems now settled that the promoters of rail- 
 ways are not, ordinarily, to be held responsible, as partners, for 
 the acts of each other.^^ 
 
 Laws of Conn. 1849, ch. 37 ; id. 1853 ; Rev. Statutes of Maine, ch. 81, § 1 ; 
 1 Rail. Laws & Ch. 305. Similar provisions exist in many of the other States. 
 But they are very general, and ordinarily the plans furnished are so imper- 
 fectly made, as not to afford much protection to land-OMmers. And a compli- 
 ance with these requirements not being, in any sense indispensable to the 
 validitj' of special 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. 
 
 " 25 & 26 Vict. c. 89. 
 
 " Hodges on Railways, (ed. 1865,) 2. 
 
 " Hamilton v. Smith, 5 Jur. N. S. 32 ; Post, § 4, n. 11 ; Norris r. Cooper, 3 
 H. Lds. Cas. 161. Statute 27 & 28 Vict. c. 121, facilitates, in certain cases, 
 the obtaining of powers for the construction of railways. The act may be cited 
 as "The Railways Construction Facilities Act, 1864." The recital to the pre- 
 amble enumerates the cases to which the act is to apply ; it recites that it is 
 expedient to facilitate the making of branch and other lines of railway, and de- 
 viations of existing railways, and of railways in course of construction, and also 
 the execution of new works connected with, or for the purposes of, existing 
 railways ; and that the object aforesaid would be promoted, if, where all land- 
 owners and other parties beneficially interested are consenting to the making of 
 a railway, or the execution of a work, the persons desirous of making or execut- 
 ing the same were enabled to obtain power to do so, on complying with the con- 
 ditions of the general Act of Parliament, without being obliged to procure a 
 special act. The promoters having contracted lor the purchase of all the lands 
 required for the railway, they are empowered to apply for a certificate from the
 
 §3. 
 
 CONTRACTS OP PROMOTERS NOT BINDING. 
 
 •SECTION II. 
 
 Contracts of the Promoters not hindinff at law upon the Company. 
 
 In this country, promoters only bind them- 
 
 selves c{jid associates. 
 Contracts of promoters not enforceable 6y 
 
 company. 
 
 But by consenting to a decree in equity 
 Betting up the contract, the company 
 will be held to have adopted it. 
 
 § 3. 1. The promoters of railways, in this country, where the 
 law makes no provision for the preliminary association becoming 
 a corporation, can only bind themselves and their associates, at 
 most, by their contracts.^ The promoters are in no sense * identi- 
 
 Board of Trade, in the same manner, and subject to the same incidents, as ob- 
 taining a certificate under the Railways Companies' Powers Act. 
 
 The lines and works of a railway are sufficiently shown on the plans deposited 
 by a black line, with dotted lines on each side, to mark the limits of deviation. 
 Weld r. London and South Western Railway Co., 9 Jur. N. S. 510, 8. c. 11 
 W. R. 448 ; 32 Beay, 340. 
 
 Where the deposited plans and sections specify the span and height of a bridge 
 by which a railway is to be carried over a turnpike road, the company will not, 
 in the construction of tlie bridge, be allowed to deviate from the plans and sec- 
 tions. Attorney-General v. Tewkesbury and Great Malvern Railway Company, 
 1 De G. J. & Sm. 423 ; 9 Jur. N. S. 951 ; s. c. 8 L. T. N. S. 682. 
 
 ' Mone)'penny v. Hartland, 1 C. and P. 352. Abbott, CL J., said: "Before 
 an act passes for such a work as this, the surveyor and other persons employed 
 on it look to the committee, or body of adventurers, who first employ them.^' 
 8. P. Kerridge v. Hesse, 9 C. & P. 200; Doubleday p. Muskett, 7 Bing. 110. 
 And one who attends the meetings of such preliminary association, and takes 
 part, will ordinarily be precluded from denying his liability as a partner. Har- 
 rison r. Heathom, 6 Man. & Gr. 81 ; Sheffield, Ash. and M. Railway v. Wood- 
 cock, 7 M. and W. 574. If the defendants have suffered themselves to be held 
 out as partners in the enterprise, and engaged in carrying it forward, and 
 others have performed service for the association, upon their credit, they are 
 liable. Wood v. The Duke of Argjll, 6 Man. & Gr. 928 ; Steigenbergcr v. 
 Carr, 3 id. 191. But express proof is required of authority from the partners, 
 or of a necessity to draw bills, in the conduct of the business, to justify the 
 directors in drawing bills on the credit of the association. Dickinson v. Valpy, 
 10 B. & C. 128. From the foregoing cases, and Bell t. Francis, 9 C. & P. 66, 
 and some others, it would seem, that the directors and managing committee are 
 always liable for services rendered such associations, on their employment and 
 credit, and that such other members of the association are liable also, as the 
 terms of the association, or their own active agency in the employment of scr- 
 
 •9,10
 
 10 PBEUMINABT ASSOCIATIONS. CH. H. 
 
 cal with the corporation, nor do they represent them, in any rela- 
 tion of agency, and their contracts could of course only bind the 
 company, so far as they should be subsequently adopted by it, as 
 their successors ; much in the same mode and to the same extent, 
 and under the same restrictions and limitations, as the contracts 
 of one partnership bind a succeeding partnership in the same house. 
 2. But a contract by a joint-stock association, that each member 
 shall pay all assessments made against him, cannot be enforced 
 by a corporation" subsequently created, and to which,* in pursuance 
 of the original articles of association, the funds and all the eflfects 
 of the former company have been transferred.^ Nor is the act of 
 
 yante and agents, fairly justify such employees in looking to for compensation. 
 It was held, in Scott v. Lord Ebury, Law Rep. 2 C. P. 255, that the promoters 
 were responsible for money expended in obtaining the act of parliament, not- 
 withstanding the incorporation and the assumption of these acts by the company. 
 And one of the promoters cannot in equity compel others to contribute to ex- 
 penses incurred by him, unless he is willing to have all the expenses brought 
 into one account and adjusted together. Denton r. Macniel, Law Rep. 2 £q. 
 352. Post, § 4, n. 11. 
 
 In regard to admissions made by proyisional 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 admis- 
 sions, 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 additional liability' thereby. Newton v. Liddiard, 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 r. Rogers, that the party is at liberty to 
 prove that his admissions were mistaken, or untrue, and is not estopped, or con- 
 cluded by them, unless another person has been induced by them to alter his 
 condition, is applicable to mistakes, in respect of legal liability, as well as in 
 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 admis- 
 sion was made, and that third parties, having no interest in it, either originally 
 or by derivation, can claim no benefit fit>m 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 r. Ellsworth, 26 Vt. 366. 
 
 * Wallingford Manufacturing Co. v. Fox, 12 Vt. 304 ; Goddard v. Pratt, 16 
 Pick. 412, where it is held, the original copartners are still liable, upon con- 
 tracts made with third parties, ignorant of the dissolution by the effect of the 
 incorporation, the company having carried on business in (he name of the part- 
 nership. 
 
 •11
 
 §4. 
 
 SUBSCRIBERS TO PRELIMINARY ASSOCIATION. 
 
 11 
 
 all the corporators even, the act of the corporation, unless done in 
 the ipode 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 association, by the name of the in- 
 dividuals and their successors, as the governors of the Society of 
 Musicians, for the faithful accounting of A. B., their collector, to 
 them and their successors, governors, &c., the company being sub- 
 sequently incorporated.* 
 
 8. But the company, by consenting to a decree against them, 
 upon a bill to enforce a contract with the promoters, by which they 
 stipulated to withdraw opposition in parliament, upon condition 
 that the company, when it came into operation, should take the 
 land of the opposers of the bill at a specified price, and pay all the 
 costs and expenses of the opposition until the time of the compro- 
 mise, were held to have adopted the agreement, whether it would 
 have been otherwise binding upon them or not.^ 
 
 SECTION IIL 
 
 Subscribers to the Preliminary Association inter sese. 
 
 8. 
 
 lAability for acts of directors limited by 
 
 terms of subscription. 
 Ataociation not binding until prdimina- 
 
 ries are complied with. 
 Contracts, how far controlled by oral rep- 
 
 reaentations of directors. 
 Subtcriben not excused from paying calls 
 
 6y contract of directors. 
 
 6. Not liable for expenses, except by terms of 
 agreement. 
 
 6. Deeds of association generally make pro- 
 
 vision for expenses. 
 
 7. One who obtains shares, without executing 
 
 the deed, not bound to contribute. 
 n. 11. No relation of general partnership 
 subsists between subscrAers. 
 
 § 4. 1. The project for a railway being set on foot by a •pro- 
 visional committee of directors or managers, the subscribers may 
 insist upon the terms of subscription. The subscribers are not 
 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.^ 
 
 2. And the association is not binding, until the provisions by 
 
 » Wheelock c. Moulton, 15 Vt. 619. 
 
 * Dance v. Girdler, 4 Bos. & P. 34. See Gittings r. Mayhew, 6 Md. 113. 
 
 » Williama v. St. George's Harbor Co., 2 De G. & J. 647 ; s. c. 4 Jur. N. S. 
 1066. 
 
 » Londesborough ex parte, 27 Eng. L. & Eq. 292 ; 8. c. 4 De G. M, & G. 
 411; Ex parte Mowatt, 1 Drewiy, 247. 
 
 •12
 
 12 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 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 com- 
 pany, by fraudulent representations, he may recover back the whole 
 of his deposits.^ 
 
 3. But if one actually become a subscriber, he is bound by the 
 terms of subscription, without reference to prior oral representa- 
 tions, and must bear a portion of the expense incurred, if the sub- 
 scription so provide.* But if the directors, in such provisional 
 company, in order to induce subscriptions, promise the subscriber, 
 that in the event of no charter being obtained, he shall be repaid 
 his entire deposit, this contract is binding upon them, and may be 
 enforced by action, notwithstanding the subscriber's agreement 
 authorized the directors to expend the money in the mode they did.^ 
 
 4. But the contract of the directors will not excuse the subscri- 
 ber from paying calls, if the terms of the subscriber's agreement 
 require 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.'^ 
 
 * 5. But it has been held, that persons, by taking shares in a 
 projected railway, do not bind themselves to pay any expense 
 incurred, unless it is so provided in the preliminary contracts of 
 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.^ 
 
 « Walstab v. Spottiswoode, 4 Railway C. 321 ; s. c. 15 M. & W. 501. 
 3 Jarrett v. Kennedy, 6 C. B. 319. 
 
 * 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. & £q. 422. 
 
 » Mowatt V. Londesborough, 25 Eng. L. & Eq. 25, and 3 El. & Bl. 307 ; 8. C. 
 in error, 28 Eng. L. & Eq. 119, and 4 El. & Bl. 1 ; Ward v. Same, 22, Eng. L. 
 & Eq. 402. 
 
 * Ex parte Mowatt, 1 Drewry, 247. 
 
 ' Dover & Deal Railway, ex parte Mowatt, 19 Eng. L. & Eq. 127 ; 8. c. 1 
 Drew, 247. 
 
 8 Maudslay ex parte, 1 Eng. L. & Eq: 61 ; 14 Jur. 1012. 
 
 ' Carmichael ex parte, 1 Eng. L. & Eq. 66 ; s. c. 14 Jur. 1014 ; Clarke ex 
 parte, id. 69 ; s. c. 20 L. J. N.S. ch. 14. 
 ♦ 13
 
 § 4. SUBSCRIBERS TO PRELIMINARY ASSOCIATION. 13 
 
 6. But in general, the form of the deeds of association is such, 
 that if one takes shares without reservation, he is to be regarded 
 as a contributory to the expense,^^ and especially where he acts as 
 one of the provisional committee, and also accepts shares allotted 
 to him.io 
 
 7. But one who has obtained shares in a projected railway 
 company, 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." 
 
 '» Burton «x parU, 13 Eng. L. & Eq. 435 ; 8. c. 16 Jur. 967 ; Markwell ex 
 parte, 13 Eng. L. & Eq. 456 ; 8. c. 5 De G. & S. 628 ; Upfill's case, 1 Eng. L. 
 & Eq. 13 ; 8. c. 14 Jur. 843 ; Watts r. Salter, 12 Eng. L. & Eq. 482. See also 
 St. James's Club in re, 13 Eng. L. & Eq. 689 ; 8. c. 10 C. B. 477 ; as to the 
 effect of proof of the subscriber being present when a resolution is passed. 
 
 " The Galvanized Iron Co. r. Westoby, 14 Eng. L. & Eq. 386 ; s. c. 8 Exch. 17. 
 
 It was formerly considered, that all persons engaged in obtaining a bill in 
 parliament for building a railway, were partners in the undertaking, and for that 
 reason a subscriber, who acted as their surveyor, could not maintain an action 
 for work and labor, done by him in that character, against all or any one of the 
 subscribers. Holmes o. Uiggins, 1 B. & C. 74. See also Groddard 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 
 incurred 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 r. Hutton, 3 H. L. Cases, 
 341, 368. And an agreement, aside of the deed of association, that one of the 
 promoters shall indemnify another, is held valid. Connop o. Levy, 5 Ilailway C. 
 124 ; 8. c. 11 Q. B. 769. But a general indemnity against costs will only ex- 
 tend 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 liim- 
 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 r. Duke of 
 Argj-ll, 6 Q. B. 477, 479, Denman, Ch. J., said: "But when 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 member or shareholder, yet his declared intention to become
 
 1^ PRELIMINARY ASSOCIATIONS. CH. II. 
 
 ♦SECTION IV. 
 Contracts of the Promoters adopted hy the Company. 
 
 1. Liability may be transferred with assent of \ n. 3. Powers of provisional company to con- 
 creditors. But not unless that is equitable. | tract limited by statute. 
 
 § 5. 1. The company when fully incorporated may assume the 
 liabilities of the preliminary association, incurred in obtaining * the 
 special act, or as is sometimes the case, where the association 
 
 the president, or a member, in whatever event, or to take a share under 
 any conditions, may be material evidence to show that he authorized contracts 
 with those whose services were required by what may be called the constituent 
 body." 
 
 But a charge to the jurj', 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. Nevins v. Henderson, 5 Railway C. 684 ; Williams v. Pigott, 5 Rail- 
 way C. 544; 8. c. 2 Exch. 201. See also Spottiswoode's case, 39 Eng. L. & 
 Eq. 520. Since the publication of the second edition of this work, the English 
 courts have made numerous decisions bearing upon the general subject discussed 
 in this note. In Maddick v. Marshall, 10 Jur. N. S. 1201, the defendant was 
 employed by the parties in interest to act as provisional director in connection 
 with others, under the assurance from the solicitor of such parties, that they 
 were safe and would incur no personal responsibility ; and the directors there- 
 upon appointed the principal party in interest secretary, and passed a resolu- 
 tion to advertise, which resolution was signed by the defendant as director. The 
 plaintiff, upon taking the order, was shown the resolution certified by the defend- 
 ant as authority for the order. The court held this testimony for the jury to 
 consider, tending to show a personal undertaking by defendant, and that they 
 could not disturb a verdict against him. See also Swan v. The North British 
 Australasian Co., 7 H. & N. 603 ; s. c. 8 Jur. N. S. 940, as to what acts will create 
 an estoppel in such cases. 
 
 Under the English statute, all the subscribers are constituted directors until 
 they designate who shall act in that capacity, and have authority to appoint one 
 of their number to an office in the company. Eales v. The Cumberland Black 
 Lead Mine Co., 6 H. & N. 481 ; s. c. 7 Jur. N. S. 169. 
 
 It seems to be considered essential, in order to fix the liability of a subscriber 
 to the articles of association on that ground alone, that the subscription should 
 be in his own handwriting, and not by procuration merely. Richardson ex parte ^ 
 4 Law T. N. S. 589. The company are not bound to give notice of the allotment 
 of shares in order to bind the subscriber to take them. It is his duty to take 
 notice of the allotment, and to make payment of all future dues fixed by law, or 
 the terms of the contract. Bloxam ex paiie, 10 Jur. N. S. 814; s. c. 33 Beav. 
 ♦ 14, 15
 
 § 5. CONTRACTS OF PROMOTERS ADOPTED. 16 
 
 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.' But where the plaintiff contracted 
 
 629. But in order to render the allottee liable to pay calls on shares, they 
 should be specifically numbered and appropriated by number. Irish Peat Co. v. 
 Phillips, 7 Jur. N. S. 413 : 8. c. affirmed 7 Jur. N. S. 1189, 1 B. «& S. 598. But 
 semble he may be estopped to deny his membership. So, too, it was considered 
 in this case, that in order to bind an associate to pay future calls, it was essen- 
 tial that he should have subscribed the deed of association. 
 
 The provision of the English statute as to the period within which the register 
 of shareholders shall be made and sealed is regarded as directory, so far as the 
 liability of shareholders is concerned, and they will not be exonerated from re- 
 sponsibility by a failure of the company to comply with the direction. W. N. W. 
 Co. r. Hawksford, 11 C. B. N. S. 456; 8 Jur. N. S. 844 in Exchequer 
 Chamber. 
 
 The company, when fully incorporated, may sue in their own name upon calls 
 made by the directors of the preliminary incorporation. Hull Co. v. Wellesley, 
 6 H. & N. 38. 
 
 A registered shareholder in a company, which was afterwards incorporated 
 with a new company, is entitled to be regarded as a shareholder in the new com- 
 pany, if the act of incorporation so provide, although he may not have exchanged 
 his certificate for shares in the old company for those in the new company. 
 Spackman v. Lattimore, 3 Giff. 16 ; 8. C. 7 Jur. N. S. 179. It was further de- 
 cided in this case, that the subscribers could not charge their own subscriptions 
 against the company as money advanced for their benefit. 
 
 Where a subscriber has paid for the expenses of the promoters all that the 
 terms of association required, he cannot be charged further, because he made 
 the payment without taxation. Croskey v. Bank of Wales, 4 Gif. 314, 
 
 The property in shares vests in the subscriber upon the execution of the deed 
 and complete registration of the company, and the delivery of scrip certificates 
 is not requisite to vesting the shares, but they are to be regarded merely as the 
 indicia of property. Hunt v. Gunn, 3 F. & F. 223. 
 
 ' Haslett's ExVs v. Wotherspoon, 1 Strob. Eq. 209 ; Salem Mill Dam Co. r. 
 Ropes, 6 Pick. 23. 
 
 • Witmer v. Schlatter, 2 Rawle, 359. 
 
 ' Whitwell r. Warner, 20 Vt. 426. 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 c. Chapman, 20 Eng. L. Eq. 488 ; s. c. 8 
 Exch. 444 ; 7 & 8 Vict. ch. 110. 
 
 A contract made between the projector and the directors of a company pro- 
 
 • 16
 
 16 PRELIMINARY ASSOCIATIONS. A CH. II. 
 
 with the promoters of a railway bill to bear the costs of obtaining 
 it, and the bill passed with the usual clause that the costs of ob- 
 taining it should be borne by the company, it was nevertheless 
 held, that the contract would preclude the recovery of the costs of 
 the corporation.* 
 
 SECTION V. 
 How contracts of the Promoters may he adopted by the Company. 
 
 Cannot assume the benefit without the burden. 
 
 § 6. Wherever a third party enters into a contract with the 
 promoters of a railway, which is intended to enure to the benefit 
 * of the company, ahd they take the benefit of the contract, they will 
 be bound to perform it, upon the familiar principle that one who 
 adopts the benefit of an act, which another volunteers to perform 
 in his name and on his behalf, is bound to take the burden with 
 the benefit.^ 
 
 visionally registered, but not in terms made conditional on the completion of the 
 company, is not binding upon the subsequently completely registered company, 
 although ratified and confirmed by the deed of settlement. Gunn ». London and 
 Lancashire Assurance Co., 12 C. B. N. S. 694. 
 
 The promoters of a railway company agreed with the tenant for life of settled 
 estates to pay him £20,000 for obtaining his support to their scheme. This 
 agreement was afterwards adopted by the provisional committee of a second 
 company, which stood in place of the first. The second comp>any's bill passed, 
 and an indenture was made under the company's seal, by which, on the ground 
 of doubts as to the absolute right of the tenant for lifeAo the £20,000, the com- 
 pany was to retain the. sum and pay interest on it. Literest was paid for some 
 years, but at length the company refused to make any further payment. Upon 
 a bill by a subsequent tenant for life of the estates to have the company's liability 
 declared, and obtain payment of the £20,000 for the benefit of the settled estate : 
 Held, that the contract was ultra vires, and could not be enforced. 
 
 Held, also, that this was not within the ipeaning of the Companies' Clauses 
 Consolidation Act, sec. 65, as being in respect of " costs incurred in obtaining the 
 special act, and incident thereto." Lord Shrewsbury v. North Staflfordshire 
 Railw. V. C. Kindersley ; 12 Jur. N. S. 63. 
 
 * Savin v. Hylake Railway, Law Rep. 1 Exch. 9 ; 8. c. Law Rep.l Eq, 593. 
 
 ' Gooday r. The Colchester & Stour Valley Railway, 15 Eng. L. & Eq. 
 696 ; 8. C. 17 Beav. 132 ; Preston v. Liverpool & M. Railway, 7 Eng. L. & Eq, 
 124 ; 8. C. 1 Sim. N, S. 586 ; Edwards v. Grand Junction Railway, 1 Mylne & 
 Cr. 650. The cases in support of this general proposition are very numerous, 
 and will be more fully examined in the next section. 
 •17
 
 § 7. CONTRACTS BETWEEN PROMOTERS AND OPPOSERS. 17 
 
 SECTION VI. 
 
 Contr<ict8 between the Promoters and Opposers of a Bill for the 
 Charter of a Railway. 
 
 1. Engliah cases numerous. I 2-6. Lord Eldon's opinion, in case of Faux* 
 
 1 haU Bridge Co. 
 
 § 7. 1. The cases in the English books upon the subject of 
 contracts between the promoters of railway projects in parliament 
 and those who have counter interests, and who are ready to per- 
 sist in opposition to such projects unless they can secure some 
 compromise with the promoters, are considerably numerous, and 
 involve a question of no inconsiderable importance. We shall 
 therefore examine them somewhat in detail. 
 
 2. One of the earliest cases upon this subject ^ was decided by 
 the Lord Chancellor, Cottenham, upon full argument, and great 
 consideration, as early as 1836. But as this case professes to 
 rest mainly upon a leading opinion of Lord Chancellor Eldon^ 
 upon a somewhat analogous subject, it may not be improper here 
 to give the substance of that decision. 
 
 3. The application to parliament for the plaintiffs' company, if 
 granted, it was conceded, would injuriously affect the tolls upon 
 another bridge not far distant. The proprietors of this bridge 
 were opposing the plaintiffs' grant before the parliamentary com- 
 mittee, with a view to secure some indemnity against * such loss, to 
 be specially provided for by the plaintiffs' act, upon condition that 
 the plaintiffs should open their bridge for the public travel. The 
 promoters of the plaintiffs' grant and the proprietors of the rival 
 bridge had come to an agreement in regard to the extent of the 
 indemnity, and upon naming it to the committee, with a view to 
 have it inserted in the act, one member of the committee objected 
 to such course, as calculated to sanction improper influences upon 
 public legislation. The promoters of the new bridge then pro- 
 posed to the proprietors of the rival one to give them security for 
 the proposed indemnity, by way of bond with surety which should 
 quiet their opposition, and the bill pass. Tliis was acceded to and 
 the securities given, and the bill passed accordingly. The opinion 
 
 • Edwards c. The Grand Junction Railway, 1 Mylne & Cr. 650. 
 
 • VauxhaU Bridge Co. v. The Earl of Spencer, Jacob, 64 (1821). 
 
 2 'IS
 
 18 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 of Lord Eldon is an aflfirmance of the decision of the Yice-Chan- 
 cellor, 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 after- 
 wards dismissed by consent. Lord Eldon said, " in the view I 
 •take of the case, it will not be an obstacle to the plaintiffs that 
 they do not come with clean hands, for it is settled, that if a trans- 
 action be objectionable, on grounds of public policy, the parties to 
 it may be relieved ; the relief not being given for their sake, but 
 for the sake of the public. Thus it is in the case of marriage brocage 
 bonds. The principle was much discussed in the case of Neville v. 
 Wilkinson,* where Mr. Neville being about to marry, inquiry was 
 made by the lady's father to what extent he was indebted. Wil- 
 kinson, who was applied to at the desire of Neville, concealed a 
 demand which he had against him ; after the marriage he at- 
 tempted 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 misrepresentation, a court of equity must 
 hold him to it, and that, although the plaintiff was a particeps 
 criminis ; so it was held in the case of Shirley v, Ferrers,^ in the 
 Exchequer. 
 
 4. " It is argued that this was a fraud upon the legislature, 
 but I think it would be going a great way to say so, for non 
 * constat, if it had been pushed to the extent of taking the opinion 
 of the house, that it might not have passed the bill in its former 
 shape. It cannot be said that the agreement is contrary to legis- 
 lative policy, because one member of the committee makes an 
 objection, which is not sanctioned or known by the house at large. 
 Indeed, such things are constantly done, and with the knowledge 
 of the house ; for they are in the habit of saying, with respect to 
 these private acts, that though they will not of themselves pass 
 them into laws, yet they will if the parties can agree ; and mattera 
 sometimes are permitted to stand over to give an opportunity of 
 coming to a settlement. 
 
 6. "It is then said, that the money was to be paid out of the 
 funds of the Yauxhall 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 
 
 ' 8. c. 2 Mad. 356. * 1 Br. C. O. 643. 
 
 » Cited 11 Vesey, 636. 
 ♦19
 
 § 8. CONTRACTS BETWEEN PROMOTERS AND OPP08ER8. 19 
 
 company ; that they have contracted with a number of inde- 
 pendent persons, to whom they look for the payment of the bonds ; 
 and if the obligors agree with the company to pay the bonds with 
 their money, what have the obligees to do with that imless by ante- 
 cedent contract ? They had no demand in law or equity against 
 the company. If, then, the Vauxhall proprietors choose to sanc- 
 tion what the legislature has not directed, namely, the indemnify- 
 ing the persons who have become obligors in the bonds, that is one 
 thing ; if they have not, then the individual officers who have paid 
 the money over in discharge of the bonds ought not to have paid it, 
 and may now be called on to pay it back ; as between them and 
 the company, the money must be considered as being still in their 
 hands. If the transaction is to be considered merely as between 
 the obligors and the obligees, the latter not refusing the money 
 from whatever hands it came, but not entangling themselves in any 
 contracts between the obligors and the company, then the obligees 
 would not be affected by those contracts. But if so, still the case 
 depends upon the validity of the bonds ; for I think the Vauxhall 
 Bridge Company may with propriety say, if the money was paid in 
 consequence of an arrangement for the discharge of the bonds, and 
 if the bonds were bad, that then it may be called back. When the 
 cause was heard by the Vice-Chancellor, he * did that which he was 
 not bound to do ; for he certainly had jurisdiction, and might have 
 decided upon the validity of the bonds. But he directed that to 
 be tried at law, where all the objections may be raised upon the 
 pleadings in the same manner as here ; and considering that in 
 matters of this nature, both courts of law and equity have jurisdic- 
 tion exercised upon the same principles, I do not see any occasion 
 to vary the decree." 
 
 SECTION VIL 
 
 Contracts of the Promoters enforced in Equity. 
 
 1-8. C(ue of Edwards v. Grand Junction Railway. 
 
 § 8. 1. 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. 
 
 • 1 My. & Cr. 650. 
 
 •20 
 
 \
 
 20 PRELIMINARY ASSOCIATIONS. CH. H. 
 
 The trustees of a turnpike road were opposing in parliament the 
 grant to the defendants, unless their rights were guaranteed in 
 such grant. The promoters of defendants' charter, and the trustees 
 of the turnpike road, came to an agreement in regard to the proper 
 indemnity to be inserted in the act, but to save delay it was secured 
 by way of contract, on the part of the promoters, providing for a 
 renewal of the covenants, on the part of the company, in a brief 
 time specified, after it should go into operation. The controversy 
 in the present case was with reference to the width of a bridge, by 
 which the railway proposed to convey the turnpike road over their 
 track. The contract stipulated that such viaducts should be of the 
 same width as the road at that point, which was fifty feet. The 
 charter only required them to be of the width of fifteen feet, and 
 the company having declined to assume the contract of the promo- 
 ters, were proceeding to build the bridges thirty feet wide only. 
 The bill prayed an injunction, which was granted by the vice-chan- 
 cellor, and confirmed by the chancellor, who held that an agree- 
 ment to withdraw or withhold opposition to a bill in parliament is 
 not illegal ; and a court of * equity will enforce a contract founded 
 upon such a consideration ; and that an incorporated company will 
 be bound by the agreement of its individual members, acting, before 
 incorporation, on its behalf, if the company had received the full 
 benefit of the consideration, for which the agreement stipulated, in 
 its behalf. The opinion of the Lord Chancellor will best show the 
 grounds of 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 
 entered into by the projectors of the company before their actual 
 incorporation. 
 
 2. " If this proposition could be supported, it would be of ex- 
 tensive consequence at this time, when so much property becomes 
 every year subjected to the power of the many incorporated com- 
 panies. The objection rests upon grounds purely technical, and 
 those applicable only to actions at law. It is said that the company 
 cannot be sued upon this contract, and that Moss entered into a 
 contract, in his own name, to get the company, when incorporated, 
 to enter into the proposed contract. It cannot be denied, however, 
 that the act of Moss was the act of the projectors of the railway ; 
 it is, therefore, the agreement of the parties who were seeking an 
 act of incorporation, that, when incorporated, cei'tain things should 
 •21
 
 § 8. CONTRACTS ENFORCED IN EQUITY. 21 
 
 be done by them. But the question is, not whether there be any 
 binding contract at law, but whether this court will permit the 
 company to use their powers under the act, in direct opposition to 
 the arrangement made with the trustees prior to the act, upon the 
 faith of which they were permitted to obtain such powers. If the 
 company and the projectors cannot be identified, still, it is clear 
 that the company have succeeded to, and are now in possession of, 
 all that the projectors had before ; they are entitled to all their 
 rights, and subject to all their liabilities. If any one had in- 
 dividually projected such a scheme, and in prosecution of it had 
 entered into arrangements, and then had sold and resigned all his 
 interest in it to another, there would be no legal obligation between 
 those who had dealt with the original projector and such purchaser; 
 but in this court it would be otherwise. So here as the company 
 stand in the place of the projectors, they cannot repudiate any 
 arrangements * into which such projectors had entered. They can- 
 not exercise the powers given by parliament to such projectors, in 
 their corporate capacity, and at the same time refuse to comply 
 with those terms, upon the faith of which all opposition to their 
 obtaining such powers was withheld. The case of The East Lon- 
 don Water Works Company v. Bailey, 4 Bing. 283, was cited to 
 prove that, save in certain excepted cases, the agent of a corpora- 
 tion must, in order to bind the corporation, be authorized by a 
 power of attorney ; but it does not therefore follow that corporar 
 tions are not to be affected by equities, whether created by contract 
 or otherwise, affecting those to whose position they succeed, and 
 affecting rights and property over which they claim to exercise 
 control. What right have the company to meddle with the road at 
 all ? The powers under the act give them the right ; but before 
 that right was so conferred, it had been agreed that the right 
 should only be used in a particular manner. Can the company 
 exercise the right without regard to such an agreement ? I 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." 
 
 8. " The case of The Vauxhall Bridge Company v. Earl Spen- 
 cer, 2 Mad. 356, Jac. 64 (4 Cond. Cha. Rep. 28), was cited for the 
 ti'ustees ; and it certainly is a strong authority in favor of their 
 
 •22
 
 22 PRELIMINARY ASSOCIATIONS. CH. 11. 
 
 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 contract made by 
 the projectors of the company, before the act of incorporation. On 
 the other hand Dance v. Girdler, 1 Bos. & Pull. N. R. 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 be- 
 tween the society with whom the contract was made and the cor- 
 poration ; and the question there was as to a legal liability, not as 
 to an equitable right. It was contended for the railway company 
 that, to enforce this * equity would be unjust towards the share- 
 holders of the company who had no notice of the arrangement. 
 To this two obvious answers may be made : first, that the court can- 
 not recognize any party interested in the corporation, but must 
 look to the rights and liabilities of the corporation itself; and, 
 secondly, that there is nothing in the effect of the injunction incon- 
 sistent with the provisions of the act ; for although the act provides 
 that bridges shall not be less than fifteen feet in width, it does not 
 provide that they shall not be made wider. The company might 
 under this act clearly agree that this or any other bridge should 
 be fifty feet wide." 
 
 SECTION VIII. 
 Contracts of the Promoters binding upon the Company at Law. 
 
 1-8. Case ofHowden t. Simpson. 
 
 § 9. 1. We have next in order of time the important case of 
 Simpson 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, before the 
 Queen's Bench ,2 and decided, on full argument, where it is held, 
 that a contract to pay Lord Howden £5,000, in consideration of 
 
 ' 1 Railway Cases, 326 (1837) ; 1 Keen, 683; 3 Mylne & Cr. 97. 
 » 10 Ad. «& EUis, 793. 
 *23
 
 § 9. CONTRACTS OP PROMOTERS BIND THE COMPANY. 23 
 
 his withdrawing opposition to a bill for incorporating " The* York 
 & North Midland Railway Company," he being a peer in par- 
 liament, and owning estates in the vicinity of tlie proposed line, 
 was illegal, being a fraud upon the legislature. Tliis decision was 
 subsequently reversed in the Exchequer Chamber.^ The case be- 
 ing the leading case upon the subject, at law * certainly, may require 
 a more extended statement. The agreement under seal, between 
 the plaintiff and defendant, (the case now standing, Howden v. 
 Simpson,) recited that a company had been formed for making a 
 railway ; that defendants were proprietors ; tliat 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 opposed the passing of the bill ; that defendants 
 had proposed that, if he would withdraw his opposition, and assent 
 to the railway, they would endeavor to deviate the proposed line : 
 and plaintiff agreed that, on condition of the stipulations in the 
 agreement being performed, he did thereby withdraw his opposi- 
 tion and give his assent ; and defendants covenanted that, in case 
 the then bill should be passed in the then session, they would, in 
 six months after it received the royal assent, pay plaintiff X5,000 
 as comjMjnsatioa for the damage which his residence and estates 
 would sustain from the railway passing according to the deviated 
 line, exclusive of and without prejudice to further compensation to 
 plaintiff, in the event of the deviated line not being ultimately 
 adopted, and without prejudice to such further compensation for 
 any damage as in the agreement after mentioned. 
 
 2. Plaintiff declared in debt, and averred that he withdrew his 
 opposition to the bill, which passed into a law in the then session, 
 
 * 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 thW the agreement on the face of it was valid, and that 
 the plaintiff was not bound to communicate to the legislature the bargain he had 
 made with the company, and that a member of the legislature could make any 
 terms for the sale of his land, and compensation for injury to his comforts and 
 property, which it is lawful for a private individual to make. The judgment of 
 the Exchefjuer Chamber was affirmed in the House of Lords, on full argument, 
 before the Chancellor, Lord Lijwlhursl, Lord Brougham, and in the presence of 
 the two chief justices, and ten of the judges. 3 Railw. Cas. 294 ; 8. c. 9 CI. & 
 Fin. 61. But Lord Campbell adhered to his former opinion that the contract 
 must have been held illegal, if it liad appeared that it was an element in the con- 
 tract that it should be kept secret, and not commimicatcd to parliament. 
 
 •24
 
 24 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 that six months had since elapsed, but that defendants had not 
 paid the £5,000. 
 
 3. Plea, that the railway, at the time of making the agreement, 
 and according to the act, was intended to pass through the lands 
 of divers individuals ; that the agreement was made privately and 
 secretly by the parties thereto, without the consent or knowledge 
 of the said individuals, and was concealed from them continually 
 until the act was passed, and was not disclosed * to, or known in 
 parliament, and was concealed from the legislature during the 
 passing of the act ; and that plaintiff at the time of passing the 
 act and still, was a peer of parliament. 
 
 SECTION IX. 
 
 What Contracts between the Promoters of Railways and Others 
 vnll he enforced, either in Law or Equity, against the Contract- 
 ing Parties or the Company. 
 
 1. Contract to take land of opposing party. \ 2. Contract prejudicial to the public. 
 
 § 10. 1. Since the decision of Howden v. Simpson, in the Ex- 
 chequer Chamber, and the House of Lords (1842), the English 
 courts seem to have acquiesced in the principles there established, 
 until a very recent period. The validity of such a contract is 
 recognized, in regard to the company purchasing the interest of 
 the lessee of lands near the line of the proposed railway.^ 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 proposed also to pass 
 through the same land, had petitioned for a charter, and the merits 
 of the two projects were, under the sanction of the committee of 
 the House of Commons, referred to arbitration, and the solicitors 
 of the two bills agreed, that the adopted line should take the en- 
 gagements entered into with the land-owners, by the rejected line, 
 it was held, that the second company prevailing, were bound, as a 
 condition of entering upon the lands of plaintiff, to fulfil the terms 
 of the agreement with tlie first company.'^ 
 
 ' Doo V. The London and Croydon Railway, 1 Railw. C. 257 ; s. c. 3 Jur. 258. 
 * Stanley v. The Chester and Birkenhead Railw. 1 Railw. C. 68 ; 9 Simons, 264. 
 *25
 
 § 11. CONTRACTS OF PROMOTERS ENFORCED. 25 
 
 2. And where one railway company was prohibited from open- 
 ing their line for traffic, until they had built a branch railway, 
 connecting their line with that of another company, it was held, 
 tliat a court of equity was bound to enforce the * prohibition, on 
 motion of the other company, though the probable result would be, 
 to cause inconvenience to the public, and not to benefit the other 
 company.' 
 
 SECTION X. 
 Courts of Equity loUl enforce Contracts with the Promoters. 
 
 1. Bona fide conbrad not evading tiattite, I n. 8. Statement of English cases, 
 valid. I 
 
 § 11. 1. The English courts of equity do not hesitate to restrain 
 railways from proceeding to take land under their compulsory 
 powers, where the proprietor of the estates had surceased opposi- 
 tion to the bill, by an arrangement with the projectors, by which 
 they stipulated that the company should pay a certain sum, which 
 it had declined to do. This was done notwithstanding the pro- 
 prietor was a peer of parliament, and notwithstanding tiie tender 
 of an undertaking, on the part of the company, not to enter upon 
 the land until the further order of the court, and notwithstanding 
 the time, within which the company, by their charter, were author- 
 ized to take land would have expired, before the hearing of the 
 cause.^ And although this case is questioned by some writers,^ 
 the learned Lord Chancellor St. Leonards said the cases establish 
 the proposition, that a bona fide contract of this sort, not evading 
 the act of parliament, but enabling the company to assist its views, 
 and carry the act into effect, was valid, without reference to the 
 
 reasonableness of the amount agreed to be paid.^ 
 I 
 
 ' Cromford and High P. Railway v. Stockport, D. & W. Bridge Railway, 24 
 Beav. 74 ; 8. c. 29 Law Times, 245. 
 
 • Lord Petre r. Eastern Counties Railway Co., 1 Railw. C. 462. 
 
 • Shelford, 400. 
 
 • Hawkes r. Eastern Counties Railway Co., 1 De G. M. & G. 787; 8. c. 
 16 Eng. L. & Eq, 3,58; s. c. before the Vice-Chancellor, 3 De G. & S. 314; 
 8. c. 4 Eng. L. & Eq. 91, where it is considered that a railway company, 
 having agreed to purchase an estate, although moved to do so for the quiet- 
 ing of opposition to a bill before parliament to enable them to extend a branch 
 
 •26
 
 26 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 ♦SECTION XI. 
 Sixch Contracts eiiforced where the Railway is abandoned. 
 
 1. Where a certain sum is to be paid to quiet I 2. Merely provisional contracts not always 
 opposition, \ enforced. 
 
 § 12. 1. It has sometimes been held, tliat an absolute agree- 
 ment made, by the promoters of a railway, to pay one a certain 
 
 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 bind 
 ing character of this class of contracts is learnedly discussed, as well as the 
 propriety of decreeing specific performances, and most of the cases elaborately 
 and learnedly reviewed and compared. The conclusion to which that eminent 
 judge arrives is, that even in a case where the company were not able to carry 
 their project into full effect, but had abandoned it, they were nevertheless bound 
 specifically to perform contracts of this kind, and that it was no objection to de- 
 creeing specific performance, that it would involve the necessity of paying the 
 price of the land out of the general funds of the company, which had been raised 
 for provisional purposes merely, and with no view of ultimately purchasing land 
 and building the road ; and that the land could be of no use to the company 
 under present circumstances. One can scarcely fail to perceive in this case, that 
 a principle, perhaps sound and just under some circumstances, is here pushed 
 quite to its extreme verge. Damages at law might have been the more proper 
 disposition of all interests concerned. 
 
 The opinion of the Lord Chancellor is a masterly exposition of the view which 
 he adopts. After disposing of the preliminary questions he proceeds: "In the 
 case of Webb v. The Direct London and Portsmouth Railway, 1 De G. M. & G. 
 621 ; s. c. 9 Eng. L. & Eq. 249, there was originally a decree for specific perform- 
 ance, and after the decision in this 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 uncertainty 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 illegality, 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 de- 
 pends 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 
 un([ualified 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 
 *27
 
 §12. CONTRACTS ENFORCED IP RAILWAY ABANDONED. 27 
 
 •sum to quiet opposition, is valid, notwitlistanding the contem- 
 plated work is never carried forward, and the injnrj to the op- 
 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 tenns pointed out 
 in the agreement. 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 before 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 transaction are to be looked at, there is no nde of law in it. K, 
 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 support this decision certainly at the expense of 
 the contrarj* 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 v. 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 agreement, 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 totally disagree with them. It is a new view 
 of the doctrine of this court, and it is a view which could not be supported con- 
 sistently 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, 18 Q. B. 618; 8. c. 17 Jur. 21 ; 8. c. 
 16 Eng. L. & Eq. 180; East Anglian Railway Company v. Eastern Counties 
 Railway, 11 C. B. 775; 8. c. 21 Law J. Rep. (n. s.) C. P. 23; s. c. 7 Eng. L. 
 & Eq. 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 ])eyond 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 enonnous capital, entering into a contract, 
 with a full knowledge of all their powers, and with legal advice con.stantly 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
 
 28 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 * poser, which the contract of quietus assumes, is never sus- 
 tained.^ But such a contract is certainly based upon a principle 
 
 into is beyond their powers and absolutely illegal on the face of it. One can- 
 not 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 entering into contracts with indi- 
 viduals 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 acci- 
 dent, 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 
 supposed 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 otherwise 
 to get at the point which they proposed to get at by the curvilinear diverging 
 line, which parliament rejected. Then they say, it is a fraud on the act of 
 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 time to 
 
 » Bland c. Crowley, 6 Railw. C. 766 ; 6 Exct. 622. 
 •29
 
 § 12. CONTRACTS ENFORCED IF RAILWAT ABANDONED. 29 
 
 *of very questionable policy, and courts would more incline to 
 give .the contract, when consistent with the words used, such a 
 
 expire. 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 inferred a contract against a party where tliat 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 mutuality? Could not the company, within an hour afler the act passed, have 
 enforced the contract against Mr. Hawkes ? Nobody disputes or doubts it. 
 Where, then, is the want of mutuality ? It is not because a man, subsequently to 
 the contract, chooses to introduce impediments to the performance of the con- 
 tract 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 contracted, 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 consequence 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 con- 
 tract, that the whole loss and burden is to be thrown on the party who is not to 
 blame. Fortunately the law, justice, and equity of the case are agreed. There 
 is nothing to prevent my enforcing 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 ». The Newmarket llailway Com- 
 pany, 18 Q. B. 457 ; 8. c. 21 Law J. Rep. (n. s.) Q. B. 398 ; 8. c. 14 Eng. L. 
 & £q. 57, was one. 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 abso- 
 lute 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 com- 
 pany could not bind itself beyond 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 elsewhere before it can be finally decided. It is a 
 great and serious question how far these companies can be allowed to enter info 
 contracts solemnly under their seal, and then turn round upon the parties and 
 
 •30
 
 30 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 •construction, that it shall be the purchase of a pecuniary inter- 
 est, or indemnification for a pecuniary loss, which are legitimate 
 
 say they have exceeded their powers, and, consequently, will not perform their 
 contract. Then in the other case of Gooday r. The Colchester and Stour Val- 
 ley Railway Company, 17 Beav. 132 ; s. c. 19 Law Times, 334 ; s. c. 15 Eng. 
 L. & Eq. 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 argument was closed, that this is a very clear case for specific per- 
 formance. 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 affirmed in the House of Lords, 5 House Lds. 331 ; s. c. 35 
 Eng. L. & Eq. 8, and elaborate opinions delivered, by the Lord Chancellor Cran- 
 worth. Lord Campbell, and Lord St. Leonards. The case is obviously put some- 
 what upon the ground of the peculiar state of facts involved. 1. It is a contract 
 under the seal of an existing 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 exist- 
 ing shareholders, the company had no right to construct, and even with the con- 
 sent 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 to do any act 
 beyond their powers, or in conflict with the rights of the shareholders. 
 
 These several points are tlius stated in the notes of the case : — 
 
 Where an act creating a railway company, or giving new powers to an exist- 
 ing 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 any intention to mis- 
 apply the funds of the company, but acts bona fide in the matter, he may enforce 
 performance of the contract. 
 
 Semble, 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 proposed 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. 
 ♦31
 
 § 12. CONTRACTS ENFORCED IP RAILWAY ABANDONED. 31 
 
 * subjects of bargain and sale, than to regard it, as the purchase 
 of good-will, or the price of converting ill-will unto favor, which 
 
 Under the first, head, the following suggestions of Lord Chancellor Crantcorth 
 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 Railw. C. 513 ; Lord Langdale, at the instance of a sharehorder, 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 trallic on their line. But Lord Langdale, though admitting that 
 such an expenditure might ver}- 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 
 company on any project not directly within the terms of its incorporation. 
 
 " In Salomons r. Laing, 12 Beav. 839, 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 
 Portsmouth), 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 r. The Eastern Union Railway Company, 2 
 Mac. & G. 389 ; 8. c. 2 Hall & T. 201 ; 6 Railw. C. 152. There the legislature 
 had authorized the defendants to raise, by way of additional shares, two sums of 
 £200,000 and £100,000, the former for the purpose of enabling them to con- 
 struct a branch line to Harwich, and the latter for enabling them to purchase 
 and complete a cross line to Hadleigh. The plaintiff had purchased scrip certifi- 
 cates for shares in these undertakings, or one of them, on which all calls had been 
 paid, and he stated by his bill, that the directors, though the whole of the two 
 sums, £200,000 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 so 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 £200,0*30 and 
 £100,000, To this bill there was a general demurrer, 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 object 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 i'unds by the 
 directors. But the doctrine has been acted on in the courts of common law to 
 
 •82
 
 32 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 •are certainly not regarded ordinarily as the just basis of con- 
 tracts.2 
 
 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, 11 C. B. 803 ; s. c. 7 Eng. L. & Eq. 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 pa}'ment 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. 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 r. The Official Manager of the Deal & Dover 
 Railway Company, 18 Q. B. 618 ; s. c. 16 Eng. L. & Eq. 180. It must, there- 
 fore, be now considered as a well-settled doctrine, that a company, incorporated 
 by act of parliament for a special purpose, cannot devote any part of its funds to 
 objects unauthorized by the terms of its incorporation, however 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 ease comes within the principle on which these de- 
 cisions 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 tlie act, merely an ad- 
 dition 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 considered 
 as part of the general capital. From the time, therefore, when the Wisbeach & 
 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 
 
 • Gage V. Newmarket Railway Co., 18 Q. B. 457 ; s. c. 7 Railw. C. 168 ; 8. c. 
 14 Eng. L. & Eq. 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., 1 De G. M. & 
 G. 737 ; 8. c. 3 De G. & S. 314 ; 7 Railw. Cases, 219 ; 8. c. 4 Eng. L. & Eq. 91. 
 •88
 
 § 12/ CONTRACTS BT PROMOTERS FOR LAND. 33 
 
 * 2. But in many cases these provisional contracts have been 
 enforced, notwithstanding the projected works have been aban- 
 
 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 con- 
 sideration, 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 contract 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 
 desired to obtain powers to make a staight 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 plaintifTs land, but they failed in their 
 object 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 plaintiflTs 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, tdtra vires. If the land in question was really wanted by the 
 appellants for what are called extraordinary purposes, they were authorized to 
 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 thej 
 could not stop short with what was within those limits. Be that, however, as it 
 may, there was nothing to show the resprmdent that his land was not wanted for 
 the legitimate objects of the company, and in such a case it cannot be 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 the 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 head notes of this case. Lord 
 Campbell made some comments, which seem to us of very considerable weight as 
 applicable to the general subject involved: "During the argiunent 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 it 
 constituted. 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 
 
 8 *M
 
 34 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 * doiied.^ But where the contract is a mere arrangement to pur- 
 chase land at a specified price, for the purpose of building * the 
 
 contended for by the respondent's counsel, that there is complete identity be- 
 tween the promoters of the act and the company, and that as soon as the act has 
 received 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. Kthe 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 
 approve 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 tliat 
 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 afiixed 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 coidd 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 
 fiinds 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 defrapng 
 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 
 
 • Shrewsbury & Birmingham Railway Co. v. London & Northwestern Rail- 
 way Co., 3 Mac. & G. 70; s. c. 20 L. J. Ch. 90; 8. c. 14 Jur. 921 ; 1 Eng. L. 
 & Eq. 122; Hawkes r. Eastern Counties Railway Co., 3 De G. & S. 314; 8. c. 
 20 L. J. 243 ; 8. c. 4 Eng. L. & Eq. 91 ; Preston r. Liverpool, Manchester, & 
 Newcastle-upon-Tyne Junction Railway Co., 1 Simons (n. 8.) 586 ; 7 Railway 
 C. 1 ; 7 Eng. L. & Eq. 124. 
 *86, 36
 
 § 12. CONTRACTS BT PROMOTERS FOR LAND. 35 
 
 railway, and the quieting of opposition does not enter into the 
 consideration, the company are not bound to pay over the * money, 
 
 valuable consideration. I adhere to the doctrine laid down in a passage quoted 
 from my judgment in the case of the Mayor of Norwich t>. The Norfolk Railway 
 Company, 4 Ell, & Bl. 397 ; 8. c. 30 Eng. L. & Eq. 120; but that referred to 
 doing something which was positively criminal and indictable, the obstruction 
 of a navigable 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 authority for a transaction among private individuals or commercial com- 
 panies, 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, still, 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 
 frequently 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 Lords Justice Knight Bruce and myself, when I held the office of 
 Lord Justice. I allude to the cases of Webb v. The Direct London and Ports- 
 mouth Railway Company, 1 De G. Mac. & G. 521 ; s. c. 9 Eng. L. & Eq. 249, 
 and Stuart r. The London & Northwestern Railway Company, 1 De G. Mac. 
 & G. 721 ; 8. c. 11 Eng. L. & Eq. 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 con- 
 clusion 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 construc- 
 tion, I may observe, which receives great support from the subsequent case of 
 Gage V. The Newmarket Railway Company, 18 Q. B. 457 ; 8. c. 14 Eng. L. & 
 Eq. 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 lefl with the whole of his 
 land untouched, he lost all claim to the £4,500, and might, perhaps, have sus- 
 tained damage consequent on his having been for five years liable to have any 
 portion of it, not exceeding eight acres, taken by the company for the purpose 
 of the railway. That teas evidently a case for compensation by action Jor damages 
 and not /or rdiefby way of specific performance. Indeed, I hardly know how a 
 decree for specific performance could have been there enforced, for no particular 
 
 •87
 
 36 PRELIMINARY ASSOCIATIONS. CH. H. 
 
 unless tliey 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.* 
 
 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 plaintiff 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 
 subject-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 con- 
 trary, 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 impossible 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 company, can ever have a decree for a specific performance if the com- 
 pany should see fit afterwards to abandon the undertaking, with a view to which 
 the contract was made." 
 
 * Gage V. The Newmarket Railway, 18 Q. B. 457 ; 8. c. 14 Eng. L. & Eq. 57. 
 In this case, the views of Lord Campbell, in delivering the opinion of the court, 
 do not seem to be altogether reconcilable with those expressed by the Lord Chan- 
 cellor, 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 de- 
 fendants 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 
 saying 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 Suffolk, 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 having entered upon any part of the plaintiff's lands, he is now entitled
 
 § 12. CONTRACTS BY PROMOTERS FOR LAND. 87 
 
 * In an important case ^ before the House of Lords, the doctrine of 
 the former cases is assumed to have established the proposition, 
 * that the acts of parliament to railway companies, empowering them 
 to build railways, are enabling and not obligatory in their nature. 
 And it was here considered, that upon a contract whereby the com- 
 pany before obtaining their act, executed a debenture bond in the 
 sum of X 14,500 to one of the land-owners, as the sum to be paid 
 
 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 
 pajinent mentioned is before the company enter on the land. Therefore, if no 
 land is required 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 pa\-ment is defined. But there has been no severance to be compen- 
 sated, 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 con- 
 sideration 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 
 considered 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- 
 struction, we should have thought it so far ultra vires and void. Here the rail- 
 way 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 consider 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 
 plaintiff's counsel are clearly distinguished from the present, except Webb v. 
 The London & Portsmouth Railway Company, before Vice-Chancellor Thtmer. 
 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 & 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, & Dun- 
 dee Railway p. Philip, 2 M'Queen H. of Lds. 614; s. c. 28 Law Times, 846, 89 
 Eng. L. & Eq. 41. 
 
 » The Scottish Northeastern Railway r. Stewart, 6 Jur. N. 8. 607 ; 8 Macq. 
 ,H. Lds. Cas. 882. 
 
 •38,89
 
 38 
 
 PRELIMINARY ASSOCIATIONS. 
 
 CH. n. 
 
 him before breaking ground, taking a counter obligation to repay 
 the sum if the bill should not pass ; and, having obtained their act 
 but never exercised its powers or built their road, it must be held, 
 that upon the fair construction of the whole transaction with refer- 
 ence to the more recent view taken by the courts of the law appli- 
 cable to such contracts, the money stipulated was not due the 
 land-owner except upon the company breaking ground for the pur- 
 pose of constructing their works. 
 
 SECTION XII. 
 
 Practice of Courts of Equity in decreeing Specific Performance. 
 
 1. Mtttucd arrangements protected in Chan- 
 
 cery. 
 
 2. But decisions are conflicting. In cases 
 
 qfdoubtjid right plaintiff is remitted to 
 common-law remedies, 
 n. 2. Statement of cases. 
 
 § 13. 1. The English courts of chancery have in many instances, 
 enforced specific performance of contracts, between difierent lines 
 of railway, fixing mutual arrangements, in * reference to their 
 future operations, even where acts of parliament were necessary to 
 carry such contracts into full efiect, and sometimes after a change 
 of circumstances, materially affecting the interest of the parties 
 concerned. And those courts have often enforced an injunction, 
 in cases of this kind, where interests of great magnitude were con- 
 cerned, even where the right of the plaintiflT was questionable, 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.^ 
 
 2. But the practice of the English courts of equity, in regard to 
 this subject, resting chiefly in discretion as might be expected, is 
 very variable, 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 his rights in a court 
 of law.^ The latter course would seem to be most consistent * with 
 
 ' 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 case, are very pointed, in defence of the practice, 
 in the English courts of eqtiity, of enforcing contracts, made by the projectors of 
 railways, against the company itself, after it comes into operation. 
 
 * Webb V. Direct London & Portsmouth Railway Co., 1 De G. M. & G. 521 ; 
 8. C. 9 Eng. L. & Eq. 249. When the same case was before the Vice-Chan- 
 • 40, 41
 
 § 13. SPECIFIC PERFORMANCE IN COURTS OF EQUITY. 39 
 
 the ordinary proceedings of courts of equity, in applications for 
 specific performance. 
 
 cellor, Turner, he seemed to regard the plaintiff as entitled to specific perform- 
 ance, 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 c. Liverpool, 
 Manchester, & Newcastle Junction Railway Co., 1 Simons (n. s.) 586 ; s. c. 7 
 Eng. L. & Eq. 124. The Court of Appeal, in a similar case. Lord J. Stuart r. 
 London and Northwestern Railway Co., 1 De G. M. & G. 721 ; 8. c. 7 Railw. 
 C. 44; 11 Eng. L. & Eq. 112, put their refusal to decree specific performance, 
 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 material de- 
 partures 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, 1 De G. M. & G. 621 ; 8. c. 9 Eng. L. & 
 Eq. 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 con- 
 ditional, unless the contrary appeared, in express terms, or by the strongest 
 implication. Any other view of these parliamentary contracts, as they are de- 
 nominated, gives them very much the air of wagering policies or legislative 
 gambling! See also upon this subject, Potts r. The Thames Haven Dock & 
 Railw. Company, 15 Jur. 1004 ; 8. c. 7 Eng. L. & Eq. 262, where it is held, 
 that, in pursuing a claim for specific performance of an agreement of a railway 
 company to purchase land of trustees, the persons beneficially interested in 
 the land were not necessary parties to the proceeding. A query is suggested, 
 whether a specific performance could be decreed, there having been no valuation 
 of the land, and in this case there had been great delay on the part of the com- 
 pany, owing to their pecuniary embarrassment, but aft^r considerable discussion, 
 it was agreed to give the company further time, and the claim was ordered to 
 stand over. It has been held, where a private company leased land, with a 
 clause of re-entry, and were subsequently incorporated, with an express provision 
 in their charter that all contracts made before the act of incorporation sliall be 
 binding upon the fcorporation, and they have the same rights as if these contracts 
 were entered into with them, they might maintain ejectment for the land. 
 London Dock Co. r. KnebeU, 2 M. & Rob. 66. 
 
 The case of Strasburg Railway Co. v. Echtemacbt, 21 Penn. St. 220, was this : — 
 Several persons signed a paper agreeing that if the Strasburg Railway 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
 
 40 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 •SECTION XIII. 
 Spedjic Performance in Courts of Equity. 
 
 Object of courts to compel good faith when a definite contract is made. 
 
 § 14. But the courts of equity have been mainly influenced by 
 what they esteem the policy of enforcing these parliamentary * con- 
 
 of intention, which equity will not enforce by decree for 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, 14 Sim. 402 ; 8. c. 
 3 Railw. C. 506 ; Monypenny v. Monypenny, 4 Railw. 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 land- 
 holders to sell their lands, and to withdraw or withhold opposition to a bill in 
 parliament, are not illegal. See also Capper v. The Earl of Lindsey, 3 House 
 of Lords Cases, 293 ; 8. c. 14 Eng. L. & Eq. 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 case is not 
 found in any of the English treatises on railways, except Hodges, and as it was 
 long discussed 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. This case was A., a landholder, through whose 
 estate a part of the projected railway was to pass, became a party to a deed with 
 the projectors of the railway, by which he covenanted to withdraw his opposition 
 to their biU and to oppose a rival bill ; and they covenanted to pay him a certain 
 sum of money in case their bill should pass within six months from the date of 
 the deed. It was then provided that, if the bill of these projectors did not pass 
 within six months from the date of the payment, either party might put an end 
 to the agreement by notice. The deed then contained a covenant on the part 
 of the projectors, by which they agreed, if the two companies should be amal- 
 gamated, to pay a certain sum within three months after such amalgamation. 
 The deed was dated 16th March, 1846. The two companies were amalgamated 
 in June, 1846 ; but no bill ever passed at the instance of these projectors alone. 
 In November, 1846, the projectors gave notice to put an end to the agreement. 
 The action was based upon that clause in the agreement by which the projectors 
 were to pay a sum of money in case of the amalgamation of the companies. The 
 defendants pleaded that their bill had never passed into a law ; that at the end 
 of six months they had given notice to put an end to the agreement, and that 
 they had never taken the plaintiff's land. The Court of Exchequer held the plea 
 to be a good answer to the action. This judgment was reversed in the Exchequer 
 •42,43
 
 § 14. SPECIFIC PERFORMANCE IN COURTS OP EQUITY. 41 
 
 tracts, for the arrangement of conflicting interests, in regard to 
 such projected railways. And thej have declined to interfere by 
 
 Chamber, and the latter judgment affirmed in the House of Lords. In the House 
 of Lords the question was submitted to all the common-law judges, who gave a 
 unanimous opinion, by Parke, B., in favor of the plaintiff, and this opinion was 
 adopted by the House without dissent. The learned judge said, in conclusion, 
 *' The right to payment does not depend upon the fact of making a part of 
 the railway by the amalgamated company on the plaintiff^s estate, or taking, or 
 using, or doing any injurj' to the plaintifiTs land ; the right to it depends simply 
 upon the efflux of three months' time after the Amalgamation Act." Although 
 this construction seems at first blush somewhat narrow, and one side of the 
 main purpose of the agreement, it must, we think, be regarded as the only just 
 and legitimate view. The contract did not so much contempUte the taking of 
 any portion of plaintifiPs land, or any estimable definite injury to his estate, as 
 the privilege of doing so, if that should become desirable, and the quieting of 
 the defendants' lawful opposition to, or control of, the enterprise, in consequence 
 of his pecuniar)' interest in the same. It was the purchase, at a fixed price, of 
 the privilege or option to deal with plaintiff's estate, as one favoring the project, 
 and ultimately to place the projected line in such position, with reference to the 
 estate, as they should find most advantageous to themselves. And as they had 
 enjoyed what they bargained for, it was clearly due that they should pay the 
 stipulated price of their purchase. 
 
 There is a recent case in New Hampshire, Low v. Conn. & Pass. Railroad Co., 
 45 N. H. 370, where the question of the right of those who have rendered 
 extensive services in promoting the subscription to the stock of a corporation, to 
 recover compensation of the corporation for time and money so expended, is 
 extensively and ably discussed. 
 
 It is here said that where, after the charter and before the organization of a 
 corporation, services are rendered which are necessary to complete that organ- 
 ization, and afler it has been perfected the corporation elect to take the benefit 
 of such services, knowing that they were rendered with the understanding that 
 compensation would be made, it will be held liable therefor, upon the ground 
 that it must take the benefit with the burden. 
 
 It was here considered that the grantees in a charter are the sole members of 
 the corporation until associates are admitted by them, and they may act as the 
 corporation without admitting any others. Hughes v. Parker, 19 N. H. 181. 
 But to effect any binding contract or corporate act, the concurrence of at least a 
 majority of such grantees is requisite ; and that the sole power of determining by 
 what measures and by what agency the organization shall be effected rests with 
 the grantees, a majority of whose votes will govern. 
 
 This case seems to have gone mainly upon the authority of Hall v. Yt. & Mass. 
 Railroad Co., 28 Vt. 401. But we question whether the principle of com- 
 pensation is not in fact carried in both cases to the utmost verge of good policy. 
 In the case of Low v. The Railway Co., the plaintiff was allowed to recover the 
 value of a horse which he delivered to one of the efficient promoters of the enter- 
 prise upon a sort of wager, that if the road ever reached the town of Bradford in 
 Vermont, the place of the plaintiff's residence, this promoter should have his,
 
 42 PRELIMINARY ASSOCIATIONS. CH. H. 
 
 injunction, where no such contract had been definitely made,^ * not- 
 withstanding such representations on the part of the promoters, as 
 misled the agents of the land-owner. Thus showing, very explic- 
 itly, that the main ground upon which the English courts of equity 
 have proceeded, in decreeing specific performance, and enforcing it 
 by injunction, has been to compel good^ faith on tlie part of such 
 incorporations, in carrying into eflfect 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 incor- 
 poration, a court of equity will not interfere.^ In a late case these 
 
 the plaintifTs, best horse. And, of course, as a gentleman of honor, when the 
 road reached the point indicated, he felt bound to deliver the horse. It is true 
 that the court sent the case back to have the jury find the fact, that this promoter 
 performed efficient service for the company in effecting its organization, and that 
 the company adopted such service by taking the benefits of it, and that the horse 
 was no more than a reasonable compensation for such service. 
 
 Notwithstanding our own participation in the decision of Hall v. Vt, & Mass. 
 Railway, we woidd now feel that the rule there adopted in regard to charging 
 service, rendered in effecting the organization of the company, to the corpora- 
 tion, is one of too great laxity, and too susceptible of abuse, to afford a safe guide 
 in these lax times, when every possible avenue to corruption is sure to find some 
 one desperate enough to enter. There should at least be proof that the service 
 was performed under an expectation of compensation, and that the corporation 
 expressly promised payment. And in the Earl of Lindsay r. The Great North- 
 em Railway Co., 10 Hare, 665 ; s. c. 19 Eng. L. & Eq. 87, 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 
 necessar}- arrangements, before making the decree absolute. 
 
 But one railway company cannot bind itself to defray the expense of an ap- 
 plication to parliament by another company, for the establishment of another 
 line of railway, expected incidentally to benefit the first company. Such con- 
 tract is beyond the ordinary scope of the powers of a railway company, and 
 consequently illegal, and such a covenant cannot be enforced in a court of law, 
 however beneficial to the covenanter the objects of the covenant, if carried out, 
 might be. East Anglian Railway Company r. The Eastern Counties Railway 
 Company, 11 C. B. 775 ; 8. c. 7 Eng. L. & Eq. 505 ; McGregor r. The Deal & 
 Dover Railway Company, 18 Q. B. 618 ; 8. c. 16 Id. 180 : Post, §§ 56, 187. 
 
 ' Hargreaves r. Lancaster & Preston J. Railway Company, 1 Railw. Cas. 416. 
 
 * Aldred r. North Midland Railway Company, 1 Railw. Cas. 404; Provost 
 ♦44
 
 § 15. EQUITY CONTROLS PROCEEDINGS IN PARLIAMENT. 43 
 
 provisional contracts seem to be regarded as conditional, depend- 
 ing, ordinarily, for their obligation, as against the corporation, upon 
 their having done any thing under their charter which the agree- 
 ment enabled them to do, so as thereby to have received the benefits 
 of it.8 
 
 •SE'CTION XIV. 
 
 Courts of Equity will restrain a Party from Opposition or Peti- 
 tion in Parliament. 
 
 1. Such easa not common in practice. \ 2. Such catet not readiltf recognized. 
 
 § 15. 1. 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 case is 
 made out, and by parity of reason from pursuing a petition in favor 
 of an act of parliament.* But such cases are not common in prao- 
 
 and Fellows of Eton College r. Great Western Railway Company, 1 Railw. Cas. 
 200. 
 
 ' Gooday r. Colchester & Stour Valley Railway Company, 17 Beav, 132 ; 8. c. 
 16 Eng. L. & Eq. 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 action at law." Very recently, in Williams r. The St. George's 
 Harbor Company, 30 Law Times, 84 ; 8. c. 2 De G. & J. 647, it was held by the 
 Master of the Rolls, that an agreement entered into by the promoters of a com- 
 pany 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 doctrine in the English courts. Ante, § 3. 
 
 ' The Stockton & Hartlepool Railway Company r. The Leeds & Thirsk and 
 The Clarence Railway Companies, 2 Phillips, 666 ; 8. c, 6 Railw. Cas. 691. In 
 this case the injunction was granted by the Vicc-Chancellor of England, ShadweU, 
 but the order discharged, by the Lord Chancellor, Cottenham, 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 
 jurisdiction 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 enjoyment of the property or interest which he claims." Heathcote v. The 
 North Staffordshire Railway Company, 6 Railw. Cas. 358. In this last case it 
 
 ♦46
 
 44 
 
 PRELIMINARY ASSOCIATIONS. 
 
 CH. II. 
 
 tice, and dependent upon peculiar circumstances, as where pro- 
 ceedings 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 consideration in this connection. 
 
 2. In one case, where the company had quieted opposition by 
 inserting a clause in the act to enable them to buy land, which 
 they had agreed to purchase, as the price of quieting the opposi- 
 tion, and afterwards applied for an act enabling them to abandon 
 this branch, and repealing this clause, it was held, that, although 
 the court had power to restrain an application to parliament, it 
 was difficult to conceive a case in which it would do so, and that 
 it would not do so in this case.^ 
 
 •SECTION XV. 
 
 Contracts to wUJidraw opposition to Railway Projects, and to keep 
 this secret, against sound policy and would seem to he illegal. 
 
 1. Principle of foregoing decisions obscure. 
 
 2. Not adopted in this country unless terms 
 
 inserted in charter. 
 
 3. Recent change of views in English courts. 
 
 8-5. Statement of late case in which prin- 
 ciple of Edwards v. Grand Junction 
 Railway is doubted. 
 
 6. Act of incorporation should not be varied] 
 by oral testimony. 
 
 7. Contracts to quiet opposition not favored 
 
 in this country. 
 n. 6. Recent English and American decisions. 
 
 8. Regarded as ultra vires. 
 
 9. May be enforced, if legislature not exposed 
 
 to be misled. 
 
 § 16. 1. The principle of the foregoing decisions, upon the sub- 
 ject of specific performance of contracts with the promoters of rail- 
 way 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 advantage by enticing a 
 
 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. 
 
 » Steele v. North Met. Railw. Law Rep., 2 Eq. 237. 
 ♦46
 
 § 16. CONTRACTS AGAINST SOUND POLICY. 46 
 
 less-experienced person into participation in an illegal transaction, 
 where a court of equity will compel the successful party to relinquish 
 the fruits of the fraud, may be true. 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.^ 
 
 2. It seems to us impossible to justify such contracts, beyond 
 the mere sale of a definite pecuniary interest. And even that, 
 * it would seem, 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 otlier opposers, and with the members of the legislature even, 
 and large sums of money disbursed in fulfilment of such contracts 
 which are expected to be refunded by the company, and which are 
 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 contracts, 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 reason- 
 able 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 spe- 
 cial 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 
 
 Ante, § 7, Jacob, 64. 
 • Neville v. Wilkinson, 1 Brown, C. C. 643. 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 
 representation. This representation was made, indeed, by connivance, between 
 the husband 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. Shirley r. Ferrers, cited in St. John v. St. John, 11 
 Vesey, 636. 
 
 •47
 
 46 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 for their interference, to enforce an indemnity secured by the 
 act.^ 
 
 3. 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 in relation to it. 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 projected 
 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 enlarging 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 referring to, the previous 
 agreement, and the railway company refused to perform their 
 part, and did not claim performance of the other part. 
 
 4. On a bill for specific performance, brought by the harbor 
 trustees, 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 entirely 
 beside the object of their incorporation. 
 
 5. It is said by the Lord Chancellor, and by Lord Brougham^ 
 " It seems tliat Edwards v. The Grand Junction Railway, 1 Railw. 
 C. 173, and Lord Petre v. The Eastern Counties Railway, Id. 462, 
 and other similar cases, which have followed them, are unsup- 
 ported 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 omit- 
 ting special clauses from acts of incorporation, on the agreement 
 of the promoters that the objects proposed to be attained by these 
 clauses should be carried out, appears to be illegal, and improper." 
 
 6. It seems very obvious, that, if these clauses can be foisted 
 into the act of incorporation, by oral testimony, at the will of 
 interested parties, it is exposing the operation of the act to all the 
 incouveniencies and inconsistencies which might be expected to 
 
 ^ Gray v. The Liverpool & Bury Railway, 9 Beav. 391 ; s. c. 4 Railw. C. 
 236 ; Ante, § 11. 
 
 * Before the House of Lords in June, 1866 ; 8. c. 2 Macq. H. of L. 391 ; 
 8. C. 39 Eng. L. & Eq. 28. 
 • •48
 
 § 16. CONTRACTS AGAINST SOUND POLICY. 47 
 
 follow from subjecting written contracts to the same mode of 
 exposition. Sound views and true policy seem to us to require 
 a strict adherence to the act of the legislature, as in other cases. 
 
 7. And it is very questionable, whether, in this country, the 
 contract 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 tliat it ought not to be.^ 
 
 * 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 
 promoters of railways binding upon the company, upon the slightest grounds of 
 adoption, and often by the most forced constructions. In the case of Preston r. 
 Liverpool, Manchester & N. Railway, 5 H. of L. 605 ; s. c. 35 Eng. L. & Eq. 
 92, although the case is professedly decided upon the construction of the par- 
 ticular 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, en- 
 tered into a treaty with the plaintiff (a land-owner) , whereby the latter agreed 
 not to oppose their bill in parliament, 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 £1,000 for land of which he was the 
 freeholder, and which was required for the purpose of making the railway, and 
 £4,000 for residential damage." There were other stipulations in regard to tun- 
 nelling a portion of plaintiff^s property, and erecting a station upon another 
 portion. The company was incorporated, but not being able to raise sufficient 
 funds, no attempt was made to construct 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 quaere, whether a company can be con- 
 sidered as the successors or assignees of the projectors, so as to come into 
 existence subject to their contracts." See Ed. P. & Dundee Railw. r. Philip, 
 2 M'Qu. H. of L. 614 ; 8. c. 39 Eng. L. & Eq. 41. 
 
 There are numerous English cases upon this point since the date of the second 
 edition of this work. In Aldham r. Brown, 2 El. & El. 398, in Exchequer 
 Chamber, the extent of the responsibility of a subscriber to the preliminary as- 
 
 •49
 
 48 PRELIMINARY ASSOCIATIONS. CH. II. 
 
 8. In an English case,'' decided in the Exchequer Chamber, 
 reversing the decision of the Court of Exchequer, it was held, 
 that a contract by the company to pay £2,000 to a land owner, 
 
 sociation is extensively discussed upon an extended and somewhat refined state 
 of pleadings. The result may be briefly stated as amounting to nothing more 
 than that such subscriber is responsible for his ratable proportion of the provi- 
 sional expenses, whether the scheme is finally abandoned or not. 
 
 Where a deposit of eight per cent upon the estimated cost of a railway is paid 
 into court, in compliance with the parliamentary orders upon filing petitions for 
 certain railways, the proportion of such deposit will be paid out of court to the 
 party duly representing the petitioners, upon any of the railway projects being 
 abandoned. Aberystwith Railw., in re 7 Jur. N. S. 610. But upon the question 
 being brought to the attention of the Lords Justices, id. 564, it was doubted 
 whether the statute allowed the money to be repaid merely upon the withdrawal 
 * of the petition, and no order was made. But upon principle it would seem 
 there could be no difference between the cases named specifically in the statute 
 for repayment of the money, that of withdrawal of the petition, and such 
 as denial of the petition or refusal to allow the party to proceed. See Dart- 
 mouth & Torbay Railw. Co., in re 9 Weekly Rep. 609 V. C. K. It is no ob- 
 jection that the requisite parliamentary deposit is made from borrowed funds. 
 Scott V. Oakely, 10 Jur. N. S. 431, 648. And a court of equity will enforce 
 any agreement made with the lender to compel the repayment of such deposit, 
 ib. But an agreement by an existing railway to contribute towards the deposit 
 required to promote the grant of other lines, is held ultra vires. So also is an 
 agreement by an existing railway to take shares in the projected company, or to 
 establish traffic regulations with reference to future extensions. But such an 
 agreement will not be ultra vires where its validity is expressly made dependent 
 upon the sanction of parliament. Maunsell v. M. Great Western (Ireland) 
 Railw. Co., 1 H. & M. 130 ; s. c. 9 Jur. N. S. 660. See Scottish N. E, Railw. 
 ». Stewart, 3 Macq. H. L. Cas. 382. 
 
 But where the company stipulate to do acts uitra vires, there is no implication 
 that this stipulation shall be held conditional upon the company having or being 
 able to obtain legislative authority to do them. And if the acts so stipulated to 
 be done are component parts of an entire agreement embracing other matters 
 within the powers of the company, an injunction will be granted against carry- 
 ing any portion of the agreement into eflfect. Hattersley v. Shelburne (Earl), 
 7 Law T. N. S. 650. 
 
 Where six different lines of railway, forming one general scheme, were pro- 
 moted by the same persons, but subsequently four of them abandoned, and an 
 act obtained authorizing the construction of the other two, by which it was pro- 
 vided that the expenses, costs, and charges of obtaining and passing the act, and 
 incidental and preparatory thereto, should be paid by the incorporated com- 
 pany ; it was held the costs and expenses connected with the abandoned lines 
 were properly chargeable on the company. Tilleard, in re, 32 Beav. 476 ; s. c. 
 9 Jur. N. S. 1217. 
 
 ^ Taylor v. Chester & Midhurst Railw. Law Rep., 2 Exch. 356. Willes and 
 Blackburn, JJ., dissenting. 
 •60
 
 § 16. CONTRACTS AGAINST SOUND POLICY. 49 
 
 who opposed the company in obtaining parliamentary powers for 
 extending their line, for the injury he had or might sustain, in 
 respect of the. preservation of the game on his estate, by reason of 
 the proposed extension, was ultra vires and did not bind the com- 
 pany, the covenant being absolute and not depending on the 
 building of the railway, and the funds of the company, being both 
 by the original and the new act appropriated to specific purposes, 
 which did not include the consideration of this contract. 
 
 9. There is au American case,^ where it was held, that an 
 indemnity secured by a railway company to an individual, to quiet 
 opposition before the legislature, for tlie mere purpose of protect- 
 ing a private interest, and the party is thereby induced to forego 
 his opposition, that the indemnity will be enforced, unless the case 
 presented an instance, where the legislature was thereby exposed 
 to be misled, and to do wliat it otherwise would not have done. 
 
 » Low V. Conn. & Pass. RaUw., 46 N. H. 284.
 
 50 
 
 RAILWAYS AS CORPORATIONS. 
 
 CH. III. 
 
 *CHAPTER III. 
 
 RAILWAYS AS CORPORATIONS. 
 
 SECTION I. 
 
 Origin and Different Classes of Corporations. 
 
 1. The existence of corporations dates very 
 
 early. 
 
 2. The different kinds of corporations. Sde 
 
 and aggregate. 
 
 3. This work treats chiefly of aggregate 
 
 joint-stock coj-porations. 
 
 4. Corporations are either ecclesiastical or 
 
 lay. 
 
 5. So they are divided into eleemosynary and 
 
 civil corporations. 
 
 6. Corporations are public or private. 
 
 7. Private corporations, where stock is jyri- 
 
 vate property. 
 
 8. Public corporations, where stock is owned 
 
 and the management retained by the 
 state. 
 
 9. It does not affect the private character 
 
 of a corporation that the state or the 
 United States own a portion of the 
 stock. 
 
 § 17. 1. The idea of corporate action, i. e. by means of mere 
 legal entities, or creations of the law, seems to have existed from 
 a very early day in the history of civilization. They seem to have 
 been allowed by the laws of Solon, and by those of the Twelve 
 Tables ; and may very probably have existed at a still earlier 
 period.! 
 
 2. There have existed various kinds of corporations, distin- 
 guished sometimes by the form of the association or the nature of 
 the organization, and sometimes by the character of the work to 
 which the corporate body was devoted. Thus corporations, in the 
 English law, are either sole or aggregate. By the former is under- 
 stood corporations existing in a single individual, as the rector 
 of a church, or the judge of a particular court, as the judge of 
 probate in whose name securities are taken and to be prosecuted, 
 or any other official name, as the treasurer of a town, county, <fec., 
 in all which cases the single individual, * maintaining for the time 
 the particular official relation, constitutes the qitasi corporation. 
 Aggregate corporations are where the body consists of more than 
 
 ' 1 Kent, Coram . 624. The 8th Table, allowed societies or private companies to 
 make their own by-laws, not being inconsistent with the public law. See also 2 
 Kent, Coram. 268, note ; Dig. Rora. Civ. Law, 47, 22, 4. 
 • 61, 62
 
 § 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 51 
 
 one member, whether such members are shareholders, as in the 
 case of a mere business corporation, or are composed of different 
 subdivisions of the entire corporation ; as tiie mayor, aldermen, 
 and common council of a city or other municipality .^ 
 
 3. The corporations with which we are chiefly concerned, and 
 which will be mainly considered in the following work, are aggre- 
 gate business corporations, with a joint-stock capital, such as 
 banks, railways, manufacturing and other similar organizations. 
 
 4. But, as almost all kinds of corporations have in some sense 
 analogous powers and functions, it will not be practicable to dis- 
 cuss the law applicable to one class without at the same time, to 
 some extent, considering the law applicable to all other classes of 
 corporations. It may be proper therefore to mention here, that 
 aggregate corporations may be ecclesiastical or lay, i. e. their 
 functions may have reference exclusively to religious matters, as a 
 parish or church, whereby they are appropriately designated, as 
 ecclesiastical or religious bodies ; or they may have reference only 
 to secular matters, whereby they are more appropriately denomi- 
 nated lay corporations. The distinction is, however, sometimes not 
 easily determiijed, since the business and functions of a corpora- 
 tion may approach so nearly the one or the other as not inappro- 
 priately to be classed among either. Thus * the English Universities 
 of Oxford and Cambridge are now regarded as merely lay or civil 
 corporations, although at one time they were, with propriety, 
 classed among ecclesiastical corporations.^ 
 
 » Co. Litt. 8 6, 250 a ; 2 Kent, Comm. 273, 274. We have token no time to 
 discuss the nature or importonde of sole corporations, since very few exist in the 
 American stotes, and where any such do exist, it is so enacted by express stotute, 
 in order to secure perpetual succession and transmission of rights and duties, 
 without encumbering the succession and transmission with those formalities, 
 which would always prove laborious and sometimes difficult; and by reason 
 thereof, there would constantly arise embarrassing questions, which, by declaring 
 the office a perpetual corporation, is wisely saved. 
 
 In many of the cases already alluded to, and others which might be named, 
 as to those individuals who sustoin the official character of sole corporations, it 
 is not deemed important that the stotute conferring such functions should de- 
 clare them corporations, or to possess corporate rights and duties. All that is 
 required is, that it should be provided that contracts made to them may be sued 
 in the name of their official successors, or that in any other fonn such individ- 
 ual should be declared by his official name to have the power to contract for the 
 benefit of himself and his successors, perpetually. 
 
 ' AngeU & Ames, § 40; 1 Bl. Comm. 471. 
 
 •68
 
 52 RAILWAYS AS CORPORATIONS. CH. III. 
 
 5. Corporations, too, are divided into eleemosynary, or such as 
 disburse only charity and subsist for that purpose only, — such as 
 schools, colleges, and hospitals, — and those which are of a busi- 
 ness or pecuniary character, called civil or political bodies, intrusted 
 with certain rights or duties, and required to perform certain 
 functions, more or less connected with the polity of the state or 
 nation, — such as towns, counties, school districts, or railways, 
 banks, and manufacturing, or merely business corporations. 
 
 6. Corporations are either public or private. Public corpora- 
 tions embrace all the municipal subdivisions of the state ; such as 
 counties, towns, and cities, and school districts, and otlier similar 
 organizations. Private corporations include all aggregate, joint- 
 stock, incorporated companies, whose capital stock is owned by 
 private persons. But such joint-stock corporations as possess no 
 shares not owned by the state or nation are also regarded as public 
 corporations, the same as the municipalities of the state. The law in 
 regard to railways was thus stated in the former edition of this work. 
 
 7. Railways* in this country, although common carriers of 
 freight and passengers, and in some sense regarded as public 
 works, are ordinarily private corporations.^ By private corporsr 
 tions nothing more is implied, than that the stock is owned by 
 private persons. 
 
 8. If the stock is owned exclusively by the state, the corpora- 
 tion is a public one. And such public corporations are under the 
 control of the legislature, the same as municipal corporations, and 
 ordinarily acquire no such vested rights of property as are * beyond 
 the control of legislative authority.^ The American cases going 
 
 * There is no necessity for these public functions being confined to aggregate 
 corporations, as is the universal practice in this country. The same franchises 
 and immunities might be conferred upon any private person, at the election of 
 the legislature, as was done by the legislature 'of New York upon Fulton and 
 Livingston, in regard to steamboat navigation, which grant was held valid but for 
 the United States Constitution. And whoever was the grantee, the same rights, 
 duties, and liabilities would result from the grant, whether to a natural person or 
 to a corporation. 
 
 » Ante, § 1, pi. 6. 
 
 • Dartmouth College v. Woodward, 4 Wheaton, 518, 568 ; 2 Kent, Comm. 
 7th ed. (275) 305 and notes. If the question were entirely new, it might be re- 
 garded as admitting of some doubt, perhaps, how far the American states could 
 with propriety undertake such extensive public works, whose benefit enures 
 almost exclusively to private emolument and advantage. • But the practice is 
 now pretty firmly established. And there seems to be no proper tribunal to de- 
 
 *54
 
 § 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 53 
 
 to confirm this proposition, and to show that railways are private 
 corporations, are numerous." 
 
 tcrmine such questions between the states and the citizens. Public opinion is 
 the only practical arbiter in such cases. And that is so much under the control 
 of interested parties, ordinarily, that its admonitions are not likely to be much 
 dreaded by those who exercise the state patronage. 
 
 ^ Donnaher v. State of Mississippi, 8 Smedes & M. 649, 661. By the court, 
 in Trustees of the Prcsbyt. Society of Waterloo r. Auburn & Rochester liailw., 
 8 Hill, 570; Dartmouth Coll. v. Woodward, 1 N. H. Ill, 116; Eustis r. 
 Parker, 1 N. H. 273; Dearborn r. Boston, C. & Montreal liailw. Co., 4 
 Foster, 179, 190 ; Ohio, &c. Railroad Co. r. Ridge, 5 Blackf. 78 ; Bonaparte v. 
 Camden & Amboy R., 1 Baldwin's C. C. 205, 222; Bundle r. Delaware & Rari- 
 tan Canal Co., 1 Wallace, Jr. 275; R. & G. R. ». Davis, 2 Dev. & Batt. 461; 
 Thorpe r. R. & B. R. 27 Vt. 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 railways. The importance of such 
 control, within reasonable limits and under proper restrictions, both to the public 
 interest and that of these corporations, will be obvious when we consider the 
 magnitude of the interests committed to such corporations, and the vast amount 
 of capital invested in such enterprises. We make no account of the banking 
 capital of the countrj', most of which is occupied in business more or less con- 
 nected with railway traffic. But the capital and business of railways is almost 
 incalculable. 
 
 The length of railway in the United Kingdom of Great Britain and Ireland in 
 1857, was 8,635 miles, and the cost, in round numbers, £311,000,000 sterling, 
 being more than one and one-half billion of dollars. The amount invested in 
 this country was about half as much in 1851, and the number of miles in opera- 
 tion nearly twice as great, and almost as much more then in progress, a large 
 portion of which is now complete (1857). When it is considered that these 
 private cor])oration8, possessing such vast capital, have engrossed almost the 
 entire travel and traffic of the country, and that their powers and functions come 
 in daily contact with the material interests of almost every citizen of this great 
 empire, the importance of their being subjected to a wise and just supervision 
 can scarcely be over-estimated. This can only be permanently secured by wise 
 and prudent legislation. And to be of much security to public interests, it must 
 be by general acts, as it is in many of the states, and in England, since 1845. It 
 is worthy of remark, we think, that while in the United States a large proportion 
 of the capital invested in railways has proved hitherto wholly unproductive, and 
 much of it has already proved a hopeless loss, and a very small proportion of the 
 whole can be said to have been at all remunerative, in Great Britain the whole 
 amount of their loan and preference stock, secured virtually by way of mortgage, 
 has produced, upon an average, more than five per cent, and the onlinarj' stock 
 has produced an average dividend of more than three per cent ; and in France 
 railways have proved still more productive, making average dividends through- 
 out the empire, for the year 1857, of nine per cent upon the whole investment, 
 some as high as sixteen per cent, and one, the Lyons and Marseilles line, twenty- 
 three per cent. It is difficult to account for the difference in results, without
 
 54 RAILWAYS AS CORPORATIONS. CH. III. 
 
 * 9. It does not alter the character of a private corporation, 
 that the state or the United States own a portion of the stock.^ 
 
 suspecting something wrong somewhere. Since the former edition of this work, 
 considerable advance has been made in railway enterprise throughout the world. 
 Railways have become so nearly a military necessity, in order to enable any 
 nation of considerable power and prominence in relative national position to 
 maintain its due weight and importance, that very extensive, and in some in- 
 stances vast, works of that kind have been accomplished, mainly upon that ground. 
 The experience of the national government during the late civil war has removed 
 all question of the right of that government to charter and construct, or aid in 
 the construction of, extensive and independent lines throughout the country for 
 military' and mail purposes alone. It is stated that the present length of railway 
 line in the United States is about 32,000 miles, at an average cost of $40,000 per 
 mile, equal to $1,280,000,000 in all, and there is every reason to believe the 
 Atlantic and Pacific coasts will speedily be united by railway. The advance in 
 Great Britain and Ireland has been verj- great since the first edition of this work, 
 but probably not in the same proportion as here. 
 
 The number of miles of railway now in operation in France is about 8,000, at 
 a cost of nearly $1,300,000,000, and producing, according to the late returns of 
 the Minister of Public Works, a net income or dividend of nearly nine per cent. 
 This is the same rate of income produced by the French railways in 1858, as 
 stated above. The average income from railway investment in Great Britain 
 and Ireland is probably not above half that sum ; and, in the United States, it is 
 perhaps even below that. But our country is so immensely extensive, and easy 
 and rapid intercommunication between all portions of the empire so much a state 
 necessity, that it might naturally be expected that for a long time considerable 
 portions of the line should remain unproductive in a pecuniary point of light. 
 There have been great changes in the policy of railway construction and manage- 
 ment since this work first appeared, and mainly in the right direction. Reckless 
 and destructive railway management is now, we trust, becoming the rare excep- 
 tion in this country, although there is still, no doubt, great room for improve- 
 ment. There is probably no other countr}' in the world where it is so difficult 
 to bring the employees and others connected in various relations with railway 
 management, to understand and appreciate the indispensable importance of 
 bringing every thing to the unbending control of a single will. This is not 
 only indispensable for success, but equally for security. 
 
 From authentic sources it now (1869) appears that the extent of railway in ope- 
 ration in Europe is not less than 50,000 miles. Of this. Great Britain has 14,000 
 miles, at a cost of £500,000,000 sterling ; France has nearly 10,000 miles ; Germany, 
 including Austria, 13,000 miles ; Spain, 3,000 miles ; Sweden, 1,000 miles ; Bel- 
 gium, 1,000 miles ; Switzerland and Holland, each, less than 1,000 miles ; and Italy 
 about 3,000 miles ; and Russia nearly 3,000 miles. There are also more than 3,000 
 
 ® Bank of the United States v. The Planters' Bank of Georgia, 9 Wheaton, 
 904; Miners' Bank r. United States, 1 Greene (Iowa), 553; Turnpike Co. ». 
 Wallace, 8 Watts, 316. Bardstown & Lou. Railway v. Metcalfe, 4 Met. (Ky.) 
 199. 
 
 *65
 
 §17 a. 
 
 HOW CORPORATIONS ARE CREATED. 
 
 55 
 
 * 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.^ 
 
 ♦SECTION II. 
 
 How Corporations are created. 
 
 1. Corporations created btf grant of the too- 
 
 ereignty. This may be proved, by im- 
 plication or by presumption. 
 
 2. 7^ sovereignty may establish corporations 
 
 by general act, or delegation or procura- 
 
 tiOH. 
 
 3. Different form* of defining a corpora- 
 
 tion. 
 
 The corporate action of corporations re- 
 stricted to state creating than. 
 
 It may (Kt by its directors and agents in 
 other states. 
 
 10. But cannot properly transfer its entire 
 business to another state. 
 
 A college located at one place cannot es- 
 tablish a branch at another. 
 
 § 17 a. 1. Strictly speaking, corporations can only be created 
 by the authority of the sovereignty, either state or national.^ 
 Hence, the ordinary mode of creating joint stock business corpora- 
 tions is by charter, by way of legislative act of the several states. 
 But as, in some cases, the record of such charters may not have 
 been preserved, and in other cases, the grant of corporate powers 
 
 miles of railway in British India ; about that extent in the Canadas ; and there 
 is more than half the extent of railway line in the United States that there is in 
 all the rest of the world ; and when the three lines of Pacific railway shall be 
 completed, the extent will fall little short of equalling that of all the rest of the 
 world. But a very large proportion of it is constructed with only a single 
 track, and much of it is verj" imperfectly built, and has not proved remunerative 
 as a general rule. But it is the controlling interest of the country, far more 
 important than any other pecuniar)' or political interest, both in peace and in 
 war, and without which it is impossible to calculate what might have been the 
 result of the late civil war. 
 
 » Sayre v. North W. Turnpike Co., 10 Leigh, 454. But see Toledo Bank v. 
 Bond, 1 Ohio N. S. 622, 657. Opinion of Sto)r8, J. in Bradley r. New Y. & 
 New H. Railw. 21 Conn. 294, 304, 305. 
 
 ' As the national sovereignty is limited to the subjects and powers enumerated 
 in the Constitution, and such implied powers as are requisite to the successful 
 exercise of those expressly granted ; and as no general power to create corpora- 
 tions is expressly given, the construction of the court of last resort upon these 
 questions, established at an early day, is, that Congress can charter only such 
 corporations as are fairly to be esteemed necessary to the successful accomplish- 
 ment of its delegated powers and functions. McCuIIough r. Maryland, 4 
 Wheaton, 316; Osborne c. Bank of United States, 9 Wheaton, 733. 
 
 ♦66
 
 56 RAILWAYS AS CORPORATIONS. CH. III. 
 
 may have been by way of implication rather than express legisla- 
 tive aftt, the courts have allowed corporations to prove their cor- 
 porate character and capacity, by evidence that such character and 
 capacity is reasonably, or necessarily, * implied frjom other legislative 
 action ; ^ or else, that its existence is fairly to be presumed from 
 the long continuance of its unquestioned exercise.^ 
 
 2. The legislature may create corporations by general acts of 
 incorporation, as they are called, whereby a given number of per- 
 sons, by forming an association in a prescribed form, shall become 
 possessed of corporate powers, for certain defined objects and pur- 
 poses. This is common, in many of the states, as to ecclesiastical 
 and charitable, or benevolent associations, and not unfrequently 
 as to banking, railway, and other business corporations. And 
 although at one time questioned, it seems now conceded, that the 
 sovereign authority may grant to any one the power to erect cor- 
 porations to an indefinite extent, upon the maxim : Qui facit per 
 alium facit per se. This power is given to the Chancellor of the 
 University of Oxford,* and exists in many other forms. 
 
 3. A corporation is defined by Lord JSolt, Ch. J.,^ as an ens 
 civile, a corpus politicum, a persona politica, a collegium, an univer- 
 sitas, Si jus habendi et agendi. A corporation is well defined, as to 
 the general sense of the term, by Chief Justice Marshall,^ as " an 
 artificial being, invisible, intangible, and existing only in contem- 
 plation of law." It is, in fact, the mere creature or creation of 
 the law. Endowed by its charter with the capacity of performing 
 certain functions, and having no rights, and possessing no powers, 
 except those conferred by the sovereignty by which it was created. 
 
 4. It is upon this ground, that it has been declared, upon the 
 most unquestionable basis, both of principle and authority, that a 
 " corporation can have no legal existence out of the boundaries of 
 the sovereignty by which it is created." "^ " It exists * only in con- 
 
 « Conservators of the Tone v. Ash, 10 B. & Cr. 349. 
 
 3 Dillingham v. Snow, 6 Mass. 647 ; 2 Kent, Comm. 277 ; 1 Bl. Comm. 473. 
 
 * 1 Bl. Comm, 474. 
 
 ' Anonymous, 3 Salk. 102. 
 
 ® Dart. College v. Woodward, 4 Wheat. 518. The same learned judge, in 
 another place. Providence Bank r. Billings, 4 Pet. U. S. 614, thus comments 
 upon the purposes of acts of incorporation : " The great object of an incorpora- 
 tion is, to bestow the character and properties of individuality on a collective 
 and changing body of men." 
 
 '' Taney, Ch. J. in Bank of Augusta t>. Earle, 13 Pet. U. S. 619, 688. 
 ♦57,68
 
 § 17 a. HOW CORPORATIONS ARE CREATED. 57 
 
 templation of law, and by force of the law ; and wliere that law 
 ceases to operate, and is no longer obligatory, the corporation can 
 have no existence. It must dwell in the place of its creation, and 
 cannot migrate to another sovereignty." And tlie same thing, 
 substantially, is repeated in another case ^ by Mr. Justice Thomp- 
 son. 
 
 5. There seems to be no question but the corporation may act, 
 by its directors, agents, and servants, beyond the limits of the 
 sovereignty by which it was created,^ but its first meeting, and all 
 its subsequent meetings, in order to bind absent and dissenting 
 members, should, it would seem, be held within the limits and 
 jurisdiction of the sovereignty creating the corporation.^^ But in 
 a very recent case in New Jersey, Hilles v. Parrish," the general 
 rule is reaffirmed, that a corporation can hold no * meeting and 
 transact no corporate business, except within the state from which 
 
 ^ Runyan v. Lessee of Costor, 14 Pet. 122, 131. The same doctrine is main- 
 tained in other American cases, Miller r. Ewer, 27 Me. 609 ; Farnum v. Black- 
 stone Canal Co., 1 Sumner, 46; Day». Newark India Rubber Co., 1 Blatchf. 
 C. C. 628. 
 
 • McCall r. Byram Manuf. Co., 6 Conn. 428. It was held in this case, that 
 the directors of a manufacturing corporation might legally hold a meeting, 
 out of the state, for the purpose of making the appointment of secretarj' of 
 the corporation, and the appointment would not be rendered invalid thereby, or 
 by the fact that the person appointed had his permanent residence without the 
 state. 
 
 '" Miller p. Ewer, 27 Me. 509. The law seems so entirely well settled, that 
 corporations, created by one sovereignty, cannot so transfer their locality as 
 legally to exist and act in their organic corporate capacity in another sover- 
 eignty, that it appears verj' singular that such multitudes of speculative joint- 
 stock corporations, deriving their charters from the legislature of the state, should 
 attempt to transfer their entire local action to another sovereignty and jurisdic- 
 tion. For there is no principle better settled than that the locality of a business 
 corporation is determined by that of its principal business office. And there are, 
 unquestionably, hundreds of business corporations chartered by the legislature 
 of one state having their principal and only business offices in other states. This 
 is done doubtless by holding the stockholders' meetings in the states where 
 the charter was obtained, and appointing a board of directors with full powers, 
 and then carrying forward the business of the company through the agency of 
 the board of directors, with a by-law for filling vacancies in the board by the 
 action of the directors themselves. But that seems scarcely less than an cva.sion. 
 And although it may be held binding upon the members of the company so long 
 as acquiesced in by them, it might at any time be enjoined by proper proceed- 
 ings in equity. 
 
 '« 1 McCarter, 380. 
 
 •69
 
 58 
 
 BAILWAT8 AS CORPORATIONS. 
 
 CH. in. 
 
 they derive their charter. And it was here further held, that a 
 resolution of the directors, at a meeting held out of the state where 
 the corporation was created, for the purpose of transferring stock 
 to some of their own number, was wholly inoperative. But the 
 court declined to enjoin those holding under such title from voting 
 at the election of corporate officers, until all parties could be heard 
 upon the question of title. 
 
 6. But a college of learning, established in a particular place, 
 has no power to establish a branch, for one of its departments or 
 faculties, at a different place. It was accordingly held, that 
 Geneva College, at Geneva, N. Y., could not establish a medical 
 school in the city of New York.^^ 
 
 SECTION III. 
 
 The Constitution of Corporations^ and mode of Proof. 
 
 1. Definitions of the diffeient sense of the 
 
 term "constitution," as applied to cor- 
 porations. 
 
 2. How corporations may be composed or 
 
 constituted. 
 
 n. 1. The question illustrated more in detail. 
 
 8. Distinction of legislative, electoral, and ad- 
 ministrative assemblies not essential, 
 
 4. Corporation can only act by its name. 
 
 Subject discussed. 
 
 5. Aty demotion from the name allowed, if 
 
 the substance and sense be preserved. 
 
 6. Courts of equity will not restrain corpora- 
 
 tions from applying for enlarged powers. 
 
 7. Change of Constitution. Effect of change 
 
 of name. 
 
 8. Courts of equity will enjoin a new corpo- 
 
 ration from assuming the name of one 
 of established credit. 
 
 9. Promissory note payable to A. B., treas- 
 
 urer of a corporation, may be sued in 
 the name of A. B. Promissory note 
 for subscription uxiives condition. 
 
 10. Corporation may be estopped to deny its 
 
 existence. How described. 
 
 11. How the existence and non-existence of 
 
 corporations may be proved. 
 
 12. Party to written contract, payable to cor- 
 
 poration, cannot deny corporate exist- 
 ence. 
 
 13. Proof of corporation in fact sufficient 
 
 in all cases. 
 
 § 17 b. 1. The term " constitution," as applied to corporations, 
 is susceptible of being used in very different senses. It may imply 
 nothing more than the charter or formal grant of corporate organi- 
 zation and powers by the sovereignty, or it may be applied to 
 certain fundamental principles, declared by the corporators them- 
 selves, as the unalterable basis of the organization of the body ; 
 or, if not wholly unalterable, not to be altered, except by the 
 
 People V. Trostees of Greneva College, 6 Wendell, 211.
 
 § 17 6. THE CONSTITUTION OP CORPORATIONS, ETC. 59 
 
 adoption and concurrence of certain formalities, not likely to 
 occur, except in regard to changes of very obvious necessity ; or 
 the term may be used to signify the constituent members, or dif- 
 ferent bodies of which the corporation is composed. 
 
 * 2. A corporation may be composed of natural persons, acting in 
 their separate and individual capacity : or it may be composed of 
 different bodies of natural persons, acting in separate assemblies ; 
 or it may be composed of separate and distinct corporations.^ 
 
 3. Some writers have distinguished the meetings or assemblies 
 of aggregate corporations into three kinds, — legislative, electoral, 
 and administrative. But this is a distinction with reference to 
 the different offices, or duties of the same assembly, or meeting, 
 and is consequently of no practical importance to be maintained 
 or discussed .2 
 
 4. A corporation must be constituted by some corporate name, 
 and can only act by such name.^ A corporation by prescription 
 may have several names, but by charter it can have, it is said, 
 but one name for the same purpose and at the same time. For, 
 
 ' Joint-stock business corporations are, for the most part, composed of natural 
 persons. But as membership in such corporations grows out of the ownership 
 of shares, it may exist in other corporations, who subscribe for or purchase 
 shares ; or the shares may be in part owned by the sovereignty, either state or 
 national. Bank of the United States v. The Planters' Bank of Georgia, 9 
 Wheaton, 904 ; Bank of South Carolina v. Gibbs, 3 McCord, 377. But as said 
 by Mr. Chief Justice Marshall, in Bank of the United States v. The Planters' 
 Bank, supra, " As a member of a corporation, a government never exercises 
 its sovereignty. It acts merely as a corporator, and exercises no other power 
 in the management of the affairs of the corporation than are expressly given 
 by the incorporating act." 
 
 A familiar instance of corporations, composed of different a^ssociations of 
 natural persons, fonning component parts of the corporation, will be found in 
 the organization of municipalities, 1 Kyd. 36. So also the corporation may be 
 composed of a defined number of persons of a particular class. As in the case 
 of St. Mary's Church in the city of Philadelphia, 7 S. & R. 617. 
 
 And a corporation is sometimes constituted of several subordinate corporations 
 combined. As in the case of the Dean and Canons of the English Cathedrals, 
 2 Burn's Eccl. Law, Tit. Monasteries, 642. The same is also true of the cor- 
 porations of the English Universities, which are composed of the subordinate 
 corporations of the different Colleges and Halls. 1 Kyd. 36. Some English towns 
 and cities are composed of several subordinate corporations. And a freeman of 
 the city of London must first become a freeman of some of the Trades' incor- 
 porations. Angell & Ames, § 96. 
 
 « 1 Kyd. 399 ; AngeU & Ames, § 98. 
 
 ' College of Physicians r. Salmon, 8 Balk. 102. 
 
 •60
 
 60 RAILWAYS AS CORPORATIONS. CH. IH. 
 
 although it may have a new charter by a new name, it thereby 
 loses the old name.^ 
 
 * 5. But it sometimes becomes an important and difficult con- 
 sideration, how far a departure from the strict corporate name 
 can be allowed without the violation or disregard of established 
 principles. It was early decided,^ that in contracts by or to cor- 
 porations, it is sufficient if the name be substantially preserved. 
 It is not requisite ut idem nomen syllabU be preserved, but only 
 in re et sensu. The precise words of the same are not indispensa- 
 ble. It is sufficient if the substance and the sense be preserved. 
 And in a case in New Hampshire, it was held not essential, in 
 naming a corporation, that the same words should be used in the 
 same order, provided the description was sufficient to identify the 
 body.^ And this rule obtains generally, in all the cases upon the 
 subject, both English and American. If the name used to de- 
 scribe the corporation does not describe any other person, natural 
 or corporate, and is sufficient to show that the particular corpora- 
 tion was intended, it will be sufficient." 
 
 6. The constitutions and powers of all corporations must neces- 
 sarily depend upon the law of the state where the same was crea- 
 ted. And in the English courts of equity it is not the practice 
 to interfere to restrain the majority of the shareholders from ap- 
 plying to parliament for enlarged powers. And the same rule is 
 there adopted as to foreign corporations, whose shareholders prin- 
 
 ■• Anonymous, 3 Salk. 102. But some writers have said that if the charter of 
 a corporation allow them to act by different names for the same purpose, there 
 is no good reason why they may not. 1 Kyd. 230. And in Alinot v. Curtis, 7 
 Mass. 441, it is said a parish may be known by several corporate names. The 
 point is not important, since few corporations make any claim to an alias dictus, 
 and where that is claimed there will commonly be no difficulty in determining 
 how far the claim can be justified or maintained. There is no pretence of the 
 capacity of a corporation to change its own name at will. Serious inconvenience 
 might be expected to result from any such facility of change of name being con- 
 ceded to corporations. Reg. v. Registrar, 10 Q. B. 839. But the legislature 
 may change the name of a corporation, and this will not affect its rights, its 
 identity being shown. Rosenthal v. Madison, P. R. Co., 10 Ind. 358. 
 
 ' Mayor and Burgesses of Lynne Regis. 10 Co. Rep. (11 Jac. I.) 122. 
 
 « Newport Mech. Co. v. Starbird, 10 N. H. 123. 
 
 ' First Parish in Sutton r. Cole, 3 Pick. 232 ; Tucker v. Seamen's Aid So- 
 ciety, 7 Met. 188 ; Attorney-General r. Corporation of Rye, 7 Taimt. 546 ; 
 Foster v. Walter, Cro. Eliz. 106 ; Domestic & Foreign Missionary Society's 
 Appeal, 30 Penn. St. 425 ; Button v. American Tract Society, 23 Vt. 336 ; Red- 
 field on Wills, Pt. 1, § 40, and cases cited. 
 *61
 
 § 17 6. THE CONSTITUTION OP CORPORATIONS. 61 
 
 *cipally reside in England, and where the principal business is 
 transacted in that country.^ 
 
 7. The English courts of equity hold a very strict hand over 
 joint-stock companies incorporated by act of parliament, both in 
 regard to the exercise of their powers and the application of their 
 funds.® Where the name of a corporation is altered by act of the 
 legislature, with a provision that it shall not have the effect to 
 prejudice any right or remedy in favor of the company previously 
 existing, it was held to save the remedy against a surety upon a 
 bond for faithful service of an employee.^^ 
 
 8. An application was made in a somewhat recent case,^^ for an 
 injunction against the defendant's adoption and use of the plain- 
 tifTs name, or one so similar as to lead the public to suppose they 
 were the same institution, upon the ground that this would tend 
 to deprive them of the just benefits of the long period of conducting 
 their business upon terms and in a mode most acceptable to the 
 public. The application was based upon the same grounds that 
 have induced courts of equity to interfere to protect parties from 
 the fraudulent use of established trademarks, inasmuch as it tends 
 to a double fraud, — in depriving the parties, first giving charac- 
 ter to such mark, of the legitimate fruits of their industry ; and 
 also in that it induces the public to suppose they are obtaining 
 the original article of the original proprietor, when in fact they 
 are not.^^ The court, Vice-Chancellor Stuart^ intimated no doubt 
 of the propriety of granting the relief, upon the ground claimed 
 in the bill, but denied the injunction upon the ground that no 
 such case was made out at the hearing. But a company cannot 
 by user acquire an exclusive right to use, in its title of incorpora- 
 tion, a term descriptive merely of the locality where the business 
 is carried on ; and the court will not restrain the use of such 
 general term by a new company, although it appear that the former 
 company may have been prejudiced by the similarity of name.^ 
 
 » Bill V. Sierra Nevada L. W. Co., 1 De G., F. & J. 177 ; 8. c, 6 Jur. N. S. 184. 
 
 • Attorney-General v. Great N. Railw., 1 Drew & Sm. 164. 
 
 «> Groux & C. Co. p. Cooper, 8 C. B. N. S. 800. 
 
 " The London Insurance r. The London & Westminster Insurance Corpora- 
 tion, 9 Jur. N. S. 843. 
 
 " 2 Story Eq. Jur. § 951, rf aeq., in the late edition of 1866. 
 
 " Colonial Life Ass. Co. r. Home & CoL Life Am. Co., 83 Beav. 648 ; 8. c, 
 10 Jur. N. S. 967. 
 
 ♦62
 
 62 RAILWAYS AS CORPORATIONS. CH. III. 
 
 9. A promissory note payable to a person by name, adding 
 treasurer, &c., naming a railway corporation, must be regarded 
 as payable to the person named and not to the corporation.^* But 
 such a note, given for a conditional subscription of stock, must 
 be regarded as a waiver of the condition, an'd, if executed some 
 time after the date of the subscription, cannot be construed as 
 part of the contract of subscription. ^^ 
 
 10. A corporation, after having claimed and exercised corporate 
 powers for a considerable time, will be estopped from denying its 
 corporate existence.^^ It is said in some cases, that if the corpora- 
 tion contracts by a style which is usual in creating corporations, 
 and which discloses the names of no natural persons, that the 
 corporate existence will be implied and need not be averred." 
 But in general such a proposition would not be regarded as main- 
 tainable in suits, either in favor or against a corporation : it should 
 be described as such in the declaration, with its location at its 
 central place of doing business. 
 
 11. It has been held, that where defendants, sued as a corpora- 
 tion, rely upon the fact that the corporate existence has ceased 
 before the institution of the suit, it must be pleaded in abatement 
 and not in bar of the action. But in general the want of corporate 
 existence and power may be shown at any time before judgment, 
 upon proper notice and special plea.^^ A party who has sued a 
 corporation and recovered judgment against them by a particular 
 name, is afterwards estopped from denying the corporate exist- 
 ence.^^ But this seems not altogether in accordance with the 
 requirement that estoppels be mutual, unless the judgment were 
 between the same parties. Such an estoppel would therefore 
 only operate as between the plaintiff in the former suit and the 
 corporation. 
 
 12. The cases are very numerous where it has been held that a 
 
 " Chadsey v. McCreery, 27 111. 253. 
 
 » O'Donald v. E. Ind. & CI. Railw. Co., 14 Ind. 259. 
 
 '» Callender r. Painesville & H. R. R. Co., 11 Ohio N. S. 516 ; The Atlantic & 
 Ohio R. R. V. Sullivant, 5 Ohio N. S. 276. See also Ashtabula & New L. R. R. 
 Co. V. Smith, 15 Ohio N. S. 328. 
 
 " Stein V. Ind. «S:c., Association, 18 Ind. 237. 
 
 '* Meikel ». The German Savings Fund Society, «&c., 16 Ind. 181. 
 
 " Pochelu V. Kemper, 14 Louis. Ann. 308.
 
 § 17 6. THE CONSTITUTION OP CORPORATIONS. 63 
 
 party who gives a written contract to a corporation by a particular 
 name is estopped to deny the existence and name of such corpora- 
 tion* 
 
 13. And in all cases of the plea of nul tiel corporation, proof of 
 a corporation in fact will be sufficient.* 
 
 » Hubbard v. Chappel, 14 Ind. 601.
 
 64 
 
 PROCEEDINGS UNDER THE CHARTER. 
 
 CH. IV. 
 
 CHAPTER lY. 
 
 PROCEEDINGS UNDER THE CHARTER. 
 
 SECTION I. 
 
 Organization of the Company. 
 
 1. Conditions precedent must be performed. 
 
 2. Stock must all be subscribed, ordinarily. 
 8. Charter-location of road, condition prece- 
 dent. 
 
 4. Colorable subscriptions binding at law. 
 
 6. Conditions subsequent, how enforced. 
 
 6. Stock distributed according to charter. 
 
 7. Commissioners must all act. 
 
 8. Defect of organization must be pleaded 
 
 specially. 
 
 9. Question cannot be raised collaterally. 
 
 10. Records of company, evidence. 
 
 11. Membership, how maintained. 
 
 12. By subscription and transfer of shares. 
 
 13. Offers to take shares not enforced in 
 
 equity, and may be withdraivn. 
 
 p> ]§ 18. 1. To give the corporation organic life, the mode pointed 
 out in the charter must ordinarily be strictly pursued. Conditions 
 precedent must be fairly complied with.^ Thus, where a given 
 amount of capital stock is required to be subscribed or paid in be- 
 fore the corporation goes into operation, this is to be regarded as 
 an indispensable condition precedent.^ But if the 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 increase it to the larger.*^ 
 
 > Angell & Ames on Cor. ch. 8, §§ 95-112 ; 2 Kent, Comm. 293 d seq. 
 
 ' Post, § 61, and cases cited. Bend v. Susquehanna Bridge, 6 Har. & Johns. 
 128 ; Gray v. Portland Bank, 3 Mass. 364 ; Minor v. The Mechanics' Bank of 
 Alexandria, 1 Peters, (U. S.) 46. Opinion of Story, J. And where a corpora- 
 tion is formed, or attempted to be formed, under general statutes, the inchoate 
 proceedings do not ripen into a corporation, until all the requirements of the 
 statute, even the filing of the articles in the office of the Secretary of State, are 
 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 capital stock 
 of the company thereafter to be formed, and not a binding promise to pay. The 
 obligation is merely inchoate and can never become of any force, unless the cor- 
 poration goes into effect in the mode pointed out in the statute. And until that 
 time, the subscriber may revoke the offer, and if the articles are in his possession 
 or control, erase his name. Burt v. Farrar, 24 Barb. 518. 
 *63
 
 § 18. ORGANIZATION OP THE COMPANY. 65 
 
 • 2. And where business corporations are created with a definite 
 capital, it is regarded as equivalent to an express condition that 
 the whole stock shall be subscribed before the company can go into 
 full operation ; and in the case of banks, it must be paid in specie 
 in the absence of all provision to the contrary, before they can 
 properly go into operation.^ 
 
 3. In some cases it is a condition of the charter, or of the sub- 
 scriptions to the stock, that the track of a railway shall touch 
 certain points, or that it shall not approach within certain distances 
 of other lines of travel. This class of conditions, so far as they 
 can practically be denominated conditions precedent, must be 
 strictly complied with, before the company can properly go into 
 operation so as to make calls. 
 
 4. But it has been held, that colorable subscriptions to stock, in 
 order to comply with the requisites of the charter, are not to be 
 regarded as absolutely void. They are binding upon the subscri- 
 bers themselves. And they are binding upon the other subscribers 
 unless, upon their first discovery, they take steps to stay the further 
 proceedings of the corporation, which may be * done in a court of 
 equity. If there has been unreasonable delay in opposing the 
 action of the corporators, upon the faith of such subscriptions, or if 
 matters have progressed so far before the discovery of the true 
 character of the subscriptions, by the parties liable to be injurious- 
 
 ' King V. Elliott, 5 Sm. & Mar. 428 ; post, § 51. But a requirement in the 
 charter of a railway company, that $1,000 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. But under the 
 late English Statutes corporations are allowed to organize, and make calls to 
 some extent, before all the capital is subscribed. Or. P. W. Co. v. Brown, 9 
 Jur. N. S. 578 ; s. c. 2 II. & C. 63. But in America the rule that all the stock 
 must be subscribed before the company can go into operation is strenuously 
 adhered to. Shurtz v. The S. & T. Railw. Co., 9 Mich. 269. And upon gen- 
 eral principles it seems not to be held indispensable in England that all the stock 
 be subscribed, either to enable the corporation to go into operation, or even to 
 borrow money on mortgage. McDougall r. The Jersey Imperial Hotel Co., 2 
 H. & M. 528 ; 8. c. 10 Jur. N. S. 1043. But, in America, the entire capital 
 stock must be subscribed and paid in money, and it will not be sufficient to pay 
 it in the equivalent for money, to the acceptance of the shareholders or directors, 
 unless the charter or general laws of the State so provide. The People r. The 
 Troy House Co., 44 Barb. 625. 
 
 6 •64,66
 
 66 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 \j affected by them, as to render it difficult to restore the parties to 
 their former rights, the corporation will still 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 specifically en- 
 forced in courts of equity, in cases proper for their interference iu 
 that mode ; oj* 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 corpora- 
 tion, the distribution of the stock, in the mode pointed out in the 
 statute, is a condition precedent to the existence of the corpora- 
 tion. ^ 
 
 * 7. Where the charter of a railway company appoints a certain 
 number of commissioners, to receive subscriptions and distribute 
 the stock, in such manner as they shall deem most conducive to 
 the interests of the company, making no provision in regard to a 
 quorum, all must be present to consult when they distribute the 
 stock, although a majority may decide, this being a judicial act. 
 
 * Walker ». Devereanx, 4 Paige, 229. The entire ground of chancery juris- 
 diction in regard to the conduct of commissioners or corporations in making 
 colorable subscriptions of stock is here very fully discussed by the learned 
 Chancellor. And the conclusion arrived at seems the only practicable one, that 
 colorable subscriptions or fraudulent distribution of stock will not defeat the 
 legality of the organization of the corporation, unless the thing is arrested 
 in limine. Johnston v. S. W. R. R. Bank, 3 Strob. Eq. 263 ; Selma & Tenn. R, 
 V. Tipton, 6 Alabama, 787 ; Hayne v. Beauchamp, 6 Sm. & M. 515. The de- 
 cision of the commissioners is conclusive upon the company and shareholders, at 
 law certainly. Crocker v. Crane, 21 Wendell, 211. And where the charter, or 
 act of association, names commissioners to take up subscriptions, they alone have 
 jurisdiction of the matter, and subscriptions taken up by volunteers are not 
 binding upon the subscribers unless adopted by the commissioners. Shurtz v. 
 The S. & T. R. R. Co., 9 Mich. 269. 
 
 * 2 Kent, Comm. 305 and notes. 
 
 ' Crocker r. Crane, 21 Wendell, 211 ; 8. c. 2 Am. Railw. C. 484. Where 
 the statute names a large number of persons, and enacts that they, or any three 
 of them, may act as commissioners, either the whole number or any three may 
 act at the election of the individuals. No particular form of words is required 
 to create the grant of a corporation. The grant of power to perform corporate 
 acts implies the grant of corporate powers. Comm. v. West Chester Railw. Co., 
 3 Grant Cas. 200. 
 ♦66
 
 §18. ORGANIZATION OP THE COMPANY. 67 
 
 Receiving subscriptions is a merely ministerial act and may be per- 
 formed by a number less than a majority.*' 
 
 If the organization of a corporation is regular upon its face, and 
 the legislature have recognized it as such subsequent to its having 
 gone into operation, it becomes ipso facto a legal corporation." 
 
 8. Questions in regard to the organization, ox 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 existence 
 of the corporation, the legality of its charter, and the question of 
 its forfeiture, cannot be inquired into, in any collateral proceeding, 
 as in a suit between the company and its debtors, or others, against 
 whom it has legal claims.^ 
 
 * 10. The records of the corporation are primd facie, but not indis- 
 pensable evidence, of its organization and subsequent proceed- 
 ings.^® But the authenticity of the books, as the records of the 
 
 ' Black River & Utica Railw. ». Barnard, 31 Barb. 258. 
 
 * Boston Type and Stereotype Foundry c. Spooner, 5 Vt. 93, and cases 
 cited; Railsback r. Liberty & Abington Tump. Co., 2 Carter, 656. But some 
 cases seem to require such proof to establish the contract. Stoddard v. The 
 Onondaga Annual Conference, 12 Barb. 573 ; Heaston v. Cincinnati & F. W. R., 
 16 Ind. 275. A party who executes his promissory note to a company by its 
 corporate name is estopped to deny its corporate existence. East Pascagoula 
 Hotel Co. V. West, 13 La. Ann. 541. 8. p. Black River Railw. v. Clarke, 25 
 N. Y. 280. But in an action by a corporation upon a judgment, the defendant 
 is estopped to plead that no such corporation exists, even if he propose to prove 
 its dissolution after the date of the judgment. He should plead such matter 
 specially. Perth Amboy Steamboat Co. v. Parker, 2 Phila. 67. But see Ander- 
 son r. Kerns Draining Co., 14 Ind, 199. 
 
 » Duke r. Cahawba Nav. Co., 16 Alabama, 372; post, § 242, note 6. But 
 in an action against a stockholder for the debt of the company under the statute, 
 the existence and organization of the company must be proved ; and judg- 
 ment against the company is not evidence against the stockholder. Hudson v. 
 Carman, 20 Law Rep. 216; 8. c. 41 Me. 84; C. P. & A. Railw. r. City of 
 Erie, 27 Penn. St. 380. See also Eakright v. L. & N. I. Railw., 13 Ind. 404. 
 The subscription to the stock of a corporation estops the subscriber to deny 
 the corporate existence, nor can the subscriber plead in defence of such sub- 
 scription that other subscribers, by means of secret fraudulent agreements, 
 were promised shares upon terms different from those specified in the agreement, 
 since such fraudulent arrangements are of no validity, and cannot avail the par- 
 ties on whose behalf they are made. Anderson r. N. & R. Railw., 12 Ind. 376. 
 
 •0 Ang. & Am. § 513 ; Grays r. Lynchb. & Salem T. Co., 4 Rand. 578 ; Bun- 
 combe T. Co. r. McCarson, 1 Dev. & Bat. 306 ; Greenl. Ev. § 492 ; Rex ». Mar- 
 tin, 2 Camp. 100; Hudson v. Carman, 20 Law Rep. 216; s. c. 41 Mc. 84. 
 
 •67
 
 68 PROCEEDINGS UNDER THE CHARTER. OH. IV. 
 
 corporation, must be shown by the testimony of the proper officer 
 entitled to their custody, or that of some other person cognizant of 
 the fact." 
 
 * 11. Questions sometimes arise as to what constitutes member- 
 ship in a corporation. This has to be determined, in most aggre- 
 gate corporations, by the just construction and fair import of the 
 charter and by-laws of the body. The usage of the corporation 
 and of other similar bodies will be of controlling force in deter- 
 mining such questions. But the power of maintaining, in some 
 mode, a supply of members of the body, is incident to all corpora- 
 tions, as indispensable to its continued existence.^ 
 
 All that a corporation is called upon to prove, to establish its existence in a 
 litigation with individuals dealing with it, is its charter and user under it. This 
 constitutes it a corporation de facto, and this is sufficient, in ordinary suits, 
 between the corporation and its debtors. The validity- of its corporate exist- 
 ence can only be tested by proceedings in behalf of the people. Mead v. 
 Keeler, 24 Barb. 20. Between the company and strangers, the records of 
 the company will ordinarily be held conclusive against them in regard to such 
 matters as it is their dutj- to perform, in the manner detailed in the records. 
 Zabriskie v. C. C. & C. Railw., 10 Am. RaUw. Times, No. 15, s. c. affirmed, 23 
 How. 381. Ht'aston r. Cincinnati, &c. Co., 16 Ind. 275. See upon the gen- 
 eral question of proof and prestunption of the organization of corporations, 
 Leonardsville Bank r. Willard, 25 N. Y. 574 ; Belfast and Angelica Plank 
 Soad Co. V. Chamberlain, 32 N. Y. 651 ; Buffalo & AUegany Railw. v. Cary, 
 26 N. Y. 75. Where the statute imder which an incorporation is formed in 
 another state, required, that before the corporation should commence business 
 it should cause its articles of association to be published in a prescribed form, it 
 was held that it might be regarded as sufficiently incorporated for the bringing 
 of an action without the publication; and that the general reputation and 
 notoriety of the (act that such corporation was doing business in that capacity, 
 coupled with the fact that the contract sued upon was made payable to them, 
 was sufficient evidence of the corporate existence. Holmes r. Gilliland, 41 
 Barb. 568. See Unity Ins. Co. v. Cram. 43 N. H. 636, where the rule of con- 
 stmction is somewhat more strict. 
 
 There seems to be no rule of practice better settled than that where the de- 
 fendant, in a suit brought by a corporation, pleads the general issue, he thereby 
 concedes the right of the plaintiff to sue in his corporate capacity. Orono r. 
 Wedgeworth, 44 Me. 49. The members of a mutual insurance company can- 
 not dispute the corporate existence in a suit upon the premium notes in favor of 
 a receiver appointed to wind up the concerns of the company. Hyatt r. Whip- 
 ple, 37 Barb. 595. Misnomer of corporations must be plead in abatement or it 
 will be regarded as waived. Keech r. Bait. & Wash. RaUw., 17 Md, 32. 
 
 " Highland Tump. Co. r. McEean, 10 Johns. 154. See Breedlove v. M. 
 &c. Railw. Co., 12 Ind. 114. 
 
 " Hicks V. Launceston, 1 Roll. Ab. 618, 514 ; s. c. 8 East, 272 in n. See also 
 •68
 
 19. 
 
 MODIFICATION AND ACCEPTANCE OP THE CHARTER. 
 
 69 
 
 12. But in jointrstock business coporations, like banks and rail- 
 ways, and other similar companies, membership is originally con- 
 stituted by subscription to the shares in the capital stock ; and it 
 is subsequently continued by the transfer of such shares, in con- 
 formity with the charter and by-laws of the company, and no 
 election by or assent on the part of the corporation is requisite, 
 unless made so by the charter or by-laws. 
 
 13. Serious questions often arise in regard to the allotment and 
 acceptance of shares. Courts of equity have sometimes declined to 
 interfere to carry into effect specifically, contracts with the promo- 
 ters to accept shares in the company when it should be fully organ- 
 ized.^ But we apprehend the rule is generally otherwise, as we 
 have stated elsewhere." And one who has made the requisite 
 deposit and also the formal application to the company for an 
 allotment of shares, is still at liberty to withdraw the application 
 at any time before it is accepted or any allotment made.^^ 
 
 ♦SECTION II. 
 
 Acceptance of Charter, or of Modification of it. 
 
 1. New or altered charter mutt be formaUy 
 
 accepted. 
 
 2. Sufacriptionfor stock tometimes sufficient, 
 8. 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 shown by parol. 
 
 7. Corporators assenting are bound. 
 
 8. Charter subject to recall until accepted. 
 
 §19. 1. It is requisite to the binding effect of every legislative 
 charter (or modification of such charter) of a joint-stock company, 
 
 2 Kent, Comm. 294. It is not competent for the defendant, in an action in favor 
 of a corporation, to plead that the company has committed .acts working a for- 
 feiture of its corporate franchises. That can only be determined by a suit on 
 behalf of the public, brought expressly to try that question. Comm. ». Morris, 
 1 Phil. 411; Coil r. Pittsburgh Female College, 40 Penn St. 439; Dyer ». 
 Walker & Howard, id. 157. Membership in the corporation is not affected by 
 the certificate of shares containing a promise to pay interest till a certain time. 
 McLaughlan v. D. & M. R. Co., 8 Mich. 100. 
 
 " OrienUl I. St. Co. v. Briggs, 2 Johns. & H. 625 ; 8. c. 4 L. Times, N. S. 
 678. But this case was affirmed by the Lord Chancellor, on the ground that 
 there was no valid or complete contract. 6 L. Times, N. S. 477. 
 
 '♦ Post, § 34, pi. 6. 
 
 " Graham ex parte, 7 Jur. N. S. 981. 
 
 •69
 
 70 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 that it should be accepted by the corporators.^ This question 
 more commonly arises, in regard to the modification of a charter, 
 or the granting of a new charter, the company in either case, 
 whether under th6 old or the new charter, going forward to all 
 appearance much the same as before. In such case, it has usually 
 been regarded as important to show some definite act of at least a 
 majority of the corporation .^ 
 
 2. The question of acceptance becomes of importance often, 
 where a partnership, or some of its members, obtain an act of in- 
 corporation. But ordinarily, in the first instance, the assent of the 
 stockholders, or corporators, is sufficiently indicated by the mere 
 subscription to the stock. 
 
 3. Where a statute in relation to a corporation requires accept- 
 ance, in a prescribed form, and that is not complied with, the cor- 
 poration can derive no advantage from the act.^ 
 
 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.^ 
 
 7. In a recent case in Ohio, where an amendment of the charter 
 of a bank was passed by the legislature giving the bank certain 
 immunities and privileges, upon the assent of all the stockholders 
 in writing, filed with the auditor of state, to become personally 
 responsible for the liability of the company in the manner pre- 
 
 i The King v. Pasmore, 3 T. R. 200, 240 ; Ellis v. MarshaU, 2 Mass. 269. 
 This wats 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. 
 
 * Wilmot, J., in Rex v. Vice Ch. of Cambridge, 3 Bur. 1647 ; Rex v. Amery, 
 1 T. R. 675 ; Falconer v. Campbell, 2 McLean, 195. 
 
 ' Green v. Seymour, 3 Sandf. Ch. 285. 
 
 * Charles River Bridge v. Warren Bridge, 7 Pick. 844; by Parker, Ch. J., 
 and Wilde, J. 
 
 * Bank of U. S. r. Dandridge, 12 Wheat. 64, opinion of Story, J., and cases 
 cited. 
 
 « Coffin V. Collins, 17 Maine, 440; Bank of Manchester v. Allen, 11 Vt. 302; 
 Angell & Ames. Corp. §§ 81-87 ; Dartmouth College v. Woodward, 4 Wheat. 
 688 ; Wilmington & Manchester R. v, Saunders, 3 Jones, 126. 
 *70
 
 §20. 
 
 OBDINABT CORPORATE POWERS. 
 
 71 
 
 scribed in the act, it was held, that although all the stockholdere 
 did dot subscribe the required written declaration, yet if the bank 
 had enjoyed the benefits secured by the amendment, neither those 
 stockholders who did subscribe it, or the bank itself, can deny 
 the acceptance of the amendment, as against the claims of third 
 persons." 
 
 8. And where the constitution of the state is so altered as to 
 prohibit the grant of special acts of incorporation, it was held, that 
 such an act granted before the new constitution took effect, and 
 which had not been accepted by the corporators, could not be 
 accepted, thereafter ; as the grant of a charter to those who had 
 not applied for it, until it was accepted, remained a mere offer, and 
 might be withdrawn at the pleasure of the grantors.^ But where 
 any amendment of the charter of a corporation was fully accepted 
 by the shareholders before the new constitution took effect, it can- 
 not be effected by any of the provisions thereof: and what shall 
 amount to such acceptance is matter of fact, depending upon the 
 construction of the facts proved.® 
 
 •SECTION III. 
 Ordinary powers. — Control of majority. 
 
 1. Ordinary franchises ofrailuxiys. 
 
 2, 8. 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. Afay obtain enlarged powers, 
 
 9. Courts of equity will not restrain the use 
 
 <^ their funds for that purpote. 
 
 10. But will, if to convert canal into rail- 
 
 way. 
 
 11. Right to interfere lost by acquiescence. 
 
 1 2. Acquiescence of one plaintiff, fated. 
 18. Railway a public trust. 
 
 14. Suit maintained by rival interest. 
 16. Courts of equity will not restrain the 
 majority from winding up unless for 
 fraud, 4rc. 
 
 § 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, 
 
 ^ Owen V. Purdy, 12 Ohio N. S. 78. And a legislative permission to a plank 
 road company to mortgage its corporate property is an amendment which may 
 be accepted by the vote of the majority. And the same is true of all amend- 
 ments calculated merely to facilitate the attainment of the existing objects and 
 purposes of the corporation. Joy v. Jackson & Michigan Flank Road Co., 11 
 Mich. 155. 
 
 * State r. Dawson, 16 Ind. 40. " State v. Dawson, 22 Ind. Rep. 272. 
 
 •71
 
 72 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 or by the general laws of the state. These are perpetual succes- 
 sion, the power to contract, to sue and be sued by the corporate 
 name, to hold land for the purposes of the incorporation, to have a 
 common seal, and to make its own by-laws or statutes, not incon- 
 sistent with the charter, or the laws of the state.^ And it may be 
 proper to say, that it is implied in the grant of all business cor- 
 porations, that they possess the power to acquire and convey such 
 property, both real and personal, as shall be found reasonably 
 necessary and convenient, for carrying into successful operation 
 the purposes of their incorporation. And when there is no limita- 
 tion upon this power, in the act of incorporation, it can only be 
 limited by writ of mandamus or injunction, out of chancery, at the 
 suit of the attorney-general, or by some other proceeding on the 
 part of the people. Until some such public interference, the title 
 of the corporation will be good. 
 
 2. The right of the 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.2 
 
 3. There can be no doubt the general principle of the right of 
 the majority to control the minority, in all the operations of the 
 * company, within the legitimate range of its organic law, is im- 
 plied in the very fact of its creation, whether expressly conferred 
 or not.^ 
 
 4. And perhaps it is equally implied in the fundamental com- 
 pact, that the majority have no power to change the organic law of 
 
 ' Walford, 69 ; 1 Black. Comm. 475, 476 ; 2 Kent, Comm. 277 ; where the 
 power of amotion of members for just cause is added. 
 
 » Post, §§ 56, 212. 
 
 ^ Louisville, Cincinnati, & Charleston Railw. ». Letson, 2 Howard ,(U. S.), 
 497 ; 8. c. 15 Curtis, Cond. 193. The very definition of a corporation, that it is 
 an artificial being composed of diflferent members, and existing and acting as an 
 abstraction, and having its habitation where its functions are performed, presup- 
 poses that it must act in conformity with its fundamental law, which is according 
 to the combined results of its members, or the will of the majority. But this 
 will cannot change its fundamental law without changing the identity of the arti- 
 ficial being, to which we apply the name of the corporation. See also St. Mary's 
 Church, 7 S. & R. 517 ; New Orleans, Jackson, &c. Railway ». Harris, 27 Miss. 
 517 ; Ex parte Rogers, 7 Cowen, 526, which holds, that if the charter requires a 
 certain number to be present, iu' order to the performance of a particular act, it 
 is requisite that the number remain till the act is complete, and if» one depart 
 before, although wrongfully, it will defeat the proceedings. • 
 ♦72
 
 § 20. ORDINARY CORPORATE POWERS. 73 
 
 the association, except in conformity to some express provision 
 therein contained. 
 
 5. This principle lies at the foundation of all the political or- 
 ganizations in this country, which, in theory certainly, are not 
 liable to be changed by the will of the majority, except in the mode 
 pointed out in the constitution of the state or sovereignty. And 
 corporations are not subject to the ultimate right of revolution, 
 which is claimed to exist in the state, and which may be exercised 
 by the law of force, which is a kind of necessity, to wliich all sub- 
 mit, when there is no open way of escape. This could have no 
 application to a commercial company, whose movements are as 
 much under the control of the courts of justice as those of a 
 natural person, 
 
 6. And in this country it has been held, that the acceptance by 
 the majority of a corporation of an amendatory act, does not bind 
 the minority.* An amendment to the charter of a * corporation, to 
 become binding, must either have been applied for in pursuance of 
 a vote of the stockholders, or else have been accepted by such vote ; 
 or it must have been acted under for such a length of time as to 
 raise a reasonable presumption of knowledge in the shareholders 
 and subsequent acquiescence.^ 
 
 7. And a contract of a manufacturing corporation to employ the 
 plaintiff, a stockholder, during the time for which the corporation 
 is established, that being indefinite, is not released by a majority 
 of the company voting to dissolve the corporation and wind up its 
 concerns, discharging the plaintiflf from his employment, and trans- 
 ferring the property to trustees, to pay the debts and distribute the 
 surplus among the stockholders, and giving notice to the executive 
 department of the state, that they claimed no further interest in 
 their act of incorporation.^ 
 
 * New Orleans, &c. Railroad v. Harris, 27 Miss. 517. But this rule will be 
 understood with some limitations. If it be an amendment within the ordinary 
 range of the original charter, giving increased facilities for the accomplishment 
 of the same objects, it may be accepted by the majority, so as to bind the whole 
 company. But if it be a fundamental alteration of the constitution of the com- 
 pany, it must have either the express or implied assent of all the corporators, to 
 make it binding. Post, pi. 8 ; § 56, pi. 3, 7. 
 
 * Illinois River Railway v. Zimmer, 20 111. 654; Same v. Casey, ib. 
 
 * Revere r. Boston Copper Co., 15 Pick. 351. This case, although put mainly 
 upon the ground of plaintiff's rights being independent of the law of the asso- 
 ciation, yet incidentally involves the right of the majority of the corporators to 
 
 •73
 
 74 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 8. But the English cases seem to suppose, that it is incident 
 to every business corporation to obtain such extension and enlarge- 
 ment of its corporate powers, as the course of trade, and enterprise, 
 and altered circumstances, shall render necessary or desirable, not 
 altogether inconsistent with its original creation.''^ 
 
 * 9. Hence it was held that a court of equity will not, at the in- 
 stance of a shareholder, restrain a joint-stock incorporated com- 
 pany, whose acts of incorporation prescribe its constitution and 
 objects, from applying, in its corporate capacity, to parliament, and 
 from using its corporate seal and resources, to obtain the sanction 
 of the legislature, to the remodelling its constitution, 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 applying 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- 
 change its constitutional law. See also Von Schmidt v. Huntington, 1 Cal. 55, 
 and Kean v. Johnson, 1 Stockton, Ch. 401, where it is held, that where the 
 charter is granted for a limited time, it must continue in operation till the term 
 expires, unless, perhaps, in case of serious loss, or with the consent of all the cor- 
 porators, and others having any legal interest in the question. The same rule 
 was recently declared in Louisiana. Lodge No. I. v. Lodge No. I., 16 La. Ann. 
 53. And it was here considered, that a resolution passed by the majoritj' of the 
 members of a corporation donating aU the property of the company to a new 
 corporation of which the members voting are also members, and the delivery of 
 the same to such corporation in pursuance of such resolution, is void. 
 
 '' 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 express prohibition is 
 inserted in their charter. But the more common implication in this country 
 certainly is, that the original shareholders are not bound by any such alteration, 
 unless such power exists, in terms, in the original charter. 
 
 * Cunliff ». Manchester & Bolton Canal Co., 2 Russ. & My. 480, in note. But 
 it is here stated, that a few days afterwards, one Maudsley filed a bill against the 
 same company and for a similar object. The cause was heard on its merits, and 
 the suit dismissed with costs. Any act beyond the scope of the constitution of 
 the company requires the consent of all the members. Burmester v. Norris, 6 
 Exch. 796 ; 8. c. 8 Eng. L. & Eq. 487. 
 
 9 Post, §§ 56, 181, 212. 
 
 •74 •
 
 § 20. ORDINARY CORPORATE POWERS. 75 
 
 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- 
 holders knew of the purpose of the directors to apply the funds 
 of the company to the constniction 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 re- 
 quisite 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 directors 
 and the majority of the company may be restrained from employing 
 money, subscribed for one purpose, for another, however advan- 
 tageous," " and although this is the law as to joint-stock com- 
 panies, unincorporated and unconnected with public duties or 
 interests, it has not been applied to corporate companies for a pub- 
 lic undertaking, involving public interests and public duties under 
 the sanction of parliament. In such cases the court of chancery has 
 
 >° Graham r. Birkenhead, &c. Railway, 2 Mac. & 6. 146 ; s. c. 6 Eng. L. & 
 Eq. 132; Beman c. Rafford, 1 Sim. N. S. 650. Lord CranwoHh says, "This 
 court will not allow any of the shareholders to say, that they are not interested in 
 preventing the law of their company from being violated." Ffooks r. London & 
 S. "W. R., 1 Sm. & G. 142; 8. c. 19 Eng. L. & Eq. 7. But one creditor of a 
 corporation cannot, by injunction, restrain another creditor of the same grade 
 firom obtaining prior papnent by virtue of an execution issued upon a prior 
 judgment. Gravenstine's Appeal, 49 Penn. St. 310. 
 
 » Ffooks r. London & S. W. R. 1 Sm. & G. 142 ; 8. c. 19 Eng. L. & Eq. 7, 
 opinion of Stuart, V. C. and cases cited. 
 
 '* Ffooks r. London & S. W. R. supra. 
 
 • *15
 
 76 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 permitted the use of the corporate seal, and the moneys of the 
 company, to obtain the sanction of parliament to purposes ma- 
 terially altering the interests of the shareholders, according to the 
 contract inter se. This was done in the case of Stevens v. South 
 Devon Railway Company," ^^ The learned judge therefore con- 
 cludes, that, although the principle first stated by him may apply 
 to the case of public railway companies in general, " it must be 
 taken to be subject to many qualifications, and requiring much 
 caution and consideration " in its application. 
 
 14. The same learned judge further adds, upon the important 
 subject of such proceeding being taken by one in the interest of a 
 rival company : " It has been suggested that this suit is constituted 
 to serve the purposes of another set of shareholders. If * it had 
 been established that the real object of seeking this injunction had 
 been to serve the interests of a rival company, I should have con- 
 sidered that a circumstance of great importance in determining 
 the rights of the plaintiffs to any relief. No doubt it has been held 
 in several cases, that the mere fact that the plaintiffs are share- 
 holders in a rival company is no reason for the court in a proper 
 case refusing its aid, to prevent the violation of contracts. But 
 when the fact is established, that, under the pretence of serving 
 the interest of one company, the shareholders in a rival company, 
 by purchasing shares for the purpose of litigation, can make this 
 court the instrument of defeating or injuring the company into 
 which they so intrude themselves, in order to raise questions and 
 disputes on matters as to which all the other members of the com- 
 pany may be agreed, I caimot 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 afiecting the condition of the contracting 
 parties, and the origin and situation of their. rights in relation 
 to the subject-matter of the contract, deserve great consideration. 
 
 15. But in a recent English case ^* it was determined by Vice- 
 Chancellor Wood, that the court will not, upon the application of 
 the minority of the members of a corporation, interfere with a 
 resolution of the company voluntarily to wind up its concerns 
 unless the resolution was obtained by fraud, or by overbearing 
 conduct, or by improper influences. 
 
 » 13 Beavan, 48 ; s. c. 12 Eng. L. & Eq. 229 ; s. c. 9 Hare, 313. 
 " Se The Imperial Mercantile Credit Association, 12 Jur. N, S. 736. 
 *76
 
 ^21. 
 
 MEETINGS OP COMPANY. 
 
 77 
 
 • SECTION IV. 
 
 Meetings of Company. 
 
 1. MeHings, tpecial and general. 
 
 2. Special, must be notified as required. 
 
 8. Special and important matters, named in 
 
 notice. 
 4. Notice of general meetings need not name 
 
 business, 
 6. Adjourned meting, still the same. 
 
 6. Company acts bt/ meetings, by directors, by 
 
 agents. 
 
 7. Courts presume meetings held at proper 
 
 place. 
 
 8. Every shareholder may vote, but not by 
 
 proxy. 
 
 § 21. 1. By the English statutes meetings of railway compa- 
 nies are distinguished as " ordinary " and " extraordinary." That 
 distinction, in this country, is expressed by the term, general and 
 special. Ordinary meetings are the annual and semi-annual meet- 
 ings of the company, and such others as are held at stated times 
 and for defined objects, according to the provisions of the charter 
 and by-laws ; and extraordinary meetings are such as are held by 
 special call of the directors, or other officer, whose duty it is made 
 to call meetings of the company, in certain contingencies usually 
 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 gen- 
 eral purpose and object of the call. But it is said this is not 
 indispensable, when it is for the transaction of ordinary business, 
 and that giving security for the debt of a bank, by mortgage of 
 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 
 
 » 8 «& 9 Vict. c. 16, § G6. 
 
 ' Wiggin V. Freewill Baptist Society, 8 Met. 801. This view seems to be 
 countenanced by Lord Kenyan, in Rex v. Faversbam, 8 T. R. 862 ; Rex v. 
 May, 5 Burrow, 2681 ; The King r. Langhom, 4 Ad. & Ellis, 538. See, also, 
 cases cited in the argument of this case> But all the cases agree, that if the 
 members attend even without notice, it is suflicicnt. The King v. Theodorick, 
 8 Fast, 543. A meeting may be general for most purposes, and also special for 
 a particular purpose ; Cutbill r. Kingdom, 1 Fxch. 494. 
 
 ' Savings Bank r. Davis, 8 Conn. 191. 
 
 • 77, 78
 
 78 PROCEEDINGS UNDER THE CHAETER. CH. IV. 
 
 appointed for the transaction of business of this character, or of 
 all business of the corporation, the notice must state the business, 
 or the action upon it will be held illegal and void> 
 
 4. But, as a general rule, it may be safely affirmed, perhaps, 
 that in regard to general meetings of the company, which are for 
 the transaction of all business, no notice of the particular business 
 to be done is necessary.^ 
 
 And all the members of the corporation are presumed to have 
 notice of their stated meetings and are bound by the proceedings 
 at such meetings ; but there is no presumption that they know 
 what is done at such meetings, so as to affect them with notice of 
 any thing done there contemplating future action at any other time 
 than the stated meetings.^ 
 
 5. The adjournment of a general meeting is not a special meet- 
 ing, but the mere continuance of the general meeting, and requires 
 no notice of the business to be transacted.^ 
 
 But if the adjourned meeting be for the transaction of any other 
 business than the mere completion of the unfinished business of 
 the stated or special meeting, as the case may be ; and more 
 especially, where the business is of a character which could * not 
 have been legally transacted at the former meeting, it will not 
 afford any warrant for its legality, that it is done at an adjourned 
 meeting from one legally constituted originally." But the publi- 
 city and general notoriety of a transaction may be sufficient 
 
 * Rex V. Doncaster, 2 Burr. 738 ; Angell & Ames, §§ 488-496. In the 
 case of Zabriskie v. C. C. & C. Railw., before the District Court for the North- 
 em District of Ohio, 10 Am. Railw. Times, No. 15, 8. c. affirmed 23 How. 
 (U. S.) 381 ; 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 
 the 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 commu- 
 nicate with their agents, or proxies, and also to enable the resident 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. 
 
 * Warner v. Mower, 11 Vt. 385 ; Wills v. Murray, 4 Exch. 843. 
 « The People v. Batchelor, 22 N. Y. 128. 
 
 "> People V. Batchelor, 22 N. Y. 128 ; Scadding v. Lorant, 5 Eng. L. & Eq. 
 16. See Smith v. Law, 21 N. Y. 296. 
 
 *79
 
 § 20. MEETINGS OP COMPANY. 79 
 
 ground for presuming knowledge of the appointment of one to a 
 corporate office, even to the extent of subjecting such corporator 
 to a penalty for non-acceptance.^ 
 
 6. By the English statutes, railways may act in either of three 
 modes : First, By the general assembly of the shareliolders, which, 
 as between them and the directors and other agents of the com- 
 pany, has supreme control of its affairs : Second, By its directors : 
 Third, By its duly constituted agents.® The same general princi- 
 ple is applicable in this country, and at common law. 
 
 7. And where the by-laws require the meetings of the company 
 to be held at a particular place, as the counting-house of the 
 company, and the record, or evidence, does not show that the 
 meetings were held at a different place, it will be presumed they 
 were held at the place designated.^® 
 
 8. Every shareholder is, ordinarily, entitled to participate in the 
 meetings of members of the corporation duly called, and to vote 
 upon all his shares, according to the mode prescribed in the char- 
 ter and by-laws of the company, and in conformity with the gen- 
 eral laws of the state. But it seems not well settled whether a 
 by-law of the corporation will be sufficient to entitle the members 
 to vote by proxy, and whether some legislative sanction is not 
 requisite to that effect." But where the charter provided that 
 " each person being present at an election shall be entitled to 
 vote," it was held to mean actual presence, and votes by proxy 
 were properly excluded.^ 
 
 ' City of London v. Vanacre, 6 Mod. 438. 
 
 » Walford on Railways, 70. 
 
 »' McDaniels r. Flower Brook Man. Co., 22 Vt. 274. 
 
 " State V. Tudor, 6 Day, 329 ; where, in mere business corporations, it was 
 considered that a by-law was sufficient to give the power to vote by proxy. But 
 in Taylor v. Griswold, 2 Green, 222, the contrary opinion is maintained. See 
 also, 2 Kent, Coram, 294. There seems no question that in public and elee- 
 mosynary corporations the members must attend in person. 
 
 " Broom », Coram. 2 Phila. 166.
 
 80 
 
 PROCEEDINGS UNDER THE CHARTER. 
 
 CH. IV. 
 
 ♦ SECTION V. 
 
 Election of Directors. 
 
 1. Should be at general meeting, or upon spe- 
 
 cial notice. 
 
 2. Shareholders may restrain their authority. 
 
 3. Company bound by act of directors, de 
 
 facto. 
 
 4. Act of officer de facto, binds third persons. 
 
 § 22. 1. The election of directors is regarded as more important 
 to the interests of the company than most other business, inas- 
 much as, when duly elected, they hold office for a considerable 
 term, and have all the powers of the corporation in regard to the 
 transaction of its ordinary business, unless specially restrained. 
 They should, therefore, be elected at the regular meetings of the 
 company, and even vacancies should not properly be filled at 
 special meetings, unless special notice of that particular business 
 had been given according to the laws of the company, which 
 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- 
 
 ' But where the charter vests the control of the concerns of the company in 
 a select board or body, the shareholders at large have no right to interfere with 
 the doings of these, their charter agents. Commonwealth v. Trustees of St. 
 Mary's Church, 6 Serg. & R. 508 ; Dana v. Bank of the United States, 5 Watts 
 & Serg. 223, 247 ; Conro v. Port Henry Iron Co., 12 Barb. 27. And courts 
 are always reluctant to interfere with the conduct of directors of a corporation, 
 even at the instance of a majority of the shareholders, and ordinarily will not, 
 when such directors have acted in good faith. State v. The Bank of Louisiana, 
 6 La. 745. 
 
 But in Scott V. Eagle Fire Co., 7 Paige, 198, it was held, that the directors 
 of a joint-stock corporation may be compelled to divide the actual surplus profits 
 of the company among its stockholders from time to time, if they neglect or 
 refuse to do so, without any reasonable cause. But if they abuse their power to 
 make dividends of surplus profits, by dividing the unearned premiums received 
 by them, without leaving a sufficient fund, exclusive of the capital stock, to 
 satisfy the probable losses upon risks assumed by the company, it seems they 
 will be personally liable to such creditors of the company, if, in consequence of 
 extraordinary losses, the company should become insolvent so as to be unable 
 to pay its debts. 
 
 * 80, 81
 
 § 22. ELECTION OP DIRECTORS. 81 
 
 iug to the requircmeuts of Uie 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.* 
 Nor can the validity of the acts of the directors be collaterally 
 called in question on the ground of irregularity in the notice of 
 the meeting at which they were elected.* 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 
 
 " Matter of Long Island Railroad, 19 Wend. 37; 8. c. 2 Am. Railw. C. 
 458. 
 
 ' Sampson r. Bowdoinbam Steam Mill Co., 36 Maine, 78. Where persons 
 have acted as directors of a railway company, the court will not summarily 
 inquire into the validity of their appointment. Tindal, C. J., said: "If the 
 shareholders allow parties to act as directors, it may be they have no right to 
 tarn 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, 5 De 6. Mac. & G. 
 465 ; 8. c. 35 Eng. L. & £q. 178, one registered insurance compahy agreed to sell 
 its business to another registered insurance company, and a deed of assignment 
 was accordingly executed, whereby the latter company covenanted to indemnify 
 the former against all claims. After the business had been carried on for some 
 time by the purchasing company, that company failed, and both companies were 
 wound up under the Winding-up Acts. On the official manager of the selling 
 company tendering a proof against the purchasing company, in respect of claims 
 satisfied by the selling company, one part of the deed of assignment was pro- 
 duced having affixed to it the seal of the purchasing company, but another part, 
 alleged to have been executed by the selling company, was not forthcoming. 
 
 Held, first, that ailer 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 con- 
 tract, every presumption must be made in favor of its validity. 
 
 Thirdly, that if all the proceedings on the part of the directors of the 
 purchasing company, with reference to the purchase, had not been in strict 
 accordance with their own deed of settlement, still, if the contract with the 
 other company was the means of the purchasing company coming into existence, 
 they could not act in contravention of that contract. 
 
 * Chamberlain c. Painesville & Hudson Railw. Co., 15 Ohio N. S. 226. 
 
 » Walford on Railw. 71, 72 ; Thames Haven R. r. Rose, 4 M. & G. 662. 
 
 6 •82
 
 82 
 
 PROCEEDINGS UNDER THE CHARTER. 
 
 CH. IV. 
 
 concerned, it is suJSicient that the inspectors were elected and en- 
 tered upon the duties of the office, and became officers de facto. ^ 
 
 .SECTION VI. 
 Meetings of Directors. 
 
 1. AU should be notified to attend. 
 
 2. Adjourned meeting still the same. 
 8. Board not required to be kept full. 
 
 4. Usurpations tried by shareholders or courts. 
 
 5. Usage will often excuse irregularities. 
 
 6. Decisions of majority valid. 
 
 n. 8. Records of Proceedings, evidence. 
 
 7. The action must be taken at a formal meet- 
 
 ing. 
 
 § 23. 1. As a general rule, where corporate powers are vested 
 in certain members, whether the whole body of the shareholders, 
 the directors, or a committee, and the general laws of the state, the 
 charter of the company, or the corporate statutes, contain no 
 directions in regard to assembling the body, it is requisite to give 
 due legal notice to each member. Accordingly, when by the rules 
 of a friendly society the power of electing officers was vested in a 
 committee of eleven, at a meeting of the committee, where ten of 
 the members were present, the eleventh not having received notice, 
 and the defendant was removed from the office of treasurer, and 
 the plaintiff appointed in his stead by a majority of votes, it was 
 held that the election was void, although the absent committee-man 
 had, for a considerable period, absented himself from the meetings, 
 and intimated an intention not to attend any more, and although 
 the defendant himself had demanded a poll at the election, and 
 was now objecting to its validity.^ 
 
 * Matter of Mohawk & Hudson River Railw. 19 Wend. 135 ; s. c. 2 Am. 
 Railw. C. 460. 
 
 ' Roberts v. Price, 4 C. B. 231. In the course of the argument, Cress^cell, J. 
 referred to The King v. Langhorn, 4 Ad. & Ellis, 538, and in giving his opinion 
 said : " This case seems to me directly applicable." In a late case in the House 
 of Lords, Smyth v. Darley, 2 H. L. Cases, 789, 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 
 R. V. Rushout, 5 De G. & S. 290 ; a. c. 10 Eng. L. & Eq. 72.
 
 § 23. MEETINGS OF DIEECTORS. 83 
 
 • 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 either time or place, or of the business to be 
 transacted .2 
 
 3. But where the charter of a railway provides that its busi- 
 ness shall be carried on under the management of twelve directors, 
 to be elected in a particular mode, pointed out, and that where 
 vacancies shall occur it shall be lawful for the remaining directors 
 to fill them, it was held that this provision did not require that 
 the board should be always full ; but was merely directory, as to 
 the mode of filling vacancies.* 
 
 4. Where it is complained that the existing board of directors 
 have usurped their places in violation of the wishes of the ma- 
 jority of the shareholders, the question should be referred to a 
 meeting of such shareholders,* or it may be tried upon a quo war- 
 ranto.^ 
 
 6. But in practice, in this country, it is believed that most of 
 the routine business of railway and other joint-stock commercial 
 companies is transacted through the agency of sub-committees of 
 the board of directors, and that, where the voice of the board is 
 taken it is more commonly done without any formal assembly of 
 the board. And long-established usage as to particular companies, 
 in regard to the mode of conducting an election, has been held of 
 binding force in regard to such company.^ 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 analo- 
 gous subjects, or the results of a priori reasoning. 
 
 6. The decision of a majority of the board of directors is usually 
 
 • Ante, % 21. Wills r. Murray, 4 Exch. 843. But see Reg. r. Grimshaw, 10 
 Q. B. 747. 
 
 ^ Thames Haven Dock and Railway Co. v. Rose, 4 Man. & 6r. 552 ; ante, 
 § 21 ; Wills V. Murray, 4. Exch. 843. 
 
 • Post, § 211. 
 » Post, § 166. 
 
 • Attorney-General c. 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 transac- 
 tion proved disadvantageous, when they were in a condition to take the benefit 
 of it if it proved successful. 
 
 •83,84
 
 84 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 regarded as binding upon the company ; and the assembling of a 
 majority will be treated as a legal quorum for the transaction of 
 business, unless the charter or by-laws contain some specific pro- 
 vision upon the subject ; '^ and notice to the absent directors will 
 be presumed unless the contrary appears. The general rule upon 
 this subject is, that the act of a majority of a body of public officers 
 is binding ; but that if they he of private appointment^ all must act, 
 and, in general, all must concur, unless there is some provision to 
 accept the decision of a majority. In this respect, railway direct- 
 ors certainly come under the former head. The proper distinc- 
 tion upon the general subject seems to be, that where the matter 
 is of public concern, and of an executive or ministerial character, 
 the act of the majority of the board will suffice, although the 
 others are not consulted. But where the function is judicial, 
 involving a determination of some definite question, the whole 
 body must be assembled and act together. If the matter is of pub- 
 lic concern, the decision of a majority will bind ; but in private 
 concerns, as arbitrations, all must concur.^ 
 
 ' Cram v. Bangor House, 3 Fairfield, 354 ; Sargent v. "Webster, 13 Met. 497 ; 
 2 Kent, Comm. 293 and notes ; The King' ». Whitaker, 9 B. «& C. 648 ; Com- 
 monwealth V. Canal Commissioners, 9 Watts, 466 ; Ex parte Willcocks, 7 Cowen, 
 402 ; Field v. Field, 9 Wend. 394, 403, where it is held, that in regard to the 
 body of the stockholders, any number who attend is a quorum for doing business, 
 if the others be properly summoned. But as to the directors, it is requisite that 
 a majority attend. 2 Kent, Comm. 293 ; Cahill v. Kalamazoo Ins. Co., 2 Doug. 
 (Mich.) 124; Holcomb v. N. H. D. B. Co., 1 Stockton, Ch. 457. 
 
 8 Green v. Miller, 6 Johns. 39; The King v. Great Marlow, 2 East, 244; 
 Battye v. Gresley, 8 East, 319 ; Rex v. Cobi St. Aldwins, Burr. Settl. Cas. 136 ; 
 The King v. Winwick, 8 T. R. 454. But it has never been held that the entire 
 board of directors must assemble ; it is enough if all be summoned, and a 
 majority attend. See note 7. Edgerly r. Emerson, 3 Foster, 555. If the 
 doings of directors are not recorded, they may be proved by parol. lb. The 
 president has a right to vote upon all questions to be determined by the presi- 
 dent and directors. McCuUough 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, 124. As to the effect of the records of the doings of the corporation kept 
 by their own officer, being evidence, but not indispensable evidence of such facts, 
 when proved by third parties, see Hudson r. Carman, 41 Me. 84 ; Coffin r. Col- 
 lins, 17 Id. 440; Penobscot Railw. r. White, 41 Me. 612. See, also, Ind. & 
 Cin. R. V. Jewett, 16 Ind. 273.
 
 §24. 
 
 QUALIFICATION OP DIBECT0R8. 
 
 85 
 
 * 7. But where the authority of a quorum of directors is required 
 for the execution of a bond, it must be given at a formal meeting, 
 whereat the members of the quorum are all present at once.® 
 
 SECTION VII. 
 
 Qualificaiion of Directors. 
 
 1. One cannot be a contractor and director. 
 
 2. May be their banixr and director. 
 
 8. Matf be director bjf virtue of stock mort- 
 gage. 
 
 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 con- 
 tract, 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 contract is not thereby 
 rendered void, but the office of director is vacated.^ 
 
 * 2. But it has been held, that being a member of a banking com- 
 pany, 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, will not disqualify one from acting as 
 director, but that this clause only applied to such contracts 
 as were made with the company in the prosecution of its enter- 
 prise.^ 
 
 8. 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 volun- 
 
 » D'Arcy v. Tamar, K. & C. Railw., 4 H. & C. 463 ; 8. c. 12 Jur. N. S. 648. 
 
 « 8 & 9 Vict. c. 16. 
 
 » Foster v. Oxford W. & W. R., 13 C. B. 200; 8. C. 14 Eng. L. & Eq. 806. 
 This case is discussed in a later case in the House of Lords. Aberdeen Rail- 
 way V. Blakie, 1 McQueen, H. & L. 461. 
 
 » Sheffield, Ash. & Man. RaUw. v. Woodcock, 7 M. & W. 674; 8. c. 2 RaUw. 
 C. 622. 
 
 * Gumming r. Prescott, 2 Y. & CoU. Eq. Exch. 488. 
 
 •86,86
 
 86 PROCEEDINGS UNDER THE CHARTER. CH. IV. 
 
 tarily ceasing to act as such, will put an end to his character of 
 director, unless it be so provided in the deed of settlement.^ 
 
 5. If shareholders are dissatisfied with the board of directors not 
 being full, that may be a ground of applying for a mandamus to 
 compel the company to complete the number.^ 
 
 * Phelps r. Lyle, 10 Ad. & Ellis, 113. But if one abscond from his creditors 
 the office is thereby vacated. Wilson r. Wilson, 6 Scott, 540. 
 
 * Thames Haven Dock & Railway v. Rose, 3 Railw. C. 177, s. c. 4 Man. 
 & Gr. 552. Maule, J. Mozley v. Alston, 1 Phillips, 790. By the Lord Chan- 
 cellor.
 
 § 25. PREROGATIVE FRANCHISES. 87 
 
 •CHAPTER V. 
 
 PREROGATIVE FRANCHISES. 
 
 1. Control of internal communication in a | 2. Such a grant confers potcert pertaining 
 state a prerogative fianchise. exdusively to sovereignty, as taking tolls, 
 
 I emd the right of eminent domain. 
 
 § 25. 1. Railways possess also many extraordinary powers or 
 franchises which partake more or less of the quality of sovereignty, 
 and which it is not competent for the legislature even to delegate to 
 ordinary corporations. These are sometimes called the preroga- 
 tive franchises of the corporation. They exist in banks, which 
 practically supply the currency of the country, or its representative, 
 and railways, which have already engrossed the chief business of 
 internal communication in this country, and almost throughout the 
 civilized world. And both currency and internal communication 
 between different portiohs of a state are exclusively the preroga- 
 tives of sovereignty. 
 
 2. In saying that it is not competent for the legislature to con- 
 fer prerogative franchises upon all corporations, nothing more is 
 intended than that these prerogative franchises do not appertain to 
 all the operations of business, and must therefore of necessity be 
 limited to those persons, whether natural or artificial, which are 
 occupied in matters of a sovereign or prerogative character, and 
 which thus render an equivalent for the franchises conferred.^ This 
 subject will be discussed more in detail under the titles of Tolls 
 and Eminent Domain. 
 
 ' State r. Boston, Concord, & Montreal R. Co., 25 Vt. 433, 442, 443. The 
 right to build and use a railway, and take tolls or fares, is a franchise of the 
 prerogative character, which no person can legally exercise without some special 
 grant of the legislature. But it is competent for the legislature to confer this 
 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 & Bank- 
 ing Co. e. Townsend, 24 Barb. 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. 
 
 •87
 
 88 BY-LAWS AND STATUTES. CH. VI. 
 
 ♦CHAPTER VI. 
 
 BY-LAWS AND STATUTES. 
 
 SECTION L 
 
 Power of mahing- By-Laws or Statutes. 
 
 1. May control conduct of passengers. ' 8. Public statutes control by-laws, 
 
 2. Must be reasonable and not against law. ' 9. Cannot impose penalty. 
 
 8. Power may be implied, where n(A express. 10. Cannot refuse to be responsible/or baggage. 
 
 4. Nu required to be in any particular form 11. Statutes operate upon members from pro- 
 
 unless by special provision. mulgation ; upon others, from knowledge 
 
 6. Model code of by-laws framed by board of of the same. 
 
 trade in England. 12. Regulations, for accommodation of pas- 
 
 7. Company may demand higher fare if paid ! sengers, mttst yield to the right of others 
 
 in cars. ! to be carried. 
 
 § 26. 1. It is incident to all corporations to enact by-laws or 
 statutes for the control of its officers and agents, and to regulate 
 the conduct of its business generally. And in the case of 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.^ And the ques- 
 tion, whether reasonable or not, is to be determined by the jury 
 under instructions from the court, being a mixed question of 
 law and fact.^ But in a recent case in New Jersey ^ it was decided 
 
 » Elwood V. Bullock, 6 Q. B. 383 ; Calder Navigation Co. v. Pilling, 14 M. & 
 W. 76 ; Child v. Hudson Bay Co., 2 Peere Wnis. 207 ; Angell & Ames, c. 10; 
 2 Kent, Coram. 296 ; Davis v. Meeting H. in Lowell, 8 Met. 331. In a recent 
 case in Kentucky it is said the power of a corporation to make by-laws is limited 
 by the nature of the corporation and the laws of the country. It can make no 
 rule contrary to law, good morals, or public policy. Say re v. Louisville Union 
 Benevolent Association, 1 Duvall, 143. 
 
 « Day V. Owen, 5 Mich. 520. 
 
 ' Ayres v. Morris & Essex Railw. Co., 5 Dutcher, 393.' 
 •88
 
 § 26. POWER OP MAKING BY-LAWS OR STATUTES. 89 
 
 * that the question whether the regulation of a corporation affecting 
 third persons is reasonable is a question of fact ; but the validity 
 of a by-law of a corporation, which affects only its members, is a 
 question of law to be determined by the court. 
 
 The general powers of business corporations to enact by-laws 
 was extensively and learnedly discussed in a somewhat recent 
 case which passed through the Queen's Bench, the Exchequer 
 Chamber, and was finally determined in the House of Lords.* 
 The case turned mainly upon the reasonableness of the by-law, 
 which excluded any person who had become bankrupt or noto- 
 riously insolvent from becoming one of the governing body of the 
 company. The provision of the by-law was held entirely reasona- 
 ble ; but that having admitted the party to the office, he could not 
 be removed without formal proceeding upon notice and hearing. 
 And where one part of a by-law is reasonable it may stand, although 
 connected with another part which is not reasonable.^ 
 
 3. By-laws in violation of common rights 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 Expressum facit cessare taciturn.' 
 
 4. By-laws, unless by the express provisions of the charter or 
 general statutes of the state, are not, in this country, required to 
 be enacted or promulgated in any particular form, but only to be 
 enacted at some legal meeting of the corporation. But in England 
 it is generally considered requisite that by-laws be made under the 
 common seal of the corporation, and that in regard to railways, 
 by-laws affecting those who are not officers or servants * of the com- 
 pany should have tlie 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 
 
 * Reg V. Saddlers' Company, 6 Jur. N. S. 1118; s*. c. 7 id. 138; 8. c. 9 id. 
 1081 ; 8. c. 4 B. & S. 1059 ; s. c. 10 Ho. Ld«. Cas. 404. 
 
 » Reg. V. Lundie, 8 Jur. N. S. 640. 
 
 • Hayden v. Noyes, 6 Conn. 391 ; Adlcy r. The Whitstable Co., 17 Vcsey, 
 315 ; Clark's case, 6 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. 
 
 » Child r. Hudson B. Co., 2 Peere Wms. 207, 
 « Walford, 249 ; Hodges, 662, 663. 
 
 •89,90
 
 90 BY-LAWS AND STATUTES. CH. VI. 
 
 that railway companies may make by-laws under their common 
 seal " for the purpose of regulating the conduct of the officers and 
 servants of the company, and for the due management of the affairs 
 of the company in all respects whatever." And they have power 
 to enforce such by-laws, by penalty, and by imprisonment for the 
 collection of such penalty. But a by-law requiring a passenger, 
 not producing or delivering up his ticket, to pay fare from the place 
 of the departure of the train, was held not to be a by-law, impos- 
 ing a penalty, and therefore not justifying the imprisonment of 
 such passenger.^ 
 
 6. The statute requires a copy of such by-laws to be furnished 
 every officer and servant of the company, liable to be affected 
 thereby. The code of by-laws framed by the Board of Trade in 
 England for the regulation of travel by railway, and generally 
 adopted there, is certainly very judicious ; and if some similar one 
 could be adopted and enforced here, it would accomplish very 
 much towards security, sobriety, and comfort, in railway travelling, 
 and tend to exempt the companies from much annoyance and very 
 often from loss.^^ 
 
 » Chilton V. London & Croydon R., 16 M. & W. 212; s. c. 5 Railw. C. 4. 
 Parke, B. says : " This is not the case of a penalty, but the mere demand of a 
 fare. Any passenger who does not, at the end of his journey, produce his ticket, 
 may have broken his contract with the company, and be liable to pay his full fare 
 from the most remote terminus. But this is not a penalty or forfeiture, under 
 section 163, giving a right to arrest for non-payment of a penalty or forfeiture." 
 See, also, the opinion of Rolfe, B., from which it appears that the by-law was 
 considered valid. 
 
 '" Hodges, 453. " 1. No passenger will be allowed to take his seat in or upon 
 any of the company's carriages, or to travel therein upon the said railway, with- 
 out having first booked his place and paid his fare. Each passenger booking 
 his place will be furnished with a ticket, which he is to show when required by 
 the guard in charge of the train, and to deliver up before leaving the company's 
 premises, upon demand, to the guard or other servant of the company duly au- 
 thorized to collect tickets. Each passenger not producing or delivering up his 
 ticket will be required to pay the fare from the place whence the train originally 
 started. 
 
 "2. Passengers at the road stations will only be booked conditionally, that is 
 to say, in case there should be room in the train for which they are booked ; in 
 case there shall not be room for all the passengers booked, those booked for the 
 longest distance shall have the preference ; and those booked for the same dis- 
 tance shall have priority according to the order in which they are booked. 
 
 " 3. Every person attempting to defraud the company, by riding in or upon 
 any of the company's carriages, without having previously, paid his fare, or by 
 riding in or upon a carriage of a higher class than t}iat for which he has booked
 
 § 26. POWER OP MAKING BY-LAWS OR STATUTES. 91 
 
 * 7. Ill a recent case in Vermont, it was held, that railway com- 
 panies have the power to make and enforce all reasonable regula- 
 tions in regard to the conduct of passengers, and to discriminate 
 between fares paid in the cars and at the stations, and to remove 
 all persons from their cars who persist in disregarding such regula- 
 tions, 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 remov- 
 ing such persons at other points.^^ And where one refuses to pay 
 faro, and the train is stopped for the purpose of putting him oflF 
 the train, at a dwelling-house, as by the statute of New York is 
 
 his place, or by continuing his journey in or upon any of the company's carriages 
 beyond the destination for which he has paid his fare, or by attempting in any 
 other manner whatever to evade the payment of his fare, is hereby subjected to 
 a penalty not exceeding forty shillings. 
 
 " 4. Smoking is strictly prohibited both in and upon the carriages, and in the 
 company's stations. 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 incur- 
 ring a penalty not exceeding forty shillings, be immediately, or, if travelling, 
 at the first opportunity, removed from the company's premises, and forfeit his 
 fare. 
 
 "5. Any person found in the company's carriages or stations in a state of 
 intoxication, or committing any nuisance, or otherwise wilfully interfering with 
 the comfort of other passengers, and every person obstructing any of the com- 
 pany's officers in the discharge of their duty, is hereby subjected to a penalty 
 not exceeding forty shillings, and shall immediately, or, if travelling, at the 
 first opportunity, be removed from the company's premises and forfeit his fare. 
 
 " 6. Any passenger cutting the linings, removing or defacing the number- 
 plates, breaking the windows, or otherwise wilfully damaging or injuring any of 
 the company's carriages, shall forfeit and pay a sum not exceeding £5 in addi- 
 tion to the amount of damage done." 
 
 ^^ Note. — Persons wilfully obstructing the company's officers, in cases where 
 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 
 payment." 
 
 " Stiiphin V. Smith, 29 Vt. 160; Chicago, Burlington & Quincy R. ». Parks, 
 18 HI. 460. 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. 
 Hiiliard v. Goold, 34 N. H. 230, post, § 28, n. 17. Post, § 160. 
 
 •91,92
 
 92 BY-LAWS AND STATUTES. CH. VI. 
 
 allowed, the right of the conductor is not affected by a subsequent 
 offer to pay fare.^ So, too, one may be ejected from the cars by 
 the conductor for disorderly conduct, and in justification, it ie com- 
 petent to prove any improper conduct during the entire passage, 
 and this cannot be controverted by general evidence of the good 
 reputation of the person for sobriety. And one may be expelled, 
 also, for refusing to surrender his ticket to the conductor on 
 request, in conformity with the general regulations of the com- 
 pany.^3 
 
 9. But it has been held, that a general power to make by-laws 
 for the regulation of the use of a canal, will not justify the pro- 
 prietors in closing the navigation of the canal on Sundays,^* nor 
 in making by-laws subjecting the shares to forfeiture for non-pay- 
 ment of calls, unless that power is expressly given by the charter 
 or by statute. ^^ 
 
 10. And a by-law declaring that the company would not be 
 responsible for a passenger's baggage, unless booked and the car- 
 riage paid, is bad, as inconsistent with the general law, allowing 
 railway passengers to carry a certain amount and kind of bag- 
 gage.i^ 
 
 *11. The members of a joint-stock company are affected by all 
 binding statutes of the corporation from the time of their enact- 
 ment, without any formal notice of their existence. And all per- 
 sons legally affected by such statutes, rules, or by-laws of the 
 corporation, must conform to their requirements from the time 
 they become aware of their existence. ^'^ 
 
 12. Regulations as to the accommodation of passengers must 
 yield to the rights of others to be carried, and the accommodation 
 of passengers during the transit is subject to such general rules 
 
 » People V. Jillson, 3 Parker, C. 234. 
 
 " People V. Caryl, 3 Parker, C. 326. 
 
 " Calder Nav. Co. v. Pilling, 14 M. & W. 76 ; 8. c. 3 Railw. C. 735. But it 
 is questionable whether this case is maintainable, in this country, upon any such 
 grounds. 
 
 '* Matter of Long Island Railw. 19 Wend. 37 ; 8. c. 2 Am. Railw. C. 453. 
 
 »« Williams v. Great Western Railway, 10 Exch. 15 ; s. c. 28 Eng. L. & Eq. 
 439. But it seems somewhat questionable, whether the principle of this decision 
 can ultimately be maintained. It seems to be no reasonable abridgment of the 
 right of a passenger to carry a certain weight and kind of baggage, to require it 
 to be booked and carriage paid. 
 
 " Woodfin p. Ins. Co., 6 Jones' Law, 658. 
 *93
 
 §27. 
 
 BY-LAWS REGULAXmO STATIONS AND GROUNDS. 
 
 93 
 
 and regulations as the company see fit to make, provided they are 
 reasonable, and whether that be so is to be determined by the 
 jury, under suitable instruction from the Court. But these rules 
 and regulations must have for their object the accommodation of 
 the passengers generally, and must be of a permanent nature, and 
 not made for a particular emergency or occasion.^^ 
 
 SECTION II, 
 
 By-Laws regulating the use of stations and grounds. 
 
 1. Mcaf exdude penotu wUhout business. 
 
 2. Maif regulate the conduct of others. 
 
 8. Superintendent may expel far violation of 
 
 rules. 
 4. Probable cause willjxtstijy. 
 6. In civil suit must prove violation of rules. 
 6. Regulation of stations and traffic by means 
 
 of injunction. Equality of charges. 
 
 7. Through trains will not be required unlest 
 
 reasonably necessary for public accom- 
 modation. 
 
 8. Mode of enforcing search uxirrants in 
 
 freight stations. 
 
 9. The right of railway companies to exclude 
 
 persons having no business, from their 
 stations. 
 
 § 27. 1. Questions have sometimes been made, in regard to the 
 right of railway companies to exclude persons from their grounds, 
 who had no business to transact there, connected with the com- 
 
 •* Day r. Owen, 5 Mich. 620. We are aware it is the practice in America, in 
 almost all modes of passenger transportation, to cram the carriages to the point 
 of suffocation almost, if passengers offer. But that is never attempted or allowed, 
 in England, or upon the Continent. Whenever the seats in a carriage, or the 
 accommodations in a boat, are all occupied, no more are allowed to enter the 
 carriage or the boat. This sometimes results in putting a first-class passenger 
 into a second-class carriage, and vice versa. But no man in Europe would ever 
 be allowed to take passage in a railway carriage, without having a seat. It 
 would be deemed the height of indiscretion, almost bordering on madness, to 
 attempt to transport passengers by railway, in a standing position. And even 
 in omnibuses no one can enter after the scats are filled. And in Baris a promi- 
 nent sign, " Completj^'' is exposed, the moment the carriage is fuU. 
 
 And it seems to us that a passenger-carrier who is supplied with sufficient 
 accommodations for all who ordinarily offer, had better be excused from carrying 
 any excess which might occasionally offer, than be compelled to carry them at 
 the expense of the discomfort and suffering of all the other passengers. We 
 think at least if railways took this ground, upon the score of safety merely, they 
 would not fail to be sustained by the courts, unless the excited rush of all, to go 
 by the first chance, is to override all other considerations, either of safety or 
 convenience. And we trust that public opinion here is more reasonable than 
 to make any such demands.
 
 94 BY-LAWS AND STATUTES. CH. VI. 
 
 pany, or to establish regulations or by-laws to govern the conduct 
 of such persons as had occasion to come there, and to exclude 
 others. But, upon the whole, there seems little ground to ques- 
 tion the right.^ 
 
 2. A railway corporation has authority to make and carry into 
 effect reasonable regulations for the conduct of all persons using 
 the railway, or resorting to its depots, without prescribing such 
 regulations by formal by-laws ; and the superintendent of a rail- 
 way station, appointed by the corporation, has the same authority, 
 by delegation. 
 
 3. Such superintendent may exclude from the stations and 
 grounds persons who persist in violating the reasonable regulations 
 prescribed for their conduct, and thereby annoy passengers, or 
 interrupt the officers and servants of the company in the discharge 
 of their duty. Thus, where the entrance of innkeepers and their 
 servants into a railway station to solicit passengers to * go to their 
 houses, produces such eflfect, they may be excluded from coming 
 within the station ; and if, after notice of a regulation to that 
 effect, they attempt to violate it, and after notice to leave, refuse 
 to do so, they may be forcibly expelled by the servants of the 
 company, using no unnecessary force. 
 
 4. And where an innkeeper had been accustomed to annoy pas- 
 sengers in. this manner, and had been informed by the superintend- 
 ent of the station that he must do so no more, but still continued 
 the practice, and afterwards obtained a ticket for a passage in the 
 cars, with the bona fide intention of entering the cars as a pas- 
 senger, and went into the station on his way to the cars, and the 
 superintendent, believing he had entered for his usual purpose, 
 ordered him to go out, and he did not exhibit his ticket, nor give 
 notice of his real intention, but pushed forward towards the cars, 
 and the superintendent, and his assistants removed him from the 
 station, using no unnecessary force, the removal is justifiable,^ and 
 not an indictable offence. ^ 
 
 6. But the superintendent cannot remove a person from the 
 station and grounds of the company, merely because such person, 
 in the judgment of the superintendent, and witliout proof of the 
 fact, violated the regulations of the company, or conducted himself 
 
 » Barker v. Midland Railw. 18 C. B. 46 ; 8. c. 36 Eng. L. & Eq. 253 ; Common- 
 wealth V. Power, 7 Met. 596 ; 8. c. 1 Am. Railw. C. 389 ; Hall r. Power, 12 Met. 482. 
 « Commonwealth r. Power, 7 Met. 696 ; Markham v. Brown, 8 N. H. 523. 
 •94
 
 § 27. BY-LAW8 REGULATING STATIONS AND GROUNDS. 95 
 
 offensively towards the superintendent.^ And it was said if such 
 person is removed for an alleged violation of the regulations of 
 
 ' Hall r. Power, 12 Met. 482, 8. c. 1 Am. Railw. C. 410. There is an ap- 
 parent discrepancy in the manner of stating the point of the decision of this case, 
 and that of The Commonwealth p. Power, 7 Met. 596, in regard to defendant 
 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 batter)', but the court evi- 
 dently intend no distinction in the cases. The law is well stated, by Shaw, Ch. 
 J., in the former case, 7 Met. 602 : "We are therefore of opinion, that upon the 
 evidence detailed in the judge's report, the jury should be instructed in a man- 
 ner somewhat 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 cor|)ora- 
 tion, both as owners and occupiers of real estate, and also as carriers of passen- 
 gers, incident 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 persons using the railroad, or having occasion to resort to the depots, for 
 any purpose : 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 plat- 
 forms 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, />m«dy«c»c, 
 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-compli- 
 ance with such regulations, the license is revocable, and may be revoked either 
 as to an individual, or as to a class of individuals, by actual or constructive no- 
 tice to that effect : That if the platform, as part of the depot, is appropriated to 
 and connected 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 passengers by the railroad, on their entrance into or exit from cars ; 
 that if, when urged with earnestness and importunity, it is an annoyance of pas- 
 sengers, and interruption 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 hindrance and interruption 
 to the officers and servants of the corporation, in the performance of their re- 
 spective 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 regulation, 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 superintend- 
 ent 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 batter^', but 
 is justifiable : that as to the circumstances of the present case, if the superin-
 
 96 BY-LAWS AND STATUTES. CH. TI. 
 
 the company, and it finally is shown that he did not in fact violate 
 any of such regulations, he may recover damages of the superin- 
 tendent of the station by whose order he was removed, notwith- 
 standing 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.^ 
 
 6. Under the English statute of 17 & 18 Vict., requiring among 
 other things that the superior courts of "Westminster Hall shall 
 enforce the duty of railway companies in regard to their traffic in 
 goods and passenger transportation, it was held a proper ground 
 for granting a rule to show cause why an mjunction should not 
 issue, that at one of the stations of the company, where an impor- 
 tant junction with other roads occurred, no covered place was 
 provided for the accommodation of the passengers.* But the 
 English Railway Traffic Act does not justify the courts in requir- 
 ing the companies to make the same charges, or to afford the same 
 facilities in regard to return tickets of a particular class, on one 
 of their branches, which they do upon others.* To constitute 
 inequality of charge, it must be for passing over the same line, or 
 the same part of the line.* 
 
 tendent 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 prohibi- 
 tion, and solicit passengers ; 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 no- 
 tice and revocation of license ; and that if he gave no notice of his intention to 
 enter the car as a passenger, 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 firom 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 justify his conduct, and make Power a wrong-doer, by 
 proving the possession of such a ticket, or of his intent to go in the cars to Rich- 
 mond, as a passenger ; and that he was to be considered as standing on the same 
 footing as if he had not possessed such ticket." 
 
 ♦ Caterham Railw. Co. r. London & Br. Railw. Co., 40 Eng. L. & Eq. 259. 
 6. c. 1 C. B. (N. S.) 410. 
 ♦95
 
 § 27. BY-LAWS AS" TO PASSENGERS. 97 
 
 7. To justify the courts in interfering to require the companies 
 constituting a continuous line to run through trains, it must be 
 shown that public convenience requires it, and that it can reason- 
 ably be done.* And they will not interfere in such cases where 
 there is another route where through tickets may be obtained, 
 although somewhat longer, no additional cost or serious loss of 
 time being thereby incurred, and there being no general complaint 
 of public inconvenience on that account.* 
 
 8. A railway freight station or warehouse kept by a railway 
 company for the storage of goods transported by them, is not 
 * exempt from the process of search warrant under the statute 
 against the keeping and sale of spirituous liquors ; nor is it necessary 
 tliat such warrant should be executed during tlie usual business 
 hours, or that the officer should consult the person who has charge 
 of the station.* 
 
 9. The Supreme Court of Vermont^ decided that prima facie 
 railway stations were open to all persons, but the company may 
 revoke such implied license to all, and exclude all except such as 
 have legitimate business there growing out of the operation of the 
 road or with the officers or employees of the company. They may 
 direct all others to leave the station, and, on refusal, may remove 
 them. It is the duty of such persons as desire to remain in such 
 stations, for the purpose of taking the cars or for any other lawful 
 purpose, to make known the same to the officers and employees of 
 the company on request. And if such is the regulation of the 
 company, one purposing to become a passenger may be required 
 to purchase his ticket in order to remain in the station. This 
 right of entering the station to take th(J cars can only be in con- 
 formity with the regulations of the company, and within a reason- 
 able time only before the departure of the trains, which will depend 
 upon the particular circumstances of each case. 
 
 It is not requisite the person should enter the station with the 
 purpose of taking passage : it is enough that he entertains the 
 purpose at the time he refuses to leave, and conducts himself in 
 other respects in conformity with the regulations of the company. 
 
 » Barret r. Great Northern Railw., 1 C. B. (N. S.) 423. 
 * Androscoggin Railw. Co. v. Richards, 41 Me. 233. 
 ' Harris c. Stevens, 81 Vt. 79. 
 
 7 *97
 
 98 
 
 BT-LAW8 AND STATUTES. 
 
 CH. VI. 
 
 SECTION III 
 
 By Laws as to Passengers. 
 
 1. By4aws as ttatutes. 
 
 2. As mere rules, or regulations. 
 
 . 8. Requiring larger fares for shorter distances. 
 
 4. Requiring passengers to go through in same 
 
 train. 
 
 5. Arrest of passenger by company's ser- 
 
 vants. 
 
 7. Company liable for act of servant. 
 
 8. By-law must be published. 
 
 9. Excluding merchandise from passenger- 
 
 trains. 
 
 10. Discrimination betuxen fares paid in cars 
 
 and at stations. 
 
 11. Liability for excess of force. 
 
 12. Officer de facto may enforce rules of 
 
 company. 
 
 13. Company cannot enforce rule against pas- 
 
 senger, when in fault themselves. The 
 consent of the company to tariff of fares 
 how presumed. 
 
 14. Discrimination on the ground of color. 
 
 § 28. 1. A distinction is sometimes made between by-laws, and 
 orders, or regulations, the former being supposed, in strictness 
 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.^ 
 * 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, 
 
 ' Shaw, Ch. J., in Commonwealth v. Power, 7 Met. 601. 
 
 » Chilton r. The London & Croydon Rail., 16 M. & W. 212 ; 8. c. 5 Railw. C. 
 4. It would seem from the opinion of Parke, B., that the by-law was regarded 
 as valid, 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 plaintifif, or any one, except for some oflfence against the act. 
 But all seemed to concur in the opinion that the passenger was bound to comply 
 with the regulation, or submit to the alternative. State v. Overton, 4 Zab. 435. 
 *98
 
 § 28. BY-LAWS AS TO PASSENGERS. 99 
 
 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 sub- 
 jected to a penalty not exceeding 40«., a passenger, desiring to go 
 to Diss station, where the fare was 7«., procured a ticket for Nor- 
 wich, a more distant station on the line, but where the fare was 
 but 5«., in consequence of competition, and entered the carriage 
 accordingly, and at Diss offered to surrender his ticket, but re- 
 fused to pay the difference in fare ; he was prosecuted for the pen- 
 alty, 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 person 
 who had entered the company's carriage without payment of 
 fare."* 
 
 * 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.* 
 
 * Reg. 0. Frere, 4 £1. & Bl. 598 ; s. c. 29 Eng. L. & £q. 143. 
 
 * But the argument of Lord Campbell on this point does not seem altogether 
 satisfactory. Whether the passenger had paid his fare depended upon the 
 validity of the by-law, and could not be fairly determined upon any other basis, 
 it would seem. Frere had paid fare to Norwich, but had not paid fare to Diss, 
 tmless 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 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. 
 
 » Cheney o. Boston & Maine Railw., 11 Met. 121 ; 8. c. 1 Am. Railw. C. 601. 
 In this case the passenger, when he bought his ticket, did not know of the regu- 
 lation, but was informed of it in the cars, and his money offered to be refunded, 
 deducting what he had travelled ; but he refused to make the arrangement, and 
 demanded his ticket, in exchange for the check which had been given him, 
 
 •99
 
 100 ,^ ^ ^ ^ BY-LAWS AND STATUTES. CH. VI. 
 
 * And where the ticket was marked " good only two days after 
 date," it was held to be evidence of a contract to that eflfect * be- 
 
 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 demanded, 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 was aware of the regulation or not, at the time he pur- 
 chased 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 a good deal discussed in a late case in New Jersey, and a 
 similar 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 con- 
 ductor, a ticket of the company, dated a few days before, and marked " good 
 for this trip only," but unmutilated, it being the practice of the conductors upon 
 that road, where a ticket had been used, to give it a mark ; 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 unmutilated, 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 coun- 
 try, and that such a ticket is understood, by the community generally, as en- 
 titling 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 
 understanding 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 ad the true construction of 
 the ticket. We are inclined to think they are sound. For it seems to us to 
 be contrary to the first principles of justice and equity, if the passenger 
 b, for sufiicient cause, delayed, or hindered from going, according to his ex- 
 pectation, at the time he pays his fare, 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 imused portion of it, deduct- 
 ♦ 100, 101
 
 § 28. BY-LAWS AS TO PASSENGERS. 101 
 
 tween the railway and the purchaser, and to be of no force after 
 the expiration of the term.* And where the regulations of the 
 
 ing, of course, any loss, or inconvenience 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 s 
 forfeiture, which no court of justice will favor, where the passenger is not in 
 fault. It seems, in principle, to be controlled 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 its not being done as stipulated. Post, § 113, pi. 4. 
 
 So, also, if the passenger refuse to surrender his ticket in exchange for the 
 conductor'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 
 Railway v. Page, 22 Barb. 130. But passengers are not obliged to surrender 
 their tickets without having a check in exchange by which they may be able to 
 show that they have paid fare. State e. Thompson, 20 N. H. 250. In Hibbard 
 V. New York & Erie Railway, 1 Smith, 465, New York Court of Appeals, it 
 was held, that a regulation, made by a railway 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 conductor 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 
 putting 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 of force. 
 
 And where a person purchases a railway ticket and starts upon the road, and 
 afterwards gives up his ticket to the conductor, he cannot, at an intennediate 
 station, by virtue of the subsisting contract, leave his seat in that train, and 
 subsequently claim a seat in another train. Cleveland, &c. Railw. v. Bartram, 
 11 Ohio, N. S. 467. 
 
 • Boston & Lowell Railway Co, r. Proctor, 1 Allen, 267 ; Shedd ». Troy & 
 Boston Railw., 40 Vt. 88. And the same doctrine is maintained in Johnson v. 
 Concord Railw., 46 N. H. 213, And it was here held that ignorance of the by- 
 laws or regulations of the company will make no difference. Passengers must 
 inquire if they desire to leam the regulations of the company. And the con-
 
 102 BY-LAWS AND STATUTES. CH. VI. 
 
 company allow the conductors, by making a memorandum on a 
 ticket, to permit the passenger to stay over and pass upon another 
 train, and one stayed over without procuring such memorandum, 
 it was held that another conductor, to whom he presented his 
 ticket in attempting to pass at a subsequent time, was justified in 
 demanding fare, and putting the passenger off the train upon his 
 refusal to pay.^ 
 
 5. In one case,^ where the plaintiff, upon the information of the 
 station-clerk that he might return at a given hour upon an ex- 
 cursion 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 28. 6d. 
 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 with 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, for which he alone was responsible. 
 
 * 6. But in a somewhat similar case,^ in the Exchequer Chamber, 
 
 ductors having waived them is no evidence of their repeal unless known to the 
 governing officers of the company. 
 ' Beebe v. Ayres, 28 Barb. 275. 
 
 * Roe V. Birkenhead, Lancashire, and Cheshire Junction Railw. , 7 Exch. 36 ; 
 7 Eng. L, & Eq. 546 ; s. c. 6 Railw. C. 795. And it has been held that a steam- 
 boat proprietor might exclude one from his boat, while employed in carrying pas- 
 sengers, if such person was the agent of a rival line of stages to that which, 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 found that the contract was bond 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 v. Coleman, 2 Sumner, 221. But a contract not to carry passengers 
 coming by a particular line will not excuse the carrier from carrying such pas- 
 senger. Bennet v. Dutton, 10 N. H. 481. 
 
 » The Eastern Counties Railway v. Broom, 6 Exch. 314 ; 2 Eng. L. & Eq. 
 406 ; 8. c. 6 Railw. C. 743. 
 • 102
 
 § 28. BT-LAWS AS TO PASSENGERS. 103 
 
 where the plaintiff below had been taken into custody by a railway 
 inspector of the defendants, charged with having no ticket, refus- 
 ing to pay fare, intoxication, and assaulting the inspector ; at the 
 hearing before the magistrate, the solicitor of the company attend- 
 ed to conduct the proceedings ; and it was held that such attend- 
 ance was no ratification by the company, it not appearing that the 
 facts were known to the company. These cases afford more lati- 
 tude for corporations to escape from liability for the acts of their 
 agents and servants, while employed in the prosecution of their 
 business, than is commonly allowed in this country.^** 
 
 7. But there are many cases in this country where it has been 
 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 al- 
 lowed one hundred and twelve pounds, and second-class passengers 
 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 plaintiflf 
 became a passenger, and gave his luggage to the * servants 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 star 
 tions, as required by the statute, or else brought it home to the 
 knowledge of the plaintiff. 
 
 9. A by-law excluding merchandise from the passenger-trains, 
 and confinuig its transportation to the freight-trains, was held 
 
 " Post, § 225 and notes. See, also, post, §§ 176, 183. And in Coppin v. 
 Braithwaite, 8 Jurist, 875, it is said to have been ruled by Bolfe, B., at Nisi 
 Prius, that a Carrier having received a pickpocket as a passenger on board his 
 vessel, and taken his fare, he cannpt put him on shore at any intermediate place, 
 so long as he is guilty of no impropriety. 
 
 " Philadelphia G. & N. Railw. Co. r. Wilt, 4 Wharton, 143 ; 8. c. 2 Am. 
 Railw. C. 254 ; Orr ». Bank of U. Sutes, 1 Ohio, 36 ; Foote r. City of Cincin- 
 nati, 9 Ohio, 81. Per Comatock and Broum, JJ,, in Hibbard ». N. Y. & Erie 
 RaUw. Co., 15 N. Y. 455. 
 
 " Great Western R. c. Goodman, 11 Eng. L. & Eq. 646. 
 
 • 108
 
 104 BY-LAWS AND STATUTES. CH. VI. 
 
 reasonable. The company are not bound to carry a passenger 
 daily upon his paying fare, when his trunk or trunks, contain mer- 
 chandise, money, and other valuable matter known as " express 
 matter." is 
 
 10. In a very recent case ^* in Connecticut, it was held by a 
 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 unnec- 
 essary force. Upon the trial of an action for such expulsion, it 
 was held, that the plaintiff was not entitled to recover upon proof, 
 that he went to the ticket-oflSce of the company a reasonable time 
 before the train left, to procure a ticket ; that the oflBce was closed, 
 and so remained till 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. 
 
 " Merrihew v. Milwaukie & Mississippi R. 5 Law Reg. 364. 
 
 " Crocker r. New London, Wlllimantic & Palmer Railw., 24 Conn. 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 
 fi^m 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 reasonable, 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 r. Goold, 34 N. H, 230, 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 had not procured a ticket, and refused to pay the additional five cents de- 
 manded of him, for fare paid in the cars, was liable to be expelled. Chicago, 
 Burlington, & Quincy Railw. v. Parks, 18 Illinois, 460. And it is here held that 
 where the passenger only pays from station to station, the additional five cents 
 may be required at each payment. 
 
 The general proposition of the reasonableness of a discrimination between 
 fares paid in the cars, and at the stations, is maintained in State r. Goold, 53 
 Me. 279. And the passenger is bound by such by-law, whether he knew of it 
 or not, ib. 
 
 •104
 
 § 28. BY-LAWS AS TO PASSENGERS. 105 
 
 2. That the plaintiffs claim rested solely upon the assumption, 
 that the defendants had undertaken to carry for the less sum, on 
 certain conditions, wliich 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 defendants* 
 oflSce, and the retirement of their agent therefrom. 
 
 6. The proposition being withdrawn, the parties were in the 
 same condition as before it was made ; the defendants continuing 
 common carriers were bound to carry the plaintiflf for the usual 
 fare paid in the cars and not otherwise. 
 
 6. That the plaintiflf, refusing to pay such fare, was properly 
 removed from the cars. 
 
 It was further held by all the judges that if the plaintiff was 
 wrongfully removed from tlie cars, he might lawfully re-enter them, 
 and if in attempting to do so he received the injury complained of, 
 he was entitled to recover, unless he was himself guilty of some 
 want of care, which produced, or essentially contributed to produce, 
 the injury. 
 
 But if the expulsion was lawful, or if the plaintiflf was guilty of 
 want of care, as stated, he could not recover. 
 
 The majority of the court also held, that if any of the defendants' 
 employees, which the conductor called to his aid, in putting and 
 keeping the plaintiflf oflf the cars, intentionally kicked the plaintiflf 
 in his face, without the knowledge or direction of the conductor, 
 the defendants are not liable for the act, in trespass. But the more 
 reasonable view in regard to the mode of enforcing a discrimination 
 between fares paid in the cars and at the stations is, that such a 
 regulation, however proper in itself, cannot legally be enforced by 
 the company unless they have aflforded every proper and reasona- 
 ble facility to the passenger for procuring his ticket at the sta- 
 tion.^* 
 
 '» St, Louis & C. Railw. v. Dalby, 19 111. 353 ; Chicago, B. & O. Railw. r. 
 Parks, 18 111. 460. And in a late case, St. Louis, Alton, & Terrchautc Railroad 
 V. South, 43 III., not yet published, it was decided that the foregoing cases are not 
 to be construed, as requiring railway companies to keep open their ticket offices, 
 for the sale of tickets to passengers beyond the time fixed by their established time- 
 tables for the departure of a train ; but such companies are required to keep open 
 their offices for the sale of such tickets as passengers are required by them to pro- 
 cure, for a reasonable time before the time so fixed for the departure of such train, 
 and not up to the time of its actual departure. They are required to furnish a
 
 106 BY-LAWS AND STATUTES. CH. VI. 
 
 * 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, that the conductor may nevertheless become liable 
 for the manner of doing it. This is a question to be determined 
 by the jury, and cannot ordinarily be decided by the court, as mat- 
 ter 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 pros- 
 ecution, for a breach of the peace. ^^ 
 
 12. The autliority of the conductor of a railway train, or of any 
 other servant of the company, to enforce their regulations, does 
 not depend upon the formal mode of his appointment, but upon the 
 fact of his being employed at the time in the particular office.^^ 
 
 13. In a late English case,i'^ where the railway company had 
 established a by-law requiring all passengers to purchase tickets 
 before entering the cars, and to show the tickets when required so 
 to do, and to deliver them up on request, before leaving the com- 
 pany's premises, and the plaintiff took tickets for himself and three 
 boys and three horses, by a certain train, which was afterwards 
 divided by the company's servants into two parts, one being com- 
 posed of passenger carriages, and the other of horse boxes ; and 
 the plaintiff retained all the tickets and travelled by the first-men- 
 tioned portion of the train, so that the boys, who were left to go in 
 the other portion of the train, were unable to produce their tickets 
 when requested, and were accordingly excluded by the company's 
 servants from entering the horse boxes ; it was held a breach of 
 contract by the company, for which they were responsible. A 
 
 convenient and accessible place for the sale of passenger tickets, and afford the 
 public a reasonable opportunity to purchase them, and parties who do not avail 
 themselves of the opportunity must submit to pay the extra fare required by the 
 general regulations of the company, or on refusal, to be expelled from the cars. 
 
 It was also held in this case, that the right of railway companies to discrimi- 
 nate between fares paid in the cars, and at the stations, was dependent upon the 
 fact that a reasonable opportunity had been afforded for procuring tickets at the 
 lower rate. These doctrines seem to us reasonable and just, and we should be 
 surprised to have them fail of general acceptance by the courts. 
 
 «• Hilliard v. Goold, 34 New H. 230. State v. Ross, 2 Dutcher, 224. In 
 this last case the principal evidence of excess was, that the conductor kicked a 
 passenger who, in a state of intoxication, persisted in attempting to get upon the 
 train, and the court held the conviction proper. 
 
 " Jennings v. Great Western Railw., Co. 12 Jur. N. S. 831. 
 *106
 
 § 28. BY-LAWS AS TO PASSENGERS. 107 
 
 tariflf of fares or freight must have the sanction of the corpora- 
 tion to become of binding obligation. But if established by the 
 president and the business of the company transacted with refer- 
 ence to them, without objection, the consent of the company will 
 be presumed. ^^ 
 
 14. There has been considerable controversy in the country, how 
 far railway companies have the legal right to require colored pas- 
 sengers to sit in a particular car, or portions of the car. That right 
 was maintained by the Supreme Court of Pennsylvania.^ But it 
 has been denied in other courts. The recent amendments of the 
 United States constitution, have been supposed by some to settle 
 this question. There seems to be no sufficient reason why any 
 such discrimination should now be made, and when the unfortu- 
 nate animosities growing out of the former existence of slavery in 
 the country shall have effectually subsided, it is to be hoped that 
 any such questions will cease to be raised. Persons of the highest 
 culture and refinement, as a general thing, feel less sensitive on 
 this subject than others, and their example will constantly tend to 
 lead others in the right path. 
 
 '« Westchester Railw. v. Miles, 65 Penn. St. 209.
 
 108 CAPITAL STOCK — LIMITATIONS. CH. VIL 
 
 ♦CHAPTER VII. 
 
 CAPITAL STOCK. 
 / SECTION I. 
 
 Limitations. 
 
 1. General rights of shareholders. I 3. Cannot mortgage, unless on gpecial license 
 
 2. Capital stock not the limit of property. \ of the legislature. 
 
 § 29. 1. All joint-stock companies are allowed to raise a certain 
 amount, and sometimes an indefinite amount, of capital, by the 
 subscription of the members ; the corporation in fact, generally 
 consisting of the contributors of stock and their assignees, which 
 is divided into shares, transferable according to the by-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 enter- 
 prise.^ 
 
 2. The capital stock of a corporation is not necessarily the limit 
 of its property .2 It is not uncommon for charters of stock com- 
 panies 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 car- 
 rying into effect a definite enterprise, must almost of necessity 
 have the power to issue suflficient stock to accomplish the under- 
 taking, or to raise the requisite funds in some other mode, as by 
 loan and mortgage. And where 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, 
 
 ' Walford on Railways, 252 ; Penobscot Railw. v. White, 41 Me. 512. 
 * Barry v. Merchants' Exchange Co., 1 Sandford's Ch. 280; South Bay 
 Meadow-Dam Co. r. Gray, 30 Me. 647. 
 • 106, 107
 
 § 30. CONDITIONS WHICH PUBLIC AUTHORITIES MAY ENFORCE. 109 
 
 ordinarily, by a strict and fatal necessity, and by permission of the 
 legislature, as is generally considered.* 
 
 SECTION II. 
 Conditions precedent^ which the Public Authorities may enforce. 
 
 1. Stock, if limited, must all be tubtcribed. \ 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 sub- 
 scribed before any assessment is laid, no valid assessment can be 
 be laid until that number be bo7id fide subscribed, and if it is at- 
 tempted the company may be dissolved.^ 
 
 2. And 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 
 
 » Post, §§ 197, 234, 285. 
 
 > Salem MiU-Dam Co. r. Ropes, 6 Pick. 28. 
 
 * Salem Mill-Dam Co. v. Ropes, 6 Pick. 23 ; Central Turnpike Co. v. Valen- 
 tine, 10 Pick. 142. Where the capital stock consists of a given number of 
 shares of given amount, no valid assessment for the general purposes of the en- 
 terprise 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 assess- 
 ments to defray the expenses of the incorporation, organization, and preliminary 
 examination, 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. 28. And in a suit upon subscriptions to stock in a corporation, where by 
 the charter a given amount of stock is required to be subscribed before the cor- 
 poration can go into operation, it is necessary to allege the latter fact, and the 
 omission will be ground of error, although the question is not raised at the trial. 
 Fry's ExV v. Lex. & Big S. Railw., 2 Met. (Ky.) 314. ^ 
 
 • Highland Turnpike Co. r. M'Kean, 11 Johns. 98, 1 Caines's Cas. 86. 
 Bat see post, § 51, where it vrill appear, that although the public, or the other 
 shareholders, 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 can- 
 not be taken advantage of by the subscriber, as between himself and the com- 
 pany, in an action for calls. And it has been held, that the stock subscriptions to 
 
 • 108
 
 110 
 
 CAPITAL STOCK. 
 
 CH. VII. 
 
 the charter of a railway company provided that the whole capital 
 stock should be subscribed, before any of the powers and pro- 
 visions of the charter should be put in force, and the company 
 made a call upon the shares before the subscriptions were com- 
 pleted, and commenced an action after they were so, it was held 
 the action could not be maintained, the completion of the sub- 
 scription being necessary to enable the company to make the 
 call.4 
 
 SECTION III. 
 
 Shares Personal Estate, 
 
 1. Railvoay shares personal estate at common 
 
 law. 
 
 2. Not an interest growing 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 de- 
 clares them. Hence the transfer of such shares is not required to 
 be in writing, nor are they regarded as coming within the acts of 
 
 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 r. Fry, 5 J. J. Marshall, 634. But 
 if the corporation acquiesce in such subscriptions, they cannot afterwards object. 
 Creed v. Lancaster Bank, 1 Ohio N. S. 1. See Beach v. Smith, 28 Barb. 254. 
 See, also. East Pascagoula Hotel Cq. v. West, 13 La. Ann. 545 ; Piscata- 
 qua Ferry Co. v. Jones, 39 N. H. 491 ; Fiser v. Miss. & Tenn. Railw. 32 Miss. 
 359 ; Hayne v. Beauchamp, 5 Sm. & Mar. 515, 537 ; Lewis v. Robertson, 13 id. 
 658; Barrington v. Miss. Central Railw., 32 Miss. 763; Miss. & Tenn. Railw. 
 V. Harris, 36 Miss. 17. 
 
 But it has been held that a condition in the charter, that one dollar per share 
 shall be paid at the time of subscription, and the company organized when one thou- 
 sand shares are subscribed, does not apply to subscriptions made after the 
 organization of the company, nor will the failure of the company to build its 
 road within the time limited in the charter enable the subscribers to defend 
 against calls. Taggart v. West Maryland Railw., 24 Md. 568. 
 
 * Norwich and Lowestoft Navigation Co. v. Theobald, 1 M. & M. 151. It is 
 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, 659.
 
 § 31. SHARES PERSONAL ESTATE. Ill 
 
 mortmain.* This has been repeatedly decided in regard * to shares 
 of canal and dock companies, and bonds secured by an assign- 
 ment of the rates.* Such shares may be sold by parol where 
 the contract is executory .^ And it would seem that the same 
 view would prevail 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 guarantee 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 under- 
 taking 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 upon the 
 subject now, both in England and in this country, is that before 
 stated.^ This has often been decided in recent analogous * cases. 
 
 * Aahton r. Lord Longdale, 4 Eng. L. & £q. 80. This case extends the 
 same rule to the debentures of such companies. Neither is railway scrip with- 
 in the Mortmain Act. But mortgages given by a railway company of the un- 
 dertaking and tollfl may be within the act. So also shares in a bank secured by 
 mortgages. Myers r. Ferigal, 16 Simons, 533 ; The King v. Chipping Norton, 
 5 East, 239. 
 
 ' Sparling r. Parker, 9 Beavan, 450 ; Thompson v. Thompson, 1 Coil. C. C. 
 381; Hilton p. Giraud, 1 De G. & S. 18?; Walker v. Mihie, 11 Beavan, 507. 
 But see Tomlinson r. Tomlinson, 9 id. 459. 
 
 » Bradley v. Holdsworth, 3 M. & W. 422 ; Bligh p. Brent, 2 Y. «& Coll. 268, 
 294. This is an elaborate case establishing the 'proposition that the shares in a 
 corporation, whose works are real estate, are nevertheless personal estate, and 
 this upon general principles of the common law. 
 
 * Hargreaves p. Parsons, 13 M. & W. 561. 
 
 » Humble p. MitcheU, 2 Railw. C. 70; 8. c. 11 Ad. & Ellis, 206. See also 
 Duncuft p. Albrecht, 12 Simons, 189 ; Tempest p. Kilner, 3 C. B. 249 ; Knight 
 V. Barber, 16 M. & W. 66. 
 
 * Drj'butter p. Bartholomew, 2 Peere Wms. 127 ; Townsend p. Ash, 3 Atk. 
 336 ; Buckerridge p. Ingram, 2 Vesey, jr. 652. 
 
 ' Welles p. Cowles, 2 Conn. 567. See also Cape Sable Company's case, 3 
 Bland's Ch. 606, 670 ; Binney's case, 2 id. 99 ; Price p. Price, 6 Dana, 107 ; 
 Meason's Estate, 4 Watts, 341. 
 
 " Walford, 254; ante, § 31, and cases cited in notes 1, 2, 3, and 4; Tippets 
 
 • 109, 110
 
 112 CAPITAL STOCK. CH. VII. 
 
 The fee of land being in the corporation, vests no interest of the 
 nature of real estate in the separate shareholders.^ 
 
 ». Walker, 4 Mass. 695, 596, opinion of Parsons, Ch. J. Speaking of a turn- 
 pike company, 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 
 ever}' member is the right to receive a proportional part of the tolls, which is 
 considered as personal estate." 
 
 In Howe v. Starkweather, 17 Mass. 240, 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 GreenleaPs Cruise, 39, 40, the subject is very fuUy and fairly presented, 
 and the following conclusion arrived at, in regard to the state of the law in the 
 United States: "Latterly it has been thought that railway shares were more 
 properly to be regarded as personal estate." 
 
 The same view is held in Bank of Waltham v. Waltham, 10 Met. 334 ; Hutch- 
 ins' Adm'r v. The State Bank, 12 Met. 421 ; Denton v. Livingston, 9 Johns. 
 96, 100 ; Planters' & Merchants' Bank v. Leavens, 4 Alabama 753 ; Union Bank 
 of Tennessee v. The State, 9 Yerger, 490 ; Brightwell v. Mallory, 10 id. 196 ; 
 Heart v. State Bank, 2 Dev. Ch. Ill ; State r. Franklin Bank, 10 Ohio, 91, 97 ; 
 Slaymaker v. Gettysburg Bank, 10 Penn. St. 373 ; Gilpin v. Howell, 5 Penn. 
 St., 41, 57; Johns©. Johns, 1 Ohio N. S. 360; Arnold v. Buggies, 1 Rhode 
 Island 165. 
 
 A distinction has sometimes been attempted between the shares of a bank or 
 manufacturing corporation, and a turnpike or railway, in regard to their partak- 
 ing of the realty. But the slightest examination will satisfy us that there is no 
 substantial ground for any such distinction. The one may be more intimately 
 connected, in its existence or operation, with real estate, but both must have 
 some connection, more or less intimate, and in both the shareholders have no 
 title to the land, that residing altogether in the corporation, while the shares are 
 merely a right to the ultimate profits of the company, and are as really and 
 imquestionably choses in action as promissory notes, bills of exchange, or bonds 
 and mortgages, of natural or corporate persons. Wheelock v. Moulton, 16 
 Vt. 519 ; Isham v. Ben. Iron Co. 19 Vt. 230. See also Johns ». Johns, supra. 
 
 ' Ackland v. Lewis, 1 K. & (j. 334, Registration cases.
 
 32 
 
 RESTRICTIONS UPON TRANSFER. 
 
 118 
 
 •CHAPTER VIII 
 
 TRANSFER OF SHARES. 
 
 SECTION I. 
 
 Restrictions upon Transfer. 
 
 1. Expreu provisions of charier to be 6th 
 
 served. 
 2. If not made exclusive, held directtyry 
 
 wtereljf. 
 8. Uktisual and inconvenient restrictions void. 
 
 4. Lien upon stock Jor the indebtedness of the 
 owner is valid. 
 
 6. But such lien is not implied. 
 
 6. Where transfer is usrongfully refused, ven- 
 dee may recover value of the company. 
 
 § 32. 1. We cannot here attempt to show in detail all the inci- 
 dents of the transfer of stock in railway companies. It is transfer- 
 able much the same as other personal property, excepting only that 
 any express provision of the charter upon that subject must be 
 regarded as of paramount obligation.^ 
 
 ' Strictly speaking, perhaps no shares in any joint enterprise are transferable 
 80 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, 
 
 6 Bing. 248, 267, opinion of Best, Ch. J. A mere partnership cannot be so 
 constituted, as to release the assignor of a share from all liability to third per- 
 sons, and introduce the assignee at once, and completely, into his place. Blun- 
 dell r. Winsor, 8 Simons, 601, opinion of Shadwell, V. C. ; Jackson v. Cocker, 
 4 Beavan, 69, 63. 
 
 In the English courts it has been held, that where the charter of a corpora- 
 tion or the deed of settlement required the assent of the directors t^ complete 
 the title of the purchaser of shares, it was the duty of the seller to procure 
 this assent, in order to comply with his contract to convey. Wilkinson c. 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 have been incurred, 
 if the subscribers coidd, at will, relieve themselves from all liability to pay calls, 
 by transferring their shares to irresponsible persons. Hall r. Norfolk Estuary 
 
 8 •111
 
 114 TRANSFER OF SHARES. CH. VIII. 
 
 * 2. Ill many cases, however, where the charter only provides a 
 mode of transfer, and does not declare this mode exclusive of * all 
 
 Co., 7 Railw. Cas. 503 ; 8. c. 8 Eng. L. & Eq. 361. But the assignee of a share 
 may always insist upon becoming a member upon paying all calls. 
 
 Questions of some difficulty often arise between shareholders and the company, 
 in regard to an informal transfer having been confirmed by acquiescence. In 
 Shortridge v. Bosanquet, 16 Beav. 84 ; s. c. 17 Eng. L. &Eq. 331, and in ex pm-te 
 Bagge, 13 Beav. 162 ; s. c. 4 Eng. L. & Eq. 72, it is held that if the entry of the 
 transfer is made upon the books of the company, and especially where the com- 
 pany 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 impossible to observe. And where the secretary' of 
 a joint-stock company fraudulently transferred shares, and the proprietor of the 
 shares treated the transaction as being valid against the transferee, but filed a 
 bill against the company for damages, it was held he was not entitled to relief. 
 Duncan v. Luntley, 2 McN. & Gord. 30 ; s. c. 2 Hall & TweUs, 78. 
 
 In ex parte Straffon's Executors, 4 De G. & S. 256 ; s. c. 10 Eng. L. & Eq. 
 275, the lord chancellor, St. Leonards, thus characterizes these transactions, which, 
 although informal in some respects, are constantly acquiesced in by both parties, 
 until there comes some crisis in the affairs of the company, perhaps, or the trans- 
 feree becomes insolvent. "There would be no safety for mankind in dealings 
 of this kind, extensive as they are, with so much money embarked in them, if 
 the courts had ever held, as they never have held, that every minute circumstance 
 must be obeyed, which the directors themselves ought to have obeyed ; but if they 
 disregard them, if the shareholders do not call them to account for doing so, if a 
 course of action has been adopted in the particular company, without complaint, 
 although they may have arrived at making a man a shareholder, by what I should 
 call a short cut, instead of going through all the necessary formalities, they may 
 be perfectly good as between parties thus dealing with the directors, and the 
 directors themselves, so as to bind them." 
 
 And in Bargate v. Shortridge, 5 Ho. Lds. 297 ; s. c. 31 Eng. L. & Eq. 44, in 
 the House of Lords, upon elaborate argument and great consideration, it seems to 
 have been definitively settled in England, that where the deed of a joint-stock 
 company required the certificate of consent of three directors to the transfer of 
 the shares of the company, and in practice this had never been given, but, for 
 ten years, transfers had continually been made upon the verbal assent of the 
 managing director upon the spot, and about nine-tenths of the original shares 
 had been transferred in this manner, and S. having transferred his shares in the 
 same mode to T., and his name having been entered upon the books of the com- 
 pany, they could not afterwards refuse to regard T. as a member. 
 
 And in such case, where the directors afterwards cancelled the name of T. in 
 theii' share register-book, on the ground that the consent of the directors was 
 wanting, it was held that S. had ceased to be a member of the company, and 
 was entitled to an injunction against a scire facias prayed out against him by a 
 creditor of the company, as a shareholder. 
 
 It was said by Lord St. Leonards, who delivered the leading opinion : " Where 
 * 112, 113
 
 § 32. RESTRICTIONS UPON TRANSFER. 115 
 
 Others, the provision has been regarded as merely directory, and 
 not indispensable to the vesting of title in the assignee. And 
 this has generally been so regarded, where the express provisions, 
 in relation to the transfer of shares, exist only in the by-laws of the 
 corporation. 
 
 3. 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,^ 
 
 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 arc within their 
 power and duty, and are either omitted or improperly done, and thereby third 
 parties are damaged, neither a court of law nor of equity will allow the com- 
 pany to take advantage of their neglect." 
 
 This, it seems to us, is a sound distinction, and one which will have an im- 
 portant bearing upon the fraudulent over-issue of stock by the directors of a 
 company whose capital is limited, and all issued and in the hands of bond fide 
 owners. This is the same case in 4 Exch. 699. See also Taylor v. Hughes, 
 
 2 Jones & La Touche, 24 ; Humble v. Langston, 7 M. & W. 517 ; s. c. 2 Railw. 
 C. 633 ; Ex parte Cockbum, 4 De G. & Sm. 177 ; s. c. 1 Eng. L. & Eq. 139. 
 
 But where the charter, or the general law, requires all debts of the owner to 
 be paid the company before transfer of shares, the company are not bound to 
 accept a transfer otherwise made. Reg. c. Wing. 33 Eng. L. & Eq. 80. 
 
 • Sargeant c. Franklin Ins. Co., 8 Pick. 90; Quiner v. Marblchead Ins. Co., 
 10 Mass. 476; Noyes r. Spalding, 27 Vt. 421; Bates r. New York Ins. Co., 
 
 3 Johns. Cas. 238 ; Chouteau Spring Co. r. Harris, 20 Missouri, 382. In thi« 
 last case the charter of the company provided that the stock might be " trans- 
 ferred on the books of the company," and the company were authorized "to 
 regulate the transfer of stock," by by-laws. And a provision in the charter 
 authorized the company, in certain 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 regu- 
 late 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 ob- 
 served 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 c. Brown, 24 Vt. 197, which was an action against stock- 
 holders, upon the proper debt of the corporation, where the charter provided, 
 that the persons and property of the corporators shall be holden to pay its debts,
 
 116 TRANSFER OF SHARES. CH. Vin. 
 
 * unless as a provision to secure the indebtedness of shareholders. 
 In such case it is sometimes said the assignee need only make his 
 right known to the company, and require the transfer entered upon 
 the books, and his title becomes perfected.^ 
 
 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.* And where the * charter of 
 
 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. 62 ; Middle- 
 town Bank r. Magill, 5 Conn. 28 ; Child v. Coffin, 17 Mass. 64 ; Roman v. Fry, 
 6 J. J. Marshall, 634. And in a late English case, Robinson v. Chartered Bank, 
 Law Rep. 1 Eq. 32, where the charter required that no one should become a trans- 
 feree of shares unless with the approval of the directors, it was held that the 
 directors must use this power reasonably and would be controlled in equity. 
 But where the charter of a corporation required all transfers to be executed by 
 both parties and approved by the directors, and the transferror's name had been 
 entered upon the registry upon his own execution merely, and the company was 
 being wound up, the court refused an application to remove his name from the 
 registry. Walker's case, Law Rep. 2 Eq. 554. 
 
 ^ Sargent v. Franklin Ins. Co., 8 Pick. 90 ; United States v. Vaughan, 3 Bin- 
 ney, 394; Ellis v. Essex Bridge Co., 2 Pick. 243; Chester Glass Co. v. Dewey, 
 16 Mass. 94; Agricultural Bank v. Burr, 11 Shepley, 256; Same v. Wilson, 
 id. 273. 
 
 * Union Bank v. Laird, 2 Wheaton, 390 ; Bank of Utica v. Smalley, 2 
 Cowen, 770 ; Rogers v. Huntingdon Bank, 12 Serg. ♦& R. 77 ; Downer v. Bank 
 of Zanesville, Wright, 477 ; Farmers' Bank of Maryland v. Iglehart, 6 Gill, 
 60 ; Hall v. U. S. Insurance Co., 5 Gill, 484. See Angell & Ames, § 355 and 
 note. In Marlborough M. Co. v. Smith, 2 Conn. 579, it was said the transfer 
 of shares to constitute the assignee a stockholder must be in strict conformity to 
 the charter and by-laws. And in the recent case of Pittsburg & Connellsville 
 Railw. V. Clark, 29 Penn. St. 146, Ch. J. Lewis goes into an elaborate 
 review of the cases to show, that under the Pennsylvania statutes, which pro- 
 vide, 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 sub- 
 scriber, who promised to pay fifty dollars on a share, is indebted to the company, 
 before calls made, within the meaning of the statute ; and even where the trans- 
 fer 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 
 * 114, 116
 
 § 32. RESTRICTION UPON TRANSFER. 117 
 
 the company requires the payment of all sums due before register- 
 ing a transfer, this will embrace all calls made and which are pay- 
 able at the date of the transfer.* 
 
 decided in a clear light : " Is an original subscriber, who has bound himself in 
 writing to pay fifly dollars per share, but who has only paid five dollars per 
 share on his subscription, ' indebted ' to the company within the meaning 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 payt^ble by instalments when 
 required from time to time by the directors. But it is none the less a debt on 
 that account. It is debitum in presenti sohendum 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 aU 
 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 r. Huntingdon, 12 S. & R. 77 ; 
 Grant r. Mechanics^ Bank of Philadelphia, 15 S. & R. 140; Sewell v. Lancaster 
 
 * Orpen ex parte, 9 Jur. N. S. 616. This question is elaborately discussed 
 in a recent case in Maryland, with the following results : — 
 
 The charter of a bank provided that its shares of stock shall be transferable 
 upon the books of the corporation only according to such rules as shall be 
 established by the president and directors ; but all debts actually due and paya- 
 ble to the corporation by a stockholder, requesting a transfer, must be satisfied 
 before such transfer shall be made, unless the president and directors shall direct 
 to the contrary. 
 
 Held, 1 . That this lien on the stock is not waived by the form of a certificate 
 
 for stock declaring that the stockholder " is entitled to shares of stock 
 
 transferable only at said bank personally or by attorney on surrender of this 
 certificate." 
 
 2. The assignee of a stockholder takes the equitable assignment subject to 
 the rights of the bank against the stockholder, under its charter, of which he is 
 bound to take notice. 
 
 8. This lien attaches to balances due the bank by the stockholder, for over- 
 drafls on checks, but not to notes or bills on which the stockholder may be a 
 party, as maker or indorser, and not due at the time the transfer is demanded. 
 
 4. The words " debts actually due and payable," imply more than mere 
 indebtedness ; the indebtedness contemplated is only a debitum sohendum in pre- 
 senti, not in futuro. 
 
 5. Where an assignee demands a transfer, bat refuses to pay the debts then 
 due the bank by the stockholder, and afterwards makes a second demand, when 
 other notes of the stockholder had become due and payable, he cannot obtain a 
 transfer without paying all the debts due at the time of the last demand. Reeae 
 & Fisher r. Bank of Commerce, 14 Md. 271.
 
 118 TRANSFER OF SHARES. CH. VIII. 
 
 * 5. A corporation has no implied lien upon stock for the liabili- 
 ties of the stockholders to the company.® 
 
 Bank, 17 S. & R. 285. It is very clear that the defendants, at the time of the 
 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 
 originating act in the change of title, and does not merely operate to perfect the 
 conveyance previously begun. Marlborough Man. Co. v. Smith, 2 Conn. 579 ; 
 Northop V. Newtown & Bridgeport Turnpike Co., 6 Conn. 544; Oxford Turn- 
 pike Co. V. Bunnell, 6 Conn. 552. So long as the stock remains unpaid, the 
 corporation has a right to refuse to receive new members in place of the original 
 adventurers. 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, there- 
 fore, of itself, a nullity. An attempt was made to give it vitality by parol evi- 
 dence, 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 consideration 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 strangers, 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 required 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 exercise must be strictly pursued. 5 Barb. S. C. 613, 
 614 ; 2 Cranch. 127. The question here is, whether one member of a corpora- 
 tion has been legally substituted for another. The title of the original stock- 
 holder 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 substi- 
 tute 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 Id ses- 
 
 • Mass. Iron Co. v. Hooper, 7 Cush. 183 ; Heart v. State Bank, 2 Dev. Ch. 
 Ill; Sargent r. 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 
 corporation, which they are not obh'ged 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. 
 
 ♦116
 
 §88. 
 
 CONTRACTS TO TRANSFER STOCK. 
 
 119 
 
 * 6. And when the company wrongfully refuse to record transfers 
 of shares on their books, the vendee may recover the price of such 
 shares, the company liaving caused them to be sold, as tlie property 
 of tlie vendor.^ 
 
 SECTION II. 
 Contracts to transfer Stock. 
 
 1. Traru/er under English statutes. Regis- 
 
 tered companies. 
 
 2. Contracts to transjer stock valid, where 
 
 bon& fide. 
 8. Vendor must have the stock, when due, 
 n. 8. Vendor must procure the consent ofdi- 
 
 recUm, where requisite. 
 4. Force ofmaages of stock-exchange. 
 6. Company will reform their registry at its 
 
 peril. 
 
 6. 10. Company may compel one to accept 
 
 shares on contract. 
 
 7. Stock standing in joint names belongs to 
 
 survivors. 
 
 8. Mode and effect of correcting registry. 
 
 9. If the company vary the contra(^, spe- 
 
 cific performance will be denied. 
 
 10. Closing contracts 6y offer and acceptance, 
 
 11. Form of transfer. Two may join in one 
 
 transfer. 
 
 § 33. 1. Questions often arise in regard to transfers of stock * in 
 incorporated companies, as to the quantity of interest conveyed, 
 the title of the person making the conveyance, and many other in- 
 cidents. The English statutes in regard to the registration of 
 
 sion. Where the transfer is made by a director, it ought further to appear that 
 the resolution of assent was carried without 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 re- 
 ceived to show that an assignee has been admitted as a member of the corpora- 
 tion in the place of the assignor. There was no legal evidence 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 ' previously incurred. Their sub- 
 scription to the stock of the company created a liability 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 direc- 
 tion 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 rea.son for restricting this proviso to ' liabilities ' which 
 had become due and payable before the transfer. It is sufficient 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 paya- 
 ^ ble." The same principle was reaffirmed in Graff ». Pittsburg & Steubenville 
 Railw., 31 Penn. St. 489. 
 
 •117,118
 
 120 TRANSFER OP SHARES. CH. VIII. 
 
 railway companies are not intended to aflfect the property in the 
 shares,^ and a transfer is valid, although made before the registra- 
 tion .^ 
 
 2. It would seem, too, that a contract to transfer stock in rail- 
 way companies, at a future time, which the party neither has, nor 
 is about to have, but expects to purchase in the market, for the 
 purpose of fulfilling his undertaking, is nevertheless a valid con- 
 tract, and not illegal, or against the policy of the law,^ 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 
 
 * The London & Brighton Railw. Co. ». Fairclough, 2 Railw. Cases, 544 ; 
 8. c. 2 M. & G. 674. 
 
 ' The Sheffield, Ashton-under-Lyne, & Manchester Railw. Co. v. Woodcock, 
 2 Railw. Cases, 522 ; s. c. 7 M. & W. 574. 
 
 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 expressly 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 vendee might recover back his money. Wilkinson ». 
 Lloyd, 7 Q. B. 27. But where the plaintiflfs covenanted to subscribe for stock 
 in a railway, and pay ten per cent thereon, and then transfer it to defendant, 
 who agreed thereupon to pay the residue and save the plaintiffs harmless, and 
 the plaintiffs subscribed for the stock and paid the ten per cent ; but the by-laws 
 of the company provided for the transfer of the stock on the books of the com- 
 pany only after the payment of thirty per cent of its amount, unless by the con- 
 sent of the directors, which they refused to give, in this case, and the plaintiffs 
 tendered the defendant an instrument whereby they assigned and transferred 
 the stock and constituted him their attorney to transfer the same on the books of 
 the company, which was refused as not being a compliance with the contract : 
 It was held, in an action to recover damages for the breach of the contract, that 
 the plaintiffs had complied with their covenant, and might recover, not the differ- 
 ence between the value of the stock at the time of refusal, and the sum due 
 upon the subscription, but the whole sum due and interest. See also Orr v. 
 Bigelow, 4 Kernan, 556. 
 
 * In Bryan r. Lewis, Ry. & M. 386, and in Lorymer r. Smith, 1 B. & C. 1. 
 » Hewitt V. Price, 4 M. & G. 355 ; Mortimer t?. M'CaUan, 6 M. «& W. 58. 
 
 ♦119
 
 § 33. CONTRACTS TO TRANSFER STOCKS. 121 
 
 to be requisite, that the seller should bond fide procure the stock, 
 by the time appointed for the transfer.* 
 
 4. The English reports, both in law and equity, and especially 
 the more recent ones, abound in cases more or less affecting trans- 
 fers of shares on the stock-exchange, and the practice and law 
 governing transactions between brokers. These rules are allowed 
 to have great weiglit in fixing the construction and effect of con- 
 tracts made through the instrumentality of brokers. In the sale 
 of shares in companies requiring the consent of the directors or of 
 the company itself to the transfer, it is not understood, according 
 to these rules, that the vendor or his broker undertakes to procure 
 that consent, and if he does all that is requisite to effect a transfer of 
 the equitable interest of the property, and * there is no obstruction 
 to the vendee in obtaining the registration of such transfer, by tak- 
 ing the prescribed steps, the transfer will be regarded as complete.^ 
 
 • Hibblewhite v. M'Morine, 2 Railw. C. 61-66 ; 8. c. 6 M. & W. 200. The 
 comments of Ishatn, J., in Noyes r. Spaulding, 27 Vt. 420, 429, may be re- 
 garded, perhaps, as giving the present state of the English law upon this subject. 
 " Contracts 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 
 intended to be transferred by the parties, but their intention was to pay the 
 difference merely that may exist between the market value of the stock at the 
 time of the transfer, and the price agreed to be paid. Such contracts are 
 rendered void by that statute, and are treated as wagering contracts ; ' the seller 
 virtually betting that the stock will fall, the buyer that it will rise.' Chitty on 
 Bills, 112, note (w). It has been held, that railroad stock is not within the act. 
 Hewitt r. Price, 4 M, & G. 355 ; 8. c. 3 Railw. C. 175 ; Fisher v. Price, 11 Beav. 
 194. In the case of Mortimer r. M^Callan, 6 M. & W. 70, Lord Abinger ob- 
 served, • 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 differences ; but it never was intended to affect bond Jide sales of stock.' 
 Elsworth V. Cole, 2 M. & VV. 31 ; 2 Kent, Comm. 468, note (b). In the ca^ 
 of Grizewood v. Blane, 20 Eng. L. & Eq. 290, it was held, that a colorable con- 
 tract for the sale of railroad shares, where no transfer is intended, but merely 
 • differences,^ amounting to the rise or fall of the market, is gaming within the 
 8 and 9 Vict. ch. 109, § 18; 8. c. 11 Common Bench, 638." 
 
 ' Stray v. Russell, 1 Ellis & Ellis, 888 and 916 ; 8. c. 6 Jur. N. S. 1296 ; 
 8. c. affirmed in Exch. Chamb. 2 Ellis & Ellis, 592. See also Field v. I^lean, 
 6 H. & N. 617, where a custom of the stock exchange in regard to a particular 
 class of shares, not to deliver them on contracts of sale until the payment of the 
 price, was held operative. 
 • 120
 
 122 TRANSFER OP SHARES. CH. VIII. 
 
 5. Where the company assume to erase transfers from their 
 books on the alleged ground that they are merely colorable, and 
 made for the purpose of injuriously affecting the interest of the 
 company or others, they assume the burden of- showing such to be 
 the facts ; and the transferees will be entitled to a mandamus to 
 compel the company to restore their names to the registry as the 
 proprietors.® 
 
 6. It is competent for the company to maintain a bill in equity 
 against one upon an agreement to accept shares, although no writ- 
 ing has been signed by the defendant according to the statute re- 
 quiring the acceptance to be in writing. The contract may be 
 enforced, as an agreement to do what the statute requires, and the 
 decree will settle the question whether the defendant or some other 
 one is the lawful holder of the shares in question.^ 
 
 7. Where stock is allowed to stand in the joint names of two 
 persons, they will be regarded as joint tenants, unless something is 
 shown to the contrary, and the company may treat the survivor as 
 the owner of the whole.^® 
 
 8. A court will not interfere to compel a joint-stock company to 
 correct their registry by removing one name and inserting another 
 while an action at law is pending in regard to the same matter.^^ 
 Where the registry is altered under a misapprehension as to the 
 genuineness of a transfer it will not have the effect to transfer the 
 shares.^ Specific performance of a contract to * sell shares will be 
 decreed in equity, notwithstanding the constitution of the company 
 provide that no shares shall be transferred except in such mode as 
 the board shall approve, and the board refuse to give its consent 
 to the transfer. 1^ • 
 
 9. If the company in their notice of allotment annex a condition 
 which they have no power to do, it will be regarded as such a varia- 
 
 « Ward V. South Eastern Railw., 2 EUis & Ellis, 812 ; s. c. 6 Jur. N. S. 890. 
 
 • N. B. & Canada L. Co. r. Muggeridge, 4 Drew. 686 ; Bog Lead Co. v. 
 Montague, 10 C. B. N. S. 481 ; 8. c. 8 Jur. N. S. 310. 
 
 '» Garrick v. Taylor, 3 Law T. N. S. 460. And this will be so, notwithstand- 
 ing, by the rules of the bank, there was to be no benefit of survivorship, it 
 appearing to have been the purpose of the deceased to have her share go to the 
 survivor. Garrick v. Taylor, 29 Beav. 79 ; 7 Jur. N. S. 116, affirmed by Lords 
 Justices, 10 W. R. 49. 
 
 » Harris ex parte, 29 Law J. Exch. 864; s. c. 5 H. & N. 809. 
 
 '» Hare v. London & N. W. Railw., 1 Johns. Eng. Ch. 722. 
 
 " Poole p. Middleton, 29 Beav. 646 ; 8. c. 7 Jur. N. S.' 1262. 
 *121
 
 §34. 
 
 INTERVENING CALLS, OB ASSESSMENTS. 
 
 123 
 
 tion of the contract that a court of equity will not interfere to 
 decree specific performance of the original contract. As when the 
 company in such notice require the allottee to sign the deed of set- 
 tlement on pain of forfeiture of the shares, when the constitution 
 of the company gave no such power.^* 
 
 10. The learned judge, Lord Chancellor Westburi/, here dis- 
 cusses the general questions involved, and concludes, that in gen- 
 eral the court will specifically enforce a contract to accept of shares 
 in a joint-stock company. His lordship explains much at length 
 his own views of the true modus operandi in effecting contracts by 
 means of written offers and acceptance, and concludes, very justly, 
 we think, that one who attempts to enforce such a contract must 
 show that the acceptance on his part was prompt, simple, and un- 
 qualified ; and that where new conditions are made in the accept- 
 ance the contract will not be regarded as closed until assent is given 
 by the other party, either expressly or by fair implication, to such 
 conditions. 
 
 11. The transfer of shares intended to be recorded on the books 
 of the company should contain nothing but the transfer of the title. 
 And where there are shares in different companies transferred 
 between the same parties at the same time, it will be more con- 
 venient to have a separate transfer for each company.^ But as to 
 the mere conveyance of title between the parties, one conveyance 
 is sufficient. And it is held even that two different owners may 
 join in one conveyance to the same person.^^ 
 
 ♦SECTION III 
 
 Intervening Calls, or Assessments. 
 
 1. Vendor mutt pay caiU, if that is requisite n. 2. Calls paid by vendor after executing 
 
 to pass title. transfer. ' 
 
 2. Generally it is matter of construction, and 
 
 inference. 
 
 § 84. 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 
 
 " Oriental I. Steam Co. v. Briggs, 2 Johns. & H. 625 ; 8. c. 8 Jur. N. S. 201. 
 '* Ix)r(l Campbell, Ch. J., in Reg. ». General Cemetery Co., 6 £. & B. 416, 
 419 ; Copeland v. North Eastern R. Co., Id. 277. 
 '• Wills V. Bridge, 4 Exch. 193. 
 
 ♦122
 
 124 TRANSFER OP SHARES. CH. VIII. 
 
 transfer, as in general the charters of snch 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 
 will 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 all events, one of intention. It 
 may perhaps be safe to say that the sale of stock, in the present 
 tense, ordinarily implies that it is free from incumbrance of any 
 kind, unless there is some exception or qualification in the 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 sucli cases, it has been held not incumbent upon 
 the seller to pay intervening calls.^ 
 
 > Walford, 256, 257. And under the English statute 8 Vict. ch. 16, § 16, 
 providing that no transfer of shares shall be valid until he shall pay any call due 
 upon such shares, or upon any other shares held by him, does not apply to the 
 transfer of shares upon which no calls are due, notwithstanding the transferror 
 may hold shares not fully paid up. Hubbersty v. Manch., Sheff. & Lincolnsh. 
 Railw., Law Rep. 2 Q. B. 59. 
 
 ' Shaw V. Rowley, 16 M. & W. 810 ; s. c. 5 Railw. C. 47. In this case it was 
 held no impediment to the seller's readiness to convey the shares, that he had not 
 paid an intervening call, as he might do it at the moment of executing the trans- 
 fer, and the court say the call was ultimately to be paid by the purchaser. 
 
 In Humble v. Langston, 7 M. & W. 517 ; s. c. 2 Railw. C. 533, it is decided, 
 that upon the sale and transfer of the shares, where the purchaser's name is not 
 substituted, on the register of the company, for that of the seller, but the stock 
 still standing in his name, and he is thereby subjected to the payment of future 
 calls, he cannot recover the money of the purchaser, because there is no implied 
 contract to that effect, resulting from the transaction. This is certainly a most 
 remarkable decision, and it is something of a task to be able to read the opinion 
 of the court, by which this result is reached, with tolerable patience. The con- 
 clusion is certainly not fortified either by reason or analogy. 
 
 And in the Cheltenham & Great W. Union Railw. Co. r. Daniel, 2 Q. B. 281 ; 
 8. c. 2 Railw. C. 728, it is decided, that the purchaser of shares may, by way of 
 estoppel in jjais, be made liable for calls, before his name is actually substituted 
 for that of the seller upon the register of shares. If so, both parties are liable for 
 the calls, and the seller, while his name remains upon the register, is the mere 
 surety of the purchaser, as to future calls. And what is a more natural or neces- 
 sary conclusion in the mind of any one having the common sense of justice, than 
 to imply, that while the purchaser suflfers the seller's name to remain upon the
 
 §35. 
 
 TRANSFER BT DEED IN BLANK. 
 
 125 
 
 •SECTION IV. 
 
 Transfer by Deed in Blank. 
 
 1, 2. Blank transfer formerly held invalid in 
 
 England. 
 8. Rule different in Anurica. 
 
 4. Deed executed in blank and filled by pro- 
 curation valid. 
 
 § 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 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 seller, with a blank for the name of the transferee, was no com- 
 pliance with the statute.^ The opinion of the court seems to rest 
 
 register, and liable to the pajinent of calls, through his neglect, he does im- 
 pliedly promise to indemnify him against all loss on that account ? See Burnett 
 V. Lynch, 6 B. & C. 589. 
 
 But the case of Humble v. Langston is reaffirmed in the subsequent case of 
 Sayles v. Blane, 6 Railw. C. 79. These cases can only be accounted for, upon 
 the principle of discouraging blank unregistered transfers, which have the effect 
 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, 18 C. B. 845 ; 8. c. 
 86 £ng. L. & £(|. 368, has come to hand, where a blank transfer seems to be re- 
 garded as perfectly valid, and that the transfer in this mode docs impose upon the 
 vendee the duty of paying calls upon the shares, while they remain his proi)erty. 
 We may be allowed to say, that this result of the English decisions, upon this sub- 
 ject, is not altogether without gratification, as the former decisions had so effectu- 
 ally mystified the subject, that it seemed not improbable that the difficulty of 
 comprehending them might very likely be ultimately found with ourselves, rather 
 than at the door of the eminent jurists, who have so long clung to the now ac- 
 knowledged inconsistency of Humble r. 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. 
 
 » Hibblewhite v. M'Morine, 2 Railw. C. 61 ; 8. c. 6 M. & W. 200. It is con- 
 sidered that two or more several owners of shares may join in one deed to convey 
 their shares. Wills ». Bridge, 4 Exch. 193; Enthoven ». Hoyle, 18 C. B. 878; 
 8. c. 9 Eng. L. & Eq. 434. See anU, § 34, n. 2. 
 
 • 128, 124
 
 126 TRANSFER OP SHARES. CH. VIII. 
 
 upon the early cases, in which it is held that the party cannot 
 effectually execute a deed, leaving such important blanks as the 
 name of the grantee, or obligee, while it is considered that less im- 
 portant ones, like the date, etc., may be supplied, after the execu- 
 tion, by permission of the party executing the same. This seems 
 to have been the undoubted rule of the English law, from the 
 authorities cited, in the last case. 
 
 3. But it seems to be rather technical than substantial, and to 
 found itself either in the policy of the stamp duties, or the supe- 
 rior force and sacredness of contracts by deed, both of which have 
 little importance in this country. And the prevailing current 
 of American authority, and the practical instincts, and busi- 
 ness experience and sense of our people, are undoubtedly other- 
 wise. 
 
 4. There is no good reason why one should not be as much 
 bound by a deed executed in blank, and filled according to his direc- 
 tions, as by a blank acceptance or indorsement, of a bill, or note, 
 and accordingly we find a large number of decisions of the Amer- 
 ican courts leading in that direction .^ 
 
 « Stahl V. Berger, 10 S. & R. 170 ; Sigfried v. Levan, 6 id. 308 ; Wiley v. 
 Moor, 17 id. 438 ; Ogle v. Graham, 2 Penn. 132 ; WooUey v. Constant, 4 Johns. 
 54, 60; Ex imrte Kerwin, 8 Cow. 118; Boardman v. Gore et al., 15 Mass. 331. 
 
 And the following certainly incline in the same direction. Smith v. Crocker, 
 5 Mass. 538, and the opinion of Parsons, Ch. J. ; Hunt «. Adams, 6 id. 519 ; 
 Warring v. WiUiams, 8 Pick. 326 ; Adams v. Frye, 3 Met. 103 ; Bank of Com- 
 monwealth V. Curry, 2 Dana, 142 ; Bank v. McChord, 4 id. 191 ; Johnson r. 
 Bank of the United States, 2 B. Monroe, 310 ; Camden Bank v. Halls, 2 Green, 
 683 ; Duncan v. Hodges, 4 M'Cord, 239. 
 
 In the London & Brighton Railw. Co. v. Fairclough, 2 Man. & Gr. 674 ; 8. c. 
 2 Railw. C. 644, the deed of transfer where one name was first inserted, as trans- 
 feree, and subsequently that erased, and another inserted, and the deed re- 
 executed, by the vendor, was held void, because it had not been restamped. 
 Post, §§ 239, 241. 
 
 An auctioneer, who sells shares at public auction without disclosing the name 
 of his principal, makes himself personally responsible for the fulfilment of the 
 contract of sale. Franklyn v. Lamond, 4 C. B. 637 ; Hodges on Railways, 119. 
 
 But where one borrowed money, and deposited certificates of railway shares, 
 with blank assignments upon them, as security, and the blanks were not filled up 
 till the shareholder became bankrupt, it was held that the depositary had a lien 
 upon the shares, for money advanced by him, or paid on calls upon the shares. 
 Dobson ex parte, 2 Mont. D. & De G. 685. And railway 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, 
 might maintain an action in his own name against the company. Chapin v. Ver-
 
 § 36. SALE OP SPURIOUS SHARES. 127 
 
 •SECTION V. 
 Sale of spurious Shares. 
 
 1. Vendor, who acts bon& fide, must refund 4. Ruk of the stock-exchange, made ajler the 
 money. \ tale, not binding upon parties. 
 
 8. No implied tcarrauty in such case, which n. 1. Discussion of the extent of implied 
 will entitle the vendee, to special damage, \ wtirranty. 
 
 § 86. 1. Where one employed a share-broker to sell in the mar- 
 ket what purported to be scrip or certificates of shares in a pro- 
 jected railway company, which subsequently proved to have been 
 forged, and the broker paid the price at which he sold them to the 
 defendant, but being called upon by the purchaser to make good 
 the loss, repaid the money, and a further sum, according to a 
 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 gen- 
 uine, with a count for money paid.^ 
 
 raont & Mass. Railw., 8 Gray, 675. See, also, 'White r. Vt. & Mass. Railw., 
 21 How. (U. S.) 575. 
 
 ' Hodges, 4th ed. (1865). This writer thus defines the rule. "If a share- 
 broker, directed to buy shares, buys what is ordinarily bought and sold in the 
 stock-market as shares, he has fulfilled his commission, and cannot be made re- 
 sponsible for the fraud or misconduct of parties, who may have issued the shares 
 without authority. There is no warranty or undertaking, on the part of the 
 broker employed to buy shares or scrip, that the article which merely passes 
 through his hands is any thing more than what it purports on its face to be, and 
 what it is generally understood to be in the market. Addison on Cont. 5th ed. 
 191 . But if a broker sell stock-shares or debentures for an undisclosed principal, 
 and sign the sold note, he is responsible for any loss sustained by the purchaser, 
 through the fraud of the undisclosed principal, although the purchaser knew 
 that he was dealing with a broker. Carr v. Royal Exchange Insurance Co., 6 
 B. & S. 666; s. c. nom. Royal Exchange Insurance Co. v. Moore, 11 Weekly 
 Rep. 592. 
 
 We know of no good reason why the vendor of shares in a joint-stock com- 
 pany should not be held responsible for the genuineness of the article the same 
 as any other vendor. It may not follow that either of the brokers of the con- 
 tracting parties could be so held, since, in general, they act merely in a repre- 
 sentative capacity. But the ultimate vendor must be responsible upon an implied 
 warranty to that extent. And as was held, in the last case cited, if the broker with- 
 holds the name of his principal be thereby assumes that responsibility, personally. 
 •126
 
 128 
 
 TRANSFER OF SHARES. 
 
 CH. VIII. 
 
 *2. Upon the latter count the defendant paid into court the 
 money received upon the original sale, with interest. 
 
 3. It was held, the plaintiff could not recover upon the ground 
 of the warranty, there being no promise, express or implied, that 
 the certificates were genuine ; and that under the other count he 
 could only recover the money paid defendant. 
 
 4. It was also held, that the resolution of the committee of the 
 stock-exchange, made after the transaction was completed, how- 
 ever it might bind the members of that body, could not affect the 
 defendant.2 
 
 ♦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. 
 8. General custom and local usage. 
 
 4. The party taking the initiative must pre- 
 pare the writings. 
 
 n. 8. Oral evidence to explain memoranda of 
 contract. 
 
 § 37. 1. The obligation resting upon the vendor of railway 
 shares is to have, at the time specified in the contract for delivery, 
 a good title to the requisite number of shares, and to manifest his 
 readiness to convey, which is usually done by tendering the proper 
 conveyance. But this is not necessary. Any other mode of show- 
 ing readiness is sufficient.^ 
 
 2. The corresponding obligations upon the vendee are readi- 
 ness to receive the proper conveyance, at the specified time and 
 
 • Westropp V. Solomon, 8 C. B. 345. We think it probable that the cases, 
 in this countrj', 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, § 235. It would seem that in England it is an indictable oifence for 
 persons to conspire to fabricate shares, in addition to the limited number of shares 
 of which a company consists, in order to sell them as good shares, notwithstand- 
 ing any imperfection in the original formation of the company. Rex. v. Mott, 2 
 C. & P. 521 ; post, § 37, n. 3. 
 
 ' Humble v. Langston, 7 M. & W. 517 ; s. C. 2 Railw. C. 533 ; Hannuic r. 
 Goldner, 11 M & W. 849 ; Hare v. Waring, 3 M. «& W. 362 ; Hibblewhite v. 
 M'Morine, 2 Railw. C. 51. In Munn r. Bamum, 24 Barb. 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. 
 126, 127
 
 § 37. READINESS TO PERFORM. — CUSTOM AND USAGE. 129 
 
 place, and to pay the price, and it would seem to prepare a proper 
 conveyance, and tender the same for execution, upon having a good 
 title made out.* 
 
 3. But the incidents of such contracts are liable to be controlled 
 by general and local customs, and usages of trade, the same as 
 other similar contracts.^ Hence any general known * usage of those 
 
 ' Lawrence r. Knowles, 5 Bing. (N. C.) 399 ; Stephens v. Do Medina, 4 Ad. 
 & EUis (n. 8.), 422 ; Bowlby c. Bell, 4 Railw. C. 692. 
 
 ' Stewart r. Cauty, 2 Railw. C. 616 ; 8 M. & W. 160. And one who em- 
 ploys 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 delivery. 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 ac- 
 cording 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. Pol- 
 lock r. Stables, 5 Railw. C. 352 ; 8. c. 12 Q. B. 765. 
 
 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. Bayley r. Wilkins, 7 C B. 886. 
 And it would seem the party is bound by such usage, though not cognizant of 
 it. Parke and Bol/e, BB., in Bayliffe v. Butterworth, 1 Exch. 426 ; 8. c. 6 Railw. 
 C. 283 ; Sutton v. Tatham, 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 mean 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 
 delay, 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; 6 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> 
 letters 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 well 
 find that this was a good execution of the order. Mitchell ». Newhall, 15 M. & 
 W. 308 ; 8. c. 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 
 
 9 •128
 
 130 TRANSFER OF SHARES. CH. Vin. 
 
 negotiating similar business, and which may be fairly presumed to 
 have been known to the parties, or which * ought to have been, and 
 
 the ground of its not being genuine, it was held that the proper question for the 
 jury was, whether what the plaintiff intended to buy was not that which went 
 in the market as " Kentish Coast Railway Scrip," there being no other form of 
 that scrip in the market at the time. Lamert v. Heath, 15 M. & W. 486 ; s. c. 
 4Railw. C. 302; Aiite, § 36. 
 
 The remarks of Lord Campbell, Ch. J., in the very late case of Humfrey v. 
 Dale, 7 El. & Bl. 266, 20 Law Rep. 227, in regard to the necessity of relax- 
 ing the rule of the admissibility of oral evidence to explain the import of com- 
 mercial terms and memoranda in written contracts between merchants and 
 business men, are certainly worthy of his lordship's eminent reputation for wis- 
 dom 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 plain- 
 tiff seeks to show that, according to the usage of the trade, and as those con- 
 cerned 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 admissible is, that the parties have not set down on paper the 
 whole of their contract in all its terms, but those only which were necessary to 
 be determined in the particular case by specific agreement, and which of course 
 might vary infinitely, leaving to implication and tacit understanding all those 
 general and unvarying incidents which an uniform usage would annex, and ac- 
 cording to which they must in reason be understood to contract, unless they ex- 
 pressly 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 inconsistent. Brown v. Byrne, 3 Ell. & Bl. 703. [After allud- 
 ing 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 Trueman r. Loder, — for Lord JDenman, in his judgment in 
 the latter case, showed that it could not be supposed to carrj- with it the weight 
 of Lord Ellenhorougli's decision, — but because both cases, we think, disclose 
 how entirely the minds of lawyers are under a different bias from that which, 
 in spite of them, will always influence the practice of traders which creates the 
 usage of trade. Lawyers desire certainty, and would have a written contract 
 express all its terms, and desire that no parol evidence beyond it should be re- 
 ceivable ; but merchants and traders, with a multiplicity of contracts preparing 
 on them, and meeting each other daily, desire to write little, and leave imwrit- 
 ten what they take for granted in every contract. It ik the business of courts 
 • 129
 
 § 37. READINESS TO PERFORM. — CUSTOM AND USAGE. 131 
 
 any local custom, or usage of trade, which was in fact known to 
 both parties, is regarded as if incorporated 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 country, would require the pur- 
 chaser to be at the sole expense of preparing the proper con- 
 vey ance. 
 
 4. It is safe, perhaps, to say, that the party tendering a convey- 
 ance, or he who demands it, in practice, ordinarily causes the in- 
 strument, required to be * executed, to be prepared in the one case 
 and executed in the other. But less will often suffice, where the 
 other party refuses to proceed.* 
 
 reasonably to shape these rules of evidence so as to make them suitable to the 
 habits of mankind, and such as are not likely to exclude the actual facts of the 
 dealings between parties, when they are to determine on the controversies which 
 grow out of them. The rule to enter a nonsuit must be discharged." See 
 Taylor v. Stray, 29 Law Times, 95 ; s. c. 2 C. B. N. S. 175. 
 
 * Walford, 262, note, where it is said, " It would seem, that if the vendor 
 fails to make out a title, this dispenses with a tender of conveyance." But if 
 stock is to be delivered on demand, it is necessary to show an actual request to 
 deliver, in order to sustain an action for non-delivery. Green v. Murray, 6 Jur. 
 728. Where the contract is to deliver stock in a reasonable time, or no time 
 being specified, which the law regards as in a reasonable time, or on or before 
 a day named, it is presumed each party is entitled to the whole time in which 
 to perform. Stewart v. Cauty, 2 Railw. C. 616 ; 8. c. 8 M. & W. 160. It 
 seems that where the deed of settlement required the consent of the directors 
 to the validity of the transfer of shares, it is incumbent upon the vendor to 
 obtain such consent ; and where the transfer was duly made, executed, and de- 
 livered, and the money for the price paid, but the directors refused to give their 
 assent, it was held the purchaser might recover back the money paid, and that 
 the return of the transfer was collateral to the contract of purchase, and not a 
 condition precedent to the plaintiff's right to recover. Wilkinson v. Lloyd, 7 
 Q. B. 27. 
 
 And where the charter of the company, or the statute, prohibits the transfer 
 of the shares while calls remain due, it has been held that a deed of transfer made, 
 while calls remained unpaid, was altogether null and void, so that the company 
 may refuse to register such a transfer, although the calls have been subsequently 
 paid. It is said it would be necessary to re-execute the deed, afler 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 c. Norfolk Estuary Co., 7 Railw. Cas. 608 ; 8. c. 8 Eng. L. & Eq. 361. 
 
 •130
 
 132 TRANSFER OP SHARES. CH. Vin. 
 
 SECTION VII. 
 Damages. — Specific Performance. 
 
 Ij Damages, difference bettoeen contract price I 2. Equity vM decree specific performance of 
 and price at time of delivery, \ contract far 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.^ 
 
 * 2. And a court of equity will decree a specific performance of 
 a contract to transfer railway shares, but not for the transfer of 
 stock in the funds, as any one may always obtain that in the 
 market, but railway stock is not always obtainable.^ This sub- 
 
 » Bamed r. Hamilton, 2 Railw. C. 624; Humble r. Mitchell, 11 Ad. & El. 
 206 ; 8. "c. 2 Eailw. C. 70 ; Shaw v. Holland, 15 M. & W. 136. But the pur- 
 chaser is not entitled to recover any advance in the market price of such shares, 
 after a reasonable time for repurchase. Tempest r. Kilner, 2 C. B. 300 ; s. c. 3 
 C. B. 249. See also Pott r. Flather, 5 Railw. C. 85 ; Williams v. Archer, id. 
 289 ; S. c. 5 C. B. 318. But a broker is not entitled to commissions unless he 
 complete the sale, but may be entitled to reimbursement of actual expenses. 
 Durkee r. Vermont Central Railway, 29 Vt. 127. In a recent case in the 
 CoDunon Pleas, Loder v. Kekule, 3 C. B. N. S. 128 ; s. c. 30 Law Times, 64, 
 it was decided, in regard to the subject of damages for breach of contract, 
 by delivery of an inferior article, that if the article was one that could be 
 immediately sold in the market, the rule was, the diflference between the market 
 value of the article delivered and that contracted for. But where the article 
 cannot b« immediately resold, as where the resale is delayed by the defendant, 
 the measure of damages is the diflFerence between the value of the article con- 
 tracted for, at the time and place of delivery, and the amount made by the 
 resale, within a reasonable time of the delivery of the article. See also Rand 
 V. White Mountain Railw. 40 N. H. 79. It is here said that such a contract 
 creates no debt, attachable by process of foreign attachment, but is merely a 
 claim for unliquidated damages. And see Hager ». Reed, 11 Ohio N. S. 626, 
 where the general question of the enforcement of contracts to transfer stock is 
 considered, and the effect of judgment for the price without an actual transfer 
 or an order of court therefor. 
 
 • Duncuft V. Albrecht, 12 Simons, 189; Shaw r. Fisher, 2 De G. & S. 11 ; 
 8. c. 5 Railw. C. 461. Leach p. Fobes, 11 Gray 506. There has been the 
 most controversy in the English courts of equity as bearing upon the question of 
 decreeing specific performance of contracts to transfer shares in joint-stock 
 companies, upon the point of the sufficiency of the proof. See Parish p. Parish, 
 32 Beav. 207 ; Bermingham r. Sheridan, 33 Beav. 660;'8. c. 10 Jur. N. S. 415. 
 
 ♦181
 
 § 38. DAMAGES. — 8PECTFIC PERFORMANCE. 133 
 
 ject has recently been discussed in the English Court of Chancery 
 Appeal,' and the same rule declared, which is stated above. But 
 ill that case the plaintiff failed to obtain a decree, for the reason 
 that he had already conveyed the stock to the defendant's vendee, 
 in ignorance that the defendant was the real purchaser ; and the 
 matter having lain by for a whole year, it now seemed impossible 
 to say that the plaintiff had made, or could make, good title to the 
 stock, which is always an insuperable barrier to a decree for spe- 
 cific performance. The latest case upon the subject in the English 
 Court of Chancery Appeal holds, that an agreement to accept a 
 transfer of railway shares, on which nothing had been paid, was 
 not nudum pactum^ but a contract which may be specifically en- 
 forced in equity. Lord Chelmsford, chancellor, in delivering his 
 judgment, quotes with approbation the words of the Vice-Chan- 
 cellor of England, in Duncuft v. Albrecht. " There is not any kind 
 of analogy," said that learned judge, " between a quantity of three 
 per cent, or any other stock of that description, (which is always 
 to be had by any person who chooses to apply for it in the mar- 
 ket,) and a certain number of railway shares of a particular de- 
 scription, which railway shares are limited in number, and which 
 are not always to be had in the market." We regard this as the 
 latest authoritative declaration of the English equity courts upon 
 the subject.* 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.^ 
 
 ' Shaw r. Fisher, 6 De G. M. & G. 596 ; Sullivan r. Tuck, 1 Md. Ch. Dec. 
 59, id. 112; McGowin r. Remington, 12 Penn. St. 56. See, also, upon the 
 subject of specific performance in courts of equity, Adams, Eq. (ed. 1859), 
 77-91, and cases cited; Carpenter v. Ins. Co., 4 Sandf. Ch. 408; Lowry v. 
 Muldrow, 8 Rich. Eq. 241. 
 
 * Clieale r. Kenward, 3 De G. & J. 27. There has been a similar decision 
 by the Supreme Court of Massachusetts. Leach v. Fobes, 11 Gray, 506; 8. p. f 
 Todd V. Tall, 7 Allen, 371. 
 
 * Inge r. Birmingham W. & S. V. Railway Co., 3 De G. M. & G. 658 ; 8. C. 
 23 Eng. L. & Eq. 601 ; post, § 213. So also in their favor. Old Colony Railw. 
 c. Evans, 6 Gray, 25.
 
 134 
 
 TRANSFER OF SHARES. 
 
 CH. vni. 
 
 •SECTION VIII 
 
 Specific Performance. 
 
 1. Specific iperformanct decreed against the 
 
 vendee. 
 
 2. This uxu dotted in the early cases. 
 
 3. Owner of original shares may transfer 
 
 them. 
 
 4. 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 that purpose, it was so decreed.^ 
 
 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 
 
 » Wynne v. Price, 3 De G. & S. 310 ; s. c. 5 Railw. C. 465 ; Shaw v. Fisher, 
 2 De G. & S. 11 ; s. c. 5 De G., M. & G. 596. 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, 2 Coll C. C. 
 435 ; 4 Railw. C. 499, held, that where a testator, at the time of his death, 
 was possessed of fifty original shares, and seventy 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 ». Albrecht, 12 
 Simons, 189. But, as before said, it is well settled, that courts of equity in 
 England will not decree specific performance 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 Railw. C. 368 ; s. c. 4 Beavan, 59. 
 
 ♦132, 133
 
 § 39. SPECIFIC PERFORMANCE. 136 
 
 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 re- 
 garded 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 which 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 spe- 
 cific performance against a party, where it is not in his power to 
 perform, although such incapacity be the result of his own fault. _ 
 But will, in such case, leave the other party to his remedy at law, 
 by way of damages, which is all the redress that remains.^ 
 
 ' € G«o. 1. c. 18. 
 
 * Columbine r. Chichester, 2 Phillips, C. C. 27. 
 
 * Greenaway v. Adams, 12 Vesey, 395, 400; Varick v. Edwards, 11 Paige, 
 289. In the case of Miller v. The Illinois Central Railw. & Robert & George 
 Schuyler, 24 Barb. 312, it was held, that where the company, by their treasurer, 
 gave a receipt to the Schuylers for $7,600, 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 agree- 
 ment that he should have 300 of the shares, but no notice of any interest of plain- 
 tiff 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 tlie second new issue, nor had the 
 plaintiff knowledge 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 cer- 
 tain 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 understowl 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.
 
 186 
 
 TRANSFER OF SHARES. 
 
 CH. vni. 
 
 •SECTION IX 
 
 I^stee entitled to Indemnity against future Calls. 
 
 1. Trustee entitled to indemnity, on general 
 
 principles. 
 
 2. English courts hesitated in regard to rail- 
 
 wag shares. 
 8, 4. Cases remewed. 
 
 5. Mortgagees liable, as stockholders, for the 
 
 debts of the company. 
 
 6. The ostensible owner must respond to all 
 
 responsibilities. 
 
 7. Executors responsible personally. 
 
 § 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, as a personal 
 duty, from the cestui que trust in most cases.^ 
 
 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 ^ebt, by way of mortgage 
 or pledge. And it would seem, that no serious question could ever 
 have arisen upon the subject, but for the strange inconsistencies 
 into which the English courts and judges have been led, by at- 
 tempting, for so long a period, to maintain the doctrine laid down 
 in Humble v. Langston,^ but which is now effectually overruled, 
 in the tribunal of last resort.^ 
 
 3. But we shall refer briefly to the decisions, upon this point, in 
 regard to railway shares and stock, in other similar companies. 
 * It was held, by Wigram, Vice-Chancellor,* that where there was 
 
 ' Murray v. De Rottenham, 6 Johns. Ch. 62, 67 ; Green v. Winter, 1 Johns. 
 Ch. 27 ; Watts v. Watts, 2 M'Cord, Ch. 82 ; Myers v. Myers, 2 M'Cord, Ch. 
 264 ; McMillan v. Scott, 1 Monroe, 161 ; Morton v. Barrett, 22 Maine, 257 ; 
 Draper v. Gordon, 4 Sandf. Ch. 210; Egbert v. Brooks, 3 Harring. 110; 
 Methodist Episcopal Church v. Jacques, 1 Johns. Ch. 450 ; Storj' on Bailments, 
 §§ 306, 306 a, 367, 358. 
 
 * 7 M. & W. 517. 
 
 3 Walker v. Bartlett, 18 C. B. 845. 
 
 * Phene v. Gillan, 6 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 mortgagee, giving the proper indemnity for costs. And either the company 
 or the directors, who have prevented the shares from being transferred, are 
 proper parties to the bill, and, it would seem, necessary parties. 
 
 • 134, 135
 
 § 40. INDEMNITY AGAINST FUTURE CALLS. 137 
 
 a contract for retransfer, claimed by the mortgagor, or found, in 
 express terms, in the contract of pledge, or mortgage, or inferable 
 from circumstances, this was sufficient ground for implying a 
 contract, by the mortgagor, to indemnify the mortgagee, against 
 liability to the creditors of the company, for debts incurred, while 
 his name remained upon the register of shares, as owner, and a 
 decree was made accordingly. 
 
 4. The same learned judge, in the same case, considered, that 
 where the mortgage was made simply as an absolute transfer, 
 subject to redemption, and notbing had passed, binding the mort- 
 gagor to take a retransfer to the shares, the mortgagor was not 
 bound to indemnify the mortgagee against debts incurred after the 
 transfer made in the mortgage, and before the mortgage debt was 
 paid off. But it is here maintained, that the mortgagee has not in 
 such case any right, at law, against the mortgagor, as to payments, 
 which he has been compelled to make, while he remained the 
 ostensible owner of the shares, even where a contract for retrans- 
 fer is shown. But a late English writer upon this subject ^ seems 
 to incline to the opinion that, in such case, an action of trespass 
 on the case might be maintained, against the purchaser of shares, 
 who fails to cause his name to be registered as owner, or to in- 
 demnify the seller against liabilities after the sale. And the same 
 principle will apply to the mortgagee, after the debt is paid. But 
 all these refinements must now, we think, be regarded as effectu- 
 ally abrogated, by the virtual abandonment, by the English courts, 
 of the rule laid down in Humble v. Langston, and the recognition 
 of the contrary doctrine. 
 
 5. It has been held, in this country, that, where B. being in- 
 debted, transferred shares to his creditors, as security, with the 
 power of sale, and upon condition that the shares should be * re- 
 turned or accounted for, whenever the debt should be paid, the 
 debt being paid off, and an informal power of retransfer given the' 
 mortgagee, and subsequently a more formal one, the mortgagees 
 were 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 
 
 » Hodges, 122. 
 
 • Adderly v. Storm & Bailey, 6 Hill, 624. Branson, J., argiies 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 
 
 ♦ 136
 
 138 TRANSFER OP SHARES. CH. VHI. 
 
 terms overruled, although it is in principle we think, we here in- 
 sert the substance of the opinion of the court in Walker v. Bart- 
 lett, as showing the present state of the English law on the 
 subjects 
 
 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 mort- 
 gagor 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 Keman, 148 ; Wor- 
 rall V. Judson, 5 Barb. 210; Stanley v. Stanley, 13 Shepley, 191. In Adderly 
 V. Storm, supra 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. 
 
 ' " The case of W}-nne v. Price, 3 De G. & S. 310, shows that in equity the 
 plaintiff would be entitled, under the circumstances of the present case, to in- 
 demnity ; but it was contended for the defendant, that, however the case might 
 be in equity, there was no contract for indemnity to be implied by law; and 
 the 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 have been different. It must be admitted that, in principle, no substantial 
 difference can be taken between that case and the present, except this, that in 
 Humble v. Langston, the plaintiff claimed to be indemnified by the defendant 
 against all future calls, even though made after the defendant had himself trans- 
 ferred the shares to other persons ; and the Court of Exchequer, at the end of 
 the judgment, observes, that if there were any analog}' in principle between the 
 case of Burnett v. Lj-nch, 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 
 expresses 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, distinguish- 
 able from those in Humble r. Langston, and it consequently is not so direct an 
 authority 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 r. 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
 
 § 40. INDEMNITY AGAINST FUTURE CALLS. 139 
 
 * 6. It seems most unquestionable that a trustee may be made 
 liable for assessments or calls upon the shares standing in his 
 * name, beyond the amount of the trust property.^ And the trans- 
 feree of shares, having taken upon himself the position and attitude 
 of owner, cannot be allowed to excuse himself from responsibility 
 by pleading irregularity in transfers, and it makes no difference in 
 tliis respect whether he hold as trustee or beneficially. 
 
 7. Thus where reserved shares were offered to the shareholders 
 and the executors of such as are deceased, in proportion to the 
 original shares, it was held that executors who accept shares must 
 
 he pleased. That transfer expressed that the transferee took them subject to 
 the sainc rules as those under which the plaintiiT held them, one of which was, 
 that the registered owner should pay the calls. It could hardly have been the 
 intention 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 understood between them that the defendant should save the plaintiff* harm- 
 less from any calls made during the time when he was virtually owner of the 
 shares? 
 
 " In Burnett v. Lynch, a lease had been granted to Burnett, in which he cov- 
 enanted to pay the rent and repair the premises ; his executors assigned the 
 lease to LjTich, 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 
 plaintiff's, 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 hav- 
 ing taken an estate from another, subject to the payment of rent and perform- 
 ance 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 thatk 
 burden upon the other person. Reason and common sense show that that never 
 could be intended.' He then goes on to say, that though an action on the case 
 would lie, there might also be an action of assumpsit. 
 
 •* With the distinction of circiunstances to which we have already adverted 
 between this case and that of Humble v. Langston, we think that the principle 
 ujMjn 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." 
 
 » Hoare ex parte, 2 Johns. & Hem. 229 ; s. c. 8 Jur. N. S. 713. 
 
 • 137, 188
 
 140 
 
 TRANSFER OP SHARES. 
 
 CH. vm. 
 
 be placed upon the list of contributories ia their own right, and not 
 in their representative capacity.* 
 
 SECTION X. 
 
 Fraudulent Practices to raise the Price of Shares. 
 
 1. Courts of equity will vacate sales so pro- 
 
 ewred. 
 
 2. Necessary parties. 
 
 3, 4. Dividends declared when rume are earned 
 
 will vacate sales, and subject directors 
 
 to indictment. 
 5. Equity will not interfere where vendor 
 
 acted bona fide, unless the shares were 
 
 valueless. 
 
 6. Managers of company liable in tort to par- 
 ty injured. 
 
 7 and n. 10. Purchasing shares in another 
 company considered. 
 
 8. BoD& fide purchaser of shares Jraudulently 
 issued acquires same rights as other 
 shareholders. 
 
 § 41. 1. All fraudulent practices, either of the shareholders, or 
 directors, resorted to for the purpose of raising the price of shares 
 in the market, wliere sales have been induced in faith of the truth 
 of such representations, will be relieved against in a court of 
 equity.^ As where the directors of a joint-stock company, in * order 
 
 " Feamside & Deans Case, Law Rep., 1 Ch. 231. 
 
 ' Stainbank r. Femley, 9 Simons, 556. And in a very recent case, the 
 plaintiff, a director in a bank, who had been such from its organization, who usu- 
 ally attended the meetings, and was actually present and took part in the pro- 
 ceedings of the board of directors when the last dividend was declared, having 
 purchased from the cashier of the institution twenty shares of the capital stock, 
 brought an action to have such contract rescinded, and to recover back the 
 money paid, on the ground of false representations and concealments by the 
 cashier as to the value of the stock and the condition of the bank at the time 
 of the purchase : Held, that the plaintiff was not estopped from setting up his 
 actual ignorance of the condition of the bank at the time of the sale. 
 
 That although the purchaser was a director of the bank, having the means 
 of knowledge, he was not in the particular transaction chargeable with notice of 
 the condition of the bank. 
 
 That if he was actually ignorant of its condition, the fraudulent vendor 
 would be equally responsible to him for the deceit as to any stranger to the in- 
 stitution. 
 
 That it was not a case in which the plaintiff was legally bound to know the 
 truth or falsity of the vendor's representations. 
 
 Held, also, that the evidence in such action plainly showing that at the time 
 of the alleged sale and transfer of the stock, on the 29th August, 1857, the bank 
 was, by the application of all the ordinary- tests, sound, solvent, and prosperous, 
 ♦ 139
 
 § 41. PRACTICES TO RAISE THE PRICE OP STOCK. 141 
 
 to sell their shares to advantage, represented in their reports, and 
 by their agents, that the affairs of the company were in a very 
 prosperous state, and declared large dividends, at a time when the 
 affairs of the company were greatly embarrassed. 
 
 2. A person who had been induced, by these means, to purchase 
 shares of one of the directors, filed a bill against that director, 
 praying to be paid his purchase-money and offering to retransfer 
 the shares ; a demurrer for want of equity, and because 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 * similar fraud, through the fraudu- 
 lent representations of the directors, in their reports, as to the 
 prosperous state of the company's affairs, and that the plaintiff 
 had thereby been induced to purchase five hundred shares in the 
 bank, and praying that the sale might be declared void as between 
 him and the company, and that they might be decreed to repay 
 the purchase-money, it was held, that as the litigation was between 
 one member of the partnership and the other members, the public 
 
 and the stock worth all that the defendant had represented it to be, the plaintiff 
 could not be allowed to show the contrary by introducing in evidence what pur- 
 ported to be a certified copy of proceedings had in November, 1857, on the 
 petition of certain stockholders for the re-establishment of the bank. Lefevcr r. 
 Lefever, 80 N. Y. 27. 
 
 In the very recent case of Smith r. The Reese River Silver M. Co., Law Rep. 
 2 Eq. 264; 8. c. 2 Jur. N. S. 616 (April, 1866), where a person was induced to 
 take shares in a company on the faith of a statement in the prospectus, as to the 
 nature of the property contracted to be purchased, which statement the promoters 
 had no ground for believing to be true, and which turned out to be untrue, Sir W. 
 Page Wood, V. C, held, he was entitled to an injunction restraining the company 
 from enforcing calls against him, notwithstanding the articles of association to 
 which the prospectus referred would have informed the purchaser that the state- 
 ment in the prospectus was not justified. The learned judge said : " lie is not 
 bound to call at the office for the mere puqwse of ascertaining whether the repre^ 
 sentations are false or not. lie was entitled to rely upon the representations 
 made to him as being true to the knowledge of the directors." 
 
 But the party who claims to be injured by such fraudulent practices of directors 
 and other agents of corporations must bring his action for relief at the ear> 
 liest practicable opportunity after having learned the probable fact of such fraud- 
 ulent practices. Clarke v. Dickson, 1 El. Bl, & El. 148, 8. c. 6 Jur. N. S. 1029 ; 
 Hop & Malt Company in re, Law Rep. 1 Eq. 483. One who purchases upon 
 the facts stated in a prospectus must be held to have notice of facts stated in 
 other documents expressly referred to unless there is special grounds for pre- 
 suming the contrary. lb. 
 
 * 140
 
 142 TRANSFER OP SHARES. CH. VUI. 
 
 officer was improperly made a party, as representing the company, 
 and a demurrer was allowed.^ 
 
 But in a late case before the Court of Chancery Appeal, it 
 was decided that the directors of a railway company are in the 
 position of trustees, and if the purchaser has not by his own con- 
 duct affected his rights, the company cannot, as against him, 
 retain money acquired from a fraudulent sale of their property to 
 him, through the false representations of their directors. But the 
 court held that the plaintiflF was not entitled to a decree against 
 the directors, but was entitled to a decree against the company for 
 his money and interest.^ 
 
 And it seems to be settled, by the decision of the House of 
 Lords, that in England and in Scotland, for any fraudulent act 
 done by the directors, without the range of the powers of the com- 
 pany, whereby third persons suffer damage, they are personally 
 liable to an action : but for all such acts within the power of the 
 body of the shareholders to sanction, although the directors might 
 not have been justified in what they were doing, there could be 
 no right of action.* 
 
 And a director cannot screen himself from responsibility for any 
 imposition which is brought upon others by means of the * circula- 
 tion of a prospectus through his instrumentality, upon the ground 
 that the document is capable of a construction by which it may be 
 regarded as true. It is for the jury to say whether that is the 
 natural sense.^ And it is not necessary that there should have 
 been any direct communication between the plaintiff and defend- 
 ant in order to subject the defendant to an action for false repre- 
 sentation. If the defendant authorized the circulation of the 
 prospectus before the public, containing false representations, by 
 
 ' Seddon v. Connell, 10 Simons, 68. It was further held, in this case (10 
 Simons, 79) that it is not competent for the party in such case to file a bill against 
 the company and some of the directors, praying, that if he is not entitled to re- 
 lief 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. 
 
 ' Conybeare v. New Brunswick & Canada Railw. & Land Company, 1 De G. 
 F. & J. 578 ; 8. c. 6 Jur. N. S. 518. 
 
 * Davidson v. Tulloch, 3 McQu. Ho. Lds. 783 ; 8. c. 6 Jur. N. S. 543. 
 
 » Clarke r. Dickson, 6 C. B. N. S. 453 ; 8. c. 5 Jur. N. S. 1029. See also Nicol 
 ex parte, in re Royal British Bank, 3 De G. F. «& J. 387 ; s.c. 6 Jur. N. S. 205. 
 * 141
 
 § 41. PRACTICES TO RAISE THE PRICE OP STOCK. 143 
 
 which the plaintiff was misled, it is the same as if tlie defendant 
 had made such representations to him personally.^ And tlie fact 
 that other inducements were also held out to plaintiff by other 
 parties by which he was partially influenced, will not excuse the 
 defendant.^ 
 
 But the representation of an officer of the company as to the 
 effect of deeds, which it forms no part of his duty to expound, 
 will not release the party executing the deed from his liability.^ 
 
 3. The declaring of dividends by the directors, where none 
 have been earned, if done by them for the purpose of fictitiously 
 enhancing the price of shares, for their own benefit, is regarded 
 as such a fraud as will relieve a party who has purchased shares 
 in faith of such facts, at prices greatly beyond their value," and 
 the transfer of the shares will be set aside. 
 
 4. In this case," Lords Campbell and Brougham concurred in 
 saying : " Dividends are supposed to be paid out of profits only, 
 and where directors order a dividend to be paid, when no such 
 profits have been made, without expressly saying so, a gross 
 fraud is practised, and the directors are not only civilly liable to 
 those whom they have deceived and injured, but are guilty of 
 conspiracy, for which they are liable to be prosecuted and pun- 
 ished." 
 
 5. Where both parties labored under the same delusion in re- 
 gard to the value of stock, relief could not be granted, of course, 
 on the ground of fraud in the sale, and a court of equity * will not 
 ordinarily interfere to set aside a sale, on the ground of mutual 
 misapprehension as to the state and condition of the subject-mat- 
 ter, unless in extreme cases, as where that is sold as valuable 
 which is wholly valueless, or does not exist.^ To constitute 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 company's * 
 funds and property, and that the party gaining the advantage in 
 the bargain should, in some way, participate in giving currency to 
 the false estimate of its condition, beyond the mere fact of repeat- 
 
 • Athenseum Life Ins. Co. in re Sheffield, 6 Jur. N. S. 216 ; 8. c. Johnson, 
 Eng. Ch.461. 
 
 ' Burnes r. Pennell, 2 House of Lords' Cases, 497. 
 
 » 1 Story's Eq. Jur. § 142 ; Hitchcock v. Giddings, 4 Price, 186, 141 ; 2 Kent, 
 Comm. 469. 
 
 • 142
 
 144 TRANSFER OP SHARES. CH. VIII. 
 
 ing 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 for any privity between the parties to support an action 
 of tort, for a false representation. But, where the action is ex 
 contractu, or quau ex contractu^ some privity is indispensable to 
 the maintenance of the action.^ 
 
 7. It has recently been decided that a bona fide sale and trans- 
 fer of property of one company to another, in consideration of 
 shares in the one company being transferred to the other, is not 
 such a return of capital as would be in contravention of the Eng- 
 lish statute, which is in confirmation of the general rule of law, 
 prohibiting the conversion by corporations of capital into income, 
 and thus virtually reducing the stock of the company below the 
 requirements of the charter ; and on the other hand giving * the 
 shares of the company a false value in the market by reason of 
 fictitious dividends.^*' 
 
 » Gerhard v. Bates, 2 El. & Bl. 476 ; s. c. 20 Eng. L. & Eq. 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 guaranteed a certain semi- 
 annual dividend to all who should purchase, but without any other communication 
 with the plaintiff personally, 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. 
 
 '0 Cardiff C. & C. Co. m re Norton, 11 W. Rep. 1007. See also McDougall 
 V. Jersey Imp. H. Co., 2 H. & M. 528 ; s. c. 10 Jur. N. S. 1043. This point of 
 one company taking shares in another company is discussed, to some extent, in 
 the Court of Chancery Appeal in the recent case of Great Western Railw. Co. 
 V. Metropolitan Co., 9 Jur. N. S. 662. There can be no doubt, as a general 
 rule, this will not be allowed, unless by the express sanction of legislative per- 
 mission. And it was here considered, that such an express sanction will not be con- 
 strued to extend to additional shares, issued by the same company, and expressly 
 required to be allotted to the existing shareholders. Vice-Chancellor Wood, when 
 the case was before him, cited the case of Solomons v. Lang, 12"Beav. 377, as 
 establishing the right of the defendant in the suit, to raise the question of the plain- 
 tifTs right to take these additional shares, beyond the amount which the special 
 legislative permission authorized. The case of the Attorney-General v. The Great 
 * 143
 
 §42. 
 
 LIABILITY OP COMPANY FOR NOT REGISTERING. 
 
 145 
 
 8. But the bona fide purchaser of shares fraudulently issued 
 acquires the same right as other shareholders, unless he buys 
 after tlie company is in the process of liquidation ; and even in 
 that case he may come in for his equal proportion of the assets, by 
 proving that he bought of one who was a bona fide holder before 
 the company was subjected to the process of being wound up." 
 But a bona fide sale of shares in a company, entered into after the 
 presentation of the petition, but before the first advertisement for 
 winding up the company, both vendor and purchaser being ignorant 
 that such a petition was pending, was held sufficient to have passed 
 the title.i2 
 
 SECTION XI". 
 Liability of Company for not registering Transfers. 
 
 1. Tht company liable to action. 
 
 2. May be compelled to record transfers by 
 
 mandamus. 
 8. But not compellable to record mortgages of 
 shares. 
 
 4. Grounds of denying mandamus. 
 
 5. Bill in equity most appropriate remedy. 
 
 6. Rule of damages. 
 
 § 42. 1. It seems to be settled in England, that an action will 
 * lie against a joint-stock company, who neglect or refuse, upon prop- 
 er request, to register shares and deliver new certificates, after 
 the deed of transfer has been sent to the secretary. Damages 
 may be recovered, it seems, by reason of such refusal of the com- 
 pany, whereby the party is deprived of the right to attend and vote 
 at the meetings of the company, and especially where calls are 
 made upon the shares, and in consequence of non-payment the 
 shares are declared forfeited and sold.^ 
 
 Northern Railw. Co., 1 Drew. & Sm. 154; 8. c. 6 Jur. N. S. 1006, is also cited 
 by the learned judge as analogous to the case then before him. 
 
 " Barnard v. Bagshaw, 1 H. & M. 69. 
 
 " Emmerson's case. Law Rep. 2 Eq. 231 ; 8. c. reversed on Appeal, Law 
 Rep. 1 Ch. App. 433. 
 
 ' Hodges on Railways, 123; Catchpole v. Ambergate Railw. Co., 1 Ellis & 
 Black. Ill ; 16 Eng. L. & Eq. 163. See also Wilkinson r. Anglo California 
 Gold Co., 18 Q. B. 728 ; 8. c. 12 Eng L. & Eq. 444. In regard to the right to 
 sustain a writ of mandamus in England, to compel such transfer, upon the books 
 of the company, see Rex r. Worcester Canal Co., 1 M. & R. 529; Regina v. 
 Liverpool, Manchester, & Newcastle-upon-Tyne Railw. Co., 11 Eng. L. & Eq. 
 408 ; Sargent a Franklin Insurance Co., 8 Pick. 90. So also an action on the 
 
 10 •144
 
 146 TRANSFER OP SHARES. CH. VHI. 
 
 2. There can be no question probably in this country, that 
 where the company refuse on reasonable request, to make the prop- 
 er 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 reg- 
 ister trust-deeds or mortgages, and especially such as contain other 
 property, or the stock of other companies. The mandamus was 
 refused in such a case, in the Queen's Bench, so late as * May, 1856, 
 and upon the ground as stated by Lord Campbell, 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 convenience 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." ^ 
 
 4. But a mandamus to compel the registry of the transfer of 
 shares in a railway company to an infant,^ was denied. And the 
 
 case will lie for not transferring stock. The rule of damages, where the stock 
 has been sold, as the property of the vendor, is the value of the shares at the time 
 of the refusal, 8 Pick. 90, or it has sometimes been held, the highest value, be- 
 tween the time of refusal and the commencement of the action. Kartright r. 
 Buffalo Commercial Bank, 20 Wend. 91 ; s. 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 married 
 woman, out of her earnings, she and her husband may sue jointly for dividends, 
 and if she sue alone, it is only ground of abatement. Dalton v„ Midland Railw. 
 Co., 13 C. B. 474; s. c. 20Eng. L. & Eq. 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 transferror and transferee, the 
 Court will not grant an interpleader. Dalton v. Midland Railw. Co., 12 C. B. 
 468 ; 8. 0. 13 C. B. 474; 22 Eng. L. & Eq. 452. 
 
 « Reginar. General Cemetery Co., 6 El. & Bl. 415 ; s. c. 36 Eng. L. & Eq. 126. 
 
 ' Reg. V. Mid. Counties & Sh. Junction Railw. Co., 15 Ir. Com. Law, 514, 
 525; 8. c. 9 Law T. N. S. 151. But the practice of compelling the registry of 
 transfers, by mandamus, seems well established, even where they are not of a 
 character to induce the most favorable consideration, as where it was a transfer to 
 a pauper to enable the transferror to get rid of liability, it being intended to be 
 out and out, with no secret trust for the transferror. lb. The transfer of shares 
 for special purposes is so frequent, and the motives and occasions are so various, 
 that it could not be expected to give an abstract of all the cases? As a general 
 ♦ 146
 
 § 42. LIABILITT OP COMPANY FOR NOT REGISTERING. 147 
 
 court of equity declined to interfere to compel the registry of the 
 transfer of shares when the company are denied the opportunity of 
 inspecting the certificates by their directors.* 
 
 5. The more effectual, and at present the more usual, remedy 
 against corporations for refusing to allow the transfer of stock upon 
 their books into the name of the real owner is by bill in equity. 
 And in one case, where the party whose stock had been allowed by 
 the bank to be transferred into the names of those who had pur- 
 chased it under forged powers of attorney sought redress by an 
 action at law, the court said, " We cannot do justice to this plain- 
 tiff unless we hold that the stocks are still his," and therefore de- 
 nied the action for the value of the stocks, but allowed a * recovery 
 for the dividends which had been declared after the transfer. 
 
 6. And there is the same difficulty in compensating the purchas- 
 er of stocks, where a transfer on the books has been denied in an 
 action at law. In some cases this has been attempted to be done 
 by allowing the party to recover the highest market price of the 
 stock between the refusal to transfer and the trial. But the only 
 rule at all analogous to settled principles seems to be that the cor- 
 poration shall pay the value of the stock at the date of their refusal 
 to transfer it, as that is the time when the corporation became in 
 default, and when by said default the stock, as between the parties 
 became theirs.^ The question of the effect of forged and fraudu- 
 lent transfers is very ably discussed by the court of Chancery 
 Appeal in Tayler v. Great Indian Peninsular Railway.* 
 
 rule, one who understandingly consents to have shares transferred into his name 
 upon the public registry- of shares, must be content to assume all the responsi- 
 bility towards the public and the other shareholders not conusant of the special 
 contract, which any other shareholder would incur. But as between the com- 
 pany and the purchaser there may be special grounds of relief. Coleman ex 
 parte, 1 De G, J. & Sm. 495 ; Grady ex parte, id. 488 ; Barrett ex parte, 10 
 Jur, N. S. 711 ; Saunders ex parte, id. 246 ; 8. c. 4 Giff. 179. ^ 
 
 Any transaction of this kind will not be disturbed, after considerable lapse of 
 time. Spackman ex parte, 1 Do G. J. & Sm. 604; 8. c. 10 Jur. N. S. 911; 
 Lane ex parte, id. 25; Spackman ex parte, reversed, 11 Jur. N. 8. 207. 
 
 * East Wh. M. M. Co. in re, 33 Beav. 119. 
 
 » Pinkerton r. M. & L. Railw., 1 Am. Law Reg. N. S. 96; 8. c. 42 N. H. 
 424. 
 
 « 6 Jur. N. S. 1087 ; 8. c. 4 De G. & J. 659. See post, § 193, pi. 12. And 
 see Building Association r. Sendemeyer, 60 Penn. St. 67. 
 
 •146
 
 148 
 
 TRANSFER OP SHARES. 
 
 CH. Yin. 
 
 SECTION XII. 
 
 When Calls become Perfected. 
 
 1. Calls are made when the sum is assessed, 
 
 notice may be given ajiencards. 
 
 2, 3. Directors the proper authority to make 
 
 calls. 
 
 4. The manner of giving notice and of 
 proof. 
 
 § 43. 1. The English statute of 1845, called the Companies 
 Clauses Consolidation Act, requires all calls to be paid before any 
 valid transfer can be made. Under this statute, and similar pro- 
 visions in special charters, it has often been made a question, when 
 a call may be said to be made. It seems to be considered that the 
 word call in this connection, may refer to the resolution of the 
 directors, by which a certain sum is required to be paid to the com- 
 pany, by the shareholders,^ or secondly to the notice to * the share- 
 holders of the assessment, and the time and place at which they 
 will be required to make payment, and the amount to be paid. But 
 it seems finally to be settled, that the company are not obliged to 
 regard any transfer, made after the resolution of the directors, 
 making the assessment, which need not specify the time of pay- 
 ment, but that may be determined, by a subsequent act of the 
 board .2 
 
 * Ex parte Tooke, In re The Londonderry and Coleraine Railw. Co., 6 Railw. 
 C. 1 (1849) ; North American Colonial Association of Ireland v. Bentley, 19 
 L. J. (Q. B.) 427 ; 15 Jur. 187. 
 
 A resolution of the board of directors requiring the stockholders to pay an 
 instalment of ten per cent every thirty days, on all cash subscriptions, until the 
 whole is paid, and that due notice thereof be given, is admissible evidence of 
 calls for the whole subscription. It was here considered that the words "month," 
 and " thirty days," used in different portions of the act, must be considered of 
 the same import. Heaston v. Cincinnati & C. R. R., 16 Ind. 275; Sands v. 
 Sanders, 26 N. Y. 239. 
 
 » Great North of England Railw. Co. v. Biddulph, 2 Railw. C. 401 ; s. C. 
 7 M. & W. 243 ; Newry and Enniskillen Railw. Co. ». Edmunds, 5 Railw. C. 
 275; 8. c. 2 Exch. 118, 122. Parke, B., in The Ambergate, &c., and Eastern 
 Junction Railw. Co. v. Mitchell, 6 Railw. C. 235 ; 8. C. 4 Exch. 540 ; Regina o. 
 Londonderry &*Coleraine RaUw. Co., 13 Q. B. 998. 
 
 Unless there is something in the subscription, or the charter and by-laws 
 
 of the company requiring notice of caUs, or making the subscription payable 
 
 upon calls, it is said in Lake Ontario A. & N. Y. v. Mason, 16 N. Y. 
 
 451, that it is not indispensable that notice of calls shoUld be given the sub- 
 
 *147
 
 § 43. WHEN CALLS BECOME PERFECTED. 149 
 
 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.^ 
 
 * 4. The question of what shall amount to a good call, and how 
 the same may be shown in court, is considerably examined in Miles 
 V. Bough.* It is here decided, that no person could be sued for 
 non-payment of a call till, he had received due notice thereof, 
 although the statute did not require notice in express terms ; that 
 an order to pay the money at a given broker's was a good call ; 
 that in the declaration it was sufficient to allege that the calls were 
 made and the defendant duly notified, without further specification 
 of particulars ; and that the jury may infer sufficient notice from 
 the fact of an express promise to pay, notwithstanding it appeared 
 that a defective notice had been sent, unless it appeared that was 
 the only notice given, when the case must be decided upon the 
 sufficiency of the notice in fact given. 
 
 scribers before suit. But this seems contrary to the general course of 
 decision upon the point, and somewhat at variance with the idea of a call, 
 or assessment upon subscriptions to stock. And such seems to be the general 
 understanding of the rule in the American courts. But these questions will 
 depend verj' much upon the special provisions of the statutes, in the different 
 states, by which the matter is controlled, and somewhat upon the special terms 
 of the contract of subscription. Heaston p. Cincinnati & C. R. R. 16 Ind. 275. 
 Thus, in the present case it was held the general railway law of Indiana did 
 require notice and a personal demand before proceeding to forfeit the stock, but 
 not before suit to recover instalments ; that as to calls the statute required the 
 subscribers to take notice of the action of the directors. It is further said, that 
 where the articles of association or the preliminary articles of subscription, or 
 both combined, contain an undertaking to pay the amount subscribed on certain 
 terms and conditions, an action will lie to enforce the stipulations upon proof of 
 the subscription and the performance of the conditions. 
 
 ' Ambergate, N. & B. & Eastern Junction Railw. Co. r. Mitchell, 4 Exch. 
 640. Pollock, Ch. B. '* The next objection is, that the directors made those 
 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 noth- 
 ing in the act which makes it necessarj' that the company should make calls at 
 a general meeting." 
 
 Parke, B. " The directors may exercise all the powers of the company ex- 
 cept those which are to be exercised by the company at their general meeting, 
 and the power of making calls is not such a power as is required to be so 
 exercised." 
 
 * 3 Q. B. 845. Defective notice by publication is not aided by personal 
 notice of a shorter time. Sands c. Sanders, 26 N. Y. 239. 
 
 • 148
 
 150 
 
 TRANSFER OP SHARES. 
 
 CH. vin. 
 
 SECTION XIII 
 
 Transfer by Death, Insolvency, or Marriage. 
 
 1. Mandamua lies to compel the registry cf 4. Notice requisite to perfect the tiile of mart- 
 successor, gogee. 
 
 8. In case of death, personal representative 5. Stock in trust goes to new trustees. ( 
 
 liable to caOs. 6. A^gnees of insolvents not liable for the 
 
 dd)ts 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 Eng- 
 lish statute requires a declaration of the change of ownership, to 
 be filed with the secretary of the company, and the name of the 
 new owner is thereupon required to be entered upon the * register 
 of shareholders. A mandamus will lie to compel the clerk to make 
 the proper entry in such case.^ 
 
 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 tlie decease of the pro- 
 prietor, vests in his personal representative, in trust, first for the 
 payment of debts, and afterwards for legatees, or in default of 
 them, the heirs of such proprietor. 
 
 3. And so far as regards voting upon such shares, the title of 
 the executor or administrator will ordinarily be suflScient. Before 
 the name of the executor or administrator is entered upon the 
 books of the company, as a shareholder, the estate only could be 
 held liable for calls probably, and perhaps the same rule of liability 
 would obtain after that.^ But in general where shares in a joint- 
 
 ' Rex r. Worcester Canal Company, 1 M. & R. 629. 
 
 * Fyler ». Fyler, 2 Railw. C. 873, s. c. 3 BeaT. 650; Jacques v. Chambers, 
 2 Coll. C. C. 436 ; 8. c. 4 Railw. C. 499. But the administrator or other personal 
 representative of a deceased shareholder, may, under the recent English statute, 
 the Common-law Procedure, maintain an action against the company for refusal 
 to register his name, as successor, to the title to the shares, and after having re- 
 covered damages, he is entitled to a mandamus to compel the company to register 
 his name. He is abo entitled to the prerogative writ of mandamus in such cases 
 at common law. Norris r. The Irish Land Co., 8 El. & Bl. 512 ; s. c. 30 Law 
 Times, 132. 
 
 •149
 
 §45. 
 
 LEGATEES OF SHARES. 
 
 151 
 
 stock company are bequeathed specifically, the legatee takes them 
 subject to all future calls.^ But where the payment of future calls 
 is indispensable to bring the shares into the state in which the 
 testator regarded them in his will, such calls should be paid by the 
 estate.* 
 
 4. In case of death or insolvency, the title of a mortgagee first 
 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 trans- 
 ferred 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 
 consists of shares in a manufacturing corporation, are not liable 
 under special statutes, making shareholders liable for the debts of 
 the corporation. That is a provision of positive law, and is to be 
 construed strictly.^ 
 
 SECTION XIV. 
 Legatees of Shares. 
 
 1. Entitled to election, interest, and new siiares. 
 
 2. Shares owned at date of unll pas$, although 
 
 converted into consolidated stock. 
 
 8. Consolidated stock subsequendy acquired 
 will not pau. 
 
 § 45. 1. Legatees of railway shares have the election out of 
 which class of shares their legacy shall be paid, when there is more 
 
 ' Blount V. Hipkins, 7 Sim. 43, 51 ; Jacques o. Chambers, 2 Coll. 435 ; Cliva 
 r. Clive, Kay, 600 ; Wright r. Warren, 4 De 6. & Sm. 367 ; Adams r. Ferick, 
 26 Beav. 384. 
 
 ■• Armstrong r. Burnet, 20 Beav. 384. 
 
 • Gumming c. 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 ; Dimcan e. Chamberlayne, 11 Simons, 
 123 ; Etty p. Bridges, 2 Yo. & CoU. 486. 
 
 ' Shelford, 118-121. 
 
 ■ Ex parte Walker, 19 Law J. Bank. 8. 
 
 • Gray v. Coffin, 9 Cush. 192. 
 
 •160
 
 152 
 
 TRANSFER OP SHARES. 
 
 CH. vra. 
 
 than one class of the same description found in the will. And 
 they are entitled to the income of the shares, after the death of the 
 testator, and to receive any advantage, by way of new shares result- 
 ing from the ownership of the shares.^ 
 
 But a specific legatee of shares is not entitled to a bonus on such 
 shares, declared after the decease of the testator, but arising out of 
 moneys due the company from the testator, and which * claim was 
 compromised by his executors, but such bonus belongs to the gen- 
 eral fund of personal estate.^ And such legatee must bear the 
 calls which are made after the testator's death, unless there is 
 something in the will to show a different intent.^ 
 
 2. A bequest of the testator's railway shares, of which he 
 should be possessed at liis decease, was held to pass such rail- 
 way shares specifically named in the will as the testator had at 
 the date of his will, although subsequently converted into con- 
 solidated stock of the same company, by a resolution of the 
 company. 
 
 3. But that other consolidated stock of the same company owned 
 by testator at his decease, did not pass under the will, the same 
 having been purchased after the execution of his will.^ 
 
 SECTION XV. 
 
 Shares in Trust. 
 
 1, 2. Company may safdy deal ivith regis- 
 tered owner. 
 
 8. But equity will protect the rights of ceetma 
 que trust. 
 
 4, and note 2. Discussion of the rights of 
 cestuis que trust in stock certificates. 
 
 § 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 
 
 » Jacques r. Chambers, 2 CoU. C. C. 435 ; 8. c. 4 Railw. C. 205 ; Tanner v. 
 Tanner, 5 Railw. C. 184; 8. c. 11 Beav, 69. And it is held in this last case, 
 that upon a bequest of railway shares and all right, title, and interest therein, 
 money paid beyond the calls will pass to the legatee. 
 
 » Maclaren v. Stainton, 27 Beav. 460 ; 8. c. 6 Jur. N. S. 360 ; Loch v. Ven- 
 ables, 27 Beav. 598 ; s. c. 6 Jur. N. S. 238. 
 
 » Day V. Day, 1 Drew. & Sm. 261 ; 8. c. 6 Jur. N. S. 365. 
 
 * Oakes v. Oakes, 9 Hare, 666. 
 *161
 
 § 46. SHARES IN TRUST. 153 
 
 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 
 tlie claim of the assignee and the company, who have made ad- 
 vances to the nominal owner, upon the faith of his being the true 
 • owner, but without any pledge of the stock. ^ 
 
 2. In general, in this country, it is believed railway companies 
 will be protected in dealing bona fide with the person in whose 
 name shares are registered on the books of the company, as the 
 absolute owner, notwithstanding any knowledge they may have of 
 the equitable interest of third parties. 
 
 3. But there can be no question, a court of equity will always pro- 
 tect the interest of a cestui que trust, when it can be done without the 
 violation of prior or superior equities, which have bona fide attached. 
 
 4. It was recently held after careful examination of the 
 authorities,^ that the holder of stock, as trustee, has prima facie 
 no right to pledge it as security for his private debt, and one who 
 accepts the pledge under such circumstances, acquires no rights 
 against the cestui que trust. And the word " trustee " in the 
 certificate, in connection with the name of the holder, is notice to 
 all persons to whom the certificate may be delivered, sufficient to 
 put the party on inquiry, as to the nature of the holder's title, and 
 the character and extent of the trust. 
 
 ' Pinkett v. Wright, 2 Hare, 120. This is a very elaborate opinion of the 
 learned Vice-Chancellor Wiffram, 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 £hat of his cestuis que trust, and that shares which 
 stood in the name of the trustee at the time of the bankruptcy, and thenceforward 
 remained in his name, might fairly be presumed to be identical with those in 
 which the trust funds were invested, the number of shares being the same. 
 
 Notice to the company is indispensable to create an equitable mortgage of 
 railway shares. Ex parte Boulton r. Skelehley, 29 Law Times, 71 ; s. c. 1 
 De G. & J. 178. 
 
 • Shaw c. Spencer, 8 Law Reg. N. S. 299 ; s. c. 99 Mass., not yet reported. 
 The decision here falls short, probably, of what the authorities will justify, if the 
 case had required it. But the usages of the Stock Exchange, whereby trustees 
 are enabled to defraud their cestuis que trust, for the benefit of speculators, 
 
 •162
 
 154 
 
 TRANSFER OF SHARES. 
 
 CH. VIII. 
 
 SECTION XVI. 
 
 The extent of Transfer requisite to exempt from claim of 
 
 Creditors. 
 
 8, 4. In same of the ttata no record required. 
 n. 8. Question Jitrther amsidered. 
 
 1. How transfer of stock perfected a* to 
 
 creditors. 
 
 2. Reasonable time allowed to record transfer. 
 
 § 46. a. 1. The question of what constitutes a valid transfer 
 of shares in a joint-stock corporation, so as to exempt them from 
 attachment and levy by creditors of the transferror, is considerably 
 discussed in a recent case in New Hampshire by a judge of large ex- 
 perience, and the result reached, that upon a pledge of stock in a rail- 
 way corporation in New Hampshire, there should be such delivery 
 as the nature of the thing is capable of, and to be good against a 
 subsequent attaching creditor the pledgee must be clothed with aU 
 the usual muniments and indicia of ownership ; that by the laws 
 of New Hampshire, a record of the ownership of * shares must be 
 kept, by domestic corporations, within the state, and by oflBcers 
 resident there ; and that on the transfer of stock the delivery will 
 not be complete, as to creditors, until an entry is made upon such 
 stock-record, or it be sent to the office for that purpose, and the 
 omission thus to perfect the delivery will he prima fcune^ and if un- 
 
 receives a moderate but very just rebuke. 1. By declaring that certificates of 
 stock in blank are not to be regarded as negotiable instruments, cutting off all 
 equities of bona jide parties in interest, s. p. Sewall r. Boston Water Power, 
 4 AUen, 482. 2. By declaring that no usage or custom of brokers, or course of 
 business, can avail to defeat, or qualify, the established rules of law, recognized 
 in courts of equity. The following significant intimation of the court is worthy 
 of repetition : " The circumstance that stock certificates, issued in the name of 
 one as trustee, and by him transferred in blank, are constantly bought and sold 
 in the market without inquiry, is likewise unaTailing. A usage to disregard one's 
 legal duty, to he ignorant of a rule of law, and to' ad as if it did not exist, can 
 have no standing in the courts.'''' We should be rejoiced to persuade ourselves, 
 that we had reached a point where the dishonest practices of trade could no 
 longer receive countenance by the courts, either directly or indirectly. We 
 regard this case as falling far short of the truth, but as it is all which the case 
 required, it is gratifying to believe the courts are moving in the right direction, 
 and may ultimately be able to convince men who shut their eyes to exclude the 
 light, that they need not feel surprise, to find their blind boot}- turning to ashes 
 in their grasp ; and the interests of the widow and the fatherless finally regarded 
 as of more value, in the public esteem, than the accumulation of gain, by in- 
 direction and evasion, intended to defraud them of their last penny. 
 
 •153 , '
 
 § 46 O. TRANSFER EXEMPT FROM CREDITORS. 155 
 
 explained conclusive evidence of a secret trust, and therefore, as 
 matter of law, fraudulent and void as to creditors.^ 
 
 2. But in the case last cited it is said that when ^ the transfer 
 is made at a distance from the office and the old certificate sur- 
 rendered and a new one given by a transfer agent residing in a 
 neighboring state, proof that the proper evidence of such transfer 
 was sent by the earliest mail to the keeper of the stock record to 
 be duly entered, although not -received until an attachment had in- 
 tervened, would be a sufficient explanation of the want of delivery 
 and the transfer would be good against the creditor. Any un- 
 reasonable delay in perfecting the record title to such shares leaves 
 them liable to the claims of creditors. 
 
 3. But where the charter of the company or the general laws of 
 the state contain any specific restriction or requirement in regard 
 to the transfer of shares, it must be complied with or the title will 
 not pass.'* 
 
 4. In a recent case in New Jersey,^ it seems to be considered 
 that nothing more is required to make an effi3ctual transfer of stock 
 in a bank, even as against creditors, than an assignment of * the 
 certificates and a delivery to the assignee, and that this will be 
 regarded as- effectual against an attaching creditor without notice, 
 even where the charter of the company declares the stock personal 
 estate, and provides that " it shall be transferable upon the books 
 of the corporation," and also, " that books of transfer of stock shall 
 be kept, and shall be evidence of the ownership of said stock in all 
 elections and other matters submitted to the decision of the stock- 
 holders." 
 
 ' Pinkcrton v. ^Manchester & Lawrence Railw., 1 Am. Law Reg. N. S..96; 
 8. c. 42 N. H. 424. 
 
 • Fisher v. Essex Bank, 5 Gray, 373 ; Sabin v. Bank of Woodstock, 21 Vt. 
 862; Pittsburgh & Connellsville R. Co. r. Cl&rke, 29 Penn. St. 146. 
 
 ' Broadway Bank r. McEIrath, 2 Beasley, 24. We think it proper to say* 
 that there is considerable difference in the decisions of the different states as to 
 the point of time from which the transfer of equitable titles is to be reckoned, as 
 between purchasers for value and creditors. It is generally considered that the 
 transfer takes effect from the date of notice to the trustee, who holds the legal 
 title, subject to all equities, and these do not attach ordinarily until after notice 
 brought home to the trustee. Some of the states regard the equitable rights of 
 the purchaser as dating from the period of the actual purchase, provided notice 
 to the trustee be given within reasonable time after. We have discussed the 
 question and the cases, to some extent, in Rice v. Courtis, 32 Vt. 460 ; 1 Story 
 Eq. Ja. 400 b, Redf. Ed. 
 
 •154
 
 156 
 
 ASSESSMENTS OR CALLS. 
 
 CH. IX. 
 
 •CHAPTER IX. 
 
 ASSESSMENTS OR CALLS. 
 
 SECTION I. 
 
 Party liable for Calls. 
 
 1. The party upon the register liable for calls. 
 
 2. Bankrupts remain liable for calls. 
 
 8. Cestuis que trust not liable for calls in 
 law or equity. 
 
 4. Trustee compelled to pay for shares. 
 
 5. One on registry may show his name im- 
 
 properly placed there. 
 
 § 47. 1. It seems to be settled law that the registered owner of 
 railway shares is liable for all calls thereon, so long as his name 
 remains upon the register.^ 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. ^ 
 
 • Midland Great "Western Railw. Co. v. Gordon, 5 Railw, C. 76 ; s. c. 16 M. 
 & W. 804; Mangles v. Grand ColUer Dock Co., 10 Sim. 519 ; s. c. 2 Railw. C. 
 359 ; Sayles ». Blane, 14 Q. B. 205 ; 8. c. 6 Railw. C. 79 ; West CornwaU R. v. 
 Mowatt, 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. See post, § 236. 
 
 Long Island R. Co., 19 Wend. 37; Mann r. Currie, 2 Barb. 294; Hartford 
 & N. H. R. V. Boorman, 12 Conn. 530 ; Mann v. Cooke, 20 Conn. 178 ; Rose- 
 velt V. Brown, 1 Kernan, 148. The registry-book of shareholders is prima facie 
 evidence of the liability to calls, of those whose names appear upon it, although 
 irregularly kept. Birmingham R. v. Locke, 1 Q. B. 256 ; London Grand J. R. 
 V. Freeman, 2 M. & G. 606 ; Same v. Graham, 1 Q. B. 271 ; Aylesbury R. v. 
 Thomson, 2 Railw. C. 668. This last case holds that the purchaser of shares 
 is only liable for calls made after his name is upon the register. The company 
 may, by its charter, and probably by a by-law, provide that the original sub- 
 scriber shall be holden for all calls, or until a certain amount is paid in. Vicks- 
 burg, Shreveport, & Texas Railw. v. McKeen, 14 La. Ann. 724. 
 
 * South Staffordshire R. v. Burnside, 2 Eng. L. & Eq. 418 ; s. c. 5 Exch. 
 129 ; 6 Railw. C. 611. 
 
 * 155, 156
 
 § 47. PARTY LIABLE FOB CALLS. 157 
 
 3, The trustee of shares, whose name appears upon the books of 
 the company, is alone liable for calls, and the company have uo 
 remedy in equity for calls against the cestui que trust.^ 
 
 But if a shareholder when the company is in extremis makes a 
 colorable transfer to an irresponsible person, it will not be held to 
 relieve him from liability to contribute.* But in the absence of 
 fraud or malafdes, the cestui que trust cannot be subjected to a call, 
 although he may be compelled to indemnify his trustee.^ But it 
 seems finally to be settled in the English Court of Chancery, that 
 a shareholder may transfer his shares in an abortive company, 
 where such shares pass by delivery to an insolvent person, for the 
 purpose of getting rid of liability to contribute to its responsibili- 
 ties, provided the transaction be a real one, and not a false or 
 hollow contrivance.* But where the transaction exhibits no motive 
 except escape from the liability of the company, and especially 
 where it transpires after the company is publicly declared insol- 
 vent, it will be regarded as merely colorable and not valid.''' But 
 where the holder of shares threatened to put the company into 
 insolvency unless the directors would find some one to purchase 
 his shares and give him an indemnity, which was done twelve 
 months before the company became insolvent, it was held to be 
 a valid transfer .^ Trustees under a will are properly made contri- 
 butories.^ 
 
 • 4. The trustee, into whose name the cestui que trust had caused 
 shares to be transferred by deed, reciting that the price of the same 
 had been paid to the vendor, who executed the deed, may never- 
 theless be compelled to make good such price to the vendor, if it 
 
 » The Newiy, W. & R. R. v. Moss, 4 Eng. L. & Eq. 84 ; 8. c. 14 Beav. 64. 
 But where, in winding up the affairs of a company, the name of one of the mem- 
 bers, who had obtained his certificate since the expenses were incurred, was 
 placed among the contributories, it was held he was not liable. Chappie's case, 
 17 Eng. L. & Eq. 616 ; 8. c. 6 De Gex & S. 400. 
 
 • Lund ex parte, 27 Beav, 465 ; Hyam ex parte, 6 Jur. N. S. 181 ; 8. c. 1 De 
 G. F. & J. 75. See also De Passes case, 4 De G. & J. 544 ; Chinnock ex parte, 
 1 Johns. Eng. Ch. 714. Post, § 242. 
 
 » Electric Tel. Co. v. Bunn, 6 Jur. N. S. 1223. 
 
 • Mexican & South Am. Co. in re, 2 De G. F. & J. 302 ; Slater a: parte, 12 
 Jur. N. S. 242. 
 
 T Electric Tel. Co. m re, 30 Beav. 143. 
 
 • Phoenix Life Assurance Co., 7 Law T. N. S. 267. 
 
 • Drummond ex parte, 2 Gif. 189 ; 8. c. 6 Jur. N. S. 908. 
 
 •167
 
 158 
 
 ASSESSMENTS OR CALLS. 
 
 CH. IX. 
 
 were not in fact paid, although he accepted the transfer in the be- 
 lief that it had been paid.^^^ 
 
 5. Notwithstanding the defendant's name appear upon the 
 register of shares, he will be permitted, in a suit for calls, to 
 show that it was illegally placed there, and without his authority. 
 But a purchaser of shares, or even an original subscriber, cannot 
 be sued for calls, under the English statute, until his name is 
 placed on the registry." But one's name appearing upon the 
 books of the company as a shareholder is prima facie evidence of 
 the fact, in an action against such person to enforce against him 
 the personal responsibility of a stockholder for the debts of the 
 company.^ And in such an action the judgment against the cor- 
 poration \& prima fade evidence of its indebtedness as against the 
 stockholder.^ 
 
 SECTION II. 
 
 CohraJUe Subscriptions. 
 
 1. Colorable svbscriptions valid. 
 
 2. Dirtdon mm/ be compdUd to register them. 
 
 3. Oral evidence to vary the written subscrip- 
 
 tion inadmissible. 
 
 4. Register evidence abhough not made in the 
 
 time prescribed. 
 
 5. Confidential subscription* void. 
 
 § 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 prac- 
 tised by means of colorable subscriptions. The Court of Chancery 
 regards colorable subscriptions, made in the course of* getting a bill 
 through the House of Lords, (to comply with one of the standing 
 rules of that house, requiring three-fourths of the requisite outlay 
 to be subscribed before the bill passes,) to be binding upon the 
 directors and managers, who make the same, and that they are in 
 fact valid and binding subscriptions, although such subscriptions 
 were made with the purpose of being subsequently cancelled, and 
 
 "> Wilson V. Keating, 27 Beav. 121. 
 
 " Hodges on Railways, 101, 4th ed. Newry & Inniskillen Railw. v. Edmunds, 
 2 Exch. 118. 
 
 " Hoagland c. Bell, S6 Barb. 57. 
 
 •158
 
 § 48. COLORABLE SUBSCRIPTIONS. 159 
 
 had never been registered upon the books of the company, or any 
 calls made upon them. 
 
 2. It is within the proper range of the powers of a court of 
 equity to compel the directors to register such shares and enforce 
 the payment of calls upon them.^ 
 
 In a recent case ^ where this subject came under discussion in 
 * equity, it was held that where the provisional directors, in the pro- 
 cess of carrying a bill through parliament, proposed to the con- 
 tractor that he should have the contract for the company's works, 
 provided he would accept payment partly in shares, the number to 
 be settled by the company's engineer ; but contracted for him to 
 sign for a sufficient number of shares to make up the amount re- 
 quired by the standing orders of parliament, which was 630 of 
 XIO each, which he accordingly subscribed and the bill passed; 
 
 • ' Preston r. Grand Collier Dock Co., 11 Sim. 827; 8. c. 2 Railw. Co. 886; 
 Mangles c. The Same, 10 Sim. 519. The principle of these cases is verj' distinctly 
 recognized in the case of Blodgctt v. Morrill, 20 Vt. 609, and it lies at the founda- 
 tion of all fair dealing, that one is bound by his own representations, upon which 
 he had purposely induced others to act, although at the time he did not intend to 
 be himself bound by them, but expected, through favor, to be relieved from their 
 performance. See also Henry v. 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 surrender them to other subscribers, 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 electa to be released from, that these payments 
 shall be allowed him, on the shares that he retains, and that the treasurer shall 
 regulate his stock accounts and assessments accordingly," is a valid subscription f 
 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 bona fide subscription for the thirty shares, and no dis- 
 closure made of the writing given to the subscriber. 
 
 It was held that the agreement to release the subscriber was a fraud upon 
 other subscribers, and void, and the subscription may be enforced. White 
 Mountains Railw. r. Eastman, 34 N. 11. 124 ; Downie v. White, 12 Wise. 176. 
 
 See also Conn. & Pass. Rivers R. r. Bailey, 24 Vt. 466 ; Mann. v. Pentz, 2 
 Sand. Ch. 257; Penobscot & Kennebec R. r. Dunn, 39 Maine, 601. 
 
 * North Shields Quay Co. r. Davidson, 4 Kay & J. 688. 
 
 • 169
 
 160 ASSESSMENTS OB CALLS. CH. IX. 
 
 but when the contract was closed he was to take but 300 shares, 
 the scheme being abandoned before the works were commenced, it 
 was held that the arrangement made by the directors with the con- 
 tractor was ultra vires; and if not a fraud upon the orders of 
 parliament it was void as against such subscribers as were not 
 privy to it ; and that the circumstance of the contractor having 
 subscribed the deed last but one, and the last subscriber being 
 privy to the arrangement, did not alter the rights of those sub- 
 scribers who were not privy to it ; and that the contractor was liable, 
 as a contributory, for the entire number of shares for which he 
 signed the deed. 
 
 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.^ But 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 
 by the subscriber, and which constitutes the prevailing motive and 
 consideration for the subscription, and which proves false, it would 
 seem that the contract of subscription should be held void, both in 
 law and equity.* 
 
 4. When the statute requires the registry of shares to be made 
 
 3 Wight V. Shelby Railw., 16 B. Monroe, 6 ; Blodgett v. Morrill, 20 Vt. 609 ; 
 Kennebec & Portland R. v. Waters, 34 Maine, 369. But mere mistake, or mis- 
 apprehension 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 when 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.) 278 ; 
 N. C. Railw. r. Leach, 4 Jones Law, 340. It is here said, that one of the com- 
 missioners, in taking subscriptions to the stock 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 provided in the charter of the com- 
 pany, 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; Brownlee v. Ohio, Ind. & 111. Railw., 18 
 Ind. 68. 
 
 * Henderson v. Railway Company, 17 Texas, 660. 
 * 160
 
 §49. 
 
 MODE or ENFORCING PAYMENT. 
 
 161 
 
 within a limited time, such requirement is regarded as merely 
 directory, and the registry, although not made within the pre- 
 scribed time, will still be competent evidence, and to the same ex- 
 tent as if made within the time required.^ 
 
 , 5. Where subscriptions are made under an agreement that they 
 are not to be binding unless a specified sum is subscribed, it is 
 essential that there should be no conditions as to the liability of 
 any of the subscribers not applicable to all. Confidential subscrip- 
 tions made for the purpose of making up the required sum are a 
 fraud upon the other subscribers ; and should not bo treated as 
 valid subscriptions. Where by deducting such confidential sub- 
 scriptions the required sum is not subscribed, the contract of sub- 
 scription does not become operative, so as to bind the subscribers. 
 Parol evidence is admissible to show that certain of the sub- 
 scriptions were confidential in character and therefore fraudu- 
 lent.« 
 
 •SECTION IIL 
 
 Mode of enforcing Payment. 
 
 1. Subscription to indefinite slock, raises no 
 
 implied promise to pay the amount as- 
 »e*sed. 
 
 2. If sharet are definite, subscription implies 
 
 a promise to pay assessments. Right of 
 
 forfeiture a cumulative remedy. 
 8. Whether issuing new stock will bar a suit 
 
 against subscriber, quaere. 
 4. It would seem not. 
 6. But the requirements of the charter and 
 
 general laws of the state, must be strict- 
 
 ly pttrsued in declaring forfeiture of 
 stock. 
 
 6. Notice of sale must name place. 
 
 7. Validity of calls not affected by miscon- 
 
 duct of directors in other matters. 
 
 8. Proceedings must be regular at date. 
 
 9. Acquiescence will estop the party, often. 
 
 10. Forfeiture of shares. 
 
 11. Irregular calls must be dedared void, be- 
 
 fore others can be made to supply the 
 place. 
 
 § 49. 1. The company may resort to all the modes of enforcing 
 payment of calls which are given them by their charter, or the gen- 
 eral laws of the state, unless these remedies are given in the alter- 
 native. 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 manufacturing compa- 
 
 » Wolverhampton N. W. Co. v. Hawksford, 7 C. B. N. S. 795 ; 6 Jur. N. S. 
 632. Affirmed in Exch. Chamber, 10 W. Rep. 163, 11 C. B. N. S. 456, 8 Jur. 
 N. S. 844. 
 
 • New York Exchange Co. c. De Wolf, 81 N. Y. 273. 
 
 11 • 161
 
 162 ASSESSMENTS OR CALLS. CH. IX. 
 
 nies, in this country, did not create any definite, or distinct capi- 
 tal 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. Tlie 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 generally held, that the sub- 
 scriber was not liable to an action in personam for the amount 
 of calls.^ And this seems to us * altogether reasonable and just. 
 
 * Franklin Glass Co. v. White, 14 Mass. 286 ; Andover Turnpike Co. v. 
 Gould, 6 Mass. 40; Same v. Hay, 7 id. 102; New Bedford Turnpike Co. v. 
 Adams, 8 id. 138 ; Bangor House Proprietary v. Hinckley, 3 Fairfield, 385, 388 ; 
 Franklin Glass Co. v. Alexander, 2 New Hamp. 380. But where there was an 
 express promise to pay assessments, or facts from which such an undertaking 
 was inferable, it was always held, even in this class of cases, that an action will 
 lie. Taunton & South Boston Turnpike Co. v. Whiting, 10 Mass. 327 ; Bangor 
 Bridge Co. v. McMahon, 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. Swan, 10 Mass. 384. The citation of cases to these points might be 
 increased indefinitely, but it is deemed useless, as these propositions have never 
 been Ijuestioned. Worcester Turnpike v. Willard, 6 Mass. 80. 
 
 The following cases will be found to confirm the cases cited above. Chester 
 Glass Co. V. Dewey, 16 Mass. 94 ; Newburyport 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. This general question of the 
 responsibility, assumed by those who consent to become shareholders in a cor- 
 poration, where the shares are not fully paid up, is considerably discussed, by 
 Allen, J., in a recent case in the N. Y. Court of Appeals, where the facts being 
 peculiar, it was held the shareholder incurred no obligation to pay the balance 
 due upon the shares if he elected to abandon them. Seymour v. Sturgess, 26 N. 
 Y. 134. But there is no implication of duty to pay the amount of a subscription 
 to the stock of a railway company, especially where the terms of subscription 
 declare payment to be made in such instalments as shall be required by the 
 board of directors, unless the declaration and proof show that an instalment had 
 been required by the directors. Gebhart v. Junction Railw. Co., 12 Ind. 484; 
 McClasky v. Grand Rapids & Ind. Railw. Co., 16 Ind. 96. Where by the charter 
 of an eleemosynary corporation subscriptions were allowed to be taken, and the 
 subscriber, by securing the amount and paying the interest promptly, was entitled 
 •162
 
 § 49. MODE OP ENFORCING PAYMENT. 163 
 
 For if a subscription to an indefinite stock created a personal obli- 
 gation to pay all assessments made by the company upon such 
 stock, it would be equivalent to a personal liability of tlie stock- 
 holders for the debts and liabilities 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 pur- 
 pose of paying the debts of the company .^ 
 
 2. But where the stock of the company is defined in its 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 calls, 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 .^ 
 
 to save the payment of the principal, it was held this was matter of indulgence to 
 the subscriber, to which he could only entitle himself by proving his compliance 
 with the conditions upon which the indulgence was granted. Denny v. North 
 W. Christian University, 16 Ind. 220. The undertaking of subscribers to a 
 joint-stock will be held several and not joint, without express words. Price v. 
 Grand Rapids & I. R. Co., 18 Ind. 137. The law by which a corporation exists 
 and acts forms part of the contract of subscription. Hoagland v. Cin. & F. W. 
 R. Co., 18 Ind. 452. 
 
 • Post, § 60. 
 
 ' 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 instabnents ; that the clause authorizing a sale of the 
 stock was merely cumulative ; and that, whether the company resorted to it or 
 not, the personal remedy against the stockholder remained the same. The same 
 points are confirmed by the same court, in Mann v. Cooke, 20 Conn. 178. And 
 in Danbury Railw. Co. v. Wilson, 22 Conn. 435, the defendant was held liable 
 for calls upon a subscription to the stock of a company whose charter had expired, 
 and been revived by the active agency of defendant. See also Dayton r. Borst, 
 81 N. Y. 435 ; Piscataqua Ferry Co. v. Jones, 39 N. H. 491. 
 
 All the cases, with slight exceptions, hold, that where the subscription is of 
 such a character as to give a personal remedy against the subscriber, in the 
 absence of all other specific redress, the mere fact that the company have the 
 power to forfeit the shares for non-payment of calls, will not defeat the right to 
 enforce the payment of calls by action. Goshen Turnpike Co. v. Hurtin, 9 
 Johns. 217 ; Dutchess Cotton Manufacturing Co. r. Davis, 14 Johns. 238 ; Troy 
 T. Co. V. McChesney, 21 Wend. 296; Northern R. c. Miller, 10 Barb. 260; 
 Plank Road Co. v. Payne, 17 Barb. 667. In this last case it was held to be 
 
 • 163
 
 164 ASSESSMENTS OR CALLS. CH. IX. 
 
 * 3. The question in the English cases seems to be, whether, 
 after the forfeiture of the shares, and a confirmation of the same 
 
 matter of intention and construction, whether the remedies were concurrent 
 and cumulative, or in the alternative. And in Troy & Boston R. v. Tibbitts, 
 18 Barb. 297, it is said to be well settled, that the obligation of actual payment 
 is created, by a subscription to a capital stock, unless plainly excluded by the 
 terms of the subscription, and that the forfeiture is a cumulative remedy. Og- 
 densburg R. & C. Railway v. Frost, 21 Barb. 541. See also Herkimer M. & H. 
 Co. V. Small, 21 Wend, 273 ; s. c. 2 HiU, 127 ; Sagory v. Dubois, 3 Sandf. Ch. 
 466 ; Mann v. Currie, 2 Barb. 294 ; Mann v. Pentz, 2 Sandf. Ch. 257 ; Ward v. 
 Griswoldville Manuf. Co., 16 Conn. 593 ; Lexington & West Cambridge R. v. 
 Chandler, 13 Met. 311 ; Klein v. Alton & Sangamon R. 13 Illinois, 514 ; Ryder 
 V. Same, id. 516 ; Gayle v. Cahawba R. 8 Ala. 586 ; Beene v. Cahawba & M. R. 
 3 id. 660 ; Spear v. Crawford, 14 Wend. 20 ; Palmer v. Lawrence, 3 Sandf. Sup. 
 Ct, 161, where Duer, J., says the law must now be considered as settled, " that 
 the obligation of actual payment is created in all cases, by a subscription to a 
 capital stock, unless the terms of subscription are such as plainly to exclude it." 
 ElysviUe v. O'Kisco, 5 Miller, 152 ; Greenville & Columbia R. v. Smith, 6 Rich. 
 91 ; Charlotte & S. C. R. R. Co. v. Blakely, 3 Strob. 245 ; Banet v. Alton & 
 Sangamon R., 13 Illinois, 504, 514; Hightower v. Thornton, 8 Georgia, 486; 
 Freeman r. Winchester, 10 Sm. & M. 577 ; Tar River Nav. Co. v. Neal, 3 
 Hawks, 520; Gratz v. Redd, 4 B. Mon. 178; Sebna R. v. Tipton, 5 Ala. 787; 
 Troy & R. R. v. Kerr, 17 Barb. 581. Wliere the statute gives an election to the 
 company either to forfeit the shares for non-payment of caUs, or to sue and col- 
 lect 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. 247. The terms of the charter must be pursued where they pro- 
 vide specifically for the redress for non-payment of caUs. As if the shareholder 
 is made liable only for deficiency after forfeiture and sale of the stock. Grays v. 
 Turnpike Co., 4 Rand. 578; Essex Bridge Co. v. Tuttle, 2 Vt. 393. But some 
 of the American cases seem to hold, that a corporation has no power to enforce 
 the payment of calls, against a subscriber for stock, imless upon an express 
 promise, or some express statutory power, and that a subscription for the stock 
 is not equivalent to an express promise to pay calls thereon to the amount of the 
 shai^s. 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. Mont- 
 gomery R., 11 Ala. 437. It has been held, that aft^r the forfeiture is declared, 
 the company cannot longer hold the subscriber liable. Small v. Herkimer M. 
 & H. Co. 2 Comst. 330. So if the company omit to exercise their power of for- 
 feiture, as the successive defaults occur, until all the calls are made, it thereby 
 loses its remedy by sale. Stokes v. The Lebanon & Sparta Turnpike Co., 6 
 Humph. 241. See also Harlaem Canal Co. t\ Seixas, 2 Hall, 504 ; Delaware 
 Canal Co. v. Sansom, 1 Binney, 70. 
 
 The fact that the commissioners have by the charter an option to reject sub- 
 scriptions for stock, does not make them less binding, unless they are so rejected. 
 Connecticut & Passumpsic R. R. v. Bailey, 24 Vt. 465. An agreement made at 
 the time of subscription inconsistent with its terms, and resting in oral evidence 
 * 164
 
 § 49. MODE OF ENFORCING PAYMENT. 165 
 
 * by the company, and tlie issuing of new stock in lieu of the for- 
 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 
 
 merely, cannot be received to defeat the subscription. lb. In a late case 
 in Kentucky this subject is very elaborately discussed by the counsel, and, as 
 it seems to us, very wisely and verj* justly disposed Of by the court. McMil- 
 lan r. Maysville & Lexington Railway Co., 15 B. Monroe, 218. It was there 
 held, that subscriptions to the stock of a railway company, like other con- 
 tracts, 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. r. Johnson, 10 Foster, 390; South Bay Meadow Dam 
 Co. r. Gray, 30 Maine, 547 ; Greenville & Columbia R. r. Cathcart, 4 Rich. 89 ; 
 Danbur}- & Norwalk R. r. Wilson, 22 Conn. 435. An agreement to take and 
 fill shares in a railway company, is an agreement to pay the assessments legally 
 made. Bangor Bridge Co. r. McMahon, 10 Maine, 478 ; Buckfield Br. R. r. 
 Irish, 39 id. 44 ; P. & K. R. r. Dunn, id. 587 ; Penobscot R. c. Dummer, 40 
 Maine, 172 ; White Mountains Railw. v. Eastman, 34 N. H. 124. So, too, an 
 agreement to take shares before the act of incorporation is obtained, creates an 
 implied duty to pay calls duly made thereon. Buffalo & N. Y. City Railw. 
 r. Dudley, 4 Keman, 336. The general subject is discussed somewhat at large 
 in this case, and the results arrived at confirm the doctrines laid down in the 
 text. Rensselaer & W. PI. Rd. Co. r. Barton, 16 N. Y. 457. 
 
 The same rule is mentioned in Fry^s Exrs. v. Lex. & Big. S. Railw., 2 Met. 
 (Ky.) 314, where the question of the extent of implied obligation assumed by sub- 
 scription to the capital stock of a corporation is very fully and fairly illustrated. 
 
 * Great Northern R. r. Kennedy, 4 Exch. 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 Sim. N. S. 396 ; 8. c. 1 Eng. L. & Eq. 13 ; The Direct 
 Shrewsbury & Leicester Railway Co., in re, 1 Sim. N. S. 281 ; 8. c. 7 id. 28; 
 London & B. R. v. Fairclough, 2 M. & G. 674 ; Edinburgh L, & N. H. R. t>. 
 Hebblewhite, 6 M. & W. 709 ; s. c. 2 Railw. C. 237 ; Birmingham, Bristol & 
 Th, J. R. V. Locke, 1 Q. B. 256 ; 8. c. 2 Railw. C. 867 ; Railway Co. v. Graham, 
 1 Ad. & Ellis (N. 8.), 271 ; Huddersfield Canal Co. r. BucUey, 7 T. R. 36. 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, 18 Beav. 339 ; s. c. 6 
 De G. M. & G. 284. See alao § 4, ante. 
 
 » Inglis r. Great Northern R., 1 McQu. H. L. 1112 ; 8. c. 16 Eng. L. & F^i. 65. 
 See also Peoria & Oquawka R. c. Elting, 17 111. 429 ; Cross c. MiU Co., 17 111. 64. 
 
 • 166
 
 166 ASSESSMENTS OR CALLS. CH. IX. 
 
 been settled, upon great consideration, that where the charter or 
 general statutes give the right to forfeit the shares, or to collect 
 the amount of the shareholder, and the forfeiture, sale, and cancel- 
 lation of the shares, do 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 requirements, 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 tlfe subscription.'^ But where the by- 
 laws of the company prescribe a specific mode of notice to the 
 delinquent, through the mail, of the time and place of sale, this is 
 not to be regarded as exclusive, but other notice which reaches the 
 party in time will be sufficient.^ 
 
 But in a recent case ^ the law in regard to proceedings in forfeit- 
 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. 
 18. And where the charter of the company provided, that the shares of a de- 
 linquent shareholder " shall be liable to forfeiture, and the company may declare 
 the same forfeited and vested in the company," it was held the option, in declar- 
 ing such forfeiture, was in the company, and not in the shareholders. Railway 
 Company v. Rodrigues, 10 Rich. (S. C.) 278. 
 
 * Portland, Saco, & Portsmouth Railw. v. Graham, 11 Met. 1. 
 ^ Stoneham Branch R. Co. v. Gould, 2 Gray, 277. 
 
 ® 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 pHma facie evidence of compliance by producing the 
 publication, and oral evidence of its being repeated the requisite number of 
 times, without producing all the papers. Unthank v. Henry County Tump. 
 Co., 6 Porter (Ind.), 125. And in a later case, Anderson v. The Ohio & 
 Miss. Railw. Co. 14 Ind. 169, where the charter limited the amount of calls 
 to ten per cent per annum upon subscriptions to stock, and ten per cent had 
 been paid, a call was held sufficient without specifying the place of payment or 
 the per cent to be paid, only five remaining within the power of the directors to 
 call for, and the notice fixing the time and place of payment, 
 
 * Lewey's Island Railw. v. Bolton, 48 Me. 451. The rules of law as to 
 what is requisite to constitute a valid subscription to a stock in a railway com- 
 pany and to justify calls, are much considered in the recent case of Maltby v. 
 N, W. Va, Railw,, 16 Md, 422. 
 
 * 166
 
 § 49. MODE OP ENFORCING PAYMENT. 167 
 
 ore of shares is held very strictly. It is here considered that 
 notice must be given in the precise time and in the exact form re- 
 quired by statute, and that the sale must in all respects correspond 
 precisely with the requirements of the provisions of the law. The 
 rule is carried so far here that posting notice in a public place was 
 held no sufficient compliance with the law requiring it to be in a 
 " conspicuous " place ; and it was here considered that subscrip- 
 tions to preferred stock could not be reckoned to make up the 
 requisite amount of capital to enable the corporation to go. into 
 operation. 
 
 6. But notice that shares in a railway corporation will be sold 
 * for non-payment of assessments on a day fixed, and by an auc- 
 tioneer named, who is and has long been an auctioneer in the 
 place at which the notice bears date, is insufficient if it do not 
 name the place of sale.** 
 
 7. The validity of calls cannot be called in question upon the 
 ground that the directors making the same are acting in the inter- 
 est and for the benefit of a rival company, and have in consequence 
 unnecessarily retarded the construction of the company's works." 
 But the directors must be duly appointed.^ 
 
 8. And the proceedings in making the calls must have been 
 substantially in conformity with the charter and by-laws of the 
 company and the general laws of the state at the time of making 
 the same. Any subsequent ratification by the directors of an in- 
 formal call will only give it effect from the date of the ratifica- 
 tion.*^ 
 
 9. A subscriber who has executed the deed of settlement, pur- 
 chased shares and received dividends upon the same, is not at 
 liberty to object to their validity upon the ground that the com- 
 pany were by the deed of settlement authorized to issue shares for 
 £100, and these were issued as half shares at £50 ; this acqui- 
 escence estops him from doing so.** 
 
 10. It seems that, unless the constitution of the corporation or 
 the general laws of the state contain a provision justifying a for- 
 
 '• Lexington & West Cambridge Railway r. Staples, 6 Gray, 620. 
 » Orr V. Gl. A. & M. J. Railw., 3 McQu. Ho. Lds. 799 ; s. c. 6 Jur. N. S. 877. 
 » H. B. Coal Co. r. Teague, 6 H. & N. 161 ; 8. c. 6 Jur. N. S. 275. 
 » Cornwall G. C. M. Co. v. Bennett, 6 H. & N. 423 ; 8. c. 6 Jur. N. S. 639 ; 
 Anglo California G. M. Co. v. Lewis, 6 H. & N. 174 ; 8. c. 6 Jur. N. S. 1376. 
 '« HuU Flax & Cotton Co. r. WeUesley, 6 H. & N. 38. 
 
 ♦ 167
 
 168 
 
 ASSESSMENTS OR CALLS. 
 
 CH. IX. 
 
 feiture of shares, it is not competent for the majority of the share- 
 holders by prospective resolution to establish a regulation whereby 
 the shares shall be forfeited upon failure to comply with the re- 
 quirements of such resolution.^ 
 
 11. It is no valid reason for making more calls than are justified 
 by the constitution and laws affecting the question, that some of 
 the calls were not regularly made and were therefore void, and 
 were not paid by the defendant. It should appear that * such irreg- 
 ular calls had been declared void, otherwise the directors may have 
 secured most of the money demanded by them.^^ 
 
 SECTION IV. 
 
 Creditors may compel Payment of Subscriptions. 
 
 1 . Company compelled to ceiled of subscribers 
 by mandamus. 
 
 2-4. Ainount due from subscribers, a trust- 
 fund for the benefit of creditors. 
 
 6. If a state oum the stock it unll be the same. 
 
 6, 7. A diversion of the funds from creditors 
 is a violation of contract on the part of 
 the company, and a state law authorizing 
 it invalid. 
 
 8, 9. The general doctrine above stated found 
 in many American cases. 
 
 10. Judgment creditors may bring bill in 
 
 equity. 
 
 11. Promoters of railways liable as partners, 
 
 for expenses of procuring charter, 
 
 12. Railway company may assign calls before 
 
 due, in security for bona fide debt. No 
 notice required to perfect assignment 
 against attachments or judgment liens. 
 
 § 50. 1. By the present English statute, the creditors of a com- 
 pany may recover their judgment debts, against shareholders, who 
 have not paid the full amount of their shares to the extent of the 
 deficiency.^ Before this statute, it was considered that a writ of 
 mandamus would lie, to compel the company to make and enforce 
 calls against delinquents.^ 
 
 2. In this country this question has arisen, not unfrequently, in 
 
 " Barton's case, 4 De Gex & J. 46. 
 
 '« WeUand Railw. v. Berrie, 6 H. & N. 416. 
 
 ' 8 & 9 Vict. c. 16, §§ 36, 37. 
 
 » Walford, 277 ; Hodges, 106, n. («) ; Reg. v. Victoria Park Co., 1 Q. B. 
 288, where the opinion of the court very clearly intimates, that thfe 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. 
 
 •168
 
 § 50. CREDITORS MAY COMPEL PAYMENT OP SUBSCRIPTIONS. 169 
 
 the case of insolvent companies, no such provision existing in most 
 of the states as that of the English Statute just referred to. 
 
 3. This subject is very extensively examined, and considered by 
 the national tribunal of last resort, in a case of much importance 
 and delicacy,^ and tlie following results arrived at : — 
 
 4. On the dissolution of a corporation, its effects are a trust- 
 fund, for the payment of its creditors, who may follow them, * into 
 the hands of any one, not a bona fide creditor, or purchaser without 
 notice ; and a state law, which deprives creditors of this right, and 
 appropriates the property to other uses, impairs the obligation of 
 their contracts, and is invalid. 
 
 5. The fact, that a state is the sole owner of the stock in a 
 banking corporation, does not affect the rights of the creditors. 
 
 6. The capital stock of a company is a fund set apart by its 
 charter for the payment of its debts, which amounts to a contract, 
 with those who shall become its creditors, that the fund shall 
 not be withdrawn and appropriated to the use of the owner, or 
 owners, of the capital stock. 
 
 7. A law, which deprives creditors of a corporation of all legal 
 remedy against its property, impairs the obligation of its contracts, 
 and is invalid. 
 
 8. These propositions, with the exception of the constitutional 
 question, in regard to the impairing of an assumed or implied 
 contract with the creditors of the corporation, are all fully sus- 
 tained by numerous decisions of the highest authority in this 
 country. 
 
 9. Thus in a case before Mr. Justice Stori/y 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 paramount 
 title.^ And in cases where the capital stock or assets of a corpo- 
 ration have been distributed to the stockholders without providing 
 for the payment of its debts, a court of equity will allow the cred- 
 itors to sustain a bill against the shareholders, to compel contri- 
 bution to the payment of the debts of the company, to the extent 
 of funds obtained by them, whether directly from the company, or 
 
 ' Curran v. State of Arkansas, 15 How. U. S. 804. 
 * Wood r. Dummer, 3 Mason, 308. 
 
 » Adair v. Shaw, 1 Sch. & L. 243, 261. See Dayton r. Borst, 31 N. Y. 486. 
 
 • 169
 
 170 ASSESSMENTS OR CALLS. CH. IX. 
 
 through some substitution of useless securities for those which 
 were good.^ 
 
 * 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 cred- 
 itor may proceed, in equity, against the delinquent shareowners, 
 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 companyJ 
 
 11. It is held under the English statutes, in regard to fully regis- 
 tered 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, 
 
 « Nathan v. Whitlock, 9 Paige, 152 ; 8. c. 3 Edward's Ch. 215. But it has 
 been held, that the distribution of the capital stock among the shareholders, 
 before the debts of the company are paid, and leaving no funds for that purpose, 
 will not render the shareholders liable to an action of tort, at the suit of the 
 creditors of the company, there being no such privity as will lay the foundation 
 of an action at law, even in states where no court of chancery existed. Vose v. 
 Grant, 15 ]\Iass. 505. In equity the suit may be in the name of the receiver, 
 Nathan v. Whitlock, 9 Paige, 152, or in the name of a creditor, suing on behalf 
 of himself and others, standing in the same relation. Mann v. Pentz, 3 Comst. 
 415, 422. And all the shareholders, who have not paid their subscriptions, should 
 be made parties to the bUl, and compelled to contribute proportionally. lb. 
 
 The same principle is recognized in numerous other cases. Mumma v. The 
 Potomac Co., 8 Pet. 281 ; Wright v. Petrie, 1 Sm. & M. Ch. 282, 319 ; Nevitt v. 
 Bank of Port Gibson, 6 Sm. & M. 513 ; Hightower v. Thornton, 8 Georgia 
 486; Fort Edward, &c. Plank Road Co., v. Payne, 17 Barb. 567; Gillet v. 
 Moody, 3 Comst. 479. This case is where the bank, of which the plaintiflf was 
 receiver, had transferred specie funds to defendant, in exchange for his own 
 stock in the bank. The transaction was held illegal, and the defendant was 
 compelled to refund, for the benefit of the creditors of the bank. And where 
 the subscriber to a bank, which became insolvent, assigned all his interest in the 
 bank, it was held not to exonerate him from liability to assessments upon his 
 subscription, to pay debts due from the bank, although contracted subsequent to 
 the assignment. Dayton v. Borst, 7 Bosw. 115. 
 
 See also Morgan v. New York & Albany R. 10 Paige, 290. 
 
 ' Henry v. The Vermilion & Ashland Railw., 17 Ohio, 187. See also Miers 
 ». Z. «&M. T. Co., 11 Ohio, 273; 8. c. 13 Ohio, 197. And where the com- 
 pany retains its organization and officers, it may be compelled, by writ of man- 
 damus, to enforce calls against the shareholders, to the extent of their liability, 
 as well as to perform other duties. Commonwealth v. Mayor of Lancaster, 5 
 Watts, 152. 
 
 • 170
 
 §51. 
 
 CONDITIONS PRECEDENT TO MAKING CALLS. 
 
 171 
 
 the subscribers to such joint-stock companies, under the statute, 
 being held liable to the same extent as partners.* 
 
 12. The company may assign, as security for a debt due from 
 them, an existing unpaid call upon shares not yet due, and if the 
 assignment contains a power of sale, that will not invalidate the 
 assignment, since if held void, a court of equity will expunge it, 
 or restrain its exercise, and it cannot have any effect to avoid the 
 assignment until acted upon ; and a shareholder from whom such 
 call is due will be affected with notice of the assignment, if pre- 
 siding at the meeting when it was made, although having no 
 further knowledge in regard to it.* But it was doubted if any 
 notice were required to perfect an assignment in security of a 
 bona fide debt, against a subsequent judgment or attachment lien. 
 And in a later case,^^ it was decided that no notice is required in 
 such case, and that Watts v. Porter," where the majority of 
 Queen's Bench held such notice indispensable, was no longer law. 
 
 •SECTION V. 
 
 Conditions precedent to maJeiiig Calls. 
 
 1. Conditions precedent must be performed 
 
 be/ore calls. 
 
 2. But collateral, or subsequent conditions not. 
 8. D^nite capital must all be subscribed be- 
 fore calls. 
 
 4. It is the same where d^ned by the com- 
 
 pany, as in the charter. 
 
 5. Conditional subscriptions not to be reck- 
 
 oned. 
 
 6. Legislature cannot repeal conditions prece- 
 
 dent. 
 
 7. Limit of assessments cannot be exceeded 
 
 for any purpose. 
 
 8. Where charter fails to limit stock, corpo- 
 
 ration may. 
 
 9. Alteration in charter reducing amount of 
 
 stock. 
 
 § 51. 1. Conditions precedent* must be complied with, before 
 any binding calls can be made. Any thing, which, by the express 
 provisions of the charter, or the general laws of the state, is made 
 a condition to be performed on the part of the company, or its 
 
 * Matter of the Sea, Fire, and Life Assurance Society, 8 De G. M. & G. 459 ; 
 8. c. 23 Eng. L. & Eq. 422. The form of proceeding and the extent of re- 
 sponsibility is extensively considered, as to delinquent subscribers to an insolvent 
 corporation, in Adler v. Milw. Patent Brick Co., 13 Wise. 67. 
 
 • Pickering r. Ilfracombe Railw. Law Rep., 8 C. P. 285. 
 •« Robinson r. Nisbitt, id. 264. 
 
 " 3 El. & B. 743. 
 
 • 171
 
 172 ASSESSMENTS OR CALLS. CH. IX. 
 
 agents, before and as tlie foundation of the right to make calls, 
 upon the subscriptions to the stock ; or where the thing is re- 
 quired to be done, before calls shall be made, and is ah important 
 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 will 
 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.^ 
 
 ' Carlisle v. Cahawba & Marion Railway Co., 4 Ala. 70; Ante, § 18; Banet 
 ». Alton & Sangamon Railway Co., 13 HI. 504 ; Utica & Schenectady Railway 
 Co. V. BrinkerhofF, 21 Wend. 139. This last case is an action upon a special 
 undertaking to pay land damages, on condition the company would locate their 
 road so as to terminate at a particular place, which the company alleged they 
 had done, and defendant was held not liable, for want of mutuality, the com- 
 pany not being bound by the contract. Cooke v. Oxley, 3 T. R. 653. But it 
 admits of some question, we think, whether the case of 21 Wend. 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 con- 
 sideration on the part of defendant, it being a mere naked refusal of goods, for 
 a fixed time, the plaintiif 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. Burnet v. M. Bisco, 4 Johns. 235. But where such an option 
 is given upon consideration, or as a standing offer, and in the mean time the 
 other party proceeds to perform the contract on his part, it is as binding in this 
 form as in any other. And it was so held, in the case of the Cumberland VaUey 
 Railway Co. v. Baab, 9 Watts, 458. In this case the inhabitants of one portion 
 of Harrisburg made a subscription to induce the company to cross the river at a 
 particular point, and to build their depot upon a particular street, which being 
 done, the subscribers were held liable to pay their subscriptions to the company, 
 and, as we think, upon the most obvious and satisfactory grounds. 
 
 In Henderson & Nashville Railway Co. v. Leavell, 16 B. Monr, 358, it was 
 held, that a subscription to the stock of a railway, conditioned that the road 
 should pass through a certain town, and the money subscribed should be ex- 
 pended in a certain county, was a valid subscription. The Court, Stimpson, J., 
 say : " The stock in this case is not conditional, although the defendant has, in 
 the act of subscribing for it, brought the company under certain obligations to 
 him, in relation to it, with which they are bound to comply. Such stipulations 
 are not incompatible with sound policy, or with any of the provisions of the 
 charter. They do not render the subscription void, but operate, as it was 
 intended they should, for the benefit of the stockholder. But even if the sub- 
 scription had been made, upon the express condition that'the money should not
 
 § 51. CONDITIONS PRECEDENT TO MAKING CALLS. 173 
 
 * And where the company voted to issue six hundred additional 
 shares and to allow each stockholder to take one new share for 
 
 be paid until certaio acts wore done by the company, when these acta 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 subscription for stock be conditioned, that the 
 subscriber may withdraw his subscription, at his election, if the whole stock is 
 not taken, at a given time, and the defendant pay part of his subscription afler 
 that date, he is liable for the balance, unless he show the failure of the condi- 
 tion, and his own election, in a reasonable time after, to withdraw. Wilming- 
 ton & Raleigh Railway Co. r. Robeson, 6 Iredell, 391. On a subscription to 
 stock in a railway upon condition the road should "pass" on a certain route 
 through a certain county, it is not a condition precedent to the right to demand 
 pa}'ment, that the road should be actually constructed upon that line ; it is suffi- 
 cient if the road be permanently located there. North Missouri R. Co. t>. 
 Winkler, 29 Mo. 318 : A. & N. L. Railw. Co. ». Smith, 15 Ohio, N. S. 328. See 
 also Vicksburg, Shreveport, and Texas Railw. v. McKean, 12 La. Ann. 638. 
 There is a recent case in Vermont, Conn. & Pass. Railw. Co. v. Baxter, 32 
 Vt. 805, where the court seem to hold, that, where the subscription deBned 
 the route of the proposed railway, the representations of the agent who car- 
 ried about the paper, that the written words really defined one particular 
 route, and not another, the subscribers themselves being equally conusant of 
 the facts with the agent, was binding upon the company, and would preclude 
 them from recovering calls upon such subscription, provided the road were not 
 in fact located upon the particular route indicated by the agent, although in fact 
 so located as to comply with the conditions of the written subscription, and 
 although the agent in expressing the opinion he did, acted in perfect good faith. 
 The case is not one of sufficient importance to require much discussion, but it 
 may be well to bear in mind, what seems to have escaped the apprehension of 
 the court for the moment, that the point ruled as stated in the marginal note 
 and in the opinion of the court, seems to be adopting the oral representations of 
 the agent, made at the time of the subscription, as part of the Avritten contract 
 of subscription. The charge of- the court below puts the case upon the ground, 
 that the subscriber is bound by the legal construction of his written subscription, 
 and that he cannot escape such responsibility by showing that those who acted 
 on behalf of the company maintained a different opinion, unless that was done 
 fraudulently, with a view to deceive the defendant. We understood that to be 
 the law at the time, and we cannot fairly say that we understand it differently 
 now. 
 
 In Chamberlain r. Paincsville & Hudson R. Co., 15 Ohio N. S. 225, it was 
 decided that where a subscription was made for a given number of shares of 
 stock in a railway company, payable at such times, and in such instalments, as 
 the directors may prescribe, provided the road is " permanently located" on a 
 given route, and that a " freight house and depot be built " at a point named : — 
 1. That on the permanent location of the road in accordance with the terms 
 proposed, the subscription became absolute. 2. That the provision in relation 
 to the erection of the buildings must be regarded as a stipulation merely, and 
 
 ♦ 172
 
 174 ASSESSMENTS OR CALLS. CH. IX. 
 
 * every two held by him, if he subscribed for the same, paid a cer- 
 tain sum and gave his note for the balance, before a day named ; 
 
 its performance could not be reasonably considered a condition precedent to the 
 right to collect the amount of the subscription, 3. The giving by a subscriber, 
 of his note for the balance of his subscription, and taking, therefor, from the 
 company, a receipt, stipulating, that when paid, the amount of the note should 
 be applied on his stock, was prima facie a waiver of conditions precedent. But 
 this is denied in a recent case, Parker v. Thomas, 19 Ind. 213. 
 
 And in McAllister v. The Ind. & Cin. Railw. Co., 15 Ind. 11, a question 
 similar to the one stated in Conn. & Pass, Railw. Co. v. Baxter, supra, arose 
 and received a far more just and reasonable determination. The plaintiff made 
 an unconditional subscription to the stock of the plaintiff's company, and paid 
 the amount and took and retained his certificate without offering to surrender 
 the same. But at the time of the subscription the company promised that a 
 branch of their line should come to Milford, the place of the plaintiff's resi- 
 dence, which had not been done. The suit was brought to recover the money 
 paid. Held, that the parol promise to construct the branch to Milford, could 
 not be proven as part of the written contract of subscription ; and hence the 
 money paid could not be recovered on the ground of a breach of contract. 
 2. A recovery could not be had on the ground of fraud : the parol promise and 
 representation being, under the circumstances, no more than the expression of 
 an existing intention to make the branch. 3. Under the circumstances the 
 company was not liable to repay the money. 
 
 See also Andrews v. Ohio & !Miss. Railw. Co., 14 Ind. 169 ; Eakright v. L. 
 & N. Ind. Railw., 13 Ind. 404, where the question of controlling written 
 subscriptions by oral declarations of those who solicit them, as to the probable 
 route of the road, is further discussed and placed upon the true ground, that 
 such representations can have no effect, unless upon the ground of fraud. See 
 also Parker v. Thomas, 19 Ind. 213; Cunningham v. E. & K. Railw. Co., 
 2 Head, 23 ; Brownlee v. O., Ind. & 111. RaUw. 18 Ind. 68. 
 
 There are some cases which go the length of saying that as the directors of a 
 railway company have no power to give any binding assurance as to the route 
 which shall be finally adopted, it being their duty to place it where, in their 
 ultimate judgment, the public good requires, it is the folly of any subscriber to 
 rely upon any such representation, and that even where it could be shown that 
 such representations were fraudulently made, to induce subscriptions, and had 
 the purposed effect, the subscriptions could not be avoided on that ground. 
 Ellison V. Mobile & Ohio Railw., 36 Miss. 572; Walker v. Same, 34 id. 245. 
 
 See also Piscataqua Ferry Co. v. Jones, 39 N. H. 491. The verbal promise 
 of the agent who takes up subscriptions for a railway, that the time of payment 
 shall be delayed beyond the time named in the charter, and which induces the 
 subscriptions, is not binding upon the company. Thigpen v. Miss. Central 
 Railw., 32 Miss. 347. 
 
 One subscribed, in 1853, for twenty shares of the stock of the P. & C. R. R. 
 
 Co., on the express condition that the company " should locate and construct 
 
 their railway along the route contemplated by the Meyer's Mill Plank Road Co., 
 
 for their road," paid one instalment, part of the second, but delayed the payment 
 
 • 173
 
 § 51. CONDITIONS PRECEDENT TO MAKING CALLS. 175 
 
 *it was held there was no implied condition that the whole six 
 hundred shares should be issued, and the failure to do so was *no 
 
 of the residue, as the calls were made, until the company, before the road was 
 constructed along the route mentioned, suspended operations, after which pay- 
 ment was refused on the ground that, though the road had been located by the 
 company, they had not constructed it, according to the condition in the subscrip- 
 tion. In an action brought by the company, it was Held, 1. That the promise 
 of subscription being precedent to that of construction, upon the part of the 
 company, the defendant could not insist upon perfonnance by tlie railroad com- 
 pany, while he refused performance on his part, and that the road having been 
 located as stipulated, and completed so far as the means of the company would 
 allow, it was a compliance with the condition, and the company were entitled to 
 recover. 2. That the condition in the contract of subscription was not a condi- 
 tion precedent, and did not require the completion of the road before payment 
 could be required, but only that when located and constructed it should occupy 
 the route designated, the undertaking being on the part of the subscriber, to 
 pay, as calls should be made by the directors, and on the part of the company 
 to locate as stipulated, and construct as fast as their means would allow. 
 8. That the suspension of operations made by the directors long after the pay- 
 ments upon defendant's stock had been due, was not a defence in an action 
 brought against him for the unpaid balance thereon. Miller v. Pittsburg & 
 Connellsville Railw. 40 Penn. St. 237. • 
 
 It was held in one case that where the charter required subscriptions by 
 responsible persons of a certain proportion of the estimated cost of the work 
 before entering upon the construction, it was not necessary for the company 
 to show compliance with this requirement in order to enforce calls. Nor does the 
 right to make calls depend upon the extent or nature of the indebtedness of the 
 company ; nor can a subscriber defend against calls by showing that a portion 
 of the requisite amount of subscriptions to bind the defendant were made by 
 persons of no actual or reputed pecuniary responsibility, unless he also show 
 that they were not made or taken in good faith. Penobscot Railw. v. 'N\niite, 
 41 Me. 512. And the bad faith cannot be shown by the declarations of the 
 subscribers, made long after making such subscriptions. lb. And where the 
 charter of a corporation recjuires that one thousand shares shall be subscribed 
 before the organization of the company, the decision of the majority of the sub- 
 scribers that this condition has been complied with, and the actual organization 
 of the company in pursuance of the decision, are binding upon the minority. lb. 
 This will not preclude the minority from defending on the ground that the pro- 
 ceedings of the majority were in bad faith. See also Taggart v. West Marj-land 
 Railw., 24 Md. 663. And where the subscriber gives the company his note for 
 the sum required to be paid at the time of subscription, and subsequently pays the 
 same, his subscription is binding, aiid makes him a member of the company, and 
 he cannot escape the responsibility of his position on account of any previous 
 irregularity. Ogdensburgh Railw. r. WoUey, 38 N. Y. 118. Subscribers can- 
 not defend against calls, on the ground that subscriptions were taken for two 
 sections of the road without distinguishing how much waa to be applied on each ; 
 or on the ground that the construction of the road was bcgim before twenty per 
 
 ♦ 174, 176
 
 176 ASSESSMENTS OR CALLS. ' CH. IX. 
 
 ground for allowing an action to be maintained for the money 
 paid, or any defence to the notes given for the balance.^ 
 
 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 requisite 
 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 1,500,000Z. shall have been subscribed, it shall be lawful 
 for the company to put in force all the powers of the act, author- 
 izing the construction of the railway, and of the acts therein 
 recited, being the general railway acts, did not require such sub- 
 scription to be made before making calls, but only before exercis- 
 ing compulsory powers of taking land.^ 
 
 centum of each subscription was paid, according to the requirements of the 
 charter ; or that by a subsequent statute the amount of capital stock required to 
 build the road had been reduced below the requirements of the charter ; or that 
 interest had been paid on subscriptions according to the recommendation of the 
 terms of subscription ; or that the charter of the company had been amended 
 by extending the time for completing the road. Agricultural Branch Railw. v. 
 Winchester, 13 Allen, 29. 
 
 * Nutter V. Lexington & West Cambridge Railw., 6 Gray, 85. 
 
 ^ Stoneham Branch Railway Go. v. Gould, 2 Gray, 277 ; Salem Mill-Dam 
 Co. V. Ropes, 6 Pick. 23 ; s. c. 9 Pick. 187 ; Cabot & West Springfield Bridge 
 Co. V. Chapin, 6 Cush. 50 ; Worcester & Nashua Railway Co. v. ffinds, 8 Cush. 
 110 : Lexington & West Cambridge RaUway Co. v. Chandler, 13 Met. 311 ; N. 
 Hampshire Central Railway Co. v, Johnson, 10 Foster, 390. 
 
 But a subscriber for shares in a railway company is liable for calls, although 
 by a subsequent amendment of the charter of the company the capital stock is 
 limited to four thousand shares, and that number has not been subscribed, there 
 being no such condition, either in the charter of the company, or the terms of 
 subscription, at the time of subscribing. York & Cumberland Railway v. Pratt, 
 40 Maine, 447. But the number of shares required by the charter must be 
 subscribed, as stated in the text. Penobscot Railway r. Dummer, 40 Maine, 
 172. But the records of the company are evidence of such fact. lb. Same ». 
 White, 20 Law Rep. 689; s. c. 41 Maine, 512; Peake v. Wabash Railw., 18 
 Illinois, 88. 
 
 * Norwich & Lowestoft Navigation Co. 'v. Theobold, 1 Moody & M. 161 ; 
 Stratford & M. Railway Co. r. Stratton, 2 B. & Ad. 518. And see Atlantic 
 Cotton Mills V. Abbott, 9 Cush. 423, where a condition in a subscription for 
 stock, that the capital stock of the company should not be less than $1,500,000, 
 was held a condition precedent to making calls. 
 
 " Waterford, Wexford, & W. Railway Co. v. Dalbiac,' 6 Railw. C. 753 ; s. c. 
 * 176
 
 § 51. CONDmONS PRECEDENT TO MAKING CALLS. 177 
 
 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 corporar 
 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, assess- 
 ments cannot be made before the required number is taken. And 
 in such case conditional subscriptions are not to be reckoned, even 
 where the condition is acceded to by the company, if the sub- 
 scriber still repudiates the subscription, on the ground that the 
 condition is not fully performed by the contract drawn up in form. 
 And the plea of the general issue, is no such * admission of the 
 existence of the company, as to preclude subscribers from con- 
 testing the amount of subscriptions, to enable the company to 
 make calls.' 
 
 4 Eng. L. & Eq. 455. But the American cases will not justify such a construc- 
 tion. It would here be held a condition precedent to the right to make calls, or 
 even to maintain a corporate existence, probably. 
 
 • Littleton Manufacturing Co. v. Parker, 14 N. Hamp. 543 ; Contoocook 
 Valley Railway Co. v. Barker, 32 N. Hamp. 363. 
 
 Where the condition of a bond given for the amount of a railway subscription 
 was, that the same should be paid when the road was " completed" to a certain 
 village, it was held that the condition was performed when the road was made 
 to the suburbs of the village, in such a manner, as to allow daily trains oi) it, 
 canying all the freight and passengers that offer, although some portion of the 
 work was only temporarj-. O'Neal v. King, 3 Jones, 517 ; Chapman r. Mad 
 River & Lake Erie Railway Co., 6 Ohio N. S. 119. 
 
 ^ Oldtown & Lincoln Railw. Co. v. Veazie, 39 Maine, 571. Any condition 
 the subscriber sees fit to annex to his subscription must be complied with before 
 the subscriber is liable to assessments. Penobscot & Kennebec Railw. Co. 
 r. Dunn, 39 Maine, 587. 
 
 A condition, that not more than five dollars on a share shall be assessed at 
 one time, is not violated by two or more assessments being made at one time, if 
 only five dollars is required to be paid at one time. lb. Penobscot Railw. 
 V. Dummcr, 40 Maine, 172. And the same principle already stated, that where 
 the conditions of a subscription required seventy-five per cent of the estimated 
 cost of any section of the road to be subscribed, by responsible persons, before 
 its 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, is here abo maintained. lb. 
 
 And where the charter of the company requires that the capital stock be not 
 
 12 • 177
 
 178 ASSESSMENTS OB CALLS. CH. IX. 
 
 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 accepted, and 
 assessments made, and afterwards, by an act of the legislature, 
 accepted by the corporation, the minimum was reduced to 8',000 
 shares, in an action to recover assessments, made on defendant's 
 shares, before and after such alteration of the charter, it was held : 
 
 1. That the minimum was a condition precedent, to be fulfilled 
 by the corporation, before the subscribers were liable to assess- 
 ments. 
 
 2. That the alteration of the charter will not aflfect prior sub- 
 scribers. 
 
 3. Nor will the defendant be estopped from relying upon this 
 * condition, by having acted as a shareholder and officer in the cor- 
 poration, and contributed towards the expenses of the company. 
 
 4. That corporators, by any acts or declarations, cannot relieve 
 the corporation from its obligation, to possess the capital stock, 
 required by its charter.^ 
 
 7. Where the charter of a railway company provided for assess- 
 ments by the directors of the company upon the shares of the 
 stock, as they might deem expedient and necessary in the execu- 
 tion and progress of the work, provided " that no assessment shall 
 be laid upon any share in said corporation of a greater amount 
 than one hundred dollars in the whole, . . . and if a greater 
 amount of money shall be necessary to complete said road it shall 
 be raised by creating new shares," it was held that the charter 
 limited the amount of all the assessments to one hundred dollars 
 on a share, and that assessments beyond that sum, made for the 
 purpose of paying the debts of the company, were illegal.^ 
 
 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, v?ithin the prescribed limits, before making calls. 
 White Mountains Railw. c. Eastman, 34 N. H. 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. RaUw. v. Dunn, 39 Maine, 587. See also Troy & Greenfield Railw. v. 
 Newton, 8 Gray, 596. 
 
 * Great Falls & Conway R. Co. v. Copp, 38 N. H. 124. 
 •178
 
 § 52. CALLS MAY BE MADE PAYABLE BY INSTALMENTS. 179 
 
 8. Where the charter of a railway company fails to fix the num- 
 ber of shares of the capital stock, it must be presumed to have 
 been the purpose of the legislature that the corporation should 
 limit the number. And this must be done before any valid as- 
 sessments can be made. In such case, if the number fixed exceed 
 the number subscribed, the company may change the number ; 
 but the assessments must be made upon the whole number, and 
 if an assessment be made before the number ultimately fixed is 
 subscribed, it will be irregular and void. A subscriber who has 
 paid one assessment is not thereby precluded from insisting upon 
 this irregularity in defence to others.® 
 
 9. Where the charter of a railway company as originally grant- 
 ed limited the amount of stock at a point which the subscription 
 never reached, but by a subsequent alteration of the charter the 
 amount of the capital stock was reduced, and after the subscrip- 
 tions reached that amount the company was duly organized, it was 
 held that the alteration in the charter did not release prior sub- 
 scribers.^® 
 
 *SECTION VI. 
 Calls may he 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 tliat 
 such mode of making calls, where the directors of the company 
 have an unlimited' discretion, as to the time and mode of requiring 
 payments of the subscriptions, is unobjectionable.* 
 
 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 pay- 
 able, until the directors, at a regular meeting, had fixed the time 
 
 • Som. & Ken. R. Co. v. Gushing, 45 Me. 524. 
 
 " Bedford Railw. Co. r. Bowser, 48 Penn. St. 29. 
 
 ' Ambergate, N. & Boston & E. J. R. v. Coulthard, 5 ExcL 469; Strat- 
 ford & M. R. r. Stratton, 2 B. & Ad. 618. 
 
 » London & N. W. R. r. M'Michael, 6 Exch. 273 ; Ambergate R. v. Nor- 
 cliffe, 6 Exch. 629 ; s. c. 4 Eng. L. & Eq. 461 ; Birkenhead, L. & Ch. R. v. 
 Webster, 6 Exch. 277 ; 8. c. 6 Railw. C. 498. 
 
 • 179
 
 180 
 
 ASSESSMENTS OR CALLS. 
 
 CH. IX. 
 
 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. 
 But where the subscription is made payable in instalments of ten 
 per cent every sixty days as the work progresses, it is not impor- 
 tant that any formal call or demand be made.* 
 
 Where the charter gives the corporation power to collect sub- 
 scriptions to the capital stock by such instalments as the president 
 and directors shall deem proper, they may make contracts with 
 subscribers for the payment of subscriptions in any reasonable in- 
 stalments, as to time and place, and if such condition were ultra 
 irireSf it would render the whole contract void, and not the condi- 
 tion merely.^ 
 
 •SECTION VII, 
 
 Parti/ liable for Calls. 
 
 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. 
 
 4. One may so conduct as to estop him from 
 
 denying his liability. 
 6. The register of the company evidence of 
 membership. 
 
 6. Subscriptions must be made in conformity 
 
 to charter. 
 
 7. Transferee liable for calls. Subscriber 
 
 also in some cases. 
 
 8. Original books of subscription primary 
 
 evidence. 
 
 9. If lost secondary evidence admissible. 
 
 10. What acts will constitute one a share- 
 
 holder. 
 
 11. May take and negotiate or enforce notes 
 
 for subsaiptions. 
 
 12. But note fraudulently drained not en- 
 
 forceable. 
 
 13. Subscriptions as executor distinct con- 
 
 tracts from those in private capacity. 
 
 § 53. 1. All the original subscribers to the stock in a railway 
 company are usually made liable to calls, by the charter of the 
 company, or by general statute. 
 
 2. Some question has arisen in the English courts, as to what 
 is necessary to constitute one a subscriber. In an early case^ 
 
 61. 
 
 3 Ross V. Lafayette & Ind. Railw., 6 Porter (Ind.), 297. 
 
 * Breedlove v. M. & F. Railw., 12 Ind. 114; Smith v. Ind. & HI. Railw., id. 
 
 * Roberts v. Ohio & Mobile Railw., 32 Mississippi, 378. 
 ' Thames Tunnel Company v. Sheldon, 6 B. & C. 341.' 
 
 * 180
 
 § 53. PARTY LIABLE FOR CALLS. 181 
 
 upon this subject, it was held, that the word " subscriber," in the 
 act of parliament constituting the company, applied only to those 
 who had stipulated that they would make payment, and not to all 
 those who had advanced money ; and that one, who was named in 
 the recital of the act, as one of the original proprietors, and who 
 had paid a deposit on eight shares, but who had not signed any 
 contracts, was not a subscriber within the meaning of the act, and 
 not liable to be sued by the directors for calls on the remainder of 
 such shares. 
 
 3. This is the generally received opinion upon that subject, in 
 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 sub- 
 rogate another person to his obligation, without a substitution of 
 his name upon the books of the company, or some other equivalent 
 act recognized by the charter and by-laws of the company. 
 
 4. But the principal difficulty, in regard to liability for calls, 
 arises, where there have been transfers, and the name of the trans- 
 feree not entered upon the books of the company. For whenever 
 the name of the vendee of sliares is transferred to the register of 
 shareholders, the cases all agree that the vendor is exonerated, 
 (unless there is some express provision of law, by which the liabil- 
 ity of the original subscriber still continues,) and the vendee 
 becomes liable for future calls.* 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 him- 
 self to the company as the owner of shares, and sent in scrip cer- 
 tificates, which had been purchased by him, claiming to be registered 
 as a proprietor, in respect thereof, and had received from the com- 
 pany receipts therefor, with a notice that they would be exchanged 
 
 • Ryder r. Alton & Sangamon R., 13 111. 516. 
 
 ' Sheffield & Ashton-under-Lyne & Man. R. v. Woodcock, 2 Railw. C. 522 ; 
 8. 0. 7 M. & W. 574 ; London & Grand J. R. v. Freeman, 2 Railw. C. 468 ; 
 8. c. 2 M. &G. 606 ; pott, § 54. 
 
 * Sheffield, Ash. & M, R. p. Woodcock, supra; London & Grand J. R. v. 
 Freeman, $upra. 
 
 * 181
 
 182 ASSESSMENTS OS CALLS. CH. IX. 
 
 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 has paid calls on shares, 
 or attended meetings of the company, as the proprietor of shares, 
 he is estopped to deny such membership.^ 
 
 5. The holders of scrip certificates are properly entered as pro- 
 prietors of shares before the passing of the act, although they have 
 neither signed the parliamentary contract, nor been original sub- 
 scribers ; and the register-book of shareholders, which is * required 
 by the statute to be kept in a prescribed form by the company, 
 though irregularly kept, is prima facie evidence who are proprie- 
 tors.'^ 
 
 6. The subscription for stock to be valid, must be made in con- 
 formity with the act. So that where it was required to be made 
 in such form as to bind the subscriber and his heirs, it was deemed 
 requisite to be made under seal,^ But such a provision is of no 
 force in this country, simple contracts being of the same force as 
 against heirs as specialties. 
 
 7. If by the act of incorporation the shares are made assignable 
 without restriction, and no express provision exists in regard to 
 the party liable for calls, it would seem to follow, upon the general 
 principles of the law of contract, that the proprietor of the share, 
 for the time being, is liable for calls. And where certain formali- 
 ties are requisite in the transfer of shares, and these have been 
 complied with on the part of the transferee, or waived by the com- 
 pany at his request, his liability to calls then attaches.^ The liabil- 
 ity ef the original subscriber often continues, at the election of the 
 
 * Cheltenham & Great Western Union R. v. Daniel, 2 Q. B. 281, and Same 
 V. Medina, 2 Railw. C. 728. And this being matter of estoppel in pais, may- 
 be used in evidence, in answer to the defence, without being pleaded. 
 
 8 London & Grand J. R. v. Graham, 2 Railw. C. 870; s. c. 1 Q. B. 271. 
 
 ' Birmingham, Boston & Th. J. R. v. Locke, 2 Railw. C. 867 ; 8. c. 1 Q. B. 
 256. 
 
 8 Cromford & High Peak R. v. Lacey, 3 Y. & Jer. 80. See ante, § 18, 
 n. 2. 
 
 » Huddersfield Canal Co. v. Buckley, 7 T. R. 36 ; Aylesbury R. v. Mount, 5 
 Scott, New R. 127 ; West Philadelphia Canal Co. v. Innes, 3 Whart. 198 ; 
 Mannr. Currie, 2 Barb. Sup. Ct. 294; Hall d. U. S. Insurance Co., 5 GiU, 
 484 ; Bend r. Susquehannah Bridge Co., 6 Har. & J. 128; Angell & Ames, oh. 
 16, § 634. 
 
 ♦182
 
 § 53. PARTY LIABLE FOB CALLS. 183 
 
 company, after that against the vendee attaches, but when the com- 
 pany consent to accept the name of the transferee, that of the sub- 
 scriber, or former proprietor, ceases.^^ 
 
 8. It seems to be regarded as settled law, that the best evidence 
 of an original subscription to the capital stock of a railway com- 
 pany is the production of the original subscription book, or the 
 book of records of the company on which the subscriptions were 
 made.i^ 
 
 * 9. But where the books are shown not to be in the proper place 
 of deposit and custody, and no trace can be found of their present 
 existence elsewhere, secondary evidence is admissible. And the 
 court decide the question of loss, as a preliminary one to the admis- 
 sion of the secondary evidence." 
 
 10. One who accepts a subscription made by another on his be- 
 half, and pays the calls made thereon and receives a certificate of 
 ownership, is responsible as a shareholder ; and it makes no differ- 
 ence that his name d9es not appear upon the transfer books or the 
 alphabetical list of stockholders as a transferee of stock. And one 
 may become a shareholder without receiving a certificate of 
 8tock.i2 
 
 11. It seems clear that railway companies may accept promis- 
 sory notes in payment of subscriptions, and either negotiate or 
 enforce them by suit.^^ The questions of pleading and evidence 
 which may be raised in suits upon such notes are extensively dis- 
 cussed in the case last cited. 
 
 12. And where the subscription to railway stock is dependent 
 upon the condition that no calls shall be made until work should 
 be begun upon a particular section of .the road, and the subscriber 
 was induced to execute his note for the amount upon the rep- 
 resentation of the agents of the company that work had been 
 80 commenced, when in fact it bad not, the note cannot bo en- 
 forced." 
 
 " Post, § 54. 
 
 " Graff r. Pittsburgh & Steubenville Railw. Co., 81 Penn. St. 489. Theae 
 subscriptions are, in fact, sometimes made upon different books, and then brought 
 together upon one book, for the purpose of permanent preservation. But it 
 would seem there should be evidence of the original subscription. 
 
 '» Burr V. Wilcox, 6 Bosw. 198. 
 
 " Goodrich c. Reynolds, 31 111. 490. See also Straus r. Eagle Im. Co., 6 
 Ohio St. 59. 
 
 " Taylor v. Fletcher, 16 Ind. 80. 
 
 • 183
 
 184 
 
 ASSESSMENTS OB CALLS. 
 
 CH. IX. 
 
 13. Subscriptions in the capacity of executor are to be regarded 
 as distinct contracts from those in the personal capacity of the 
 subscriber, so tliat the pendency of a suit for one will not abate or 
 render vexatious a subsequent suit for the other. ^^ 
 
 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 con- 
 dition, subscriber no longer liable for calls. 
 
 4. Dues cannot be enforced which accrue upon 
 shares after they were agreed to be can- 
 celled. 
 
 § 54. 1. One may relieve himself of his liability for calls, by 
 * the transfer of his shares, and the substitution of the name of his 
 assignee for his own upon the books of the company. But until 
 this change upon the books of the company is made, they are at 
 liberty to hold the original subscriber liable, if they so elect.^ 
 But where the act of incorporation of a joint-stock company de- 
 clared the shares should be vested in subscribers, their executors 
 and assigns, with power to the subscribers to assign their shares, 
 and a committee, to be appointed under the act, were authorized 
 to make calls upon the proprietors of shares, it was held, that an 
 original subscriber, who had transferred his shares, was no longer 
 liable to calls. '^ 
 
 2. 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 would 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- 
 
 '» New York City & Erie Railw. v. Patrick, 39 N. Y. 256. 
 
 ' Ante, § 47, and cases there cited. In Everhart v. West Chester and Phila- 
 delphia Railw., 28 Penn. St. 339, it is said that a transfer of stock, made for 
 the purpose of exonerating a subscriber, without the consent of the company, 
 is not a valid defence to an action against him for the purchase-money of the 
 shares subscribed. Ante, § 32. 
 
 * Huddersfield Canal Company v. Buckley, 7 T. R. 36, 42. 
 *184
 
 § 54. RELEASE FROU LIABILITT FOR CALLS. 185 
 
 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 
 subject.* 
 
 8. 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 reg- 
 ister of shares as a shareholder.* 
 
 4. Where the corporation resolve to release subscribers and to 
 cancel their stock upon making certain payments, which are made 
 and the stock cancelled, the company cannot enforce any dues on 
 such shares which subsequently accrue,^ since the former arrange- 
 ment amounted to an accord and satisfaction of all claim on the 
 pert of the company. But if the company thereby materially 
 lessened the remedy of creditors, they might possibly interfere. 
 
 ' 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 companj', after calls were made, but before they fell due, that the 
 transferee was liable for such calls, although he had never received certificates, 
 or given notice of the acceptance of the transfer. And it was held to make no 
 difference, that the transfer was from an original subscriber, without considera- 
 tion, and that the holder is nevertheless liable for unpaid calls. Mann v. Pentz, 
 2 Sandf. Ch. 258 ; Hartford & New H. R. v. Boorman, 12 Conn. 630 ; Ayles- 
 bury R. r. Mount, 5 Scott, New R. 127. 
 
 * Waterford, Wexford, Wicklow, & D. R. r. Pidcock, 18 Eng. L. & Eq. 517. 
 8. c. 17 Jur. 26 ; s. c. 22 Law J. Rep. (n. 8.) Exch. 146 ; 8. c. 8 Exch. 279. 
 Where the company accept a conveyance of sliares to themselves, it will ex- 
 onerate the owner from calls. But a sale to another company of all the effects 
 of the company, will not release the shareholders from calls already made. 
 Plate Glass Insurance Co. v. Sunley, 8 El. & Bl. 47. 
 
 * Miller v. Second Jefferson Building Association, 50 Penn. St. 32. And where 
 the company accept another in the place of the original subscriber, the latter is 
 wholly released. Haynes v. Palmer, 13 Louis. An. 240. 
 
 • 185
 
 186 ASSESSMENTS OR CALLS. CH. IX. 
 
 SECTION IX. 
 
 Defences to actions for Calls. 
 
 1. Informality in organization of company 
 
 insufficient, 
 
 2. Slight acquiescence estops the party in some 
 
 cases. 
 8, 4. Default in frst payment insufficient. 
 
 6. Contract for stock, to be paid in ciher 
 
 stock. 
 
 7, 8. Infancy. Statute of limitations and 
 
 bankruptcy. 
 9. One commissioner can give no valid as- 
 
 6. Company and subscriber may waive that j surance as to the route. 
 
 condition. | 10. What representations matters of opinion. 
 
 § 55. 1. It is certainly not competent for a subscriber, when 
 sued for calls, to go, in his defence, into every minute deviation 
 from the express requirements of the charter, in the organization 
 and proceedings of the company. Any member of the association, 
 who intends to hold the company to the observance of those 
 matters whicli are merely formal, 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,^ Tindal, 
 Ch. J., says, in regard to the offer of a plea, that the money sued 
 for, being the amount of a call, was intended for other purposes 
 than those warranted by the act, " It seems to me it was never 
 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 making calls, that the 
 proceedings had been such as to amount to an abandonment of 
 the enterprise, as it was possible that there were still legal obliga- 
 
 ' The London & Brighton Railw, Co. v. Wilson, 6 Bing. N. C. 135. This 
 case decides, that a plea, that the company had made deviations in their line, and 
 that the money sued for was needed only in regard to such deviations, could not 
 be entertained or regarded as a proper inquiry in an action for calls upon shares ; 
 and so also of a plea, that fewer shares had been allotted than the act required. 
 Walford, 279 ; Wight v. Shelby RaUway, 16 B. Mour. 5. ' 
 • 186
 
 § 55. DEFENCES TO ACTIONS FOR CALLS. 187 
 
 tions 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 en- 
 force calls, under the statute, and to collect the deficiency remain- 
 ing, 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 he void, 
 as where the prescribed notice is not given.* And it would seem, 
 tliat 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 undertak- 
 ing. 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.^ And so also where 
 
 ' Logan V. Coartown, 5 Eng. L. & Eq. 171. 
 
 ' Lexington & West Cambridge R. v. Chandler, 13 Met. 311. 
 
 * Portland, Saco, & Portsmouth R. r. Graham, 11 Met. 1. 
 
 " Walford, 278, 279; Cromford & High P. R. r. Lacey, 3 Y. & Jer. 80; 
 Mangles r. Grand Collier Dock Co., 10 Sim. 519 ; 8. c. 2 Railw. C. 359 ; Thorpe 
 ©. Hughes, 3 Mylne & Cr. 742. 
 
 * Highland Tump. Co. v. McKean, 11 Johns. 98 ; Jenkins v. Union Tump. 
 Co., 1 Caines's Cas. in Error, 86 ; Hibcmia Tumpike Co. v. Henderson, 8 S. & 
 R. 219 ; Charlotte & C. R. r. Blakely, 3 Strob. 245. 
 
 ^ Hcnrj- r. The Vennilion R. 17 Ohio, 187. A similar rule is recognized in 
 Louisiana, in the case of Vicks. S. & Texas Railw. v. McKean, 12 La. Ann. 638. 
 
 ' Clark p. 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, 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 rcMiuisito 
 to give it validity, at the time of making the subscription. Everhart c. Wert 
 Chester & Ph. Railw., 28 Penn. St. 339. 
 
 • 187
 
 188 ASSESSMENTS OB CALLS. CH. IX. 
 
 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 subscription binds the subscriber to pay for 
 the stock taken, in conformity to the requisitions of the charter, 
 which is the more generally received notion upon the subject at 
 present, we do not well comprehend why the subscription itself 
 may not be regarded as efiectual, to create the subscriber a stock- 
 holder, 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. But upon the ground that, so far as the subscriber is 
 concerned, the company may waive this condition, upon what is 
 equivalent to payment, it ought also to be equally held, that when 
 
 And where commissioners were appointed, by an act of the legislature, and 
 were authorized to receive subscriptions for the purpose of constructing a rail- 
 way, no subscription to be valid unless five dollars was paid upon each share- 
 at the time of subscribing ; the act providing that when a certain number of 
 shares shall have been so subscribed, and the same certified under the oath of the 
 commissioners to the governor, he should issue letters-patent, incorporating 
 the subscribers, and such as should thereafter subscribe, and this was done, and 
 the company duly organized, it was held : 
 
 That the act imposed no restriction upon the corporation after it was organ- 
 ized, in regard to the pajTnent of the five dollars at the time of subscription. 
 That the condition, that subscriptions should not be valid till a certain amount 
 was subscribed, was one which the parties had a right to annex to the contract 
 of subscription, and as such, was valid, and the subscriptions could not be en-t 
 forced till the condition was performed. Philadelphia & West Chester Railw. 
 V. Hickman, 28 Penn. St. 318. See also Black River & Utica Railw. Co. r. 
 Clarke, 25 N. Y. 208 ; H. «& P. Plank Road Co. v. Bryan, 6 Jones Law, 82 ; 
 Piscataqua Ferry Co. v. Jones, 39 N. H. 491. 
 
 » Highland Tump. Co. r. McKean, 11 Johns. 98; Grayble v. The York & 
 Grettysburg Tump. Co., 10 Serg. & Rawle, 269. So also if one act as a stock- 
 holder in the organization of the company. Greenville & Columbia Railw. v. 
 Woodsides, 5 Rich. 145. 
 
 '" Klein p. Alton & Sangamon Railw., 13 111. 514. 
 
 » HaU ». Selma & Ten. Railw., 6 Alabama, 741. 
 
 " McRae v. Russell, 12 Ired. 224 ; Selma & Ten. Railw. r. Tipton, 5 Ala- 
 bama, 787 ; Tracy v. Yates, 18 Barb. 152 ; Greenville & Columbia Railw. v. 
 Woodsides, 5 Rich. 145 ; Mitchell v. Rome Railw., 17 Geoi^ia, 574. 
 ♦188
 
 § 65. DEFENCES TO ACTIONS FOB CALLS. 189 
 
 the subscriber has obtained such a waiver, for his owu case, he 
 shall be estopped to deny, that it was so far a compliance with the 
 charter as to render the contract binding. 
 
 0. And upon the other hand, the company having consented to 
 accept the subscriber's promise, instead of money, for the first in- 
 stalment, cannot defeat his right to be regarded as a stockholder, 
 on account of his not complying with a condition which they have 
 expressly waived. It would seem, that under these circumstances, 
 the immediate pitrties to the contract could not obtain any advan- 
 tage over each other, by reason of the waiver, of strict performance 
 of such condition, by mutual consent. But the objection must 
 come properly from some other quarter, either the public, or 
 the other shareholders. And possibly the cases decided upon this 
 subject do not justify any such * relaxation, even between the par- 
 ties to the immediate contract of subscription. Upon general 
 principles, applicable to the subject, as educed, from the law of 
 contracts, we see no objection to the waiver of such a condition on 
 behalf of the company. And if there be any objection upon other 
 grounds, it is not for the benefit of the subscriber.^^ 
 
 " It has been held that the misstatement of the length of the road, in the 
 articles of association, if there be no fraud ; or the lease, or sale, of the fran- 
 chises of the corporation to another company, which is void ; or the neglect to 
 make the whole road, even without legislative sanction, will not exonerate a sub- 
 scriber from paying calls. Troy & Rutland Railw. v. Kerr, 17 Barb. 581. But 
 where a preliminary subscription is required, it must be absolute and not de- 
 pendent upon conditions. Troy & Boston Railw. r. Tibbits, 18 Barb. 297. But 
 a condition that provides for interest, by way of dividends, to paying subscribers, 
 until the full completion of the road, at the expense of subscribers who do not 
 pay, or one that imposes a limitation upon the directors in calling in stock, is 
 void as being against good policy. lb. 
 
 In a case in Kentucky, Wight r. Selby Railw., 16 B. Monr. 5 it was held, 
 that a subscription to stock, in a railway, is not rendered invalid by reason of 
 the subscriber's failure to pay a small sum required by the charter to be paid 
 upon each share when he subscribed. Himpson, J. " It was their duty to 
 pay it, at the time the stock was subscribed, but they should not be allowed 
 to take advantage of their own wrong, and release themselves from their whole 
 obligation, by a failure to 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. 
 
 In a more recent case, S. subscribed for $500 of stock in a railway com- 
 pany upon the understanding that the first ten per cent required by law to be 
 paid in cash upon subscribing should be paid by his services in securing subscrip- 
 tions and right of way. He subsequently presented an account against the com- 
 
 • 189
 
 190 ASSESSMENTS OB CALLS. CH. IX. 
 
 * 6. An agreement to take stock and pay in the stock of a canal 
 company, and an offer of the canal stock, will not make the party 
 liable to pay money .^* 
 
 pany for services, from which it appeared, that at the date of the subscription the 
 company was indebted to him in an amount greater than the cash payment re- 
 quired, in which account he applied and credited $50 for ten per cent upon his 
 subscription, and $50 for the first call made thereon. The account was allowed 
 by the company, and the balance paid by S. Held, that this was a sufficient 
 compliance with the statute in respect to the payment of the first ten per cent, 
 and made the subscription obligator^' upon S. Beach v. Smith, 30 N. Y. 116. 
 See also Vicksburg, Sh. and Texas R. Co. r. McKean, 12 La. Ann. 638. 
 
 In this case it is further held, to be no valid defence to a subscription to the 
 stock of a railway, that it was delivered as an escrow to one of the commission- 
 ers appointed to receive subscriptions. It should have been delivered to a third 
 person, to become effectual as an escrow. Such subscribers are presumed to 
 know the conditions of the charter under which the subscription is taken, and 
 that if they desire to make their subscriptions conditional, it must be so expressed 
 in the written terms of subscription, and that it is not competent to deliver a 
 written contract, as an escrow, to the partj' himself. For, to admit oral evidence 
 of such a condition, in the deliver}- of a written contract to the party benefited 
 thereby, is a practical abandonment of the rule of evidence, that such testimony 
 is incompetent to control a written contract. 
 
 It has been held, that it is not competent for the commissioners to accept the 
 check of a subscriber in paj-ment of the amount required by the charter to be 
 paid at the time of subscription, but that specie, or its equivalent, must be de- 
 manded. Crocker ». Crane, 21 Wend. 211 ; s. c. 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 pajinent to be in specie. King r. 
 Elliott, 5 Sm. & M. 428. 
 
 And where the charter of a railway company was made to depend upon the 
 condition of the company expending $50,000 in two years, and completing the 
 road in four years from the date of the grant, and the company having failed in 
 the first part of the condition, but having obtained subscriptions to their stock to 
 a large amount, and the defendant being one of the subscribers, the company 
 having organized, and chosen directors, the defendant being one of them, the 
 legislature revived and renewed the charter, and extended the time for the 
 performance of such condition ; and subsequently to this, a meeting of the stock- 
 holders was called by the commissioners, in which the defendant took part, 
 additional directors being appointed, and at a meeting of the directors, the defend- 
 ant being present, a call was made upon the subscriptions, it was held that this 
 amounted to an acceptance of the renewal of the charter, and was such a recog- 
 nition of the former organization of the company, as to amount to a sufficient 
 organization imder the new charter, and the defendant was held to be estopped 
 by his conduct from denying the regularity of these proceedings, and to be lia- 
 
 ^* Swatara Railw. v. Brune, 6 Gill, 41. 
 190
 
 § 55. DEFENCES TO ACTIONS FOB CALLS. 191 
 
 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 pro- 
 visions of the English statute, all persons may become shareholders, 
 thore being no exception, in terms, in favor of infants ; and if one 
 be registered while an infant, and suffer his name to remain on the 
 registry after he becomes of full age, he is liable for calls, whether 
 made while he was an infant, or afterwards.^* * It seems to be 
 
 ble to pay calls on his stock. Danbury & Norwalk Railw. v, Wilson, 22 Conn. 
 436. 
 
 'Where the general railway law, under which a company is organized, requires 
 a pa^nnent of ten per cent upon each subscription before the filing of the articles 
 of association with the secretary of state, it is sufficient, if the cash pa}'ments, by 
 whomsoever made, amount in the aggregate to ten per cent upon $1,000 for 
 each mile of the road proposed to be constructed. Lake Ontario, A. & New 
 York Railw. v. Mason, 16 N. Y. 451. And the subscription to stock before the 
 incorporation of the company, is obligatory upon the company, although the 
 subscriber make no cash payment whatever, the right of membership thereby 
 acquired being a sufficient consideration for the subscription. lb. Ante, § 
 61, n. 1. 
 
 '» North W. Railw. r." McMichael, 5 Exch. 114 ; Birkenhead Railw. v. Pil- 
 cher, 5 Exch. 121 ; 8. c. 6 Railw. C. 622. The party should also deny having 
 derived any advantage from the shares, or offer to restore them. N. W. Railw. 
 r. McMichael, 5 Exch. 114; Leeds & T. Railw. v. Feamley, 4 Exch. 26; Dub- 
 lin & W. Railw. p. Black, 16 Eng. L. & Eq. 556; 8. c. 8 Exch. 181. See also 
 Deposit & G. Life Assur. Co. p. Ayscough, 6 E. & B. 761. 
 
 " Cork & Bandon Railw. r. Cazenove, 10 Q. B. 935. But it would seem 
 that infants arc not comprehended, by the general terms of the English statute. 
 Birkenhead, &c. Railw. p. Pileher, 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. Farke, B., in Birkenhead & C. Railw. p. Pileher, 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. lb. 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 derived 
 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 p. London & N. W. Railw,, o Exch. 
 866; 8. c. 6 Railw. C. 618; Birkenhead & C. Railw. p. Pileher, 5 Exch. 121 ; 
 
 •191, 192
 
 192 ASSESSMENTS OB CALLS. CH. IX. 
 
 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.^® 
 
 9. One of the commissioners appointed with five others at a 
 given place to take subscriptions to a railway, has no right in doing 
 so to give any assurance as to the line of location that would be 
 adopted by the company .^^ 
 
 10. And where the subscription is made upon condition of the 
 road going in a particular route, the plaiutifiT may show that the 
 defendant owned land upon that route. And any representations 
 of the agents taking the subscriptions, as to the ultimate value of 
 the stock, will be regarded as matters of opinion merely upon 
 which the subscriber had no right to rely.^ 
 
 8. c. 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. lb. 
 
 The plea must show that the infant avoids the contract of subscription, on his 
 coming of full age. Leeds and Thirsk Railw. r. Feamley, 5 Railw. C. 644 ; 
 8. c. 4 Exch. 26. And the appearance by attorney is not equivalent to an aver- 
 ment that the defendant is of full age. lb. 
 
 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 repudi- 
 ated the contract and subscription, and gave notice to the plaintiffs 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 Railw. v. Coombe, 3 Exch. 565 ; 8. 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, arid the father of such 
 infant, by a deed, reciting that he had purchased on behalf of the son, and cove- 
 nanting 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 an infant, it was held that the father was a contributory. Ex 
 parte Reaveley, 1 De G. «& S. 550. See also Stikeman r. Dawson, 4 Railw. C. 
 686 ; 8. c. 1 De G. & S. 90. 
 
 " Cork & B. Railw. v. Goode, 18 C. B. 618; 8. c. 24 Eng. L. & Eq. 246. 
 
 >9 Chappie's case, 17 Eng. L. & Eq. 516 ; s. c. 5 De G. & Sm. 400. 
 
 •» North Carolina Railw. r. Leach, 4 Jones Law, 340. 
 
 » Vawter r. Ohio & Miss. R. Co., 14 Ind. 174.
 
 §56. 
 
 FUNDAMENTAL ALTERATION OP CHARTER. 
 
 19S 
 
 •SECTION X 
 
 Fundamental alteration of Charter. 
 
 1. Will release the std>scr{bers to stock. 
 
 2. Railway company cannot purchase steam- 
 
 boat*. 
 8, 7. Majority may bind company to altera- 
 tions, not Jundamental. 
 
 4. Directors cannot \tse the funds for purpotet 
 
 foreign to the organization. 
 
 5. 9. But where the legislature or the directors 
 
 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 con- 
 
 dition of a particular location, it must 
 be complied with. 
 
 8, 9. Consideration of subscription, being 
 location of road, must be substantially 
 performed. 
 
 10. Express conditions must be performed. 
 
 11. How far alterations may be made without 
 
 releasing subscribers. 
 
 12. It may be done where such power is re- 
 
 served in the charter. 
 18. Personal representative liable to same ex- 
 tent as subscriber. 
 
 14. Money subscriptions not released by sub- 
 
 sequent ones in land. 
 
 15. Corporation cannot emigrate into another 
 
 state even by legislative permission. 
 
 § 56. 1. There can be no doubt, that subscribers to the stock 
 of a railway company are released from their obligation to pay calls 
 by a fundamental alteration of the charter. This is so undeniable, 
 and so familiar a principle, in the general law of partnership, 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 doctrine applicable to the 
 subject is very perspicuously stated by Woodbury, 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 corpora- 
 tion. To make a valid change in this special contract, as in any 
 other, the consent of botli parties is indispensable." 
 
 2. In an important case ^ where it appeared that after calls fell 
 
 ' Union Locks & Canal Co. v. Towne, 1 N. Hamp. 44. But where the origi- 
 nal charter or preliminary contract provides for modifications, the subscribers , 
 are still bound by all such as come fairly within the power. Cork & Youghal 
 Railway v. Patterson, 18 C. B. 414 ; 8. c. 37 Eng. L. & Eq. 898 ; post, § 264, 
 n. 6 ; Nixon v. Brownlow, 30 Law Times, 74 ; s. c. 3 H. & N. 686. 
 
 » Hartford & New Haven Railw. r. Croswell, 6 Hill, 383. In Winter v. Mus- 
 cogee Railw., 11 Ga. 438, the charter was so altered as to allow the road 
 to stop short of its original terminus and pass in a different route, and subscrib- 
 ers to the stock were held thereby released, unless they assented to the altera- 
 
 18 * 193
 
 194 ASSESSMENTS OR CALLS. CH. IX. 
 
 * due, but before suit brought, the company, being incorporated for 
 the purpose of building a railway, procured an additional special 
 act, by which they were authorized to purchase steamboats : it was 
 held, that a subscriber, not having assented to the alteration, was 
 absolved from his obligation to pay calls. 
 
 3. In a very elaborate opinion of Bennett, Chancellor,^ upon this 
 subject, the following propositions are established : — 
 
 tion. But where one gave his note for the first instahnent, and his stock was 
 forfeited, for non-pajTnent of calls, he is not relieved from pajTnent of his note by 
 a material alteration of the charter. Mitchell r. Rome Railw., 17 Ga. 574. 
 But any modification of the charter which affects merely the detail of proceedings 
 in making and enforcing calls will not release subscribers to the stock, when 
 such modification has been accepted by the corporation. Illinois River Railw. 
 Co. V. Beers, 27 Illinois, 185. 
 
 ^ Stevens r. Rutland & Burlington Railw., 29 Vt. 545. The opinion at 
 length is a valuable commentary upon this important subject. In this opinion 
 the learned chancellor maintains, — 
 
 1. That by the implied contract, among the proprietors of aU joint-stock un- 
 dertakings, 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 restrain the company 
 from applying to the legislature for an enlargement of their powers. Cunliff r. 
 Manchester & Bolton Canal Co., 13 Eng. Cond. Ch. 131 ; s. c. 2 Russell & My. 
 470, 475 ; Livingston r. Lj-nch, 4 Johns. Ch. 573. 
 
 2. That if the proposed alteration is only auxiliary to the main design of the 
 original organization, it will not be enjoined ; but if it be fundamental, it will 
 be. That a variation in the course of a turnpike-road has been regarded as a 
 fundamental alteration in the charter, Middlesex Turnpike Co. r. Lock, 8 Mass. 
 
 268, and, as such, to exonerate subscribers to the stock of the original com- 
 pany. [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 sub- 
 scriber was a director in the company, and joined in the petition to the legisla- 
 ture for the alteration. Same v. Swann, 10 Mass. 884 ; Same v. Walker, 10 
 Mass. 390. 
 
 The learned chancellor regarded the case of Revere r. The Boston Copper 
 Co., which was cited, by the counsel for the defendants, as making rather against 
 his purpose. 15 Pick. 351, 363. The case of Hartford & New Haven Railw. 
 r. Croswell, 5 Hill, 383, 385, is relied upon, as having defined a fundamental 
 alteration of the charter of a corporation, in the language of Ch. J. Ndson, to be 
 one "by which a new and different business is superadded to that originally 
 contemplated." 
 
 8. No one can be made a member of a joint-stock corporation without his con- 
 •194
 
 § 56. FUNDAMENTAL ALTERATION OP CHARTER. 196 
 
 *1. That a majority of a joint-stock company cannot use the 
 joint property except within the legitimate scope of their charter, 
 
 sent. Ellis r. Marshall, 2 Mass. 269; nor can he be compelled to remain a 
 member of such company after its fundamental organization is altered by act of 
 the legislature. But an act of the legislature allowing a navigation company to 
 raise their dam above the point of the original charter limit, is in furtherance of 
 the original grant, and will not exonerate the subscribers. Gray v. I^Iononga- 
 hela Navigation Co., 2 Watts & Serg. 156. And an alteration in the number of 
 votes, to be cast by stockholders, if it impair the obligation of the contract re- 
 sulting from the grant, is void, and so cannot release the subscribers. Osbom 
 V. Bank of United States, 9 "Wheat. 738. But any statute which has the force 
 to effect an alteration in the structure of the corporation, will release subscribers. 
 Indiana & Ebensburg Tump. 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, have no proper bearing upon the question. 
 Lincoln & K. Bank v. Richardson, 1 Greenl. 79 ; Foster v. The Essex Bank, 16 
 Mass. 245. 
 
 5. That it is no fatal objection to the application that it is made at the insti- 
 gation of a rival enterprise. Coleman v. Eastern Counties Ilailw., 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 r. Shrewsbury & Chester Railw., 13 Beav. 1 ; s. c. 3 
 Eng. L. & Eq. 144; Coleman v. Eastern Co.'s Railw., 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 Eldun, Chancellor, in Natusch 
 r. Irving, supra. 
 
 8. In favor of the importance and .necessity of having this constant super- 
 vision exercised over joint-stock companies, in order to keep them within the 
 range of their legitimate functions, the learned chancellor thus concludes : — 
 
 "■WTiere it is clearly shown that a cori)oration is about to exceed its powers, 
 and to apply their funds or cnjdit 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. 77 ; The River Dun Navigation Co. c. North 
 Midland Railw. Co., 1 Railw. C. 153, 164. The last case was before the Lord 
 Chancellor, 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 inter- 
 fere ; and that was Lord Eldun''s ground in Agar p. The Regent's Canal Co.' 
 'ITie lonl chancellor 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 ex- 
 ercised 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 jurisdic- 
 tion of chancer)-, for the purpose of keeping these companies within the powers 
 
 •196
 
 196 ASSESSMENTS OR CALLS. CH. IX. 
 
 * aud 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 tlieir char- 
 ter, which is fundamental, as to enable them to build an extension 
 of their road, any shareholder who has not assented * to the act, 
 may restrain the company, by injunction, from applying the funds 
 of the original organization to the extension. 
 4. In a late case before the Master of the Rolls,* it was held 
 
 which the acts give them. And it is added : ' And a most wholesome exercise 
 of the jurisdiction it is ; because, great as the powers necessarily are, to enable 
 the companies to carrj- into effect 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 to 
 keep them within their legitimate limits.' 
 
 "The injunction must, therefore, be allowed; but only so far as to restrain 
 the defendants, imtU the further order of the chancellor, from applying, the pres- 
 ent 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 build- 
 ing of it : and also from using or pledging, directly or indirectly, the credit of 
 the corporation in effecting the object of the extension ; and at the same time, 
 the company 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 Railw., 2 Stockton's Ch. 171, where this subject is examined some- 
 what at length by the chancellor, and the conclusion arrived at, that it is com- 
 petent for a court of equity to interfere in the management and application of 
 the funds of a corporation, at the instance of a single stockholder ; that the leg- 
 islature may give additional 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 privilege of the corporation which tends to enhance 
 the value of its stock, and that he would not be bound by any act of the legisla- 
 ture tending to produce such effect, without his consent ; but that such consent 
 •will be inferred from long acquiescence, which is equivalent to express consent. 
 In Scofield v. School District, 27 Conn. 499, it was held by a divided court, that 
 one inhabitant of a school district might obtain an injunction against the cor- 
 poration denpng them the power to use their school-house for the purposes of 
 religious meetings and Sunday schools, which is certainly carrying the doctrine 
 to the very verge of absurdity. Post, § 174, n. 7. 
 
 * Colman v. Eastern Counties Railw., 10 Beav. 1 ; s. c. 4 Railw. C. 513. 
 See also Munt v. Shrewsburj* & Chester Railw., 13 Beav. 1 ; s. c. 3 Eng. L. 
 
 6 Eq. 144 ; East Anglian Railw. v. Eastern Counties Railw., 11 C. B. 775 ; s. c. 
 
 7 Eng. L. & Eq. 605; MacGregor p. Deal & Dover Railw., 18 Q. B. 618; s. c. 
 16 Eng. L. & Eq. 180; Danbury & Norwalk Railw. v. Wilson, 22 Conn. 
 435; Mill-Dam Co. r. Dane, 30 Maine, 347; post, §-235; Winter v. Mus- 
 
 * 196, 197
 
 § 56. FUNDAMENTAL ALTERATION OP CHARTEB. 197 
 
 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, 
 altliough such project may tend to increase the traffic upon the 
 railway, and may be assented to by the majority of the shareholders, 
 and the object of such project may not be against public policy. 
 And that acquiescence by shareholders in a project for ever so long 
 time, aflfords 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 proceed- 
 ings 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 Jegislatiire 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 contracts * for the 
 
 cogee Railw., 11 Ga. 488; Hamilton Plank Road v. Rice, 7 Barb. 167; Com- 
 monwealth r. Cullen, 1 Harris, 133 ; 3 Woodbury & Minot, 105. 
 
 * Maccdon Plank Road Co. v. Lapham, 18 Barb. 812. But see Greenville & 
 Columbia Railw. v. Coleman, 5 Rich. 118. 
 
 • Colvin p. The Turnpike Co., 2 Carter, 611 ; id. 656. 
 
 Nor is it a defence to an action for calls, that the name of the company, or the 
 length and termini of the road, have been materially altered. Del. & Atlantic 
 Railw. V. Irick, 3 Zab. 321. 
 
 ' Northern Railw. r. Miller, 10 Barb. 260 ; Pacific Railw. v. Renshaw, 18 
 Missouri, 210. And where a subscription is made to the capital stock of a rail- 
 way, while an act of the legislature exists, allowing the consolidation of such com- 
 pany with another, the fact that such consolidation is subsequently made affords 
 no ground for avoiding the subscription. Bish v. Johnson, 21 Ind. 299. And 
 if, from the articles of association of the company, it is obvious that consolida- 
 tion with another company was one of the leading purposes of the incorporation, 
 the fact of such consolidation, afler the date of a subscription, will be no 
 defence against its enforcement, even when the statute authorizing the consoli- 
 dation is subsequent to the date of the subscription. Hanna v. Cin. & F. W. 
 Railw., 20 Ind. 30. The consolidation of two corporations does not effect the 
 dissolution of either, so as to work the abatement of pending actions. Baltimore 
 & Susq. Railw. v. Musselman, 2 Grant Cas. MS. But see McMahan v. Morrison, 
 16 Ind. 172, contra. For many purposes the liabilities of the original com- 
 panies remain, as before the consolidation. Central Railw. Co. v. Bunn, 3 Stockt. 
 Ch. 336. It is here decided, that where the original company and a new com- 
 pany formed by the mortgagees after sale of the road bear the same name and 
 have the same president, a suit to enforce a claim contracted before the sale, 
 served upon the president, cannot go to judgment against the new company, nor 
 
 •198
 
 198 ASSESSMENTS OR CALLS. CH. IX. 
 
 purchase of stock, to be delivered at a future day, must be under- 
 stood to be made subject to the exercise of all tlie legal powers of 
 the directors and of the legislature, and an illegal exercise of power 
 by either will, it has sometimes been said, bind no one, and should 
 exonerate no one from his just obligations.^ 
 
 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 
 the interest of the subscriber, will not absolve him from his sub- 
 scription.i^ 
 
 And when the subscription was made upon condition that the 
 road be located upon a given line, and providing that such * location 
 should be sufficiently evinced by an order of the board of direct- 
 ors accepting such subscription upon the condition named, it was 
 held sufficient to bind the subscriber, that the road had been in 
 fact located and built upon the line designated, and that this was 
 known to him, although there had been no formal action of the 
 board accepting the subscription. ^^ 
 
 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 
 
 will a court of equity allow a general judgment, at law, to be taken. The plain- 
 tiflF must elect to take judgment, in terms, against the original company. This 
 seems to be a very judicious course, but one for which courts of equity will aiford 
 no precedent. The order should have been made, most obviously, in the court 
 of law. 
 
 ^ Irvin tJ. Turnpike Co., 2 Penn, 466 ; Conn. & Pas. Rivers Railw. v Bailey, 
 24 Vt. 479 ; Faulkner v. Hebard, 26 Vt. 452 ; Fry's Exr. v. Lex. & Big S. 
 RaQw., 2 Met. (Ky.) 314. 
 
 ® See cases under notes 2 & 3, supra ; and also Railsback v. Liberty & Abing- 
 ton Tump. Co., 2 Carter (Ind.) 656. And in Kenosha, Rockford, and Rock 
 Island R. Co. v. Marsh, 17 Wiscons. 13, it was held, that where the legisla- 
 ture had the general power to repeal or alter acts of incorporation, and accord- 
 ingly allowed an existing company, chartered to carry a railway over a given 
 line, and whose subscriptions had been taken with that view, to change their 
 route very essentially, the subscribers were thereby released from their obli% 
 gation to pay calls. 
 
 '" Banet v. Alton & Sangamon Railw., 13 111. 604; Danbury & Norwalk 
 Railw. V. Wilson, 22 Conn. 435. 
 
 " Moore r. New Albany & Salem Railw. Co., 15 Ind. 78. 
 * 199
 
 § 56. FUNDAMENTAL ALTERATION OP CHARTER. 199 
 
 may he regarded as substantially the original object of its crea- 
 tion, will not exonerate subscribers to the stock 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.^3 
 
 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." 
 
 " Pacific Railw. v. Hughs, 22 Missouri, 291 ; Peoria & Oquawka Railw. v. 
 Elting, 17 ni. 429. In Everhart v. West Chester and Philadelphia Railw., 
 28 Penn. St. 839, the subscribers for stock were held not released by such a 
 change in the charter of the company as empowered them to issue preferred stock, 
 to enable them to raise the means of making and equipping the road in the man- 
 ner originally contemplated. It was considered that such an amendment of the 
 charter was merely ancillary to the main design, and might be accepted by a 
 majority of the stockholders and thus become binding upon all ; that it is im- 
 plied in every subscription for the stock in a railway company, that they may 
 resort to the ordinary and legal means for accomplishing the object proposed by 
 the charter. 
 
 It is here said, that an alteration of the charter, which superadds an entirely 
 new enterprise, will release subscriptions to the stock. See also Fry's Exr. v. 
 Lex. & Big. S. Railw., 2 Met. (Ky.) 314. 
 
 " South Bay Meadow Dam Co. v. Gray, 30 Maine, 647 ; Buffalo & New 
 Y. City Railw. r. Dudley, 4 Keman, 336. 
 
 " But in the Greenville & Columbia Railw. r. Coleman, 6 Rich. 118, where 
 the charter gave the stockholders the right to designate the routo^they preferred, 
 and if any stockholder was dissatisfied with the route selected, the right to with- 
 draw his subscription, " provided, at the time of subscribing, he designated the 
 route he desires to be selected," and one subscribed without designating the 
 route he preferred, under an assurance from one, who was soliciting subscrip- 
 tions, that he might pay $5 on $100, and be free from liability as to the residue, 
 it was held, that he was liable, as a stockholder, without the right to 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. ». 
 Clemens, 16 Mo. 859. But in Champion v. Memphis & Charleston R. Co., 
 
 *200
 
 200 ASSESSMENTS OE CALLS. CH. IX. 
 
 9. Where a town or city stipulate with a railway company for 
 adequate consideration to terminate *their route, at a point bene- 
 ficial to such town or city, this will not preclude the company from 
 forming connections with other routes, by land or water, at the 
 same point.^ 
 
 10. And where the plaintiflf made it a condition of his subscrip- 
 tion to the capital stock of a railway, that it should pass through 
 some portion of the counties of Monroe and Ontario, and the road 
 was so located as not to touch either of those counties, it was held, 
 that he was released from his subscription. ^^ 
 
 35 Miss. 692, it was decided, that when the route on which a railroad is to be 
 located is prescribed by its charter, a subsequent material deviation from the route 
 therein prescribed will release the stockholders who had previously subscribed, 
 and who did not consent to the deviation. 
 
 It is not ever)- deviation in the location of a railroad from the route prescribed 
 in the charter which will release non-assenting stockholders, and it is impracti- 
 cable to lay down any general rule to serve as a guide in determining the ques- 
 tion of the materiality of the deviation. Each case must be determined by its 
 own particular circimistances ; and hence, where a stockholder resists the col- 
 lection of his subscription for stock, upon the ground of a deviation from the 
 route prescribed by the charter, he ought to set out in his plea such deviation 
 clearly and distinctly, so that its materiality can be determined. 
 
 A plea by a stockholder in a railway company, setting up a deviation from the 
 route prescribed by the charter as a defence to a suit, to enforce his subscription 
 for stock, which describes the deviation as follows : " That said road was not con- 
 structed in accordance with the requirements of the charter," is bad for uncertainty. 
 
 '* Baltimore & Ohio Railw. r. Wheeling, 13 Grattan, 40. 
 
 '« Buffalo, Coming, & N. Y. Railw. v. Pottle, 23 Barb. 21. And where a 
 partj-, 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 9-t, in Indianapolis, to be paid when the company should com- 
 mence the construction of their depot, and the line of the company's road ex- 
 tended from Terre Haute, through Indianapolis, to Richmond, a distance of 
 150 miles, at the date of the note, but by subsequent act of the legislature, was 
 divided, at Indianapolis, and the portion between Indianapolis and Richmond, 
 being about one-half, was given to another company, which built their depot in 
 another portion of Indianapolis, the former company only constructing a freight 
 depot, on block 94, it was 
 
 Held, that by the alteration of the charter of the Terre Haute and Richmond 
 Railway Company, and the acceptance thereof by the company, the company 
 became substantially a different corporation, and were unable to 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
 
 § 56. FUNDAMENTAL ALTERATION OF CHABTEB. 201 
 
 * 11. Where the articles of incorporation of a railway company 
 restrict calls upon subscriptions to twenty per cent in one year, 
 * and teA per cent at one time, and also provide that said articles 
 may at any time be changed by the unanimous consent of the 
 board of directors, it is competent for the board to so change the 
 mode of making calls, as to require them to be made not exceed- 
 ing five per cent a month, and such change in the articles as to 
 the mode of making calls will be binding upon previous subscrip- 
 tions." 
 
 12. And in a somewhat recent case ^^ it was held, where the 
 legislature had reserved, in the charter of a corporation, the power 
 to modify or repeal the same, that members of the corporation hold 
 their shares subject to such liability as may attach in consequence 
 
 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 c. Evansville & Crawfordsville Railway, 
 7 Porter (Ind,), 369. 
 
 The subscription of stock to an amalgamated company is a sufficient consent 
 to the amalgamation. And such consent by the stockholders seems to be re- 
 garded as requisite to the power of the legislature to amalgamate existing rail- 
 way companies. Fisher r. Evansville & Crawfordsville Railway, 7 Porter (Ind.) , 
 407. Where one of the stockholders of a railway company agreed with the 
 company to subscribe and take a given number of shares in the capital stock, if 
 the company would adopt a particular route, there being two under considera- 
 tion, and the company in consequence adopted that route, it was held that the 
 party was boundpby his contract to take and pay for the number of shares he 
 had thus agreed to subscribe. Spartanburgh & Union Railw. v. De Graffenreid, 
 12 Rich. 675. But where in such a case, by a subsequent amendment of the 
 charter, the route in consideration of which the subscription was made was 
 abandoned, and another adopted, the subscriptions were held to be thereby 
 avoided. Hester r. Memphis & Charleston Railw., 32 Miss. 378. But one who 
 makes an absolute subscription to a railway, cannot avoid it by proving a parol 
 condition upon which it was made, not complied with, unless he show that fraud 
 also existed in the contract. North Carolina Railw. v. Leach, 4 Jones Law, 340. 
 One of the commissioners, there being five, has no power to give any binding 
 assurance as to the location. lb. 
 
 If the party have any remedy in such case by mandamus or injunction, where 
 the directors locate the road differently from the requirements of the charter, 
 and omit to resort to it at once, he is bound by such acquiescence. lb. 
 
 " Buriington & Mo. River Railw. r. White, 6 Clarke. 409. 
 
 '* Bailey r. IlolHster, 26 N. Y. 112. But it is here suggested, that after the 
 charter of a corporation has expired, there is no power to reviTC it, by any 
 agency less than the consent of all the corporators. 
 
 •201,202
 
 202 
 
 ASSESSMENTS OR CALLS. 
 
 CH. IX. 
 
 of the extension or renewal of the charter, although obtained with- 
 out their consent. 
 
 13. And it was also here considered, that the estate 6f an in- 
 testate shareholder succeeded to the personal responsibility of the 
 deceased in the corporation, and this will render the administrator 
 liable for the debts of the corporation contracted after the decease 
 of the intestate, to the same extent the deceased would liave been 
 if still living ; and that the stockholder or his personal representa- 
 tive can only relieve himself from responsibility by a bona fide and 
 absolute sale of the stock. 
 
 14. A railway company do not release money-subscriptions by 
 accepting large land-subscriptions at a subsequent date.^^ 
 
 15. And a railway corporation, chartered in one state to con- 
 struct and operate a road within that state, cannot emigrate into 
 another state, even where that state had given legislative permis- 
 sion to act therein. And after having transferred its business 
 office into another state, where it performed all its corporate func- 
 tions, it is not competent for it to make valid calls in such other 
 state upon subscriptions taken in the place of its creation .^^ 
 
 ♦ SECTION XL 
 
 Subscriptions before date of Charter. 
 
 1. Subscriptions before date of charter good. 
 
 2. Subscriptions upon condition not performed. 
 n. 4. Where the condition is performed. 
 
 3. Subscription by a stranger to induce com- 
 
 pany to build station. 
 
 4. Subscription on condition, an offer merely 
 
 5. Conditional subscrij^on takes effect upon 
 
 performance of the condition. 
 
 6. How far commissioners may annex con- 
 
 ditions to subscription. 
 
 7. Such conditions void, if fraudulent as to 
 
 company. 
 
 § 57. 1. It has been held that oue 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 commis- 
 sioners for organizing the company, and equally upon the sub- 
 
 '» Hornaday v. Ind. & 111. Central Railw., 9 Ind- 263. 
 " Aspinwall v. Ohio & Mississippi Railw. Co., 20 Ind. 492. 
 *203
 
 § 57. SUBSCRIPTIONS BEFORE DATE OF CHARTER. 203 
 
 scription itself in the name of the corporation.* And it is not 
 competent for one, who is a subscriber to such an enterprise, to 
 withdraw his name while the act of incorporation is going through 
 the legislature.^ 
 
 2. 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 
 
 ' Kidwelly Canal Co. r. Raby, 2 Price, Exch. 98 ; Selma & Tenn. Railw. 
 Co. V. Tipton, 5 Alabama, 786 ; Vermont Central Railw. Co. v. Clayes, 21 Vt. 
 SO; Delaware and Atlantic Kailw. v. Irick, 3 Zab. 321. 
 
 In the last case, the very point niled, is, whether the company were proper 
 plaintiffs, 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 Railw. p. Tibbets, 
 18 Barb. 297 ; Stanton p. Wilson, 2 Hill, 153 ; Troy & Boston Railw. v. Warren, 
 18 Barb. 310 ; Hamilton Plank Road Co. v. Rice, 7 Barb. 157 ; Stewart v. Hamil- 
 ton College, 2 Denio, 417 ; Danbury & N. Railw. r. Wilson, 22 Conn. 435. So 
 also a subscription to the capital stock of a railway, made on the solicitation of 
 one who was not a commissioner, but who felt an interest in the road, and volun- 
 teered to take up subscriptions to its stock, was held valid in a very recent case. 
 Railway Company r. Rodrigues, 10 Rich. (S. C.) 278. 
 
 * Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93 ; Brownlee r. Ohio, Ind. & 
 111. Railw. Co., 18 Ind. 68. 
 
 ' Troy & Boston Railw. r. Tibbits, 18 Barb. 298. 
 
 * Macedon & Bristol Plank R. f. Lapham, 18 Barb. 313. In this case it 
 seems to have been decided that such a subscription is not good, as a subscrip- 
 tion for stock, not upon the ground mainly that it was conditional and so against 
 public policy, or from want of mutuality, but upon the ground of an extension of 
 the road and an increase of the capital stock. But see also Utica & Sch. Railw. 
 V. Brinckerhoff, 21 Wend. 139, where such a decision is made. But the current 
 of authority, both English and American, is almost exclusively in a counter 
 direction. It is impossible, upon any fair ground of construction, to consider 
 such a subscription, where the road is located in a given line, in faith, and in 
 fulfilment of the condition, as a mere offer, unaccepted. It is a proffer, a 
 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. 
 
 •204
 
 204 ASSESSMENTS OR CALLS. CH. IX. 
 
 one might perhaps raise some question, * whether, upon general 
 principles, such a subscription ought not to be binding, as a 
 
 653, has been regarded as overruled upon that point for many years. See 
 L'Amoreux v. Gould, 3 Selden, 349 ; Conn. & Passumpsic Rivers Railw. v. 
 Bailey, 24 Vt. 478. 
 
 In the case of Boston & Maine Railw. v. Bartlett, 3 Cush. 224, the subject is 
 verj- justly illustrated by Mr. Justice Fletcho': " 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 con- 
 sideration, and did not, therefore, form a contract. It was then but an offer to 
 contract ; and the parties making the offer most undoubtedly might have with- 
 drawn it at any time before acceptance. 
 
 " But when the offer was accepted, the minds of the parties met, and the con- 
 tract was complete. There was then the meeting of the minds of the parties, 
 which constitutes and is the definition of a contract. The acceptance by the 
 plaintiffs constituted a sufficient legal consideration for the engagement on the 
 part of tlie 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 Hol- 
 land. It is there held, that whenever an offer is made, granting to a party a 
 certain time within which he is to be entitled to decide whether he will accept 
 it or not, the party making such offer is not at liberty to withdraw it before the 
 lapse of the appointed time. There are certainly very strong reasons in support 
 of this doctrine. Highly respectable authors regard it as inconsistent with the 
 plain principles of equity, that a person who has been induced to rely on such an 
 engagement should have no remedy in case of disappointment. But, whether 
 wisely and equitably or not, the common law unyieldingly insists upon a consid- 
 eration, or a paper with a seal attached. 
 
 " The authorities, both English and American, in support of this view of the 
 subject, are verj' 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 r. Oxley, 3 
 T. R. 653, in which a different doctrine was held, has occasioned considerable 
 discussion, and, in one or two instances, has probably influenced the decision. 
 That case has been supposed to be inaccurately reported, and that in fact there 
 was in that case no acceptance. But, however that may be, if the case has not 
 been directly overruled, it has certainly in later cases been entirely disregarded, 
 and cannot now be considered as of any authority. 
 
 "As, therefore, in the present case, the bill sets out a proposal in writing, 
 and an acceptance and an offer to perform, on the part of the plaintiffs, within 
 »206
 
 § 57. SUBSCRIPTIONS BEFORE DATE OF CHARTER. 205 
 
 standing offer accepted and acted upon by the company, which is 
 sufficient consideration for the promise.* 
 
 3. And even where a mere stranger subscribes to a railway 
 company, with others, in order to induce the company to build a 
 station house and improve the roads to it, and to aid the company 
 in such work, and the company perform the condition on their 
 part, the subscription is upon sufficient consideration, and may be 
 enforced against the subscribers.* 
 
 4. And a subscription to the stock of a railway company, con- 
 ditioned to be void unless the company would accept the convey- 
 ance of a specific tract of land at a given price, is a mere offer to 
 invest the land in shares, and until accepted by the company is 
 of no validity." 
 
 • 5. A subscription upon the performance of a condition be- 
 comes absolute upon such performance. The subscription takes 
 effect from that time ; the first instalment required to be paid at 
 the time of subscription then becomes due and payable, and the 
 subscriber liable to assessment for the remainder.^ 
 
 6. There is a recent case * wherein propositions arc declared 
 which seem at variance with the general rule, that subscriptions 
 dependent upon conditions are not effectual until such conditions 
 are complied with. It was here held, that commissioners ap- 
 pointed to receive subscriptions to the stock of a projected railway 
 company are so far limited in their authority that they have no 
 power to attach conditions to subscriptions received by them, and 
 where they do so the act is not binding upon the company, and 
 that after the organization of the corporation, the directors have 
 no power to assume the subscriptions upon the conditions named, 
 i. e. that the company assume the payment of the subscriptions 
 and release the subscribers. 
 
 7. But we apprehend that if this decision is maintainable upon 
 
 the time limited, and while the offer was in full force, all which is admitted by 
 the demurrer, so that a ralid contract in writing is shown to exist, the demurrer 
 must be overruled." 
 
 • See this subject more fully discussed in §§ 51, 65, ante. See, also, Johnson 
 c. Wabash & M. V. Railw., 16 Ind. 389. 
 
 • Kennedy v. Colton, 28 Barb. 59. 
 
 ' Junction Railway Company r. Reeve, 15 Ind. 236. 
 
 • AshUbula & New L. Railw. r. Smith, 16 Ohio N. S. 328. 
 
 • Bedford Jlailw. Co. v. Bowser, 48 Penn. St. 29. See, also, Lowe c. E. & 
 K. RaUw., 1 Head, 659. 
 
 •206
 
 206 ASSESSMENTS OE CALLS. CH. IX. 
 
 recognized rules of law, it must be because the whole scheme of 
 such a subscription evidences a covert fraud upon the contempla- 
 ted corporation, and that the act of the directors is but one step 
 in fulfilment of the scheme, as the case shows the action of the 
 first board of directors was immediately repealed upon the coming 
 in of a new board, and the court held it competent to show what 
 took place at the time of passing the first resolutions with a view 
 to establish the fraudulent purpose. 
 
 * SECTION XII. 
 
 Subscription upon Special Terms. 
 
 1. Subscriptions not pat/able in money. 
 
 2. Subscriptions at a discount, not binding. 
 n. 2. Contracts to release subscriptions not 
 
 binding. 
 
 3. Subscriptions afier organization. 
 
 4. President may accept conditional subscrip- 
 
 tions. 
 
 5. Recent case in Alabama. 
 
 6. True rule to be deduced from all the cases. 
 
 7. Important case on par values. 
 
 8. Difficulty of maintaining them. 
 
 9. Sad effects of opposite course on com- 
 
 mercial/air dealing. 
 
 10. Can a corporation stipulate to pay in- 
 
 terest on stocks ? 
 
 11. Such a certificate of stock is not thereby 
 
 rendered inoperative fin- legitimate pur- 
 poses. 
 
 § 58. 1. It is well settled, that a railway, or other joint-stock 
 company, cannot receive subscriptions to their stock, payable at 
 less sums, or in other commodities, than that which is demanded 
 of other subscribers. Hence subscriptions, payable in store-pay, 
 or otherwise than in money, will be held a fraud upon the other 
 subscribers, and payment enforced in money.^ 
 
 2. So too in a case where subscriptions to stock of such a com- 
 
 ' Henry v. Vermilion & Ashland Railw. Co., 17 Ohio, 187. But in one 
 case, Philadelphia & West Chester RaUw. v. Hickman, 28 Penn. St. 318, it 
 is said the company may compromise subscriptions for stock, which are doubtful, 
 upon receiving part payment ; or may receive pajinent in labor or materials, or 
 in damages which the company is liable to pay, or in any other liability of the 
 corporation. The certificates of stock in this case were issued to the contractors, 
 in part payment of work done by them upon the road ; to others, in part pay- 
 ment for a locomotive, for sleepers, for land-damages, and for cars. We do not 
 understand how there can be any valid objection to receiving payment for sub- 
 scriptions to the capital stock of a railway company in this mode, if the shares, 
 so disposed of, are intended to be reckoned at their fair cash value, at the time 
 of the contract being entered into.- It is certain, contracts of this kind have been 
 very generally recognized by the courts as valid, and no fraud upon the other 
 subscribers. 
 
 *207
 
 § 58. SUBSCRIPTION UPON SPECIAL TERMS. 207 
 
 pany are, by the agents of the company, agreed to be received at 
 a discount, below tlie par value of the shares, it will be regarded 
 as a fraud upon the other shareholders, and not binding upon the 
 company .2 
 
 ' Mann r. Cooke, 20 Conn. 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 prop- 
 erty of the company. He thereupon received certificates of ownership of the 
 forty shares, the special terms of his subscription not being known to the other 
 subscribers. 
 
 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 pa}'ment 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- 
 narj' subscription for stock, without condition. 
 
 2. That the arrangement made with the president of the company was void, 
 as a firaud upon stockholders and creditors. 
 
 8. That the company, being created for public purposes, could not receive 
 subscriptions under a private arrangement at less than the par value of the stock, 
 as this would deprive the company of so much of its available means, and thus 
 operate as a fraud upon all parties interested. 
 
 But where one paid for stock in a railway company, under a secret agreement 
 with the commissioner of contracts that he might receive land of the company 
 at a future day, and pay in the stock certificate, and the company declined to 
 ratify the contract, it was held the subscriber was released from his portion of 
 the contract, and might recover the money he paid for the stock of the com- 
 pany. Weeden r. I^ke Erie & Mad River Railway, 14 Ohio, 563. But in the 
 case of the Cincinnati, Indiana, & Chicago Railw. r. Clarkson, 7 Ind. 595, it 
 seems to be considered, that the company are bound by a contract to compen- 
 sate a solicitor of subscriptions to the capital stock, payable in land, but no ques- 
 tion is made in regard to the validity of the subscriptions. The solicitors were 
 ordered by the directors to accept such subscriptions, and were to have two per 
 cent on all which were accepted by the company, and the contract was held 
 binding upon the company. An agreement by a railway company, that a sub- 
 scriber for stock may pay the full amount, or any part of his subscription, and 
 receive " interest thereon until the road goes into operation," does not obh'ge 
 the company to pay interest before the road goes into operation. Waterman t>. 
 Troy & Greenfield Railway, 8 Gray, 433. See, also, Buffalo & N. Y. City Railw. 
 r. Dudley, 4 Keman, 336. Ante, § 54, pi. 4. 
 
 An agreement to pay interest upon stock " as soon as paid," means fully paid. 
 Miller v. Pittsburg & Connellsville Railw., 40 Penn. St. 237.
 
 208 ASSESSMENTS OR CALLS. CH. IX. 
 
 * 3. In a case in Pennsylvania,^ it is said that subscriptions 
 made to the capital stock of a corporation before its •organ- 
 ization, must always be payable in money only. But after the 
 organization, the company may stipulate with the subscriber for 
 payment in any other mode, and can only enforce the contract 
 according to its terms ; and the act of the president of the com- 
 pany in accepting conditional subscriptions is binding upon the 
 company. 
 
 4. It is also held in the same case ,3 that the fact the subscriber 
 makes part payment in money before call, will not estop him from 
 setting up the special contract in defence of an after call. 
 
 5. But in a somewhat recent case in Alabama,* it was held that 
 a subscription to the capital stock of a railway company, in ex- 
 press terms made payable in work, in grading the line, to be 
 taken at the public or private letting and performed to the accept- 
 ance of the company's engineer, could not be enforced against 
 the subscriber until he had had reasonable opportunity to perform 
 the contract in the manner specified by its terms. But if, after 
 that, the defendant failed on his part to perform it, he was liable 
 to pay the amount in money. It is here said that the subscriber 
 must take notice of the published lettings of the work. 
 
 6. The cases may seem conflicting upon this point ; but the 
 true principle seems to be, that the corporation can only enforce 
 the contract of subscription according to its terms, and of this the 
 subscriber cannot complain, or resist successfully the enforcement of 
 his subscription in that mode. But so far as the creditors of the 
 company are interested in the matter, they may hold the directors 
 responsible for having received the amount of the capital stock in 
 money. And as to the duty of the directors, they cannot, in strictness 
 and fairness, receive subscriptions payable in any thing but money ; 
 nor can they launch the company until the whole capital stock is 
 subscribed in money. And any fraud or evasion in this particular 
 will render the directors responsible for the debts of the company, 
 as in equity and fair dealing it should. 
 
 ' Pittsburg & Connellsville Railw. v. Stewart, 41 Penn. St. 54. The question 
 of the presumptive effect of the conduct of a subscriber after the organization of 
 the company, in attending and taking part in the meetings of the company, 
 upon the proper construction of any special contract with the company, is here 
 considerably discussed. 
 
 * Eppes ». M. G. & T. Railw. 35 Alabama, 33 ; H. & P. Plank R. Co. c. 
 Bryan, 6 Jones Law, 82. 
 * 208, 209
 
 § 58. SUBSCRIPTION UPON SPECIAL TERMS. 209 
 
 * 7. There is a very sensible case ^ in North Carolina bearing 
 upon this question. The legislature had authorized the town of 
 Newbern to take stock in a company for improving the navigation 
 of the river Neuse, by which the business of the town was ex- 
 pected to be advanced. The town was, by the act, authorized to 
 pay for the stock subscribed by them with their bonds, to be is- 
 sued and sold on certain terms, but the amount of bonds issued 
 was restricted to the amount of the stock subscribed, and it was 
 held, that as the corporation could not, except by legislative sanc- 
 tion, accept any thing but money in payment of stock, and could 
 not issue stock at any rate below par, the bonds could not be 
 sold below par ; and that, to a mandamus to compel the town to 
 pay for stock thus subscribed, it must be regarded as a sufficient 
 return, that the authorities of the municipality had prepared and 
 executed the bonds, and had offered the same for sale by public 
 advertisement, and had diligently endeavored otherwise to effect a 
 sale of the same on the terms prescribed by the statute, and had 
 not been able to sell the same. 
 
 8. This case unquestionably puts these perplexing inquiries 
 upon the true basis ; that is, of fair dealing, or no dealing at all. 
 But we apprehend that railway contractors and builders would 
 regard it as placing the matter in a very impracticable light. 
 And we are not prepared to say how far the courts will feel justi- 
 fied in departing from the strict letter of the law in these particu- 
 lars, out of deference to the speculative tendencies of the age. 
 
 9. It is certain that corporate stocks, from the first, are now 
 always more or less a matter of speculation in the market ; and 
 the same is true of all municipal bonds issued in aid of enter- 
 prises affecting the interests of such corporations. And, in fact, 
 no one ever dreams of demanding strictly par values, in dealing 
 either with the bonds or the stock, and we do not suppose it can 
 now ever be brought back to the strictly par basis. There is, too, 
 * another great embarrassment in the way of return to par values. 
 We have, in fact, no par basis to which to return. Until a specie 
 
 • Neose River Nav. Co. v. Commissioners of Newborn, 7 Jones Law, 275. 
 But in Shoemaker v. Goshen Turnpike Co., 14 Ohio N. S. 569, from the mere 
 permission in the statute to submit the question of subscription to the voters of a 
 township, the court implied the power to issue bonds in payment of such sub- 
 scription in the usual negotiable form, and to negotiate them to the company at 
 par, in payment for the stock subscribed. 
 
 W • 210, 211
 
 210 ASSESSMENTS OR CALLS. CH. IX. 
 
 basis is reached, every thing is at the mercy of speculators and 
 monopolists. This is, no doubt, a very melancholy state of affairs 
 to have a great commercial country in. But, so long as commer- 
 cial men endure it, and the government submits to it, we do not 
 see how the courts can remedy it. But it is certainly refreshing 
 to see courts struggling to resist in every way in their power such 
 a fearful tide of evil. In our humble judgment, unless some 
 mode of escape is found, speculation and monopoly will eat out 
 all honesty and fair dealing in all commercial transactions, and 
 the country will in its commerce become a band of legalized 
 plunderers upon each other. The monopoly in flour and grain 
 and some of the other staples of the country is scarcely less than 
 that, at the present time. 
 
 10. There seems to be some question whether a corporation 
 can stipulate to pay interest upon its stock certificates from the 
 first, without regard to the earnings of the company. It is cer- 
 tain such a stipulation is at variance with the ordinary duties of 
 corporations, and will not therefore come within the range of the 
 implied authority of the directors of the company. But in one 
 case,^ it seems to have been considered, that the stockholders 
 might so ratify such a stipulation as to render it binding upon 
 the company. But we should very seriously question if any such 
 authority is implied from the general grant of corporate power for 
 ordinary business purposes, like that of railways. It would seem 
 to require a special delegation of authority by the legislature, and 
 in that form it is nothing else but a device for borrowing money, in 
 advance of launching the corporation upon its legitimate functions. 
 
 11. The case last cited ^ decided that such a stipulation, super- 
 added to a certificate of stock, will not defeat its original effect of 
 making the holder a member of the corporation ; and that if cer- 
 tificates of stock be so issued by the directors, it will be regarded 
 as a sufficient ratification of them by the corporation that * at a 
 stockholders' meeting a majority voted to pay such interest in 
 the bonds of the company ; but the holders are not thereby com- 
 pellable to accept payment in that mode, unless they assented to 
 the vote. 
 
 * McLaughlin v. Detroit & Milw. Railw., 8 Mich. 100. It seems scarcely- 
 allowable to treat the vote of the majority as a ratification of an act of the 
 directors beneficial to the minority, and at the same time not binding upon the 
 minority except by their own consent. 
 • 212
 
 §59. 
 
 SUBSCRIPTIONS OBTAINED BT FRAUD. 
 
 211 
 
 SECTION XIII. 
 
 Equitable Relief from Subscriptions obtained by Fravd. 
 
 Substantial miarepresentationa in obtaining 
 
 subscriptions will avoid them. 
 But far circumstantial misconduct of the 
 
 directors, in the matter, they alone art 
 
 liable. 
 
 8. Party purchasing must make rtaaonabie 
 examination of papers referred to on all 
 doubtful /yoints. But no relief will be 
 granted, where there is no fraud, or in- 
 tentional misre p resentation. 
 
 4. Directors cannot malx profit for themadvea. 
 
 § 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, 
 tlie 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 been stated, it is reasonable to believe the 
 plaintiff would not have entered into the contract ; that is, that he 
 would not have taken the shares allotted to him, and those which 
 he purchased." ^ 
 
 ' Sir John Romilly, M. R., in Pulsford v. Richards, 17 Beav. 87 ; s. c. 19 
 Eng. L. & £q. 387, 392. The prospectus issued in such cases is to be regarded 
 as a representation. And where one is induced to take shares in a joint-stock 
 company, tlirough 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 ; 8. c. 4 Drew. 205. 
 
 And where one of the directors of a company put the name of an extensive 
 stockholder in the company, who resided in a foreign country, to a new sub- 
 scription for forty additional shares, without consultation with such person, upon 
 the belief that he would ratify the act, and upon being informed of such act, he 
 made no objection for the period of nearly seven years, during which time the 
 company had applied the dividends upon his stock in payment of such subscrip- 
 tion, having no intimation of any dissent upon his part, it was held the subscrip- 
 tion thereby became binding, and that the party could not recover such dividends 
 of the company. Philadelphia, Wilmington, & Baltimore Railw. c. Cowell, 28 
 Penn. St. 329. 
 
 • Pulsford r. Richards, 17 Beav. 87 ; 8. c. 19 Eng. L. & Eq. 392 ; Jenninga 
 r. Broughton, 17 Beav. 234 ; 8. c. 19 Eng. L. & Eq. 420. One, to entitle him- 
 self to be relieved from his subscription, must show that he acted upon the false 
 representations of the directors in a matter of fact material to the value of the 
 enterprise, and not upon the mere speculation of the directors, or upon his own
 
 212 ASSESSMENTS OB CALLS. CH. IX. 
 
 * 2. But the omission to state in a prospectus the number of 
 shares taken by the directors, or other persons, in their interest, 
 is no such fraud as will enable a subscriber to avoid his subscrip- 
 tion. ^ 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 
 compensate such person for his services, in obtaining the charter, 
 and that this is not stated in the prospectus, is no such suppres- 
 sion as will exonerate subscribers for stock. " There was not the 
 suppression of a fact, that affected the intrinsic value of the un- 
 dertaking. 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 indi- 
 vidual directors to the shareholders, but not a ground for annul- 
 ling the contract between them."^ 
 
 3. There can be no question one will be affected with notice of 
 all facts discoverable by examination of papers referred to in a 
 prospectus for the sale of shares, provided such papers are accessi- 
 ble to him, unless the facts stated in the prospectus are so specific 
 as to divert interest from all further inquiry. It was accordingly 
 held that where the contract of subscription bound the subscriber 
 to the terms of the articles of association, an examination of which 
 would have disclosed the facts upon which the party claimed to 
 be relieved from his subscription, but that trusting to the state- 
 ments contained in the prospectus, he did not look further, it was 
 held that this neglect or omission, was no answer to his claim 
 for relief.^ But the party is not entitled to relief by reason of the 
 representation of any fact, made in good faith, and upon reason- 
 able grounds of probability, but which proves unfounded upon 
 grounds equally unknown to both parties.* 
 
 4. But the learned judge here ^ suggests, with great propriety, 
 that if the directors have made contracts, in the course of the 
 performance of their duties, from which advantage is expected to 
 
 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. 
 3 Central Railw. v. Kisch, Law Rep., 2 H. L. 99. 
 
 * Kennedy v. Panama Mail Co., Law Rep., 2 Q. B. 580. 
 
 * 213
 
 §60. 
 
 FORFEITURE OF SHARES. — RELIEF IN EQUITY. 
 
 213 
 
 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. 
 
 Forfeiture of Shares. — Relief in Equity. 
 
 1. Requirements of charier and statutes must 
 
 be strictly pursued. 
 
 2. If not, equity will sH aside the forfeiture. 
 8. Must credit the stock atfdl market value. 
 
 4. Provisions of English statutes. 
 
 5. Evidence must be express, that all requisite 
 
 steps were pursued. 
 
 § 60. 1. The company, in enforcing the payment of calls by 
 forfeiture of the stock, must strictly pursue the mode pointed 
 out in their charter and the general laws of the state. This is a 
 rule of universal application to the subject of forfeitures, and one 
 which the courts will rigidly enforce, and more especially where 
 the forfeiture is one of the prescribed remedies, given to the 
 party, and against which equity does not relieve, when fairly exer- 
 cised.^ 
 
 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 wliich could be 
 
 » Post, § 179. 
 
 ' Sparks v. Liverpool Water- Works, 13 Vesey, 428 ; Prendergast v. Turton, 1 
 Younge & Coll. N. R. 98, 110-112. This case is put mainly upon the ground 
 of delay and acquiescence, but there is little doubt it would have been main- 
 tained, upon the general ground stated in the text. Sec Edinburgh, Leith, «& 
 N. H. Railw. r. Hibblewhite, 6 M. & W. 707 ; s. c. 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., 18 Q. 
 B. 736 ; 8. c. 14 Eng. L. & Eq. 61. 
 
 •214
 
 214 ASSESSMENTS OR CALLS. CH. IX. 
 
 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.3 
 
 5. The evidence of the company having pursued the require- 
 ments of their act, in declaring the forfeiture, must be express and 
 not conjectural.* 
 
 SECTION XV. 
 Bight of Corporcdors and Others to inspect Books of Company. 
 
 1. May inspect and take minutes from 
 
 books. 
 
 2. Discussion of the extent to which such 
 
 books are evidence. 
 
 3. For what purposes such books are impor- 
 
 4. This will not embrace the books of pro- 
 
 ceedings of directors. 
 
 5. Party claiming to be shareholder may in- 
 
 spect register. 
 
 6. Allowed when suit or proceedings pending. 
 
 tant as evidence. '• 7. Party may have aid in the inspection. 
 
 § 60. a. 1. It seems to be conceded as a well-settled rule of 
 law, that the shareholders or corporators in a joint-stock corpora- 
 tion are entitled, as matter of right, to inspect and take minutes 
 from the books of the company at all reasonable times,^ as they 
 are the best evidence of the facts there registered, and equally the 
 property of all the proprietors.^ And the board of directors of 
 the company have no power to exclude any member from the 
 exercise of this right, even upon the ground that he is unfriendly 
 to the interests of the company.^ 
 
 2. But it seems to be. now settled that strangers cannot obtain 
 the inspection of such books, even by application to the court, 
 their contents being regarded as private memoranda, in no sense 
 possessing any public character,* notwithstanding a * contrary 
 
 » Stubbs V. Lister, 1 Y. & CoU. N. C. 81. 
 ' 8 «fe 9 Vict. ch. 16, §§ 34, 35. 
 
 * Cockerell t\ Van Dieman's Land Co., 18 C. B. 464 ; s. c. 36 Eng. L. & Eq. 405. 
 ' Angell & Ames on Corp., § 681. 
 
 * Owings V. Speed, 5 Wheaton, 420, 424. 
 
 3 People V. Throop, 12 Wend. 183 ; Cotheal v. Brouer, 1 Seld. 562. 
 
 * Mayor of Southampton v. Graves, 8 T. R. 590. 
 
 * 215, 216
 
 § 60 a. BIGHT TO INSPECT BOOKS OF COMPANY. 215 
 
 practice obtained ^ for a time. It may sometimes liave been as- 
 sumed, that the books of private corporations possessed a higher 
 quality of evidence than is the fact. We do not apprehend that 
 they are in any sense indispensable primary evidence of the facts 
 there recorded. As a general thing, as to the organization of the 
 company and the choice of officers, all that is requisite will be to 
 prove, de facto y the organization of the company and the exercise 
 of such offices by the persons named. Where it is requisite that 
 an authority be given by the majority vote of the company, it may 
 most conveniently be shown by the record, and perhaps in such a 
 case the records of the corporation may fairly be considered the 
 best proof of the facts, if in the power of the party, as if the cor- 
 poration itself were called to prove such vote. But any party not 
 entitled to the custody of the papers can only prove their contents, 
 unless the corporation is the opposing party, in which case he 
 may give notice to produce the books, and, in default, may prove 
 the contents by secondary evidence. It has been decided that the 
 clerk of the company cannot be compelled to produce the books on 
 a subpoena duces tecum.^ 
 
 8. It has been held that a bank depositor has the right, under 
 proper circumstances and in a reasonable manner, to inspect the 
 books of the bank." In practice it is not one time in ten where 
 the record books of a corporation are ever referred to in court, 
 unless to fix a date or the precise form of a vote upon which a 
 power is made to depend. But the registry of shareholders may 
 be properly regarded as the primary evidence of membership, but 
 by no means indispensable or conclusive.^ 
 
 4. Where the deed of settlement under which a corporation is 
 registered contained a provision "that the books wherein the 
 proceedings of the company are recorded shall be kept at the 
 principal office of the company, and shall be open to the inspection 
 of the shareholders," it was held that the clause gave * shareholders 
 power only to inspect the books of minutes of proceedings of 
 the general meetings, and not of the minutes of the proceedings 
 of the directors.' 
 
 * Mayor of Lynn v. Denton, 1 T. R. 689, and cases cited. 
 
 • Utica Bank r. Hillard, 5 Cow. 419 ; Narragansett Bank r. Atlantic Silk Co., 
 3 Met. 282. ' Union Bank v. Knapp, 3 Pick. 96. 
 
 » We refer to what we have before said upon the subject. Ante, § 18, pi. 10- 
 18 ; § 23, n. 7. • Reg. v. Mariquita Mining Co., 1 El. & El. 289. 
 
 ♦ 217
 
 216 ASSESSMENTS OR CALLS. CH. IX. 
 
 5. In a somewhat recent English case^^ it was held, that a 
 party whose claim to be a shareholder is disputed by the company 
 may, in an action brought against the company, inspect any en- 
 tries in the register which relate to the matter in dispute. 
 
 6. And in a still more recent case, where one of the members 
 of the corporation was in controversy with the company in regard 
 to his right to act as one of the governing body, which right de- 
 pended upon an inspection of the records of the company in order 
 to determine its usages, the court granted permission to inspect 
 the books.^^ But it is here said this will not be done unless there 
 is a suit or some proceedings pending. 
 
 7. And in the inspection of all documents, by order of the 
 Court of Chancery, the party in whose favor the order is made 
 has the right to have such aid in the inspection, either by coun- 
 sel, interpreters, or experts, as will make the inspection available 
 to him.^ 
 
 •° Foster v. The Bank of England, 8 Q. B. 689. 
 
 " Reg. V. Saddlers' Co., 10 W. R. 87. At Chambers, Crompton, J. 
 
 >* Swansea Vale Railw. Co. v. Budd, Law Rep. 2 Eq. 274 ; s. c. 12 Jur. N. 
 S. 661. As to the eflfect of the certificate of the clerk of a corporation under 
 its seal, see New Orleans & O. R. Co. v. Lea, 12 Louis. Ann. 388.
 
 §61. 
 
 OBTAINING LANDS BT EXPBESS CONSENT. 
 
 217 
 
 ♦CHAPTER X. 
 
 BIGHT OP WAY BY GRANT. 
 
 SECTION I. 
 
 Obtaining Lands by express Consent. 
 
 1. Leave granted by English statute. 
 
 2. Persons under disabilittf. 
 
 8. 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 du- 
 
 ration. 
 
 7. Company bound by conditions in deal. 
 
 8. Parol license good till revoked. 
 
 9. Sale of road no abandonment. 
 
 10. Deed conveys incident ; not explainable. 
 
 11. One cannot derogate from compulsory 
 
 grant. 
 
 12. But this does not apply to accidental in- 
 cidents. 
 
 18. Case in New York Court of Appeal* 
 somewhat at variance with the preced- 
 ing cases. 
 
 14. A municijxd corporation may be bound 
 by implied contract in the grant of 
 land so as not to be at liberty to recede 
 from it. 
 
 16. A mere agreement to sell, although in 
 writing, will not justify the company in 
 entering upon the land, or defeat pro- 
 ceedings under the statute to recover 
 damages for taking the land. 
 
 §61. 1. The English statute^ enables railway companies to 
 purchase, by contract with the owners, " all estates or interests 
 (in any lands) of what kind soever," if the same, or the right of 
 way over them, be requisite for their purposes. 
 
 2. And by another section of the same statute such companies 
 are empowered to purchase such lands of persons legally inca- 
 pacitated 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.^ 
 
 ' 8 & 9 Vict. ch. 18, § 6. 
 
 » Hutton r. The London & South W. Railw., 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- 
 
 •218
 
 218 RIGHT OP WAY BY GRANT. CH. X. 
 
 * 3. The valuation in this latter class of cases is to be made by 
 disinterested persons, and the price paid into the bank for the 
 benefit of the parties interested. 
 
 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 lauds, estate, or property of any corporation or person 
 whatsoever, without the consent in writing of the owner and oc- 
 cupier, it was held they could not pass the line of another railway 
 without their consent, although the withholding of such consent 
 should frustrate the purpose of the grant.^ 
 
 5. In this country most of the railway charters contain a power 
 to the company to acquire lands, by agreement with the owner. 
 In such case it has been held the rights of the company are the 
 same as where they take their land under their compulsory powers.* 
 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 for ever 
 maintain and use their road over his land, if, in laying the drains 
 or ditches through the land, it becomes necessary to go beyond 
 the limits of the five rods, in order to guard against the effect of 
 a stream to be passed, the company may lawfully do so under the 
 grant.^ 
 
 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 the land, and to be treated as real estate. 
 Midland Counties Railw. v. Oswin, 1 CoU. C. C. 74 ; s. c. 3 RaUw. C. 497 ; Ex 
 parte Flamank, 1 Simons (n. s.) 260 ; In re Homer's Estate, 6 De G. & S. 483 ; 
 8. c. 13 Eng. L. & Eq. 531 ; In re Stewart's Estate, 1 Sm. & G. 32 ; s. c. 13 
 Eng. L. & Eq. 533. 
 
 ' Clarence Railw. v. Great North of England Railw., 4 Queen's Bench, 45; 
 Gray v. The Liverpool & Bury Railw., 9 Beav. 391 ; 8. c. 4 Railw. C. 235. 
 
 * Whitcomb v. Vermont Central Railw., 25 Vt. 49, 69. This right to acquire 
 lands, by contract with the owners, is, by implication, if not expressly, limited to 
 the necessities of the company, we presume, the same as taking lands in invitum, 
 and cannot be extended to any private use. But if the owner of the land 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, 8 Yerg. 41; 11 Wend. 149; 
 Embury v. Conner, 3 Comstock, 516. 
 
 ' Babcock v. The Western Railw., 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 
 *219
 
 § 61. OBTAINING LANDS BY EXPRESS CONSENT. 219 
 
 * 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.^ In a very late case before the House of Lords,® a 
 very important, and as it seems to us reasonable and just quali- 
 fication is annexed to the familiar doctrine of implied assent to 
 the appropriation of land to a permanent use by the owner stand- 
 ing by and not objecting. It is here ruled, " If a stranger builds 
 upon the land of A., supposing it to be his own, and A. remains 
 wilfully passive, equity will not allow him to profit by the mistake ; 
 but if the stranger knows that the land upon which * he is building 
 belongs to A., then A. may assert his legal rights and take the 
 
 the company against a subsequent mortgagee. Merritt v. Northern Railw., 12 
 Barb. 605. But the payment by the company of the price of the land, and 
 changing their route in faith of the title, might give them an equity superior to 
 that of a subsequent mortgagee. lb. The deed of one tenant in common is a 
 good release of his claim for damages, although it convey no right as against his 
 co-tenant. Draper ». Williams, 2 MicL 536. But an agreement to sell land to 
 a railway company, and a tender of the price by the company, creates no title in 
 them. Whitman v. Boston & Maine Railw., 3 Allen, 133. 
 
 • Rathbone r. Tioga Navigation Co., 2 Watts & Serg. 74. And the rights 
 and duties of the company, in such case, arc precisely the same as if the land 
 bad been condemned, by proceedings in invitum, under the statute. Norris 
 V. Vt. Central Railw., 28 Vt. 99. Such grant carries the incidents neces- 
 sary to its enjoyment. And if it becomes necessary, in constructing the road, 
 to make a deep cut, that may be done, and the company are not bound to pro- 
 tect the banks of the excavation by a wall. Hortsman v. Lexington & Gov. 
 Railw., 18 B. Mon. 218. See also Louisville & Nash. R. v. Thompson, 18 B. 
 Mon. 736. 
 
 ' Miller r. Auburn & Syracuse Railway, 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. 471. And it was held in a somewhat recent English 
 case, Corby v. Hill, 4 C. B. N. S. 656 ; s. c. 81 Law Times, 181, that where 
 the owner of land had given oral permission to one for a private way, he 
 could not obstruct, or give permission to others to obstruct.'such way; and 
 that where a third person, by ]>ermission of the land-owner, placed building 
 materials in the way, whereby an injury accrued to the person having the way, 
 he might sue for such injury. 
 
 » Ramsden r. Dyson, Law Rep., 1 Ho. Lda. 123 ; s. c. 12 Jar. N. S. 606. 
 
 • 220, 221
 
 220 RIGHT OF WAY BY GEAKT. CH. X. 
 
 benefit of the expenditure. And a tenant building upon his land- 
 lord's land, in the absence of such special circumstances, acquires 
 no right against him at the expiration of the tenancy. But a 
 mere license to build works connected with a railway, the dam- 
 ages to be settled with a person named, or " on equitable terms 
 hereafter," does not amount to any definite agreement.* 
 
 9. 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.io 
 
 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 
 
 • Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58. But a writing 
 whereby the owner of land along the line of a contemplated gravel road gave 
 the road company the right to enter upon his land anywhere within a mile of the 
 contemplated road and dig and remove gravel, as much as they might require, 
 was held not a mere license, but a grant irrecoverabltf. Bracken ». Kushrille 
 Gravel Road Co., 27 Ind. 346. 
 
 '*' Harrison r. Lexington & Ohio Railw., 9 B. Mon. 470. So, too, if land is 
 conveyed on condition that an embankment (water-tight) over a brook crossing 
 the land shall be erected by the grantors, and that the embankment, or dam, 
 with the floodgates or sluices therein, might be used for hydraulic purposes by 
 the grantors, their heirs, and assigns, the grantees not to be liable to the grantors 
 for any damage they might sustain by a break in such dam, unless the same 
 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 con- 
 dition subsequent, the failure to perform which would give the grantors, or their 
 heirs, a right of re-entry at their election. But it was further said, that the 
 conveyance of the estate by the grantees defeated the condition, and that the 
 assignee had no remedy upon it. Underbill c. Saratoga & Wash. Railw., 20 
 Barb. 455. And such conditions may be waived by the partj- in whose favor 
 they are made, as in a grant of land for a railway track, the road to be com- 
 pleted by a day named, or the deed to be void, which was not done ; but the 
 grantor continued to treat the company as having the right to use the land for 
 the purposes of the grant. And it was held a waiver of the condition. Ludlow v. 
 New York & Harlem Railw., 12 Barb. 440.
 
 § 61. OBTAINING LANDS BY EXPRESS CONSENT. 221 
 
 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," and the intention of the parties could 
 not be determined by extraneous evidence. 
 
 11. So, also, the principle that a grantor, knowing the purpose 
 for which his deed is accepted, cannot derogate from his own 
 grant, applies to the case of a compulsory conveyance, under legis- 
 lative authority, and the act is sufficient notice to the grantor of 
 the purposes of the conveyance. But this rule will ijot apply to 
 any accidental state of facts, existing at the time of the grant, as 
 the support resulting from an excavation being filled with water at 
 the time, so as to entitle the grantee to insist upon its continuance. 
 
 12. And accordingly, where a railway took the land above a 
 mine for the support of the abutments of a bridge, the mine hav- 
 ing been abandoned for forty years and full of water, it was held 
 they could not insist upon having the water remain in the pit, as 
 a support to the earth, but that they were entitled to be protected 
 from damage likely to result from working the mine.^ 
 
 13. If a railway have power to take land by consent of the 
 owner, an oral consent is sufficient.^^ And if the company take 
 laud and put it to their use without the consent of the owner, or 
 any other proceeding under their powers, it is a trespass, but can 
 only be sued by the person then owning the land, and not by his 
 grantee.^ But this case was reversed upon error, and it was de- 
 cided, somewhat at variance with the present English rule, that 
 such a license, coupled with an interest, was still revocable at the 
 option of the licensor. But the final conclusion of the court of 
 error, that " consent," in such an act, meant the efiectual consent 
 of the law expressed with due formality, seems altogether the 
 more reasonable ground upon which to place the case. 
 
 14. The New York Court of Appeals^* held that municipal 
 * corporations, as to their rights and powers over lands owned by 
 the corporation, were to be viewed the same as any other owner 
 
 " Vermont Central Railw. p. Hills, 23 Vt. 681. 
 
 " North Eastern Railw. Co. r. Elliott, 1 Johns. & H. 146 ; 8. c. 6 Jur. N. S. 
 817. 
 
 " Central Railw. Co. p. Hitfield, 5 Dutcher, 206; 8. c. in error, id. 671. 
 
 '* Mayor, &c., of the City of New York v. The Second Avenue Railw., 82 
 N. Y. 261 ; 8. c. 34 Barb. 41, where the case was similarly ruled. 
 
 ♦ 222, 228
 
 222 BIGHT OP WAY BY GRANT. CH. X. 
 
 of land, and that their acts and resolutions in regard to the use of 
 such land by others were not to be regarded as either of a legisla- 
 lative or governmental character ; and that although such corpo- 
 rations have no power as a party to make contracts which shall 
 control or embarrass their legislative powers and duties, yet, as 
 these legislative duties, or powers, only extend to regulations of 
 police and internal government, and not to the mere imposition of 
 a sum of money for revenue purposes, consequently an ordinance 
 imposing a license duty upon city cars, for revenue purposes only, 
 is not an ordinance for police and internal government, and the 
 imposition of an annual tax upon a city passenger railway, in 
 derogation of its rights, as defined by a specific agreement be- 
 tween the city and the railway company, for purpose of revenue 
 merely, is unlawful and void.^^ 
 
 15. Proof of a written agreement to sell land to a railway com- 
 pany, at a given price, within a limited time, and for tender of the 
 same within the time, and a refusal to accept the same, will not 
 justify the company in locating their road upon the land, or defeat 
 proceedings under the statute to recover damages for such lo- 
 cation.^^ 
 
 '* The terms of this contract appear more fully where the case is rejKtrted in 
 Barbour. It prescribed the regulations to which the company should be liable, 
 requiring no further license, and reserving no power to require one thereafter. 
 This was held to preclude the city authority from making the imposition de- 
 manded. It would seem, the case might have been decided, in conformity with 
 the dissenting opinion of Mr. Justice Ingrahani, in the court below, without any 
 great violence to principle. See also Branson v. Philadelphia, 47 Penn. St. 329 ; 
 Veazie v. Mayo, 45 Me. 560; People v. New York & Harlem R. Co., 45 
 Barb. 73; Vilas v. Mil. & Miss. R. Co., 15 Wise. 233. A grant of land to 
 the use of a highway seems to be regarded as giving the municipal authorities 
 the same rights in regard to its use as where the land is condemned for that pur- 
 pose. Murphy v. The City of Chicago, 29 HI. 279. 
 
 The grant to a railway company of a right to build a tunnel will not preclude 
 the owner of the land from digging minerals imder the tunnel, in conformity 
 with the general railway acts, London & N. W. Railw. Co. v. Ackroyd, 8 Jur. 
 N. S. 911. 
 
 " Whitman ». Boston & Maine Railw., 3 Allen, 133. This written contract 
 might be evidence of the value of the land, or an admission by the owner, and 
 88 such might probably be used in the proceedings under the statute for esti- 
 mating damages.
 
 §62. 
 
 SPECIFIC PEBFOBMANCE IN EQUITY. 
 
 228 
 
 ♦SECTION <II. 
 
 Specific Performance in Equity. 
 
 1. Contracts before and ajler date of charier. 
 
 2. Contracts where all the termt not defined. 
 8. Contracts for land umpire to fix price. 
 4. Where mandamus also lies. 
 
 6. Contracts not signed by company. 
 
 6. Where terms are uncertain. 
 
 7. Contracts giving the company an option. 
 
 8. Contracts not understood by both parties. 
 
 9. Order in regard to construction of high- 
 
 uxtys may be enforced at the suit of the 
 municipality. 
 
 10. Hie courts sometimes decline to decree 
 
 specific performance on the ground of 
 public conveniemx. 
 
 11. No decree of specific performance when 
 
 contract vague and uncertain, and for 
 other reasons. 
 
 12. Courts of equity will not in the final 
 
 decree make the price a charge on the 
 land, unless so declared cU first. 
 
 § 62. 1. Tliere 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. K 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.^ But, 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.^ 
 
 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. Hence in the case above,^ the Vice-Chancellor 
 held, that, as the contract was to take the land on the terms pre- 
 scribed in the act of parliament, the court had the means of 
 
 > Ante, § 18, et seq. ; Walker r. The Eastern Counties Railw. Co., 6 Railw. 
 C. 469; 8. c. 6 Hare, 694. 
 
 * Sanderson v. Cockermouth & Washington Railw. Co., 19 Law Jour. Ch. 
 603; 11 Beavan, 497. 
 
 ' Milnes v. Gerry, 14 Yesey, 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 llolls held that an agreement to sell, at a fair valuation, may be executed. 
 See Tillet v. Charing Cross Company, 26 Beav. 419 ; 8. C. 6 Jur. N. S. 994. 
 
 * Brown v. Bellows, 4 Pick. 179. 
 
 •224
 
 224 RIGHT OP WAY BY GRANT. CH. X. 
 
 applying those terms, so as to get at the price, and might there- 
 * fore require the party to put them in motion, and then, in its dis- 
 cretion, decree specific performance. 
 
 4. And the consideration, that possibly the party might proceed 
 by mandamus, will not deprive him of this remedy in equity, un- 
 less the act specially provides the remedy by mandamus.^ 
 
 6. 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 refusalJ 
 
 6. A contract to sell a railway company " the land they take " 
 from a specified lot of land, at twenty cents a foot, " for each and 
 every foot so taken by said company," imports a taking by the 
 company, under their compulsory powers, and will not be specifi- 
 cally enforced until so taken by the company. And if the terms 
 of a contract are doubtful, a court of equity will not decree spe- 
 cific performance.^ 
 
 7. Where one contracts with a railway company, under seal, to 
 permit them to construct their road over his land, in either one 
 of two routes, and to convey the land after the road shall be 
 definitively located, with a condition that the deed shall be void, 
 when the road shall cease, or be discontinued, if the company 
 take the laud and build their road upon it, specific performance 
 will be decreed, although the company did not expressly bind 
 themselves to take the land, or pay for it. And where the com- 
 pany had been in the use of the land for their road three or * four 
 years, it was held no such unreasonable delay as to bar the relief 
 
 * Hodges on Railways, 189. 
 
 ' Jacobs V. Peterborough & Shirley Railw., 8 Cush. 223. 
 
 ' Parker ». Perkins, 8 Cush, 318. 
 
 8 Boston & Maine Railw. v. Babcock, 3 Cush. 228 ; s. c. 1 Am. Railw. C. 661. 
 But under a contract with a railway company, giving them all the land they 
 desired, not exceeding four poles in width, upon which to construct their road, 
 "provided said road shall not run farther north of my southwest corner than ten 
 feet, and not farther south of my northeast corner than 140 feet," it was held 
 the company had a right to 66 feet through the whole land, and were only re- 
 stricted in relation to the distance the road went from the corners named. 
 Lexington & Ohio Railw. v. Ormsby, 7 Dana, 276. 
 * 226, 226
 
 § 62. SPECIFIC PERFORMANCE IN EQUITY. 225 
 
 sought. The party cannot excuse himself hy 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 diflfercnt from tbat 
 which was in the contemplation of the parties when it was exe- 
 cuted. But in such case the burden of proof is upon the defend- 
 ant, to show mistake or misrepresentation.^ 
 
 In a recent English case ^° before the Court of Chancery Appeal, 
 after elaborate argument, the Lord Justice Knight Bruce, an 
 equity judge of the most extended learning and experience, thus 
 states the rule upon this point. This court will not enforce spe- 
 cific performance of a contract, where the defendant proves that 
 he understood it in a sense different from the plaintiff, even al- 
 though the plaintifTs construction may be the plain meaning of 
 the contract. 
 
 9. Where the county commissioners made order in regard to 
 the mode of construction of a railway, in crossing a highway, it 
 was held, that the mayor and aldermen of a city, or the select- 
 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 bill." But where the 
 
 • Western Railw. v. Babcock, 6 Met. 846 ; 8. c. 1 Am. Railw. C. 365. The 
 delivery of a deed to the agent of a corporation, in such case, is sufficient. And 
 where .the party, in disregard of his contract, had obtained an assessment of 
 damages for the land, under the statute, his liability upon the contract is, to the 
 difference between the apprisal and the stipulated price in the contract. 
 
 Unreasonable delay is ordinarily a bar to specific performance in a court of 
 equity. Guest v. Homfray, 6 Vesey, 818 ; Hertford v. Boore, Aston v. Same, 6 
 Vesey, 719 ; Watson r. Reid, 1 Russ. & My. 236 ; 2 Story's Eq. Jur. §§ 771, 777, 
 and cases cited. 
 
 10 Wycombe Railw. Co. t. Donnington Hospital, Law Rep. 1 Ch. 268 ; 8. c. 
 12 Jur. N. S. 347. 
 
 *' Brainard v. Conn. River Railw., 7 Cush. 606. In Roxbury v. Boston & 
 15 • 227
 
 226 BIGHT OP WAY BY GBANT. CH. X. 
 
 order 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.^ 
 
 Prov. Railw., 6 Cush. 424, it was also held the commissioners must make such 
 order specific, and not in the alternative, and that laches, in regard to such order, 
 will not defeat the claim for a decree for specific performance, where public 
 security 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 perform- 
 ance. Water Power Co. r. Chamber, 1 Stockton, Ch. 471. See also Hall r. 
 Chaffee, 13 Vt. 150 ; Boston & Maine Railw. v. Bartlett, 3 Cush. 224. But it 
 was held that an action for the price of land will not lie upon a parol contract of 
 sale, where there had been no conveyance of the land, although the company had 
 taken possession and paid part of the price. Rej-nolds v. Dunkirk & State Line 
 Railw., 17 Barb. 612. This is undoubtedly according to the generally recognized 
 rule upon the subject, in those states where the Statute of Frauds is in force. 
 
 In the recent case of Laird f. Birkenhead Railw., 6 Jur. N. S. 140 ; s. c. 1 
 Johns. Eng. Ch. 500, the question of an estoppel in fact becoming so fixed upon 
 a railway company by acquiescence as to be enforced by a court of equity, is 
 largely discussed by Vice Chancellor Wood, and placed upon higher and sounder 
 grounds, as it seems to us, than in most of the earlier cases. The leading facts 
 were, that the plaintiff, by agreement with the company, without writing, had 
 built a tunnel through their land, in order to facilitate access to his own business, 
 and had laid rails upon the work, and had been in the use of the same for two 
 years, paying tolls as agreed between the parties. The company now claimed 
 that the plaintiff was merely a tenant at will, and subject to their absolute dicta- 
 tion as to the right to use and the terms upon which he could use the works, and 
 gave notice in writing of the immediate and absolute termination of the contract, 
 and in pursuance of such notice removed the rails and permanently erected a 
 board across the passage. 
 
 The learned judge overruled the demurrer, and said "it must be inferred, from 
 the nature of the transaction, and afler all this expense, that it was not to be 
 determined by three months' notice. . . . The necessary inference is, that it is 
 to be the right of user, as long as the plaintiff is the owner of the yard, .and it 
 would be a most unreasonable proposition to say that the company should have 
 the power of determining it at three months' notice. ... I consider that a 
 contract had been made out upon the face of the bill," and it was further con- 
 sidered, that, aside from the actual use, a court of equity would have decreed 
 specific performance upon reasonable terms ; but after the use for a considerable 
 term on the basis of an unsigned memorandum, the court will regard that as evi- 
 dence of the ultimate agreement of the parties. S. P. Mold v. Wheatcroft, 27 
 Beav. 510. 
 
 " City of Roxbury v. Boston & Providence Railw., 2 Gray, 460. 
 *228
 
 § 62. SPECIFIC PERFORMANCE IN EQUITY. 227 
 
 10. The Master of the Rolls, Lord Romillt/, in Raphael v. The 
 Thames Valley Railway ,^^ held, that in deciding whether specific 
 performance should be enforced against a railway company, the 
 court must have regard to the interests of the public, and there- 
 fore, where a bridge had not been constructed in conformity with 
 an agreement with a land-owner, but the injury to the land-owner 
 was small, and the railway had since been opened for traffic, and 
 the relief, if granted, would have necessitated an interference with 
 the traffic, the court refused to compel specific performance. 
 
 11. And it has been very recently declared by the English 
 courts of equity, that where a contract is vague and so uncertain 
 that no compensation could be awarded, a decree for specific per- 
 formance could not be made." So also the court will not interfere 
 after considerable lapse of time and when the company are not 
 possessed of funds for completing the purchase. ^^ So refusal to 
 decree specific performance may be based upon the public safety 
 and convenience.^® 
 
 12. And a Court of Equity will not make the amount to be 
 paid for land a charge upon the land, under leave to apply for 
 further directions, where it was not made so by the original 
 decree.^*" 
 
 " Law Rep. 2 Eq. 37 ; 8. c. 12 Jur. N. S. 656. 
 
 " TiUett r. Charing Cross Co., 26 Beav. 419 ; 8. c. 6 Jur. N. S. 994. 
 
 '* Prj-se c. Combrian Railw., Law Rep. 2 Eq. 444. 
 
 '• Raphael v. Thames Valley Railw., id. 37. 
 
 " Attorney-General c. S. & S. Railw., Law Rep. 1 Eq. 686.
 
 228 
 
 EBIINENT DOMAIN. 
 
 CH. XI. 
 
 ♦CHAPTER XI. 
 
 EMINENT DOMAIN. 
 
 SECTION I. 
 
 General Principles, 
 
 1. Definition of the right. 
 
 2. Intercommunication. 
 
 3. Necessary attribute of sovereignty. 
 
 4. Antiquity of its recognition. 
 
 5. Limitations upon its exercise. 
 
 6. Resides principally in the states. 
 
 7. Duty of making compensation. 
 
 8. Navigable waters. 
 
 9. 10, 11. Its exercise in rivers, above tide- 
 
 water. 
 
 § 63. 1. This title is very little found in the English books, 
 and scarcely in the English dictionaries. But with us, it has 
 been adopted from the writers on national and civil law, upon the 
 continent of Europe,^ and is perhaps better understood than 
 almost any other form of expression, for the same idea. It is de- 
 fined 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 sub- 
 ject, whether real or personal, and whether the title were 
 originally derived from the sovereign or not. One of the chief 
 occasions for the exercise of this right is, in creating the necessary 
 facilities for intercommunication, which in this country is now 
 very generally known by the name of Internal Improvement. 
 This extends to the construction of highways (of which turnpikes 
 and railways are, in some respects, but different modes of con- 
 struction and maintenance), canals, ferries, wharves, basins, and 
 some others.^ 
 
 ' Vattel, B. 1, ch. 20, § 244 ; Code Napoleon, B. 2, tit. 2, 545 ; 1 Black. 
 Coram. 139 ; Gardner v. Newburgh, 2 Johns. Ch. 162 ; 2 Dallas, 310. 
 
 ' 3 Kent, Coram. 339 et seq. and notes ; Beekman v. Saratoga & Sch. Railw., 
 3 Paige, 45, 73 ; 12 Pick. 467 ; 23 id. 327 ; 3 Selden, 314. This right, as some 
 * 229
 
 § 63. GENERAL PRINCIPLES. 229 
 
 * 3. This is a right in the sovereignty, which seems indispen- 
 sable to the maintenance of civil government, and which seems to 
 
 of the above cases show, extends to numerous matters not named in the text. 
 It would be 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 of this work, in the following sections. 
 
 That railways are but improved highways, and are of such public use as to 
 justify the exercise of the right of eminent domain, by the sovereign, in their 
 construction, is now almost universally conceded. Williams r. N. Y. Central 
 Railw., 18 Barb. 222, 246 ; State r. Rives, 5 Ired. 297 ; Northern Railw. r. 
 Concord & .Claremont Railw., 7 Foster, 183 ; Bloodgood c. M. «& H. Railw., 18 
 Wend. 9 ; 8. c. 14 Wendell, 51 ; 1 Bald. C. C. Reports, 205. See also 3 Paige, 
 73 ; 3 Seld. 314. A freight company has been regarded as not of such public 
 interest as to justify taking land by the right of eminent domain. This was for 
 loading and unloading freight. Memphis Freight Co. v. Memphis, 4 Cold. 419. 
 But this case is perhaps questionable. A railway for the purpose of transporting 
 freight is as much a public use as if it embraced passenger transportation. And 
 a freight company of more limited extent might be said to be in aid of the com- 
 pany carrying greater distances. The marginal railways in cities for the purpose 
 of connecting the different lines of traffic, are as much public companies and 
 entitled to exercise the sovereign right of eminent domain, as any other railway. 
 But no railway company can take land for other than public uses, as for the 
 deposit of dirt, &c., not connected with the efficient use of their right of way. 
 Lance's Appeal, 55 Penn. St. 16. 
 
 It seems to be well settled, that the legislature have no power to take the 
 property of the citizens for any but a public use ; but that a railway is such use. 
 Bradley ». N. Y. & N. H. Railw., 21 Conn. 294; Symonds v. The City of 
 Cincinnati, 14 Ohio, 147 ; Embury r. 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 p. Mayor of Brookljii, 
 4 Comst. 419 ; Cincinnati, W. & Z. Railw. r. Clinton Co. Coram. 1 Ohio, N. S. 
 77. 
 
 The legislature must decide, in the first instance, when the right of eminent 
 domain may be exercised, but this is subject to the revision of the courts, so far 
 as the uses to which the property is applied, are concerned. 2 Kent, Comm. 340. 
 
 But as to the particular instance, the decision of the legislature, and of the 
 commissioners appointed to exercise the power, is ordinarily final and not revis- 
 able in the courts of law. Varrick r. Smith, 5 Paige, 137 ; Armington p. Bar- 
 net, 16 Vt. 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 
 exercise of the right of eminent domain. Commonwealth v. Tewksbur}*, 11 
 Met. 55 ; Cdates v. Mayor of New York, 7 Cowen, 585. But see Clark p. 
 Mayor of Syracuse, 13 Barb. 32. 
 
 The following case recognizes the general right stated in the text. Donnaher 
 V. The State, 8 Sm. & M. 649. 
 
 •230
 
 280 EMINENT DOMAIN. CH. XI. 
 
 be rather a necessary attribute of the sovereign power in a state, 
 than any reserved right in the grant of property to the subject or 
 citizen. 
 
 4. It seems to have been accurately defined, and distinctly 
 recognized, in the Roman empire, in the days of Augustus, and his 
 inmiediate successors, although from considerations of policy *and 
 personal influence and esteem, they did not always choose to exer- 
 cise the right, to demolish the dwellings of the inhabitants, either 
 in the construction of public roads or aqueducts, or ornamental 
 columns, but to purchase the right of way. 
 
 5. But in the states of Europe and in the written constitution 
 of the United States, and in those of most of the American states, 
 an express limitation of the exercise of the right makes it depend- 
 ent upon compensation to the owner .^ But this provision in the 
 United States constitution is intended only as a limitation upon 
 the exercise of that power, by the government of the United 
 States.^ 
 
 6. And it would seem, that notwithstanding this right of sov- 
 ereignty may reside in the United States, as the paramount sov- 
 ereign, so far as the territories are concerned, in reference to 
 internal communication, by highways and railways, and notwith- 
 standing the ownership of the soil of a portion of the lauds, by the 
 United States, in many of the states, as well as territories, still, 
 when any of the territories are admitted into the Union, as inde- 
 pendent states, the general rights of eminent domain are vested 
 exclusively in the state sovereignty.* 
 
 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 
 
 ' Barron r. Baltimore, 7 Peters, 243 ; Fox r. The State of Ohio, 5 How. 
 410, 434, 435. 
 
 * Pollard V. Hagan, 3 How. (U. S.) 212 ; Goodtitle v. Kibbe, 9 How. 471 ; Doe 
 c. Beebe, 13 How. 25 ; United States v. Railw. Bridge Co., 6 McLean, 517. In 
 the Court of Claims recently, in the case of The Illinois Central Railw. t>. 
 United States, 20 Law Rep. 630, it was held, that the abandonment of a military 
 reserve, which had become useless for military purposes, causes it to fall back 
 into the general mass of public lands, and that a state, by virtue of its right of 
 eminent domain, may authorize the construction of railways through land owned 
 but not occupied by the United States. And the United States being in pos- 
 session of land owned by the plaintiffs, and which was necessary to carry out the 
 objects of their charter, it was held, that a pa^nnent made by the plaintiffs, to 
 obtain possession thereof, was made under duress, and might be recovered back. 
 •231
 
 § 63. GENERAL PRINCIPLES. 231 
 
 lying at the basis of all wiso 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 navigation 
 of a river above tide-water, under grant from the state, sustain 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.*® 
 
 ' Spencer, Ch. J., in Bradshaw v. Rogers, 20 Johns. 103; 2 Kent, Comm. 
 889, and note and cases cited, from the leading continental jurists. 
 
 ' Davidson r. Boston & Maine Railw., 3 Cush. 91 ; Gould v. Hudson River 
 Railw., 12 Barb. 616; s. c. 2 Selden, 622. 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 r. Boston & Maine Railw. 3 
 Cush. 1 ; 8. c. 1 Am. Railw. C. 462. 
 
 ' Zimmerman v. Union Canal Co., 1 Watts & S. 346. 
 
 ' Shrunk v. Schuylkill Navigation Co., 14 Serg. & Rawle, 71. 
 
 • Commonwealth c. Ritcher, 1 Penn. 467. 
 
 " Susquehannah Canal Co. r. Wright, 9 Watts & Serg. 9 ; MonongaheU 
 Navigation Co. v. Coons, 6 id. 101. 
 
 * 232
 
 232 
 
 EMINENT DOMAIN. 
 
 CH. XI. 
 
 ♦SECTION II. 
 
 Taking Lands in invitum. 
 
 1. Legislative grant requisite. 
 
 2. Compensation must be made. 
 
 3. Consequential damages. 
 
 4. Extent of such liability. 
 
 6. These grants strictly construed. 
 
 6. Limitation of the power to take lands. 
 
 7. Interference of courts of equity. 
 
 8. Rule of construction in American courts. 
 
 9. Strict, but reasonable construction. 
 
 10. Rights acquired by company. 
 
 11. Limited by the grant. 
 
 12. Late decision of the House of Lords. 
 
 § 64. 1. In England railways can take lands by compulsion, 
 only in conformity to the terms of their charters, and the general 
 laws defining their powers.^ And in this country a railway com- 
 pany or other corporation must show, not only the express warrant 
 of the legislature ^ (which it must for all its acts) for taking the 
 land of others for their own uses, but also that the legislature, in 
 giving such warrant, conformed to the constitutions of the states, 
 in most of which it is expressly required that compensation should 
 be made for all lands taken. And upon this subject, the circum- 
 spection of the English courts, in requiring damage and loss to the 
 land-owners to be fairly met, is shown very fully by the language 
 of Lord Denman, Ch. J., in The Queen v. The Eastern Counties 
 Railway .3 
 
 ' Taylor v. Clemson, 2 Q. B. 978 ; s. c. 3 Railw. C. 65. Tindal, Ch. J., here 
 said, " This authority to take land, if exercised adversely, and not by consent, is 
 undoubtedly an authority to be carried into effect, by means unknown to the com- 
 mon law." And in Barnard v. Wallis, 2 Railw. C. 177, the Master of the Rolls 
 declares, that aside from the provisions of the act of parliament, the owner of 
 one rod of land may insist upon his own terms, to the utter overthrow of the most 
 important public work. ' ' The price of his consent must be determined by him-, 
 self." All kinds of property and estate are subject to this right of eminent 
 domain, and a dwelling-house, so long regarded as the inviolable sanctuary of 
 the owner or occupant, forms no exception. Wells ». Som. & Ken. Railw. Co., 
 47 Me. 345. 
 
 * 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. 
 
 ' 2 Q. B. 347 ; 8. c. 2 Railw. C. 736, 752. It has been repeatedly decided that 
 the corporate authorities of a city have no power to confer upon any person, natu- 
 ral or corporate, the franchise of operating a railway. Such a grant for an in- 
 definite period is void as a perpetuity. Such powers are hqld by the city for the 
 public benefit, and cannot be abrogated or delegated. And such a grant is not an 
 ♦ 233
 
 § 64 TAKING LANDS IN INVITUM. 288 
 
 • 2. " We think it not unfit to premise, that when such large 
 powers are intrusted to a company to carry their works into exe- 
 cution, 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 lia- 
 ble to pay damage to the owner of all lands " injuriously affected " 
 by any of their works. Such a provision does not exist in many 
 of the American states, and consequently no liability is imposed 
 for merely consequential damages to lands, no part of which is 
 taken.* 
 
 4. Under the English statute, giving damage where lands are 
 " injuriously affected," railways have been held liable for all 
 acts, which, if done without legislative grant, would constitute 
 a nuisance, and by which a particular party incurs special dam- 
 age.^ 
 
 5. These grants, being in derogation of commo!i right, are to 
 receive a reasonably strict and guarded construction.^ The * Mas- 
 act of municipal legislation merely, but a contact which, if valid, it could not 
 revoke or limit, and which is consequently void as a perpetuity. Milhau r. 
 Sharp, 27 N. Y. 611 ; post, § 76, p. 547. 
 
 • Hatch r. Vermont Central Railw., 25 Vt. 49 ; Philadelphia & Trenton Railw., 
 6 "VMiart. 25; Monongahela Nav. Co. v. Coon, 6 Watts & Serg. 101. See also 
 Protzman v. Ind. & Cin. Railw., 9 Ind. 467; Evansville & Crawfordsville 
 Railw. r. Dick, id. 433. 
 
 » Queen c. Eastern Co.'s Railw., 2 Q. B. 847 ; Glover v. North Staffordshire 
 Railw., 16 Q. B. 912; 8. c. 6 Eng. L. & Eq. 335. 
 
 • Gray r. Liverpool & Bury Railw., 9 Beav. 391 ; s. c. 4 Railw. C. 235-240. 
 Hence under a general grant of power to take land for the track of a railway, 
 with sidings and branches to the towns along the line, the company have no power 
 to take land for a temporary' track during the period of constructing the main line. 
 Currier r. Marietta & Cin. Railw. Co., 11 Ohio N. S. 228. Nor can a railway com- 
 pany, under their general powers, take lands at a distance from their line not in- 
 tended to be used in its construction. Waldo ». Chicago, St. Paul & Fond du 
 Lac Railw. Co., 14 Wis. 575. Nor can a railway company take land compulsorily 
 for the purpose of erecting a manufactorj' of railway cars, or dwellings to be 
 rented to the employes of the company. But they may take land for the purpose 
 of storing wood and lumber used on the road, or brought there for transportation 
 upon it. And when land is taken for a legitimate purpose, the decision of the 
 locating officers of the company is conclusive as to the extent required for that 
 purpose, unless the quantity so taken is clearly beyond any just necessity. 
 Vt. & Canada R. v. Vt. Cent. R., 34 Vt. 2. 
 
 • 234, 235
 
 234 EMINENT DOMAIN. CH. XI. 
 
 ter of the Rolls, in this last case, says, " In these cases it is 
 always to be borne in mind, that the acts of parliament are acts of 
 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 construc- 
 tion is thus laid down : — 
 
 6. " These powers extend no further than expressly stated in 
 the act, except where they are necessarily and properly acquired 
 for the purposes which the act has sanctioned." This last cate- 
 gory, as here observed, is often a most perplexing one, in regard 
 to its true extent and just limits. And doubtful grants are to be 
 construed most favorably towards those who seek to defend their 
 property from invasion.^ And a railway, having an option between 
 different routes, can only take lands on that route which they 
 ultimately adopt ; and if they contract for land upon the other 
 routes, cannot be compelled to take it.^ The time for exercise 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. 
 
 It was decided by the House of Lords, reversing the judgment 
 of the Lords Justices, but affirming that of the Vice-Chancellor, 
 that where the legislature authorizes a railway company to take, 
 for their purposes, any lands described in their act, it constitutes 
 
 ' Colman r. The Eastern Counties RaUw., 10 Beav. 1 ; s. c. 4 Railw. C. 513, 
 524 ; State v. B. & O. Railw., 6 Gill, 363 ; Simpson r. So. Staff. Waterworks Co., 
 11 Jur. N. S. 453. And in a recent case in Kentucky, the rule is thus stated : The 
 rules of construction which apply to charters delegating sovereign power to cor- 
 porations do not depend upon the question whether the corporation is a private or 
 a public one, but on the character of the powers conferred, and the purposes of the 
 organization. The power of a railway, or other private corporation, to take 
 private property for its use, being a delegation of sovereign power, must be con- 
 strued as it would be if delegated to a mimicipal corporation. And the powers 
 of private and public corporations, with respect to their property, are governed 
 by the same principles, and, in the absence of express provisions of law, depend 
 upon the purposes for which the corporation was formed. Bardstown & Lou. 
 E. R. Co. V. Metcalfe, 4 Met. (Ky.) 199. 
 
 8 Sparrow r. Oxford, W. and W. Railw., 9 Hare, 436 ; s. c. 12 Eng. L. & Eq. 
 249 ; Shelford on Railways, 233. 
 
 ' Tomlinson v. Man. & Birm. Railw., 2 Railw. C. 104; Webb v. Man. & 
 Leeds Railw., 1 Railw. C. 576. 
 
 •° Such a limitation is held obligatory wherever it exists. Peavey v. Calais 
 Railw., 30 Maine, 498; s. c. 1 Am. Railw. C. 147. 
 •286
 
 § 64. TAKING LANDS IN INVITUM. 236 
 
 them the sole judges as to whether they will or will not take those 
 lands, provided that they take them bona fide with the purpose of 
 using them for the purposes authorized by the legislature, and not 
 for any sinister or collateral purpose." And that a court of equity 
 cannot interfere, even upon the decision of an engineer, to curtail 
 the power of the company, in regard to the quantity of land sought 
 to be obtained by it, so long as it acts in good faith. But in a 
 later case ^ it was said tliat the House of Lords, in the case of 
 Stockton & Co. V. Brown, did not decide that the company, by its 
 engineer, had an unlimited discretion to take any land which the 
 engineer would make affidavit the company required for use in the 
 construction of their works, without stating what works ; but that 
 it must appear to what use tliey proposed to put the lands, and if 
 that came fairly within the range of their powers, the company 
 could not be controlled in the bona fide exercise of its discretion as 
 to the mode of constructing their works, within the powers con- 
 fided to them by the legislature. The company will not be re- 
 strained from taking land for the purpose of depositing waste 
 upon, although not confident of requiring it for any other purpose 
 connected with the construction.^* 
 
 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 
 of this country. The language of Ch. J. Taney ^ in the leading 
 case upon this subject, in the national tribunal of last resort, is 
 very explicit. " It would present a singular spectacle, if, while the 
 courts of England are restraining within the strictest limits the 
 spirit of monopoly and exclusive privilege in nature of monopoly, 
 and confining corporations to the privileges plainly given to them 
 in their charter, the courts of this country should be found enlarg- 
 
 " Stockton & Darlington RaUw. Co. r. Brown, 6 Jur. N. S. 1168 ; 8. c. 9 Ho. 
 L. C. 246 ; North Missouri Railw. r. Lackland, 25 Mo. 615 ; Same c. Gott, id. 640. 
 
 »» Flower r. London Br. & S. Coast Railw. Co., 2 Drew. & Sm. 330; 8. c. 
 11 Jur. N. S. 406. 
 
 '3 Lund V. Midland Railw. Co., 34 L. J. Ch. 276. 
 
 " Clarence Railw. v. Great North of England, C. & H. J. Railw., 2 Railw. 
 C. 763. But the practice of courts of equity in this respect, is by no means uni- 
 form. See post, chap, xzriii. 
 
 •287
 
 236 EMINENT DOMAIN. CH. XI. 
 
 ing these privileges by implication." ^^ And in commenting upon 
 the former decisions of that court, upon this subject, the same 
 learned judge here says, " the principle is recognized, that in grants 
 by the public nothing passes by implication." ^^ And other cases 
 are here referred to in the same court, in support of the same view.^'^ 
 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 with- 
 out any process for that purpose, and-the resistance of the owner 
 is unlawful, and he may be restrained by injunction, but that is 
 unnecessary. The statute is a warrant to the company.^^ 
 
 11. But a grant to a railway to carry passengers and merchan- 
 dise from A. to M., does not authorize them to transport merchan- 
 dise from their depot in the city of M. about the city, or to other 
 points, for the accommodation of customers.^ 
 
 12. There has been considerable discussion in the English 
 " Charles River Bridge v. Warren Bridge, 11 Pet. 420. 
 
 " U. S. p. Arredondo, 6 Pet. 691, 738. 
 
 " Jackson v. Lamphire, 3 Pet.- 280 ; Beaty v. Knowler, 4 Pet. 152, 168 ; 
 Providence Bank v. Billings & Pittman, 4 Pet. 514. And that court not only 
 adheres to the same view still, but may have carried it, in some instances, to the 
 extreme of excluding all implied powers. See also upon this subject. Common- 
 wealth V. Erie & Northeast Railw., 27 Penn. St. 339 ; and Bradley v. New York 
 & New Haven Railw., 21 Conn. 294. 
 
 »8 Perrine ». Ches. & Del. Canal Co., 9 How. 172; Enfield Toll Bridge ». 
 BLartford & N. H. Railw., 17 Conn. 454; Springfield r. Conn. River Railw., 4 
 Cush. 63 ; 30 Maine, 498 ; 9 Met. 553 ; 1 Zab. 442 ; 3 Zab. 510 ; 21 Penn. St. 9 ; 
 16 m. 20. 
 
 The following cases will be found to confirm the general views of the text : 
 Tuckahoe Canal Co. v. Tuckahoe Railw., 11 Leigh, 42; GreenleaTs Cruise, 
 Vol. 2, 67, 68; Thompson v. N. Y. & H. Railw., 3 Sandf. Ch. 625; Oswego 
 Falls Bridge Co. c. Fish, 1 Barb. Ch. 547 ; Moorhead v. Little Miami Railw., 17 
 Ohio, 340; Stormfeltz v. Manor Turnpike Co., 13 Penn. St. 555; Toledo Bank 
 V. Bond, 1 Ohio N. S. 636 ; Cincinnati Coll. v. Stat«, 17 Ohio, 110 ; Cam. & 
 Amboy R. r. Briggs, 2 Zab. 623; Carr r. Georgia Railw. & Banking Co., 1 
 Kelly, 524 ; 7 Ga. 221 ; New London v. Brainard, 22 Conn. 552 ; Bradley u. 
 N. Y. & N. H. Railw., 21 Conn. 294; 9 Ga. 475; Barrett v. Stockton & D. 
 RaUw., 2 M. & G. 134. 
 
 " Niagara Falls & Lake Ontario Railw. v. Hotchkiss, 16 Barb. 270. 
 
 * Macon r. Macon & Western Railw., 7 Ga. 221. 
 
 *238
 
 §65. 
 
 CONDITIONS PRECEDENT. 
 
 237 
 
 courts, within the last few years, in regard to many recent statutes 
 there, for the improvement of markets and streets in the metropo- 
 lis or districts adjoining, through the agency of the municipal cor- 
 porations. And while the courts there, and especially the House 
 of Lords, in a very recent case,^^ adhere strenuously to the former 
 rule, in regard to private corporations, that they can only take 
 lands compulsorily, for the needful purposes of the works which 
 they are authorized by the legislature to construct ; on the other hand, 
 they hold that it is competent and proper under parliamentary pow- 
 ers granted for that purpose, to allow municipal corporations to 
 reimburse the expense of any improvements which they are author- 
 ized to carry forward, in their streets and squares or markets, 
 by taking the lands adjoining such improvements, at the price of 
 their value before such improvements, and selling them at the ad- 
 vanced prices caused by such improvements. And it was held 
 that the municipality having, before the act passed, contracted for 
 the sale of such of the lands so to be taken as they should not re- 
 quire for the purpose of the public improvement, did not disqualify 
 them from exercising the discretion reposed in them by the act, as 
 to how much land they would take. This rule of law in regard to 
 the proper mode of reimbursing the expense of great public improve- 
 ments is not very different from that which has been extensively in 
 use in America under the name of betterment acts, whereby the ex- 
 pense is assessed upon the adjoining * property-owners, upon some 
 scheme of equalization, presumptively apportioning the loss and 
 benefit equitably .^^ 
 
 SECTION III. 
 Conditions Precedent. 
 
 1. Conditions precedent mustbe complied with. 
 
 2. Thcd must be alleged in petition. 
 8. When title vests in company. 
 
 4. Filing the location in the land office is no- 
 tice to subsequeiti purchasers. 
 6. After damages are assessed and confirmed 
 
 by the court the owner is entitled to exe- 
 cution. 
 
 6. If the company use the land. 
 
 7. Subscriptions payable in land without com- 
 
 pensation, a court of equity will enforce 
 payment. 
 
 § 65. 1. It has been held that a railway company must comply 
 with all the conditions in its charter, or the general laws of the 
 
 *' Galloway v. The Mayor & Commonalty of London and the Metropolitan 
 Railw. Co., et vice versa, 12 Jur. N. S. 747. (1866.) 8. c. Law Rep. 1 H. 
 L. 84. " Pott, § 229, and casea cited in n. 22, 23. 
 
 •239
 
 238 EMINENT DOMAIN. CH. XI. 
 
 state, requisite to enable it to go forward in its construction, before 
 it acquires any right to take land by compulsion. In England one 
 of these conditions in the general law is, that stock, to the amount 
 of the estimated cost of the entire work, shall be subscribed. And 
 where the charter or the general laws of the state gave the right 
 to take land for the road-way only upon the legislature having 
 approved of the route and termini of the line, it was held the com- 
 pany could not proceed to condemn lands for that purpose until 
 this approval was made.^ 
 
 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.^ 
 
 * The right of such companies to take land is held in some states 
 to depend upon the legal sufficiency and validity of the certificate 
 and public record of organization ; and it was held the company 
 must show these prerequisites to be strictly in conformity with the 
 requirements of the law.^ 
 
 3. Where the charter of a railway company provides that the 
 title of land condemned for the use of the company shall vest in 
 the company, upon the payment of the amount of the valuation, 
 no title vests until such payment.* In a late case,^ the law upon 
 
 * Gillinwater v. The Mississippi & A. Railw. Co., 13 HI. 1. 
 
 * Reitenbaugh v. Chester Valley Railw., 21 Penn. St. 100. But where the 
 company have the j-ight to lay their road, not exceeding six rods in width, and 
 have fkced the centre line of the same, they may apply for the appointment of 
 appraisers, and determine the width of the road, any time before the appraisal. 
 Williams v. Hartford & New Haven Railw., 13 Conn. 110. But slight, if indeed 
 any evidence of this failure to agree with the land-owner is required, where the 
 claimant appears and makes no objection on that ground. Doughty v. Somerville 
 & Eastern Railw., 1 Zab. 442. And the petition may be amended where this 
 averment is omitted. Pennsylvania Railw. v. Porter, 29 Penn. St. 166. 
 
 3 Atlantic, i&c. Railw. v. Sullivant, 5 Ohio N. S. 276. 
 
 * Baltimore & Susquehanna Railw. v. Nesbit, 10 How. (U. S.) 395. ' See 
 also Compton v. Susquehanna Railw., 3 Bland, 386, 391 ; Van Wickle v. Railw., 
 2 Green, 162 ; Stacy r. Vermont Central Railw., 27 Vt. 39 ; Levering v. Railw. 
 Co., 8 Watts & Serg. 459. And upon pajinent of the compensation assessed 
 by commissioners, and taking possession afterward, the title of the company is 
 perfected, as against the party to the proceedings. Bath River Navigation Co. 
 t>. Willis, 2 Railw. C. 7. 
 
 » Stacy V. Vermont Central Railw., 27 Vt. 39. 
 ♦240
 
 § 65. CONDITIONS PRECEDENT. 289 
 
 this subject is thus summed up : Where the charter of the com- 
 pauy provides, that after the appraisal of laud, for their use, " upon 
 the payment of ilie samey* 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 mouey before any such right 
 accrues." — " The payment or deposit of the money awarded is a 
 condition precedent to the right of the company to enter upon the 
 land for the purposes of construction, and without compliance with 
 it they may be enjoined by a court of equity, or prosecuted in tres- 
 pass at law, for so doing. The right of the land-owner to the 
 damages awarded is a correlative right to that of the company to 
 the land. If the company has no vested right to the land, the 
 land-owner has none to the price to be paid." 
 
 4. And where the charter contained the usual power to take 
 land, it was held, that after laying out their road and filing the 
 location in the land office, the company had acquired a right of 
 entry, which subsequent purchasers were bound to respect.^ 
 
 5. And where the road has been laid and the damages * assessed, 
 and confirmed by the court, the owner of the land is entitled to 
 execution, although the company have not taken possession of the 
 land, and may desire to change the route.' 
 
 6. But where the railway enter into the possession of the land, 
 and construct their road without having paid the whole of the 
 damages assessed therefor, a court of equity will enforce the pay- 
 ment by an order for such payment within a time named, and in 
 default will restrain the company by injunction from using the 
 land until the price is paid.^ In one case it was held, that where 
 the railway is surveyed and located and the land-owner consents 
 to the company entering and building their road before the 
 damages arc ascertained, under an agreement that this shall be 
 done thereafter, and the road is thereupon constructed, the title 
 to the land passes, and the owner retains no lien thereon for his 
 damages, but must look for payment to the party contracting.* 
 But in a recent English case,^® it was held that the owner of lands 
 
 • Davis V. E. T. & Ga. Railw., 1 Sneed, 94. 
 
 ' Neal r. Pitteburgh & Connelsville Railw., 31 Penn. St. 19. 
 
 8 CozcM p. Bognor Railw., Law Rep. 1 Ch. 694 ; a. c. 12 Jur. N. S. 738. 
 
 • Knappc. McAuley, 39 Vt. 275. But in this state the vendor's lien upon 
 real estate for the price is expressly repealed by act of the legislature. 
 
 «» Walker p. Ware, &c. Railw. Law Rep. 1 Eq. 195. 
 
 ♦241
 
 240 EMINENT DOMAIN. CH. XI. 
 
 taken possession of by a railway company, either under statutory 
 power or by agreement, has a lien thereon for the purchase-money 
 and also for the damages to the adjoining land, if not the subject 
 of a special agreement, inconsistent with the continuance of such 
 lien. Of this lien he is not deprived by a deposit and bond under 
 the statute, or by accepting a deposit, less than the whole amount 
 due him, and a court of equity will enforce this lieu, although the 
 railway has been opened for public use. 
 
 7. And where a subscription of land is made to a railway com- 
 pany, upon some condition precedent to be performed by the 
 company, such condition is waived by conveying the land and 
 certificates of stock. But if such conveyance is induced by false 
 representations, the company may be compelled to perform it, or 
 by tendering a return of the certificates the entire conveyance 
 may be set aside, even after the company have conveyed the 
 land to others conversant of the facts at the time of such con- 
 veyance.^ 
 
 SECTION IV. 
 Preliminary Surveys. 
 
 4. Company liable for materials. 
 
 5. Bight to take materials. 
 
 6. 7. Location (^survey. 
 
 1. May be made without compensation. 
 
 2. Company not trespasser. 
 
 3. For what purposes company nwy enter 
 
 upon lands. 
 
 § 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 tlje year as will 
 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 statutes, 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, 
 
 » Cushman ». Smith, 34 Maine, 247; Polly v. S. & W. Railw. Co., 9 Barb. 
 449 ; Bloodgood r. Mohawk & H. Railw. Co., 14 Wend. 51 ; 8. c. 18 Wend. 9 ; 
 Mercer r. McWilliams, Wright (Ohio), 132. But in some states the party is 
 made liable by statute for damages for temporary occupation. 
 •242
 
 § 66. PRELIMINARY SURVEYS. 241 
 
 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 
 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. 
 
 od. 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.* 
 
 5th. By section 42, if the owner 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 companies 
 to take materials from lands adjoining their survey to build * their 
 road,** that the damages need not be appraised till after the materials 
 were taken : that the commissioners had authority to assess dam- 
 ages for every act which the company might lawfully do under 
 their charter : that the company had the right to take such materi- 
 als, in invitum, and to use other land, without their survey, for 
 
 * Pojmder v. The Great N. Railw. Co., 16 Sim. 3; s. c. 6 Railw. C. 196. 
 » 8 & 9 Vict. ch. 20, § 32. 
 
 * In Webb v. The Manchester & Leeds Railw. Co., 4 Myl. & Cr. 116; 8. c. 
 1 Railw. C. 576, 599, Lord Cottenham, Ch., is reported to have said: "The 
 powers given to these companies 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." 
 
 * Vermont Central Railw. v. Baxter, 22 Vt. 365. See also Bliss c. IIos- 
 mer, 15 Ohio, 44 ; Lyon r. Jerome, 15 Wendell, 669 ; Wheelock t. Young & 
 Pratt, 4 Wendell, 647. Also Lesher c. The Wabash Nav. Co., 14 lUinois, 86. 
 See po8t, § 68. 
 
 16 •243
 
 242 EMINENT DOMAIN. CH. XI. 
 
 preparing stone for their use : that the same right equally resided 
 in the contractors to build 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 exempt- 
 ing them from such liability, as between themselves and the con- 
 tractors. 
 
 6. It has sometimes been made a question, in this country, how 
 far the legislature could confer upon railway companies the power 
 to take materials, without the limits of their survey, in invitum.^ 
 And in a somewhat recent case,^ 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 
 the company were not thereby empowered to take materials from 
 land not taken. 
 
 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 location filed 
 by the company is conclusive evidence of the land * taken, and can- 
 not 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.'^ 
 
 * Parsons v. Howe, 41 Me. 218. And under the English statute it has been 
 held that the company are not justified in taking land compulsorily, which is 
 required, not for the purpose of constructing any portion of the works upon it, 
 but to supply earth or other material to be used upon other land. Bentinck v. 
 Norfolk Estuary Co., 8 De G. M. & G. 714. 
 
 ^ Hazen v. The Boston & Maine Railw., 2 Gray, 674; Stone r. Cambridge, 
 6 Cush. 270 ; Hayes v. Shackford, 3 N. H. 10 ; Lewiston v. County Commis- 
 sioners, 30 Maine, 19 ; Little v. Newport, A. & H.' Railw., 12 C. B. 752 ; 8. c. 
 U Eng. L. &. Eq. 309 ; Springfield v. Conn. River Railw., 4 Cush. 63, 69, 70. 
 
 ♦244
 
 § 67. POWEB TO TAKE TEMPOBABT POSSESSION. 243 
 
 SECTION V. 
 Power to take, temporary Possession of Public and Private Ways. 
 
 The railuxty company mag take postesnon 
 of public or private ways, in building 
 their works. Responsibility. 
 
 Remedy under the statutes, utJess special 
 damage. 
 
 8. Party excavating highway tn building 
 $ewer and having restored it, nojvxihtr 
 responsibU. 
 
 § 67. 1. Under the English statute,^ the company have the 
 power, 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 practicable, and if 
 not, a substituted one made. 
 
 2. If a private way be obstructed, the remedy is to sue for pen- 
 alty under the statute, or to bring an action under the statute 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.^ 
 
 3. A party who excavates a public highway for the purpose of 
 constructing a sewer, by contract with the public authorities, and 
 who properly restores the same at the termination of his work, is 
 not further responsible. But the parish must look after the sub- 
 sequent repairs, whether rendered necessary by the natural subsi- 
 dence of the earth, by reason of the former excavation, or by 
 ordinary wear and tear.^ 
 
 > 8 and 9 Vict. c. 20, § 30. 
 
 • Watkina r. Great Northern Railw. Co., 16 Q. B. 961 ; 8. c. 6 Eng. L. & 
 Eq. 179. But in Rangclcy v. Midland Railw. Law Rep., 3 Ch. Ap. 306, it is 
 said the company have no power under the statute to divert a public foot-path, 
 80 as to place it upon land of which it had not acquired the title. 
 
 ' Hyams c. Webster, Law Rep., 2 Q. B. 264.
 
 244 
 
 EMINENT DOMAIN. 
 
 CH. XI. 
 
 SECTION VI, 
 
 Land for Ordinary and Extraordinary Uses. 
 
 1. By English statute may take land for all 
 
 necessary uses. 
 
 2. Companies have the same power here. 
 
 8. 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 all 
 such extraordinary uses as will conduce to the successful prosecu- 
 tion of their business.^ This includes the site of stations, * yards, 
 wharves, places for the accommodation of passengers, and the de- 
 posit 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. But a railway company in 
 England cannot acquire the fee of land for the mere purpose of ex- 
 cavating soil in order to construct an embankment.^ And it has 
 been decided that a railway company cannot take land for any 
 subsidiary purpose, even where the du-ect act of the company 
 comes within the powers granted them.^ As where they proposed 
 
 * 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 na jurisdiction, 
 under the Railway Clauses Consolidation Act, to determine when accommoda- 
 tion works are necessary, but only what works are necessary, assuming that some 
 such works are to be made. Reg. v. Waterford & L. Railw., 2 Irish Law (n. s.) 
 680. See post, % 99. 
 
 In the case of Chicago, Burlington, & Quincy Railw. ». Wilson, 17 111. 123, 
 it was held, that a grant to a railway company to construct a road, with such 
 appendages as may be deemed necessarj' 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 company to take the land, and have it determined by the proper tribunal. 
 S. Carolina Railw. v. Blake, 9 Rich. 228. So also the company may take land 
 for erecting a paint-shop and lumber and timber sheds for the use of the com- 
 pany. Low V. Galena & Chicago Union Railw., 18 111. 324. 
 
 « Eversfield r. Midsussex Railw., 1 Gif. 151 ; s. c. affirined, 3 De G. & J. 286. 
 
 » Dodd r. Salisbury & Y. Railw., 1 Gif. 158 ; s. c. on appeal, 5 Jur. N. S. 782. 
 *246
 
 § 68. LAND FOB ORDINARY AND EXTRAORDINARY USES. 245 
 
 to alter the course of the road, in such a manner as to accommodate 
 an adjoining land-owner, in consideration of which he proposed to 
 pay a portion of the expense of the alteration, the company were 
 enjoined from making the alteration, although coming clearly 
 within their powers, if done solely for their own accommodation. 
 The ground of the injunction was, that the alteration required the 
 removal of the house of A., and the change was made partly for 
 the accommodation of B., a purpose not within the powers granted 
 the railway company. But it is incident to the grant of a railway, 
 that it may lay down as many sidings and other collateral tracks 
 as are fairly requisite * to accommodate its business.* But this will 
 not allow the company to build a branch road on a different route 
 from that embraced in its charter.* 
 
 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 the same implied power is to be extended to a railway 
 corporation, in a neighboring state, with which, by express statute, 
 railways of the state where the lands lie have the riglit to unite at 
 the line of the state,^ or to extend their road into this * state.* 
 
 ^ B. O. & M. Railw. Co. v. Smith, 47 Me. 35. A grant to cross a highway 
 will not justify running parallel to and upon it. lb. 
 
 * State V. Boston, Conconl, & Montreal Railw. Co., 25 Vt. 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 fiflccn acres of land, adjoining the terminus of 
 their road, which is of course the *' westernmost" bank of Connecticut River, 
 their bridge being all in New Hampshire except the western abutment, which 
 of necessity must rest upon Vennont 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 warraivto 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 prosecution, that there 
 existed a right in any state to confiscate or escheat lands held by a foreign cor- 
 poration. But the court repudiated the proposition, and held that the New 
 
 • New York & Erie Railw. r. Young, 38 Penn. St. 175. 
 
 * 246, 247
 
 246 EMINENT DOMAIN. CH. XI. 
 
 And for the purpose of exercising the rights conferred by their act 
 upon the company, the contractor for the execution of railway 
 works must be deemed an agent of the company.'^ 
 
 SECTION VII. 
 
 T^tle acquired hy Company. 
 
 1. Company have only right of way. 10. Law not the same in all the states. 
 
 2. Can take nothing from soil except for con- 11. Rule in Massachusetts. 
 
 struction. ' 12, 13. Land reverts to the owner. 
 
 8. Deed in fee-simple to company. 14. True rule stated. 
 
 4. For what uses may take land. 15. Conditions must be performed. 
 
 5. Right to cross railway, extent of. 16. Further assurance of title. 
 
 6. Conflicting rights in different companies. 17. Condemnation cannot be impeached. 
 
 7. 8. Rule in the American states. 18. Where public acquire fee, it will never 
 
 9. Right to use streets of a city. revert to grantor. 
 
 § 69. 1. Questions have sometimes arisen, in regard to the pre- 
 cise 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 
 
 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 question 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 Railw. v. Cowardin, 11 Humph. 
 848. 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 
 proprietors ; 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. 8. c. 36 N. H. 404. 
 
 ' Semple v. The London & Birmingham Railw., 9 Siiji. 209; s. c. 1 Railw. 
 C. 480 ; Vt. Central Railw. p. Baxter, 22 Vt. 365 ; ante, § 66 ; Lesher v. Wabash 
 Nav. Co., 14 lU. 85.
 
 § 69. TITLE ACQUIRED BY COMPANY. 247 
 
 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 cultivate the same, or 
 to dig for stone, or minerals, in the land, beyond what is neces- 
 sary for their purposes in construction. 
 
 2. In England, the statutes^ give all such minerals to the * for- 
 mer owner of the land, except such as are necessary in con- 
 struction, unless the same shall have been expressly purchased. 
 And in this country, no doubt, the same construction would 
 be adopted, in regard to all lands taken by compulsory proceed- 
 ing.2 
 
 ' 8 and 9 Vict. c. 20, § 17. In Conn. & Pass. Railw. Co. r. Holton, 32 Vt. 
 48, it was decided, that the land-owner, after his land was legally appropriated 
 for the track of a railway, has no right to enter upon or use such land for any 
 purpose which in the least degree endangers or embarrasses its use for any pur- 
 pose for which the railway has appropriated it. And consequently the owner 
 could not enter upon the land with teams to remove turf therefrom, the effect 
 of such entry being to enhance the danger of cattle getting upon the track, and 
 to increase the dust by the passage of the cars after the sward is removed from 
 the sides of the track. And the land-owner has no right to cross the track of 
 the company at any other point than that established by the taking of the land ; 
 nor can he build a farm-crossing, unless established by law. And a railway 
 company may maintain trespass for all ■ unlawful entries and acts upon the land 
 appropriated to their use when such acts interfere with their exclusive possession. 
 8. p. in N. Penn. R. v. Rehman, 5 Am. Law Reg. N. S. 49. 
 
 • Baker r. Johnson, 2 Hill (N. Y.), 342. It was held here, that a con- 
 tractor to build a canal, who stipulated with the commissioners to find all the 
 materials necessary to the performance of the work, with stipulations in the con- 
 tract that he might use all the earth obtained by excavation, might also use the 
 stone obtained by excavating the bed of the canal across plaintiff's land, and 
 that trover will not lie for such use. Timber standing on land taken for a rail- 
 way belongs to the owner of the land, except so far as necessary for the con- 
 struction and repair of the road. Preston p. Dub. & Pacific Railw. Co., 11 Iowa, 
 16. Earth and minerals above the grade of the road may be used by the com- 
 pany, but those below belong to the owner of the land. Evans v. Ilaefner, 29 
 Mo. 141. 
 
 The condemnation of land for the construction of a railway justifies the entry 
 and necessary excavation of the soil by the company and its servants. Green 
 p. Boody, 21 Ind. 10. But stone excavated in the construction, and which is 
 not used upon any portion of the line, belongs to the owner of the land. 
 Chapin p. Sullivan Railw. Co., 39 N. H. 564. But it seems from this, and 
 from the general practice in the construction of railways, that earth or any other 
 material which is excavated upon one portion of the line may be used upon any 
 other portion, if required. 
 
 •248
 
 248 EMINENT DOMAIN. CH. XI. 
 
 3. But it admits of some question, we think, what is the precise 
 effect of a deed, in fee-simple, to a railway company. It would 
 seem, upon general principles, that the grantor should be estopped 
 from claiming any interest in the land, after the execution of his 
 deed. But it seems to be agreed, in all the books, that, to the 
 efficacy of a deed of land, it is requisite that the grantee be capable 
 of taking the estate. And if the grantee be * an alien, or a cor- 
 poration 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,^ that being all which such corpora- 
 tion 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 
 
 ^ Dean v. Sullivan Railw., 2 Foster, 316 ; United States v. Harris, 1 Sumner, 
 21. It is held in some cases, that a grant to a railway, before its incorporation, 
 is valid, not being the conveyance of a fee, and, to its operation and effect, not 
 requiring the existence of a grantee, at the time of the conveyance. Rathbone 
 V. Tioga Navigation Co., 2 Watts & Serg. 47. But it seems now to be con- 
 sidered that railway companies may acquire the absolute fee in land by purchase 
 and deed in fee-simple, and the title will remain in the company after it has 
 changed the location of its road, and ceased to use it for corporate purposes. 
 Page V. Heineberg, 40 Vt. 81. 
 
 * Arthur v. Commercial & Railroad Bank, 9 Smedes & Marshall, 394. But 
 this right to levy upon the lands of a railway company only extends to such 
 lands, however acquired, as are not required to the full exercise and enjoyment 
 of the corporate franchise. Plymouth Railw. Co. v. Colwell, 39 Penn St. 337. 
 And a canal basin is not such a legitimate incident of a railway franchise as to 
 be protected from levy, where there is no authorized canal connection. lb. 
 And town lots held by a railway company are not to be regarded as an incident 
 of the franchise, so as to pass by a mortgage of the road " with its corporate 
 privileges and appurtenances," unless directly appurtenant to the road and indis- 
 pensably necessary to the exercise of its franchises. Shamokin Valley Railw. v. 
 Livermore, 47 Penn. St. 465. 
 
 It has been held, that railway bonds were liable to levy on execution, but that 
 seems questionable. Hetherington et al. v. Hayden, 11 Iowa, 835. 
 
 In a recent case in Vermont, Hill v. Western Vermont Railw. Co., 32 Vt. 68, 
 the company, before the road was laid out or surveyed, procured a bond from 
 B. to sell them such lands owned by him as should be required for their road. 
 Their charter provided that the directors might cause such surveys of the road 
 to be made as they deemed necessary, and fix the line of the same, and that the 
 company might enter upon and take possession of such lands as were necessary 
 (or the construction of their road and requisite accommodations. The survey of 
 * 249, 260
 
 § 69. TITLE ACQUIRED BY COMPANY. 249 
 
 hold land for the procurement of materials, or for the economical 
 construction of the road.^ In a late English case,*' it was held that 
 the railway could not use land, thus conveyed, for any other pur- 
 pose than that expressed in the acts of parliament, by virtue of 
 which the company exercised their functions. 
 
 5. It has been held that, where one railway has power in their 
 act to cross another railway, there being no express permission in 
 the act for one company to take land, or for the other company to 
 sell, that the first company could not be compelled, by mandamus, 
 to purchase any of the land upon which the other road was con- 
 structed, their only claim being one for damages.' So, also, the 
 right to make a junction with a pre-existing railway, does not im- 
 ply the power to take the title to any of the lands of such railway, 
 unless that is indispensable to effect the junction, but only to enter 
 upon such lands, by way of easement, for the purpose of eflfccting 
 the junction.® 
 
 6. But where the legislature confer the power upon two railway 
 
 the road, made by order of the directors, designated certain land belonging to 
 B. as de{)ot grounds ; and the company paid him for and took the same, but 
 ntfver received any conveyance thereof from him. The plaintiff, having re- 
 covered a judgment against the company, levied his execution upon a portion 
 of this land, and brought ejectment against the company to recover possession 
 thereof. The referee, to whom the case was referred, found that a part of the 
 land embraced in the levy was never necessary to the company for railway 
 purposes, and would not become so prospectively. Field, tliat by B.'s contract 
 with the company he was not bound to convey to them any greater quantity of, 
 or estate in, his land than they required for depot accommodations ; that under 
 their charter the company could not acquire any more land, or any greater estate 
 therein, for the purposes of a road-bed or stations, than was really requisite 
 for such uses ; that the estate so requisite was not one in fee-simple, but 
 merely an easement, and was, therefore, not subject to be levied upon by the 
 creditors of the company ; that when taken for such purposes, the rule was 
 the same, whether the land was taken compulsorily by condemnation and the 
 award of commissioners, as to its extent and price, or under the agreement of 
 the parties as to one or both of these particulars ; that under their charter the 
 directors had power to lay out their road and stations as they saw fit ; and that, 
 so long as they acted in good faith and not recklessly, their decision as to 
 the quantity of land required for depot accommodations would be regarded as 
 conclusive. 
 
 * Overmyer v. Williams, 15 Ohio, 26. 
 
 * Rostock V. The North Staffordshire Railw. 3 Sm. & Gif. 283. 
 
 ' Reg. V. South Wales Railw., 13 Q. B. 988; s. c. 6 Railw. C. 489. 
 
 * Oxford, Worcester, & Wolverhampton Railw. v. South Staffordshire Railw., 
 1 Drew, 266; 8. c. 19 Eng. L. & Eq. 131.
 
 250 EMINENT DOMAIN. CH. XI. 
 
 companies to purchase corapulsorily the same piece of land, and 
 one company has taken the land and constructed their road upon 
 it, equity will enjoin the other company from proceeding to 
 take it compulsorily for their use, until the conflicting rights of 
 the companies are determined by a trial at law.^ 
 
 7. Tlie general course of decisions in this country coincides 
 * with the English common-law rule, in regard to the title acquired 
 by the public, by the exercise of the right of eminent domain, 
 that is, that no more of the title is divested from the former 
 owner than what is necessary for the public usc^*^ The owner 
 may still maintain trespass, for any injury to the freehold by a 
 stranger.i^ 
 
 8. And in regard to railways, in particular, it has been repeat- 
 edly decided in the different states, that they take only an ease- 
 ment in land condemned for their use.^^ In an important case ^ 
 in the Supreme Court of the United States, involving questions of 
 title in regard to the streets in the city of Pittsburgh, Mr. Justice 
 McLean thus sums up the general doctrine : — 
 
 " By the common law, the fee in the soil remains in the original 
 owner where a public road is established over it ; but the use of 
 the road is in the public. The owner parts with this use only ; for 
 
 » Manchester, S. & L, Railw. v. The Great N. Railw., 9 Hare, 284; s. c. 12 
 Eng. L. & Eq. 216. 
 
 '° Dovaston v. Paj-ne, 2 H. Bl. 527 ; Rust v. Low, 6 Mass. 90 ; Jackson ». 
 Rutland & Burlington Railw., 25 Vt. 151 ; 2 RoUe's Ab. 566, p. 1. 
 
 " Railroad v. Davis, 2 Dev. & Bat. 457 ; Dean v. Sullivan Railw., 2 Foster, 
 316 ; Plank Road v. Buff. & P. Railw., 20 Barb. 644; Weston v. Foster, 7 Met. 
 297. In a late case in Ohio, where the subject seems to have been examined 
 with care and study, it is laid down, as the result of the law upon the subject, 
 that only such interest as will answer the public wants can be taken ; and it can 
 be held only so long as it is used by the public, and cannot be diverted to any 
 other purpose. Giesy v. Cincinnati, Wil. &^anesv. Railw., 4 Ohio N. S. 308. 
 See also Hooker v. Utica & Minden Tump. Co., 12 Wend. 371 ; People v. White, 
 11 Barb. 26 ; Blake v. Rich, 34 N. H. 282. The title of the land-owner is thus 
 defined in this last case. The exclusive right of property in the land, in the 
 trees and herbage upon its surface, and in the minerals below it, remains un- 
 changed, subject always to the right of the company to construct and operate 
 their road, in any legally authorized mode. 
 
 " Barclay ». Howell's Lessee, 6 Pet. 498. Cases to establish the general 
 principle here announced might be multiplied to any extent. They will be found 
 extensively collected in 3 Kent, Comm. 432, and notes. By the civil law, it is 
 said, the soil of public highways is in the public, and the law of Louisiana is the 
 same. Renthorp v. Bang, 4 Martin, 97. 
 *261
 
 § 69. TITLE ACQUIRED BY COMPANY. 251 
 
 if the road shall be vacated by the public he resumes the exclusive 
 possession of the ground ; and while it is used as a highway he is 
 entitled to the timber and grass which may grow upon the sur- 
 face, and to all minerals which may be found below it. He may 
 bring an action of trespass against any one who obstructs the 
 road." 
 
 * 9. But a query is expressed here, as in many other cases, 
 whether this rule applies to the streets and thoroughfares of cities. 
 In a late case in one of the British provinces on this continent, 
 Nova Scotia, it is said to have been held, by a divided court, after 
 long debate and deliberation, that the title to land, covered by a 
 highway or street, vested absolutely in the crown, and that the 
 owner had no reversionary interest.^* 
 
 10. Some of the American cases seem to intimate a different 
 rule from that which generally prevails in reference to liighways, 
 in regard to the title acquired by railway companies." But in a 
 late case^ it was held, that the municipal authority of a city have 
 no power to grant permission to a railway company to take or 
 injure the property of a citizen ; but the companies have an implied 
 authority to make such sidetracks and continuations at the ter- 
 mini of their road as may be reasonable and necessary for the 
 transaction of their business and the accommodation of the public, 
 and may take private property for these purposes. The right to 
 
 " Koch r. Dauphin, James, 159. 
 
 '* Wheeler v. Rochester & Syra. Railw., 12 Barb. 227 ; Munger e. Tonawanda 
 Railw., 4 Comst. 349; Coster r. New Jersey Railw,, 3 Zab. 227. The New 
 York Court of Appeals, quite recently, upon elaborate examination, came to the 
 conclusion, that a deed to a railway company, granting land to it and its succes- 
 sors, conveys an estate in fee. NicoU r. New York & Erie Railw., 2 Kenian, 
 121. But see Henry r. Dubuque & Pacific Railw., 2 Clarke (Iowa), 288. In 
 De Varaigne r. Fox, 2 Blatchf. C. C. 95, it was held, that where the statute 
 conferred the right to take the fee of land, and it was taken upon compensation 
 accordingly, the court will not construe the grant as a conditional fee or usufruct, 
 leaving a possible reverter to the original proprietor, but will regard the entire 
 property as vested in the grantee for ever, and that if any right accrues to the 
 former owner in consequence of the change of the destination of the property, 
 after the continuance of the use for twenty-six years, it is an etiuitable and not a 
 legal right. 
 
 '* Protzman v. Ind. & Cin. Railw., 9 Ind. 467. What shall be a reasonable 
 extension of the track of a railway in a city beyond the depot is here discussed. 
 It seems to be more a question of fact than of law. Evansville, &c. Railw. v. 
 Dick, id. 438. 
 
 •262
 
 262 EMINENT DOMAIN. CH. XI. 
 
 use and enjoy the street is an appurtenance to the adjoining land, 
 and an injury to the appurtenance is an injury to the whole prop- 
 erty ; and as for such an injury the statute prescribes no remedy, 
 tlie land-owner must resort to his common-law remedy. 
 
 * 11. But in a late case in Massachusetts,^^ the title seems to us 
 to be explicitly and fully stated, and the only ground of distinction 
 between railways and common highways, as to the title of the land 
 taken, very intelligibly pointed out. Tlie court here say, " the 
 right acquired by the corporation, although technically an ease- 
 ment, yet requires for its enjoyment a use of the land permanent 
 in its nature and practically exclusive." 
 
 12. Hence, it seems to be admitted that, even in cases where 
 the statute provides for the taking of the fee, upon the discontinu- 
 ance of the public use, the land reverts to the former owner.^^ 
 But where a special act authorizes a municipal corporation to hold 
 the fee of the soil for the site of an almshouse, it was held that the 
 original owner and his representatives could claim no exclusive 
 interest therein, or any reversionary title thereto, after the re- 
 moval of the almshouse to another site.^^ 
 
 '® Hazen v. B. & M. Railw., 2 Gray, 674. But the company have no right to 
 do any act upon the land except what is conducive to the use of the land for the 
 purposes of their grant, of which they are the judge. Brainerd v. Clapp, 10 
 Cush. 6. In this case, Shaw, Ch. J., thus defines the title of the railway, in 
 lands taken for their use : " The railroad company are authorized to do all acts, 
 within the five rods, which by law constitute their limits, in taking away or 
 leaving gravel, trees, stones, and other objects, which in their judgment may be 
 necessary and proper to the grading and levelling of the road, in adjusting and 
 adapting it to other roads, bridges, buildings, and the like, so as to render it 
 most conducive to the public uses which the railway is intended to accomplish. 
 Whatever acts therefore are requisite to the safety of passengers on the railway, 
 to the agents, servants, and persons employed by the company, and to the safe 
 passage of travellers, on and across highways and roads connected with it, and 
 which can be done within the limits of the five rods, the company have a right 
 under their act of incorporation to do. This is embraced in the idea of taking 
 land for public use." See Chicago & Miss. Railw. v. Patchin, 16 HI. 198. 
 
 " People V. White, 11 Barb. 26 ; United States v. Harris, 1 Sumner, 21. 
 And by the repeal of a charter the lands do not revert to the former owner, but 
 the franchises of the corporation are resumed by the state, and the railway re- 
 mains public property, subject to the management and control of the state. Erie 
 & Northeast Railw. v. Casey, 26 Penn. St. 287. But see Rexford v. Knight, 
 infra. 
 
 '® Hayward v. Mayor of New York, 3 Seld. 314. So also in regard to lands 
 appropriated to the use of the state canals. Rexford v. Knight, 1 Kernan, 308. 
 •263 
 
 /
 
 § 69. TITLE ACQUIRED BT COMPANY. 258 
 
 13. In some of the cases in this country, it has been licld, that 
 it is only the residuum of title remaining in the corporation, at 
 the time a railway is discontinued, that reverts to the former 
 *owner of the land, and that, in the mean time, the company may 
 wholly defeat the reversion, by a conveyance in fee-simple ; and 
 this remarkable proposition is distinctly announced in one case,^® 
 — " Corporations have a fee-simple for purposes of alienation, 
 but they have only a determinable fee for purposes of enjoy- 
 ment." 
 
 14. If it were said that corporations, created for special pur- 
 poses of intercommunication, like railways and canals, and invest- 
 ed with the sovereign prerogative of eminent domain for these 
 purposes only, had no mterest, or estate, in lands whatever, except 
 
 • for the mere purpose of carrying on the functions with which they 
 were invested by the state, and could neither use nor convey the 
 lands, to be used for any other purpose whatever, it would seem 
 far more in accordance with established principles and generally 
 received notions upon the subject. In the same case it is said, 
 a grant to a corporation, created only for a term of years, pur- 
 porting to convey a fee, will not be construed to convey only a 
 term for years. 
 
 15. In all these cases where the title of the company depends 
 upon conditions, they must be strictly performed and strictly 
 construed.*'* 
 
 16. But where, by the law of the state, railways, upon discov- 
 ery that the title they are acquiring may prove defective, have 
 the right to take new proceedings, it was held, that the discov- 
 ery of a mortgage upon lands will justify the abandonment of 
 pending process, and instituting procedure under the section 
 which allows them to -extinguish incumbrances, on that por- 
 tion ■ required for their road.^ And the appraisal of land sub- 
 ject to an easement in the grantor, is irregular, and no title 
 passes.^ 
 
 17. After land is condemned for the use of a railway, the adju- 
 
 '• Nicol V. New York & Erie Railw., 12 Barbour, 460. See State v. Rives, 
 6 Ired. 297. 
 
 " Bangor & Piscataqua Railw. v. Harris, 8 Shepley, 533 ; Lovering r. Railw., 
 8 Watts & Serg. 459; Munger v. Tonawanda Railw., 4 Comst, 349; Carr v. 
 Geor^a Railw. & Banking Co., 1 Kelly, 624. 
 
 *» New York Central Railw. in re, 20 Barbour, 419. 
 
 " Hill c. Mohawk & H. RaUw., 3 Seld. 152. 
 
 •254
 
 254 EMINENT DOMAIN. CH. XI. 
 
 dicatioii can no more be impeached by any collateral * proceeding, 
 or by evidence, than the judgment of any other court of exclusive 
 jurisdiction.*'^ 
 
 And it was held, under the Pennsylvania statute,^ that after 
 the award of land damages, and payment of the money, the 
 company become the owners of the land, notwithstanding the 
 pendency of a certiorari to remove the case into the Supreme 
 Court.26 
 
 18. Where the Commonwealth of Pennsylvania, in the construc- 
 tion of her public works, acquired the fee-simple of land taken 
 therefor, either by purchase or the right of eminent domain, and 
 the land was devoted to the use of a highway, a cessation of that 
 use does not revest the title in the former owner.^ 
 
 ^ Hamilton v. Annapolis & Elk Ridge Railw., 1 Md. Ch. 107. 
 
 " Stat, of 1829, § 15. 
 
 " Schuler v. Northern L. Railw., 3 Whar. 555 ; ante, § 65 ; post, § 73. 
 
 ^ Haldeman v. Penn, R. Co., 60 Penn. St. 425. See also as to proceedings 
 under Lateral Railroad Acts of Pennsylvania, Brown v. Peterson, 40 Penn. St. 
 373 ; Boyd v. Negley, id. 377 ; Mayor, &c. of Pittsburgh v. Penn. R. Co., 48 id. 
 365. It seems scarcely necessary to state that the final judgment of condemna- 
 tion and the payment of the award vests in the company the absolute right to 
 use the land embraced in the judgment for all their legitimate purposes. Dodge 
 V. Burns, 6 Wise. 614; Bums v. Milw. & Miss. Railw. Co., 9 Wise. 450. 
 And the acceptance of the value of the land by the land-owner, however the 
 amount may have been ascertained, is an acquiescence in the taking, as much 
 as if he had conveyed the land by deed. lb. The party cannot accept the amount 
 of an award of damages, and also appeal therefrom. Miss. & Mo. Railw. Co. v. 
 Byington, 14 Iowa, 572. But where by mutual submission the land-owner and 
 railway company referred the amount of damages to be paid by the company to 
 arbitrators, who awarded the amount to be paid for the title conveyed simul- 
 taneously, which the company offered to do on their part, but the land-owner 
 declined to perform on his part, or to give any encouragement of ever doing, 
 but many years after brought an action against the company for not performing 
 the award, it was held he could not recover. Smith v. Boston & Maine Railw., 
 6 AUen, 262. 
 
 •266
 
 §70. 
 
 CORPORATE FRANCHISES CONDEMNED. 
 
 255 
 
 •SECTION VIII 
 
 Corporate Franchises condemned. 
 
 1. Roadjirttnekue may be taken. 
 
 2. Compenaation mutt be made. 
 
 8. Railway Jranchite may be taken. 
 
 4. Rule defined. 
 
 6. Conatitutionai 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. Exdusiveness of the grant, a subordinate 
 
 firanchiae, 
 
 12. Legislature cannot create a franchise, 
 
 above the reach of eminent domain. 
 18. Legislature may apply streets in city to 
 any public use. 
 
 § 70. 1. The franchise of a turnpike, or bridge, or other similar 
 •corporation may be taken for a free road, or for a railway, which, 
 as we have said, is an improved highway.^ And it will make no 
 difference that tlie franchise is situate partly within the limits of 
 different states, as in the case of a bridge across a river which 
 forms the divisional line between different states. But the pro- 
 ceedings in one state can only take what lies within its limits.^ 
 
 2. But compensation, either for the entire franchise, which is 
 the more common course, and ordinarily the only just mode of 
 procedure, or for the special injury, must be made.^ But it is no 
 objection to the validity of an act of the legislature, allowing a 
 railway to carry its track across the land of a mill-dam company, 
 incorporated by the legislature, that it contains no express pro- 
 vision for compensation to such mill-dam company. This is im- 
 plied, as in other cases, where land is taken.^ And the same 
 implication has been held to extend to the case of a subsequent 
 grant of a railway, which materially depreciated the use and value 
 of a prior grant of a bridge.* But it is the more commonly re- 
 ceived opinion, tliat a subsequent grant, which only incidentally 
 
 ' Armington r. Barnet, 15 Vt. 745; West River Bridge v. Dix, 6 How. 
 U. S. 507 ; 8. c. 16 Vt. 446 ; White River Turnpike Co. r. Vermont Cen- 
 tral Railw., 21 Vt. 694; Boston Water Power Co. r. Boston & Worcester 
 Railw., 23 Pick. 360 ; Central Bridge Corporation c. City of Lowell, 4 Gray, 
 474. 
 
 • Crosby r. Hanover, 36 N. H. 404. 
 
 ' West River Bridge c. Dix, supra ; Boston Water Power Co. r. Boston & 
 Worcester BmIw., supra. But see 11 Leigh, 42. 
 
 ♦ Boston Water Power Co. r. Boston & Worcester Railw., supra. 
 
 » Enfield ToU Bridge Co. t. The Hartford & New H. Railw., 17 Conn. 464; 
 8. c. 17 Conn. 40. 
 
 *266
 
 256 EMINENT DOMAIN. CH. XI. 
 
 operates injuriously to an earlier one, does not require compensa- 
 tion to be made for such injury, unless expressly so provided.^ 
 
 3. So also may the franchise of one railway be taken for the 
 construction of another railway .-^ 
 
 4. In a late case the law upon this subject is thus stated, by 
 Shaw, Ch. J. : " The court are of opinion; that it is competent 
 * for the legislature, under the right of eminent domain, to grant 
 authority to a railway corporation, to take a highway longitudi- 
 nally in the construction of their road. The power of eminent 
 domain is a high prerogative of sovereignty, founded upon public 
 exigency, according to the maxim, Salus reipuhlicce lex suprema est, 
 to which all minor considerations must yield, and which can only 
 be limited by such exigency. The grant of land for one public 
 use must yield to that of another more urgent." ^ 
 
 5. The great question of the inviolability of corporate franchises, 
 which we shall have occasion to discuss more at large hereafter,^ 
 is, no doubt, to a certain extent, involved here. For, upon general 
 principles of legislative authority, there could be no question that 
 a corporation, which is the mere creature of the legislature, might 
 be, at once and unconditionally, extinguished, by repeal of the 
 charter. This is confessedly within the power of the legislative 
 authority of the British parliament ; and the legislative authority 
 of the parliament of Great Britain is no more extensive than that 
 of the legislatures of the American states, aside from restrictions 
 contained in the constitutions of the United States, and of the 
 several states.^'' 
 
 6. The only limitation upon this power over private corpora- 
 tions, in most of the states, perhaps in all, is found in that pro- 
 vision of the United States constitution which prohibits the legis- 
 latures of the several states from passing any law impairing tlie 
 
 * White River Turnpike Co. r. Vermont Central Railw., 21 Vt. 59-i. 
 
 ' Grier, J., in Richmond Railw. v. Louisa Railw., 13 How. 81, 82 ; Newcastle 
 & R. Railw. r. P. & Ind. Railw., 3 Ind. 464. 
 
 * Springfield v. Conn. River Railw., 4 Cush. 63. See also upon the general 
 subject, Chesapeake & Ohio Canal Co. v Baltimore and Ohio Railw., 4 Gill & 
 Johns. 1; Forward c. Hampshire & Hampden Canal Co., 22 Pick. 462, where 
 the prior company is held bound by acquiescence in the transfer of its franchises 
 to another company. Irvin v. Turnpike Co., 2 Penn. 466 ; Rogers v. Bradshaw, 
 20 Johns. 735 ; Backus v. Lebanon, 11 N. H. 19. 
 
 » Post, § 231. 
 
 >» Dartmouth College v. Woodward, 4 Wheat. 618. 
 *257
 
 § 70. CORPORATE FRANCHISES CONDEMNED. 267 
 
 obligation of contracts. And the proper limits of this restriction, 
 in regard to corporations, is not altogether well defined, in the 
 different opinions of the several judges of the supreme national 
 tribunal upon this subject ; nor is there any thing approaching 
 unanimity among them. 
 
 7. But it may perhaps be regarded as settled, for the time at 
 least, that where exclusive privileges are conferred upon private 
 •corporations, by express words, or necessary implication, the 
 grant is irrevocable and inviolable. But that the grant of any 
 privilege or franchise carries no implied exclusion, of similar 
 privileges and franchises being conferred upon other persons, natu- 
 ral or corporate.^ 
 
 8. The legislature may in all instances determine, when and 
 where the public necessities require additional facilities, of a 
 similar or analogous character, where the former grant is not 
 exclusive." 
 
 9. And in some cases of exclusive and perpetual grants, for 
 common highways or bridges, it has been held, that this did not 
 preclude the legislature from granting railways and railway bridges 
 within the limits of the former grant.^ In the last case referred 
 to, the court held, that a perpetual grant of a toll-bridge across 
 the Cape Fear River, which in terms subjected all persons to a 
 penalty for transporting persons or property across that river in 
 any other manner, within six miles of the plaintiff's bridge, would 
 not subject the defendant's company to the penalty for carrying 
 persons and property across the river, upon their road, by means 
 of a bridge erected within the six miles ; that the grant was in- 
 tended to be exclusive only, as to all modes of travel and trans- 
 portation then known, but not to exclude all improvements thereon, 
 in all future time.^ 
 
 10. But the exclusive character of a corporate grant will not 
 preclude the power to take the franchise, upon makhig compen- 
 
 " Charles River Bridge r. Warren Bridge, 11 Pet. 420; Thorpe v. Rut. & 
 Bur. Railw., 27 Vt. 140; Boston & Lowell Railw. v. Salem & Lowell Railw., 
 2 Gray, 1; Mohawk Bridge Co. v. Utica & Sch. Railw., 6 Paige, 654; Hudson 
 & Delaware Canal Co. v. New York & Erie Railw., 9 Paige, 323. 
 
 " McRee c. Wilmington & Raleigh Railw., 2 Jones Law, 186. But see 
 Enfield Bridge Co. v. Hartford & New H. Railw., 17 Conn. 40, 454. 
 
 '^ But this distinction is certainly not attempted to be maintained, in the 
 majority of the cases upon this subject, either in England or in this country. 
 Post, § 231 d seq. 
 
 17 •258
 
 258 EMIMENT DOMAIN. CH. XI. 
 
 sation, under the right of eminent domain, the stipulation in the 
 charter, that the grant shall be exclusive of all others, beir.g sub- 
 ject to the same law as other property, whether in possession or 
 action ; all which is confessedly subject to the exercise of the right 
 of eminent domain, by the sovereign." 
 
 * 11. It has sometimes been characterized, as a refinement or 
 an invasion, to identify the covenant, in the charter of a private 
 corporation, that the grant shall be exclusive of all others, with 
 the charter itself, and thus subject it to the law of eminent do- 
 main. But it seems to us entirely a sound view, in all cases 
 where the whole franchise of the corporation is proposed to be 
 taken, and that the charge of refinement is rather to be laid at 
 the door of such as attempt to raise a distinction between the 
 exclusiveness of the grant and the grant itself, in order to pre- 
 serve the inviolability of the former, which is the lesser and sub- 
 ordinate franchise, when the latter, and paramount, and vital 
 franchise of a corporation is confessedly subject to the law of 
 eminent domain. ^^ 
 
 12. It is intimated in "West River Bridge Company v. Dix, by 
 Woodbury, J., that if the charter of the corporation contained an 
 express stipulation against the exercise of the right of eminent 
 domain upon the corporation, this might secure the franchise. 
 But this is certainly not the prevailing opinion. ^^ 
 
 " Enfield ToU Bridge Co. v. Hartford & New Haven Railw., 17 Conn. 
 40 and 454. This doctrine has been so repeatedly asserted in all the courts of 
 the country, that it seems scarcely requisite to multiply references. And the 
 right to take the franchise of another corporation, by parity of reason, carries 
 the right to impair another franchise to any extent, upon making indemnity. 
 Matter of Kerr. 42 Barb. 119. 
 
 '* West River Bridge Co. v. Dix, 16 Vt. 446; 8. c. 6 Howard (U. S.), 
 507, 539, Opinion of Woodbury, J. : who argues that it is difficult to compre- 
 hend why the exclusiveness of the grant to a private corporation should, upon 
 principle, be any more inviolable by legislative authority than any other part 
 of the corporate franchise. It is only as property that it is valuable, or that 
 it is protected at all. And all property is, in cases of proper necessity, subject 
 to the law of eminent domain. It is very questionable whether this law should 
 be held to extend to those portions of public works which may always be obtained 
 in the market, and where, by consequence, there is no practical necessity. 
 
 *^ In regard to the right of eminent domain, it seems now to be conceded, that 
 no legislature, upon any consideration or pretence whatever, can deprive a future 
 legislature of its exercise, in the absolute annihilation of corporate franchises, 
 upon just and adequate compensation. In Backus v. Lebanon, UN. Hamp. 
 19, Parker, Ch. J., says: "Had the charter contained an express stipulation, 
 • 259
 
 § 70. CORPORATE FRANCHISES CONDEMNED. 259 
 
 * 13. The fee of the streets of a city, where it has been acquired 
 by the municipality under the right of eminent domain, * becomes 
 
 that the property of the corporation should never be taken, in the exercise of 
 the power of eminent domain, the question would at once have arisen, whether 
 it was competent for any legislature to make a contract of that character; 
 whether any legislature has authority, by contract, to lay restrictions upon this 
 power." And reference is here made to Piscataqua Bridge v. New Hampshire 
 Bridge, 7 N. Hamp. 35, 69, as containing the views of the court upon the 
 subject. See also Brewster v. Hough, 10 N. Hamp. 138 ; Northern Kailw. v. 
 Concord & Claremont Railw., 7 Foster, 183, 195. 
 
 The remarks of the late Professor Greenleaf, in his edition of Cruise, vol. 2, 
 tit. 27, § 29, in note, p. 67, 68, upon this important subject, seem altogether 
 worthy of commendation, and their insertion here will require no apology. " But 
 in regard to the position, that the grant of the franchise of a ferry, bridge, turn- 
 pike, or railroad, is in it^ nature exclusive, so that the state cannot interfere with 
 it by the creation of another similar franchise, tending materially to impair its 
 value, it is with great deference submitted, that an important distinction should 
 be observed between those powers of government which are essential attributes 
 of sovereignty, indispensable to be always preserved in full vigor, such as the 
 power to create revenues for public purposes, to provide for the common defence, 
 to provide safe and convenient ways for the public necessity and convenience, 
 and to take private property for public uses, and the like, and those powers 
 which are not thus essential, such as the power to alienate the lands and other 
 property of the state, and to make contracts of service, or of purchase and sale, 
 or the like. Powers of the former class are essential to the constitution of 
 society, as without them no political community can well exist ; and necessity 
 requires that they should continue unimpaired. They are intrusted to the legis- 
 lature to be exercised, not to be bartered away ; and it is indispensable that 
 each legislature should assemble with the same measure of sovereign power which 
 was held by its predecessors. Any act of the legislature, disabling itself from 
 the future exercise of powers intrusted to it for the public good, must be void, 
 being in effect a covenant to desert its paramount duty to the whole people. It is 
 therefore deemed not competent for a legislature to covenant, that it will not 
 under any circumstances open another avenue for the public travel within certain 
 limits, or a certain term of time ; such covenant being an alienation of sovereign 
 powers and a violation of public duty. 
 
 " But if, in order to provide suitable public ways, the state has availed itself 
 of private capital, and secured its reimbursement by the grant of a charter of in- 
 corporation, with the right to take tolls for a limited period ; and the public ne- 
 cessity should afterwards require the creation of another way, the opening of 
 which would diminish the profits of the first, and so prevent the corporators from 
 receiving the compensation intended to be secured to them; the state, thus 
 sacrificing the private property of the corporation for public uses, would un- 
 questionably be bound, as a sacred moral duty, to make full indemnity therefor 
 in some other mode. 
 
 " All those grants of franchises, therefore, which are in derogation of the 
 essential attributes of sovereignty above mentioned, are to be construed strictly ; 
 
 • 260, 261
 
 260 EMINENT DOMAIN. CH. XI. 
 
 a public trust for general public purposes, and is under the unqual- 
 ified control of the legislature, and any legislative appropi iation 
 of it to public use is not to be regarded as the appropriation of 
 private property, so as to require compensation to the city or 
 municipality to render it constitutionaLi' The mere possibility 
 
 and nothing is to be taken by implication. It was on this ground that .the case 
 of the Warren Bridge was decided. The legislature had granted a charter for 
 the building of the Charles River Bridge, with the right of receiving tolls, and 
 upwards of forty years afterwards, the public exigency requiring another and 
 free avenue between the same places, an act was passed authorizing the erection 
 of the Warren Bridge, a few rods from the former, the opening of which, as a 
 natural consequence, reduced the tolls of the former to a very small amount. And 
 this act was held to be not unconstitutional. Charles River Bridge r. Warren 
 Bridge, 11 Peters, 420, cited, and its reasoning affirmed, in Butler v. Pennsyl- 
 vania, 10 How. (U. S.) 402; Woodfolk v. Nashville, &c. Railw. Co., 1 Am. 
 L. Reg. 520. [See also Matter of Hamilton Avenue, 14 Barb. Sup. Ct. 405 ; 
 Illinois and Michigan Canal v. Chicago and R. I. Railw. Co., 14 111. 314; 
 Rundle v. The Delaware and R. Canal Co., 14 How. (U. S.) 80; 13 ib. 71 ; 10 
 ib. 611, 541 ; Shorter v. Smith, 9 Ga. 517.] 
 
 " The learned chancellor Kent, in a note appended to the case of 11 Pet. 420, 
 deeply regrets that decision, concurring in the opinion of Mr. Justice Story, who 
 dissented from it. But against the weight of the opinion of this great judge may 
 be placed that of the late Chief Justice Marshall, the writer having been in- 
 formed, as a fact within the personal knowledge of the informant, that the chief 
 justice held the charter of Warren Bridge constitutional, upon the first argument 
 of the cause ; and that it was on account of this division of the bench that a 
 second argument was ordered, which he did not live to hear. And it is worthy 
 of notice, in this connection, that Mr. Justice Story, in delivering his dissenting 
 opinion in the same term, in the case of Briscoe v. The Bank of the Common- 
 wealth of Kentucky, 11 Pet. 328, supports it by referring to a similar opinion 
 held by the late chief justice, upon the former argument of that cause ; while in 
 the case of Warren Bridge no such support is invoked ; doubtless for the reason 
 that it could not be had. 
 
 " The state being bound in good faith, as already stated, to make full and 
 complete indemnity to individuals, whose private rights, in the exercise of its 
 eminent domain, it has been obliged to sacrifice for the general good, the ques- 
 tion is reduced to the mode of compensation ; whether actual payment of the 
 damages must precede or accompany the act of the state ; or whether the indi- 
 vidual ought to have at least a compulsory remedy at law ; or whether the pledge 
 of public faith is a sufficient security. On this subject various opinions are held. 
 See 2 Kent, Comm. 338-440, and note (c) on p. 339, 5th ed. ; 11 Pet. 471, 472, 
 642, 643 ; The People v. White, 4 Law Rep. (n. s.) 177." See also, to the same 
 effect, the opinion of Mr. Justice Orier, of the United States Circuit Court, in 
 Milnor v. The New J. Railw., 6 Law Reg. 6, 7 ; and Crosby v. Hanover, 20 Law 
 Rep. 646 ; 8. c. 36 N. H. 404. 
 
 " People V. Kerr, 27 N. Y. 188. See also Philadelphia & Reading RaUw. v. 
 City of Phikdelphia, 47 Penn. St. 826.
 
 §71. 
 
 COMPENSATION. — MODE OP ESTIMATING. 
 
 261 
 
 of reverter to the original owner, or his heirs or * grantees, is not 
 regarded in such cases as any appreciable interest requiring to be 
 compensated.^" 
 
 SECTION IX. 
 
 Compensation. — Mode of Estimating. 
 
 1. General inquiry simple. 
 
 2. Remote damage and benefits not to be con' 
 
 sidered. 
 8. General rule of estimating compensation. 
 4. Prospective damages assessed. 
 6. In some states txdm " in moneif " it re- 
 
 quired. 
 6, 7. Damage and ben^ts cannot be eonsid- 
 
 ered 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. 
 
 11. Items of damages not indispensable to be 
 
 stated. 
 
 12. In contracts for land statutory privileges 
 
 must be stated to be secured. 
 18. Questions of doubt referred to experts. 
 14. Speci(d provisions as to crossing streets 
 
 only permissive. 
 16. In an award of farm accommodations, 
 
 time of the essence of the award. 
 
 § 71. 1. The inquiry in regard to what compensation shall be 
 made, for land taken for public works, would, on the face of it, 
 seem to be a very simple one. One would naturally suppose the 
 value of the land taken or the damage sustained, to be the fair 
 measure of compensation, and that there could be no serious diffi- 
 culty in ascertaining the amount. 
 
 2. But in consequence of numerous ingenious speculations in 
 regard to possible advantages and disadvantages arising from the 
 public works, for which lands are taken, the whole subject has 
 become, in this country especially, involved in more or less uncer- 
 tainty. All the cases seem to concur in excluding mere general 
 and public benefit, in which the owner of land shares in common 
 with the rest of the inhabitants of the vicinity, from being taken 
 into consideration in estimating compensation. 
 
 3. It has been said, the appraisers are not to go into conjectural 
 and speculative estimations of consequential damages,^ but * con- 
 
 ' Meachatn v. Fitchburg Railw., 4 Cush. 291 ; Upton r. South Reading Branch 
 Railw. Co., 8 Cush. 600 ; Albany N. Railw. Co. ». Lansing, 16 Barb. 68 ; Canan- 
 daigua & N. Railw. v. Payne, 16 Barb. 273 ; Greenville & C. Railw. Co. r. 
 Partlow, 5 Rich. 428; White r. Charlotte & S. C. Railw. Co., 6 Rich. 47; 
 A. & S. Railw Co. V. Carpenter, 14 Illinois, 190; Symonds v. The City of Cin- 
 cinnati, 14 Ohio, 147 ; Brown v. Cincinnati, id. 541 ; Mclntire v. State, 6 
 
 • 262, 263
 
 262 EMINENT DOMAIN. CH. XI. 
 
 fine themselves to estimating the value of the land taken to the 
 owner. This is most readily and fairly ascertained, by determin- 
 ing the value of the whole land, without the railway, and of the 
 portion remaining after the railway is built. The difference is the 
 true compensation to which the party is entitled.^ 
 
 4. But the appraisers are to assess all the damages, present and 
 prospective, to which the party will ever be entitled, by the prudent 
 construction and operation of the road.^ 
 
 Blackford, 384 ; State v. Digby, 5 Blackf. 543 ; James River & Kanawha Co. 
 V. Turner, 9 Leigh, 313 ; SchuylkiU Co. v. Thobum, 7 Serg. & R. 411. A jury 
 may take into the account, in estimating the damages, the effect the construction 
 of the railway will have in diminishing deposits of sediment, which had been 
 made by a river, in high water flowing upon the land and greatly enriching it. 
 Concord Railw. v. Greeley, 3 Foster, 237. And the deterioration of the adja- 
 cent parts of the same land, (but which are not taken,) either for agriculture, or 
 sale for building lots ; by risk from fire, care of family and stock, inconvenience 
 caused by embankments, excavations, and obstructions to the free use of build- 
 ings, is to be taken into the account, in estimating damages. Somerville & E. 
 Railw. V. Doughty, 2 Zab. 495. The increase or decrease in the price of the 
 remaining land, and the expense of fencing, are to be taken into the accoimt, in 
 assessing compensation. Greenville & Columbia Railw. v. Partlow, 5 Rich. 428. 
 The value <>(' the land taken, considering its relation to the land from which it is 
 severed, is to be given, and such further sum as the incidental injury to the land 
 not taken, from the construction of the road, exceeds the incidental benefits. 
 Nashville Railw. v. Dickerson, 17 B. Mon. 173, 180. Louisville & Nash. Railw. 
 V. Thompson, 18 id. 735. 
 
 * Troy & Boston Railw. v. Lee, 13 Barb. 169, 171 ; Matter of F. Street, 17 
 Wend. 649 ; Canal Co. v. Archer, 9 Gill & J. 480 ; Parks r. City of Boston, 15 
 Pick. 198 ; Somerville Railw. v. Doughty, 2 Zab. 495. But no account is to be 
 taken, in estimating land damages, of the benefit the railway may have been 
 to other property of the plaintiff, disconnected with that taken. Railw. ». Gil- 
 son, 8 Watts, 243 ; but see Columbus, P. & I. Railw. v. Simpson, 4 Law Reg. 
 696 ; s. c. 5 Ohio N. S. 251 ; Rochester & Sy. Railw. ». Budlong, 6 How. Pr. 467 ; 
 Sater v. B. & Mt. PI. Railw., 1 Clarke, 386. The value of the land, at the time 
 of trial, or at any time subsequent to the construction of the work, cannot be 
 referred to in determining the benefits conferred upon that portion of the land 
 not taken. Ind. Central R. v. Hunter, 8 Lid. 74. 
 
 ^ Dearborn v. Boston, Concord, & Montreal Railw. Co., 4 Foster, 179. Clark 
 V. Vt. & Canada Railw., 28 Vt. 103. The expense of fencing is to be included 
 in the estimate of land damages, Winona & St. Peter Railw. Co. v. Denman, 
 10 Minn. 267. The matter of estimating land damages to the owner of a farm, 
 a portion of which is taken for the construction of a railway, is discussed very 
 much in detail and with a very considerate regard to the equitable interests of 
 all parties in the case of Robbins ». Milw. & Hor. Railw. Co., 6 Wis. 636. 
 Damages done to mill property in lessening the advantages of the water-power.
 
 § 71. COMPENSATION. — MODE OF ESTIlfATTNO. 263 
 
 * 5. Some of the state constitutions in terms provide, that com- 
 pensation for private property, taken for public use, shall be made 
 " in money," and many eminent jurists have strenuously main- 
 tained that compensation, to the extent of the value of the land 
 taken, must always be made in money, and that no deduction can 
 be made, on account of any advantage which is likely to accrue to 
 other property of the owner, by reason of the public work, for 
 which the property is taken.* Such accidental advantages to the 
 portion of land not taken as drainage by means of cuts in the soil 
 from grading the railway cannot be taken into account.^ 
 
 6. In a late case in Vermont the court held, that taking land 
 for a public highway is not appropriating it to public use, within 
 the meaning of the constitution of that state, which requires com- 
 pensation in such cases to be made " in money," but that this 
 provision only applies, where the fee of the land is taken ; and 
 that where an easement only is taken for the purpose of a high- 
 way, and the remaining land is worth more than the whole * was 
 before the laying out of the road, the party is entitled to no com- 
 pensation.* 
 
 present and prospective, should be taken into the account in estimating land 
 damages. Dorian r. E. Br. & Waynesburg Railw. Co. 46 Penn. St. 620. 
 
 * 2 Kent, Coram. 7th ed. 394 and note ; Jacob r. The City of Louisville, 9 
 Dana, 114; The People v. The Mayor of Brooklyn, 6 Barb. (S. C.) 209. But 
 this last case was subsequently reversed in the Court of Appeals. 4 Comst. 
 419 ; Rice c. Turnpike Co., 7 Dana, 81 ; Woodfolk v. N. & C. Railw., 2 Swan, 
 422. In this case, it was said, benefits to the remaining land may be set off 
 against injury, but the party cannot be compelled to apply such benefits towards 
 the price of his land. Railway r. Lagarde, 10 Louis. Ann. 150. Under such a 
 provision in the constitution of Ohio, it was held, that in assessing damages, the 
 jury had no right to take into consideration the fact, that the value of the land 
 had been increased by the proposal, or construction of the work. Giesy v. Cin. 
 Wil. & Zanesv. Railw., 4 Ohio N. S. 308. General benefits resulting from the 
 erection of a railway, to all who own property in the vicinity, are not to be taken 
 into the account, in estimating land damages ; and it was doubted if special 
 benefits, accruing to the remainder of the land, could be so taken into account. 
 Little Miami Railw. r. CoUett, 6 Ohio N. S. 182. Pacific Railw. v. Chrystal, 25 
 Mo. 644. 
 
 * Evansville & C. Railw. v. Fitzpatrick, 10 Ind. 120; Same r. Cochran, id. 
 660. 
 
 * Livermorc v. Jamaica, 23 Vt. 361. This case has been questioned. 1 
 Bennett's Shelford on Railways, 441. See also Reitcnbaugh r. Chester Valley 
 Railw., 21 Penn. St. 100. CoiUra, McMahon ». Cincinnati Railw., 5 Ind. 413; 
 3 id. 543. Benefits arising to the owner of the land " by the construction of the 
 road" held not to have reference to the whole work, but to tliat particular 
 
 • 264, 265
 
 264 EMINENT DOMAIN. CH. XI. 
 
 7. This is certainly not in conformity with the general course 
 of decision upon this subject. It is the only case, probably, where 
 an attempt is made to escape from such a constitutional provision, 
 in this manner. Some will doubtless regard it as too refined to 
 be sound. And if it is true, as is sometimes claimed, that the 
 legislature had no right to resume the fee of land for highways 
 and railways, such a constitutional provision, with such a construc- 
 tion, would have little application to the taking of land for such 
 uses.'^ 
 
 portion which runs through the party's land. Milwaukee & "Mis. R. v. Eble, 4 
 Chand. 72. An act which provides for setting off the advantages to other land 
 against the value of the land taken, is not, on that account, unconstitutional. 
 McMasters r. Commonwealth, 3 Watts, 292. But it has very often been held, 
 that such accidental advantages, especially where they are not peculiar to the 
 particular land-owner, cannot be set off against the specific value of the land 
 taken. State v. Miller, 3 Zab. 383 ; Woodfolk v. Nash. & Ch. Raflw., 2 Swan, 
 422 ; Hill v. M. & H. Railw., 5 Denio, 206 ; Keasy v. Louisville, 4 Dana, 154 ; 
 Sutton V. Louisville, 5 Dana, 28; People r. Mayor of B., 6 Barb. 209. But 
 many cases hold the contrary. People v. Mayor of BrookljTi, 4 Comst. 419, 
 where s. c. 6 Barb. 209, is reversed; Rexford v. Knight, 15 Barb. 627. But 
 where profits are to be taken into the account, the title to have them considered 
 obtains, at the time the servitude is located. Palmer Co. r. FerriU, 17 Pick. 58. 
 Benefits by increase of business and population, markets, schools, stores, and 
 other like improvements, cannot be considered, in estimating damages, for flow- 
 ing land, by a miU-dam. lb. 
 
 Li a recent case in if ew Hampshire, petition of the Mount Washington Road 
 Company, 35 N. H. 134, it was decided, that in assessing damages for land taken 
 for a turnpike, or free highway, compensation is to be given for the actual value 
 of the land taken, without regard to any speculative advantages or disadvantages 
 to the owner from the making of the highway. See Cushman v. Smith, 34 Maine, 
 247. But in Indiana Central Railw. v. Hunter, 8 Lid. 74, the same rule is 
 adopted, as in the case first cited in this note. And in Whitman f. Boston & 
 Maine RaUw., 7 Allen, 313, it was decided, that in estimating the damages to 
 land by reason of the location of a railway across it, and the filling up of a canal 
 in which the owner of the lot had a privilege, if the value of the lot is so en- 
 hanced, that what remained was worth more than the whole lot was before, the 
 owner has no claim for damages. S. P. in the s. c, 3 Allen, 133. But the 
 benefits to be deducted from the value of land taken must accrue to the remain- 
 ing land, and not to all land in the same vicinity. Winona & St. Peter Railw. v. 
 Waldron, 11 Minn. 515. 
 
 ' Hatch r. Vermont Central Railw. Co., 25 Vt. 49 ; Reitenbaugh v. Chester 
 Valley Railw., 21 Penn. St. 100. Contra, Little Miami Railw. r. Naylor, 2 Ohio 
 N. S. 235. And in a case in Mississippi, Brown r. Beattj', 34 Miss. 227, 
 where the constitution required "compensation first to be made" for land taken, 
 it was held the provision secured to the owner the right to receive the cash value 
 in money, and, in addition, full indemnity for all damages by means of severance.
 
 §71. COMPENSATION, — MODE OP ESTIMATING. 265 
 
 * 8. The English statute provides, that, in estimating compen- 
 sation for land damages " regard shall be had not only to the land 
 taken, but also to damage, by reason of severance from other 
 lands, or otherwise injuriously affecting sucli lands." There are, 
 too, in the English statute, provisions for compensation to sundry 
 subordinate interests in lands, as to lessees for years, and to 
 tenants from year to year. And also in regard to mines. The 
 company are not entitled to mines or minerals under lands, except 
 such parts as shall be necessary to use in the construction of the 
 road, unless expressly purchased. It has been held that stone got 
 from quarries are minerals,® and that mijies are quarries, or places 
 where any thing is dug.* By the English statute, * the company 
 may remove or displace gas or water pipes, makhig compensatiou 
 to all parties injured. 
 
 9. And where commissioners appraise the damages upon the 
 basis of the railway making and maintaining certain works for the 
 accommodation of the land-owner, as a culvert and waste-way, etc., 
 it was held this portion of the award was not void, but if acquiesced 
 in by the company, and the land taken, and compensation made 
 
 and that no enhanced value of the portion of land not taken could be taken into 
 the account. See also Branson v. Philadelphia, 47 Penn. St. 329. 
 
 Ilenrj- r. Dubuque & Pacific Railw. Co., 10 Iowa, 540. It is said in one case, 
 what is verj- nearly a truism, that corporate existence and the right of eminent 
 domain can only be derived from legislative grant, and that both must be shown 
 to justify talcing lands compulsorily, and also compliance with all conditions 
 of the grant, Atkinson v. Marietta & Cin, Railw. Co., 16 Ohio N. S. 21. Post, 
 §76. 
 
 The dedication of land to the use of a street will not authorize the legislature 
 to appropriate it to the use of a railway track without compensation to the 
 owner, and, if this is attempted, it may be restrained by injunction, Schurmeier 
 e. St, Paul & P. Railw., 10 Minn. 82. 
 
 ' Micklethwait v. Winter, 6 Exch, 644 ; 8, c, 6 Eng. L. & Eq. 626. 
 
 • Hodges on Railways, 288, note (y) . ■ The more common mode of estimating 
 land damages unquestionably is, to give the company the specific benefit caused 
 to land, a portion of which is taken, in the enhancing the value of the same, and 
 only to allow the land-owner such a sum as will leave him as well off in regard 
 to the particular land as if the works had not been built, or his land taken. This 
 is done by giving the land-owner a sum equal to the difference between what the 
 whole land would have sold for before the road was built, and what the remain- 
 der will sell for after the construction. Harvey v. Lack, & Bloomsburg Railw,, 
 47 Penn. St. 428. But this rule will, in many cases, prove entirely inadequate 
 and unsatisfactory, and where it has been adopted it may be regarded as only 
 extending to other cases of a very similar character. Win. & St, Peters' Railw., 
 V. Denman, 10 Minn, 267. 
 
 • 266, 267
 
 266 EMINENT DOMAIN. CH. XI. 
 
 upon that basis, they thereby become bound by its provisions.^'' 
 But where it was referred to arbitration to estimate the damages 
 caused to the plaintiff, and the company by the express terms of 
 its charter was bound to make suitable crossings for the accom- 
 modation of land-owners through whose land the right of way was 
 taken, and the land-owner told the agents of the company, at the 
 hearing before the arbitrators, that he should require a crossing 
 to be provided for his convenience ; and the agents claimed that 
 the arbitrators had nothing to do with this matter, and that claim 
 was acquiesced in by the arbitrators and the parties, and the award 
 only embraced the damage to the land, and subsequently the land- 
 owner was induced to convey to the company the right of way, 
 without annexing a condition binding the company to maintain a 
 crossing for his accommodation ; upon the assurance of the counsel 
 of the company that such deed would not affect his right to claim 
 a crossing, it was held, upon a bill to reform the deed and to 
 establish his right to the crossing, that he was entitled to the relief 
 sought, and an injunction was granted accordingly.^ 
 
 But where a private way crossed the line of railway obliquely, 
 and the award of land damages only indicated the point at which 
 the company were to supply a crossing, it was held a sufficient 
 compliance witli the obligation of the company to give a crossing 
 at right angles, although this did not connect with the termini 
 of the road or afford any access to it.^ 
 
 10. In some of the states in this country, the advantages and 
 disadvantages of taking land for a railway are required to be 
 stated in the report of appraisal, and the omission to make such 
 * specific statement was held a fatal omission .^^ So, too, where 
 
 »° Morse, Petitioner, 18 Pick. 443. 
 
 " Green v. Morris & Essex Railw. Co., 1 Beasley, 165. 
 
 " Mann v. Great S. & W. Railw. Co., 9 Ir. Com. L. Rep. 105. 
 
 " Ohio & Pennsj-lvania Railw. v. Wallace, 14 Penn. St. 245 ; Reitenbangh r, 
 Chester Valley Railw., 21 Penn. St. 100; R. R. Co. r. Gilson, 8 Watts, 243; 
 Zack r. Penn. Railw. Co., 25 Penn. St. 394. But it has been held, in some cases, 
 where the advantages resulting to the land-owner were to be taken into the ac- 
 count, that the value of the land need not be stated separately from the damage, 
 in an award of arbitrators, but only the amount of the whole injury. At all 
 events, such amendments will be allowed, as to cure such defects. Greenville & 
 Columbia Railw. v. Nunnamaker, 4 Rich. 107. 
 
 Questions have sometimes been made, in regard to which pairty, in proceed- 
 ings of this character, is entitled to go forward, in the proofs and argument. 
 Upon principle, and in analogy to similar proceedings upon other subjects, we 
 •268
 
 §71. COMPENSATION. — MODE OF ESTIMATING. 267 
 
 additional expense of fencing is allowed in improved land, the 
 report must specify that fact." 
 
 * 11. But in general there is no discrimination made in the report 
 estimating damages for taking land for public works, between the 
 value of the land appropriated and the incidental injury from 
 severance and otherwise ; and unless specially required by the 
 charter of the company or some other legislative act, such discrim- 
 ination does not seem indispensable to the validity of the report, 
 but would unquestionably, in the majority of cases, tend to render 
 the report more satisfactory.^* 
 
 think there can be little doubt this right is with the land-owner, in the proceed- 
 ings before the jury and the commissioners or arbitrators, where he is to all 
 intents actor. But after having obtained an award, it has been more usual, in 
 practice, to allow the excepting party to go forward. 1 Greenleaf's Ev. §§ 76, 
 77 ; Connecticut River Railw. c. Clapp, 1 Cush. 559 ; 8. c. 1 Am. Railw. C. 450 ; 
 Mercer v. WhaU, 5 Q. B. 447. 
 
 But see Albany N. Railw. Co. v. Lansing, 16 Barb. 68, where the court say, 
 ♦' The commissioners have the right and power to exercise their own discretion 
 in reference to the order that they take in appraising the land. They may view 
 the land first and hear the proofs and allegations afterwards, or vice versa. So 
 whether one party or the other should first be heard, is for them to determine. 
 Having decided that the railway corporation might open and close the hearing, 
 the defendant was concluded by their decision, as also would their decision have 
 been conclusive on the company had the same privilege been awarded to the 
 owner of the land." But where the error in the exercise of this discretion does 
 manifest wrong, at nisi jyritts, the verdict will be set aside for this reason alone 
 in the full bench. 1 GreenleaTs Ev. 104 and note, § 76. 
 
 But awards of land damages have been set aside for excessive damages. 
 Somerville & Easton Railw. v. Doughty, 2 Zab. 495. But this subject was 
 somewhat considered in Troy & Boston Railw. v. Lee. 13 Barb. 169 ; Same v. 
 Northern Turnpike Co., 16 Barb. 100; and it was held that such award should 
 not be set aside, unless it appeared that the commissioners erred in the principles 
 by which their judgment should be guided, or were clearly mistaken in the appli- 
 cation of correct principles. This is putting them much upon the same ground 
 as awards in other cases. And in Walker, r. Boston & Maine Railw., 3 Cush. 1, 
 it was held, that the common pleas, to whom the verdict of a sheriff's jury is to 
 be returned, and who may set the same aside, for any good cause, were justified 
 in doing so, for irregularity in impanelling the jury ; or in the conduct of the 
 jurj- ; or in the instructions given the jurj' by the sheriff; or for facts affecting 
 the purity, honesty, or impartiality of the verdict ; such as tampering with the 
 jury or other misconduct of the party ; or any irregularity or misconduct of 
 the jurors. But in a court of error the verdict can only be set aside for error 
 appearing of record. But see § 72, post ; Nicholson v. New York & New Haven 
 Railw., 22 Conn. 74. 
 
 '* New Jersey Railw. v. Suydam, 2 Harrison, 25. 
 
 '* Trenton Water Power Co. v. Chambers, 2 Beasley, 199. 
 
 •269 
 
 \
 
 268 EMINENT DOMAIN. CH. XT. 
 
 12. In contracts between railway companies and land-owners, 
 in regard to farm accommodations, if the company desire to retain 
 any special distinction conferred by statute, they must incorporate 
 the statute, either in terms or by reference, into the contract. 
 Otherwise the company will be held strictly to the terms of the 
 contract as applied to the subject-matter.^^ 
 
 13. Where there is any controversy in regard to the mode of 
 crossing highways and turnpikes by railway companies, the court 
 will refer the matter to men of experience and skill in such ques- 
 tions.i'^ 
 
 14. A permission in a railway charter to cross a street or high- 
 way by a level crossing, by making a bridge over the street for the 
 accommodation of foot passengers, is not peremptory upon the 
 company. They may still be permitted to cross the street other- 
 wise than on a level on their undertaking to abide by any order 
 the court might make as to damages.^* 
 
 15. Where land is sold to a railway company upon condition of 
 furnishing such farm accommodations as the land-owner should 
 notify- to the company within one month, time is regarded as of 
 the essence of the condition, and if notice is not given within 
 the time limited the court will neither order the company to 
 make such accommodations as are demanded, or even such as are 
 proper.i^ 
 
 " aarke v. M. Sh. & L. Railw. Co., 1 Johns. & H. 631. 
 
 " Atty.-Genl. v. Dorset Railw. Co., 3 Law T. N. S. 608, 
 
 " Dover Harbor v. L. C. & Dover Railw. Co., 7 Jur. N. S. 453. 
 
 '» Darnley t\ London, Chatham, & Dover Railw. Co., 3 De G., J. «& S. 24; 
 8. c. 11 Jur. N. S. 520; s. c. 9 id. 148, where the Vice-Chanoellor decided 
 otherwise.
 
 §72. 
 
 MODE OF PROCEDURE. 
 
 269 
 
 •SECTION X. 
 
 Mode of Procedure. 
 
 1. Legislature may prescribe. 
 
 2. Must be ufxm proper notice. 
 
 3. Formal exceptions waived, by appearance. 
 
 4. Unless exception is upon record. 
 6. Prof>er parties, those in interest. 
 
 6. Title may be examined. 
 
 7. Plaintiffs must show Joint interest. 
 
 8. Jury mayjind facts and refer title to the 
 
 court. 
 
 9. Ixmd must be described in verdict. 
 
 10. Distinct finding on each claim. 
 
 11. Different interesU. 
 
 12. What evidenee competent. 
 18. Proof of value of land. 
 14. Opinion of witnesses. 
 
 15. Testimony of experts. 
 
 16. Matters incapable of description. 
 
 17. CoeU. 
 
 18. Expenses. 
 
 19. Commissioners' fixt. 
 
 20. Appdlant failing must pay costs. 
 
 21. Competency of jurors. 
 
 22. Power of court to revise proceedings. 
 
 23. Debt will not lie on conditional report. 
 
 24. Excessive damages ground of setting aside 
 
 verdict. 
 Note. Other matters of practice. 
 
 25. No effort to agree required in order to give 
 
 jurisdiction. 
 
 § 72. 1. It seems to be universally admitted, that where the 
 organic law of the state does not prescribe the mode of procedure, 
 in estimating land damages, for the use of a railway company, 
 or other public work, it is competent for the legislature to pre- 
 scribe the mode, and that the mode, so prescribed, must be strictly 
 followed.^ 
 
 2. Tims, it has been held, that notice in writing to the owner 
 of the land to be taken, its situation and quantity, must be given.^ 
 But the form of the notice, or whether signed by the company, or 
 by the commissioners, is not important.^ And it is requisite, not 
 only that proper notice should be given, but that it should appear 
 upon the face of the proceedings that the particular notice re- 
 quired, by the statute, was given.* But in general, we apprehend, 
 if it appears upon the proceedings that * notice was given to the 
 land-owner, it might, upon general principles, be presumed it was 
 the notice required. 
 
 ' Bonaparte r. C. & A. Railw., Bald. C. C. R. 205; Bloodgood p. M. & H. 
 RaUw., 14 Wend. 61 ; 8. c. 18 id. 9; s. c. 2 Am. Railw. C. 416. 
 
 * Vail r. Morris & Essex Railw., 1 Zab. 189. But the notice to appoint com- 
 missioners need not describe the land, it is held in other cases. Doughty v. 
 SomerviUe & Easton Railw., id. 442. 
 
 ' Ross p. Elizabethtown & Somerrille Railw., Spencer, 280. 
 
 * Van Wickle v. Railw. Co., 2 Green, 162. See abo Bennet «. Railw., id. 
 145. 
 
 • 270, 271
 
 270 EMINENT DOMAIN. CH. XI. 
 
 3. But merely formal exceptions to the mode of procedure, and 
 the competency of the triers, in such cases, must be taken at the 
 earliest opportunity, where there is an appearance, or they will be 
 regarded as waived.^ 
 
 4. And after appeal, it should appear by the record that merely 
 formal exceptions were made in the proceedings below, and over- 
 ruled, or they cannot be revised.^ So, too, where the party, ex- 
 cepting to proceedings before commissioners, applies for a jury to 
 revise the assessment of damages, it will be regarded as a waiver 
 of the exceptions.^ He should have applied for a certiorari^ if he 
 intended to revise the case upon his exceptions.^ 
 
 5. In regard to the proper parties to such proceedings, almost 
 infinite variety of questions will arise. The only general rule 
 which can be laid down, perhaps, is, that those having an in- 
 terest in the question, may become parties plaintiflf, or be made 
 parties defendant, according to the character and quality of the 
 interest.^ 
 
 6. In the English courts, it has been held, that these summary 
 tribunals for estimating land damages are not to inquire into the 
 title of the claimants.^ But in some cases, in this country, it has 
 been held, that the claimant's title to the land is a * proper subject 
 of inquiry, before the jury, in estimating damages.^ And where 
 the commissioners refuse to allow the petitioner damages, on 
 
 * Fitchburg Railw. v. Boston & Maine Rallw., 3 Cush. 58 ; s. c. 1 Am. Railw. 
 C. 508 ; Walker v. Boston & Maine Railw., 3 Cush. 1 ; Pittsfield & North Adams 
 Railw. V. Foster, 1 Cush. 480 ; Field v. Vermont & Massachusetts Railw., 4 Cush. 
 150 ; Taylor v. County Commissioners, 13 Met. 449 ; Porter v. County Commis- 
 sioners, id., 479 ; Meacham v. Fitchburg Railw., 4 Cush. 291 ; Davis v. Charles 
 River Branch Railw., 11 Cush. 506. 
 
 ® Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; Ashby v. Eastern 
 Railw., 5 Met. 368; Greenwood v. Wilton Railw., 3 Foster, 261; Parker v. 
 Boston & Maine Railw., 3 Cush. 107; Mason v. Railw., 31 Me. 215; A. & St. 
 L. Railw. Co. ». Cumberland Co. Comm., 51 Me. 36. And it seems to be re- 
 garded as indispensable that parties under disability should be properly repre- 
 sented in the proceedings the same as in other suits. Hotchkiss v. Auburn & 
 Rochester Railw., 36 Barb. 600. But where a demand and tender of the value 
 of land required, together with other legal damages, are required before instituting 
 compulsorj- proceedings, the requirement cannot apply to the case of an infant, 
 whose rights will be sacred till of full age. Indiana Central Railw. Co. v. Oakes, 
 20 Ind. 9. 
 
 ' Post, § 98. 
 
 8 Directors, «&c. r. Railw., 7 Watts & Serg. 236. Allyn v. Prov. W. & B. 
 Railw., 4 Rhode Is. 457. 
 * 272
 
 § 72. MODE OF PROCEDURE. 271 
 
 account of his not being the owner of the land, this is such a final 
 decision as may be revised by a jury, and the Supreme Court will 
 allow a mandamus, if that is denied.^ 
 
 7. Parties who join must show a joint interest in the land, but 
 this need not always be shown by deed. Oral evidence is some- 
 times admissible, where one owns the fee, and others have a joint 
 interest, in consequence of erections, and the jury may properly 
 pass upon the title, as matter of fact.^'' 
 
 8. But the jury are not bound to decide upon conflicting titles, 
 but may report the facts, without determining the owner.^^ And 
 it has been held that the jury are not bound to find a special ver- 
 dict, in regard to the title of the claimant, or where there are con- 
 flicting claims, but may do so with propriety .^^ 
 
 9. The jury should describe the laud with intelligible bound- 
 aries.^ 
 
 • Carpenter c. County Commissioners of Bristol, 21 Pick. 258. The trustee, 
 and not the cestui que trust, is the proper party to such proceeding. Davis ». 
 Charles River Branch Railw., 11 Cush. 506. The title of the petitioner may be 
 inquired into, either on the return of the petition or of the report. Church v. 
 Northern Central Railw. Co., 45 Penn. St. 339. The mode of proceeding on 
 certiorari, and in other writs, is here discussed. 
 
 '" Ashby r. Eastern Railw., 5 Met. 368. So also where the land belonged to 
 a partnership, and was not needed for the payment of partnership debts, one of 
 the partners having deceased, it was held the title remained in the partners aa 
 tenants in common, and that proceedings to recover damages by reason of laying 
 a railway upon it, were properly taken in their joint names. Whitman r. Boston 
 & Maine Railw., 3 Allen, 133. 
 
 " Matter of Anthony Street, 19 Wend. 678. So, too, where one owns the 
 fee, and another has a bond for a deed, the condition of which is not yet per- 
 formed, they may join. Proprietors of Locks and Canals v. Nashua & Lowell 
 Railw., 10 Cush. 386. 
 
 ** Davidson r. Boston & Maine Railw., 3 Cush. 91 ; 1 Am. Railw., C. 534. 
 The sheriflf is bound to give the jury de&nite instructions, in regard to tlie effect 
 of a conveyance. lb. 
 
 " Vail V. Morris & Essex Railw., 1 Zab. 189. But see Philadelphia Railroad 
 e. Trimble, 4 Whart. 47. The jurj- are not to includ« in their estimate the ex- 
 pense of farm accommodations, which it is the duty of the railway to furnish. lb. 
 But if this be done, and the party have judgment on the verdict, he is bound to 
 make the erections. Curtis v. Vermont Central lUilw., 23 Vt. 613. One tenant 
 in common cannot proceed in his own name to have the damages done, by a rail- 
 way, to the common land, assessed, even where he has authority from his co-tenant 
 to do 80. Railw. c. Bucher, 7 Watts, 33. 
 
 But if the petition be signed by the lessee and the agent of the owner of 
 mines, this is a sufficient representation of the interest. Harvey v. Lloyd, 3
 
 272 EMINENT DOMAIN. CH. XI. 
 
 * 10. Where the claim for damages consists of several items, it 
 is more conducive to a final disposition of the case to siate the 
 finding upon each item. In such case any objectionable item 
 may be remitted or deducted without the necessity of a re- 
 hearing.^^ 
 
 11. But where the petition alleges several distinct causes of 
 damage, and a general verdict is rendered, if one or more of the 
 causes is insufficient, it will not be presumed the jury gave any 
 damages, on such insufficient claims, in the absence of any in- 
 structions by the sheriff in relation to them.^° But it is not neces- 
 sary to apportion the damages to several joint-owners, and a tenant 
 for life may take proceedings to obtain damages done to his estate 
 by the construction of a railway, without joining the remainder- 
 man.i^ 
 
 12. The character of the proof admitted to enable the triers to 
 learn the value of land is so various, that it is not easy to fix any 
 undeviating rule upon the subject. It seems to have been- the in- 
 tention of the courts to allow only strictly legal evidence to be 
 received, such as would be admissible in the trial of similar ques- 
 tions before a jury in ordinary cases.^'^ 
 
 13. It has been allowed to show what price the company had 
 paid by voluntary purchase for land adjoining, but in the same 
 case it was held not competent to inquire of adjoining land-own- 
 ers, who were farmers, and had occasionally bought and sold 
 * land, what was the value of their own land adjoining.^^ Nor is 
 
 Penn. St. 331. See also Shoenberger v. Mulhollan, 8 Penn. St. 134. See also 
 Cleveland & Toledo Railw. v. Prentice, 13 Ohio N. S. 373 ; Strang v. Beloit & M. 
 Railw. Co., 16 Wis. 635. It is here said that the description, by way of an 
 approximating diagram, may be sufficient without an actual survey. 
 
 " Fjtchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; s. c. 1 Am. Railw. 
 C. 608. 
 
 '* Parker ». Boston & Maine Railw., 3 Cush. 107. 
 
 " Railroad v. Boyer, 13 Penn. St. 497 ; Directors of Poor v. Railw., 7 Watts 
 & Serg. 236 ; Pittsburgh & Steuben Railw. ». Hall, 25 Penn. St. 336. In one 
 case it was said to be the duty of the commissioners to assess damages to joint 
 owners jointly. Ross v. Elizabethtown & Somerville Railw., Spencer, 230. 
 See also Colcough v. Nashville & N. W. Railw. Co., 2 Head. 171. 
 
 '^ Troy & Boston Railw. v. Northern Turnpike Co., 16 Barb. 100; Johnson^ 
 J., in Rochester & SjTacuse Railw. v. Budlong, 6 How. Pr. 467; Lincoln o. 
 Saratoga & Schenectady Railw., 23 Wend. 425, 432. ■ 
 
 '* Wyman v. Lexington & West Cambridge Railw., 13 Met. 316. But in 
 Roberts v. Knapp, 35 N. Y. 91, it was held, that farmers and residents of the 
 * 273, 274
 
 § 72. MODE OP PROCEDURE. 273 
 
 it competent to show for what price one had contracted to buy 
 land adjoining.^* Nor can the claimant prove, what the com- 
 pany have offered him for the land;** nor what the company 
 have been compelled to pay for land adjoining, which was taken 
 compulsorily.2* 
 
 immediate neighborhood are competent to fix the price of land in their vicinity ; 
 one who had been a farmer, but had changed his occupation to that of a mechanic, 
 was nevertheless held a competent witness to testify to the value of land in the 
 neighborhood.' And in Shattuck r. Stoneham Branch Railw., 6 Allen, 115| it 
 was held, that in such proceedings the land-owner, being a competent witness, 
 may testify to his opinion of the amount of damage which he has sustained, and 
 may prove recent sales of other lands in the vicinity, similarly situated, and 
 about the same time ; but he cannot give evidence of the opinions of others, as 
 to the value of other lands in the vicinity. But it is rather matter of discretion 
 with the court, whether sales of other lands were sufficiently recent, or the land 
 sufficiently like that in question, to afford aid to the jury. And on such hearing 
 the company may prove that they have located a passenger station, since the 
 hearing began, near the petitioner's land over which the railway passed. 
 
 " Chapin v. Boston & Providence Railw., 6 Cush. 422. 
 
 " Upton r. South Reading Railw., 8 Cush. 600. 
 
 " White V. Fitchburg Railw., 4 Cush. 440. Only such damages as are pecu- 
 liar to the owner of the land taken, and not those which are common to all land 
 in the vicinity, can be considered. Freedle v. North Carolina Railw., 4 Jones 
 Law, 89. It has been held that the benefits resulting to the land-owner from 
 the construction of the road are to be deducted, in estimating damages for land 
 taken for a railway ; and that consequently a statute providing for such deduc- 
 tion is not thereby rendered unconstitutional. C. P. & Ind. Railw. v. Simpson, 
 5 Ohio N. S. 261. But as the constitution of this state expressly required that 
 compensation to the land-owner should be made in all cases when land is taken 
 for public use in money, it seems scarcely consistent to say that the benefits to 
 the land-owner can in all cases be deducted, since in some cases the benefits to 
 the particular piece of land, a portion of which is taken, might more than com- 
 pensate for that which is taken, thus leaving nothing to be compensated " in 
 money." 
 
 The force of this embarrassment was felt by the court in a highway case in 
 Vermont, where the constitution requires, that " whenever private property is 
 taken for public use, the owner ought to receive an equivalent in money." The 
 court escaped from the embarrassment here by a device, which some might pos- 
 sibly regard as more ingenious than ingenuous, by saying, that as the constitu- 
 tion only applied to property " taken for public use," this could not reach cases 
 where only an easement in property was taken. The court might, with almost 
 equal propriety, have said, that the provision of the constitution " ought to re- 
 ceive," being in the optative mood, did not imply an imperative duty, as few per- 
 sons expect to obtain by process of law all which they "ought to receive," 
 Livermore v. Jamaica, 23 Yt. 861, Bec^/Uld, J. dissenting, sub silentio. Ante, 
 
 18
 
 274 EMINENT DOMAIN. CH. XI. 
 
 14. And it has been held that witnesses cannot be allowed 
 to give their opinion of the value of the land or materials 
 taken.'^ * This inquiry leads to the discussion of the general ques- 
 tion, of what matters may be proved, by the opinion of witnesses 
 who are not possessed of any peculiar knowledge, skill, or ex- 
 perience upon the subject. 
 
 15, And it must be admitted the cases are not altogether recon- 
 cilable upon the subject. Experts are admitted to express their 
 opinions, not only upon their own observation, but upon testimony 
 given in court, by other witnesses, and where the testimony is 
 conflicting, upon a hypothetical state of facts.^ The testimony of 
 such witnesses is intended to serve a double purpose, that of 
 instruction to the jury upon the general question involved, and 
 elucidation of the particular question to be considered by them.^ 
 The resort to the assistance and instruction of persons skilled 
 in particular departments of art or science is constantly adverted 
 to, as of great advantage in enabling the triers to properly com- 
 prehend those subjects out of the range of their general knowledge, 
 
 § 71, pi. 6. See also C. & P. Railw. v. BaU, 5 Ohio N. S. 668 ; Kramer v. Clev. 
 &Pittsb. Railw., id. 140. 
 
 ** Montgomery & West Point Railw. v. Varner, 19 Ala, 186 ; Concord 
 Railw. V. Greely, 3 Foster, 237; Buffum v. New York & Boston Railw., 4 
 Rh. I. 221; Cleve. & Pittsb. Railw. v. BaU, 5 Ohio N. S. 568. But the wit- 
 ness may give an opinion as to the value of the whole land, both before and 
 after the location of the road. lb. And so also in Illinois & Wisconsin Railw. 
 V. Van Horn, 18 lU. 257. See also Dorian v. E. Br. & Way. RaUw, Co,, 
 46 Penn. St. 520. In a case in Pennsylvania (East Penn. Railw. Co. v. 
 Hiester, 40 Penn. St. 53), it is said that the only proper test of the value of 
 land so taken is the opinion of witnesses as to the value of the land taken. In 
 view of its location and productiveness, its market value, or the general selling 
 price of land in the neighborhood. And this seems to us exceedingly sensible 
 and free from refinement or conceit. See also Same v. Hottenstine, 47 Penn. 
 St, 28. 
 
 ^ 1 Greenleaf Ev. § 440. Thus the testimony of persons employed in making 
 insurance of buildings against fire, may, in actions against railways for conse- 
 quential damages to buildings, by the near approach of the track, express their 
 opinion of the effect thereby produced upon the rent, or the rate of insurance 
 of such buildings. Webber v. Eastern Railw., 2 Met. 147. See also Henry v. 
 Dubuque & Pacific Railw., 2 Clarke, 288. And in the case of Brown r. Prov- 
 idence, Warren, & Bristol Railw., 6 Gray, 35, it was held, that the company 
 could not show that liquors were sold, or to be sold, upon land, as a part of the 
 inducement to pay so high a rent, or that it was " contemplfited " having a station 
 near the point ; such testimony being too indefinite and remote. 
 *276
 
 § 72. MODE OF PROCEDURE. 275 
 
 or the particular studies of judges, or jurors, in some of the 
 best-considered English cases, witliin the last few years.^ But 
 the testimony of scientific witnesses will not establish facts in 
 conflict with the axiomatic principles of science and philosophy, 
 or those which contradict the evidence of the senses, or of con- 
 sciousness.^ 
 
 * 16. But there is certainly a very considerable number of sub- 
 jects, in regard to which the jury are supposed to be well instruct- 
 ed, and altogether capable of forming correct opinions, and in 
 regard to which the testimony of experts is not competent, or not 
 requisite, but which it is more or less difficult for the witnesses to 
 describe accurately, so as to place them fully before the minds of 
 the jury, as they exist in the minds of the witnesses. Among 
 these are inquiries in regard to the extent of one's property, sol- 
 vency, health, affection, or antipathy, character, sanity, and some 
 others. In such cases the witnesses' knowledge is chiefly matter 
 of opinion, and it is impossible to enumerate each particular fact. 
 Of this character seem to us to be questions in regard to the 
 quality and value of property. One may enumerate some of the 
 leading facts upon which such an opinion is based ; but after all, 
 the testimony, as to facts, is excessively meagre, without the 
 opinion of the witness, either upon the very subject of inquiry, or 
 some one as near it as can be supposed. Hence in those courts 
 where the opinion of witnesses, in regard to the value of property, 
 real or personal, is not admitted, it leads to sundry shifts and 
 evasions, in the course of the examination of witnesses upon that 
 subject, which, while it is not a little embarrassing in itself, at the 
 same time illustrates the inconsistency, not to say absurdity, of 
 the rule.* 
 
 ** Broadbcnt c. Imperial GrU Co., 7 De G. M. & 6. 436, 466, opinion of 
 Lord Chancellor Oranworth. 
 
 * Opinion of the court in Concord Railw. r. Greely, 8 Fost. 287. " A wit- 
 ness may state what was the cost of property of a particular description at a 
 given place, in order to ascertain the value of property of a similar description. 
 Whipple r. Walpole, 10 N. H. 130. But evidence of the price for which the 
 corporation offered to sell a tract adjoining Greely's, and how much they re- 
 fused to take for it, is certainly of doubtful competency. We have held at this 
 term, in the case of Hersey r. The Merrimack County Mutual Fire Insurance 
 Company, in Merrimack county, that what the owner of a piece of real estate 
 said he would sell the same for, was competent evidence against him, as tending 
 to show its value. But that was a statement in regard to the value of the land 
 itself, while the evidence admitted here was going one step further ; it was a 
 
 •276
 
 276 EMINENT DOMAIN. CH. XI. 
 
 * 17. In regard to costs, in such proceedings, the more general 
 rule is not to allow them, unless specifically given by statute.^^ 
 
 statement in regard to other lands ; and it is quite questionable whether it could 
 have any legitimate tendency to prove the value of Greely's land. 
 
 " On questions of science, skill, or trade, or others of alike kind, experts may 
 not only testify to facts, but are permitted to state their opinions. 1 Greenl. Ev. 
 § 440. But upon subjects of general knowledge, which are understood by men 
 in general, and which a jury are presumed to be familiar with, witnesses must 
 testify as to facts alone, and the jury must form their opinions. In such cases, 
 the testimony of witnesses, as experts merely, is not admissible." 
 
 If an inquiry arose in regard to the value of a cargo of flour, it would cer- 
 tainly sound strange to hear witnesses testify what precisely similar flour is 
 worth, and at the same time be gravely told, that they were studiously to avoid 
 expressing any opinion of the value of this very flour, which they had seen and 
 examined, and in regard to which the whole testimony was received. Yet such 
 is, from necessity, the course resorted to, under the rule. The more general 
 course is, we think, to receive the opinion of witnesses, acquainted with the 
 property and the state of the market, as to the value of the particular property 
 in question. White v. Concord Railw., 10 Foster, 188. But in New Hamp- 
 shire, in a late case, it is held that the opinion of witnesses, in regard to apparent 
 health, is competent to be given ; and this seems to be yielding the main point 
 of exclusion before insisted upon. Spear v. Richardson, 34 N. H. 428. In 
 this same case the opinion of witnesses, whether a horse was sound, or had a 
 particular disease, the heaves, was excluded because the witness was not shown 
 to be an expert. We are not surprised that the judge regarded the distinction 
 as " somewhat nice." " And in Currier v. Boston & M. Railw., 34 N. H. 498, 
 it was held that a witness could give an opinion in regard to the occurrence of 
 hardpan in an excavation ; and in Hackett v. Boston, Con. & Mont. R., 35 N. 
 H. 390, it was held that a witness might express an opinion in regard to 
 distances, dimensions, and qualities. See also Roch. & Sy. Railw. v. Budlong, 
 6 How. Pr. 467. 
 
 And in Illinois & Wisconsin Railw. v. Van Horn, 18 Illinois, 257, it is held 
 that it is proper to have the opinion of witnesses in regard to the value of city 
 lots, "as they have no stated value." Skinner, J. said: "To describe to a 
 jury a piece of ground, however minutely, with its supposed adaptations to use, 
 advantages and disadvantages, and demand of them, upon this information alone, 
 a verdict as to its value, would be merely farcical ; and this, indeed, is all that 
 can be done to enable them to arrive at a conclusion as to the value, unless the 
 witnesses are allowed to state their judgment or opinion, together with the facts 
 upon which such opinion is founded. Butler v. Mehrling, 15 111. 488 ; Kel- 
 logg V. Krauser, 14 Serg. & Rawle, 137." In Cleve. & Pittsb. Railw. r. Ball, 
 6 Ohio N. S. 568, it is said, witnesses may be allowed to express an opinion as to 
 the value of the land taken, but not as to the extent of damages which the land- 
 owner will sustain by the appropriation of the land to public use, that being the 
 very question to be settled by the triers. This seems to us placing the matter 
 
 " Herbein v. The Railroad, 9 Watts, 272. 
 •277
 
 § 72. MODE OP PROCEDURE. 277 
 
 * But where the statute provides for an assessment of laud dam- 
 ages, by a jury, at the suit of the party aggrieved, tlie costs to 
 be paid by the company, this was held not to include the fees 
 of witnesses examined by tlie jury, on the part of the claimant.^ 
 
 18. But the terms " costs and expenses incurred," were held 
 to include the costs of witnesses, and of summoiung the viewers.^ 
 
 19. If the act makes no provision for compensation to the com- 
 missioners, they have no power to order the company to pay the 
 cost of their expenses and services.^ 
 
 20. But where the party whose costs are rightfully denied in 
 the Court of Common Pleas, appeals upon that question, and the 
 judgment is affirmed, he must pay costs to the other party, conse- 
 quent upon the appeal.* 
 
 21. It is no objection to the competency of a juror, in this class 
 of cases, that he had been an appraiser of damages upon another 
 railway, in the same county, or that he is a stockholder in another 
 railway which had long before acquired the lands necessary for 
 its use.^ 
 
 upon its proper basis. One must have had experience in regard to the particu- 
 lar point, as laying a railway over a wharf, in order to give an opinion of the 
 extent of the injur}' caused thereby, and it is not sufficient that he may have 
 had experience and skill in other matters pertaining to the building and opera- 
 tion of railways. Boston & Worcester Railw. v. Old Colony & F. R. Railw., 3 
 AUen, 142. The court in this case declined to set aside the verdict for land 
 damages, because testimony of the sale of upland at a considerable distance 
 from the wharf, and of the price paid four months before the time of making 
 the location, was received, and also of the number of trains passing over the 
 land taken, and of the number of vessels and amount of lumber, wood, and coal, 
 &c., coming to the wharf. 
 
 " Railroad v. Johnson, 2 Wharton, 275. 
 
 « Penn. Railroad v. Keiffer, 22 Penn. St. 856 ; Chicago & Mont, Railw. v. 
 BuU, 20 Illinois, 218. 
 
 " At. & St. L. Railroad r. The Comtaissioners, 28 Maine, 112. 
 
 *• Harvard Branch Railw. v. Rand, 8 Cush. 218 ; Commonwealth v. Bos- 
 ton & Maine Railw., 3 Cush. 56. But see § 71, note 10, ante, in regard to 
 the course of proceeding, in estimating land damages. Where the statute gives 
 an appeal, in estimating land damages, to a court of common-law jurisdiction, 
 and does not prescribe the mode of trying the appeal, it will be tried by com- 
 missioners, that being the usual course of trying cases of that class, in common- 
 law courts. And a statute requiring parties to be allowed a trial by jury, in all 
 cases proper for a jurj-, will not alter the mode of trying such appeals. Gold v. 
 Vt. Central Railw,, 19 Vt, 478, 
 
 " People r. First Judge of Columbia, 2 Ilill (N, Y,), 398, The tribunal 
 for assessing land damages should be free from interest or bias in order to meet 
 
 •278
 
 278 EMINENT DOMAIN. CH. XI. 
 
 * 22. Courts do not generally possess the power to revise the 
 assessment of land damages, by a jury or other tribunal appointed 
 by them for that purpose, upon its merits, and set it aside, upon 
 the mere ground of inadequacy, or excess of damages.^ 
 
 23. Where commissioners assessed land damages at a sum 
 named, and stated further, that the plaintiflf was to receive an 
 additional sum in a certain contingency, and the report became 
 matter of record, it was held that debt would not lie, for the 
 additional sum, upon averring the happening of the contin- 
 gency.^ 
 
 24. Where the statute gave the court a discretion, to accept and 
 confirm the inquest of land damages, or order a new inquest, " if 
 justice shall seem to require it," it was held they might set aside 
 the report for mere excess of damages, and that the Supreme 
 Court might do the same, when the proceedings are brought up by 
 certiorari.^ 
 
 the constitutional requirement for just compensation. Powers v. Bears, 12 Wis. 
 213. But see Strang v. Beloit & M. Railw. Co., 16 Wis. 635. 
 
 ^ Willing V. Baltimore Railw., 5 Whart. 460. As to what is good cause for 
 setting aside the report of commissioners, see Bennet ». Railw., 2 Green, 145; 
 Van Wickle v. Same, id. 162 ; R. & S. RaUw. r. Budlong, 6 How. Pr. 467. 
 
 In Missouri, when the report of commissioners is set aside, the court must 
 appoint a new board. Hannibal & St. Joseph Railw. Co. v. Rowland, 29 Mo. 
 837. But this rule will not apply where the report is recommitted to the same 
 board, with instructions to pursue a diflferent rule in estimating damages. lb. 
 
 " W. & P. Railroad Co. v. Washington, 1 Robinson (Va.), 67. See also 
 Dimick r. Brooks, 21 Vt. 569. 
 
 " Pennsylvania RaUw. v. Heister, 8 Penn. St., 445 ; Same ». McClure, ib. ; 
 Same v. Riley, ib. ; Same cases, 2 Am. Railw. C. 337. 
 
 OTHER MATTERS OF PRACTICE, EJ REGARD TO ASSESSING LAXD DAMAGES. 
 
 AH the commissioners must be present and act, in all matters of a judicial 
 character. Crocker v. Crane, 21 Wend. 211. In regard to the mode of select- 
 ing and impanelling juries, for assessing land damages against railways, the fol- 
 lowing cases may be referred to : Penn. Railw. v. Heister, 8 Penn. St. 445, 
 which decides, that where the statute requires the sheriff to summon the jury, 
 it is irregular for him to select them from a list prepared by his deputy. And 
 Vail V. Morris & Essex Railw., 1 Zab. 189, where it is held, that commissioners 
 appointed to value the land of E. V. upon one route, adopted by the company, 
 cannot appraise the land of the same person, when the company adopt a differ- 
 ent route, across the land. 
 
 In regard to the right of appeal, which is given in terms to the party aggrieved, 
 •279
 
 § 72. ^ MODE OP PROCEDURE. 279 
 
 • 25. It does not seem important, where the statute in terms 
 allows either party to take compulsory proceeding to assess land 
 damages upon the parties failing to agree, that there should have 
 been any previous attempt to agree, in order to give jurisdiction to 
 the courts to assess the amount of such compensation.* 
 
 it has been held to extend to the railway company, as well as the land-owner. 
 Kimball v. Kennebec & Portland Railw., 35 Maine, 255. 
 
 No appeal lies from the order of the Supreme Court, confirming the report of 
 conuuissioners on the appraisal of land damages for land taken under the gen- 
 eral railway act. The act provides for no such appeal to the Court of Appeals, 
 and the remedy, in the act, is intended to be exclusive. And besides, the 
 Supreme Court exercise a discretion, to some extent, -in confirming such reports, 
 and appeals will not, upon general principles, lie to revise such adjudications. 
 New York Central Railw. v. Marvin, 1 Keman, 276 ; Troy & Boston Railw. v. 
 Northern Turnpike Co., 16 Barb. 100. 
 
 Where the special act of a railway company required them to give the land- 
 owner ten days^ notice of the time when a jury would be drawn to assess 
 damages, it was held that a strict compliance with this requirement was indispensa- 
 ble to give jurisdiction, and that the objection was not waived by appearance 
 before the officer at the time the jury were drawn, and objecting to the regu- 
 larity of the proceedings, without stating the grounds, or by appearing before 
 the jury, when they met to appraise the damages, and objecting to one of them, 
 who was set aside. Cruger v. The Hudson River Railw., 2 Keman, 190. 
 
 Merc infonnalities in the simimons, which do not mislead the company, will not 
 avoid the proceeding. Eastham v. Blackburn Railw., 9 Exch. 758; 8. c. 25 
 Eng. L. & Eq. 498. 
 
 It is not important that the award should specify the finding upon the sepa- 
 rate items of claim. In re Bradshaw, 12 Q. B. 562. 
 
 Where the special act of a railway company prescribes a different mode of 
 procedure, in condemning land, from that recjuired by a general law of the 
 state, subsequently passed, the company may pursue the course prescribed by 
 their special act. Clarkson v. Hudson River Railw., 2 Keman, 304. But it 
 seems to be here considered, that the company may adopt the course prescribed 
 by the general act, if they so elect. And upon general principles it would seem 
 that they should do so, unless there is something in the general act by which the 
 existing railways are at liberty to proceed under their charters. This is the 
 ground of the decision in the last case. North Mo. Railw. r. Gott, 25 Mo. 540. 
 
 ^VTiere the company's special act vests specific and special powers in them, 
 for the benefit of the public (as to build stations of given dimensions larger than 
 the general act provides), it is not controlled by subsequent general acts. 
 London & Blackwall Railw. v. Board of Works, S Kay & J. 123 ; s. c. 28 Law 
 Times, 140. 
 
 In regard to the mode of proceeding in such cases, see Coster c. N. J. Railw. 
 & Tr. Co., 4 Zab. 730; Green r. Morris & Essex RaUw., id. 486; Pittsfield & 
 North Adams Railw. r. Foster, 1 Cush. 480. 
 
 » Bigelow r. Miss. Central & Tenn. Railw. Co., 2 Head, 624. 
 
 • 280
 
 280 
 
 EMINENT DOMAIN. 
 
 CH. XI. 
 
 •SECTION XI 
 
 TJie Time Compensation to he made. 
 
 1. Opinions conflicting. 
 
 2. Chancellor Kent's definition. 
 8. That of the Code Napoleon. 
 
 4. Most state constitutions require it to be con- 
 
 current icith the taking. 
 
 5. English cases do not require this. 
 
 6. Adequate legal remedy sufficient. 
 
 7. Where required, payment is requisite to 
 
 vest the title. 
 
 8. Some states hold that no compensation is 
 
 requisite. 
 
 § 73. 1. In general, railway acts require compensation to be 
 made, before the company take permanent possession of the 
 land.^ And it has even been made a question, in this country, 
 whether the legislature could give a railway company authority 
 to take permanent possession of lands, required for their use, 
 previous to making or tendering or depositing, in conformity 
 with their charter or the general law, compensation for the 
 same.^ 
 
 2. The profound and sensible author of the Commentaries on 
 American Law ^ thus states the rule upon this subject : " The 
 settled and fundamental doctrine is, that government has no right 
 to take private property, for public purposes, without giving just 
 compensation ; and it seems to be necessarily implied, tliat the 
 indemnity should, in cases which will admit of it, be previously 
 and equitably ascertained, and be ready for reception, concurrently, 
 in point of time, with the actual exercise of the right of eminent 
 domain." 
 
 3. The language of the Code Napoleon * is specific upon this 
 point : " No one can be compelled to give up his property * except 
 
 > Lands Clauses Consolidation Act, 8 Vict. c. 18, § 84, et seq. ; Ramsden v. 
 Manchester & S. J. & A. Railw., 1 Exch. 723; s. c. 5 Railw. C. 552. In 
 such cases courts of equity will enjoin the company from taking possession 
 until compensation is made, unless the owner consent. Ross v. E. T, & S. 
 Railw., 1 Green's Ch. 422. 
 
 • Thompson v. Grand Gulf Railw. Co., 3 Howard, Miss. 240. The constitu- 
 tion of this state, however, requires a previous compensation to be made. See 
 also Cushman r Smith, 34 Maine, 247. 
 
 3 2 Kent, Comm. 340 (7th ed.), 393, and note. The MUwaukee & M Railw. 
 Co. V. Eble, 4 Chandler, 72 ; Cushman v. Smith, 34 Maine, 247. 
 
 ♦ Code Napoleon, Book H. Title II. 545. 
 
 ♦ 281, 282
 
 § 73. THE TIME COMPENSATION TO BE MADE. 281 
 
 for the public good, and for a just and previous indemnity." A 
 similar provision existed in the Roman civil law. 
 
 4. It is embodied, in different forms of language, into the writ- 
 ten constitutions of most of the American states, but not generally, 
 in terms requiring the indemnity concurrently with the approprisr 
 tion. But practically that view has generally prevailed in the 
 courts.^ 
 
 • Lyon r. Jerome, 26 Wend. 485, 497; Opinion of Suiherland, J., Case v. 
 Thompson, 6 Wend 634. In this case it was held, that it was not indispensa- 
 ble to the opening of a road over the land of an individual, that the price should 
 be paid, or assessed even, before the opening of the road. And in Bonaparte r. 
 C. & A. Ilailw. Co., 1 Bald. C. C. 205, 216, it was held, that a law taking private 
 property without providing for compensation was not void, for it was said, that 
 may be done by a subsequent law. But the appropriation was enjoined, in that 
 case, till compensation should be made. See also Gardner v. The Village of 
 Newburgh, 2 Johns. Ch. 162 ; Henderson v. The Mayor, &c. of New Orleans, 5 
 Miller's Louis. 416 ; Rogers v. Bradshaw, 20 Johns. 735 ; Duncan, J., in Eakin 
 r. Raub, 12 Serg. & R. 330, 366, 372; O'Hara v. Lexington Railw., 1 Dana, 
 232 ; Hamilton r. Annapolis & Elkridge Railw. C. 1 Md. Ch. 107 ; Martin, ex 
 parit, 8 Eng. (Ark.) 198. In Bloodgood v. The Mohawk & Hudson Railw. 
 Co., 14 Wend. 51, it is held that this constitutional requirement merely con- 
 templates a legal provision for compensation, and not that such property shall 
 be actually paid for before taken. In Boynton v. The Peterboro' and Shirley 
 Railw. Co., 4 Cush. 467 ; 1 Am. Railw. C. 595, Shmc, Ch. J. says, " The right 
 to damages for land taken for public use accrues and takes effect at the time of 
 taking, though it may be ascertained and declared afterwards. That time in the 
 case of railroads, prima facie, and in the absence of other proof, is the time of 
 the filing of the location." Charlestown Branch Railw. v. Middlesex, 7 Met- 
 calf, 78; 8. c. 1 Am. Railw. C. 383; Davidson ». Boston & Maine Railw., 3 
 Cush. 91. 
 
 In Massachusetts the remedy is limited to three years by statute, and the time 
 begins from the filing of the location. Charlestown Branch Railw. v. County 
 Commissioners of Middlesex, 7 Met. 78 ; 8. 0. 1 Am. Railw. C. 383. So where a ' 
 corporation, after locating a railway over a wharf more than sixt)' feet, and 
 filing the location with the county commissioners, agreed with the owners of the 
 wharf to extend the road sixty feet on and over the same before a certain day, 
 and the owners, in consideration, agreed to demand no damages for the extension, 
 and the road was constructed according to the location filed before the agreement. 
 Held, that this was not an agreement not to extend the road more than sixty feet, 
 and that the owners of the wharf were not thereby entitled to apply, after three 
 years from the filing of the location, for an estimate of the damages caused by an 
 extension of the road more than sixty feet over the wharf. lb. By the New York 
 statute of 1851, railway companies have no right to enter upon, occupy, or cross 
 a turnpike or plank road without consent of the owners, except on condition of 
 first making compensation for damages to such turnpike or plank road company. 
 Plank Road Co. r. Buffalo, &c. Railw. Co., 20 Barb. 644.
 
 282 EMINENT DOMAIN. CH. XI. 
 
 * 5. It was held in one case,* where the act of parliament gave 
 the right to take lands for the purpose of building a turnpike- 
 
 Shaw, Ch. J., in Boston & Providence Railw. Corporation v. Midland Railw. 
 Co., 1 Gray, 340, 360, says: "The effect of the location is to bind the land 
 described to that servitude, and to conclude the land-owner and all parties hav- 
 ing derivative interests in it from denying the title of the company to their ease- 
 ment in it. We think, therefore, that the filing of the location is the taking of 
 the land. It is upon that the owner is forthwith entitled to compensation, it is 
 that act which gives the easement to the corporation and the right to have dam- 
 ages to the owner of the land." See, also, Drake v. Hudson River Railw., 7 
 Barb. 508, 552. 
 
 In those states, where the constitutions contain express provisions requiring a 
 previous compensation to the right to appropriate the land, as in Pennsylvania, 
 Wisconsin, Kentucky, and Mississippi, the decisions upon this point would not 
 be much guide, in regard to the general rule, in the absence of any express pro- 
 vision of the kind. But see Harrisburg v. Crangle, 3 Watts & Serg. 460. 
 
 And in some of the states, even where a concurrent right to compensation, 
 with the appropriation of the land, is recognized, it seems to be considered by 
 some that a statute, authorizing the appropriation of land for public uses, and 
 which makes no provision for compensation, is not on that account unconstitu- 
 tional. Opinion of the Chancellor in Rogers v. Bradshaw, 20 Johns. 735. 
 
 But the prevailing opinion, even in Xew York, seems to be, that the statute 
 shoidd provide some available remedy for adequate compensation, and that un- 
 less that is done, the act, if not positively unconstitutional, is so defective, that 
 no proceedings should be suffered under it, until compensation is secured, and 
 that a court of equity should interfere. Gardner ». Newburgh, 2 Johns. Ch. 
 162 ; Rexford p. Knight, 1 Keman, 308 ; Willyard v. Hamilton, 7 Ham. 449 ; 
 Rubottom V. McClure, 4 Blackf. 505 ; McCormick v. Lafayette, Smith (Indi- 
 ana), 83; Mercer v. Mc Williams, Wright, 132. 
 
 Some cases have made a distinction (in regard to the necessity of a previously 
 ascertained compensation being made and so situated as to be capable of being 
 made available to the owner of land, concurrently with its appropriation to pub- 
 lic use) between ordinary cases and that class of cases where the property is 
 put to the use of the state directly, and that in such cases it is not indispensable. 
 Young V. Harrison, 6 G«o. 130. 
 
 And the grant of the right to bridge a navigable river, or arm of the sea, or 
 to obstruct the flow and reflow of the tide upon the flats of private persons, al- 
 though it may abridge their beneficial use, is not such an invasion of private 
 property as to entitle the party to compensation. It is but the regulation of 
 public rights, and if private persons thereby suffer damage, it is damnum absque 
 it\}uria. Davidson v. Boston & Maine Railw., 3 Cush. 91. See, also, upon the 
 
 * Lister r. Lobley, 7 Ad. & Ellis, 124, Lord Denman says : " The amount of 
 compensation cannot generally be ascertained till the work is done. The effect 
 of the words in question is that they shall not do it without being liable to make 
 compensation." It seems to have been supposed here, that if the company did 
 not make compensation they might be conipeiled to do so by mandamus. 
 •283
 
 § 73. THE TIUE COMPENSATION TO BE MADE. 283 
 
 *road, making, or tendering satisfaction, that this need not 
 be done before, or at the time of entering upon or taking the 
 lands. 
 
 C. But this subject was largely discussed, in an early case in 
 New York," and finally determined by the court of errors * reversing 
 
 subject generally, Zimmerman v. Union Canal Co., 1 Watts & S. 346 ; Phila- 
 delphia & Reading Railw. v. Yeiser, 8 Penn. St. 866 ; 2 Am. Railw. C. 325 ; 
 Commonwealth v. Fisher, 1 Penn. 462, and ante, § 68. 
 
 But it is very generally held, that in the absence of all express provision by 
 statute in regard to the time when compensation shall be made, the party is at 
 all events entitled to have it ascertained and ready for his acceptance, concur- 
 rently with the actual appropriation of the estate to public use, and that he is not 
 obliged to wait till the work is completed. People v. Ilayden, 6 Hill (N. Y.), 
 359 ; Baker v. Johnson, 2 Hill, 342. 
 
 But no right to compensation vests in the land-owner till the acceptance and 
 confirmation of the appraisal by the proper tribunal, under any statutory pro- 
 visions, in most of the American states, and until that, the company may change 
 the location of their road, and abandon proceedings pending against land-owners, 
 on the first surveyed route, by paying costs already assessed. Hudson River 
 Railw. V. Cutwater, 3 Sandf. Sup. Ct. 689. 
 
 And where the statute of the state provides that no valuation of property 
 taken for railway and canal purposes need bo made before taking possession of 
 the same, in those cases where the property is not obscured, so that its value 
 cannot be judged of, it was held there should be no unreasonable delay in having 
 the valuation made. Compton r. Susquehannah Railw., 3 Bland. Ch. 386. 
 
 ^ Bloodgood r. M. & H. lUilw. Co., 14 Wend. 51 ; 8. c. 18 id. 9, 59. See, 
 also, upon this subject, Fletcher v. Auburn & Syracuse Railw., 25 Wend. 462; 
 Smith c. Helmer, 7 Barb. 416; Pittsburgh v. Scott, 1 Penn. St. 309; People v. 
 Michigan Southern Railw., 8 Gibbs, 496. In this case it is said the party who 
 makes no application for compensation for many years should be regarded as 
 having waived all claim. Id. p. 606. See, also. Smith r. McAdam, 3 Gibbs," 
 506. And where the statute provided for depositing the value of the land taken 
 before entrj* upon it, it was held this was a provision for the security of the land- 
 owner, and might be waived by him ; and if so, and entrj- was made by the com- 
 pany without making the deposit, he might recover the assessment in an action 
 of debt. Smart v. Railway, 20 N. H. 233. But in one case it was held indis- 
 pensable to the validity of the power, that the party, whose land was taken 
 should have something more than a right of action for the value of his land. 
 Shepardson r. M. & B. Railw., 6 Wisconsin, 605. See Powers c. Bears, 12 id, 
 213; Ford v. Ch. & N. W. Railw. Co., 14 id. 609. 
 
 And by the construction of the statute of Maine, a railway corporation, as soon 
 as their track is located, may take immediate possession, and the land-owner, 
 failing to agree with the company, as to the amount of damages may apply to 
 the courts to have the same assessed, and thereupon the company are required 
 to pay or give security for the same, and their right of possession is suspended 
 until the requirement is complied with ; but no action of trespass lies in such 
 
 • 284, 285
 
 284 EMINENT DOMAIN. CH. XI. 
 
 the judgment of the court below, that if provision was made for 
 compensation in the act, giving power to take the lands, it was not 
 indispensable that the amount should be actually ascertained and 
 paid before the appropriation of the property. 
 
 7. In Mississippi it is required, by the constitution of the state, 
 that the compensation be paid before the right to use the land is 
 vested.^ So also in Georgia the title does not vest in the * company 
 until the ascertained compensation is paid or tendered.^ A similar 
 decision was made by the Supreme Court of the United States,^^ 
 where the charter of the company provided that the payment, or 
 tender, of the valuation, should vest the estate in the company, as 
 
 cases. Davis v. Russell, 47 Me. 443. Where by statute a bond is required to 
 be filed by the company to secure damages to the land-owner, upon failure of 
 the parties to agree upon the amount, such bond extends to all the lawful dam- 
 age caused to the owner by the construction of the company's works ; and the 
 fact of its being approved and ordered to be filed is presumptive proof that the 
 parties had failed to agree. Wadhams v. Lackawanna & Blooms. Railw. Co., 
 42 Penn. St. 303. 
 
 But in most of the states the assessment of the damages due to the land-owner, 
 and the payment, tender, or deposit of the same, is held a condition precedent 
 to the right of entry upon the land, and the company entering before this will, 
 prima facie, be regarded as trespassers. Memphis & Charleston Railw. Co. v. 
 PajTie, 37 Miss. 700 ; Henry v. Dubuque & Pacific Railw., 10 Iowa, 640 ; Evans 
 V. Haefner, 29 Mo. 141 ; Burns v. Dodge, 9 Wis. 458. 
 
 In McAulay v. Western Vermont Railw. Co., 33 Vt. 311, it was decided 
 that the payment of land damages was a condition precedent to the acquiring of 
 title by a railroad company of lands taken for their road. But that where the 
 land-owner acquiesces in the occupation of his land for the construction of a 
 railway without prepayment of land damages, upon a contract or understanding 
 for future pajTnent by the company, and the road is constructed and put in oper- 
 ation, he cannot afterwards, on failure to obtain payment, maintain trespass 
 or ejectment for the land. And whether, under such circumstances, he would 
 still retain an equitable lien on the land, seems doubtful. The mere prosecution 
 of a controversy by the land-owner with the company, before commissioners or 
 on appeal, as to the amount of the damages, is not such a prohibition of the tak- 
 ing of the land by the company without prepa^Tnent of land damages as is neces- 
 sary to enable the land-owner to maintain trespass or ejectment for the land after 
 the road is put in operation. Nor will notice to the laborers on the railway 
 employed by the contractor be considered as suflicient to entitle the land-owner 
 to maintain trespass or ejectment against the company, the company not being 
 affected by such notice. 
 
 * Stewart v. Raymond Railw. Co., 7 Smedes & M. 668. See also Thomp- 
 son r. Grand Gulf Railw., 3 Howard (Miss.), 240. 
 
 ' Hoe r. The Georgia Railw. Banking Co., 1 Kelly, 524. 
 
 '" Baltimore & Susquehanna Railw. Co. v. Nesbit, 10 How. 395. 
 *286
 
 § 73. THE TIME COMPENSATION TO BE MADE. 285 
 
 fully as if it had been conveyed. And a similar decision was also 
 made by the Supreme Court of Vermont." 
 
 8. In one case in North Carolina,^ it was held that compensa- 
 tion need not be made prior to appropriating land for public use. 
 The constitution of the state is said to contain no prohibition 
 against taking private property for public use, without compensa- 
 tion. And the same is true of the constitution of South Carolina. 
 And the latter state held ^* that private property might be taken 
 without compensation. But this decision is certainly at variance 
 with the generally received notions upon that subject, since the 
 period of the Roman Empire. 
 
 " Stacey r. Vermont Central Railw. Co. 27 Vt. 39. The opinion of Isham, 
 J., in this case, will show the correlative rights of the company and land-owner, 
 and by what act the right of each becomes perfected. Where the statute re- 
 quires the company to contract in writing, it is not competent to show title in 
 any other mode, unless by formal conveyance. Harborough v. Shardlow, 2 
 Railw. C. 253 ; 7 M. & W. 87. In Graff p. The City of Baltimore, 10 Md. 644, 
 it was held, under a statute for enabling the city to supply pure water, and 
 to take land upon valuation by a jur}*, and compensation to the owners, and 
 that where "such valuation is paid, or tendered, to the owner or owners" of 
 the property, it " shall entitle the city to the use, estate, and interest in the 
 same, thus valued, as fully as if it had been conveyed by the owners ; " that the 
 city is not bound by the mere inquisition and judgment thereon, but could right- 
 fully abandon the location ; and that payment, or tender, under the statute, was 
 indispensable to the vesting of the title. But it was held, that the city may be 
 made liable, in another form of proceeding, to the land-owner, for any loss or 
 damage he may have sustained, by reason of the conduct of the municipal author- 
 ity in the premises. 
 
 " R. & G. Railw, Co. ». Davis, 2 Dev. & Bat. 461. But in New Jersey it 
 was held that the 8uper\'isors, in laying out roads, are bound to award damages 
 to land-owners, with their return, or the whole proceeding is illegal and void. 
 State p. Garretson, 3 Zab. 388. 
 
 " State V. Dawson, 3 Hill, (S. C), 100. In this case Mr. Justice Richard- 
 son dissents from the decision of the court, and it is generally allowed that his 
 opinion contains the better law. His argument, in the language of the author of 
 the Commentaries, vol. 2, ubi supra, "was very elaborate and powerful." See 
 Louisville Railw. Co. r. Chappell, 1 Rice, 383 ; Lindsay r. The Commissioners, 
 2 Bay, 38.
 
 286 
 
 EMINENT DOMAIN. 
 
 CH. XI. 
 
 ♦SECTION XII 
 
 Appraisal includes Consequential Damages. 
 
 1. Consequential damage barred. 
 
 2. Such as damage, by blasting rock. 
 
 3. But not where other land is used unneces- 
 
 sarily. 
 
 4. But loss byjires, obstruction o/ access, and 
 
 cutting offsprings, is barred. 
 
 5. Loss by flowing land not barred. 
 
 6. Damages, from not building upon the plan 
 
 contemplated, are barred. 
 
 7. Special statutory remedies reach such dam- 
 
 ages. 
 
 8. Exposure of land to fires. 
 
 9. No action lies for damage sustained by the 
 
 use of a railway. 
 
 § 74. 1. It is requisite that the tribunal appraising land dam- 
 ages, for lands condemned for railways, should take into considera- 
 tion all such incidental loss, inconvenience, and damage, as 
 may reasonably be expected to result from the construction and 
 use of the road, in a legal and proper manner. And as all tribu- 
 nals, having jurisdiction of any particular subject-matter, are 
 presumed to take into consideration all the elements legally con- 
 stituting their judgments, such incidental loss and damage will 
 be barred, by the appraisal, whether in fact included in the esti- 
 mate or not. 
 
 2. Hence damage done by the contractors to the remaining 
 land, by blasting rocks, in the course of construction, has been 
 held to be barred, as included in the estimated compensation for 
 the land taken. ^ 
 
 * Dodge V. The County Commissioners, 3 Met. 380 ; Sabin v. Vermont Cen- 
 tral Railw., 25 Vt. 363; Dearborn v. Boston, Concord, & Montreal Railw., 4 
 Foster, 179, 187 ; Wbitehouse v. Androscoggin Railw., 52 Me. 208. But in Hay 
 V. Cohoes Company, 2 Comst. 159, the defendants, a corporation, dug a canal 
 upon their own land, for the purposes authorized by their own charter. In so 
 doing, it was necessary to blast rocks, and the fragments were thrown against 
 and injured the plaintiff's dwelling, upon land adjoining, and it was held the de- 
 fendants were liable to a special action for the injury, although no negligence or 
 want of skill was alleged or proved: and in Tremain r. Cohoes Company, 
 2 Comst. 163, a precisely similar action, it was held that evidence to show the 
 work done in the most careful manner was inadmissible, there being no claim for 
 exemplary damages. 
 
 But there is probably an essential difference between the case of a railway, in 
 the construction of wliich blasting rocks is almost indispensable, and that of a 
 manufacturing company, or other proprietor, who may find it convenient to blast 
 rocks ui>on his premises, to increase their utility' or beauty. But for doing what 
 the act does not authorize, or doing what it does authorize, improperly, a raU- 
 •287
 
 § 74. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 287 
 
 * 3. But it was held that this did not preclude the land-owner 
 from recovering damages for using land adjoining the land taken 
 
 way company is liable to an action. Turner v. Sheffield & R. Railw., 10 M. & 
 W. 425. 
 
 In Carman r. Steubenville & Ind. Railw., 4 Ohio N. S. 899, it seems to be taken 
 for granted, that throwing fragments of rook, by blasting, upon the land of ad- 
 joining proprietors, is an actionable injur}*, and as in this case it was done by the 
 contractor in the performance of his contract, in the manner stipulated, the com- 
 pany were held liable. 
 
 The result of the cases would seem to be, that where the damage done, by 
 blasting rocks, or in any similar mode, in the course of the construction of a rail- 
 way, is done to land, a portion of which is taken by the company under compul- 
 sory powers, this damage will not lay the foundation of an action, in any form, as 
 it should be taken into account in estimating the compensation to the land-owner 
 for the portion of land taken. Brown v. Prov., Warren, «& Bristol Railw., 6 
 Gray, 35. And if not included in the appraisal, it is nevertheless barred. Dodge 
 V. County Commissioners, aupra. 
 
 But if the damage is done to land, no part of which is taken, and where no 
 land of the same owner is taken, it may be recovered, under the statute, if pro- 
 vision is made for giving compensation for consequential damage, or where lands 
 are *' injuriously affected." But if the statute contain no such provision, the only 
 remedy will be by a general action. And in this view many of the cases cited 
 above seem to assume, that blasting rocks, by an ordinary proprietor of land, is 
 a nuisance to adjoining proprietors if so conducted as to do them serious damage. 
 And this is the ground upon which the case of Carman v. Stubenville & Ind. 
 Railw. is decided, without much examination of this point, indeed, and by a 
 divided court. But if a railway is not liable for necessarj- consequential damage, 
 unless the statute gives a remedy (post, § 76), it may perhaps be questioned how 
 far a recovery could be maintained, in a general action for damage done by 
 blasting rocks, as that is confessedly within the range of their powers. See 
 opinion of Shaw, Ch. J., in Dodge v. County Commissioners, 3 Met. 380: " Aa 
 authority to construct any public work carries with it an authority to use the 
 appropriate means. An authority to make a railway is an authority to reduce 
 the line of the road to a level, and for that purpose to make cuts, as well through 
 ledges of rock as through banks of earth. In a remote and detached place, 
 where due precaution can be taken to prevent danger to persons, blasting by 
 gunpowder is a reasonable and appropriate mode of executing such a work ; 
 and, if due precautions arc taken to prevent unnecessar}' damage, is a justifiable 
 mode. It follows that the necessary damagb occasioned thereby to a dwelling- 
 house or other building, which cannot be removed out of the way of such danger, 
 is one of the natural and unavoidable consequences of executing the work, and 
 within the provisions of the statute. 
 
 '* Of course, this reasoning will not apply to damages occasioned by careless- 
 ness or negligence in executing such a work. Such careless or negligent act 
 would be a tort, for which an action at law would lie against him who commits, 
 or him who commands it. But where all due precautions are taken, and damage 
 is still necessarily done to fixed property, it is alike within the letter and the 
 
 •288
 
 288 EMINENT DOMAIN. CH. XI. 
 
 * for a cart-way, where six rods were allowed to be taken by the 
 company throughout the line of the road, which would give ample 
 space for cart-ways upon the land taken.^ But it was held, in 
 another case, that the company were not liable for entering upon 
 the adjoining lands, and occupying the same with temporary dwell- 
 ings, stables, and blacksmith shops, provided no more was taken 
 than was necessary for that purpose.^ 
 
 4. So it is settled that the appraisal of land damages is a bar to 
 claims for injuries by fire, from the engines obstructing access to 
 buildings, exposing persons or cattle to injury, and many such 
 risks.* And it will make no diflference, that the damages were not 
 known to the appraisers, or capable of anticipation at the time of 
 assessing land damages ; ^ as where a spring of water is cut off * by 
 an excavation for the bed of a railway fifteen feet * below the surface, 
 from which the plaintiff's buildings had been supplied with water. 
 
 equity of the statute, and the county commissioners have authority to assess the 
 damages. This court are therefore of opinion, that an alternative writ of man- 
 damus be awarded to the county commissioners, to assess the petitioners' dam- 
 ages, or return their reasons for not doing so." See also Pottstown Gas Co. ». 
 Murphy, 39 Penn. St. 257 ; Whitehouse v. Androscoggin Railw., supra. In the 
 latter case it was held that the damage resulting to the land-owner, for not re- 
 moving the stone thrown upon land adjoining that taken, could not be taken 
 into account in estimating damages, since it was presiunable the company would 
 remove them in proper time, according to their duty ; and, if they did not, the 
 remedy would be by special action. 
 
 * Sabin v. Vermont Central Railw., 25 Vt. 363. 
 
 ' Lauderbrun v. Dufify, 2 Penn. St. 398. But it seems questionable whether 
 this case can be maintained as a general rule. 
 
 But if a party is entitled to compensation for injuries of this kind, as where 
 his lands adjoining the railway, and no part of which is taken, are injuriously 
 affected, as by blasting rocks, his only remedy is under the statute. Dodge ». 
 County Commissioners, 3 Met. 380. 
 
 * Phila. & Reading Railw. v. Yeiser, 8 Penn. St. 366 ; s. c. 2 Am. Railw. C. 
 325 ; Aldrich v. Cheshire Railw., 1 Foster, 359 ; s. c. 1 Am. Railw. C. 206 ; 
 Mason v. Kennebec & Port. Railw., 31 Maine, 215. See also Furniss v. Hud- 
 son River Railwi, 5 Sand. 551 ; Huyett v. Phil. &. Read. Railw., 23 Penn. St. 
 873; ajiie, §§ 71, 72. See also Lafayette Plank Road Co. v. New Albany, &c. 
 Railw. Co., 13 Ind. 90. 
 
 * Aldrich v. Cheshire Railw., stipra. But see Lawrence r. Great Northern 
 Railw., 16 Q. B. 643 ; 8. c. 4 Eng. L. & Eq. 265. 
 
 So, also, where the company's works cut off a spring of water, below high- 
 water mark, on a navigable river, it was held the riparian pwner was entitled to 
 claim damages of them on that account, in a proceeding under the statute. Le- 
 high Valley Railw. v. Trone, 28 Penn. St. 206. 
 • 289, 290
 
 § 74. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 289 
 
 6. But it was held, that where, in the construction of a canal, 
 with waste weirs, erected by direction, and under the inspection 
 of the commissioners appointed to designate the route of the 
 canal, with all the works connected therewith, and to appraise 
 damages, the waste water, after flowing over the land of adjoining 
 proprietors, flowed upon the land of the plaintiff", and thereby 
 greatly injured it, that he was entitled to recover damages.* 
 But the occasional flow of land by water caused by public works 
 is to be estimated as part of the damages under the £uglish 
 statute." 
 
 6. And where the appraisal of land damages is reduced below 
 * what it otherwise would have been, by the representations of the 
 agents of the company that the road would be constructed in a 
 particular manner, made at the time of the appraisal to the com- 
 
 • Hooker r. New Haven & Northampton Co., 14 Conn. 146 ; 8. c. 15 Conn. 
 312. 
 
 But in such case, the owner of property overflowed by water, through the 
 defective construction of a railway, is bound to use reasonable care, skill, and 
 diligence, adapted to the occasion, to arrest the injury, and ii' he do not, not- 
 withstanding the first fault was on the part of the company, he must be regarded 
 as himself the cause of all damage, which he might have prevented by tlie use 
 of such care, diligence, and skilL Chase r. The N. Y. Central Kailw., 24 Barb. 
 273. 
 
 The same rule was adopted by a special referee, in Lemmex v. A'ermont Cen- \ 
 tral iiailw., in regard to damage to wool, by being exposed to rain at une of the 
 company's stations, through the fault of the agents of the company, where the 
 owner did not remove it, as soon after he obtained knowledge of its condition, 
 or take as effective measures to arrest the injury, as he reasonably should have 
 done. It was held the company were only liable for such damage as necessarily 
 resulted from their own fault, and beyond that the plaintiff must be regarded as 
 the cause of his own loss. See also post, § 180. 
 
 The assessment of compensation for land taken for a railway covers all dam- 
 ages, whether foreseen or not, and whether actually estimated or not, which ^ 
 result from the proper construction of the road. But the company are liable to 
 an action for damages resulting to any one from the defective construction of 
 their road. In the present case the plaintiff's meadows were injured, in conse- 
 quence of the insuflicieut culverts in the defendant's road, there being no im- 
 pediment to the construction of proper ones. Suitable bridges and culverts to 
 convey the water across the railway, at or near the places where it naturally \ 
 flows, are necessary to the proper construction of the road, except where they 
 cannot be made, or where the expense of making them is greatly disproportionate 
 to the interests to be preserved by them. Johnson r. At. & St. Law. iiailw., 3d 
 N. U. 669. 
 
 ^ Ware v. Regent's Canal Co., S De 6. & J. 212. 
 
 19 • 291
 
 290 EMINENT DOMAIN. CH. XI. 
 
 missioners, and which representations are not fulfilled in the 
 actual construction of the road, whereby the plaintiff sustained 
 serious loss and injury, it was held, that the adjudication of the 
 commissioners was a merger of all previous negotiations upon tlie 
 subject, and that no action could be maintained for constructing 
 the railway contrary to such representations, provided it was done 
 in a prudent and proper manner.^ 
 
 7. But where no part of the plaintiff's land is taken, and the 
 statute gives all parties suffering damage by the construction of 
 railways the right to recover, as in England, and some of the 
 American states, and the water is drawn off from plaintiff's well 
 upon lands adjoining the railway, he may recover.^ So, too, may 
 the proprietor of a mill-pond recover damages, sustained by the 
 construction of a railway across the same, although the dam 
 was authorized by the legislature, upon a navigable river ; and 
 in constructing it, the conditions of the act were not complied 
 with.w 
 
 8. But it has been held that the appraisers are not to estimate 
 increased damages to a land-owner in consequence of the ex- 
 posure of the remaining land to fires by the company's engines.^^ 
 
 " Butman r. Vt. C. Railw. Co., 27 Vt. 500. See also Railw. Co. r. Washing- 
 ton, 1 Rob. 67; B. & S. Railroad Co. v. Compton, 2 Gill, 20, 28; ante, § 71; 
 Kyle V. Auburn & Roch. Railw., 2 Barb. Ch. 489. But see Wheeler v. Roch. & 
 Sy. Railw., 12 Barb. 227, where it is held that a railway company will be en- 
 joined from building a road-crossing at a different place from that named at the 
 time damages were assessed. But it has been held, that it was competent for 
 the company to show, by experts, the necessity of putting a culvert through an 
 embankment, at a particular point, in order to preserve the work, as an answer 
 to a claim for damages on account of the prospective obstruction of the water, 
 and setting it back upon the land at that point, by the embankment. But it 
 should be shown that such culvert is absolutely indispensable, before any de- 
 duction can be made on that account, unless the company are in some legal 
 way boimd to make it. The company are not estopped from proving this 
 necessity because the plat of the location of the road does not indicate a culvert 
 at that point. Nason r. Woonsocket Union Railw., 4 Rhode Island, 377. Pt^t, 
 § 93. 
 
 ' Parker v. Boston & Maine Railw., 3 Cush. 107. 
 
 ><» White V. South Shore Railw., 6 Cush. 412. 
 
 " Sunbury & Erie Railw. v. Hummel, 27 Penn. St. 99, Lewis, Ch. J., and 
 Black, J., dissenting. The general current of authority seems to us with the 
 minority of the court. And in Lehigh Valley Railw. t". Lazarus, 28 Penn. St. 
 203, the case of Yeizer, 8 Penn. St. 366, ante, n. 4, is regarded, by the reporter 
 of that state, as overruled. But in an action of trespass against a railway com-
 
 § 74. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. • 291 
 
 * Nor can any common-law action be sustained for such damage 
 unless where actual loss intervenes through the negligence of the 
 company." 
 
 pany for constructing their road through plaintifTs land, and thereby preventing 
 his cattle thriving, this latter injury is not so remote a consequence of the act 
 diarged that it may not be made a ground of claiming damage, when specially 
 alleged in the declaration. Baltimore & Ohio R. r. Thomson, 10 Md. 76. If 
 we understand the ground assumed by the court in Pennsylvania, at the present 
 time, it is, that an injury to buildings, standing near the line of a railway, by fire 
 from the companies' engines, when properly constructed and prudently managed, 
 is too remote and uncertain to form an element in estimating damages to the 
 land-owner, either when part of the land is taken, or the statute provides for 
 damages to all persons " injuriously affected'" by the company's works. We are 
 entirely conscious of the embarrassment attending all attempts to define the 
 class of injuries, which do, or which do not, come within the rule of legal conse- 
 quential injuries, by the construction or operation of railways. But it seems 
 important to distinguish between a railway, as one of the legitimate uses to which 
 the proprietor of land might put it, for the purpose of private transportation, 
 and upon which he might no doubt use locomotive steam engines, and the use of 
 such engines upon a public railway. 
 
 In the former case the land-owner would not be liable to an adjoining pro- 
 prietor except for want of care, skill, or prudence in the construction or use of 
 his engines. The same would probably be true of a public company, if the 
 legislature did not subject them to any consequential damage resulting from 
 the nature of their business. But where they are, as in England, and many of 
 the American states, made liable, either as part of the price of land taken, or as 
 a distinct ground of claim, to all consequential damage caused to the land-owner, 
 both by the construction and operation of their road, or either of them, in a 
 prudent and proper manner, it seems difficult to escape the conclusion, that the 
 exposure of property along the line of a railway to loss by fires communicated 
 by the company's engines, is one of the most direct sources of consequential 
 injur)' which can be imagined. It is more direct and substantial than that from 
 noise, dirt, dust, smoke, and vibration of the soil, all which, under circumstances, 
 have been held proper elements of damage to be considered. Perhaps none of 
 them are absolutely grounds of giving damage in all cases. That depends very 
 much upon the nearness of the track to the land. And other circumstances 
 may perhaps deserve consideration, in many cases. But where the track passes 
 directly through lands, near where buildings are already erected, it is difficult 
 to conjecture upon what ground it could be claimed, that the increased exposure 
 to fire was not a serious detriment to the owner. It is certain it nuist very seri- 
 ously enhance the rate of insurance, and proportionally diminish the value of the 
 rent, and of the buildings. 
 
 As was said by Shaw, C. J., Proprietors of Locks & Canals r. Nashua & 
 Lowell Kailw., 10 Cush. 885, it is incumbent upon one who claims damage 
 on this ground, to show that the company's track ran so near his buildings 
 ♦' as to cause imminent and appreciable danger by fire." When it is undertaken 
 to be decided, as a question of law, that in no case is danger from fire, by the 
 
 ♦ 292
 
 292 EMINENT DOMAIN. CH. XI. 
 
 * 9. In a recent English case ^^ it was held, after extended argu- 
 ment and careful consideration, that the owner of a house situated 
 close to a railway, and which suffers depreciation in value from 
 vibration and smoke, not caused by any negligent user of the 
 railway, but being the inevitable result of the ordinary user, has 
 no right to compensation under the English statute, or by dis- 
 tinct action at law. The case is put upon the ground that the 
 legislature having legalized the use of locomotive steam engines 
 by railway companies, adjoining proprietors must submit to the 
 inevitable consequences of a lawful business, however incon- 
 venient it may become ; and can sustain no action for damages 
 any more than for the exercise of any other legal business which 
 might depreciate the value of property in tlie neighborhood. 
 The English statutes are construed to give compensation only 
 for injuries sustained by construction and not by the use of a 
 railway. 
 
 proper use of the company's engines, to be considered in estimating land dam- 
 ages, it is certainly contrary to the general course of decisions upon the subject, 
 if not to the very principle upon which such companies have been subjected to 
 such damages as they cause to land-owners, beyond what accrues from the ordi- 
 nary use of lands for building and agricultural purposes. These decisions in 
 Pennsylvania are still maintained there, and the rule has been applied to the case 
 of buildings where the owner is compelled to pay a higher rate of insurance in 
 consequence of the proximity of the railway. Patten t'. Northern Central Railw., 
 33 Penn. St. 426. It is here maintained that any claim for damages in con- 
 sequence of the mere intrusion of noise and bustle upon one's seclusion is essen- 
 tially anti-social, and at war with the fundamental laws of society, which we 
 should not be inclined to question. And as to all mere conjectural or contingent 
 advantages and disadvantages, it may well be said they are too remote to form 
 an element in estimating land damages. Searle r. Lackawanna Railw., 33 Penn. 
 St. 57. But we cannot admit that either of these rules has any just application 
 to exposure to fire from the company's engines, where the danger is certain and 
 inevitable. Post, § 82. 
 
 " Brand r. Hammersmith & City Railw. Co., Law Rep., 2 Q. B. 223 ; 12 Jur. 
 N. S. 336. See also Lafayette Plank-Road Co. r. New Albany Railw. Co., 13 
 Ind. 90. 
 
 •298
 
 §75. 
 
 ACTION FOB CONSEQUENTIAL DAMAGES 
 
 293 
 
 •SECTION XIII. 
 
 Action for Consequential Damages. 
 
 1. Statute remedy for lands " injurioudy af- 
 
 fected." 
 
 2. Without statute not liabU to action. 
 
 8. Are liable for negligence in construction, or 
 
 use. 
 4. Statute remedy exdusive. 
 
 6. Minerals reserved. 
 
 6. Damages for taking land of railway for 
 
 highway. 
 
 7. Compensation for minerals, when recover' 
 
 able. 
 
 § 75. 1. The liability of railways for consequential damage to 
 the adjoining land-owners must depend upon the provisions in 
 their charters, and the general laws of the state. In England 
 railway companies are, by express statute,^ made liable to the 
 owners of all lands " injuriously affected " by their railways. 
 And under this statute it has been determined, that if the company 
 do any act, which would be an actionable injury, without the pro- 
 tection of the special act of tlie legislature, they are liable under 
 the statute.^ So that there, any act of a railway company amount- 
 ing to a nuisance in a private person, and causing special damage 
 to any particular land-owner, is good ground of claiming damages 
 under this section of the statute.* 
 
 2. But in the absence of all statutory provision upon the sub- 
 ject, railways are not liable for necessary consequential damages 
 to land-owners, no poi-tion of whose land is taken, where they 
 construct and operate their roads in a skilful and prudent man- 
 ner.* 
 
 • 8 and 9 Vict. c. 8, § 68. 
 
 • Glover V. The North Staffordshire Railw. Co., 16 Q. B. 912 ; s. c. 6 Eng. 
 L. & E<i. 835 ; post, § 82. 
 
 » Hatch V. Vt. Central Railw. Co., 25 Vt. 49. See § 82, post. 
 
 • Monongahela Nav. Co, r. Coons, 6 Watts & S. 101 ; Radcliff r. The Mayor 
 of Brooklyn, 4 Comstock, 195; Phil. & Trenton Railw. Co., 6 Wharton, 25; 
 Seneca Road Co. v. Aub. & Roch. Railw. Co., 5 Hill (N. Y.), 170; Hatch 
 r. Vt. Central Railw., 25 Vt. 49; Richardson r. Vt. Central Railw. Co., 25 
 Vt. 465. 
 
 There are many other cases confirming the same general view stated in the 
 text. Henry v. Pittsburgh & Allegheny Bridge Co., 8 Watts & Serg. 85 ; Can- 
 andaigua & Niagara Railw. r. Payne, 16 Barb. 273, where it is held, that in- 
 jury to a mill upon another lot of the same land-owner, in consequence of the 
 construction and operation of the railway, is a matter with which the commis- 
 sioners have nothing to do in estimating damages for land. So in Troy & 
 
 •294
 
 294 EMINENT DOMAIN. CH. 
 
 * 3. But if the railways are guilty of imprudence, or want of 
 skill, eitlier in the construction or use of their road, they are * liable 
 
 Boston Railw r. Northern Turnpike, 16 Barb. 100, it was held that the con- 
 sideration that the business of a turnpike, which claimed damage, would be 
 diminished by the construction of the railway along the same line of travel, 
 should be disregarded in estimating damage to such turnpike. "Every public 
 improvement," say the court, " must affect some property favorably, and some 
 unfavorably, from the necessity of the case. "VMien this effect is merely conse- 
 quential the injury is damnum absque injuria. Though their property has 
 undoubtedly depreciated by the construction of the railway, yet the turnpike 
 company enjoy all the rights and privileges secured to them by their charter, 
 and no vested rights have been violated." 
 
 Xor is one entitled to damage, in consequence of a highway being laid upon 
 his line, thus compelling him to maintain the whole fence. Kennett's Petition, 
 4 Foster, 139. In Albany Northern Railw. ». Lansing, 16 Barb. 68, it is said, 
 " The commissioners, in estimating the damages, should not allow consequential 
 and prospective damages." 
 
 In Plant r. Long Island Railw., 10 Barb. 26, it is held not to be an illegal use 
 of a street to allow a railway track to be laid upon it, and that the temporary 
 inconvenience to which the adjoining proprietors are subject while the work of 
 excavation and tunnelling is going on is damnum absque injuria. So also in re- 
 gard to the grade of a street having been altered, by a railway, by consent of the 
 common council of the city of Albany, who by statute were required to assess 
 damages to any freeholder injured thereby, and who had done so in this case, it 
 was held that no action could be maintained against the railway. Chapman r. 
 Albany & Sch. Railw., 10 Barb. 360; Adams v. Saratoga & Wash. Railw., 11 
 Barb. 414. 
 
 And in a case in Kentucky, Wolfe r. Covington & Lexington Railw., 15 
 B. Monr. 404, it was held, the municipal authority of a city might lawfully 
 alter the grade of a street, for any public purpose, without incurring any respon- 
 sibility to the adjacent landholders, and might authorize the passage of a railway 
 through the city, along the streets, and give them the power to so alter the grade 
 of the streets, as should be requisite for that purpose, this being done at the ex- 
 pense of the company, and by paying damages to such adjacent proprietors as 
 should be entitled to them. But one, who urged the laying of the road in that 
 place, on the ground that it would benefit him, and who was thereby benefited, 
 cannnot recover damages of the company, upon the maxim, " volenti nonjit inju- 
 ria.'''' A railway, when so authorized, " is not a purpresture, or encroachment 
 upon the public property or rights." 
 
 And where a railway company erect a fence upon land which they own in 
 fee, for the purpose of keeping the snow off their road, they are not liable for 
 damages sustained by the owner of land upon the opposite side of the fence, by 
 the accumulation of snow, occasioned by the fence. Carson v. Western Railw., 
 Mass. Sup. Court, 20 Law Rep. 850 ; s. c. 8 Gray, 423. See also Morris & 
 Essex Railw. r. Newark, 2 Stock. Ch. 352. 
 
 And where the act complained of is the construction of an embankment, by 
 a railway company, at the mouth of a navigable creek, in which the plaintiff 
 • 295, 296
 
 § 75. ACTION FOB CONSEQUENTIAL DAMAGES. 295 
 
 to any one suffering special damage thereby,^ as in needlessly 
 diverting watercourses and streams, and not properly restoring 
 them,^ whereby lands are overflowed or injured.^ 
 
 4. And the remedy given by statute for taking or injuriously 
 affecting lands is exclusive of all remedies, at common law, by 
 action, or bill in equity, unless provided otherwise in the statute.® 
 
 * 5. But in a late English case," the House of Lords held, that 
 
 has a prescriptive right of storing, landing, and rafting lumber, for the use of 
 his saw-mill, whereby the free flow of the water is obstructed, and the plaintiff 
 thereby deprived of the full enjoyment of his privilege, the injurj' is regarded aa 
 the direct and immediate consequence of the act of the company, and they are 
 liable for the damages thereby sustained. Tinsman r. The Belvidere Delaware 
 Railw. Co., 2 Dutcher, 148. 
 
 See also Rogers r. Kennebec & Portland Railw., 35 Me. 319; Burton r. 
 Philadelphia W. & B. Railw., 4 Harr. 252; HoUister r. Union Co., 9 Conn. 
 436 ; Whittier r. Portland & Kennebec Railw., 38 Maine, 26. 
 
 » Whitcorab v. Vt. Central Railw. Co., 25 Vt., 69; Hooker r. N. H. & N. 
 Y. Railw. Co.; 14 Conn. 146 ; post, § 79. And there is the same liability 
 although the lands are not situate upon the stream. Brown v. Cayuga & Sus- 
 quehannah Railw., 2 Keman, 486. 
 
 A party is liable to an action for diverting the water from a spring, which ran 
 in a well-defined channel into a stream supplying a mill, at the suit of the mill- 
 owner, notwithstanding he had pennission from the owner of the land where the 
 spring arose. Aliter if the spring spread out upon the land, having no cliannel. 
 As the land-owner might drain his land; so he may give permission to others to 
 do so. Dudden p. The Union, 1 Hurlstone & Norman, 627. See also Brown 
 V. Illius, 27 Conn. 84; Robinson v. New York & Erie Railw., 27 Barb. 512; 
 Waterman o. Conn. & Pass. Riv. Railw., 30 Vt. 610; Henry v. Vermont Cen- 
 tral Railw., id. 638. But in tliis last case it was decided that the effect of 
 erecting a bridge in a stream upon tlie course of the current below was so far 
 incapable of being known or guarded against, that there was no duty imposed 
 upon railway companies to guard against an injury to land-owners below by a 
 change of the current. See, also, New Albany & C. Railw. Co. ». Higman, 18 
 Ind. 77 ; Same v. Huff, 19 id. 315; Colcough p. Nashville & N. W. Railw. Co., 
 2 Head, 171. 
 
 ' Regina p. Eastern Counties Railw., 2 Q. B. 347, 669 ; 8. c. 3 Railw. C. 466. 
 But in this case the act expressly provided, that the verdict and judgment should 
 be conclusive and binding, which most railway acts do not ; but it seems ques- 
 tionable if this will make any difference. E. & W. I. Docks, &c. v. Gattke, S 
 Mac. & Gor. 156 ; s. c. 3 Eng. L. & Eq. 59 ; post, § 81. 
 
 ' Caledonia Railw. p. Sprot, 2 McQu. Ho. Lds. 499 ; 8. c. 39 Eng. L. & Eq. 
 16. But in Bradley p. New York & New H. Railw,, 21 Conn. 294, where the 
 defendants' charter gave them power to take land, and made them liable for all 
 damages to any person or persons, and they excavated an adjoining lot to plain- 
 tifTs, so as to weaken the foundations of his house, and erected an embankment 
 in the highway opposite his house, so as to obscure the light, and render it other- 
 
 •297
 
 296 EMINENT DOMAIN. CH. XI. 
 
 a railway company which had been condemned to pay for land, 
 the owner reserving the minerals, were not liable to the land- 
 owner, by reason of his inability to work a mine which he had 
 discovered under the railway. The Lord Chancellor said, " The 
 conveyance of the surface of land gives to the grantor an implied 
 right of support, sufficient for the object contemplated, from the 
 soil of the grantor, adjacent as well as subjacent." 
 
 6. And it has been held, that in estimating damages to a railway 
 in consequence of laying a highway across land occupied by them, 
 it is not proper to take into account the probable increase of busi- 
 ness to the company in consequence.^ 
 
 7. And where the company take land, but decline to purchase 
 the minerals after notice from the owner of his intention to work 
 them, pursuant to the English statute, the company is not entitled 
 to the subjacent or adjacent support of the minerals. And where 
 the company gave notice, under the statute, that the working of 
 the mines was likely to injure the railway, the owner was held 
 entitled to recover compensation which had been assessed under 
 the statute.^ 
 
 wise unfit for use, it was held, that this did not constitute a taking of plaintiflTs 
 land, but that defendants were liable to consequential damage under their charter. 
 
 But in the early case of the Wyrley Nav. v. Bradley, 7 East, 368, it is con- 
 sidered that, where the act of parliament reserved the right to dig coal to the 
 proprietor of mines, unless the company, on notice, elected to purchase and 
 make compensation, where the canal was damaged by the near approach of the 
 mine, after such notice, and no compensation made, the coal-owner was not 
 liable, although it is there said to be otherwise in case of a house, undermined 
 by digging on the soil of the grantor. But this case seems to turn upon the 
 reservation in the grant. 
 
 ^ Boston & Maine Railw. v. County of Middlesex, 1 Allen, 324. The reser- 
 vation in a deed of land to a railway company of the right to make a crossing 
 over the land, creates an easement in the land, but does not extend such ease- 
 ment across the other lands of the company. lb. 
 
 " Fletcher v. Great Western Railw., 4 H. & N. 242. And in North Eastern 
 Railw. Co. V. Elliott, J. & H. 145 ; s. c. 6 Jur. N. S. 817, it was held that the 
 general principle, that a vendor of land sold for a particular use cannot derogate 
 from his own grant by doing any thing to prevent the land sold from being put to 
 that use, applies to sales to railways under compulsorj- powers. But it was here 
 said that this principle will not compel the vendor of land to perpetuate any thing 
 upon the portion of the land retained by him, which is merely accidental, though 
 existing and of long standing at the date of the sale. Hence, where a railway 
 company took land for a bridge in a mining district, where a shaft had been sunk 
 many years before, but the working of the mines abandoned and the shaft filled 
 with water for a long time before the taking of the land, it was held that the land-
 
 §76. 
 
 RIGHT TO OCCUPY HIGHWAY. 
 
 297 
 
 ♦SECTION XIV. 
 
 Hight to occupy Highway. 
 
 1. Decisions conflicting. 
 
 2. First held that oicners of the fee were en- 
 
 titled to additional dctmages. 
 8. Principle seems to require this. 
 4. Many cases take a different view. 
 6. Legislatures may and thouid require such 
 
 additional compensation. 
 
 6. Cwirts of equity will not enjoin railways 
 
 from occupying streets of a city. 
 
 7. Some of the states require sucJi coinpensa- 
 
 tion. 
 n. 11. Alt do not. But the English courts, 
 principle, and many of the state courts, 
 do require it, as matter of right. 
 
 8. Recent decisions upon the right to occupy 
 
 the highway. 
 1. The decisions in the state of New York 
 require compensation to the owner of 
 the fee. 
 
 2. Distinction between streets of cities and 
 highways in the country. 
 
 8. Legislature may control existing rail- 
 ways. 
 
 4. In Ohio (he owner of the fee may claim 
 indemnity against additional injury. 
 
 6. True distinction, whether the use is the 
 same. 
 
 6. The present inclination seems to be to 
 
 require additional com}>etisation for 
 laying street railway in highway. 
 
 7. Cases in the opjxtsite direction. Judge 
 
 Ellsworth's opinion. 
 
 8. Explanation of the apparent confusion. 
 
 9. Where permanent erections made in 
 
 street, compensation must be made. 
 10. Rights of land-owners as to obstructing 
 
 railway. 
 11-28. Recent cases in New York. 
 
 § 76. 1. The decisions are contradictory, in regard to the right 
 of a railway company to lay its track along a common highway, 
 without making additional compensation to land-owners adjoining 
 such highway, and who, in the country, commonly own to the mid- 
 dle of the highway. 
 
 * 2. In some of the early cases, upon this subject, it seems to 
 have been considered, that, under such circumstances, the land- 
 owners were entitled to additional compensation, when the land 
 was converted from a common carriage-way to a railway.^ 
 
 owner was not precluded from draining the water and working the mine, although 
 the effect must be to lessen the support of the bridge to some extent, by with- 
 drawing the hydrostatic pressure upon the roof of the mine, and the consequent 
 support of the superincumbent strata of earth. 
 
 ' Trustees of the Presbj'terian Society in Waterloo v. The Auburn & Roches- 
 ter Railw. Co., 3 Hill (N. Y.), 667. The case of Fletcher r. Auburn & Syra- 
 cuse Railw. Co., 25 Wend. 462, might have been put upon the same ground, 
 but is not. The ground assumed is, that the land-owners are entitled to con- 
 sequential damage, in consequence of the new use to which the land is put, 
 which amounts to nearly the same thing. Philadelphia & Trenton Railw., 6 
 Wharton, 25; Miller r. The Auburn & Syracuse Railw. Co., 6 Hill (N. Y.), 61 ; 
 Mahon V. Utica & Schenectady Railw., Lalor's Supp. to Hill & Denio, 156. And 
 in Ramsden r. The Manchester South Junction & Alt. Railw., 1 £xch. 723, the 
 
 ♦298,299
 
 298 EMINENT DOMAIN. CH. XI. 
 
 * 3. There is certainly great reason in this view, inasmuch as 
 the land-owner's entire damage is to be assessed, at once, and it 
 
 Court of Exchequer expressly decide, that a railway company has no right even 
 to tunnel under a highway, without making previous compensation to the land- 
 ovmer. Seneca Road v. Auburn Ilailw., 5 Ilill, 170; Troy v. Cheshire llailw. 
 Co. 3 Foster, 83. But a distinction is taken between the property of adjoining 
 land-owners in the highway or street in cities, and in the country. In the 
 former it has been held that the fee of the streets is under the sole control of 
 the municipal authorities, and that it is no perversion of the legitimate use of 
 the streets to allow a railway company to lay their track upon them. Plant v. 
 Long Island Railw. 10 Barb. 26; Adams v. Saratoga & Washington Railw., 11 
 Barb. 414; Chapman v. Albany & Schenectady Railw., 10 Barb. 360; Drake v. 
 Hudson River Railw., 7 Barb. 608; Applegate v. Lexington & Ohio Railw,, 8 
 Dana, 289; Wolfe v. Covington & Lexington Railw., 15 B. Monr. 404. 
 I' In Williams v. New York Central Railw., 18 Barb. 222, 246, the court say: 
 " A railroad is only animproved highway, and the use of a street, by a railway, 
 is one of the modes of enjoying a public easement." But see this case reversed, 
 post. A general power to pass highways in the construction of a canal, or rail- 
 way, has been held to include turnpikes also. Rogers v. Bradshaw, 20 Johns. 
 735; Wliite River Turnpike Co. v. Vermont Central Railw., 21 Vt. 590. 
 But the grant of a railway from one terminus to another, without prescribing its 
 precise course and direction, does not, prima facie, confer power to lay out the 
 railway upon and along an existing highway. But it is competent for the legis- 
 lature to grant such authority, either by express words, or necessary implication ; 
 and such implication may result, either from the language of the act, or from its 
 being shown, from an application of the act to the subject-matter, that the rail- 
 way cannot, by reasonable intendment, be laid in any other line. Springfield v. 
 Connecticut River Railw., 4 Cush. 63 ; s. c. 1 Am. Railw. C. 572. But in gen- 
 eral, the adjoining owner of land to a highway is entitled to additional compen- 
 sation, where it is put to a different and more dangerous use. And towns have 
 an interest in highways and bridges, which will enable them to maintain an 
 action upon the case for their obstruction or destruction, and the conversion of 
 the materials. Troy». Cheshire Railw., 3 Foster, 83. But the town is not 
 liable to pay damages assessed, by the selectmen, in laying out a highway, at 
 the request of a railway company, made necessary to supply the place of one 
 taken by the company for their track. Ellis r. Swanzey, 6 Foster, 266. 
 
 In general, it may be stated as the settled doctrine of most of the states, that 
 the owner of land, bounded upon a highway, owns to the centre of the way. 
 Buck V. Squiers, 22 Vt. 484, 495. The general rule as to monuments, re- 
 ferred to in deeds of land, undoubtedly is, that the centre of such monuments is 
 intended, whether it be stake, stone, tree, rock, or a highway, or stream. It is 
 undoubtedly more a rule of policy than of intention, and as such, to answer its 
 end, should be applied in every case, unless a clearly defined intention to the 
 contrary be made to appear. 3 Kent, Comm. 433; Chatham ». Brainerd, 11 
 Conn. 60; Champlin v. Pendleton, 13 Conn. 23; Livingston «.- Mayor of 
 New York, 8 Wend. 85, 106 ; Starr p. Child, 20 Wend. 149 ; s. c. 4 Hill, 369 ; 
 Canal Comm. v. People, 6 Wend. 423 ; 8. c. 13 Wend. 355 ; Johnson v. Ander- 
 •800
 
 § 76. RIGHT TO OCCUPY HIGHWAt. 299 
 
 * could never be done iinderstandingly, unless the use to which it 
 were to be put were known to the assessors. And it is obvious, 
 
 son, 18 Me. 76 ; Bucknam r, Bucknam, 3 Fairfield, 463 ; Leavitt v. Towle, 8 
 N. Ilatup. 96; Dovaston f. Payne, 2 Smith's Leading Cases, 90, and notes by 
 "Wallace & Hare ; Nicholson r. New York & New Ilaven Railw., 22 Conn. 
 74. 
 
 But the owner of the fee of land, over which a highway passes, cannot main- 
 tain a bill in equity, to enforce an order of commissioners, as to the manner of 
 constructing a railway, where it crosses the highway, but the same should be 
 brought by the principal executive officers of the town or city. Brainard r. 
 Conn. River Railw., 7 Cush. 506. The court say : " It is only where the owner 
 suffers some special damage, differing in kind from that which is common to 
 others, that a personal remedy accrues to him, and certainly no rule of law rests 
 on a wiser or more sound policy. Were it otherwise, suits might be multiplied 
 to an indefinite extent, so as to create a public evil, in many cases, much greater 
 than that which was sought to be redressed." Stetson r. Faxon, 19 Pick. 147; 
 Proprietors of Quincy Canal c. Newcomb, 7 Met. 276 ; Smith v. Boston, 7 Cush. 
 254; Hughes p. IVovidence & Worcester Railw. Co., 2 Rhode Island, 493. 
 
 In Williams v. Natural Bridge Plank Road Co., 21 Missouri, 580, it is held, 
 that the grant of the right of locating a plank-road upon a county road, does 
 not exclude the idea that the owner of the soil over which the road passes 
 should have compensation for any injury he may sustain by converting a county 
 road into a plank-road. This case is put, by the court, upon the ground, that 
 the plank-road is an additional burden upon the soil, and that for this the land- 
 owner is as much entitled to compensation as if his land had originally been 
 taken for the purpose of the plank-road, and that to deny all redress in such 
 case is a virtual violation of that article of the constitution giving compensation 
 to the owner of property taken for public use. 
 
 This is undoubtedly the rule of the English law, and of reason and justice, 
 and we should rejoice to see it prevail more extensively in this country. The 
 American courts seem to have been sometimes led astray upon this subject by 
 the fallacy, that a railway is merely an improved highway, which for many pur- 
 poses it is, but not for all, any more than a canal. See also Railroad, ex parte, 
 2 Rich. 434. 
 
 And the New York statute, giving railways the right to pass upon, or over 
 turnpikes, plank-roads, rivers, &c,, by restoring such ways, rivers, &c., so as not 
 unnecessarily to have impaired their usefulness, was construed not to preclude 
 a plank-road from recovering of the railway all damages sustained by them in 
 a common action for damages, under the code, the company having entered 
 upon the plank-road without causing damages to be assessed under the statute. 
 Ellicottville Plank-road v. Bufialo, &c. Railw., 20 Barb. 644. As the New York 
 Court of Appeals have changed the rule upon this subject, in that state, since 
 the body of this work was through the press, in the former edition, and only a 
 note of the case was inserted at the close of that edition, we deem it proper 
 here to present the opinion at length. Williams r. New York Central Railw., 
 16 N. Y., 97. The point decided is, that the dedication of land to the use of 
 the public as a highway does not authorize it being taken by a railway company 
 
 •301
 
 300 EMINENT DOMAIN. CH. XI. 
 
 * that it would ordinarily be attended with far more damage to the 
 remaining land to have a railway than a common highway laid 
 across it. 
 
 for their track, without compensation to the owner of the fee, although done by 
 the consent of the legislature, and of the municipal authorities. 
 
 Selden, J. — '* This is a suit in equity, the object of which is to obtain a per- 
 petual injunction, restraining the defendants from continuing to use and occupy 
 with their railway a portion of a certain highway or street in the village of 
 Syracuse, known as Washington Street, and to recover damages for past occu- 
 pation. 
 
 "Washington Street was gratuitously dedicated to the use of the public by 
 the plaintiff and others, through whose land it was laid, and the Utica and 
 Syracuse Railway Company, to the rights and liabilities of which the defendants 
 have succeeded, constructed their railway upon it without making any compen- 
 sation to the plaintiff, and without his consent. At the time the track was laid, 
 the plaintiff was the owner of a large number of lots fronting upon the street, 
 a portion of which he has since sold, with a reservation of his claim against the 
 railway company for damages, and a portion of which he still owns. The dam- 
 ages which have accrued both upon the sold and unsold portions of the premi- 
 ses are claimed in this suit. 
 
 " The defendants, in justification of their occupation of the street, show that 
 the charter of the Utica and Syracuse Railway, Session Laws of 1836, p. 819, 
 § 11, declares that their road might ' intersect ' and be built upon any highway, 
 and that this right is confirmed by the general railway act of 1850. 
 
 "They also show the express consent of the municipal authority of the city of 
 Syracuse to such occupation. The principal question, therefore, and the only 
 one which I deem it necessary to consider, is, whether the state and municipal 
 authorities combined could confer upon the railway company the right to con- 
 struct their road upon this street without obtaining the consent of, or making 
 compensation to, the plaintiff. 
 
 " If the railway encroaches in any degree upon the plaintiff's proprietary 
 rights, then it is clear that the constitutional inhibition, which forbids the taking 
 of private property for public use " without just compensation," applies to the 
 case. 
 
 "It is conceded that, by the dedication, the public acquired no more than 
 the ordinary easement, or a right to use the premises as a highway, and that 
 the plaintiff continues the owner in fee in respect to the unsold lots to the 
 centre of the street, subject only to this easement. But it is contended that 
 the taking and use of the street by the railway company does not encroach 
 upon the reserved rights of the plaintiff, because the use of a street for the 
 purposes of a railway is only " one of the modes of enjoying the public ease- 
 ment." . . . 
 
 [After examining various cases, which, the learned judge said, " may be con- 
 sidered as settling that a railway in a populous town is not a nui.^ance per se, 
 and that when the railway company has acquired the title to the land upon 
 which its road is located, such company being in the exercise of a lawful right, 
 •302
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 301 
 
 * 4. If the rule of estimating damages, according to the money 
 value of the land taken, were adopted, there would be more 
 
 is not liable, unless guilty of some misconduct or negligence, for any consequen- 
 tial injuries which may result to others from the operation and use of its road ; 
 but they decide nothing whatever in regard to the question to be considered in 
 this case," — he proceeded:] "There is also another class of cases in which, 
 although the injur)- complained of is to the corporeal rights of the plaintiff, yet 
 being merely consequential, and no direct trespass or unauthorized intrusion 
 upon the plaintiffs property being alleged, the question under consideration 
 here could not arise. Such are the cases of Fletcher r. The Auburn and Syra- 
 cuse Railway Co., 25 Wend. 464, and Chapman r. Albany and Schenectady 
 Railway Co., 10 Barb. 360." In these and the like cases, the title of the com- 
 pany to the ground on which its road is built, is not disputed. It is unnecessary, 
 therefore, to notice them further here. 
 
 ** We come, then, to the consideration of the cases which do flbar, with more 
 or less weight, upon the question to be decided, and upon which, so far as au- 
 thority is concerned, its decision must mainly depend. The first among these 
 cases, in the order of time as well as of importance, is that of The Presbyterian 
 Society of Waterloo v. The Auburn and Rochester Railway Co., 3 Hill, 567. 
 The declaration was in trespass for entering upon the plaintiffs' premises, dig- 
 ging up the soil, and constructing their railway track upon it. The defence was, 
 that the lucus in quo was a public highway, and that the charter of the company 
 expressly authorized it to construct its road upon and across any highway. The 
 point, therefore, was presented in the most direct manner possible, and the 
 defence most emphatically overruled. The language of Chief Justice Nelson is 
 most pertinent and forcible. lie says : ' But the plaintiffs were not divested of 
 the fee of the land by the laying out of a highway ; nor did the public thus 
 acquire any greater interest therein than a right of way, with the powers and 
 privileges incident to that right, such as digging the soil and using the timber 
 and other materials found within the limits of the road in a reasonable manner, 
 for the purpose of making and repairing the same, subject to this easement, and 
 this only. The rights and interests of the owners of the fee remained unimpaired. 
 
 " ' It is quite clear, therefore, even if the true construction of the eleventh 
 section accords with the view taken by the counsel for the defendants, that the 
 legislature had no power to authorize the company to enter upon and appro- 
 priate the land in question for purposes other than those to which it had been 
 originally dedicated in pursuance of the highway act, without first providing a 
 just compensation therefor.' 
 
 " It was argued in that case, as in this, that using the road for a railway was 
 only a different mode of exercising the right which had been acfjuired by the 
 people ; that the use was virtually the same, that of accommodating the travelling 
 public. But the argument met with no favor from the court. Judge AeUon 
 says : * It was said on the argument, that the highway is only used by the de- 
 fendant for the purposes originally designed, — the accommodation of the public, 
 and for this compensation has already been made. This argument might have 
 been used with about the same force in the case of Sir John Lade v. Shepherd, 2 
 Strange, 1004.' 
 
 •803
 
 302 EMINENT DOMAIN. CH. XI. 
 
 * reason in saying the public would thereby acquire the right to 
 use it for any purposes of a road, which any future improvement 
 
 " He adds, on this subject : • The claim set ap (by the defendant) is an ease- 
 ment, not a right of passage to the public, but to the company, who have the 
 exclusive privilege of using the track of the road in their own peculiar manner. 
 The public may travel with them over the track, if they choose to ride in their 
 cars.' , 
 
 " This case, which was decided by our late Supreme Court, upon full consid- 
 eration, and in- so emphatic a manner, ought to be conclusive, unless it appears 
 upon principle to be erroneous. . . . 
 
 " It will not be seriously and cannot be successfully contended, either that 
 the dedication of land for a highway gives to the public an unlimited use, 
 or that the legislature have .the power to encroach upon the reserved rights 
 of the owners, by materially enlarging or changing the nature of the public ease- 
 ment. * 
 
 " The only plausible ground which can be taken is that which was assumed in 
 the case of The Presbyterian Society in Waterloo v. The Auburn and Rochester 
 Railroad Co., supra, and Avhich has also been assumed here, namely, that to con- 
 vert a highway into a railway track is no material change in or enlargement of 
 that to which it was originally dedicated ; that the construction of a railway along 
 a highway is simply one of the modes of accompli sliing the object of the original 
 dedication, viz., that of creating a thoroughfare and passage-way for the public; 
 in short, that the railway is a species of highway, and that the two uses are sub- 
 stantially identical. 
 
 "But is this assumption just? Are the two uses the same? If the only 
 difference consisted in the introduction of a new motive power, it would not be 
 material. But is there no distinction between the common rights of ever}- man 
 to use upon the road a conveyance of his own at will, and the right of a corpora- 
 tion to use its conveyances to the exclusion of all others, — between the right of 
 a man to travel in his own carriage without pay, and the right to travel in the 
 car of a railway company on paying their price ? 
 
 ' ' It may be said that the use of the road as a common highway is not sub- 
 verted ; that a man may still drive his own carriage upon it. Without pausing 
 to notice the fallacy of this argument, and the impracticability of the enjoyment 
 of such a right when railway trains are passing and repassing everj' half hour, 
 let us look at the subject in another point of view. The right of the public in 
 a highway is an easement, and one that is vested in the whole public. Is not 
 the right of a railway company, if it has a right to construct its track upon the 
 road, also an easement ? This cannot be denied ; nor that the latter easement is 
 enjoyed, not by the public at large, but by a corporation ; because it will not be 
 pretended that every man would have a right to go and lay down his timbers and 
 his iron rails, and make a railway upon a highway. These, then, are two ease- 
 ments; one vested in the public, the other in the railway company. These 
 easements are property, and that of the railway company is valuable. How was 
 it acquired ? It has cost the company nothing. 
 
 " The theory must be that it is carved out and is a part of the public easement, 
 and is, therefore, the gift of the public. This would do if it was given solely at 
 ♦804
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 303 
 
 • might suggest. And this is the view which seems very exten- 
 sively to prevail in this country. It was long since settled that 
 
 the expense of the public. But it is manifest that it is at the joint expense of 
 the public and the owner of the fee. Ought not the latter, then, to have been 
 cousulted ? 
 
 "But it is unnecessarj- to refine upon this case. Any one can see, that to 
 convert a common highway, running over a man's land, into a railway, is to im- 
 pose an additional burden upon the land, and greatly to impair its value. As 
 no compensation has, in this case, been made to the owner, his consent must in 
 some way be shown. 
 
 " The argument is, that as he has consented to the laying out of a highway 
 upon his land, ergo, he has consented to the building of a railway upon it, al- 
 though one of these benefits his land, renders access to it easy, an<l enhances its 
 price, while tlie other makes access to it both difficult and dangerous, and n?n- 
 ders it comparatively valueless. Were the transaction between two individuals, 
 every one would see at once the injustice of the conclusion attempted to be 
 drawn. It is the public interest, supposed to be involved, which begets the 
 difficulty ; and it is just for this reason that the constitution interferes for the 
 protection of individual rights, and provides that private property shall not be 
 taken for public use without compensation ; a provision no less neccssarj- than 
 just, and one which it is the duty of courts to see honestly and fairly en- 
 forced. 
 
 " The case stated by the learned judge who delivered a dissenting opinion in 
 the Supreme Court, is a striking illustration of the injustice that would frequently 
 be done under the rule contended for by the defendants. 
 
 "A street was laid out through a man's land, and he was assessed several 
 hundred dollars for benefits, in a<ldition to the land taken, and before the street 
 was opened it was taken by a railway company, and converted into the track of 
 their road. The owner lost his land, had to pay several hundred dollars, and 
 had the annoyance of the railway besides, while the railway company got the 
 road for nothing. 
 
 '* The case of Inhabitants of Springfield r. Connecticut River Railroad Co., 4 
 Cush. 63, shows what the Supreme Court of Massachusetts thought of the argu- 
 ment that the uses are the same. It was insisted there, on the part of the defend- 
 ants, that the power conferred upon them by the legislature to build their road 
 between certain termini, gave tliem, by necessary implication, the right to build 
 their track upon any intervening highway. But Chief Justice S/iaw, in his 
 reply to tiiis argument, says : * The two uses are almost, if not wholly, incon- 
 sistent with each other, so that taking the highway for a railway will nearly 
 supersede the former one to which it had been legally appropriated. The 
 whole course of legislation on the subject of railways is opposed to such a con- 
 struction.' 
 
 *' I concur with the learned chief justice, and have no hesitation in coming to 
 the conclusion, that the dedication of land to the use of the public as a highway 
 is not a dedication of it to the use of a railway company ; that the two uses are 
 essentially different, and that, consequently, a railway cannot be built upon a 
 highway without compensation .to the owners of the fee. The legislative pro- 
 
 •306
 
 304 EMINENT DOMAIN. CH. XI. 
 
 *the land-owner was not entitled to any additional damage, by 
 reason of any alteration in the construction of the highway .^ Or 
 in applying it to the use of a turnpike road where toll was paid, 
 this being but a different mode of supporting the highway, of 
 which the land-owner had no just cause of complaint, since it did 
 not materially alter the use of the land.^ And the same rule has 
 now been pretty extensively extended to improvements in erecting 
 railways along the streets and highways.* These questions depend 
 much upon the terms of the charter of the railway company. 
 
 visions on the subject were probably intended, as was intimated in The Presby- 
 terian Society of Waterloo v. The Auburn and Rochester Railroad Co., supra, 
 to confer the right so far only as the public easement is concerned, leaving ihe 
 companies to deal with the private rights of individuals in the ordinary mode. 
 If, however, more was intended, the provisions are clearly in conflict with the 
 constitution, and cannot be sustained. 
 
 " It follows that the defendants, in constructing their road upon Washington 
 Street, without the consent of the plaintiff, and without any appraisal of his 
 damages, or compensation to him in any Ibrm, were guilty of an unwarrantable 
 intrusion and trespass upon his property, and that he is entitled to relief. 
 
 " Although he had a remedy at law for the trespass, yet as the trespass was of 
 a continuous nature, he had a right to come into a court of equity, and to invoke 
 its restraining power to prevent a multiplicit}' of suits, and can, of course, recover 
 his damages as incidental to this equitable relief. There may be doubt as to his 
 right to recover in this suit the damages upon the lots which have been sold, 
 because, as to those lots, there was no occasion to ask any equitable relief, and 
 to permit the damages to be assessed in this suit in effect deprives the defendants 
 of the right to have them assessed by a jurj'. But as this question has not been 
 raised, it is unnecessary' to consider it." 
 
 It has been held that the lajdng out and operating a horse railway in the 
 streets of a city is not an additional servitude upon the soil, for which the owner 
 is entitled to compensation. Brooklj-n Central & Ja. Railw. v. Brooklyn City 
 Railw., 33 Barb. 420. And if one company lay their track across the track of 
 another, they are entitled to no compensation. lb, 
 
 * Zimmerman c. The Union Canal Co., 1 Watts & Serg. 346 ; Mayor r. Ran- 
 dolph, 4 Watts & Serg. 514 ; Gov. & Co. of Plate Manufacturers v. J^feredith, 
 4 T. R. 790 ; Sutton v. Clark, 6 Taunton, 29 ; Boulton r. Crowther, 2 B. & 
 C. 703 ; The liing c. Pagham, 8 B. & C. 355 ; Henry v. The Alleghany & Pitts- 
 burg Bridge Co., 8 Watts & Serg. 86; Shrunk v. Schuylkill iSav. Co., 14 S. 
 & R. 71 ; Commonwealth v. Fisher, 1 Penn. 467 ; Hatch v. Vermont Central 
 Railw., 25 Vt. 49 ; Taylor r. City of St. Louis, 14 Misso. 20 ; Richardson 
 t>. Vermont Central Railw., 25 Vt. 465; Callender r. Marsh, 1 Pick. 418; 
 Rounds p. Mmnford, 2 Rhode Island, 154 ; O'Connor v. Pittsburgh, 18 Penn. 
 St. 187 ; Plum v. Morris Canal & Bank Co. and the City of Newark, 2 Stock- 
 ton's Ch. 256. 
 
 ' Wright r. Coster, 3 Butcher, 76. 
 
 * Plant c. Long Island Railw. Co., 10 Barb. 26. But see Mifflin v. Harris- 
 
 •306
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 305 
 
 5. And as it is confessedly competent for the legislature to 
 require railways, in laying their track along the highways, to 
 make compensation to the adjoining land-owners, for any increased 
 detriment, or to be liable for all consequential damage,^ and as it 
 is assuredly just and equitable to do so, it seems desirable it should 
 be done. And in those states and countries * where such enter- 
 prises have become so far matured as to have assumed the form of 
 a settled system, it more commonly is done. And where it is not, 
 it may be regarded as tlie result of oversight in the legislature. 
 It was held that a railway is liable to pay damages for crossing a 
 turnpike company's road, notwithstanding the legislature gave the 
 right.* 
 
 6. Injunctions in equity have been denied, when applied for, to 
 restrain railways from occupying the streets of cities and towns 
 with their track,' by consent of the municipal authority. 
 
 burg, Portsmouth, M. & L. Railw. Co., 4 Harris (Penn.), 182. In this case 
 the act required payment of damage to all who were injured by converting a 
 turnpike into a railway, and it was held a receipt in full to the turnpike company 
 did not bar the claim of an adjoining land-owner for additional damages. But 
 the levelling of a street, preparatory to laying the structure of a railway, is not 
 an obstruction. McLaughlin v. Charlotte and S. C. Kailw., 5 Rich. 583 ; Ben- 
 edict p. Coit, 3 Barb. 459. 
 
 * Bradley v. N. Y. «& N. H. Railw. Co., 21 Conn. 294. 
 
 • Seneca Railw. Co. v. Aub. & Roch. Railw. Co., 5 Hill, 170. And the 
 amount of damage is immaterial. The maxim, de minimis, does not apply to 
 cases of plain violation of right Id. Cowen, J. 
 
 ^ Hamilton p. New York & Harlem Railw., 9 Paige, 171 ; Ilentz p. Long 
 Is. Railw., 13 Barb. 646; Chapman p. Albany & Sch. Railw., 10 Barb. 360; 
 Lexington & Ohio Railw. p. Applegate, 8 Dana, 289 ; Drake p. Hudson River 
 Railw., 7 Barb. 608; Wetmore p. Story, 22 Barb. 414; Milhau p. Sharp, 16 
 Barb. 193. But where the railway is constructed without the legal permission 
 of the municipal authorities or the legislature, along the streets of a populous 
 city, it fcecomes a nuisance, and courts of equity will prohibit its continuance, at 
 the suit of individuals who are tax-payers and property owners on the streets, 
 through which the rails are laid. In a late case in New Jersey, Morris & Essex 
 Railw. p. City of Newark, 2 Stockton's Ch. 352, the right of a railway company 
 to occupy the streets of a city seems to have been examined with considerable 
 care by the chancellor, but the cases upon the subject are not examined very 
 extensively, and reliance is there placed upon the case of Williams p. The New 
 York Central Railw., which has since been reversed in the Court of Appeals, 
 ante, n. 1. 
 
 There is one distinction here adverted to that is not named in other cases, so 
 far as we have noticed, that so long as the highway or street continues to be used 
 as such, the concurrent use of it by a railway company for their track, by con- 
 
 20 •807
 
 306 EMINENT DOMAIN. CH. XI. 
 
 * 7. But in a recent and well-considered case,^ it was held, that 
 where a railway company, in carrying their road tlirough the 
 streets of the city of New Haven, found it necessary to carry one 
 of the streets over the railway, upon a high bridge, with large 
 embankments at each end, the plaintiff owning the land upon both 
 sides of the street, and no compensation being assessed to him, he 
 
 sent of the legislature and the municipal authorities, does not entitle the owner 
 of the fee to additional compensation. But if it is appropriated exclusively to 
 the use of the railway, the owner is then, by constitutional provision, entitled to 
 compensation, the discontinuance of the highway causing a reverter of the fee to 
 the owner. This qualification takes away the most offensive feature of what is 
 claimed, in some of the cases, the right, in the legislature and the municipal 
 authorities, to transmute a common highway or street into a public railway, as 
 one of those improvements in the mode of intercommunication which the progress 
 of events had brought about, and which must be regarded as fairly within the 
 contemplation of the parties at the time of the original taking. 
 
 But, in the present case, there being no necessity for the use of the street in 
 question by the railway, but merely a convenience, and no expre^ consent of 
 the municipal authorities for such use, it was held that no right to such use could 
 be implied, from the grant of their charter, between certain tennini, which might 
 be obtained by a route less injurious to the public, and that the consent of the 
 municipal authorities was not to be inferred from their not interfering until the 
 track had been laid and used for several years and large sums of money thus 
 invested, and important interests accrued, and the injunction restraining the au- 
 thorities from removing the track was dissolved. The extent to which a railway 
 company must obstruct the highway, at an intersection of the two, to create an 
 actionable impediment to the public travel, is extensively considered in the case 
 of Great Western Railw. Co. v. Decatur, 33 HI. 381. It was here decided, 
 that twelve feet of the highway remaining unobstructed, so that a steady team 
 might have passed in safety, is not enough to exonerate the railway company 
 from a charge of obstructing the passage of the highway. 
 
 * Nicholson v. New York & New Haven Railw., 22 Conn. 74. If there 
 is any departure from general principles, in this case, it is in holding the railway 
 company justified in making alterations in highways, which cause no appreciable 
 injurj' to the land-holders, and this certainly commends itself to our sense of 
 reason and justice. It- may be somewhat questionable, perhaps, whether the 
 charge of the judge, who tried the case at the circuit, was not based upon the 
 technical rules applicable to the case, namely, that the company were, at all 
 events, liable for nominal damages, and for all actual damages in addition. But 
 where a railway company, by consent of the mayor and aldermen of a city, under 
 the Revised Statutes, raise a street to enable them to carry their road imder it, 
 they become primarily liable to the adjoining land-owners for any damage to 
 their estates thereby. And it will not affect the liability of the company, that 
 the city took of them a bond of indemnity, and appointed a superintendent to 
 take care of the public interests in the execution of the work. Gardiner v. Bos- 
 ton & Worcester Railw., 9 Cush. 1. 
 
 ♦308
 
 § 76. BIGHT TO OCCUPY HIGHWAY. 307 
 
 might recover of the company in an action of trespass, for any 
 appreciable incidental damages, occasioned by thus constructing 
 their road, and the consequent alteration of the highway or street. 
 And as the company, in thus constructing their road, acted under 
 the authority of the legislature, they were, prima facie, not to be 
 regarded as trespassers, but that, where they caused any appre- 
 ciable damage to the land-owners along the line of the road, they 
 were liable in this form of action. The court in this case, Hinr 
 man J J., assumed the distinct * ground, that the railway, by laying 
 their track upon the plaintifTs land, which was before subject to 
 the servitude of the highway, or street, would become liable " for 
 such entry" upon the land. "In such case," says the learned 
 judge, " the subjecting the plaintiff's property to an additional 
 servitude, is an uifringement of his right to it, and is, therefore, 
 an injury and damage to him. It would be a taking of the prop- 
 erty of the plaintiff, without first making compensation." And 
 the same court, in a later case,^ hold that the location of a railway 
 upon a public highway is the imposition of a new servitude upon 
 the land, and the owner of the fee is entitled to compensation for 
 the damage caused thereby. And this includes all incidental 
 damage to land adjoining, and which belongs to the same pro- 
 prietor. 
 
 In a case in Pennsylvania,^** it is held tliat the legislature 
 may authorize the construction of a railway on a street, or public 
 highway, and the inconvenience thereby incurred by the citizens 
 must be borne for the sake of the public good. But where this is 
 claimed by construction and inference, all doubts are to be solved 
 against the company. 
 
 And where, by the act of incorporation of a municipality, it was 
 provided that the " streets, lanes, and alleys thereof" should for 
 ever be and remain public highways, it was held that the munici- 
 pal authorities could not authorize the construction of a railway 
 thereon, ^'^ 
 
 But where the state conveys to a city the title of a common, 
 reserved in the grant of the township for a " common pasture," 
 subject to the easement of the lot holders, of common of pasturage, 
 
 » Imlay v. The Union Branch Railw. Co., 26 Conn. 249. 
 '• Commonwealth r. Erie & Northeast Railw., 27 Penn. St. 839. See also 
 Alleghany v. Ohio & Pennsylvania Railw., 26 Penn. St. 355. 
 
 •309
 
 308 EMINENT DOMAIN. CH. XI. 
 
 it was held that the city might lawfully grant a portion of the same 
 10 a railway company, for the purpose of constructing their road.^^ 
 
 ' " Alleghany r. Ohio & Pennsylvania Railw., 26 Penn. St. 355. But the grant 
 of fifty feet, through such a common, in a densely populated city, will only con- 
 vey the right to the railway to erect their road thereon, and to receive and dis- 
 charge passengers and freight, and will not give the right to erect depots, 
 car-houses, or other structures, for the convenience or business of the road ; or 
 to permit their cars and locomotives to remain on their track longer than is 
 necessarj' to receive and discharge freight and passengers. lb. 
 
 And it might have been regarded as the settled doctrine of the New York 
 courts, imtil the case of Williamson v. N. Y. Central R., ante, n. 1, that the 
 owner of the fee of land dedicated to the use of a highway or street, and which 
 the legislature devote to the use of a railway, had no claim upon the company 
 for compensation, by reason of the additional servitude thereby imposed upon 
 the land. Corey v. Buffalo, Coming, & New York Railw., 23 Barb. 482 ; Rad- 
 cliff r. Mayor of Brooklyn, 4 Comst. 195 ; Gould v. Hudson River Railw., 2 Seld. 
 522. But this is now otherwise in New York. 
 
 And so late as January-, 1857, the subject is elaborately examined by Vice- 
 Chancellor Kindersley, in Thompson v. West Somerset Railw., 29 Law Times, 
 7, in relation to the cestuis que trust of a pier, over which the act of parliament, 
 in express terms, authorized the company to construct their road, but which they 
 had done without proceeding under the statutes, to appraise compensation, and 
 the court held them trespassers, and an injunction was granted until the company 
 made compensation. 
 
 And in a case in Indiana, the subject is considered, and although the author- 
 ities are not much reviewed, the conclusions of the court conform so closely to the 
 broadest views of reason and justice, that we shall insert an extended note of the 
 points decided. 
 
 A city ordinance authorized the constraction of a railway, on either of two 
 streets, through the corporate limits, tmder suitable restrictions as to grade. It 
 was considered that the ordinance did not authorize the company to substantially 
 alter the grade of the street. It was further : 
 
 Held, that besides the right of way, which the public have in a street, there is 
 a private right, which passes to a purchaser of a lot upon the street, as appurte- 
 nant to it, which he holds by an implied covenant, that the street in front of his 
 lot shall for ever be kept open, for his enjo}-ment, and for any obstruction thereof, 
 to the owner's injury, he may maintain an action. 
 
 The right which the owner of a lot has to the enjoyment of an adjoining street 
 is part of his property, and can only be taken for public use, on just compensa- 
 tion being made, piu^uant to the constitution. Tate r. Ohio & Miss. Railw., 7 
 Porter (Ind.), 479. 
 
 And in HajTies r. Thomas, id. 38, where the cases are more fuUy examined, 
 the same general propositions are maintained. It is there said, the right of the 
 owner of a town lot, abutting upon a street, to use the street, is as much prop- 
 erty as the lot itself, and the legislature has as little power to take away one as 
 the other. 
 
 These general propositions are repeated, and somewhat varied, in the notes
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 309 
 
 * 8. Since the second edition of this work, the decisions have 
 been considerably numerous in regard to the right of railways 
 * to occupy the streets and highways, without making additional 
 compensation to the owners of the fee of the lands across which 
 the same are laid. The principles involved are much the same 
 as have been already stated ; but it will be important to the pro- 
 fession to know them in detail. 
 
 1. In a somewhat recent case^* it was decided, that the occu- 
 pation of the highway by the track of a railway company, is the 
 imposition of an additional servitude, and is the taking of the prop- 
 erty of the owner of the fee in the lands over which the same is 
 laid, within those constitutional prohibitions requiring compen- 
 sation where private property is taken for public use ; and that 
 consequently the company can acquire no right to such use, under 
 legislative and municipal license, without compensation, and that 
 there is no difference in this respect between railways operated by 
 steam and by other motive power. But in another case it was held, 
 that any legislative act empowering a railway company to occupy 
 certain streets and avenues in the city of New York, should not be 
 construed as not intended to give such permission without com- 
 pensation.*^ In the main, this case assumes the opposite ground 
 from that declared by Craig v. Rochester City and Br. Railway 
 Co.^ The question came up for revision in the Court of Appeals, 
 in the case of the People v. Kerr,** * where the court maintained 
 
 of this case. And although we think, upon principle, the right as against a rail- 
 way company should be placed upon the basis of its being an additional and more 
 oppressive burden and servitude upon the land, which entitles the land-owner to 
 additional compensation, there can be, in our judgment, no manner of question 
 of the general soundness of the above decisions. And the latter case, being that 
 of the voluntary dedication of property, by the owner, for the purposes of a 
 street and highway, is verj* well calculated to illustrate the hardship and injustice 
 of wresting such use to the purposes of a railway, so much more burdensome and 
 injurious. So that the general current of the American law upon this subject 
 may now be regarded as the same with the English rule already stated. 
 
 Protzman v. Ind. & Cin. Railway., 9 Ind. 467; Evansville & C. Railw. v. 
 Duke, 9 Ind. 433. See also Marquis of Salisbury r. Great Northern Railw., 
 5 C. B. (N. S.) 174, 8. c. 5 Jur. N. S. 70. 
 
 •* Craig V. Rochester City & Br. Railw. Co., 89 Barb, 494. 
 
 " People ». Kerr, 37 Barb. 367. 
 
 " 27 N. Y. 188. This case must be regarded as settling the law in this 
 state, notwithstanding some conflict in the decisions of their different supreme 
 courts. The rule is thus laid down by Emott, J., in the case last cited. " It 
 must be regarded as settled, in the jurisprudence of this state, that the appro- 
 
 •310,311,312
 
 310 EMINENT DOMAIN. CH. XI. 
 
 the proposition that the construction of a city railway upon the 
 surface of the streets, and without change of grade, is an appro- 
 priation of the land to some extent to public use, but the court 
 held that the original owner of the fee of the streets in the 
 city of New York had no such remaining interest as to justify 
 any demand for compensation on his part for reasons before 
 stated. 1^ 
 
 2. The same distinction, as to the right of the owner of the fee 
 to demand compensation, between the use of the streets of towns 
 and cities for the track of railways, and of highways in the country, 
 is observed in many of the other states. Thus in two cases in 
 Iowa this distinction is maintained.!^ 
 
 3. The question of the locations of railway across or along the 
 streets and highways of cities and towns, as well as in the rural 
 districts, is extensively discussed in a late case in Maine, which 
 came more than once before the courts.^''^ But most of the propo- 
 sitions here maintained are more or less affected by statutory pro- 
 visions. It is here declared (which indeed is found in many other 
 cases, and is sufficiently obvious in itself) that statutes regulating 
 the operation of railways are to be considered as affecting only the 
 general police of the state, and as applying equally to existing and 
 future railways ; but even matters of police affecting the construc- 
 tion of railways cannot reasonably be construed as having a 
 retroactive operation, so as to require a railway company to undo 
 and do over again the work of construction. 
 
 4. The cases ^^ decided in Ohio, in regard to the use of highways 
 
 priation of property to the construction or use of a railway for the transportation 
 of property, is an application of such property to the use of the public. The 
 doctrine applies to all railways, whether traversing the state or the streets of a 
 city, and of course the motive power used does not affect the question. So, also, 
 the uniform course of decisions and legal proceedings since Bloodgood v. Mohawk 
 & Hudson Railw. (18 Wend. 1), and founded upon the principles there asserted, 
 is conclusive that it does not affect the question of public use in such cases, that 
 the property applied to it is to be appropriated by a corporation or by individ- 
 uals, and not directly by the state or the people, or that the road is not of a 
 character to be actually used by any and every citizen with his own vehicle. 
 
 " Ante, § 70, pi. 13. 
 
 " Milbum V. City of Cedar Rapids, «&e., 12 Iowa, 2-16 ; Haight v. The City 
 of Keokuk, &c., 4 id. 199. 
 
 " Veazie v. Mayo, 45 Me. 560; s. c. 49, id. 156. 
 
 "* Crawford v. Delawne, 7 Ohio N. S. 459 ; Cincinnati & Spring Grove Avenue 
 Railw. Co. V. Cumminsville, 14 Ohio N. S. 523.
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 311 
 
 and streets for tlie purpose of street railways, do not appear to be 
 altogether decisive of the principle involved. It seems to be there 
 r^arded, that so far as a street or highway can be appropriated 
 for such use, without appreciable damage to the * owner of the land 
 adjoining, that he is not entitled to any additional compensation, 
 but that if, from change of grade or any other cause, there is any 
 essential damage inflicted upon the abutters, by obstructing access 
 to lands or buildings, or in any other respect, more than would 
 have resulted from the use in the ordinary mode for a highway, 
 the owner of the fee will be entitled to demand additional compen- 
 sation. 
 
 5. But it is obvious that the difficulty, in point of principle, lies 
 somewhat deeper. For although the rule there laid down, in point 
 of equity, may be entirely just and reasonable, it must always 
 prove embarrassing in practice, and compel an appraisement in 
 each particular case, in order to insure security. The true prin- 
 ciple undoubtedly is, that if the use is substantially the same as 
 that of an ordinary highway, no additional compensation can be 
 required ; but if the use is new and distinct from that of an 
 ordinary highway, the owner of the fee is entitled to additional 
 compensation in every case, without reference to special damages ; 
 so that the question turns upon the point whether the use of a 
 street or highway for the support of a railway track is using it 
 for a highway only. As such use of the street for street railways 
 is of necessity solely under municipal control, and is a use to 
 which the municipal authorities might themselves devote the street 
 by constructing the tracks at their own expense, allowing all 
 travellers to use them with every species of carriage, it seemed 
 natural to conclude that it could not be regarded as an additional 
 servitude ; but the current of authority seems to be setting in the 
 opposite direction. 
 
 6. The present inclination seems to be to make no distinction 
 between the use of streets by steam and street railways, and to 
 require compensation in both cases alike. ^* 
 
 7. There are some few cases in different states which still ad- 
 
 '• Ford r. Chicago and North Western Railw. Co., 14 Wise. 609; City of 
 Janesville v. Milw. & Miss. liailw. Co., 7 id. 484; Pomeroy r. Chi. «& Milw. 
 Railw. Co., 16 id. 640 ; Warren p. State, 5 Dutcher, 393 ; Veazie r. Penobscot 
 Railw., 49 Me. 119. The same principle is maintained in Brown r. Duplessia, 
 14 Louis. Ann. 842. But by statute in this state the cities may sell the use of 
 the streets for city passenger railway purposes.
 
 312 EMINENT DOMAIN. CH. XI. 
 
 here to the doctrine that the laying of a railway track for the pas- 
 sage of street railways, at the ordinary grade of the highv/ay, * is 
 not an appropriation of any estate in the land to public use beyond 
 that already appropriated by devoting tlie land to the use of a 
 highway or street.^ And there is an elaborate opinion of Mr. 
 Justice Ellsworth^ of the Connecticut Superior Court,^ where 
 the same views are maintained, and, as it, seems to us, with 
 more plausibility than any case we have found in the opposite 
 direction. 
 
 8. The explanation of the singular vacillation of the courts upon 
 the subject of railways being located on the highways, and whether 
 the owner of the fee was thereby entitled to additional compensa- 
 tion, seems to arise in the following manner. At the first it was 
 so common to designate steam railways as only an improved high- 
 way, that the courts, almost universally in this country, held the 
 owner of the fee entitled to no additional compensation by reason 
 of such railways being laid upon the highway, either across or 
 along their route. But this view, upon more careful consideration, 
 being found untenable, the retrocession of the courts from their 
 former false assumption naturally gave them an unnatural impulse 
 in the opposite direction, by which the conclusion was arrived at, 
 that all railways must equally be an additional burden upon 
 the fee. Whether the proper distinction between street railways 
 and those occupying a distinct route and transacting mainly a dis- 
 tinct business will ever be clearly defined is perhaps questionable. 
 
 9. It seems very certain that the grant to a railway company of 
 the right to pass along the streets of a city or town can confer no 
 right to erect stations and other permanent structures in tlie 
 streets, and thereby render them unfit for use as streets.^ In such 
 cases the adjoining land-owners will be entitled to redress by way of 
 damages, whether they own to the middle line of the street or only 
 to the margin.^ 
 
 10. But the owner of an unimproved building lot upon a street 
 cannot be regarded as suffering any such injury from the location 
 of a railway along the public street adjoining as will entitle him 
 to an injunction.^ And the fact that the defendant * owned the 
 
 » New Albany Railw. Co. v. O'Daily, 12 Ind. 551. 
 " Elliott V. Fairhaven & Westville Railw. Co., 32 Conn, 579. 
 »• Lackland v. North Missouri Railw. Co., 31 Mo. 180. 
 " Zabriskie v. Jersey City & Bergen Railw. Co., 2 Beasley, 314. 
 • 814, 315
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 313 
 
 land across which a railway track is laid, and had never released 
 the right of way to the railway, is no ground of defence for placing 
 obstructions upon the track.'** Nor will the breach of contract by 
 which the company secured the right of way give any color of 
 justification to the land-owner for placing any such obstructions on 
 the track.'^ 
 
 11. Some recent cases affecting the location of street railways 
 in the city of New York may be of interest to the profession, and 
 we have therefore inserted in the note below ^ the leading points 
 decided. 
 
 •* State V. Hessenkamp, 17 Iowa, 25. 
 
 " Sixth Av. Railw. Co. v. Kerr. 46 Barb. 138, where the following points 
 are ruled : — 
 
 Where a railroad is laid in a public street, under a permissive grant to the 
 company to use a portion of the street for that purpose, the company does not 
 acquire the same unqualified title and right of disposition to the land occupied 
 which individuals have in their lands. 
 
 The only exclusive power conferred by such grants is that of using railway 
 carriages in the same manner as the grant of a stage line confers, for the time 
 being, the grant of a monopoly of using such stages for the transportation of 
 passengers for hire on that route. lb. 
 
 After a railway company has obtained permission from the common council 
 of New York to lay a railway through certain streets of the city, and such grant 
 is subsequently confirmed by an act of the legislature, the legislature has the 
 power to grant similar privileges to another company, and to authorize the latter 
 to run upon, intersect, or use any portion of the tracks already laid, on condi- 
 tion of making compensation or payment to the first grantees, if the parties do 
 not agree. lb. 
 
 Such a grant is not a violation of any right of property. The grantees must 
 be considered as holding the grants for the public use, in the public street, which 
 is open to all the public. 
 
 The right to grant a crossing of the road necessarily involves a right to pass 
 over a larger portion of such road, when the legislature so directs. lb. 
 
 A railway corporation, by acquiring the right to construct its road across a 
 highway, and obtaining title to the land for its road-bed, does not destroy or 
 impair the public easement. The perfect and unqualified right of every citizen 
 to pass over the road at that point remains the same as before. lb. 
 
 The common council of the city of New York has no power to authorize an 
 extension of a city railway, unless possibly where such extension is really neces- 
 sary to the enjoyment of a previous valid grant. People v. Third Av. Kailw., 
 45 Barbour, 63. 
 
 If it be claimed that such extension is a necessary incident to the principal 
 subject of the grant, that is a question of fact, and the burden of proving it rests 
 on the railroad company. lb. 
 
 *By the act incorporating the New York & Harlem Railw., passed April 
 
 * 316
 
 314 , EMINENT DOMAIN. CH. XI. 
 
 25, 1832, the company was empowered to construct a single or double rail- 
 way from any point on the north bounds of 23d Street, in the ci^^^y of New 
 York, to any point on the Harlem River between the east bounds of the Third 
 Avenue and the west bounds of the Eighth Avenue, with a branch to the Hud- 
 son River, between 124th Street and the north bounds of 129th Street. Held, 
 1. That the practical location of the railway within the prescribed limits would 
 exhaust the powers conferred, and prevent a subsequent change of location, 
 except by consent of the legislature. 2. That the location of the tracks (if there 
 were two) would have to be substantially upon the same route. That the permis- 
 sion to build a double track should be construed to mean two tracks essentially 
 upon the same location, for the purpose of enabling cars to run in opposite direc- 
 tions, and not two essentially different routes through different streets and ave- 
 nues, such as would be occupied by parallel railways ; especially as the right of 
 granting to other persons or corporations authority to construct parallel railways 
 on streets or avenues not occupied by the New York and Harlem Railw., was 
 expressly reserved to the legislature by the sixteenth section of the same act. 
 People V. N. Y. & Harlem Railw., 45 Barbour, 73. 
 
 By an amendatory act of the 6th of April, 1832, the company was ♦' author- 
 ized and empowered, with the permission of the mayor, &c., of New York, to 
 extend their railway along the Fourth Avenue to 14th Street, and through such 
 other streets as the mayor, &c., might from time to time permit, subject to such 
 prudential rules " as were prescribed by the act, and as the said mayor, &c., in 
 common council convened, might prescribe. Held, that the precise route of the 
 extension was not intended to be defined by the act, but this was designedly 
 left to the sound discretion of the common council ; and the road was to be ex- 
 tended through such other streets as the mayor, &c., might from time to time 
 pennit. lb. 
 
 That this was a continuous power, left to be exercised from time to time as the 
 wants of the community should require. It was not, therefore, a power which 
 was spent by a single grant or permission, but might be repeatedly exercised, 
 according to the exigency of the case. lb. 
 
 Held, also, that the extension authorized by the act of April 6, 1832, was a 
 longitudinal and not a lateral one ; and it was not meant that it should pursue 
 the same precise direction with that portion of the road to which it was attached, 
 and not in any degree diverging from such a course, but that it should have the 
 same general direction as a southern, southeastern or southwestern direction, 
 and not a direction to opposite or widely divergent points of the compass. lb. 
 
 Held, further, that a reasonable interpretation of the act required that the 
 extension should be made from the termination of the road already constructed, 
 so as to be a legitimate continuation and prolongation thereof. That it was to 
 go further, not to return back. It was to be continued, not to branch off. It 
 was to be a single route, not several routes. It was to be an extension, and not 
 a branch. lb. 
 
 Accordingly, the common council of New York having professedly, in pursu- 
 ance of the authority given by the act of April, 1832, passed an ordinance on 
 the "■ 21st of April, 1863, granting permission to the New York & Harlem Railw. 
 to extend its railway, and construct a double track from their present Fourth 
 *317
 
 §76. 
 
 RIGHT TO OCCUPY HIGHWAY. 
 
 315 
 
 Avenue track, between 17th and 18th Streets, through Broadway to the foot of 
 Whitehall Street, with an additional track around Bowling-Green and State 
 Street, and another additional single track around Union Sijuare ; with further 
 permission to construct an additional single track to the Fulton Ferrj-, through 
 John Street, &c., returning through Fulton Street; and to extend its railway 
 and construct a double track in Fourth Avenue, through 2.Sd Street to Madison 
 Avenue, and thence through Madison Avenue as far as it is or hereafter may be 
 opened; with further permission to connect therewith by a single or double 
 track from Fourth Avenue to Madison Avenue, through 24th Street. IltUl, that 
 the permission attempted to be granted by the ordinance was not warranted by 
 the terms, intent, or fair interpretation of the act of 6th April, 1882. lb. 
 
 Held, also, that the permission granted by the common council to the railway 
 company was not maintainable as a lawful exercise of power granted to the 
 common council under the ancient Dongan and Montgomery charters, indepen- 
 dent of any statutor}- grant or authority. lb. 
 
 And in a recent case in Pennsylvania Commonwealth r. Central Passenger 
 Railw., 55 Penn. St. 506, where a proviso in the defendants' act of incorporation 
 prohibited the company from using any railway, turnpike, or artificial road, with- 
 out first obtaining the consent of the owners, it was held it could not use the 
 paved streets of the city of Philadelphia without first obtaining the consent of the 
 municipal authority. 
 
 NATURE AND EXTENT OF STREET RAILWAY FRANCHISES. 
 
 We have thought it proper to here insert the substance of our views on some 
 of the questions just discussed, as contained in a report to the legislature of 
 Massachusetts, upon the rights, duties, and interests of street railways in the 
 Commonwealth, in January, 1865. 
 
 THE PROPEBTT RIGHTS OF THE COMPAKT CONSIDERED. 
 
 11 
 
 12 
 
 1. The inferttt demand* reatomMe protection, 
 
 2. The UguUiture have power to impose a per- 
 
 manent burden vpon streets. 
 
 8. But this is not to be assumed as matter of 
 eonstmctioH, 
 
 4. Deasions not wnform. Generally held that 
 street raiboay /ranckise exists in the ease- 
 ment for the highoa^ Aiudogy of steam 
 roads. 
 
 6. Street nuheays do not inereau the servitude 
 of the highway. 
 
 6. Mutt always be regarded, and treated, as a 
 
 portion of the hightcay. 
 
 7. The estate or franchise of street raUwags, 
 
 exclusive, as to passenger traffic. 
 
 1. We shall now state, as briefly as practicable, and make it intelligible, the 
 true nature of the property of the companies in their locations, as we understand 
 it, and what further legislation, if any, is demanded on their behalf During 
 the hearing it was a good deal pressed upon our consideration, that some further 
 provision of law was demanded, in order to render so large an amount of capital, 
 
 8, 9. This point further illustrated. 
 
 10. How far the legislature may affect Ike ex- 
 clusireness of this franchise. 
 Where compensation is required, no abridg- 
 ment of right imjAied. 
 The franchise and property must remain 
 subject to legislature and municijMil controL 
 
 18. Some states allow additional Innd-damages 
 for change of grade of the street, 
 
 14. This not demandable, unless the change is 
 required for something in addilitm to high- 
 way, or unless git en by fecial statute. 
 
 16-10. Summary of the argument under this 
 head.
 
 316 EMINENT DOMAIN. CH.,XI. 
 
 as that already invested in street railways, as secure as possible, its present inse- 
 curity tending very unjustly and unnecessarily to depreciate its value In the 
 market. There is great reason and justice in this claim, provided it can be done 
 without too great infringement of other interests, or too great departure from 
 the established policy of the law, in regard to such other interests. 
 
 2. We make no question of the right of the supreme legislative power of the 
 * Commonwealth to impose a permanent burden upon the streets and highways, 
 throughout its limits, in favor of street railway companies. 
 
 8. But such a step is so much at variance with the general policy of states in 
 this country, and everywhere, so far as we know, that it cannot be assumed, as 
 matter of construction, upon any general and doubtful provisions of legislation. 
 And we have felt it to be our duty to examine carefully into the legislation and 
 decisions of the different states, in order to determine, if we could, the nature 
 and extent of the franchise, or estate, of the street railway companies, conse- 
 quent upon the grant of their charters and the location of their tracks. 
 
 4. In looking into these decisions, we find no uniformity, and no such view of 
 the principles involved, as wiU be likely to result in the attainment of uniformity 
 of decision, at least ibr many years to come. In a large number of the cases 
 which have come before the courts, in the different states, it seems to have been 
 assumed, as matter of course, that street railways, laid in the public streets and 
 highways, become a part of the public easement in such streets and highways, 
 and that the owners of the fee of the land covered by such railways, or the adjoin- 
 ing proprietors, have no claim for additional damages. And the same rule has 
 been extended to steam railways, laid In the public streets and highways. In a 
 majority of the states where the question has been decided. This we cannot 
 regard as a sound principle, as to steam railways. For although they may be 
 regarded. In a certain sense, as a public highway, for the passing and repassing 
 of all persons who choose to avail themselves of the privilege, in that particular 
 mode of travel. It is very obvious that they are, in no sense, a common highway 
 for public travel, in the ordinary sense, or the ordinary mode. They do not 
 admit of such communication along their line. They are * confined to a single 
 mode of communication, which Is exclusively under the control of a private 
 company, and they impose a servitude upon the land, for the exclusive benefit 
 of this private company, as distinct, and as clearly an additional burden, from 
 the easement for the ordinary highway, as a canal, or any other public work 
 which It is possible to conceive. Hence, in the state of New York the Court 
 of Appeals have reversed their former decisions, and now follow the English 
 courts, and hold the owner of the fee, covered by a highway, entitled to addi- 
 tional compensation, where a steam railway Is laid either across or along its 
 courser Some other states have of late taken the same view, and we feel con- 
 fident that so reasonable a doctrine must ultimately prevail throughout the 
 country. It may be proper here to state, what will occur to any one, that while 
 the track of the street railway is not, or should not be, an impediment to the use 
 of the highway for ordinary vehicles, the rail of the steam road is required to be 
 so constructed as to prove a verj' serious impediment to ordinary travel ; and 
 there are other important grounds of distinction between the steam railways, as 
 tft present operated, and the street railways. 
 *318
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 317 
 
 6. In regard to street railways, therefore, the question is very difTerent, as to 
 creating an additional ser>'itude upon the land. They are confined to the public 
 highways ; as a general thing, no alteration in grade is required. They are not 
 allowed to use such motive power as will seriously annoy other travellers, or the 
 adjoining proprietors. The statutes, whether general or special, under * which 
 these companies have gone into operation, have been studiously drawn, with 
 a special view to make this new mode of transportation inherent merely in the 
 public easement of the highway. This has been done, probably, with the double 
 purpose of escaping the pa^-ment of additional land damages, and at the same 
 time to quiet the public mind as to any apprehension that the companies might 
 ultimately set up a claim for vested rights, which should prove to be beyond the 
 control of the municipal authorities, or even of the legislature. 
 
 6. From the form of these grants, the manner of the construction and opera- 
 tion of the roads, and the early current of decisions upon the subject, no doubt 
 was entertained tliat they would always be regarded and treated as a portion of, 
 and inhering only in, the highway, and as creating no estate in the soil beyond 
 that of the public easement for the highway, 
 
 7. This being assumed, the inquiry becomes nice, and somewhat difficult, as 
 to what precise estate or interest is vested in the corporations. It is certain, we 
 think, that the grant of an act of incorporation to a company for the purpose of 
 constructing and operating a railway for the transportation of passengers, al- 
 though located in and along the highway, is a franchise, and one of an exclusive 
 character, to some extent. The extent of the exclusiveuess of a grant of this 
 character, where no exclusive words are contained in the grant, must depend 
 upon the reasonable and fair implications, to be gathered from the nature of the 
 business, and other surrounding circumstances. And in a case of this kind, 
 where the incorporation is exclusively for the purpose of transporting passen- 
 gers and taking tolls, we think it must be regarded as a fair implication, from 
 the verj- nature of the grant, the investment requisite to carry it into operation, 
 and the necessity of avoiding competition in order to produce any adequate re- 
 turn, that the franchise must be considered as being exclusive of all similar 
 transportation upon the same route, by mere private enterprise. It would be 
 little short of absurdity to suppose that it could have entered into the contem- 
 plation of the legislature, or of the companies, that after obtaining their location, 
 and after having erected and equipped their roads, at large expense, it was still 
 competent for any person, natural or corporate, at his own mere option, to con- 
 struct cars and divide the business, by running upon the same track laid by such 
 company. 
 
 8. This will be more obvious by considering the nature of the business. It is 
 not like ordinary mechanical or manufacturing business, which any one may in- 
 stitute at pleasure. A grant of incorporation, for such or any similar business, 
 implies nothing exclusive in the conduct of the business. The franchise, in 
 such a corporation, does not extend beyond the mere fact of acting in a corporate 
 capacity, or being a corporation. That only is exclusive in the grant which is 
 of a prerogative character, and requires the consent of the sovereign for its cre- 
 ation. If it were competent for any one to lay a passenger railway in the 
 streets, at his own option, or if any one could obtain snch a right from the mu- 
 
 •319
 
 318 EMINENT DOMAIN. CH. XI. 
 
 nicipal authority, or from any sotirce except the legislature, then the grant of an 
 incorporation for carrying on the business would not naturally be construed to 
 exclude others from carrying on the same business, at the same place. And 
 this was the view at first attempted to be maintained, as to street railways, i. e., 
 * that the cities and towns might create them, by special grants, to individuals or 
 companies. 
 
 9. But this view has long since been abandoned, and it is now entirely well 
 settled that such a franchise in the highways can only be created by legislative 
 grant. It is a franchise to carry passengers, and to demand tolls. This is one 
 of the prerogatives of sovereignty, and only derivable through the action of the 
 legislature. It must, therefore, in its very nature, be exclusive of all interfer- 
 ence from any quarter subordinate to the authority from which it was derived. 
 There can then, we think, be no question whatever, that the franchise of these 
 street railway companies is exclusive of all competition, or interference in their 
 business, except under the paramount authority of the legislature. 
 
 10. It was indeed made a question before us, how far it was competent for 
 the legislature even, after granting an exclusive franchise of this character to 
 one company, to virtually repeal it, by permitting other companies to come upon 
 the same track and do a competing business. This is one of those things, where 
 the legislative power of a state may sometimes do that indirectly, provided they 
 act in good faith (which is always to be presumed), which they could not do 
 directly. For instance, it could not be claimed that the legislature, after cre- 
 ating such a franchise, could, by a direct act of legislation, either repeal the 
 charter, or take away the right of compensation by way of tolls or fare. But 
 they may, nevertheless, allow other persons, either natural or corporate, to do a 
 similar business in the same streets ; or to do it, upon the tracks of an existing 
 company, by making compensation to the other company, whenever in their 
 judgment the public good requires it. In the one case, the grant being wholly 
 independent, is understood to be made because the amount of travel is supposed 
 to require two such modes of conveyance ; and, in the other, the compensation 
 is regarded as an equivalent for the use. 
 
 11. But where the legislature do not create a distinct company to do similar 
 business along the same routes, it is fair to conclude that there is no purpose of 
 abridging, or in any manner qualifying, the rights before conceded to the first 
 company. And the mere permission of a branch road to come upon the track 
 of an existing trunk route, where the object, whether for the transportation of 
 its own passengers, or to take up and set down other passengers along the line 
 of the trunk route, is not specifically defined, is not, ordinarily, to be so con- 
 strued, as to effect an essential abridgment of the rights and interests of the 
 trunk line. All reasonable implications should be made in the opposite direc- 
 tion, both upon the ground that the legislature must be presumed to intend to 
 act with entire justice towards the company first chartered, and first investing 
 capital upon the route, and also, upon the ground tliat the provision for com- 
 pensation clearly shows that there was no purpose of abridging the rights of the 
 first company, by allowing the second company to run its cars over the track of 
 the former. 
 
 12. It is upon this ground that we have come to the conclusion already stated 
 
 *320
 
 § 76. RIGHT TO OCCUPY HIGHWAY. 319 
 
 In regard to compensation for the use of a trunk line by a branch company, 
 when it diverts a portion of the traffic. But we cannot regard this rule of com- 
 pensation, or the presumptions of law upon which it is based, as imposing any 
 * restrictions upon the power of the legislature, or that the general law of the 
 Commonwealth or the Constitution of the United States restrains the legislature, 
 in regard to permitting subsequently chartered companies to come upon the 
 track of other and older companies. From the very fact that the franchise of 
 street railways is made to exist only in the public easement of the highway, there 
 arises a clear presumption, that the use of such tracks was intended to remain 
 for ever subject to the control of the legislature, and that they could either con- 
 trol such use, by legislation, or make it subject to the absolute control of the 
 municipalities. It does not seem to us possible for the companies to escape this 
 state of uncertainty, so long as their franchise is vested only in the public ease- 
 ment of the highway, unless they can induce the legislature to give them exclu- 
 sive and independent rights in the highway, by express grant ; and it is doubtful 
 whether even this would bind future legislatures. 
 
 13. A claim, for additional compensation to the abutters, has been maintained 
 against such companies, in some states, wherever it becomes necessary to alter 
 the grade of the streets in laying the rails, in such a manner as to cause special 
 damage to such adjoining proprietors. But this, we think, unless allowed by 
 special statute, is a virtual concession, that the laying a street railway may, in 
 certain contingencies, prove an additional servitude upon the soil, requiring 
 compensation beyond that of the easement for the highway ; and if this proposi- 
 tion be conceded, it will be impossible to escape the conclusion that the street 
 railway is something distinct from the public easement of the highway. And if 
 it be not a part of the same thing, and identical with it, then the owner of the fee 
 of the land in which such easement exists, may always claim damages for the 
 location of a street railway. But this is not the view of the rights of such com- 
 panies wliich has generally been taken, or which we think sound. 
 
 14. On the dther hand, if the street railway is only a part of the highway, 
 inherent in the public easement, then no additional compensation to the land- 
 owner is due, in consequence of any alteration in the grade of the street or 
 highway, unless granted by special statute. That will be only one of those 
 legitimate contingencies which were fairly within the range of the purposes for 
 which the easement of the highway was originally taken, and which should have 
 been taken into account, and is therefore presumed to have been taken into 
 account, in estimating compi>nsation to the land-owner in the first instance. 
 For, in assessing damages for a highway, there must be taken into the judgment, 
 not only the present injury, from building the highway in the first instance, but 
 from all future and allowable alterations of the same. And this will embrace, 
 not only the accommodation of the way to the present modes of ordinary travel 
 and transportation, but to all such modes of travel and transportation as may 
 hereafter arise in the ordinar}' course of improvement, without extending it 
 beyond the contemplated use of an ordinarj- highway. And if the street railway 
 comes within this range, the fact that it is new, or that in some instances it may 
 require to be accommodated with a diflferent grade, to some extent, will be no 
 ground for claiming additional compensation to the owner of the fee. This is 
 
 ♦ 321
 
 320 EMINENT DOMAIN. CH. XI. 
 
 often true in laying a plank road over an ordinary highway, * but we are not 
 aware that any additional compensation is ever required, on that account, in 
 the case of laying a plank road upon an existing highway. So, too, in altering 
 the grade of the highway, without introducing any change in the mode of 
 construction, great injurj- may occur to the abutters, and one not contem- 
 plated, precisely in that form, at the time the land was taken ; and still no 
 additional compensation can be claimed, or allowed, unless by statute, since 
 it comes within the range of the purpose for which the land was originally taken. 
 Each party assumes the risk of any change in the use, or its entire abandonment 
 as a highway. In the one case no additional compensation can be claimed, 
 and, in the other, there is no duty of refunding what has been already paid by 
 way of damages. 
 
 15. We must, therefore, to sum up the results of the argument upon this 
 point, conclude, that the street railway companies in the Commonwealth, by the 
 grant of their charters, acquired a franchise of a prerogative character, not liable 
 to be intruded upon, after the location and construction of their roads, except 
 by authority derived from the legislature, or by virtue of some condition annexed 
 either to the grant or the location. 
 
 16. But we think, so long as the grant is not exclusive in terms, it must be 
 regarded as a fair implication, from the fact of the franchise residing only in the 
 public easement of the highway, that the legislative authority of the common- 
 wealth has entire control of the use of such erections as are made by virtue of 
 the first grant ; and that it may, at any time, define such use by the public gen- 
 erally; and by natural or corporate persons, for transporting passengers for 
 hire, by making compensation. And from the same view it must equally 
 result, that the legislature may delegate the control of this use to the municipal 
 authorities. 
 
 17. And consequently we have not been able to devise any legal mode in 
 which the property rights of these companies can, with propriety, so long as 
 they exist only in the public franchise of the highway, be made more secure. 
 The franchise is exclusive of all interference except by authority derived from 
 the legislature, but it exists where its continuance is only at the will of others 
 who have the legitimate control of the highways. 
 
 18. If it is taken or interfered with, by the authority of the legislature, for 
 merely public uses, such as the greater accommodation of public travel, then no 
 compensation is demandable, since that is one of the conditions or contingencies 
 upon which the grant was accepted. But so far as this franchise is taken, or 
 interfered with, for the advancement of private ends and enterprises, the first 
 grantee is entitled to full compensation, as much as for any other property. 
 
 19. This, then, although an exclusive franchise, so far as the carrying of pas- 
 sengers and taking tolls is concerned, is a mere estate at wiU, so far as the legis- 
 lative power is concerned, or the general demands of the public interest may 
 require, through the action of the municipal authorities. 
 
 • 822
 
 § 77. CONPUCTING RIGHTS IN DIPPERENT COMPANIES. 821 
 
 •SECTION XV. 
 Conflicting Rights in different Companies. 
 
 1. Railuxuf company subservient to another, \ 2. Where no apparent conflict in route, flrtt 
 can only take of the other land enough I located acquires superior right, 
 
 far its track. I 
 
 § 77. 1. Where the defendants' statutory powers were subject 
 to those conferred upon the plaintiffs, whose charter was first 
 granted, providing that the plaintiffs' powers shall not be so ex- 
 ercised as to prevent the defendants from corapulsorily taking and 
 using land sufficient to construct their branch lines, not exceeding 
 twenty-two feet in width, at the level of the rails, the plaintiffs 
 having first purchased, with the consent of the owner, lauds which 
 the defendants proposed to take, beyond the twenty-two feet, for 
 purposes of building stations, &c., it was held, that the plaintiffs 
 having occupied the ground first, were entitled to hold so much 
 as was not actually necessary for the formation of defendants' 
 railway.^ 
 
 2. Where two railway companies were incorporated to complete 
 independent lines across the state, only the termini of either being 
 prescribed, there being no apparent or necessary conflict of the 
 routes, it was held, tliat the company which first surveyed and 
 adopted a route, and filed the survey in tlie proper office, were en- 
 titled to hold it, without reference to the date of the charters, both 
 being granted at the same session of the legislature.^ 
 
 > Lancaster & Carlisle Railw. v. The Maryport & Carlisle Railw., 4 Railw. C. 
 604; post, § 105. 
 
 * Morris & Essex Railw. c. Blair, 1 Stockton, Ch. 635. 
 
 A similar decision, in principle, is made in Gawthem r. Stockport, Disley & 
 W. Railw., 29 Law Times, 308, Rolls Court, March, 1857. In this case the 
 railway first chartered was laid out and paVtly built, but had been lying by some 
 time, and the Master of the Rolls held, a subse<iuent railway was not precluded 
 from interfering with the contemplated route of the first railway. One railway 
 may be laid across the line of another company, but the latter will be entitled 
 to damages, although the former is laid upon piles over tide water. Grand J. & 
 Depot Co. r. County Commissioners, 14 Gray, 653. And it is here said, where 
 two railway companies file a joint location, they are jointly liable for damages to 
 land-owners ; and a location may refer to a plan so as to make that part of the 
 location. 
 
 21 • 323
 
 322 EMINENT DOMAIN. CH. XI. 
 
 ♦SECTION XVI. 
 Bight to Build over Navigable Waters. 
 
 1. Legislature may grant the right. I 8. Principal grant carries its incidents. 
 
 2. Riparian proprietor owns only to the t 9. Gi-ant of a harbor includes necessary 
 
 water. ' erections. 
 
 3. His rights in the water subservient to pub- : 10, 11. Large rivers held navigable in this 
 
 lie use. country. 
 
 4. Legislative grant paramount, except the 12. I^nd being cut off from wharves is " in- 
 
 national rights. 
 5. State interest in flats where tide Ms and 
 
 6. Rights of adjoining owners in Massachu- 
 
 setts. 
 
 7. RaiUeoy grant to place of shipping. 
 
 juriotisly affected." 
 
 13. Paramount rights of Congress infringed 
 
 creates a nuisance. Party specially in- 
 jured may have action. 
 
 14. Case in New Hampshire. 
 
 15. "Obstruction, if illegal, per se a nuisance. 
 
 § 78. 1. In regard to navigable streams, it seems to be a con- 
 ceded point, that the owner of land adjoining the stream has no 
 property in the bed of the stream, and hence that the legislature 
 in England may give permission to a railway company to so con- 
 struct their road, as to interfere with and alter the bed of such a 
 stream, to the damage of any owner of adjouiing land, in regard to 
 flowage, or otherwise, even to the hinderance of accustomed navi- 
 gation, without compensation ; and that the railway company, in 
 constructing their road within the provisions of the act, do not 
 become liable to an action for damages, to any such proprietor of 
 adjoining laud.^ 
 
 » Abraham r. Great Northern Railw., 16 Q. B, 586 ; s. c. 5 Eng. L. & Eq. 
 258. " The legislature might authorize defendants to construct a causeway or 
 bridge across navigable or tide-waters, although the navigation might be thereby 
 impaired." And in a very recent case in the Queen's Bench, (Jan. 1858), Re- 
 gina r. Musson, 8 El. & Bl. 900 ; s. c. 30 Law Times, 272, it is held that a pier, 
 built into the sea, is not liable to the parish rates, except so far as it is above 
 high-water mark. Lord Campbell, Ch. J. said, " As to the part between high 
 and low water mark, it is quite clear that the soil between high and low water 
 mark is in the Cro^vn, and prima facie extra parochial. If so, the onus lies 
 on the parish of showing it is within the limits of the parish. That may be done 
 by evidence of perambulating it, in the parish bounds, or of reputation." See 
 Parker v. Cutler Milldam Co., 20 Maine, 353; opinion of court in Brown c. 
 Chadboume, 31 Maine, 9; Sheplcy, Ch. J., Rogers e. The Kennebec & Port- 
 land Railw., 35 Maine, 319. So, too, to construct their road across the basins 
 of a water company, to their injury, upon making compensation. Boston Water 
 Power Co. ». Boston & Worcester Railw., 23 Pick. 360; 8. c. 1 Am, Railw. 
 •324
 
 § 78. ERECTIONS OVER NAVIGABLE WATERS. 323 
 
 * 2. The same point has been often decided in this country.* 
 Whether waters are navigable or not, is determined by the ebb and 
 flow of the tide. And although streams, above tliat point, are 
 navigable often, for steamboats and lesser water craft, and are pub- 
 lic highways for such purposes, and often become highways by 
 prescription, for purposes of inferior navigation, as floating timber, 
 and wood, and possibly they may be regarded as such even inde- 
 pendent of such prescription ; yet the ownership of the riparian 
 proprietor to the middle of the stream, ad medium filum aquce^.\% 
 not excluded, except in tide-waters,'^ and such large rivers, in this 
 country, as by authority of Congress or common consent have ac- 
 quired or assumed the character of navigable waters, although not 
 coming strictly within the common-law definition.* 
 
 3. But in tide-waters, and navigable lakes, the rights of the 
 owner of land adjoining such waters, in the stream are subservient 
 to the public rights, and are consequently subject to legislative 
 control, and any loss the owner of such land may thereby sustain 
 is damnum absque injuria.* 
 
 * 4. It seems to be considered, that the state legislatures have 
 unlimited power to erect bridges and railways, and make any other 
 public works across navigable waters, subject only to the paramount 
 authority of the national government.^ 
 
 C. 298. The grant of power to construct a railway between two points, car- 
 ries authority to cross navigable waters, if that is reasonably necessary, in the 
 construction of 'the works. Fall River Iron Works v. Old Colony & Fall River 
 Railw., 5 Allen, 221. 
 
 * Gould r. Hudson River Railw., 2 Selden, 622 ; post, § 206. 
 
 ' 1 Hargrave's Law Tracts, by Lord Hale, 12, 13, 85 ; Angell on Tide-Waters, 
 c. VL pp. 171, 172, 173, 174. 
 
 * Chaniplain & St. Lawrence Railw. v. Valentine, 19 Barb. 484. But in Bell 
 r. Gough, 3 Zab. 624, it is held, that if the riparian owner have made improve- 
 ments on the land below high water, so jA to have reclaimed it, the part so re- 
 claimed belongs to him, and cannot be granted by the state. And three of the 
 judges, in the trial of this case, in the Court of Appeals, which consisted of nine 
 judges, held that riparian owners have a vested right in the benefits and advan- 
 tages arising from their adjoining tlie water, of which they cannot be deprived 
 without compensation. But this case, although exhibiting great research and 
 ability and considerable learning, is not altogether in accordance with the general 
 current of the decisions upon the subject, and is probably based upon the custom 
 or usage which has prevailed to a great extent in some sections of this country 
 firom its first settlement, originally founded upon Colonial statutes probably, and 
 in others, perhaps, growing up by common consent, as a kind of local law. 
 
 * The People p. Rensselaer & Saratoga Railw., 15 Wend. 113 ; Bailey v. Phil. 
 
 * 325, 326
 
 324 EMINENT DOMAIN. CH. XI. 
 
 *5. The commonwealth of Massachusetts has no interest in 
 flats where the tide ebbs and flows, which it is necessary to have 
 
 & WU. Railw., 4 Hairing. 389; People v. City of St. Louis, 5 Oilman, 351; 
 Spooner v. McConnell, 1 McLean, C. C. 337 ; State of Pennsylvania v. Wheel- 
 ing Bridge Company, 13 How. 518 ; Wilson v. The Blackbird Creek Marsh Co., 
 2 Pet. (U. S.) 245; Hogg v. The Zanesville Canal Co., 5 Ham. 410; United 
 States V. The N. Bedford Bridge Co., 1 W. & M. 401 ; Atty.-Gen. r. Hudson 
 River Railw., 1 Stockton, Ch. 526; Getty v. Same, 21 Barb. 617. 
 
 In the late case of Smith v. Marj-land, 18 How. (U. S.) 71, it is held that the 
 soil, in the shores of Chesapeake Bay, in the state of Marj'land, below low-water 
 mark, belongs to the state, subject to any prior lawful grants by the state, or the 
 sovereign power, before the Declaration of Independence. But that this right 
 of soil in the state is a trust, for the enjojTnent by the citizens of certain public 
 rights, among which is the common right of fishery' ; that the state may lawfully 
 regulate the exercise of this right, and declare vessels forfeit, for violations of 
 regulations so established ; and that the exercise of such powers by the state is 
 no infringement of the paramount authority of Congress, or of the exclusive 
 admiralty and maritime jurisdiction of the United States courts. 
 
 In the case of Milnor v. The Railway Companies, and Others v. The Plank- 
 Road Companies, in New Jersey, before the Circuit Court of the United States, 
 where it was sought to restrain the companies from bridging the Passaic River, 
 below Newark, which had been erected into a port of entry by Congress, and 
 had some foreign commerce, and some internal navigation, the following points 
 were ruled by Mr. Justice Grier, 6 Law Reg. 6 : "A court of the United States 
 has no jurisdiction to restrain, by injunction, the erection of a bridge over a 
 navigable river lying wholly within the limits of a particular state, where such 
 erection is authorized by the legislature of the state, though a port of entrj' has 
 been created by Congress above the bridge. Dicta, in Devoe v. Penrose Ferry 
 Bridge Co., 3 Am, L. Reg. 83, overruled; and, in Penns3-lvania t;. Wheeling 
 Bridge Co., 13 How. 579, explained. 
 
 The point overruled by the learned judge is thus stated by him: "That 
 although the courts of the United States cannot punish, by indictment, the 
 erection of a nuisance on our public rivers, erected by authority of a state, yet 
 that as courts of chancery they may interfere at the instance of an individual 
 or corporation who are likely to suflFer some special injury, and prohibit, by 
 injunction, the erection of nuisances to the navigation of the great navigable 
 rivers leading to the ports of entry within a state." 3 Amer. Law Reg. p. 83. 
 
 The following extract from the opinion gives the point of the decision : " The 
 Passaic River, though navigable for a few miles within the state of New Jersey, 
 and therefore a public river, belongs wholly to that state ; it is no highway to 
 other states, no commerce passes thereon from states below the bridge to states 
 above. Being the property of the state, and no other state having any title to 
 interfere with her absolute dominion, she alone can regulate the harbors, wharves, 
 ferries, or bridges, in or over it. Congress has the exclusive power to regulate 
 commerce, but that has never been construed to include the means by which 
 commerce is carried on within a state. Canals, turnpikes, bridges, and railways 
 are as necessary to the commerce between and through the several states, as 
 *327
 
 § 78. ERECTIONS OVER NAVIGABLE WATERS. 325 
 
 * apprised, under the statute, when such land is taken, as appurte- 
 nant to the upland, for the purpose of building a * railway.^ And as 
 
 rivers. Yet Congress has never pretended to regulate them. When a city is 
 nuule a port of entry. Congress does not thereby assume to regulate its harbor, or 
 detract from the sovereign rights before exercised by each state over her own 
 public rivers. Congress may establish post-offices and post-roads ; hut this does 
 not affect or control the absolute power of the state over its highways and 
 bridges. If a state does not desire the accommodation of mails at certain places, 
 and will not make roads and bridges on which to transport them. Congress can- 
 not compel it to do so, or reijuire it to receive favors by compulsion. Constitut- 
 ing a town or city a port of entry, is an act for the convenience and benefit of 
 such place, and its commerce ; but for the sake of this benefit the constitution 
 does not require the state to surrender her control over the harbor, or the high- 
 ways leading to it, either by land or water, provided all citizens of the United 
 States enjoy the same privileges which are enjoyed by her own. 
 
 • Walker v. Boston & M. Railw., 8 Cush. 1 ; s. c. 1 Am. Railw. C. 462. 
 Under a colonial ordinance of 1647, of Massachusetts, the flats on creeks, coves, 
 and arms of the sea, where the tide ebbs and flows, to the extent of one hundred 
 rods, are appurtenant to the upland, and the owners of the adjoining land have 
 an estate in fee therein, subject to the right of the Commonwealth, for making 
 public erections, which is paramount, and subject also to such restraints and 
 limitations of the proprietors' use of them, as the legislature may see fit to im- 
 pose for the preservation and protection of public and private rights. Common- 
 wealth r. Alger, 7 Cush. 53. And a similar custom or usage prevailed to some 
 extent in some of the other American colonies, traces of which will be found 
 in some of the more recent decisions in those states, which have succeeded them. 
 
 The (question of the right of riparian owners along the margin of the sea, 
 where the tide ebbs and flows upon sea flats, in the state of Massachusetts, is 
 more extensively and more learnedly discussed in Commonwealth r. Iloxbury, 
 9 Gray, 4.51, and the reporter's note, by the present Mr. Justice Gray of the 
 Supreme Judicial Court, than in any other place within our knowledge. The 
 leading propositions decided by the case, are : 
 
 1. The Commonwealth is the owner in fee of all channels, lands, and flats 
 below low-water mark, and more than one hundred rods below high-water mark. 
 
 2. The charter of the colony of Massachusetts conveyed to the grantees all 
 public and private rights in the sea-shore between high and low water mark, with- 
 out express words. 
 
 3. An order of the Greneral Court, that all the ground lying between two towns 
 shall belong to one of them, conveys no right, more than one hundred rods below 
 high-water mark. 
 
 4. An act granting permission to a mill corporation to exclude the tide waters 
 from a portion of the flats, and use it as a basin for the purposes of a mill power, 
 does not release the title of the Commonwealth to such flats. 
 
 5. An act defining the boundary between two towns, and recognizing some 
 deviations from the original or natural boundarj-, and some exchanges of terri- 
 tory, will not imply any relinquishment of title on the part of the Commonwealth. 
 
 • 328, 329
 
 326 EMINENT DOMAIN. CH. XI. 
 
 the owner has the right to raise such flats, by filling up, if he is 
 compelled to do more filling up to secure free access to other 
 
 " Whether a bridge over the Passaic will injuriously affect the harbor of New- 
 ark, is a question which the people of New Jersey can best determine, and have 
 a right to determine for themselves. If the bridges be an inconvenience to 
 sloops and schooners navigating their port, it is no more so to others than 
 to them. I see no reason why the state of New Jersey, in the exercise of her 
 absolute sovereignty over the river, may not stop it up altogether, and establish 
 the harbor and wharves of Newark at the mouth of the river. It would affect 
 the rights of no other state. It would still be a port of entry, if Congress chose 
 to continue it so. Such action would not be in conflict with any power vested 
 in Congress. A state may, in the exercise of its reserved powers, incidentally 
 affect subjects intrusted to Congress without any necessarj- collision. All rail- 
 ways, canals, harbors, or bridges, necessarily affect the coiftmerce not only 
 within a state but between the states. Congress, by conferring the privilege of 
 a port of entry upon a town or city, does not come in conflict with the police 
 power of a state exercised in bridging her own rivers below such port. If the 
 power to make a town a port of entry includes the right to regulate the means 
 by which its commerce is carried on, why does it not extend to its turnpikes, 
 railways, and canals, to land as well as water? Assuming the right (which I 
 neither afiirm nor deny) of Congress to regulate bridges over navigable rivers 
 below ports of entrj', yet, not having done so, the courts cannot assume to them- 
 selves such a power. There is no act of Congress or rule of law which courts 
 could apply to such a case. It is possible that courts might exercise this discre- 
 tionary power as judiciously as a legislative body, yet the praise of being 'a good 
 judge ' could hardly be given to one who would endeavor to ' enlarge his juris- 
 diction ' by the assumption, or rather usurpation, of such an undefined and dis- 
 cretionary power. 
 
 " The police power to make bridges over the public rivers is as absolutely and 
 exclusively vested in a state as the commercial power is in Congress : and no 
 question can arise as to which is bound to give way, when exercised over the 
 same subject-matter, till a case of actual collision occurs. This is all that was 
 decided in the case of Wilson v. The Blackbird Creek, &c., 2 Peters, 245. That 
 case has been the subject of much comment, and some misconstruction. It was 
 never intended as a retraction or modification of any thing decided in Gibbons 
 V. Ogden, or to deny the exclusive power of Congress to regulate commerce. 
 Nor does the Wheeling Bridge case at all conflict with either. The case of 
 Wilson V. The Blackbird Creek, &c., governs this, while it has nothing in com- 
 mon with that of the Wheeling Bridge." 
 
 And where the legislature of the colony of New Jersey, at an early day (1760), 
 passed an act to enable the owners of meadows along a small creek emptying 
 into the Delaware River, and into which the tide ordinarily flowed for about two 
 miles, to support and maintain a dam, to shut out the tide from the creek, for 
 the puqwse of draining such meadows : and enacted that said bank, dam, and 
 all other waterworks already erected, or which should thereafter be found neces- 
 sary to be erected, for the more effectual preventing the tide from overflowing 
 the meadows lying on the said creek, should be erected, supported, and main-
 
 § 78. ERECTIONS OVER NAVIGABLE WATERS. 327 
 
 lands, by reason of the construction of a railway, *it is proper to be 
 considered by the jury in estimating land damages to such owners.' 
 But the owner of a tide-mill has no right to have such riparian 
 flats, as he owns, kept open and unobstructed for the free flow of 
 tide-water to his mill. 
 
 6. The adjoining owners of such flats in Massachusetts have the 
 riglit to build solid structures to a certain extent, and thus 
 obstruct the ebb and flow of the tide, if in so doing they do not 
 wholly obstruct the access of other proprietors to their houses and 
 lands ; and if the mill-owner and other proprietors suffer damage 
 therefrom, it is damnum absque injuria.^ " Therefore," say the 
 
 tained at the equal expense of all the owners and possessors of the meadows, 
 defining the limits up the creek ; and provided the manner in which the natural 
 watercourse of the creek should be kept clear, and for the election yearly, by 
 all the land-owners, of two managers, empowered to assess the owners or occu- 
 piers of such meadows, as they should deem necessary for repairing and main- 
 taining the dam ; and the act had been accepted by the owners of the meadow, 
 managers elected, and the dam repaired, under the provisions of the act, and a 
 large amount expended, from time to time, after the passage of the act ; and 
 where the legislature in the year 1854 passed an act, declaring this creek to be 
 a public highway in all respects, as fully as it was before the erection of such 
 dam, and empowering the municipal authorities to remove the dam, and open 
 the navigation : 
 
 It was held, upon a bill filed in equity to restrain the committee of the town- 
 ship from performing this duty, so imposed upon them ; 
 
 That the legislature had the right to make the grant, there being nothing to 
 show that the public interest demanded the navigation of the creek ; 
 
 That it does not follow, that every creek or rivulet, into which the tide ebbs 
 and flows, is to be regarded as navigable water, in such sense as to be beyond the 
 control of the legislature, except as a public highway ; and the legislature is the 
 sole judge, to determine when such streams shall be considered navigable rivers, 
 and be maintained and protected as such ; that the act of 1760 did not only 
 authorize the owners of the meadows to continue the dam, but it gave the 
 authority of the state to compel its continuance; that the act of 1854 was in 
 violation of the United States Constitution, inhibiting the several states from pass- 
 ing laws impairing the obligation of contracts. It was a virtual repeal of the former 
 act, under which rights had become vested, and valuable property acquired ; 
 
 That the act of 1854 was also repugnant to the constitution of the state, as a 
 taking of private property for public use, without just compensation ; a partial 
 destruction or diminution of the value of property, being to that extent, a taking. 
 Glover r. Powell, 2 Stockton's Ch. 211. 
 
 ' Commonwealth r. Boston & Maine Railw., 3 Cuah. 25; 8. c. 1 Am. Railw. 
 C. 482 ; Fitchburg Railw. r. Boston & Maine Railw. 3 Cash. 68 ; 8. c. 1 Am. 
 Railw. C. 608. 
 
 ^ Davidson v. Boston & M. Railw., 3 Gush. 91 ; s. c. 1 Am. Railw. C. 534. 
 
 •330
 
 328 EMINENT DOMAIN. CH. XI. 
 
 court, " 80 far as the railroad erected by the legislature affected 
 the right of the claimants to pass and repass to and from their 
 lauds and wharve.s with vessels, it was a mere regulation of a pub- 
 lic right, and not a taking of private property for a public use, and 
 gave no claim for damages." 
 
 7. The grant of a railway " to the place of shipping lumber " 
 on a tide-water river, justifies an extension across flats and over 
 tide-water to a point at whicli lumber can be conveniently shipped.^ 
 
 8. In a recent case in the House of Lords,^** it was held, that 
 where a statute authorizes a company to construct certain works, 
 as a harbor, it is to be presumed they have power to execute all 
 works incidental to their main purpose, and whicli they deem 
 necessary, provided they act bona fide. 
 
 9. Accordingly, when public trustees for improving the naviga- 
 tion of the Clyde were authorized by statute to acquire lands 
 adjoining the river, and to construct a quay, or harbor, and having 
 acquired part of A.'s land, proposed to erect a large goods-shed 
 fronting the river, and between the rest of A.'s land and * the river, 
 it was held, that although the statute gave no express power to 
 erect sheds, it must be presumed that a harbor, equipped with 
 all the most approved appliances for trade, was intended by 
 the legislature, and that therefore a power to erect sheds was 
 implied.^*^ 
 
 10. An interesting case ^^ has recently been determined by the 
 
 » Peavy ». The Calais RaUwl, 30 Maine, 498; 8. c. 1 Am. Railw. C. 147. 
 See also Babcock r. Western Railw., 9 Met. 553; 8. c. 1 Am. Railw. C. 399. 
 So the grant of a railway between certain termini, which line passes over navi- 
 gable rivers, authorizes the company to bridge such rivers. Attorney-Gen. v. 
 Stevens, Saxton, Ch. 369. 
 
 " Wright V. Scott, 34 Eng. L. & Eq. 1 ; ante, § 63. 
 
 " McManus r. Carmichael, 5 Am. Law Reg. 593. It is maintained in this case, 
 with great labor and research, that a large number of the states have adopted 
 similar views in regard to their large rivers. See also Bowman r. Wathen, 2 
 McLean's C. C. 376, where the learned judge of that circuit thus lays down the 
 law, in regard to the shores of the Ohio river : *' On navigable streams the ripa- 
 rian right we suppose cannot extend generally beyond high-water mark. For 
 certain purposes, such as the erection of wharves and other structures for the 
 convenience of commerce, and which do not obstruct the navigation of the river, 
 it may be exercised beyond this limit. But in the present case this inquiry is 
 not important. It is enough to know that the riparian right on the Ohio River 
 extends to the water, and that no supervening right over any part of this space 
 can be exercised or maintained without the consent of the proprietor. He has 
 the right of fishery, of ferrj', and every other right which is properly appurte- 
 *331
 
 § 78. ERECTIONS OVER NAVIGABLE WATERS. 329 
 
 Supreme Court of Iowa, in regard to the important question, to 
 what extent tlie large rivers in this country, as the Mississippi, are 
 to be regarded as navigable waters, above where the tide ebbs and 
 flows. 
 
 11. It is there held, that all waters are to be regarded as navi- 
 gable, above where the tide ebbs and flows, which are of common 
 use to all the citizens of the republic for purposes of navicjation, or 
 that navigability, in fact, is to be regarded as the decisive test, 
 rather than the ebb and flow of the tide. And it is here main- 
 tained, that the acts and declarations of the United States con- 
 stitute the Mississippi a public highway, and that consequently the 
 riparian proprietors have no interest in the lands below high-water 
 mark. 
 
 12. And where one, upon the shore of a navigable stream or 
 arm of the sea, is cut ofi" by a railway or other public work from 
 * all communication with the navigation, to the injury of wharves 
 or other erections which the party made upon his land, it has been 
 held that such person is entitled to damages under the statutes 
 allowing parties compensation where their estate is " injuriously 
 afiected." ^ 
 
 13. And it seems to be regarded as settled, that where the 
 grant of any authority, by the state legislature, in regard to naviga- 
 ble waters, in its exercise works an interference with the exclusive 
 power of Congress to regulate commerce, whether foreign or in- 
 ternal, such interference being unlawful is a nuisance, and any 
 private person suffering special damage thereby is entitled to an 
 action at law, or to maintain a bill in equity for a perpetual injunc- 
 tion.^^ 
 
 nant to the soil. And be holds every one of these rights by as sacred a tenure as 
 be holds the land from which they emanate. The state cannot, either directly 
 or indirectly, divest him of any one of these rights, except by a constitutional 
 exercise of the power to appropriate private property for public purposes. And 
 any act of the state, short of such an appropriation, which attempts to transfer 
 any of these rights to another, without the consent of the proprietor, is inopera- 
 tive." See also Lehigh Valley Railw. r. Trone, 28 Penn. St. 206. 
 
 >* BeU V. HuU & Selby Railw., 6 M. & W. 699. 
 
 " State of Pennsylvania ». Wheeling Bridge Co., 13 How. 618; 8. c. 18 id. 
 421. The same principle is recognized in other cases. Works ». Junction Railw., 
 6 McLean, 425; United States v. Railroad Bridge Co., 6 id. 617. 
 
 When the case of Pennsylvania v. Wheeling Bridge Co. was last before the 
 court, it was held, that the paramount authority of Congress, in the regulation 
 of commerce, included the power to determine what was an obstruction to nav- 
 
 •332
 
 330 
 
 EMINENT DOMAIN. 
 
 CH. XI. 
 
 14. The questions are very numerous which have arisen in re- 
 gard to the conflicting rights of different grantees affecting fran- 
 chises and easements of different kinds. In a case in New Hamp- 
 shire,^* some questions affecting the construction of grants, and 
 reservations of this kind, are very extensively discussed. 
 
 * 15. It seems to be well settled, both in England and in this 
 country, that if there is no legal authority for the erection of a 
 pier in a navigable river, such erection will become a nuisance 
 per 86, and that no evidence can be received to show that 
 although illegal it will do no harm, that question being wholly 
 immaterial.^ 
 
 SECTION XVII. 
 
 Obstruction of Streams by Company^s Works. 
 
 1. Cannot divert stream, tvithout compensa- 
 
 tion. 
 
 2. Company liable for defective construc- 
 
 tion. 
 
 3. So also if they use defective works, built 
 
 by others. 
 
 4. Company liable to action, where mandamus 
 
 will not lie. 
 
 Company liable for defective works, done 
 according to their plans. 
 
 When a railway "cuts off" wharves 
 from the navigation. 
 
 Stream must be restored and maintained. 
 
 Company cannot cast surface water on 
 adjoining land except from strict neces- 
 sity. 
 
 § 79. 1. In regard to the obstruction of streams, by building 
 railways, the better opinion seems to be, that the company are 
 bound to do as little damage to riparian proprietors as is reason- 
 
 igation. And Congress having legalized the bridge of defendants, after the 
 judgment of the court to abate it, but before it was carried into effect, it was 
 held, that the occasion for executing the judgment was thereby removed. Air. 
 Justice Nelson, p. 432, thus lays down the law, as to streams under state con- 
 trol : — 
 
 " The purely internal streams of a state, which are navigable, belong to the 
 riparian owners to the thread of the stream," and they have a right to use them, 
 " subject to the public right of navigation." — " They may construct wharves or 
 dams or canals, for the purpose of subjecting the stream to the various uses to 
 which it may be applied, subject to this public easement. But if these structures 
 materially interfere with the public right, the obstruction may be removed or 
 abated as a public nuisance." — " These purely internal streams of a state, as to 
 the public right of navigation, are exclusively under the control of the state 
 legislature." And although erections authorized by grant from the state legis- 
 lature cause " real impediment to the navigation," tliey are nevertheless la>vful, 
 and the riparian owner has no redress. See also Morgan v. King, 18 Barb. 277. 
 
 " Goodrich v. Eastern Railw. Co., 37 N. H. 149. 
 
 " The People v. VanderbUt, 38 Barb. 282. 
 *333
 
 § 79. ERECTIONS OBSTRUCTING STREAMS. 331 
 
 ably consistent witli the enjoyment of their grant.^ The state 
 cannot grant the power to divert a stream of water without com- 
 pensation.^ 
 
 2. Thus if by making needless obstructions in streams, in the 
 erection of bridges, or by imperfect or insufficient sluices or ducts 
 for the passage of streams, intersected t>y a railway, the land or 
 adjoining property is injured, the company are liable.' 
 
 3. So, too, the company are liable to pay damages for an injury 
 caused to the plaintiff, by flowing his land in a great freshet, in 
 consequence of their bridges damming up the water, although the 
 bridges were erected by another company, before the defendants* 
 company was chartered,* and there had been no request to the 
 defendants to remove the obstruction.^ 
 
 * 4. And where the waters on certain lowlands were flowed back 
 upon the plaintiff''s land, by reason of insufficient openings in a 
 railway constructed across such lowlands, it was held that the 
 company were liable to make good the damages sustained by plain- 
 tiff", although no statute required them to make the openings, and 
 they could not be compelled to do so by writ of mandamus.^ So, 
 too, in regard to other public works, if damage accrue to others in 
 consequence of their imperfect construction, the proprietors are 
 
 ' Boughton ». Carter, 18 Johns. 405; Hooker r. N. H. & Northampton Co., 
 14 Conn. 146. 
 
 * Gardner r. Newburgh, 2 Johns. Ch. 162. 
 
 * Hatch p. Vermont Central Ilailw., 25 Vt 49 d. seq. ; Mellen v. Western 
 Railw., 4 Gray, 301 ; March r. C. & P. Railw., 19 N. H. 372. 
 
 * Brown r. Cayuga & Susquehannah Railw., 2 Kern. 386. 
 
 * Per Denin, J., 2 Kern. 486. But the question in regard to the liability of 
 the company for continuing the obstruction, without notice to remove it, was 
 not decided by the court. This subject, in regard to the necessity of a special 
 request, is somewhat discussed in Norton v. Valentine, 14 Vt. 239, 244. In 
 Hubbard v. Russell, 24 Barb. 404, it is held, that in order to recover damages of 
 the *• continuator of a private nuisance, originally erected by another," there 
 must be proof of a request to remove the same. But where a railway company 
 bought up a navigation company, and suffered the works of that company to 
 fall to decay, so that damage was suffered by a municipal corporation, in regard 
 to their harbor, it was held the company were liable ; although only a nonfea- 
 sance in form, it operated substantially as a misfeasance, they having maintained 
 and used the locks of the navigation company in such a state as to cause the 
 injury. Preston r. Eastern Counties Railw., 30 Law Times, 288; 8. c. worn. 
 Preston t. Norfolk Railw., 2 H. & N. 735. 
 
 * Lawrence r. Great Northern Railw., 4 Eng. L. & Eq. 266; 8. c. 16 Q. B. 
 643, and 6 Railw. C. 656. 
 
 •834
 
 332 EMINENT DOMAIN. CH. XI. 
 
 liable, as a municipal corporation, for insufficient sewers, whereby 
 plaintiff's factory was overflowed in a freshet, and the property 
 therein seriously injuredJ 
 
 5. In a case, where the plaintiff's garden was overflowed, by 
 the manner in which an excavation was made, in the course of 
 construction of a railway across a road, or highway, by carelessly 
 cutting into a drain, or culvert, and letting out the water,^ it 
 seems to have been admitted, on all hands, that the company 
 would have been liable for the injury if it had been done by per- 
 sons under their control, or in accordance with the directions of 
 their surveyor or engineers.^ 
 
 6. And where the plaintiff owns a dock on the east side of 
 Hudson River, on the margin of a bay, under a charter from the 
 * state, in 1849, and the Hudson River Railway, in pursuance of 
 its charter, granted in 1846, constructed their road across the 
 bay, on piles, about nineteen hundred feet west of the dock, with 
 a drawbridge sufficient to allow a passage to such vessels as had 
 before navigated the bay, the charter of the railway containing a 
 provision, that if any dock shall be "cut off" by the railway, 
 the company shall extend the sanie to their road, it was held 
 that this dock was not " cut off," within the meaning of the 
 provision.^ 
 
 7. And under the New York statute, and the same rule would 
 probably apply in other states, a railway company which is com- 
 pelled to divert a stream of W9,ter in the construction of its road is 
 bound not only to restore it, as nearly as practicable, to its former 
 state, but also to maintain it there, since the mere restoration of 
 the stream may not leave it as secure as before.^*' 
 
 8. But surface water produced by the excavation in building 
 the railway is not to be regarded in the same light as water con- 
 fined to a natural channel, and in such case the company will be 
 
 ' Rochester White Lead Co. v. The City of Rochester, 8 Comst. 463. See 
 also Radcliff v. Brooklyn, 4 Comst. 195 ; Mayor of New York t5. Furze, 3 Hill, 
 612 ; BaUey v. Mayor of New York, 3 Hill, 531. 
 
 « Steel V. Southeastern Railw., 16 C. B. 550; s. C. 32 Eng. L. & Eq. 366. 
 See § 129, post, for a full statement of this case. But there is no liability 
 incurred towards a mill-owner below, by cutting off springs, in sinking wells 
 upon one's own land. Chasemore v. Richards, 2 H. «& N. 168 ; s. c. 29 Law 
 Times, 230. 
 
 ® Tillotson V. Hudson River Railw., 15 Barb. 406. 
 
 '» Colt V. Lewiston Railw., 36 N. Y. 214. 
 *335
 
 §80. 
 
 OBSTRUCTION OP PRIVATE WAYB. 
 
 333 
 
 liable to an action for turning it upon the land of an adjoining 
 proprietor, unless that becomes indispensable in order to maintain 
 the railway, and is done in a manner to do the least injury to tlie 
 land-owner." 
 
 SECTION XVIII. 
 
 Obstruction of Private Ways. 
 
 1. Obttnution of private voay matter of fact ; 
 
 need not be illegal. 
 
 2. Farm road on one's own land, and private- 
 
 way. 
 
 8. But railway may lawfully pass along pub- 
 lic street. 
 
 § 80. 1. Where the statute gives a right of action against the 
 company, when in the construction or management of their road 
 they shall obstruct the safe and convenient use of a private way, 
 it was held not necessary to the maintenance of the action that 
 the railway should be constructed or managed in an illegal and 
 improper mamier.^ But if the railway be shown to have been 
 constructed and managed in a proper manner, and a passage over 
 the railway provided for the private way, the court cannot decide, 
 as matter of law, whether the safe and convenient use of the way 
 is obstructed or not. That is a question of fact to be settled by 
 the jury .2 
 
 2. But a farm road, which the owner of the land has constructed 
 for the convenient use of his farm, is not to be regarded as a 
 private way, within the meaning of a railway act.^ A private way, 
 witliin the construction of the railway acts, is a way, or right of 
 way, which one man has in the land of another.^ 
 
 *The owner of a private way, for the purpose of recovering 
 penalties for its obstruction, is the person who, for the time being, 
 owns such road in possession.^ 
 
 3. But it has been held,* that, where the plaintiff's right of way 
 
 " Curtis r. Eastern Railw., 14 Allen, 55. 
 ' Concord Railw. t. Greely, 3 Foster, 237. 
 
 * Greenwood r. Wilton Railw., 3 Foster, 261. 
 
 ' Clark r. The Boston, Concord, & Montreal Railw., 4 Foster, 114. 
 
 * Bliss r. Passumpsic River Railw., Vermont Sup. Court, not reported. 
 
 * Mann v. Great Southern & Western Railw., 9 Ir. Com. Law Rep. 105. 
 
 * McLaughlan r. Charlotte & S. C. Railw., 5 Rich. 583. But this decision 
 seems to rest upon the peculiar views of this state upon that subject, that it is 
 lawful to take private property for public use without compensation, their state 
 
 •336
 
 334 
 
 EMINENT DOMAIN. 
 
 CH. XI. 
 
 in another's land was obstructed by the passage of a railway 
 through the streets of a town, in accordance with their charter, no 
 action for damages could be maintained, and that the party could 
 have no redress, unless his case came within the provisions of the 
 statute allowing compensation. 
 
 SECTION XIX. 
 
 Statute remedy Exclusive. 
 
 Rfmedy for land taken, exclusively under 
 the statute. 
 
 But if company do not pursue statute are 
 liable as trespassers. Liaise for negli- 
 gence also. 
 
 Courts of equity often interfere by injunc- 
 tion. 
 
 4. Important case in the House of Lords. 
 
 5. Right at law must be first established. 
 
 6. Where statute remedy fails, common-law 
 
 remedy exists. 
 
 7. The general rule adhered to in America. 
 
 8. Company adopting works responsible for 
 
 amount awarded for land damages. 
 
 § 81. 1. It seems to be well settled, notwithstanding some ex- 
 ceptional cases, that the remedy given by statute to land-owners for 
 injuries sustained by taking land for railways, is exclusive of all 
 other remedies, and not merely cumulative.^ 
 
 constitution containing no provision upon the subject. But the reported cases 
 in this state, from the first, Dun v. City Council of Charleston, .1 Harper, 189 
 (1824), manifest a scrupulous regard to the rights of property owners, when 
 attempted to be interfered with for other than strictly public purposes. And 
 we are not aware that practically, and as a general thing, the legislature of this 
 state have exercised the theoretical right which it possesses, of taking private 
 property for public use without compensation. We believe that is not the 
 fact. 
 
 ' East and West India Dock & Birmingham Junction Railw. Co. v. Gattke, 3 
 Mac. & Gor. 155 ; s. c. 3 Eng. L. & Eq. 69 ; Watkins v. Great Northern Railw. 
 Co., 16 Q. B. 961; s. c. 6 id. 179; Kimble v. White Water Valley Canal, 
 1 Carter, 285; Knorr v. Germantown Railw. Co., 1 Wharton, 256; Mason c. 
 Kennebec & P. Railw. Co., 31 Maine, 215; s. c. 1 Am. Railw. C. 62; McCor- 
 mack V. Terre Haute & Richmond Railw., 9 Ind. 283. But in Carr v. The 
 Georgia Railw. & Banking Co., 1 Kelly, 52-i, it was held, the statute remedy 
 was not exclusive, but merely cumulative. This case professes to go upon the 
 authority of Crittenden v. Wilson, 5 Cowen, 165, where it was held, that the 
 party whose lands had been overflowed, by means of a dam erected by the 
 authority of the legislature, which contained a provision for estimating damages 
 to land-owners injured thereby, — might maintain an action as at common law. 
 These decisions go upon the principle, found in some of the elementary- books, 
 that a statutory remedy for what was actionable at common law is prima facie 
 to be regarded as cumulative merely. It seems now to be the generally received 
 opinion upon this subject, that the statutory remedy, being more ample and
 
 § 81. STATUTE REMEDY EXCLUSIVE. 335 
 
 * 2. But if the railway company have assumed to appropriate 
 the laud, iu violation of the provisions of the statute to be * complied 
 with on their part, their acts are ordinarily to be regarded as tres- 
 passes ; and wliere they have acquired the right to the use of the 
 land, but have omitted some duty imposed by the statute, or where 
 they have been guilty of negligence, or want of skill, in the exer- 
 cise of their legal rights, they make themselves liable to an action 
 upon the case at common law.^ 
 
 more specific, is ordinarily to be regarded as exclusive. But the settled differ- 
 ence of opinion, among the judges of the (^een's Bench upon the subject, in 
 Kennett Nav. Co. v. Withington, 18 Q. B. 531 ; s, c. 11 Eng. L. & Eq. 472, 
 shows that the matter is not quite settled in that country. 
 
 The learned editors of the American Railway Cases have an able and very 
 satisfactory' note upon this subject in wliich most of the authorities bearing upon 
 the point are thoroughly revised. 1 Am. Railw. C. 166, 167, 168, 169,*170, 171. 
 
 In Aldrich v. The Cheshire Railw., 1 Foster, 359 ; 8. C. 1 Am. Railw. C. 206, 
 it is held, that the statute remedy is exclusive of all others. So also in Troy r. 
 The Chesliire Railw., 3 Foster, 88, it is held, that the statute remedy must be 
 followed, as far as it extends, but if it only extend to part of the injury occa- 
 sioned, the party may have his action at common law for the residue. 
 
 But where a railway company are ordered to make and maintain a private 
 way, for the benefit of a party, and fail to comply, the appropriate remedy is 
 the one pointed out in the statute. White p. Boston & I'rov. Railw., 6 Cush. 
 420. And where the statute provides no specific remedy in such a case, an 
 action on the case will lie probably upon general principles. 
 
 But in an English case, Ambergate, Nott. & Boston & E. J. Railw. v. Mid- 
 land Railw., 2 El. & Bl. 823; 8. c. 22 Eng. L. & Eq. 289, where the statute 
 gives a penalty for one company running its engines upon the track of another 
 company, without first having obtained the requisite certificate of approval of 
 the engines by the second company, it was held, that this did not take away the 
 common-law right of seizing the engines, while upon their track, damage fea- 
 sant. And having made the distress upon the engine, while so unlawfully on 
 their track, and the first company having demanded its surrender, after it had 
 been removed off the defendant's line, with the declared purpose of using it 
 again in the same way ; that such demand was illegal, and the defendants justi- 
 fied in not acceding to it. See also, in confirmation of the general proposition 
 of the text. New Albany & Salem Railw. v. Connelly, 7 Porter (Ind.), 32; 
 Leviston v. Junction Railw,, id. 597; Lebanon p. Alcott, 1 N. H. 339; Vic- 
 tory V. Fitzpatrick, 8 Ind. 281. See, also, Colcough v. The Nashville »& N. W 
 Railw. Co., 2 Head, 171; Brown p. Beatty, 34 Miss. 227; Indiana Central 
 Railw. Co. V. Oakes, 20 Ind. 9. 
 
 * Watkins p. Great Northern Railw. Co., 12 Q. B. 961 ; 8. c. 6 Eng. L. & 
 Eq. 179; Dean v. Sullivan Railw. Co., 2 Foster, 316; 8. c. 1 Am. Railw. C. 
 214; Mayor of Lichfield p. Simpson, 8 Ad. & Ellis (n. 8.), 65; Fumiss p. 
 Hudson River Railw. Co., 5 Sandf. S. C. 551 ; Turner p. Shef. & Rotherhara 
 Railw., 10 M. & W. 425. In this last case, the injury complained of was, the 
 
 • 337, 338
 
 336 EMINENT DOMAIN. CH. XI. 
 
 3. And the courts of equity will in many cases interfere by in- 
 junction, where railway companies are proceeding to take land 
 contrary to the provisions of the act of parliament.^ 
 
 4. In the House of Lords, in a recent case,* this principle is 
 * very extensively discussed, although not arising in the case of a 
 railway, or where the land itself was proposed to be taken. But 
 here the injury complained of was, that the company's works, in 
 the manner in which they had been carried on, rendered the re- 
 spondent's land useless. This was done by means of the gas 
 escaping from the company's works deadening the life of vegeta- 
 tion, the respondent being a market gardener. The respondent 
 had brought an action against the company for the nuisance, 
 which, by agreement, upon the suggestion of the court, had been 
 referred to an arbitrator, who had reported damages, as having 
 accrued in the mode complained of, to a considerable extent. 
 
 obstruction of ancient lights by the erection of the company's station-house, 
 done under the act; and the dust, &c., drifted from the station-house and 
 embankment into the plaintiff's house. The plaintiff's house not being upon the 
 schedule attached to the bill, the company had no right under the act to take it, 
 or injuriously to affect it. So that the parties stood as at common law. See 
 also Shand v. Henderson, 2 Dowl. P. C. 519 ; Davis v. London & Blackwall 
 Railw., 2 Scott, N. R., 74; s. c. 2 Railw. C. 308. 
 
 ^ Stone V. Commercial Railw., 9 Sim. 621; s. c. 1 Railw. C. 375; Lord 
 Chancellor in Manser v. N. & E. Railw. Co., 2 Railw. C. 380, 391 ; Priestly 
 V. Manchester & L. Railw. Co., 4 Yo. & Col. Ex. 63; 8. c. 2 Railw. C. 134; 
 London & Birmingham Railw. Co. v. Grand Junction Canal Co., 1 Railw. C. 
 224. In this case, as well as the next preceding, it is said the company is to be 
 the judge of the most feasible mode of carrying forward its own operations, and 
 is not liable to be called to account for the exercise of his discretion, so long as 
 they act bona fide, and with common prudence. 
 
 But it affords no just ground of equitable interference, that the special tribu- 
 nal, provided by statute to have exclusive jurisdiction of certaiii claims, is alto- 
 gether incompetent to decide such questions as naturally arise. If any such 
 defect exists, the legislature alone can afford redress. Barnsley Canal Co. v. 
 Twibill, 7 Beav. 19 ; s. c. 3 Railw. C. 471. 
 
 Nor is the land-owner entitled to maintain a common-law action, because he 
 refused to join in the proceedings under the statute, the company having pro- 
 ceeded ex parte, and caused an appraisal, and deposited the sum awarded for 
 compensation. Hueston ». Eaton & H. Railw., 4 Ohio N. S. 685. See also The 
 Western Maryland Railw. Co. v. Owings, 15 Md. 199 ; Sturtevant v. Milw. 
 Wat. & B. Railw. Co., 11 Wise. 61 ; Powers v. Bears, 12 Wise. 213; Davis v. 
 La Crosse & Milw. Railw. Co., id. 16 ; Burns v. Milw. & Miss. Railw. Co., 
 Wise. 450. 
 
 * Imperial Gas Light & Coke Co. v. Broadbent, 7 Ho. Lds. 606 ; s. c. 5 Jur. 
 N. S. 1319. 
 
 *339
 
 § 81. STATUTE REMEDY EXCLUSIVE. 837 
 
 The company were now proceeding to make a very extensive ad- 
 dition to their works, when the respondent obtained an injunction 
 against them, which, upon final hearing before the chancellor, 
 assisted by the common-law judges, had been made perpetual,^ and 
 the question was then appealed by the company into the House of 
 Lords. 
 
 5. It was here held, affirming the decision below, that in such 
 case the plaintiff in equity cannot claim a perpetual injunction, 
 until his right is first established at law. But this was sufficiently 
 done in the present case, by the award of the arbitrator. But after 
 the right is once established at law, it is the province of the equity 
 judge to determine how far the cause of complaint may have been 
 removed by any subsequent alteration of the works; and this 
 question will not be referred to a trial at law. 
 
 6. It was also held here that the respondent had no remedy 
 under the statute, and consequently, although such statutory 
 remedy to its extent was necessarily exclusive of all others, yet 
 where the wrong done is not authorized by these powers, the com- 
 mon-law right of action still remained.^ 
 
 7. The general principle that the statute remedy, as far as it 
 extends, is exclusive, seems to be universally adhered to in the 
 American courts, with slight modifications, some of which are, 
 • and some are not, perhaps, entirely consistent with the mainte- 
 nance of the general rule." 
 
 8. It was held in one case, where the land damages had been 
 assessed under the statute, and judgment rendered for the amount 
 against the company, that a subsequent company, formed by the 
 mortgagees of the first company, were responsible for the amount 
 of such judgment, if they continued to operate the road and use 
 the right of way for which the judgment was rendered.^ But this 
 seems a considerable stretch of construction, although eminently 
 just and reasonable. 
 
 » 8. c. before V. C. Wood, 2 Jur. N. S. 1132 ; before the Chancellor, 8 id. 
 221. 
 
 • See the following cases cited in argument : Hole v. Barlow, 4 C. B. (N. S.), 
 334; Attorney-General v. The Sheffield Gas Consumers' Co., 3 De G. M. & G. 
 304; Same r. Nichol, 16 Vesey, 388; Wynstanley r. Lee, 2 Swanst. 333; 
 Haines r. Taylor, 10 Beavan, 75. 
 
 ' Pettibone r. La Crosse & Milw. Railw. Co., 14 Wis. 443 ; Vilas v. Milw. & 
 Miss. Railw. Co., 15 id. 233. 
 
 • Pfeifer p. Sheboygan & Fond du Lac Railw. Co., 18 Wis. 155. 
 
 22 •840
 
 338 EMINENT DOMAIN. CH. XI. 
 
 SECTION XX. 
 
 Lands injuriously affected. 
 
 1. Obstruction of way, loss of custom. 
 
 2. Equity will not enjoin legal right. 
 
 3. Liable for building railway, so as to cut 
 
 off wharf. 
 
 4. Not liable for crossing highway on level. 
 
 5. English statute only includes damages, by 
 
 construction. 
 
 6. Equity will not enjoin a doubtful claim. 
 
 7. Damages unforeseen, at the time of the 
 
 appraisal, may be recovei-ed, in Eng- 
 land. 
 
 8. Injuries to ferry, and towing path, com- 
 
 9, 10. liemote injuries not within the statute. 
 
 11. Damages compensated, under statute of 
 
 Massachusetts. 
 
 12. Damages not compen8(ited, as being too 
 
 remote. 
 
 13. For negligence in construction, remedy at 
 
 common law. 
 
 14. Or neglect to repair. 
 
 15. Recovery under the statute, Sfc. 
 
 16. Possession by railway, notice of extent of 
 
 title. 
 
 17. Railways have right to exclusive posses- 
 
 pensated. , | sion of roadway. 
 
 § 82. 1. The right of a party to claim consequential damages, 
 where his land was not taken, but only injuriously affected, was 
 very thoroughly discussed by Lord Truro, Chancellor, in a late 
 case,^ where the defendant, a furrier, claimed damage, in conse- 
 quence of the dust and dirt, occasioned by the company, having 
 injured his goods, and that his customers had been compelled, by 
 the obstruction caused by the company's works, to quit the * side 
 of the road upon which the defendant's shop was situated, 
 before they arrived at that point, and cross the street to get 
 along, by reason whereof he had lost custom. The defendant 
 also claimed that the company had obstructed a passage to his 
 buildings, by which he had an entrance to the back part of his 
 premises. ' 
 
 The Lord Chancellor considered that if the party had any claim 
 for compensation it was to be procured under the statute and 
 estimated by the sheriff's jury, and dissolved the injunction. It 
 seems now to be settled by the decision of the House of Lords 
 (Rickett V. Metropolitan Railway) , that unless the injury is of such 
 a nature as to be actionable aside from the statute, it will not en- 
 title the party to compensation under the statute, and that inter- 
 ruption of business therefore, by making access more inconvenient, 
 will not entitle the party to such compensation.^ But where the 
 
 > East & W. I. Docks & Birmingham Junction Railw. Co. v. Gattke, 8 Mac. 
 & Gor. 165 ; s. c. 3 Eng. L. & Eq. 69. 
 » Law Rep. 2 H. L. 176. 
 * 341
 
 § 82. LANDS INJURIOUSLY AFFECTED. 339 
 
 works of a railway diminish the light of premises, although the 
 pecuniary value of plaintiff's interest is not diminished, property 
 in the neighborhood generally having advanced in price, the owner 
 is entitled to compensation.^ Where the value of a house is 
 lessened by railway works producing noise, smoke, and vibration, 
 the party is entitled to compensation under the statute.* 
 
 But where the railway company lowered a highway several feet, 
 thereby greatly obstructing access to plaintiff's dwelling, and 
 obliging him to make use of a ladder for that purpose, it was held 
 that no claim could be maintained under that clause in the statute 
 for injuriously affecting land, the injury complained of being one 
 of a permanent nature, and therefore the subject of compensation 
 under the general provision for land damages.^ But where the 
 works of a railway intercepted water which would have percolated 
 through the strata of the earth into plaintiff's well, and also 
 drained off water which had reached the well by such percolation : ® 
 It was held the land-owner had no remedy either under the statute 
 or at common law. 
 
 2. This case was an application, by the company, for an injunc- 
 tion to restrain the party from proceeding under the statute, and 
 the court held, that as the party had a clear legal right, under the 
 act of parliament, they could not be deprived of pursuing it in the 
 
 ' Eagle r. Charing Cross Railw., Law Rep. 2 C. P. 638. A. owned a house 
 on a highway ; a railway company, under powers given them by statute, made 
 an embankment on the highway opposite the house, thereby narrowing the road 
 from fifty to thirty-three feet, thus materially diminishing the value of the house 
 for sale or letting, and obstructing the access of light and air. Hdd, 1. That A. 
 had sustained particular damage from the works ; 2. That the damage would have 
 been actionable if not authorized by statute ; 3. That the injury done was an 
 injury to A.'s estate, and not a mere injury to A. personally or to his trade ; and 
 that, these three things concurring, A. was entitled to compensation under stat. 
 8 Vict. cc. 18, 20. Beckett r. Midland Railw., Law Rep. 3 C. P. 82. 
 
 * Brand r. Hammersmith & City Railw., L. R., 2 Q. B. 223. 
 
 ' Moore v. Great Southern & Western Railw. Co., 10 Ir. Com. Law Rep. 
 46, in Exch. Chamber S. P. Tuohey r. Same, id. 98. But the English courts 
 seem to consider that compensation in such a case may be given under the pro- 
 vision for damages where land is injuriously affected. Chamberlain r. West 
 End of London & C. Railw., 2 B. & S. 617 ; s. c. 3 B. & S. 768 ; 8 Jur. N. S. 935. 
 
 • New River Co. p. Johnson, 2 Ellis & Ellis, 435 ; 8. c. 6 Jur. N. S. 374, Q. B. 
 This question is a good deal discussed in a later case, Reg. ». Met. Board of 
 Works, 3 B. & S. 710, where it was held that the railway company were not 
 responsible for underground currents of water intercepted by their works, either 
 at common law or under the statute.
 
 340 EMINENT DOMAIN. CH. XI. 
 
 mode pointed out, and fully affirmed the views of Lord Denmany 
 Ch. J., in Regina v. Eastern Counties Railway Company,^ where 
 the damage claimed was by lowering a road * upon which the land 
 abutted, so as to impede the entrance to the land, and compel the 
 owner to build new fences. 
 
 3. The construction of a railway across flats, in front of plain- 
 tiff's wharf, gives him a right to damage under the statute of 
 Massachusetts, although the wharf itself remained uninjured.^ 
 But the charter of a railway company having authorized them to 
 make certain specified erections between the channels of two rivers, 
 and such erections having so changed the currents of the rivers as 
 to render more sea-wall necessary to secure certain wharves and 
 flats in the vicinity, it was held that the damage thereby occasioned 
 was damnum absque injuria.^ 
 
 4. One cannot claim damage of a railway company, by reason 
 of their track crossing a public highway, near his dwelling, upon a 
 level, the highway being the principal approach to his grounds.^*^ 
 
 5. In a recent English case,^^ it is held that the English statute, 
 giving compensation, where lands are injuriously affected, was 
 intended to include only such damages as were caused by the 
 erection of the company's works, and not such as might in 
 future be caused by the use of the works, this being the case of 
 Gas Works, and the 68th section of the Lands Clauses Acts 
 
 » 2 Ad. & Ellis (n. s.), 347. See post, § 99. In this case the court held 
 that the injuries complained of clearly came within the act, and Lord Denman, 
 in closing his opinion, makes a very significant reply to a class of arguments, 
 not uncommon upon all subjects. " Before we conclude, we shall briefly advert 
 to an argument much pressed upon us ; that if we make this rule absolute, any 
 injury to land, at any distance from the line of railway, may become the subject 
 of compensation. If extreme cases should arise, we shall know how to deal with 
 them ; but in the present instance, the alleged injury is to land adjoining a road, 
 which has been ' lowered ' under the provisions of the act, and which is therefore 
 land injuriously affected, by an act expressly within the powers conferred by the 
 company." 
 
 » Ashby V. The Eastern Railw. Co., 5 Met. 368; 8. c. 1 Am. Railw. C. 356. 
 And in Bell ». The Hull & Selby Railw.,- 2 Railw. C. 279, a similar decision is 
 made under the English statute. 
 
 " Fitchburg Railw. v. Boston & Maine Railw. 3 Cush. 68 ; s. c. 1 Am. Railw. 
 C. 508 ; Ante, § 75. 
 
 »" Caledonian Railw. ». Ogilvy, 2 McQu. Ho. Lds. 229 ; s. c. 29 Eng. L. & 
 Eq. 22. 
 
 " Law Times, February, 1857, p. 329, not yet reported in this country. 
 •342
 
 § 82. LANDS INJURIOUSLY AFFECTED. 341 
 
 being made a part of the company's special act. But this cer- 
 tainly could not extend to the ordinary use of a railway, which 
 is the only or the principal mode of injuriously affecting lands not 
 taken, and which could be as strictly estimated, at the time of the 
 company's works being erected, as from time to time thereafter. 
 
 6. In one case,^^ where the lessee of an inn and premises, 
 * situated near a tunnel on the company's road, claimed damages, 
 because the vibration caused by the trains prevented his keeping 
 his beer in the cellar in a fit state for his customers, and the value 
 of the house was thereby lessened, being rendered unfit for a 
 public-house ; and the plaintiffs moved for an injunction to re- 
 strain the defendant from proceeding to assess damages under 
 the statute ; the Lord Chancellor denied the motion, upon the 
 ground that the remedy at law was altogether adequate. But his 
 lordship intimated a very decided opinion, that no such damages 
 could be recovered. He says, " Whetber an action will lie on 
 behalf of a man who sustains a private injury, by the exercise of 
 parliamentary powers, done, judiciously and cautiously, is not an 
 easy question, or rather it is not easy to come to the conclusion 
 that an action will lie. I entertain a decided opinion, (probably 
 however erroneous,) that no such action will lie." ^^ 
 
 7. And where the plaintiff's damages for land taken by the 
 company, and by severance and otherwise, were determined by 
 an arbitrator," but from the road being built across certain flats, 
 with insufficient openings, the waters became dammed up and 
 injured the plaintiff's remaining lands, it was held, he was entitled 
 to recover " as for an unforeseen injury, arising from the manner in 
 which the railtoay was constructed^ But it is here said, " The 
 
 '* The London & N. W. Railw. Co. r. Bradley, 8 Mac. & Gor. 866 ; s. c. 6 
 Railw. C. 551. 
 
 " Hatch V. Vermont Central Railw. Co., 25 Vt. 49 ; s. c. 28 id. 142. 
 
 " Lawrence v. Great N. Railw. Co., 16 Q. B. 643; s. c. 6 Railw. C. 656; 
 8. c. 4 Eng. L. & Eq. 265 ; ante, § 79, n. 6 ; § 74, n. 7 ; L. & Y. Railw. c. 
 Evans, 15 Beav. 322 ; s. c. 19 Eng. L. & Eq. 295. Under most of the American 
 statutes, the damages, as well prospective as present, must be assessed at once, 
 and no recovery can be had for unforeseen injury, more than in any case of a 
 recover)' of damages for a tort. But in the case of Lancashire & Y. Railw. c. 
 Evans, it is obvious, from the elaborate review of the case by the Master of the 
 Rolls, that the English courts now regard the land-owner as entitled to make 
 new claims, from time to time, as they occur, for any injurious consequence of 
 the construction of the works. For any unlawful act, in the construction or tue 
 of the works, an action at common law is the proper remedy. 
 
 •843
 
 342 EMINENT DOMAIN. CH. XI. 
 
 company might, by erecting their works with proper caution, have 
 avoided the injury." It seems this is the only ground of an 
 action. 
 
 8. In a doubtful case the court issued an alternative mandamus 
 and required a return of the facts.^ So, too, a party whose * ferry 
 has been materially lessened in value, by obstructing access to it, 
 may recover damages of the company under the statujte.^® So, too, 
 if a towing-path be obstructed, or the navigation diverted from it, 
 the owner under a similar statute may have compensation. i'^ 
 So, too, an occasional flooding of lands, caused by a proper exe- 
 cution of parliamentary powers, is within the remedy given by 
 statute.^^ 
 
 9. Some questions under this head have arisen, in regard to 
 mines and minerals, not of sufficient importance to be stated in 
 detail.^^ Where the damage resulted from the company turning a 
 brook, the court ordered a mandamus.^^ But brewers, accustomed 
 to take water from a public river, are not entitled to receive com- 
 pensation when the waters were deteriorated by the works of a 
 dock company .21 
 
 10. It was held that a tithe-owner is not entitled to compensa- 
 
 »5 Queen v. The North Union RaUw. Co., 1 Railw. C. 729. 
 
 " /;» re Cooling, 19 Law J. Q. B. 25 ; s. c. nom. Cooling r. Great Northern 
 Railw., 15 Q. B. 486; Hodges on Railways, 277. It is said here that a ferrj' is 
 different from a public-house, whose custom is said to be injured by obstructing 
 the travel and access to the house, by cutting through thoroughfares leading to 
 it, which, it has been held, is no ground of claiming damage under a similar 
 statute. The King v. The London Dock Co., 6 Ad. & El. 163. But this case 
 is considered as overruled by Reg. v. The Eastern Counties Railw. Co., 2 Q. B. 
 347; Chamberlain r. East End of London & Crys. Pal. Railw. Co., 2 B. & S. 
 617 ; s. c. 3 B. & S. 768 ; 8 Jur. N. S. 935. 
 
 " The King v. Commis. of Thames & Isis, 5 Ad. & Ell. 804. 
 
 " Ware v. Regent's Canal Co., 3 De G. & Jones, 212. 
 
 " Fenton v. Trent & Mercy Nav. Co., 9 M. & W. 203 ; Cromford Canal Co. 
 r. Cutts, 5 Railw. C. 442 ; The King v. Leeds & Selby Railw. Co., 3 Ad. & 
 Ell. 683. 
 
 » Reg. V. North Midland Railw. Co., 11 Ad. & El. 955 ; s. c. 2 Railw. C. 1. 
 
 *' The King t. Bristol Dock Co., 12 East, 429. But where mines below the 
 company's works are injured in consequence of the negligent or imperfect mode of 
 constnicting or maintaining the company's structures and cuttings, the person so 
 injured may maintain a common-law action against the company. Bagnall v. 
 London & N. W. Railw., 7 H. & N. 423. Affirmed in.E.xchequer Chamber, 31 
 Law J. 480. See abo Reg. r. Fisher, 3 B & S. 191 ; s. c. 9 Jur. N. S. 571 ; 
 Elliot V. Northeastern Railw. Co., 9 Jur. N. S. 555 ; s. c. 10 Ho. Lords Cas. 333. 
 *3i4
 
 § 82. LANDS INJURIOUSLY AFFECTED. 343 
 
 tiou unless the act contain an indemnity in his favor.^ The in- 
 terest of a titlie-owner is too remote and incidental to be the sub- 
 ject of general indemnity. It often forms the basis of special 
 statutory provisions for indemnity. 
 
 *11. In a well-considered case, the rule in regard to what 
 damage is to be included under the terms " lands injuriously 
 affected," or equivalent terms, is thus laid down : " All direct 
 damage to real estate by passing over it, or part of it, or which 
 affects the estate directly, although it does not pass over it, as by 
 a deep cut or high embankment, so near lands or buildings as to 
 prevent or diminish the use of them, by endangering the fall of 
 buildings, the caving of earth, the draining of wells, the diversion 
 of water-courses," by the proper erection and maintenance of the 
 company's works. " Also, as being of like character, blasting a 
 ledge of rocks so near houses or buildings as to cause damage ; 
 running a track so near as to cause imminent and appreciable 
 danger by fire ; obliterating or obstructing private ways leading to 
 houses or buildings," — all these and some others, doubtless, are 
 included. 
 
 12. " But that no damage can be assessed for losses arising 
 directly or indirectly from the diversion of travel, the loss of cus- 
 tom to turnpikes, canals, bridges, taverns, coach companies, and 
 the like ; nor for the inconveniences which the community may 
 suffer in common, from a somewhat less convenient and beneficial 
 use of public and private ways, from the rapid and dangerous 
 crossings of the public highways, arising from the usual and ordi- 
 nary action of railroads, and railroad trains, and their natural 
 incidents." ^ 
 
 » Rex r. The Commissioners of Nene Outfall, 9 B. & C. 875 ; London & 
 Blackwall Railw. Co. v. Letts, 3 H. L. Cases, 470 ; 8. c. 8 Eng. L. & Eq. 1 ; 
 Hodges on Railways, 289, n. (m). 
 
 " Proprietors of Locks & Canals v. Nashua & Lowell Railw., 10 Cush. 386. 
 Shaw, Ch. J. (391, 392). Nor is the party, whose lands lie near a railway line, 
 entitled to compensation, for being injuriously affected, by persons in the trains 
 overlooking the grounds, thus rendering them less comfortable and secluded, for 
 the walks of the family and visitors. Nor can the party claim compensation for 
 vibration of the ground caused by the use of the road, the statute only extending 
 to damages caused by the construction of the works. Reg. v. Southeastern 
 Railw., in re Penny, 7 Ellis & lilack. 660, ante, pi. 5. But actual injury dur- 
 ing the construction of a railway, by vibration caused by the ballast trains, ia 
 to be compensated ; but by Campbell, Ch. J., it is said such vibration caused by 
 
 •346
 
 344 EMINENT DOMAIN. CH. XI. 
 
 13. It is held also in this case, that no damages can be assessed 
 under the statute, for cutting through a watercourse in making 
 an embankment without making a culvert, whereby the water is 
 made to flow back and injure the plaintiff's land, at a distance 
 * from the railway, no part of which is taken, the remedy being by 
 action at common law.^ 
 
 14. And where the company, by consent of the land-owner, 
 enters upon the land and makes the requisite erections, which are 
 subsequently conveyed to it with the land by the land-owners, 
 it was held such grantor is not estopped from claiming damages 
 resulting from want of proper care and skill in constructing the 
 works, or from neglect to keep them in repair.^ 
 
 15. The rule of the English courts that damages can only be 
 recovered for injuriously affecting land, where but for the statute 
 the act complained of would be just ground of action at common 
 law, does not apply where part of the land is taken and damages 
 are sought, not only for the part taken, but for the rest of the land 
 being injuriously affected, either by severance or otherwise.^ And 
 it was here held that the owner of a mill was entitled to have 
 damages assessed to him for the increased exposure of the same 
 to fire by the passage of the company's trains. But loss of ti-ade 
 caused by the operations of the company during the constniction 
 of their works is not damages for which the party is entitled to 
 compensation.* But a person may claim damages on the ground 
 of being injuriously affected on account of the obstruction or 
 diversion of a public way by the construction of the works of a 
 railway.^ 
 
 16. The owners of land adjoining a railway track are affected 
 with presumptive notice of the rights of the company from long 
 
 running trains afler the road is completed will merit a different consideration, 
 lb. See also Croft r. London & X. W. Railw. Co., 3 B. & S. 436. 
 
 •* Morris Canal & Banking Company r. Ryerson, 3 Dutcher, 457 ; "Water- 
 man r. Conn. & Pass. Riv. Railw., 30 Vt. 610; Lafayette Plank Road Co. v. 
 New Albany, &c. Railw., 13 Ind. 90. 
 
 *» S. T. & A. Railw. Co., in re, 10 Jur. N. S. 614. 
 
 •• Senior v. Met. Railw. Co. 2 EL & C. 258, Cameron r. Charing-Cross Railw. 
 Co., 16 C. B. N. S. 430 ; overruled in Exch. Chamber, Ricket c. Metropolitan 
 Railw. Co., 5 B. & S. 119; s. c. 13 W. R. 455, where the proposition of the 
 text is established. 
 
 " Wood F. Stourbridge Railw. Co., 16 C. B. N. S. 222. See also Boothbj v. 
 Androscoggin & K. Railw. Co., 51 Me. 318. 
 •346
 
 §83. 
 
 DIFFERENT ESTATES PROTECTED. 
 
 845 
 
 use, the same as in regard to other owners in possession.* And 
 equity will enjoin an adjoining owner to a railway track against 
 making erections which will interfere with the company repairing 
 its track.® 
 
 * 17. It seems scarcely needful to repeat what has been so often 
 declared by the courts, that railways have the exclusive right to 
 possession of their roadway, and to exclude all intrusions thereon, 
 whether from persons or structures.** 
 
 SECTION XXI. 
 
 Different Estates Protected. 
 
 1. Tenant'* g^od-wiU and chance of reneuxd 
 
 protected. 
 
 2. Tenants entitled to compensation for change- 
 
 of location, 
 
 3. Church property in England, how esti- 
 
 mated. 
 
 4. Tenant not entitled to sue, as owner of pri- 
 
 vate way. 
 
 5. Heir should sue for compensation. 
 
 6. Lessor and lessee both entitled to compensa- 
 
 tion. 
 
 7. Right of way, from necessity, protected. 
 
 8. Hill-owner entitled to action for obstruct- 
 
 ing water. 
 
 9. Occupier of land entitled to compensa- 
 
 tion. 
 
 10. Tenant, without power of atiertation, 
 forfeits his estate, by license to com- 
 pany. 
 
 11. Damages not transferable by deed of 
 
 land, ajler they accrue. 
 
 § 83. 1. The English statute provides for the protection of the 
 interests of lessees in certain cases. ^ And lessees from year to 
 year have recovered, for the good-will of the premises, which would 
 have been valuable as between the tenant and a purchaser, al- 
 though it was not a legal interest as against the landlord.* But 
 not when the tenancy was from year to year, determinable at three 
 months' notice, with a stipulation against underletting without 
 leave.* So, too, an under-tenant is entitled to compensation for 
 good-will.3 But in a lease for fourteen years, with covenant to 
 yield up the premises at the end of the term, with all fixtures and 
 improvements, where the company suffered the lease to expire and 
 
 » Macon & Western Railw. Co. v. McConnell, 27 Ga. 4Sl. 
 
 " Cunningham v. Rome Railw. Co., 27 Ga. 499. 
 
 " Railw. Co. V. Hummell, 44 Penn. St. 375 ; Harvey r. Lackawanna & B. 
 Railw. Co., 47 id. 428. 
 
 ' 8 & 9 Vict. c. 18, §§ 119 to 122, and 8 & 9 Vict. c. 20, § 43. 
 
 • Ex parte Farlow, 2 B. & Ad. 341 ; The Matter of Palmer r. Hungerford 
 Market, 9 Ad. & EUis, 463. 
 
 ' Rex c. The Hungerford Alarket, 4 B. «fe Ad. 692. 
 
 •347
 
 346 EMINENT DOMAIN. CH. XI. 
 
 then turned out the tenant, held that he was entitled to compensa- 
 tion for good-will and the chance of * beneficial renewal, but not 
 for improvements, but nevertheless these might be considered by 
 the jury in estimating the chance of beneficial renewal.^ 
 
 2. The loss which a brewer sustained by having to give up his 
 business till he could procure other. premises, suitable for carrying 
 it on, was held a proper subject of compensation under a similar 
 statute.^ "Where the act required tenants from year to year to give 
 up premises to the company, upon six months' notice to quit, with- 
 out reference to the time when their term began, but allowed them 
 compensation, if required to leave before their term expired, it was 
 held, that when the six months' notice required the tenant to leave 
 at the end of his term, he was not entitled to compensation.^ But 
 where a tenant gives up premises under a six months' notice from 
 a railway company, when he is entitled to compensation, without 
 demanding it of the company, h6 is still bound to pay full rent to 
 his landlord.'^ 
 
 3. Church property in England is estimated with reference to 
 the cost of a new site and similar erections, to be fixed by agree- 
 ment between the company and the diocesan and archbishop of the 
 province. But after this appropriation of the site of a church to 
 secular purposes, the rector is entitled to have his interest in the 
 premises connected therewith estinaated at its value for secular uses.^ 
 
 4. Where the charter of a company imposed a penalty upon them 
 for any obstruction or interruption of a road, and in the case of a 
 private road gave the right to recover the penalty to the owner of 
 the road, it was held, that the tenant of the farm over which tlie 
 road passed could not sue for the penalty.^ 
 
 * Rex V. The Hungerford Market, 4 B. & Ad. 592. But the case of Rex v. 
 Liv. & Manchester Railw., 4 Ad. & Ellis, 650, seems to treat a similar estate as 
 absolutely gone, at the end of the term, and the company bound to make no 
 compensation. But where the company stipulated with a tenant, having a doubt- 
 ful right of renewal, to compensate him for the same on his establishing the right, 
 and subsequently became themselves the owner of the reversion, it was held the 
 tenant might maintain a bill in equity for the declaration of his rights as to 
 renewal and compensation therefor. Bogg v. Midland Railw., L. R. 4 Eq. 310. 
 
 » Jubb V. HuU Dock Co., 9 Ad. & Ellis (n. s.), Q. B. 443. 
 
 * The Queen v. London & Southampton Railw. Co., 10 Ad. & El. 3 ; s. c. 1 
 RaUw. C. 717. 
 
 7 Wainwright v. Ramsdem, 6 M. & W. 602 ; s. c. 1 'Railw. C. 714. 
 
 8 Hilcoat r. The Archbishops of Canterbury & York, 10 C. B. 327. 
 ' Collinson v. Newcastle & Darlington Railw., 1 Car. & Est. 646. 
 
 *848
 
 § 83. DIFFERENT ESTATES PROTECTED. 347 
 
 5. Where land of a deceased person is taken for a railway, * the 
 heir and not the administrator is entitled to the damages for such 
 taking, and to prosecute for the recovery thereof, although the 
 administrator had previously represented tl»^ estate insolvent, and 
 afterwards obtained a license to sell the real estate for the payment 
 of debts.io 
 
 6. And a tenant, whose lease began before, and who was in 
 possession at the time an injury was done, is entitled to recover 
 damages for an injury sustained by him, in building a turn- 
 pike road." But the lessor and lessee are each entitled to 
 recover compensation for the damage sustained by them respec- 
 tively. ^^ 
 
 7. And where the plaintiff had no access to his land except over 
 the land of his grantor, it was held, that he had a way, by neces- 
 sity, across audi land, and that he was entitled to maintain an 
 action against a railway company for obstructing it.^^ 
 
 8. So also where the free -flow of water from a saw-mill is 
 obstructed by the erection of a railway bridge below the mill, 
 the company are liable to the owner of the mill in an action of 
 tort.^* But they are not liable for any increased expense thereby 
 occasioned to the mill-owner, in getting logs up tlie stream to his 
 mill, whether the stream be navigable for boats and rafts, or not." 
 
 9. Where the statute gives remedy against all persons inter- 
 ested," the occupant of land is liable to be affbctcd by the proceed- 
 ings, And a similar construction will prevail where the remedy is 
 given to all interested.^* 
 
 It seems indispensable to the asserting of any valid claim for 
 land damages that the claimant prove the character and extent 
 * of his title.^* And it is here said that possession alone will not be 
 
 *• Boynton p. Peterboro & Shirley Railw., 4 Cush. 467. 
 
 " Turnpike Road r. Brosi, 22 Penn. St. 29. 
 
 " Parks r. City of Boston, 16 Pick. 198. See also Burbridge v. New Albany 
 & S. Railw., 9 Ind. 546. 
 
 " Kimball r. The Cocheco Railw., 7 Post. 448. 
 
 " Blood t. Nashua & Lowell Railw., 2 Gray, 137. 
 
 " Gilbert v. Havermeyer, 2 Sandf. 606. The term "owner" in a statute 
 requiring compensation by railway companies for land taken by them inclndes 
 everj' person having ^y title to or interest in the land, capable of being injuri-d 
 by the construction of the road, and extends to the interest of a lessee or termor. 
 Bait. & Ohio Railw. v. Thompson, 10 Md. 76; Lewis r. Railw., U Rich. 91 ; 
 Sacramento Railw. r. MofTatt, 7 Cal. 577. 
 
 " Bobbins c. Milw. & Uorricon Railw. Co., 6 Wiac. 636. 
 
 • 349, 360
 
 348 EMINENT DOMAIN. CH. XI. 
 
 regarded as ground of presumption of title in fee. And where the 
 entire fee in the land is condemned to the use of the railway, 
 and the money paid into court, it must be apportioned to the 
 several owners of different interests in the land, as nearly as pos- 
 sible, as if it were the land itself. And the same result will follow 
 where a permanent right of way is given in any form to a perpetual 
 corporation.^' 
 
 10. And where a tenant, who held the land for a term of years, 
 with a strict clause against alienation or subletting, assigned a 
 small portion to a railway, for a temporary purpose, the company 
 not dealing with the landlord, or giving him any compensation for 
 the use of the land, it was held, that he was entitled to maintain 
 ejectment against the company, and his tenant, for the forfeiture 
 incurred by this subletting.^^ 
 
 11. And the damages assessed are payable to the owner of the 
 land at the date of the adjudication, and do not pass by deed to a 
 subsequent purchaser.!^ And where the company gave notice to 
 treat for land to a tenant at will, and were allowed to take pos- 
 session and complete their line, a person who had subsequently 
 purchased an undivided portion of .the land was not allowed to 
 maintain a bill to restrain the company from the use of the 
 land.2o 
 
 " Ross V. Adams, 4 Dutcher, 160. In such case the party having an unex- 
 pired lease will only be entitled to so much of the interest of the fund in court as 
 will indemnify him for his loss of rent, and the rest of the income must accumu- 
 late till the expiration of the lease. Wootton's Estate, Law Rep. 1 Eq. 589. 
 And all costs of parties summoned by the railway in order to receive a perfect 
 title, must be paid by the company. Haynes v. Barton, L. R. 1 Eq. 422. And 
 the costs of paying money out of court for the benefit of a charity must also be 
 borne by the company. Lathropp's Charity, L. R. 1 Eq. 467. A party not 
 summoned, although having knowledge of proceedings to condemn land, is not 
 bound thereby ; but may have an action to protect his interest. Martin v. L. Ch. 
 & Dover Railw., L. R. 1 Eq. 145; 8. c. id. 1 Ch. Ap. 501, See also London, 
 Br. & S. C. Railw. in re, as to costs of parties summoned. LawR. 1 Ch. Ap. 599. 
 
 " Legg V. Belfast »& Bellamy Railw., 1 Irish Law (n. s.), 124, n. 
 
 " Lewis V. Wilm. & Manchester Railw., 11 Rich. Law, 91. But where a 
 third person agreed to pay the land-owner interest on the agreed compensation 
 for his land damages " if said railway shall be kept in operation," his object 
 being to secure the beneficial operation of the railway by running passenger and 
 freight trains, it was held he was not bound to perform on his part, merely 
 because the railway occasionally ran a freight train. Jepherson v. Hunt, 2 Allen, 
 417. 
 
 " Camochan v. Norwich & Spalding Railw., 26 Beav. 169.
 
 §§ 84, 85. ARBITRATION. — STATUTE OF LIMITATIONS. 
 
 349 
 
 SECTION XXII, 
 
 Arbitration. 
 
 1. Attorney, vnthout express power, maa/ rs- 
 fer disputed claim. 
 
 2. Award binding, tudess objected to m 
 court. 
 
 § 84. 1. It was held that an attorney, who had no authority 
 under seal, either to defend or refer suits, might nevertheless make 
 a valid reference of a disputed claim against the company, under a 
 judge's order.^ 
 
 • 2. And if the company object that the arbitrator awarded 
 upon matters not submitted, they should have applied to the 
 court to revoke the submission, or set aside the award, upon its 
 return into court ; but not having done so, the claim being set 
 up and entertained by the arbitrator, the award is binding.^ 
 The same principles would probably obtain in the American 
 courts. 
 
 SECTION XXIII. 
 Statute of Limitations. 
 
 1. OeHeral limitation of actions applies to 
 
 land claim. 
 
 2. Filing petition will not save bar. 
 
 8. Acquiescence of forty years by land-owner, 
 
 effect of 
 4. The estoppel will take effect if the use is 
 
 clearly adverse. 
 
 § 85. 1. Where neither the general statutes nor the special act 
 contain any specific limitation, in regard to claims upon railway 
 companies for land damages, it has been held tliat the general 
 statute of limitation of actions, for claims of a similar character, 
 will apply. And where the claim was for an injury to an island, 
 caused by the erection of a railway bridge, and to the award of the 
 
 ' Faviell v. The Eastern Counties Railw., 2 Exch. 344. It is held generally, 
 in the English courts, that an attorney should be appointed under seal to prose- 
 cute and defend suits, on the part of corporations. Thames Haven Dock & 
 Railw. Co. ». Hall, 6 Man. & G. 274; Arnold v. The Mayor of Poole, 
 4 id. 860. 
 
 But when, by the incorporation of a railway company, the directors were em- 
 powered to appoint and displace any of the officers of the company, the appoint- 
 ment of an attorney, by the company, need not be under seal. See post, § 141. 
 
 •361
 
 350 EMINENT DOMAIN. CH. XI. 
 
 viewers, and the company plead actio non infra sex annos, the plea 
 was held good.^ 
 
 2. And where the statute provides, that no process to recover 
 compensation for land or property taken by a railway shall " be 
 sustained, unless made within three years from the time of taking 
 the same," a mere filing of an application with the clerk of the 
 county commissioners, without bringing it to the notice of the 
 commissioners, or any action of theirs thereon until the three 
 years have elapsed, will not save the bar of the statute.^ 
 
 * The land-owner may also traverse the right of the company to 
 take the land, either originally, for the location and construction 
 of their road, on the ground that it does not come within their 
 line, or the line of deviation from the prescribed route, or that 
 they have not taken the proper preliminary steps, or for any other 
 cause ; or, when the company propose to change their route, or to 
 enlarge their accommodation works, on the ground of having made 
 their exclusive election in one case, or the want of necessity in the 
 other.2 
 
 3. Where the land-owner had allowed the company, upon an 
 appraisal in the alternative stating both the value of the land 
 and of the annual use, to occupy the same for the purposes of a 
 canal, for more than forty years, paying an annual sum about 
 the same which had been awarded, the award being defective in 
 law, in that no person had been made a party to the proceeding 
 who was authorized to represent the land-owner, who was an 
 infant, it was held that this was no ground of presuming a con- 
 tract on the part of the land-owner to convey the land in fee in 
 consideration of a rent charge.* But it was held that an eject- 
 ment on the part of the land-owner, and the erection of a bridge by 
 him, ought to be restrained by injunction, on the ground of 
 acquiescence, the company undertaking to put in force their par- 
 liamentary powers which had not expired, and thus obtain the 
 land. 
 
 4. But in another case, where the party had, by contract with 
 the original land-owner, used the land of others for more than fifty 
 years, first for a tram-way and subsequently for a railway in a 
 
 > Forster v. The Cumberland Valley Railw., 23 Penn. St. 371. 
 
 * Charles River Railw. v. County Commissioners of Norfolk, 7 Gray, 389. 
 
 3 South Carolina Railw. v. Blake, 9 Rich. 228 ; ante, § 72 ; post, § 105, n. 14. 
 
 * Somerset Canal Co. v. Harcourt, 2 De G. «& J. 596. 
 
 *362
 
 § 86. STATUTE OP LIMITATIONS. 861 
 
 different place across the same land, it was held that the present 
 land-owner was concluded by the agreement, and that the change 
 of one place for another would not defeat the estoppel.* All the 
 party can claim is, to have damages under the statute.* 
 
 » Mold p. Wheatcroft, 29 Law J. Cb. ch. U ; 8. c. 27 Beav. 610.
 
 352 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. CH. XII. 
 
 ♦CHAPTER XII. 
 
 REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. 
 
 SECTION L 
 
 Company hound to purchase the whole of a House, etc. 
 
 1. The company to take the accessories with 
 
 the house. 
 
 2. But the owner has an election in regard to 
 
 that. 
 8. A deposit of the appraised value means 
 
 the value qfaU the company are bound to 
 
 take. 
 4. Company bound to take all of which they 
 
 take part, and pay special damage be- 
 sides. 
 
 Where company desire part, not compella- 
 ble to take whole unless they persist in 
 taking part. 
 
 Land separated from house by highway not 
 part of premises. 
 
 § 86. 1. By the English statute,^ railway companies are bound 
 to purchase the whole of a house and lands adjoining, if required, 
 when they give notice to take part ; and also if the house or the 
 principal portion of it be within fifty feet of the railway, and 
 deteriorated by it. The act includes house, garden, yard, ware- 
 house, building, or manufactory ; but it was considered that this 
 did not extend to a lumber-yard.^ Under a similar provision, in a 
 special charter, it was held, that the company were not bound to 
 take the entire premises, where the principal dwelling-house only 
 was within the prescribed limit.^ 
 
 2. It has been considered that this statute gave an option to the 
 land-owner, whether the company should take the whole or part 
 of the house, so situated.* And in this last case it was * held, 
 
 ' 8 & 9 Vict. cb. 18, § 92. 
 
 ' Stone V. Commercial Railw., 9 Simons, 621 ; s. c. 1 Railw. C. 375 ; Reg. v. 
 Sheriff of Middlesex, 3 Railw. C. 396. But it will include an open space in front 
 of a public house used by guests for the purpose of access to the house with 
 vehicles, the land having passed with the lease of the house for many years. 
 Mason v. London, Chatham, & Dover Railw., L. R. 6 Eq. 101. 
 
 ' Reg. V. L. & Greenw. Railw. Co., 3 Q. B. 166 ; s. c. 3 Railw. C. 138. 
 
 * Sparrow v. The Oxford, "Worcester, & Wolverhampton Railw. 32 De G. 
 M. & G. 94 ; 8. c. 13 Eng. L. & Eq. 33. By Lord CramcoHh and Sir Knigid 
 Bruce, L. J. See also Barker v. N. Staffordshire Railw., 2 De G. & S. 55 ; s. c. 
 * 353, 354
 
 § 86. COMPANY BOUND TO PURCHASE WHOLE OP HOUSE. 853 
 
 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 had a right of way, was such a part 
 of the manufactory, that tlie company wore bound to take the whole.* 
 
 3. And the statute requiring a deposit of the appraised value 
 of the land taken by a railway company, before entering upon the 
 same, imports the value of the whole premises, in all cases where 
 the company give notice of requiring part and the owner elects, 
 according to the terms of the statute, that they shall take the 
 whole .^ 
 
 4. Where three adjoining liouses had gardens laid out from the 
 
 6 Railw. C. 401, 419, where JiOrd CottenJiam, Chancellor, intimates an opinion, 
 that certain parcels of land (and a brine-pit and steam-engine upon one of them) 
 adjoining salt-works, are not a part of the manufactory. But his lordship gives 
 a very satisfactorj' reason for denying the aid of the court, viz., " That a party 
 having known his rights, and having had his claim, in respect of them, disposed 
 of [upon the original bill, and by leave of court then filing a supplemental bill] , 
 if he then raises a new ground of equity, does not present his case in a form to 
 entitle him to ask for the extraordinary interposition of this court." 
 
 In Sparrow v. The Oxford, &c. Railw. Co., 2 De G., M. & G. 94 ; 8. c. 13 Eng. 
 L. & Eq. 33, Lord Cranworth, L. J., made some very significant suggestions in 
 regard to the rights of land-owners to compensation. ' ' The only remaining ques- 
 tion," said his lordship, "is one which has been raised now for the first time, namely, 
 that if they cannot take the land, they are now entitled to burrow under it, as it 
 were to make a tunnel, which they say they are able and willing to do, without 
 taking or touching any part of the surface. It was argued in this way, ' Suppose 
 the manufactory were at the top of a hill, and you were burrowing under it, at the 
 distance of a thousand feet, are they then taking part of the manufactory' P ' 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, Cujits est solum, tjus est usque ad 
 inferos. Do you mean to say, that if you are an inch below the surface, you 
 would not be taking any part of the manufactory- ? I am inclined to think that 
 however deep below [the tunnel was made,] it would be within the enactment. 
 If that has been a casus omissus, I think it ought to be construed in a way most 
 favorable to those who are seeking to defend their property from invasion." In 
 the case of Ramsden v. The Manchester S. Junction Railw., 1 Exch. 723, it was 
 determined, that a railway company could not tunnel, even a highway, without 
 first making compensation to the owner of the freehold, under the Land Clauses 
 Act. The company arC not bound to take property more than filly feet from 
 the centre line of the road, unless it is incapable of separation. Queen r. Lon- 
 don & G. Railw., 3 Ad. & EU. (n. s.) 166. 
 
 » Underwood r. The Bedford »fe Cambridge Railw., 11 C. B. N. S. 442; s.c. 
 
 7 Jut.. N. S. 941 ; Dadson v. East Kent Railw. lb. So an offer of compensa- 
 tion to the party must be distinct from costs. BaUi v. Metropolitan Board of 
 Works, L. R., 1 Q. B. 337. 
 
 23
 
 354 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. CH. XII. 
 
 plat of land upon which they were built for the accommodation 
 * of each, and a railway company propose to take a strip of land 
 from the gardens attached to two of the houses upon the side 
 most remote from the houses, and the owner elected to have the 
 company take the houses, which they declined to do, but took 
 the land; the company were held liable to purchase the whole 
 of the two houses, the gardens being part of the houses to which 
 they were attached, and that they were also liable to make 
 compensation for any injury sustained in respect of the other 
 house.^ 
 
 6. It has also been determined, that the railway, after giving 
 notice to purchase part of a house, &c., and being required by the 
 owner to take the whole, cannot be compelled by mandamus to 
 take the whole, as the act of parliament imposes no such obligation. 
 The statute is intended to protect the owner from being compelled 
 to sell a part, but does not compel a company, wanting a part 
 only, to take the whole, if they chose to waive their claim alto- 
 gether, and the mandamus having claimed the whole, could not go 
 for a part only.^ 
 
 6. The plaintiflf was an owner in fee of a house on one side of 
 
 « Cole V. Crystal Palace Kailw., 6 Jur. N. S. 1114 ; s. c. 27 Beav. 242. The 
 term "house" in the statute includes all that would pass by the same word in 
 an ordinary conveyance. Hewson v. London & South Western Rallw. Co., 8 
 W. R. 467 ; Ferguson v. Brighton & South Coast Railw., 9 L. T. N. S. 134 ; s. c. 
 30 Beav. 100. It will therefore embrace all of a series of gardens connected by 
 a gravel walk passing through the walls of the different gardens. lb. See King 
 V. "Wycombe Railw., 6 Jur. N. S. 239; 8. c. 28 Beav. 104. A hospital may 
 compel a railway company to take the whole of the hospital if they insist upon 
 taking one wing used for the same purposes as the rest of the building, although 
 connected only by a wall. St. Thomas Hospital v. Charing-Cross Railw. Co., 1 
 Johns. & H. 400 ; 8. c. 7 Jur. N. S. 256. Houses in the course of construction 
 come within the statute. Alexander v. Crystal Palace Railw., 8 Jur. N. S. 833 ; 
 8. c. 30 Beav. 556. See also Chambers v. London, Chatham, & Dover Railw., 
 8 L. Times, N. S. 235. Land used for purposes of pastime, as archery and 
 dancing, but chiefly as a pasture for cows, although important to the enjoyment 
 of the house, is not so a part of the same premises as to require the company to 
 take it with the house or the house with that. Pulling v. London, Chatham, 
 & Dover Railw. Co., 10 Jur. N. S. 665 ; 8. c. 33 Beav. 644. 
 
 ' Queen v. The London & South Western Railw. Co., 12 Q. B. 775; s. c. 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 super- 
 fluous matter foisted into the record." 
 * 355
 
 § 87. THE COMPANY BOUND TO TAKE INTERSECTED LANDS. 
 
 355 
 
 * a high road, where ho had resided for a great number of years. 
 Some years ago he purchased six acres of land on the other side 
 of the road, upon part of which there were built three houses. 
 Two of the houses were let to tenants, the third house was occu- 
 pied by the plaintiff's groom, and other servants ; the rest of the 
 land which lay beyond the houses was used by the plaintiff for 
 pasturing his cows, horses, &c. The plaintiff alleged that the six 
 acres were indispensable to the enjoyment of the houses by him. 
 A railway wanting part of the six acres which lay about 250 yards 
 from the plaintiff's house, the plaintiff sought to compel the com- 
 pany to take the house also, on the ground that the land formed 
 part of his house, within the 92d section of the Act. But the 
 motion for injunction having been denied by the Vice-Chancellor, 
 Wood, his judgment was affirmed in the Court of Chancery Appeal, 
 Lord Justice Knight Bruce dubitante.^ 
 
 SECTION II. 
 
 The Company compeUaMe to take intersected Lands, and the 
 Owner to sell. 
 
 1. When less than half an acre remains on 
 either side, company must buy. 
 
 2. Owner must sell where land of less txilue 
 
 than railroad crossing. 
 
 3, 4. Word " town " how construed. 
 
 §87. 1. By the 93d section of the English statute the com- 
 pany is compellable to take lands, not in a town, or built upon, 
 which are so intersected by the works as to leave either on 
 one or both sides a less quantity of land than half a statute 
 acre. 
 
 2. And by section 94, if the quantity of land left on either side 
 of the works ^ is of less value than a railway crossing, and the 
 
 « Steele V. Midland Railw., Law Rep. 1 Ch. 275 ; 8. c. 12 Jur. N. S. 218. 
 
 > 8 and 9 Vict. ch. 18, §§ 93 and 94 ; Falls v. Belfast & B. Railw., 11 Irish L. R. 
 184. This statute does not apply to lands in a town or built upon. Marriage 
 V. The Eastern Co.'s R. and the London and B. Railw., 80 Law Times, 264 ; 8. c. 
 9 Ho. Lds. 32, where the judgment of the Excheq. Chamber 2 H. & N. 649, is 
 reversed, and the statute held to apply to all intersected lands, whether in a 
 town or not. A land-owner is not entitled to the costs of an inquirj- whether the 
 land is of less value than the cost of crossing. Cobb. c. Mid Wales Railw., Law 
 Rep. 1 Q. B. 342. 
 •366
 
 356 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. CH. XII. 
 
 owner have not other lands adjoining, and require the promoters 
 * to make the crossing, the owner may be compelled to sell the 
 land. 
 
 3. It was held, that the term " town," in a turnpike act, import- 
 ed 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.^ 
 
 4. And in another case, it is said, that the term includes all the 
 houses, which are continuous, and that this includes all open 
 spaces occupied, as mere accessories to such houses.* 
 
 SECTION III. 
 
 Effect of Notice to Treat for the purchase of Land. 
 
 1. Important question under statute of limita- 
 
 tions. 
 
 2. Company compelled to summon jury. 
 
 8. Ejectment not maintainable against com- 
 pany. 
 4. Powers to purchase or enter, how saved. 
 
 5. Subsequent purchasers affected by notice 
 
 to treat as the inception of title. 
 
 6. But the notice may be unthdraum before 
 
 any thing is done under it. 
 
 7. Not indispensable to declare the use, or that 
 
 it is for station, and another company to 
 participate in use. 
 
 §88. 1. Inasmuch as the time for taking land, by the English 
 statute, is limited to three years, an important question has 
 arisen there, in regard to the effect of instituting proceedings, 
 by giving notice to treat, within the time limited, although not 
 in season to have the matter brought to a close before its expi- 
 ration. 
 
 2. This having been done, and the land-owner having intimated 
 his desire that a jury should be summoned, but the company 
 taking no further steps, the question was whether a writ of man- 
 damus would lie, after the prescribed period had elapsed, to compel 
 the company to proceed to summon a jury. It was determined in 
 the affirmative.^ 
 
 » Reg. r. Cottle, 3 Eng. L. & Eq. 474; 8. c. 16 Q. B. 412. 
 
 ' Elliott p. South Devon Railw., 2 Exch. 725. See also Carington v. Wycomb 
 Railw., Law Rep. 2 Eq. 825. 
 
 ' The Queen v. Birmingham & Oxford Junction Railw., 15 Q. B. 634; s. c. 
 
 6 Railw. C. 628 ; Birmingham & Oxford June. Railw. Co. v. Regina, 1 El. & 
 
 Bl. 293 ; 8. c. 4 Eng. L. & Eq. 276, where the judgment of the Q. B. was fully 
 
 affirmed in the Exchequer Chamber. The court say, " The notice to treat is an 
 
 *367
 
 § 88. NOTICE TO TREAT FOR PURCHASE OP LAND. 357 
 
 * 3. So, too, where the company have taken possession of land, 
 by depositing the value of the land iu the Bank of England, and 
 executing a bond to the party to secure payment, subject to 
 future proceedings, as they may do, and where the company 
 took no further steps to ascertain the sum to be paid by them, 
 as compensation, until the time limited for exercising their com- 
 pulsory powers had expired, it was held, that having rightfully 
 entered upon the land before the expiration of the prescribed 
 period, an ejectment could not be maintained against them after 
 that period. The proper remedy for the land-owner is by writ of 
 mandamus.^ 
 
 4. 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 
 
 inchoate purchase, and after that has been given. In due time, it is competent for 
 the land-owner to compel the completion of the purchase." But where an an- 
 nuitant, 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 property of a prior mortgagee, who 
 had a power of sale, it was held the annuitant could not, in equity, compel the 
 company to pay the owners of the annuity, he alleging no fraud or other im- 
 proper conduct on the part of the company. Hill r. Great Northern Railw., 
 
 5 De G. M. & 6. 66 ; s. c. 27 Eng. L. & Eq, 198, reversing the decision of one 
 of the vice-chancellors in 8. c. 28 Eng. L. & Eq. 565. See also Met. Railw. Co. 
 c. Woodhouse, 11 Jur. N. S. 296. If the land-owner lie by an unreasonable 
 time, he cannot maintain mandamus, or where the company abandon their notice 
 to take part of land upon the owner serving notice to take the whole. Quicke 
 ex parte, 13 W. R. 924. 
 
 * Doe d. Armistead v. The N. StaflTordshire Railw., 16 Q. B. 626 ; 8. c. 4 Eng. 
 L. & Eq. 216. The expression " deviation," which appears in the acts of par- 
 liament and in the English cases, is here determined to import the distance from 
 the line of railway upon the parliamentary plans which are the basis of the charter, 
 and one hundred yards " deviation " is commonly allowed, in the acts. Worsley 
 c. The South Devon Railw. Co., 16 Q. B. 639 ; 8. c. id. 223. See also Lind v. 
 Isle of Wight Ferry Co., 7 L. T. N. S. 416. The courts will restrain the com- 
 pany within the limits of deviation allowed by the act, even where the plans 
 deposited contain no limitation. Higlej r. Lan. & Y. Railw. Co., 4 De G. M. 
 
 6 Gr. 352. The line of deviation controls the right rather than the delineations 
 on the plan. Weld v. So. Western Railw. Co., 32 Beav. 840 ; Knapp v. London 
 Chatham & Dover Railw., 2 H. & C. 212. 
 
 ' The Marquis of Salisbury p. The Great Northern Railw. Co., 17 Q. B. 840; 
 8. c 10 Eng. L. & Eq. 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 
 
 •368,869
 
 358 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. CH. XII. 
 
 the land, their powers to purchase or enter upon the lands are 
 saved,^ 
 
 6. And where a railway company gave notice to a tenant at 
 will to take part of the lands, and the company was allowed to 
 take possession and complete their line, and afterwards a person, 
 who had, subsequently to the notice, purchased one-ninth of the 
 land, filed a bill merely praying an injunction to restrain the 
 railway company from entering upon, continuing in possession of, 
 or otherwise interfering with the land, the bill was dismissed 
 with costs.* 
 
 6. But it seems to be considered that mere notice by a railway 
 company of an intention to take land, may be withdrawn if 
 done before the company have taken possession of the land, or 
 done any thing in pursuance of the notice.^ And this is espe- 
 cially true where the land consists of a house and appurtenances, 
 and the notice only extends to taking a part of the land, and the 
 owner requires the company to take the whole land with all the 
 buildings. 
 
 7. It is no objection to a notice to take land for the use of a 
 railway company that it does not declare the use for which it is 
 proposed to be taken ; nor will it affect the title of the company 
 that it is taken for a station for the joint use of that and another 
 company, which latter company could not have taken the land for 
 their own use alone. ^ 
 
 merely for the purpose of ascertaining the price of the land. Sparrow v. Ox- 
 ford & Worcester Railw. Co., 9 Hare, 436 ; 12 Eng. L. & Eq. 249. 
 
 * Camochan v. Norwich «S; Spalding Railw., 26 Beav. 169. But a notice 
 to treat, in order to become the inception of title, must be followed up within a 
 reasonable time, or it will be regarded as abandoned. Hedges ». The Metro- 
 politan Railw. Co., 28 Beav. 109; s. c. 6 Jur. N. S. 1275. 
 
 * King V. The Wycombe Railw. Co., 6 Jur. N. S. 239; s. c. 28 Beav. 104; 
 Gardner r. Charlng-Cross Railw. Co., 2 J. & H. 248; s. C. 8 Jur. N. S. 151. 
 Where the company agree verbally to take the whole of a house and land, that 
 is a valid waiver of notice under the statute, and will be enforced in equity. 
 Binney v. Hammersmith & City Railw. Co., 9 Jur. N. S. 773. Tenant coming 
 into possession of land after notice to treat, and before proceedings taken, is en- 
 titled to renewal of notice, so as to make him party. Carter v. Great Eastern 
 R. Co., 9 Jur. N. S. 618. And a notice to take land will not enable the com- 
 pany to proceed and complete title after their powers for compulsorj' purchase 
 have ceased. Richmond v. North London Railw., Law Rep. 5 Eq. 352. 
 
 « Wood V. Epsom & L. Railw. Co., 8 C. B. N. S. 781.
 
 §89. 
 
 BEQDISITES OF THE NOTICE TO TREAT. 
 
 359 
 
 •SECTION IV. 
 
 Requisites of the Notice to Threat. 
 
 Notice to treat must, in terms or hy refer- 
 enct, aecurateltf dtacnibe land. 
 
 AjUr notice to treat company compellable 
 to purchase. Company cannot retract 
 ajler giving notice to treat. 
 
 8. New notices given for additional lands. 
 4. Potcer to take land not lost by /ormer un- 
 warranted attempt. 
 6. Lands may be taken for branch railuxiy, 
 6. Effect of notice in case of a public park. 
 
 § 89. 1. As by the English statute the notice to treat is made 
 the act of purchase, it is of the first importance that it should 
 describe the lands accurately. But even where the notice was 
 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 show clearly was 
 submitted to the appraisers to value .^ 
 
 2. It was held long ago in the English courts, under similar 
 statutes for taking land by compulsion, that the notice to treat 
 constituted the act of purchase, and that after giving it there 
 remained no longer to the company any power to retract, and they 
 will be compelled by mandamus to complete the purchase.^ Nor 
 can the company after requiring the tenant to give up to them the 
 possession of his land before the expiration of his term, afterwards 
 surrender the same, especially where damage has accrued to the 
 premises in consequence of the company taking possession. They 
 must pay money into court.* 
 
 ' Sims V. The Conuncrcial Railw., 1 Railw. C. 431 ; Hodges on Railways, 197. 
 
 • Kemp r. The London & Br. Railw. Co., 1 Railw. C. 495. 
 
 ' The King r. Hungerford Market Co., 4 B. & Ad. 327; Same r. Commis- 
 sioners of Manchester, id. 332, n. ; Doo r. The London & Cr. Railw., 1 Railw. 
 C. 257 ; Burkinshaw v. Birm. & Ox. June. Railw. Co., 6 £xch. 475 ; s. c. 4 Eng. 
 L. & Eq. 489 ; Ed. & Dundee Railw. Co. v. Leven, 1 Macq. House of Lords Cases, 
 284 ; Stone r. The Commercial Railw. Co., 9 Sim. 621 ; 8. c. 1 Railw. C. 375. 
 When variance from notice will not vitiate precept, see Walker v. The London 
 & Bl. Railw. Co., 3 Ad. & Ellis (n. s.), Q. B. 744 ; Reg. ». York & North Mid- 
 land R. Co., 1 El. & Bl. 178-858; Reg. v. Ambergate & C. R. Co., id. 372. 
 See ante, § 88, and notes. 
 
 * Pope r. Great Eastern Railw., Law Rep. 3 Eq. 171. Notice to treat is not 
 equivalent to requiring the tenant to surrender the possession. Queen r. Stone, 
 Law Rep. 1 Q. B. 529. 
 
 •360
 
 360 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. CH. XH. 
 
 3. And where the company had given notice to take twenty 
 perches of laud, 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. 
 
 4. Nor will the company be deprived of the power to take land 
 for the necessary use of the works, when the emergency arises, by 
 having previously attempted to take it for other purposes not war- 
 ranted by their act.' 
 
 5. And the company, having opened their main line for travel, 
 but not completed the stations and works, are at liberty to take 
 any lands within the limits of deviation for a branch railway.® 
 
 6. But it was held, that where the Commissioners of Woods and 
 Forests gave notice of taking lands for a public park, as tliey were 
 acting in a public capacity, the notice given by them did not con- 
 stitute a quasi contract, enforcible by mandamus.^ 
 
 SECTION V. 
 The Notice may he Waived, by the Party entering into Negotiation. 
 
 1. Notice must be set /ortk in proceedings. I 3. CertioTan denied where party has suffered 
 
 2. Agreement to uxiive operates as estoppel. \ no injury. 
 
 § 90. 1. It is a general rule, in regard to all summary and in- 
 ferior jurisdictions, that the basis of their jurisdiction must appear 
 upon the face of the proceedings.^ Hence in proceedings to take 
 land in invitum, under a notice to treat, the notice being regarded 
 
 » Tawney v. Lynn & Ely Railw. Co., 4 Railw. C. 615. 
 
 ' Stamps r. Bir. Wolv. & Stour Valley Railw., 6 Railw. C. 123 ; 8. c. 7 Hare, 
 25L 
 
 ' Webb V. Manchester & Leeds Railw., 1 Railw. C. 576 ; Simpson r. Lancaster 
 & Carlisle Railw., 15 Sim. 580; s. C. 4- Railw. C. 625; Williams r. South 
 Wales RaUw. Co., 13 Jur. 443; 8. c. 3 De G. & S. 354. 
 
 » Sadd V. The Maldon, W. & Braintree Railw. Co., 6 Exch. 143 ; 8. c. 2 
 Eng. L. & Eq. 410. 
 
 » Queen v. The Comm. of Woods & Forests (Ex parte Budge), 15 Ad. & 
 EUis (n. 8.), 761. 
 
 ' Rex r. Bagshaw, 7 T. R. 363; Rexr. Mayor of Liverpool, 4 Burrow, 2244; 
 Rex r. Trustees of the Norwich Roads, 5 Ad. & Ellis, 563. 
 *361
 
 §91. 
 
 TITLE OP CLAIMANT MUST BE DISTINCTLY STATED. 
 
 361 
 
 as essential to the jurisdiction, it has more generally been held 
 indispensable to the jurisdiction that it should be set forth upon 
 the proceedings.^ 
 
 2. But where the land-owner enters into negotiation with the 
 * company, and agrees to waive the notice, he is afterwards estopped 
 from taking the objection, that he never received notice.^ And it 
 was held, that the party whose duty it was to give the notice, and 
 who was shown by the returns to have appeared before the jury, 
 cannot object to the inquisition upon the ground that it did not 
 disclose a proper notice to treat.' 
 
 3. 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 tliere are fatal defects on the face of the proceedings which 
 it is sought to bring up ; and that it is almost an invariable rule 
 to deny the writ, where it appears the party has suffered no injury 
 or has assented to the proceedings below.* 
 
 SECTION VI. 
 
 Title of the Claimard must he distinctly stated. 
 
 1. Claimant' i reply to notice thould be dear 
 
 and accurate. 
 
 2. Award bad, which does not state daimant't 
 
 8. Where lands are held by receiver or com' 
 mission /or a lunatic. Expression "/ee- 
 simi>le in possession." 
 
 n. 8. Analogous American cases. 
 
 § 91. 1. In reply to a notice to treat, the claimant may state the 
 particulars of his claim and proceed to treat. In this case the 
 statement should give a clear description of the claimant's interest 
 in the land, as a defect here is liable to affect the validity of the 
 after proceedings. 
 
 2. In one case where the claimant's answer to the notice to 
 treat stated that, as trustees under a will, they claimed an estate 
 in copyhold, and a certain sum as compensation for their interest 
 in the lands, and appointed an arbitrator, and the other party 
 
 • Reg, r. The Committee for the South Holland Drainage, 8 Ad. & Ellis, 429. 
 » Reg. r. The Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. 
 
 ♦ Reg. r. The Manchester & Leeds RaUw. Co., 8 Ad. & Ellis, 418. 
 
 •862
 
 362 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. CH. XH. 
 
 appointing one, and an umpire being agreed upon, he awarded a 
 certain sum as the value to be paid to the trustees, " for the pur- 
 chase of the fee-simple, in possession, free from all •incum- 
 brances ; " the company applying to set aside the award, upon 
 the ground that other persons claimed an interest in the lands, 
 the court held the award bad, for not finding the interest of the 
 claimants in the land, or that they had a fee-simple which it 
 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.! 
 
 3. If the lands are in possession of a receiver, or the committee 
 of a lunatic, a special application should be made to the Court of 
 Chancery .2 The claimant cannot object that the award describes 
 the land as a fee-simple in possession, whereas, the land is in pos- 
 session of a tenant. Lord Benman, Ch. J., in giving 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 possession,* in the 
 claim, is used in contradistinction to fee-simple in reversion or 
 remainder." ^ 
 
 ' The North Staffordshire Railw. Co. c. Landor, 2 Exch. 235. 
 
 * In re Taylor and York N. Midland Railw., 1 Hall & Twells, 432; 8. 0. 6 
 Railw. Cas. 741. In this case the Lord Chancellor said, " All the world ought 
 to be aware, that the sanction of the Lord Chancellor is necessaiy to be obtained 
 in the first instance, in cases like the present." 
 
 ' Bradshaw and the East & "W. I. Docks and Birmingham J. Railw. Co., 12 
 Ad. & Ellis (n. s.), 562. The vendor of land to a railway company 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. Railw. Co., 3 Kelley, 333. Where a 
 company received a grant of certain salt mines, subject to a condition which 
 they did not comply with, but retained the lands for a different purpose, and 
 afterwards, when the period for performing the condition had expired, a general 
 grant of all unoccupied salt lands in the state, necessary' to use, for constructing 
 a railway, was made to a railway company, who proceeded and occupied the 
 lands above-named, it was held that the first grantors had no interest or title 
 enabling them to maintain an action for damages. "They had the lands set 
 apart to their use, for making salt, and had no right to enter upon and occupy 
 them for any other purpose," are the words of the court. Parmelee ». Oswego 
 & SjTacuse Railw., 7 Barb. 599. 
 
 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, 
 •363
 
 § 92. land-owneb's claim must corbespond with notice. 363 
 
 •SECTION VII. 
 
 The Claim of the Land-owner must correspond toith 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 required. 
 But the claim did not properly designate the portion which, it was 
 claimed, the company should take under their notice, and that 
 which they were required to take, as intersected land. The um- 
 pire received evidence as to the value of the intersected land, and 
 awarded one entire sum as compensation for the whole. Held 
 that the award was bad, there being no valid submission as to 
 intersected lands.* 
 
 lime-kilns, or other real estate, in the vicinity of any railway, canal, or slack- 
 trater 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-storj' dwelling-house upon the land, was 
 an owner of the coal-mine, within the act. Shoenberger r. Mulhollan, 8 Penn. 
 St. 134. It is sufficient in such case that the petition be signed by the lessee 
 and agent of the owner, Harvey r, Lloyd, 8 Penn, St, 331. 
 
 It is considered necessary that the mortgagee of land should become a party 
 to the proceedings for condemning or granting land to a railway, in order to 
 give good title to the company. Stewart v. Raymond Railw., 7 S. & M. 568. 
 Or that he should give his consent, in writing, in the case, to the proceeding 
 taken by the mortgagor, Meacham r, Fitchburg Railw., 4 Gush. 291 ; 8. c, 1 
 Am, Railw, Cas, 684, But the mortgagor may recover the full amount of 
 damage, without regard to mortgages. Breed c. Eastern Railw., 5 Gray, 470. 
 
 Where the state held land for a state prison, and granted the charter of a 
 railway, in the usual form, authorizing the company to locate their road, so that 
 it might pass over the land of the state, so held, but without any 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 in fee in its 
 capacity as a body politic. It appears to us the question is purely one of inten- 
 tion." — " We think if the legislature had intended to aid the enterprise by an 
 appropriation of money, land, or other means, — such aid being unusual, — the 
 purpose to do so would have been in some way expressed," Commonwealth c. 
 Boston & Maine Railw,, 3 Cush. 25 ; 8. c, 1 Am. Railw, Cas, 482, 496, 497, 
 
 ' The N, Staffordshire Railw, r. Wood, 2 Excheq, 244. 
 
 •364
 
 864 ENTBT BEFORE COMPENSATION IS ASSESSED. CH. Xni. 
 
 ♦CHAPTER XIII. 
 
 ENTBT UPON LANDS BEFORE COMPENSATION IS ASSESSED. 
 
 SECTION I. 
 
 Lands taken or Injuriously Affected, mithout having previously 
 made Compensation to the Parties. 
 
 1. No entry under English statutes mthoid 4. Company may enter with land-owner's con- 
 
 previous compensation, except for pre- 
 liminary survey. 
 
 Legal remedies against company offend- 
 ing. 
 
 What acts constitute taking possession un- 
 der statute. 
 
 sent ajier agreement for arbitration. 
 
 5. Bond may he given in certain cases. 
 
 6. Company restrained from using land, un- 
 
 til price paid even after line in opera- 
 tion. But this rule dissented from. 
 
 § 93. 1. The eighty-fourth section of the English statute, The 
 Lands Clauses, &c., provides, that no entry shall be made upon 
 any lands by the company until compensation shall have been 
 made under the act, or deposited in the Bank of England, except 
 for the purpose of preliminary surveys, and probing or boring 
 to ascertain the nature of the soil, which may be done by giving 
 notice, not more than fourteen days or less than three days, and 
 making compensation for any damage thereby occasioned to the 
 owners or occupiers of such lands. 
 
 2. It has been considered that if the company enter upon lands 
 without complying with the requisitions of the statute, they are 
 liable in trespass or ejectment.^ And in some cases an injunction 
 will be granted. But where the company entered to make pre- 
 liminary surveys, without giving the requisite notice, the court 
 refused to order the injunction, but reserved the question of 
 costs.2 
 
 ' Doe d. Hutchinson c. The Manchester, Bury, and Rosendale Railw., 14 M. 
 & W. 687. 
 
 ' Fooks p. The Wilts, Somerset, and Wejnnouth Railw., 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. 
 ♦365
 
 § 93. LANDS TAKEN OR INJURIOUSLY AFFECTED. 365 
 
 * 3. And where the entry was regularly made upon the land, for 
 preliminary surveys, and afterwards the contractors, without the 
 knowledge of the corporation, but with the consent of the occupy- 
 ing tenants, brought some of their wagons and rails and other 
 implements upon the land, but did not commence the works or do 
 any damage, and this was without the assent of the owner, and 
 his agent thereupon filed a bill to obtain an injunction against 
 taking possession of the lands until they had complied with the 
 statute, the Vice-Chancellor said, that although the company were 
 bound by the acts of their contractors, the acts done were not a 
 taking possession within the meaning of the statute, and that the 
 bill was improperly filed.* 
 
 4. But where the company agreed with the land-owner that the 
 question of compensation should be settled by arbitration, and 
 thereupon entered upon the land, by consent of the owner, and the 
 arbitrator made an award, which became the subject of dispute, 
 and the owner thereupon gave the company notice to quit, and 
 brought ejectment, it was held he could not recover, although the 
 company had not tendered the money awarded, or a conveyance, 
 but that the owner's remedy was to proceed upon the award.* 
 The notice to quit under the circumstances did not make the 
 company trespassers. 
 
 5. By the eighty-fifth section, if the company find it necessary to 
 enter upon land, for the purpose of carrying forward their works, 
 before the amount of compensation can be settled, they may 
 deposit in the bank the amount claimed, or in other cases the 
 appraisal, and also give the party a bond with surety, to be ap- 
 proved by two justices in a penal sum equal to the amount so 
 deposited, conditioned for the payment or deposit of the amount 
 finally fixed as the ultimate value and interest thereon, and then 
 take possession of the land and proceed with their works. The 
 company can obtain their money so soon as the condition of the 
 bond has been complied with. But the vendor miist join in 
 the petition for the money to be paid the company, or else it must 
 
 ' Standish r. Mayor of Liverpool, 1 Drewry, 1 ; 8. O. 16 Eng. L. & Eq. 
 266. 
 
 * Doe d. Hudaon v. The Leeds and Bradford Railw. 16 Q. B. 796 ; s. c. 6 
 Eng. L. & Eq. 288. The decision here goes chiefly upon the ground of the 
 consent of the land-owner to the entry of the company, and to refer the com- 
 pensation to an arbitrator. 
 
 •366
 
 S66 ENTRY BEFORE COMPENSATION IS ASSESSED. CH. XIH. 
 
 * be shown that he has been served \dth a copy of the petition.^ 
 It does not invalidate the bond, if it bear date before the date of 
 the valuation.* 
 
 6. Where a railway company took land for the construction of 
 their road, without paying the price, and after completing their 
 works leased the line to another company, it was held, upon a bill 
 against both companies, to compel the payment of the land dam- 
 ages, that a decree must pass for the plaintiff for payment by the 
 first company, and in default that both companies be restrained 
 from using the land.' But where the price of lands so taken had 
 been secured by bond, which had not been paid, it was held the 
 company, after having constructed their road, could not be re- 
 
 * Ex parte South Wales RaUw. Co., 6 Railw. C. 151. But in ex parte The 
 Eastern Counties Railw. Co., 5 Railw. C. 210, the money was ordered to be paid 
 to the company upon affidavits showing the claim settled. The land-owner has 
 no lien upon the money deposited for costs, but the company are entitled to the 
 money upon paj-ment of the sum finally settled for the value of the land. The 
 Great Northern Railw. Co. ex parte, 5 Railw. Cases, 269 ; London & South 
 W. R. ex parte Stevens, 5 Railw. C. 437. 
 
 The bond must be given in the verj- terms of the statute. Hosking r. Phil- 
 lips, 3 Exch. 168, opinion of Parke, B. And it will make no difference that the 
 obligee is a gainer by the deviation from the statute. Poynderr. Great Northern 
 RaUw. Co., 16 Sim. 3 ; s. c. 5 Railw. C. 196. 
 
 But where the company choose to treat for the claimant's title only, it is suf- 
 ficient if the bond follow the statute, so far as it applies to that particular case. 
 Willey F. Southeastern Railw. Co., 1 Hall & Twells, 56 ; 8. c. 6 Railw. Cas. 100. 
 Opinion of Lord Chancellor, 107, 108. If the company enter by consent of the 
 tenant, and do permanent damage to the land, the owner may nevertheless obtain 
 an injunction and compel them to make a deposit and give a bond as required by 
 the statute. Armstrong ». Waterford & Limerick Railw. Co., 10 Irish Eq. 60. 
 If there is a mortgage upon land, the company must treat with the mortgagee, 
 or provide for the expense of reinvestment for his benefit, or their entry will 
 be regarded as unlawful. Ranken r. East and W^st India Docks & Bir. J. 
 Railw., 12 Beavan, 298 ; 19 L. J. Ch. 153. 
 
 Under the general statutes, in many of the American states, where there are 
 conflicting claims to the land required by a railway company, the company are 
 required to make application to the Court of Chancery, and deposit the money, 
 in bank, subject to the final order of that court. In such case it has been con- 
 sidered that the company had no interest in the controversy, after depositing 
 the money for the price of the land. Uaswell c. Vermont Central Railw., 23 
 Vt. 228. 
 
 * Stamps V. Birmingham, Wolverhampton, & Stour Valley Railw., 6 RaUw. 
 C. 123. 
 
 ' Cosens v. Bognor Railw. Law Rep., 1 Ch. App. 694, Turner, L. J., dis- 
 senting. But see ante, % 73, n. 7. 
 •367
 
 §94. 
 
 PROCEEDINGS REQUISITE. 
 
 367 
 
 strained by injunction from continuing to occupy the land until 
 they paid the purchase- money .^ And this, it seems to us, is the 
 correct view of the matter, that the land-owner by accepting secu- 
 rity, or even the promise of the company, for land damages, and 
 pressing them to apply the land to the purposes of constructing 
 tlieir works, so essentially converted its nature, as to lose all lien 
 upon it for the price.® 
 
 •SECTION IL 
 
 The proceedings requisite to enable the Company to enter upon 
 
 Land. 
 
 1. Provisionai valuation under EngUah stat- 
 
 utes. 
 
 2. Irregularities in proceedings. 
 
 8. Penalty for irregular entry upon lands. 
 
 4. Entry ajler verdict estimating damages, 
 
 but before judgment. 
 
 5. Mode of assessing damages provided in 
 
 charter not superseded by subsequent 
 general railway act. 
 
 § 94. 1. In some cases specified in the English statute, it is 
 necessary to have a provisional valuation of land, by a surveyor 
 appointed by two justices, to determine the amount of the security 
 to be given before the entry of the company upon the 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 mterfere, by injunction, but the court 
 reprobated such a practice. The court also declined to interfere, 
 by injunction, on the ground that the sureties on the bond were 
 the company's solicitors, and were upon similar bonds to a large 
 amount.^ 
 
 2. In the same case it was considered that depositing money 
 and executing a bond to tenants in common, in their joint names, 
 was irregular.^ It was held that the proceedings under the 85th 
 section of the English act, to obtain possession of the land before 
 
 « Pell r. Northampton & Banbury Railw. Law Rep. 2 Ch. App. 100. The 
 lessee is a proper party in such case. Bishop of Winchester v. Midhants Railw. 
 Law Rep. 5 £q. 19. 
 
 * Ante, § 73, and notes. 
 
 * Langham v. Great Northern Railw., 1 De Gex & Smale, 486 ; s. c. 5 Railw. 
 C. 265, 266. This case was in favor of five plaintiffs, three tenants in common, 
 and two devisees in trust for the sale of the lands, and it was queried, whether 
 there was not a misjoinder. 
 
 •868
 
 368 ENTRY BEFORE COMPENSATION IS ASSESSED. CH. XIII. 
 
 amount of compensation is settled, may be ex partem and altogether 
 without notice.^ 
 
 3. The English statute subjects the company to a penalty for 
 entering upon lands before taking the steps required by the 
 * statute, but provides, that the penalty shall not attach to any com- 
 pany, who have bona fide done what they deemed to be a com- 
 pliance with the statute.^ 
 
 4. If one enter upon lands after verdict estimating damages, 
 but before judgment on the verdict, he is liable in trespass, but 
 only for the actual injury, and not for vindictive or exemplary 
 damages.* 
 
 6. It has often been made a question in this country, where 
 the charter of a railway provides one mode of assessing land 
 damages, and a subsequent general railway act provides a differ- 
 ent mode, which the company are bound to pursue. It has 
 been held the company might still pursue the course pointed out 
 in their charter.^ 
 
 SECTION III. 
 
 Mode of obtaining Compensation under the Statute, for Lands 
 taken, or injuriously affected, where no Compensation is offered. 
 
 1. Claimant may elect arbitration or jury 1 2. Method (^procedure, 
 trial. I 
 
 § 95. 1. Where land is taken by the company, or injuriously 
 affected by their works, and no compensation has been offered 
 by the company, the claimant may, where the amount exceeds 
 
 * Bridges v. The Wilts, Somerset, and Weymouth Railw., 4 Railw. C. 622. 
 This is a decision of the Lord Chancellor affirming that of the Vice-Chan- 
 ellor of England. PojTider v. The Great N. Railw. Co., 16 Sim. 3; 8. c. 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 injunc- 
 tion, but allowed it till the bond was corrected. 
 
 * Hutchinson ». The Manchester, Bury, and Rossendale Railw. Co., 15 M. & 
 W. 314. 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." 
 
 * Harvey v. Thomas, 10 Watts, 63. 
 
 * Visscher v. Hudson River Railw., 15 Barbour, 37 ; Hudson River Railw. v. 
 Cutwater, 3 Sandf. Sup. Ct. 689 ; ante, § 72, n. at the end. 
 
 ♦869
 
 §96. 
 
 THE ONUS OF CARRYING FORWARD PROCEEDINGS. 
 
 369 
 
 fifty pounds, have the same assessed, either by arbitrators or a 
 jury, at his election. 
 
 2. If he desire to have the same settled by arbitration, he 
 shall give notice to the company of his claim, stating his interest 
 in the land and the amount he demands, and unless the com- 
 pany within twenty-one days enter into a written agreement to 
 *pay the amount claimed, the same shall be settled by arbitration, 
 in the manner pointed out in the statute ; or, if the party desire 
 to have the same settled by a jury, he shall so state in his notice 
 of claim, and unless the company agree to pay the sum claimed, 
 in the manner stated above, they shall within twenty-one days 
 issue their warrant to the sherifi" to summon a jury to settle the 
 same, in the manner pointed out in the act, and in default there- 
 of they shall be liable to pay the amount claimed, to be recov- 
 ered in the superior courts.^ 
 
 SECTION IV. 
 
 The Onus of carrying forward Proceedings. 
 
 8. Proceedings cannot be had unless actual 
 possession is taken or injury done. 
 
 1. Rests upon claimant afier company have 
 
 taken possession. 
 
 2. Miscellaneous provisions. 
 
 § 96. 1. It has been held, under the English statutes, that 
 after the company have taken possession of land, either by right 
 or by wrong, the onus of taking the initiative steps to have the 
 purchase-money or compensation assessed, lies upon the claim- 
 ant.^ It was considered in this case, that the remedy under 
 the 68th section ^ applied to all cases where the company took 
 possession of the land under the 85th section.^ 
 
 2. But if questions in equity are pending, they must be dis- 
 
 » 8 & 9 Vict. ch. 18, § 68. 
 
 > Adams v. The London & Blackwall Railw. Co., 2 Hall & Twella, 285 ; 8. c. 
 6 Railw. C. 271, 282. The opinion of the Lord Chancellor on appeal. It wa« 
 also considered, in this case, that if the company failed to perform their dutiea 
 in the proceedings, the more appropriate remedy was by mandamus, and not by 
 application to the courts of equity for decree of specific performance. 
 
 « See ante, § 96. 
 
 ' See ante, §§ 93, 94. Doe d. Armistead v. North Staffordshire Railw. Co., 
 16 Q. B. 626 ; 8. c. 4 Eng. L. & Eq. 216. 
 
 24 •870
 
 370 
 
 ENTRY BEFORE COMPENSATION IS ASSESSED. 
 
 CH. xni. 
 
 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.^ 
 3. It is considered that the land must be actually taken, or 
 actually injuriously affected by the company, before the claimant 
 can take proceedings under section 68. Hence if the company 
 give notice of their intention to take lands, but do not afterwards 
 actually take possession or injuriously affect them, the claimant 
 can only proceed by mandamus. It has been decided that the 
 claimant in such case cannot make a demand of a certain sum, 
 and then recover it, if the company do not issue their warrant to 
 the sheriff.^ 
 
 SECTION V. 
 
 Equity will not interfere, hy Injunction, because Lands are being 
 Injuriously Affected, without notice to treat, or previous com- 
 pensation. 
 
 1. Claimant must wait until works are com- 
 
 pleted, 
 
 2. Even if appearance of land uiiU be great- 
 
 ly altered. 
 
 3. How far equity interferes where legal 
 
 claim of party is denied. 
 
 4. Where a special mode of compensation 
 
 has been agreed upon. 
 
 § 97. 1. It is said courts of equity will not interfere by in- 
 junction, because lands are being injuriously affected by the 
 
 * Southwestern Railw. Co. v. Coward, 5 Railw. C. 703 ; s. c. 1 Hall & Twells, 
 877, note. 
 
 » Railstone v. The York, Newcastle, & B. Railw. Co., 15 Ad. & Ellis (n. s.), 
 404. This case is somewhat questioned in Richardson v. Southeastern RaUw., 
 11 C. B. 154 ; 8. c. 6 Eng. L. & Eq, 426. But in this same case, in error, in 
 the Exchequer Chamber, 9 Eng. L. & Eq. 464, the question as to costs is affirmed, 
 and the court say, it is not necessary to say whether they consider the case of 
 Railstone v. The York, N. & B. Railw. Co. sound or not, as it does not neces- 
 sarily affect the question before the court. 
 
 • Burkinshaw v. Birmingham & Oxford Jimction Railw. Co., 5 Excheq. 475. 
 
 *371
 
 § 97. EQUITY WILL NOT INTERFERE BY INJUNCTION, ETC. 371 
 
 company's works, and no notice to treat or previous compensa- 
 tion has been made, if it appears the company are only exercis- 
 ing their statutory powers. The claimant should allow the 
 * works to be completed, and then take his remedy under the 
 statute.^ 
 
 2. It was objected, in one case, that the company would be 
 likely to greatly alter the appearance of the land which they had 
 entered upon, and that a jury could not understandingly assess 
 the value after the damages were sustained, but the court said 
 it was no ground for the interference of a court of equity .^ 
 
 3. The courts in England hold, that in this class of claims it 
 is proper to wait till the full extent of the injury is known.* 
 And equity will not enjoin the party from proceeding under the 
 statute, in a case where it is alleged that he has no legal claim 
 under the statute,* as in such case the company may defend 
 against the award, and this seems to be the course finally deter- 
 mined upon. But some actions at law have been brought and sus- 
 tained to try the right, by order of the courts of equity.^ 
 
 4. So, too, where the bill alleges that the party has upon con- 
 sideration agreed to receive compensation in a particular mode, 
 equity will enjoin him from taking proceedings under the 
 statute.® 
 
 » 8 & 9 Vict. ch. 18, § 68. 
 
 ' Langham v. Great Northern Railw., 1 De G. & Sm. 486 ; 8. c. 6 Railw. C. 
 263. The counsel for defendant not called to answer this portion of plaintiff ^8 
 argument. 
 
 =• Hutton c. The London & Southw. Railw. Co., 7 Hare, 269. 
 
 * East & West India Docks & Bir. J. Kailw. Co. p. Gattke, 3 Mac. & Gor. 
 166 ; 8. c. 3 Eng. L. & Eq. 69 ; South Staffordshire Railw. Co. v. Hall, 1 Sim. 
 N. S. 373 ; 8. c. id. 106. In this last case, the opinion of Lord Cranworth seems 
 to overrule that of Lord CotUnham in The London & N. W. Railw. Co. v. Smith, 
 1 Hall & Twells, 364 ; 8. c. 6 Railw. C. 716. The Sutton Harbor Improvement 
 Co. r. Hitchins, 15 Beav. 161 ; 8. c. 9 Eng. L. & Eq. 41 ; The London & N. W. 
 Railw. Co. r. Bradley, 3 Mac. & Gor. 366; 8. c. 6 Railw. C. 651, See also 
 Monchet v. G. W. Railw. Co., 1 Railw. C. 667. But see the case of L. & Y. 
 Railw. r. Evans, 14 Beav. 629 ; 8. c. 19 Eng. L. «& Eq. 296, where the case of 
 L. & N. W. Railw. r. Smith is still further questioned. 
 
 » Glover c. The North Staffordshire Railw. Co., 16 Q. B. 912; 8. c. 6 Eng. 
 L. & Eq. 336. 
 
 • Duke of Norfolk v. Tennant, 9 Hare, 746 ; 8. c. 10 Eng. L. & Eq. 237. 
 
 *372
 
 372 ENTRY BEFORE COMPENSATION IS ASSESSED. CH. XHI. 
 
 ♦SECTION VI. 
 
 Sheriff ^8 Jury, or Arbitrator, cannot determine the Question of 
 Right in the Claimant, but only the amount of Damages. 
 
 1. Later English decisions sustain this view. I 6. Plaintiff will recover damages assessed 
 % 8. Statement of recent case. if he suffered any legal injury. 
 
 4. Inmost American states assessment is final. ■ 
 
 § 98. 1. There has been some contrariety of opinion among 
 the English judges in regard to the right of the company, before 
 the sheriflTs jury, to raise the question of the claimant's right to 
 recover any compensation, under the sixty-eighth section, where 
 lands are taken or alleged to be injuriously affected by the works 
 of the company ; and whether the jury can go into any inquiry 
 beyond that of the value of the claimant's interest in the land. 
 The latest decisions upon this point hold, that the jury is con- 
 fined to the question of the amount of compensation.^ 
 
 2. 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 Wightman, J., holding, that the jury had nothmg 
 before 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 ac- 
 count of a claim for the injuriously affecting of land, was to be 
 tiied 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 claim- 
 ant's recovery, for the full amount of the claim made ; but if 
 they proceeded to a hearing before the arbitrator or a jury, 
 
 * Regina r. Metropolitan Comm. of Sewers, 1 £1. & Bl. 694 ; s. c. 18 Eng. 
 L. & Eq. 213. 
 
 * Regina v. The London & Northwestern Railw. Co., 3 El. & Bl. 443 ; s. c. 
 25 Eng. L. & Eq. 37. And the same rule is extended to the finding of arbi- 
 trators that premises were injuriously aflfected by the narrowing of a way of 
 approach, by means of the company's embankment ; th6 award is not conclusive 
 upon the point of the injurious effect. Beckett v. Midland Railw. L. R. 1 C. P. 
 241. 
 
 •373
 
 § 98. CANNOT DETERMINE TITLE : ONLY DAMAGES. 373 
 
 whichever course the claimant should elect, they might not only 
 contest the aniount tliere, but the right of any recovery in the 
 action which the claimant was compelled to bring, to obtain * ex- 
 ecution against the company, but that it was improper to go into 
 any inquiry before the arbitrator or the jury, in regard to the 
 right to recover any thing, inasmuch as this tended improperly 
 to embarrass the mind of the triers in regard to the damages. 
 And in this case, where the jury went into the question of right, 
 and determined the claimant had no right, but added, if he had 
 such right his claim should be valued at £150, the majority 
 of the court determined that the former part of the verdict could 
 not be rejected, and let the verdict stand as a good finding of 
 the sum named, which last point seems rather too refined for 
 common apprehension, even after reading attentively the elab- 
 orate opinion of the majority of the court by Chleridge, J. 
 
 3. Mr. Justice Erie dissented from the principal decision of 
 the court, and held the verdict good in all respects. But this 
 case must be regarded as settling the question of the right of the 
 jury to pass upon the claim beyond its mere amount, at least 
 under the English statutes. 
 
 4. Li most of the American states the assessment of land 
 damages, by whatever tribunal, becomes final, unless appealed 
 from, and execution issues without resort to a future action, or, 
 if an action is necessary upon awards of arbitrators, this will not 
 justify a re-examination of the case, either upon the question of 
 title or amount of damages. But in some of the states, the 
 proceedings are similar to those above named in the English 
 courts.' 
 
 5. And under the English statutes, where the claim is for in- 
 juriously affecting land, the plaintiff must recover the entire 
 amount of damages assessed to him for land taken by a railway, 
 unless the defendant's pleas show that he had no right to recov- 
 er * to any extent. 
 
 » Ante, § 72. 
 
 * Mortimer c. South Walea Raiiw. Co., 6 Jur. N. S. 784 ; s. c. 1 Ellis & Ellis, 
 376. 
 
 ♦874
 
 374 
 
 ENTEY BEFORE COMPENSATION IS ASSESSED. 
 
 CH. xm. 
 
 •SECTION VII. 
 
 The extent of Compensation to Land-owners, and other Incidents 
 by the English Statutes. 
 
 1. Liberal compensation allowed. 
 
 2. Decisions under English statutes. 
 
 3. Limit of period far estimating dam- 
 
 ages. 
 
 Whether claim for damages passes to the 
 devisee or executor. 
 
 Vendor generally entitled to damages ac- 
 cruing during his time. 
 
 §99. 1. In one of the early cases ^ upon this subject, Lord 
 Denman, 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 pos- 
 sible remote injuries may accrue to property, of a general and 
 public character, which it was never intended to compensate. 
 
 2. Some points arising under the English statute may be here 
 referred to. It was held, that where the powers conferred upon a 
 canal company were unlimited as to time, no limitation as to their 
 exercise could be assigned, so as to require their exercise within a 
 reasonable time,^ and, consequently that the works might be re- 
 sumed at any period.^ Future damages to accrue to land-owners 
 cannot be estimated properly ^ until after the completion of the 
 works.2 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 
 
 ' Reg. V. Eastern Counties RaUw., 2 Ad. & EUis (Q. B), 347. 
 
 • 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 com- 
 pany 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 frova. completing their enterprise, 
 notwithstanding the grant of power to do so, by parliament ; but a court of law 
 could do no such thing, pp. 490, 491. 
 
 » Lee r. MUner, 2 M. «& W. 824. 
 
 « Manning r. The Eastern Counties Bailw., 12 M. & W. 237. But unless it 
 ♦ 375, 376
 
 § 99. EXTENT OF COMPENSATION TO LAND-OWNEES. 375 
 
 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.* 
 
 3. 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.^ 
 
 4. 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.^ But the cases are not uniform upon this subject, and 
 the usual course seems to be, that the money for consequential 
 damage goes to the party interested in the inheritance, or else is 
 divided according to the interest of the several estates.^ In one 
 case it was held, that the vendee was entitled to compensation, which 
 accrued during the time of the vendor's title, but not liquidated 
 till after the conveyance.^ 
 
 5. But in general the vendor is entitled to land damages ac- 
 cruing 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.^^ 
 
 appeared b^ 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, n. 7. 
 
 • Manning v. The Commissioner under the W. I. Dock Act, 9 East, 165. 
 
 • The King c. The Comm. under London Dock Acts, 12 East, 477. 
 
 ' Ex parte Hawkins, 3 Railw. C. 605, and note. No other party seems to 
 have had a counter interest in this case. 
 
 » The Midland Counties Railw. Co. ». Oswin, 1 Coll. C. C. 74, 80 ; 8. c. 8 
 Eailw. C. 497 ; Danforth r. Smith, 23 Vt. 247. 
 
 • King r. Witham Nav, Co., 3 B. & Aid. 454. 
 " Rand ». Townshend, 26 Vt. 670. 
 
 " Bex V. Nottingham Old Waterworks, 6 Ad. & Ellis. 355.
 
 376 
 
 ENTRY BEFORE COMPENSATION IS ASSESSED. 
 
 CH. xni. 
 
 •SECTION VIII. 
 
 Right to temporary use of Land to enoMe the Company to make 
 Erections upon other Lands. 
 
 1. Right to pass another railxcay hy a bridge 
 
 gives temporary use of their land, but no 
 right to build abutments upon it. 
 
 2. Right to construct a bridge across a canal 
 
 gives right of building a temporary 
 bridge. 
 8. And if thus erected hon&&de may be used 
 for other purposes. 
 
 § 100. 1. Where one railway act gives the company power to 
 pass another railway, by means of a bridge, provided the width 
 between the abutments of the bridge is not less than twenty-six 
 feet, and at the points where the bridge is to be built, the land of 
 the second company is forty-seven feet wide, the first company 
 have no right to build the abutments of their bridge upon the land 
 of the second company, but having purchased adjoining land for 
 that purpose, they have a right at law to the temporary use of the 
 land of the second company, for the purpose of building, and this 
 right was in efiect secured to the first company by an injunction 
 out of chancery.^ 
 
 2. So, too, where a railway company had permission to carry 
 their road over a canal, by means of a bridge of a given descrip- 
 tion, it was held that they might, as incident to the right of 
 erecting the bridge, make a temporary bridge over the canal, 
 supported partly on piles driven into the bed of the canal, to 
 enable them to transport earth across the canal to build the 
 necessary embankment, in the construction of the permanent 
 bridge.'^ 
 
 3. And such a temporary bridge having been erected for the 
 bona fide purpose of building the permanent bridge, might also be 
 used for other purposes, for which alone it could not have been 
 erected.* 
 
 ' Great North of England, Clarence & Hartlepool Junction Railw. r. The 
 Clarence Railw., 1 Collyer, 507. 
 
 • London & Birmingham Railw. r. Grand Junction Canal Co., 1 Railw. Cas. 
 224. 
 
 3 Priestley v. The Manchester & Leeds Railw., 4 To: & Col., Ex., 63 ; s. c. 
 2 RaUw. C. 134. 
 
 •377
 
 § 101 a. DISPOSITION OF SUPERFLUOUS LANDS. 377 
 
 •SECTION IX. 
 
 Reservaiiona to Land-ovmers to huUd private Railway across pub- 
 lic Railway. 
 
 § 101. Where the special act of a railway company provided, 
 that nothing in the act contained shall prevent any owner or 
 occupier of any ground through which the railway may pass from 
 carrying, at his or their own expense, any railway, or other ro'ad, 
 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 purchased the land upon opposite sides 
 at diflferent times.^ 
 
 SECTION X. 
 Disposition of Superjlttous Lands. 
 
 1. Vest in adjmning ovoner unleu disposed of I 2. Former oumer not excluded; effect of cot- 
 in ten years. I tageinjidd. 
 
 § 101 a. 1. By the English statute railways are required, where 
 they have acquired more lands under their powers than are re- 
 quired for their purposes, to sell the same within ten years from 
 the passing of the act, and that superfluous lands, then remaining 
 unsold, should vest in the owners of adjoining lands, in proportion 
 to the amount of their lands respectively adjoining the same. 
 That time was by a subsequent act extended five years more. It 
 has been held that the act embraced lands, the reversion of which 
 had been bought by the company ; and also that the superfluous 
 land was to be divided among the owners of the adjoining property, 
 
 » Monkland & Kir. Railw. v. Dixon, 1 Bell Ap. Caa. 347 ; 8. c. 8 Railw. C. 
 273. The Court here (IL 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. 
 
 •378
 
 378 ENTRY BEFORE COMPENSATION IS ASSESSED. CH. XHI. 
 
 in proportion to the frontage of each, meaning by that the length 
 of the line of contact, without reference to the extent of the land 
 in other directions, and that the later act did not defeat titles 
 already vested under the former act.^ 
 
 2. It has also been held that the former owner of the lands, 
 from which they were severed, is entitled to share in the same un- 
 der the statute, and that the fact that a cottage stands in the field, 
 part of such superfluous lands, will not bring them within the 
 exception of lands built on or used for building purposes.^ 
 
 1 Moody V. Corbett, Law Rep. 1 Q. B. 510. 
 
 * Carington r. Wycomb Eailw. Law Kep. 2 Eq. 825.
 
 § 102, 103. BY JUSTICES OP THE PEACE. — BY SURVEYORS. 
 
 379 
 
 •CHAPTER XIV. 
 
 THE MODE OP ASSESSING COMPENSATION UNDER THE ENGLISH 
 
 STATUTES. 
 
 SECTION I. 
 
 By Justices of the Peace. 
 
 1. Where compenaation claimed does not ex- 
 
 ceed £00. 
 
 2. Mode of enforcing ctward. 
 
 Value of land and injury accruing from 
 ieverance to be considered. 
 
 § 102. 1. By the English statute, where the compensatiou 
 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. 
 
 2. The mode of enforcing payment of money awarded by such 
 justices, is to obtain an order, which may be enforced by distress, 
 upon the goods and chattels of the party liable. The certiorari is 
 taken away in such cases, but an order of such justices may still 
 be brought up, to be quashed, for want of jurisdiction.^ 
 
 3. The justices are to take into consideration the value of the 
 land, and any injury which may accrue from severance. 
 
 •SECTION II. 
 
 By Surveyors. 
 
 § 103. The assessment of compensation by surveyors, under 
 the English statutes, is merely provisional in most cases, as where 
 the party is out of the kingdom, or cannot be found, two justices 
 
 * See the subject disaxaaed post, §§ 202, 203. 
 
 * 879, 380
 
 880 
 
 MODE OF ASSESSING COMPENSATION. 
 
 CH. XIV. 
 
 are required to nominate an able practical surveyor, who is, 
 under certain solemnities, required to make a valuation of the 
 land taken or injuriously affected, the amount of which the com- 
 pany are required to deposit- in the bank, before proceeding with 
 the works. And if such party be dissatisfied with the sum thus 
 deposited, he may, before applying to Chancery for the money, 
 require the question to be submitted to arbitration, as in other 
 cases of disputed compensation. Surveyors are required to as- 
 sess damages for severance of land, the same as justices of the 
 peace .^ 
 
 SECTION III. 
 By Arbitration. 
 
 7. And land-cumers maf recover without 
 
 waiting for selectmen to act. 
 
 8. Company estopped in such case from de- 
 
 nying that road uxzs constructed by their 
 servants. Embankments part of the 
 railway. 
 
 9. Finality qfaivard. 
 
 10. May employ experts. Damages em- 
 
 braced. 
 
 11. Construction of general award. 
 
 1. May be claimed in cases exceeding juris- 
 
 diction of justices of the peace. 
 
 2. How made compulsory. 
 8. What form of notice is sufficient. 
 n. 6. Analogous American cases. 
 
 4. Arbitrator's power limited to award of pe- 
 
 cuniary compensation. 
 
 5. Where land-owner gives no notice, com- 
 
 pany may treat it as case of disputed 
 compensation. 
 
 6. Similar rule under Massachusetts statute 
 
 regarding alteration of highways. 
 
 § 104. 1. By the English statutes, if the amount of compensa- 
 tion claimed exceed the jurisdiction of two justices, any party 
 claiming compensation may compel an arbitration, by taking * the 
 requisite steps in due time. Unless both parties concur in the 
 same arbitrator, each party, upon the request of the other, is re- 
 quired to name one. The appointment of the arbitrator is to be 
 under the hand of the party, and delivered to the arbitrator, and is 
 to be deemed a submission by such party. Such submission is 
 irrevocable, even by the death of the party. 
 
 2. If either party neglect, for fourteen days, after request by 
 the other party to name an arbitrator, one may be named by 
 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 ac- 
 
 > Hodges on Railways, 250, 251, 252. 
 ♦881
 
 § 104. BT ARBITRATION. 381 
 
 quiescence.^ The secretary of a railway company, by the Eng- 
 lish statutes, would seem to have power to bind the company, 
 by signing the submission, whether the arbitration is compulsory 
 or not.^ 
 
 8. 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 ex- 
 plicit. It is not sufficient to say, " Take notice, that it is my in- 
 tention to nominate S. M.," notwithstanding it was added, " if the 
 company fail to appoint, I the said T. B. will appoint S. M. to 
 act on behalf of both parties."* And in this case it is said, it 
 would seem that the appointment by the claimant of an arbitrator 
 to act for both parties, is not valid, unless he has previously 
 appointed an arbitrator, on 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.^ 
 
 * 4. The arbitrator has no power beyond the awarding of a 
 pecuniary compensation for the land taken by the company, and 
 cannot direct what right of way shall remain in the tenant to the 
 portion of laud not taken. ^ Nor can he apportion the rent to the 
 tenant.^ 
 
 5. 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 50Z., it 
 may be settled by two justices. But if more than bOl. be claimed, 
 or offered, and the claimant desire to have it settled by arbitra- 
 
 » Inre Eliott, 2 De G. & Sm. 17. 
 
 " Collins r. South Staffordshire Railw. Co., 7 Exch. 6; 8. c. 21 Law J. 
 (Ex.), 247 ; 8. c. 12 Eng. L. & Eq. 665. 
 » Tew r. Harris, 11 Q. B. 7. 
 
 * Bradley r. London & N. W. Railw. Co., 6 Exch. 769. 
 
 ' But where both parties petition for a jury to revise the damages, one war- 
 rant is sufficient. Davidson t. Boston & Maine Railw., 3 Cush. 91. And if two 
 warrants are issued, the sheriff should execute, and return them as one. lb. 
 And where there are several applications, which by statute are to be determined 
 by one jurj', the proper mode is to issue but one warrant to the sheriff, 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 
 irregularity. Wyman r. Lexington & West Cambridge Railw., 13 Met. 316. 
 
 * Ware r. Regent's Canal Co., 9 Exch. 395 ; 8. c. 25 Eng. L. & Eq. 444. 
 ' 8 & 9 Vict. ch. 18, §§ 21, 22, 23, 38. 
 
 •382
 
 382 MODE OP ASSESSING COMPENSATION. CH. XIV. 
 
 tion, it is at his option, and he must give notice of such desire 
 before the company issue their warrant to the sheriflf to summon 
 a jury to assess the compensation, which they may do in ten 
 days after giving the claimant notice that they shall do so, unless 
 in the mean time he elect to have the matter settled by arbitration J 
 
 6. And under the Massachusetts statute, giving railways the 
 right to alter highways, upon giving notice to the selectmen of the 
 towns where such highways are situated, and conforming to their 
 requirements, or the decision of the county commissioners, in re- 
 gard to the alteration of the highway, it was held, that if the select- 
 men give no notice to the company, as to what alterations they 
 require, the presumption is, that they require none, but leave the 
 whole matter to the company. 
 
 7. And to entitle adjoining land-owners to recover damages of 
 the railway under the statute of Massachusetts, it is not necessary 
 that the selectmen should have acted in the premises. The remedy 
 in such case is not by an action against the town, but by proceed- 
 ings under the statute against the company.® 
 
 8. In such case the company are estopped to deny, that the con- 
 struction of their road, as in fact made, was done by their servants 
 in compliance with the requirement of the charter.® And embank- 
 ments made by them for the purpose of carrying * a highway over 
 the railway, are to be regarded as a part of the railway.® 
 
 9. By a submission to arbitration it was provided that the arbi- 
 trator should determine what sum should be paid for the purchase 
 of land, and what " other, if any, sum for severance damage, and 
 the arbitrator after reciting " the submission, and that he had con- 
 sidered the matters so referred to him, awarded a certain sum to 
 be paid for the purchase of the land, without saying any thing 
 about severance-damage : it was held that the award was final 
 and good, that the arbitrator by his silence negatived any right to 
 compensation on account of severance-damage.^ 
 
 10. A submission to arbitration under the English statute for 
 assessing land damages is not revoked by the death of the land- 
 owner.^® It was here considered that the award was valid although 
 
 * Parker v. Boston & Maine Railw., 3 Cush. 107. 
 
 • In re Swansea Harbor Trustees, 6 Jur. N. S. 979 ; s. c. nom. Beaufort v. 
 Swansea Harbor Trustees, 8 C. B. N. S. 146. 
 
 '" Caledonia Railw. Co. ». Lockhart, 3 McQu. Ho. Lds. 808 ; s. c. 6 Jur. 
 N. S. 1311, in the House of Lords. 
 ♦383
 
 § 104. BY ABBITBATION. 883 
 
 not made within the statute period of three months ; that the arbi- 
 trator may employ an expert and consult men of science, if neces- 
 sary ; that the right to compensation extends to any laud injured 
 by the severance of that which was taken, or by the works which 
 the company is authorized to construct, and may include damages 
 likely to be caused to the tenants of the land-owner. The right to 
 compensation depends on cause and effect, and not on " proximity 
 or distance." 
 
 11. The award of a gross sum for damages for drainage whidh 
 lessened a waterpower upon which a mill had been erected, was 
 held presumptively to apply to the damage to the mill, and not to 
 the unemployed waterpower, which might be available for the 
 proprietor of the other side of the river." 
 
 " St. George c. Reddington, 10 Ir. Ch. 176.
 
 384 
 
 CONSTBUCTION OF RAILWAYS. 
 
 CH. XV. 
 
 ♦CflAPTER XY. 
 
 CONSTRUCTION OF RAILWAYS. 
 
 SECTION I. 
 
 Line of Railway. — Right of Deviation. 
 
 1. Manner of defining the route in English 
 
 charters. 
 
 2. Question involved stated, 
 
 3. Plans only binding, when and firr the 
 
 purpose re/eired to in the act. 
 
 4. Contractor bound by deviation, unless he 
 
 object. 
 
 5. Courts of equity wiU not enforce contract 
 
 against public security. 
 
 6. Right to construct accessory works, 
 
 7. 8. Company may take lands designated, 
 
 in their discretion. 
 9. Equity cannot enforce contract not incor- 
 porated into the act. 
 
 Right of deviation lost by election. 
 
 Railway betu^een tun towns, extent of 
 grant. 
 
 Grant of land for railway includes acces- 
 
 13. Route designated need not be followed 
 
 literally. 
 
 14. Terminus being a town, is not extended, 
 
 as the town extends. 
 
 15. Party accepting compensation waives in- 
 
 formality. 
 
 16. Powers limited in time expire with limita- 
 
 tion. 
 
 17. Construction of charter as to extent of 
 
 route. 
 
 18. Map may be made to yield to other 
 
 grounds of construction, 
 
 19. Power to change location must be exer- 
 
 cised before construction, 
 
 20. Binding force of plans made part of 
 
 charter, 
 
 21. Grant terminating at toum liberally con- 
 
 strued. 
 
 § 105. 1. The English railway acts are granted altogether, after 
 full surveys of the route and with reference to definite plans of 
 the engineers, which, when referred to generally in the act, thus 
 become so far a part of it as to be binding upon the company to 
 the extent of determining the datum line, and the line of railway 
 measured with reference to that datum line ; and the level of the 
 railway, with reference to the datum line ; but not the surface 
 levels, unless expressly so provided in the act.^ 
 
 • North British Railw. v. Tod, 5 BeU Ap. Cas. 184; s. c. 4 Railw. C. 449. 
 This was an appeal from the judgment of the Court of Sessions in Scotland. 
 The opinions of Lord Lyndhurst, Chancellor, and of Lord Campbell, Ch. J., 
 certainly exhibit the rule of the English law upon this subject verj- fully and very 
 ably. Lord Lyndhurst says : ** Now as to the eflfect of plans exhibited previous 
 to the contract being made, or previous to the act of parliament being obtained, 
 *384
 
 § 105. LINE OP RAILWAY. — RIGHT OP DEVIATION. 386 
 
 * 2. The question in this last case ^ was in regard to the right 
 to intersect an approach, leading to a mansion-house, at a * dif- 
 
 it does seem, fi*om cases which have occurred, both in Scotland and this country, 
 that the rule of the courts in this countr^S and in the otiier, is no longer a matter of 
 any doubt or dispute. If a contract or an act of parliament refer to a plan, to the 
 extent that the act refers to the plan, and for the purpose for which the act or con- 
 tract refers to the plan, undoubtedly it is part of the contract or part of the act. As 
 to that there is no dispute. A contract, or an act of parliament, either does not 
 refer to a plan at all, or it refers to it for particular purposes. It has been con- 
 tended, both in Scotland and in England, that the defendant in the suit, or 
 those who claim the benefit of the provisions of an act of parliament, previous 
 to this enactment being made, or the contract being concluded, have repre- 
 sented that the works are to be carried on in a particular mode, upon a plan 
 shown previous to the powers being obtained under the act, or the contract be- 
 ing concluded, and that the party obtaining the act, or obtaining the contract, is 
 bound by such representation. There was a case very much considered in Scot- 
 land, the case of The Feoffees of Heriot's Hospital v. Gibson, 2 Dowl. 301 ; and 
 several cases have occurred in the courts of equity in this country. It was my 
 fortune to have to consider the matter very minutely in the case of Squire r. 
 Campbell, 1 My. & Cr. 459, in which I thought it my duty to review all the cases 
 that had occurred in the one coiutry and in the other, for the purpose, if possi- 
 ble, of establishing a rule which might be a guide on future occasions when sim- 
 ilar cases should occur ; and I found that, certainly, what had been very much 
 the opinion of the profession in this country, namely, that the parties were 
 bound by the exhibition of such plans, had met with a very wholesome correc- 
 tion by the doctrine laid down by Lord Eldon, and Lord Bedesdale, in the case 
 of Heriot's Hospital, decided by this House. Under the authority of that case, 
 in which the point was very distinctly raised, and deliberately decided upon, I 
 came to the conclusion that there was no ground for equitable interposition. 
 Now, my Lords, not relying upon the authority of Squire v. Campbell, but rely- 
 ing, as we are bound to do, upon the case of The Feoffees of Heriot's Hospital, 
 I consider that to be the rule to which the courts of this country, and the Court 
 of Sessions in Scotland, and this House, must hereafter adhere. Taking that, 
 then, to be the rule in examining the facts of this case, and the act of parliament 
 upon which the question turns, we are not to 16ok at what was represented upon 
 the plan, except so far as its representation is incoq)orated in, and made part of, 
 the act of parliament ; and the real question, therefore, turns upon this, whether 
 the acts of parliament do or do not make the datum line, and line of railway with 
 reference to that datum line, the subject-matter of these enactments, and the rule 
 by which the rights of the parties are to be regulated, or whether it also includes 
 the surfaces which, in this instance, accidentally, no doubt, had been very much 
 misrepresented upon the plan. 
 
 " I say, then, that a case does arise upon these provisions of the act, in which 
 the plan indeed is referred to, but is, in the terms of the act of parliament, re- 
 ferred to only for the purpose of ascertaining the line of the railway, with refer- 
 ence to the datum line. It is not referred to with reference to any surface level. 
 The plan, therefore, is entirely out of the enactment, and is not to be looked at 
 
 25 ♦ 385, 386
 
 386 CONSTRUCTION OP RAILWAYS. * CH. XV. 
 
 ferent level from that laid down in the parliamentary plans, in 
 which it appeared as a cutting of fifteen feet, and the way raised 
 
 for the purpose of construing the enactment as to any part of it, except so far 
 as it is referred to and incorporated in 'the act. Arriving at that construction 
 of the rule upon the provisions of the two acts to which I have referred, and 
 applying it to the principle which has been established in the cases I have men- 
 tioned, we have no difficulty in coming to the conclusion, that the application of 
 that principle will necessarily lead to the construction of the clauses to which I 
 have referred. The plan is binding, to the extent of determining the datum line, 
 and the line of railway measured with reference to that datum line, but not with 
 reference to the surface levels of the land, because the act does not apply it for 
 that purpose, but cautiously confines the enactment to the other plans to which 
 I have referred. 
 
 "Acting, therefore, upon the principle so established, and with reference to 
 the construction, or what I conceive to be the construction, to be put upon these 
 sections, although we cannot but greatly lament the hardships which, in all prob- 
 ability, these circumstances have imposed upon the respondent, in having his 
 land interfered with in a manner which he did not at all anticipate ; yet, when 
 we are called upon to consider whether the Court of Sessions is correct or not, 
 we are bound to look to see what are the powers which these acts vest in the 
 company ; and for the reason I have explained, I come to the conclusion that 
 the company have not exceeded those powers, and do not propose to exceed 
 those powers, in the plans that they have formed, and that the Court of Sessions 
 has been in error in granting the interdict." 
 
 Lord Campbell. — "I acknowledge that I come to the conclusion at which I 
 have arrived with verj' great reluctance. It seems to me to be a case of very 
 great hardship upon the respondent. But when we come to consider what the 
 law upon the subject is, I feel boimd to concur in the opinion which has been 
 expressed. What is the legal construction of the act of parliament ? Does the 
 company, or does it not, propose to exceed the powers which the acts of parlia- 
 ment confer upon it ? Xoav it is admitted, that if the deviation is to be calcu- 
 lated from the datum line alone, they (the company) do not propose, either 
 vertically or laterally, to exceed the powers of deviation which are conferred 
 upon them. Well, then, that raises the question whether those powers of devia- 
 tion are to be calculated from the*datimi line alone, or whether the surface-level 
 is to be taken into consideration, and my opinion is, that the act does refer 
 every thing to the datum line. I think it is evident that the 11th section clearly 
 makes the datum line alone that which is to be regarded. The word ' levels,' in 
 the plural number, really does not at all include the surface-levels. It means 
 merely the levels of the datum line, which point out the course the railway is to 
 go. If that be so, the company do not propose to do any thing that they are not 
 authorized to do, according to the letter of the act of parliament. 
 
 " There certainly was a representation made here on the part of the company, 
 when they proposed to bring in the act, by which they intimated that, at that 
 time, the intention was that the railway should be fifteen feet four inches below 
 the surface of the respondent's property at the point of intersection ; and that 
 the bridge by which his approach should pass over the railway, would not be
 
 § 105. LINE OF RAILWAY. — BIGHT OP DEVIATION. 387 
 
 * upon a bridge two feet. The owner of the house, it seems, had 
 opposed the railway being carried through his avenue, but, rely- 
 ing upon the representations contained in the plan and sections, 
 was induced to abstain from opposing the bill. The line of 
 deviation is marked upon the plan, and is by the act limited to 
 ten yards in passing through villages, and one hundred yards in 
 the open country. 
 
 3. In this case it was decided, tliat the plans were only bind- 
 ing upon the company to the extent to which they were referred 
 to in the act, and that it made no difference that the deposited 
 plans were so incorrect as altogether to mislead the owner of the 
 * lands, in reference to the manner in which his property would be 
 affected by the railway works. The plans not being referred to 
 in the act, or only referred to, as in the present case, to determine 
 
 more than three feet. But this was entirely an intimation, on the part of the 
 company, that such was their intention. An act of parliament of this sort has, 
 by Lord Eldon and all other judges who have considered the subject, been con- 
 sidered as a contract. Well, then, what took place was a negotiation ; it was 
 not a contract. We must disregard it, and we must look to see what the con- 
 tract was. The contract is to be gathered from the words of the act of parlia- 
 ment ; and that brings us to the question that I first considered, what is the 
 construction of the act of parliament ? That act of parliament must be considered 
 as overruling and doing away with every thing that had taken place prior to the 
 time when the act passed, and renders the representation or proposal of the com- 
 pany, pending the act, of no avail. Many cases have occurred in the courts of 
 common law in which it has been held, that ever}' thing that takes place before a 
 written contract is signed is entirely to be disregarded in construing the contract. 
 Now, if the respondent had been cautious, he would have done what I would 
 strongly recommend to all gentlemen hereafter to do, under similar circum- 
 stances, which is, to have a special clause introduced into the act of parliament 
 to protect their rights." 
 
 See also Beardmer p. The London & N. Western Railw., 1 Hall & Twells, 161 ; 
 8. c. 6 Railw. C. 728. The same rule obtains in this country. Boston & Prov. 
 Railw. r. Midland Railw., 1 Gray, 340; Commonwealth r. Fitchburg Railw. 8 Cush. 
 240. It seems that the deviation of five feet, which, by the 11th section of the 
 Railway Clauses Act of 1846, is allowed in regard to levels, is to be reckoned with 
 reference to the level of the datum line, and not with reference to the surface- 
 levels delineated on the plans. And any greater deviation in regard to levels, which 
 may be obtained, under certain conditions, in certain emergencies, is subject 
 to the discretion of the Railway Commissioners ; and at the suit of land-owners, 
 affected by such deviation, beyond the limits allowed by the act, the Court 
 of Chancer)- will restrain the company from proceeding until they obtain the 
 judgment of such conmiissioners. Pearce v. Wycombe Railw., 1 Drew. 244; 
 8. c 19 Eng. L. & Eq. 122. 
 
 • 387, 388
 
 388 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 the datum line with reference to lateral deviation, could not con- 
 trol beyond the matter of lateral deviation. 
 
 4. This subject is incidentally connected with the performance 
 of construction contracts. But it has been held, where the 
 company deviate from the intended line of the road, even beyond 
 what was permitted by their act, with the consent of the land- 
 owner, and the contractor never objected to the deviation, but 
 continued to receive certificates of estimates, and payments, in 
 precisely the same mode in which he would have received them 
 had the deviation not taken place, that it did not affect his lia- 
 bility upon the contract.^ 
 
 5. A reference, in the special act, to the deposited plans, for 
 one purpose, does not make them binding for all purposes.^ So 
 too, where, by the general acts, a railway company has power to 
 pass highways and other roads, by bridges, or excavation, in 
 their discretion, but their special act gives them power to pass 
 them on a level, this will not compel them to do so ; they may 
 still exercise the power conferred by the general acts. And a 
 specifd agreement with land-owners, that they will pass such 
 roads on a level, being a contract in derogation of public right, 
 inasmuch as the public security is greatly jeoparded thereby, will 
 not be specifically enforced in a court of equity.* 
 
 6. The extent of deviation is to be measured from the line 
 delineated upon the plans to the actual medium filum of the rail- 
 way as constructed, and the fact of the embankments extending 
 beyond that distance is no violation of the right of deviation 
 
 * allowed in the act.^ Where a tunnel is marked upon the plans 
 referred to in the act, it must be made in the exact position in- 
 
 » Ranger v. The Great Western Railw., 6 Ho. Lds. 72 ; s. c. 27 Eng. L. & 
 Eq. 35. 
 
 3 Reg. r. Caledonia Railw., 16 Q. B. 19 ; s. c. 3 Eng. L. &Eq. 285. Where 
 there is a power given for deviation in the construction, which would render 
 some portion of the delineated surveys impracticable, it must be taken, as of 
 necessity, that the legislature intended the omission of such particxdars as be- 
 came impracticable in a given contingency allowed by the act. 
 
 * Braynton c. The London & North W. Railw., 4 Railw. C. 653. But the 
 Lord Chancellor, upon appeal, considered that the agreement only extended to 
 the land to be purchased, and that it contained nothing intended to limit the 
 powers given to the company by the general acts. 
 
 » Doe d. Paj-ne v. The Bristol & Exeter Railw., 2 Railw. C. 75 ; 8. c. 6 M. 
 & W. 320 ; Doe d. Armistead v. The North Staffordshire Railw., 16 Q. B. 526 ; 
 8. c. 4 Eng. L. & Eq. 216. 
 • 389
 
 § 105. UNE OP RAILWAY. — RIGHT OP DEVIATION. 889 
 
 dicated, and the general right of deviation does not apply.* But 
 the company may take lands within the line of deviation for a 
 branch railway." Under an act allowing land to be " taken 
 when necessary for making and maintaining the said railway 
 and works," it was held that the company might take lands for 
 forming or enlarging stations, or places for carriages to collect 
 and wait till trains are ready to start ; and the Lord Cliancellor 
 said, in one case,^ " The term railway, by itself, includes all 
 works authorized to be constructed ; and for the purpose of con- 
 structing the railway, the company are authorized to construct 
 such stations and other works as they may think proper." 
 
 7. And it would seem that, where lands are designated by num- 
 bers on the plans, although not altogether within the line of deviation, 
 they may be taken by the company when necessary for stations.® 
 
 And it has recently been decided in the House of Lords, that 
 where the legislature authorized a railway company to take, for 
 the purpose of their undertaking, any lands specially described in 
 the act, it constitutes them the judges as to whether they will or 
 will not take those lands, provided they take them bona fide^ with 
 tlie object of using them for the purposes authorized by the legis- 
 lature, and not for any sinister or collateral purpose.^^ And 
 * after referring the question, as to the propriety or right to take 
 the land, to an engineer, who decided against the company and 
 in favor of the land-owner, the court ultimately held that neither 
 the opinion of the engineer nor of the court could curtail the 
 power of the company m respect to the quantity of land which 
 
 • Little r. The Newport, Ab. & Hereford Railw., 12 C. B. 762 ; 8. c. 14 Eng. 
 L. & Eq. 309. 
 
 » Sadd r. The Maldon, Witham & B. Railw., 6 Exch. 143. 
 » Cother V. Midland Railw., 2 Phillips, 469. 
 
 • Crawford v. Chester & Holyhead Railw., 11 Jur. 917; 1 Shelford, Rennet's 
 ed. 617. But the deviation is not authorized for the purpose of taking materials 
 alone. Bentinck p. Norfolk Estuary, 32 Law Times, 29. 
 
 '" Stockton & Darlington Railw. Co. p. Brown, 9 Ho. Lds. 246 ; 8. C. 6 Jur, N. 
 S. 1168. But a railway cannot take the fee of land for the purpose of supplying 
 soil to build an embankment. Eversfield p. Midsussex Railw., 1 Gif. 153 ; 8. c. 
 affirmed, 6 Jur. N. S. 776 ; 8. c. 3 De G. & J. 286. Nor can land be token within 
 the range of the powers conceded by the act, except for the exclusive purpose of the 
 works named in the act, and if any subsidiary object is embraced in the pur- 
 pose of taking, as to give a more convenient road for an ordinary land-owner, 
 who was to pay part of the expense, the company will be restrained by injunc- 
 tion. Dodd p. Salisbury & YeoviUe Railw. Co., 1 Giff. 158; 5 Jur. N. S. 782. 
 
 •390
 
 390 CONSTRUCTION OP RAILWAYS. -CH. XV. 
 
 the company, bona fide acting under its statutory powers, sought 
 to obtain. 
 
 8. And where, by a special act, a company were empowered 
 to erect a market house on land described in the deposited plans, 
 it was held, that as the land of the plaintiff was described in the 
 plans, and as therefore it might be wanted, the company were 
 authorized to take it, and that the company were to be regarded 
 as the proper judges of what lands were necessary for the works.^^ 
 
 9. The trustees of a turnpike-road agreed to assent to a bill iii 
 parliament for the formation of a railway, on the condition that 
 the railway should pass over the road at a sufficient elevation, 
 and the road be not lowered, or otherwise prejudiced. It was 
 held that this modified assent, not being embodied into any 
 agreement between the trustees and company, or incorporated 
 into the act, afforded no equitable ground for restraining the 
 company from the exercise of all their powers under their act ; 
 that the company were authorized to sink the original surface 
 of a turnpike-road to gain the requisite elevation for the arch of 
 a bridge to carry the railway over the road, notwithstanding the 
 effect might be to render the road liable to be occasionally 
 flooded.12 Any omission, misstatement, or erroneous descrip- 
 tion in the parliamentary plans referred to in the act, may be 
 corrected on application to two justices, in the mode prescribed 
 in the act.^^ 
 
 10. By statute, in some of the states, a railway company who 
 file the location of their road in the requisite office, are allowed 
 to deviate, to any extent consistent with their charter, in the 
 course of construction." But it has been held, that after once 
 
 " Richards v. The Scarborough Public Market Co., 23 Eng. L. & Eq. 343. 
 
 " Aldred v. The North Midland Railw., 1 Railw. G. 404. 
 
 " Taylor c. Oemson, 2 Q. B. 978 ; 8. c. 3 Railw. C. 65, shows the mode of 
 procedure in such cases. 
 
 " The Boston & Providence Railw. v. The Midland Railw., 1 Gray, 840. 
 The charter gave the company power to construct their road in five-miles sec- 
 tions, but not to begin the work within a prescribed distance of one terminus, 
 or until all of its stock was taken by responsible persons, and one hundred and 
 forty thousand dollars paid into the treasury ; it was held, that this restriction, in 
 regard to the subscription and payment of stock, did not fix a limitation upon 
 the company in regard to building their whole road not in sections. 
 
 The courts, in interpreting an act of incorporation, 'will not examine what 
 took place while it was passing through the legislature. Bank of Pennsylvania 
 V. The Commonwealth, 19 Penn. St. 144. And in Commonwealth c. Fitchburg
 
 § 105. LINE OP RAILWAY. — RIGHT OF DEVIATION. 391 
 
 * locating their road, tbeir power to re-locate, and for that pur- 
 pose to occupy the land of another or the public street, ceases.** 
 
 11. It has been held, that a grant to a railway company to 
 construct their road between two towns, gave them implied 
 authority to construct a branch to communicate with a depot and 
 turn-table, on a street in one of the towns (Now Orleans) off the 
 direct line.*^ 
 
 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, <fec.*^ 
 
 13. And a charter allowing the company to extend their line to 
 
 Railw. 8 Cush. 240, it was held, that the petitions to the legislature upon which 
 the act was granted were inadmissible upon the question of the construction of 
 the act, in regard to the course and direction of the line of the road. 
 
 '* Little Miami Railw. v. Naylor, 2 Ohio N. S. 235. And an authority to change 
 the location of the line, during the work, does not imply power to change it ader 
 the road is complete. Moorhead v. Little Miami Railw., 17 Ohio, 340. The 
 same view is maintained by Lord Eldon, Chancellor, in Blakemore v. Glamorgan- 
 flhire Canal Co., 1 My, & K. 154. But a different rule seems to be intimated in 
 South Carolina Railw. ex parte, 2 Rich. 434. But see Canal Co. r. Blakemore, 
 ICI. & Fin. 262; State ». Norwalk & Danbury Turnpike Co., 10 Conn. 157; 
 Turnpike Co. v. Hosmer, 12 Conn. 364 ; Louisville & Nashville Branch Turnpike 
 Co. V. Nashville & Kentucky Turnpike Co., 2 Swan, 282, where the proposition 
 of the text is maintained. But in South Carolina Railw. v. Blake, 9 Rich. 229, 
 it is held, that a railway company have the same power to acquire land, either by 
 grant or by compubor}' proceedings, for the purpose of varj'ing, altering, and re- 
 pairing their road, as for the original purpose of locating and constructing it. But 
 that the company are not the final arbiters in determining the exigency for taking 
 the land. The petition of the company for taking the land should allege in 
 detail the necessity for taking it, and the land-owner may traverse these allega- 
 tions, and in that case this is tried as a preliminary question. 
 
 '• Knight r. Carrolton Railw., 9 Louis. Ann. 284; New Orleans & Carrolton 
 Railw. V. Second Municipality of New Orleans, 1 id. 128. But where by the 
 charter of a railway they were authorized to construct their road ' * from Charles- 
 ton ^^ to certain other points, it was held that this gave them no authority to 
 enter the city, but that the boundary of the city was the terminus a quo. North- 
 east Railw. V. Payne, 8 Rich. 177. 
 
 " Brocket c. Railway, 14 Penn. St. 241. 
 
 " State V. Coram, of Mansfield, 3 Zab. 510 ; Vt. Cent. Railw. v. Burlington 
 28 Vt. 193; Nashville & C. RaUw. v. Cowardin, 11 Humph. 348. 
 
 • 391, 392
 
 392 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 a certain point, " thence running through Acton, Sudbury, Stow, 
 Marlborough," <fec., 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 Sudbury, and 
 thence through Stow again to Marlborough, was held to be a suffi- 
 cient compliance with the grant.^^ 
 
 14. If the charter of a railway limit the line of construction, by 
 the boundaries of a borough, and the boundaries 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 exclu- 
 sive grant for a railway within certain limits, defined at one ter- 
 minus by a city, is to be restrained to the limits of the city at the 
 date of the grant.^^ 
 
 15. A party whose land was taken by a railway company for the 
 purposes of their road, and the damages assessed and * deposited 
 for, and accepted by him, with full knowledge of all the proceed- 
 ings and of any defect therein, and who allowed the company to 
 occupy the land and make improvements thereon, without remon- 
 strance, for two years, and who then brought an action of trespass 
 against the company, on the ground that their proceedings were 
 irregular and void, was held to have waived all right to object to 
 them on that ground.^^ 
 
 16. And where the company by charter had power to take land 
 
 " Commonwealth r. The Fitchbui^ Railw., 8 Gush. 240. See also Brigham 
 r. Agricultural Branch Railw , 1 Allen, 366. It seems agreed that slight devia- 
 tions from the route prescribed in the charter will not release the stockholders 
 from the obligation of their subscriptions ; but that any substantial deviation 
 will have that effect. The precise line of distinction between the two classes of 
 cases must be left to the construction of the courts in each particular case. The 
 stockholders may enjoin the company in the course of construction from making 
 an essential deviation, and after the road is completed, the company may, by 
 scire facias, be called to account for not building upon the route indicated in 
 their charter. But where all interested acquiesce in the route adopted, until 
 their road is completed, it will require a verj' clear case to induce the courts to 
 interfere. The following cases bear upon the general question : Ashtabula & 
 N. L. Railw. r. Smith, 15 Ohio N. S. 328 ; Champion v. Memphis & C. Railw. 
 Co., 35 Miss. 692; Fry v. Lex. & Big S. Railw. Co., 2 Met. (Ky.) 314; 
 Aurora r. West, 22 Ind. 88 ; Smith v. Allison, 23 id. 366 ; Miss. O. & R. Railw. 
 t>. Cross, 20 Ark. 443; Witter r. same Co., id. 463; Illinois Grand T. Railw. 
 r. Cook, 29 111. 237. See also K. R. & R. Railw. c. Marsh, 17 Wise. 13. 
 
 » Commonwealth r. Erie & North East Railw., 27 Penri. St. 839. 
 
 *' Pontchartrain Railw. v. Lafayette & Pont. Railw., 10 Louis. Ann. 741. 
 
 *• Hitchcock r. Danbury & Norwalk Railw., 25 Conn. 616. 
 *393
 
 § 105. LINE OP RAILWAY. — RIGHT OP DEVIATION. 393 
 
 for engine and, water stations, within five years from the date of 
 their grant, it was held they could not exercise such powers after 
 the expiration of the time limited, although operating their line by 
 horse power during that time they had not required the exercise 
 of such powers on that account.^ 
 
 17. A charter to construct a railway, " to commence at some 
 convenient point in the city of Brooklyn, and to terminate at New- 
 town, Queen's county, — to be located in King's and Queen's 
 counties, and its length to be about twenty-five miles ; " there 
 being both a town and village of the name of Newtown, and the 
 boundary of the town being also the boundary of the city of Brook- 
 lyn, it was held, that the natural and only consistent construction 
 was, to regard Newtown as tlie village of that name, and thus extend 
 the railway through a portion of both counties named, and not 
 restrict it to the limits of the city of Brooklyn.^ 
 
 18. It is here declared, that where the charter, as applied to the 
 route indicated, defines a precise line, that line becomes as binding 
 upon the company as if it formed a portion of the charter itself ; 
 and that where a map is filed in conformity with the charter, 
 which does not embrace the entire route indicated by the charter 
 as applied to the subject-matter, in order to reconcile the apparent 
 conflict, the map may be regarded as intended to give only a por- 
 tion of the route ; or in case of irreconcilable conflict, the map 
 must yield to the express provisions of the charter.^ Tlie distinc- 
 tion between the application of terms to indicate the route of a 
 railway and to define its termini, is considerably discussed in a 
 case in New Jersey.^ 
 
 * 19. A power to change the location of a railway, on account 
 of the difficulty of construction and other causes, may be exercised at 
 any time before the construction is finished at the particular point.* 
 
 20. The lines and works of a railway are sufficiently indicated 
 by black lines upon the plan, and dotted lines around them to 
 mark the limits of deviation.^ And where the deposited plans 
 and sections specify the span and height of a bridge by which the 
 railway is to be carried over a turnpike-road, the company will 
 
 «» Plymouth Railw. Co. v. Colwell, 89 Penn. St. 887. * 
 •* Mason v. Brooklyn & Newtown Railw. Co., 35 Barb. 878. 
 " McFarland v. Orange & Newark Horse-Car Railw. Co., 2 Beasley, 17. 
 •• Atkinson v. Mar. & Cin. Railw. Co., 16 Ohio N. S. 21. 
 « Weld r. London & S. W. Railw., 32 Beav. 840; 8. c. 9 Jur. N. S. 610. 
 
 •394
 
 394 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 not, in the construction of the bridge, be allowed ±o deviate from 
 the plans and sections.^ 
 
 21. Under a charter which fixes the terminus of a railway at or 
 near a certain point, a large discretion is conferred upon the com- 
 pany in locating their road, which will not be controlled by the 
 courts, unless for very clear excess, or where bad faith is shown. 
 And where a company is empowered to extend their line from a 
 point at or near its present terminus, " in Fall River, in a southerly 
 direction to the line of Rhode Island," a location starting from a 
 point on the line 2,475 feet from the terminus was held authorized.^^ 
 
 SECTION II. 
 Distance, how measured. 
 
 1. This is affected by svbject-nuMer. I 4. Same rule in regard to turnpike-roads. 
 
 2. Contracts to build railway, bi/ rate per \ 5. Rate fixed by mile means full mile ; no 
 
 mile. charge fijr fractions. 
 
 3. General rule to measure by straight line. ' 
 
 § 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 controlled 
 by the context, or the subject-matter. In one case,^ where the 
 assignor of the lease of a public-house in London covenanted that 
 he would not keep a public-house within half a mile from the 
 premises assigned, it was held that the distance should be com- 
 puted by the nearest way of access. 
 
 2. And contracts to be paid for constructing a turnpike, or rail- 
 way, a given price by the mile, would, ordinarily, no doubt, require 
 an admeasurement upon the line of the road. It was held, in a 
 late case in Vermont, that in such cases the contractor is not en- 
 titled to compute the length of track, and thus * include turnouts 
 and side-tracks.2 But this might not exclude branch lines extend- 
 ing any considerable distance from the main track. 
 
 ** Atty.-General ». Tewksbuiy & Great Malvern Railw. Co., 1 De G., J. & 
 Sm. 423 ; 8. c. 9 Jur. N. S. 951. 
 
 » Fall River Iron Works v. Old Colony & FaU River Railw., 5 Allen, 221. 
 
 ' Leigh V. Hind, 9 B. & C. 774 ; s. c. 17 Eng. Coram. L. R. 495. But Parke, 
 J., was of a different opinion, and said : " I should have thought that the proper 
 mode of measuring the distance would be to take a straight line from house to 
 house, in common parlance, as the crow flies." 
 
 « Barker v. Troy & Rutland Railw., 27 Vt. 766. 
 *395
 
 § 106. DISTANCE, HOW MEASURED. 395 
 
 3. But, in general, the English courts have chosen to adhere to 
 the rule laid down by Parke, J., in Leigh i'. Hind, that distance is 
 to be measured in a direct line, through a horizontal plane. Thus, 
 in settlement cases, where the pauper laws provide that no person 
 shall retain a settlement gained by possessing an estate or interest 
 in a parish for a longer time than he shall inhabit '* within tea 
 miles thereof," it was held, that the distance 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." ^ 
 
 5. And where the rate of fare is fixed by the mile, and no pro- 
 vision made for fractions of a mile, the company can only * charge 
 the prescribed tariff for the full mile traversed.^ But the English 
 statute " provides specially for fractions of a mile. 
 
 » Regina r. Saffron-Walden Railw., 9 Q. B. 76. 
 
 * Stokes V. Grissell, 14 C. B. 678 ; 8. c. 25 Eng. L. & Eq. 836 ; Lake v. 
 BuUer, 5 EI. & Bl. 92; 8. c. 30 Eng. L. & Eq. 264. 
 
 » Jewell r. Stead, 6 El. & Bl. 350 ; 8. c. 36 Eng. L. & Eq. 114. Lord Camp- 
 bell, Ch. J., said: " I am of opinion that the distanre is to be measured by a 
 straight line upon a horizontal plane." Lake r. 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 communication, uncertainty will be introduced, whether it 
 may be by foot way, or bridle way, or carriage way ; and in some cases the distance 
 most be travelled by all the three modes ; and in others by a tidal river, in which 
 case the distance would varj*, 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." 
 
 • Rice V. Dublin & Wicklow Railw., 8.1r. Com. Law, 160. 
 » 21 «& 22 Vic. c. 76 s. 1. 
 
 •896
 
 396 
 
 CONSTRUCTION OP RAILWAYS. 
 
 CH. XV. 
 
 SECTION III. 
 
 Mode of Construction, to be done with least Damage. 
 
 1. Does not extend to form, of the road, but 
 
 the mode of construction. 
 
 2. Special provisions of act not controlled by 
 
 this genertil one. 
 
 Works interfered with, to be restored, for 
 all uses. 
 
 § 107. 1. It has been held, that the general provisions of the 
 Railway Clauses Consolidation Act, that in the exercise of their 
 powers, the company shall do as little damage as possible, and 
 shall make satisfaction, to all parties interested, for all damages 
 sustained by them, does not extend to the form of constructing 
 the railway. It does not apply to what is done, but to the manner 
 of doing. 
 
 2. Hence, if by other sections of the statute or special act the 
 company are required to build bridges in a particular form, they 
 may still do so, notwithstanding it may cause more damage to the 
 owners of land than to build them in some other form.^ 
 
 3. And where, in a parliamentary contract between the pro- 
 moters of a railway and the proprietors of a ropery, it was stip- 
 ulated that the railway should be so constructed, that when 
 finished the level of the ropery should not be altered, nor the 
 surface of the ropery in the least diminished, it was held the 
 company were bound to restore the surface, so as to be available 
 for all purposes to which it might have been applied before the 
 construction of the railway, and not for the purposes of the ropery 
 only.2 
 
 • Regina v. The East & W. I. Docks and B. J. R., 2 El. & BI. 466. 
 
 * Harby r. The East & W. I. Docks and B. J. R., 1 De G. M. & G. 290.
 
 §108. 
 
 MODE OF CROSSING HIGHWAYS. 
 
 397 
 
 •SECTION IV. 
 
 Mode of crossing Highways. 
 
 1. English statutes fequirt it should not be at 
 
 grade. 
 
 2. Or if so, that gates should be erected and 
 
 tended. 
 8. And if near a station, railuxiy train not to 
 
 exceed Jour miles an hour. 
 4. Cannot alter course of highway. 
 
 6. Mandamus does not lie where company 
 
 have an election. 
 
 7. Railway cannot alter highway to avoid 
 
 building bridge. 
 
 8. Extent of repair of bridge over railway. 
 
 9. Permission to connect brandies with main 
 
 line tiot revocable. 
 
 10. Grant to build railways across main line 
 
 implies right to use them as common 
 carriers. 
 
 11. Railtvay responsible for injury by falling 
 
 into culi'ert when covered by snow. 
 
 12. The right to lay line across railway car- 
 
 ries right to lay as many tracks as are 
 convenient for the business. 
 
 18. Damages for laying highway across rail- 
 way. 
 
 14. Laying highway across railway at grade- 
 Company not estopped by contract with 
 former owner of land. 
 
 § 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 
 
 ' Railway Clauses Consolidation Act, § 46. Mandamus requiring the com- 
 pany to carry their road over a highway, by means of a bridge, when that was 
 the only mode in which it could be done, according to the level of the line of 
 the railway at the time, was held bad. Southeastern Railw. r. The Queen, 17 
 Q. B. 485. 
 
 ' A road on which toll-gates are erected and tolls taken is a turnpike road. 
 The Northam, B. & Roads Co. v. London & Southhampton Railw., 6 M. & W. 
 428; 1 Railw. C. 663; Regina c. E. & W. I. Docks RaUw. Co., 2 El. & Bl. 
 466. 
 
 •397
 
 898 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 * 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 highways, 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 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 legistature 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 iii the statute,^ and commanded de- 
 fendants to carry the highway over the railway, by means of a 
 bridge, in conformity with the statute, particularly specifying the 
 mode, it was held, that it not being otherwise specially provided 
 in the company's charter, they had, by the general act, an option 
 to carry the highway over the railway, or the railway over the 
 highway, by a bridge ; and that the option was not determined 
 by the facts alleged in the writ, and the judgment of the * Ex- 
 
 ' § 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 effected, we fear, 
 at present. 
 
 * Hughes ». Providence & Wor. Railw., 2 R. 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 r. Railw. Company, 10 Rich. 
 227. 
 
 * Attorney-General v. Detroit & Erie Plank-Road Co., 2 Mich. 138. 
 
 " Regina v. The Southeastern Railw,, 15 Q. B. 313 ; 8. c. 6 Eng. L. & Eq. 214. 
 ' 8 and 9 Vict. c. 20. 
 * 398, 399
 
 § 108. MODE OP CROSSING HIGHWAYS. 399 
 
 chequer, awarding the writ, was accordingly reversed in the 
 Queen's Bench. 
 
 7. Where the charter of a railway authorized them, by con- 
 sent of the commissioners, to alter a highway whenever it became 
 necessary in order to build the railway in the best place, and 
 required the company to maintain all bridges made necessary to 
 carry the highway over the railway : It was held that the com- 
 pany had no power to alter the course of the highway in order 
 to avoid the expense of building a bridge ; and that the old high- 
 way was still subsisting, notwithstanding the attempt thus to lay 
 out a substitute.^ 
 
 8. And where a railway company, under their statutory powers, 
 in England, carry a highway over their road by means of a bridge, 
 the company is bound to keep both the bridge and the road and 
 all the approaches thereto in repair, and such repair includes not 
 only the structure of the bridge, but the superstructure, and every 
 thing requisite to put the highway in fit condition for safe use.® 
 
 9. Where the proprietors of land, through which a railway 
 company were empowered to take the right of way, had the right 
 to lay branch railways upon the lands adjoining, and to connect 
 them at proper points with the main line, so as not to endanger 
 tlie safety of persons travelling as passengers upon the railway, 
 and in case of difference in regard to any of these points, the 
 same to be determined by two justices of the peace ; but the 
 company were not required to admit any such branch to connect 
 
 ' Norwich & Worcester Railw. r. Killingly, 25 Conn. 402. Nor have the 
 company any right under such a power to materially and essentially change 
 the route of a highway, that being a power resting solely in the discretion of the 
 municipal authorities. Warren Railw. Co. c. State, 5 Dutcher, 393. See also 
 Veasie v. Penobscot Railw. Co., 49 Me. 119. 
 
 • North Staffordshire Railw. Co. v. Dale, 8 Ellis & Bl. 835. But where the 
 expense of keeping a bridge in repair was imposed by statute upon several towns, 
 and a railway company, jointly, with a provision that the municipal authorities 
 of one of the towns shall have the care and superintendence of the same, " and 
 shall employ all services necessary in the care thereof," it was held this did not 
 impose any special obligation upon that particular town, in regard to the repairs, 
 but that all the parties still remained jointly responsible for the performance of 
 that duty, and that the municipal authorities of this town were thereby made the 
 agents of all the parties thus responsible ; and that therefore one of the parties 
 could not maintain an action against the town for an injur}' through the joint 
 neglect of all the parties. Maiden & Melrose Railw. e. Cbarlestown, 8 Allen, 
 245.
 
 400 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 with their line, at any place where they should have erected any 
 station or other building ; it was held that the consent of the 
 company to unite with the line at a station was not in the nature 
 of a license and could not be revoked.^^ 
 
 10. And where the owners or occupiers of adjoining land had 
 the right to build railways, and to cross the line of the principal 
 railway, without being liable to toll or tonnage, it was held the 
 
 * owners of such railways might use them as common carriers of 
 freight and passengers." 
 
 11. It has been held that railway companies are responsible for 
 injuries, resulting from the dangerous state of highways, caused by 
 their own works, as where one fell into a culvert, made by the 
 company at a highway crossing, to prevent the accumulation of 
 the water, it being invisible at the time by reason of snow.^ So 
 also in all cases where the defect in the highway is caused by the 
 works of the railway company the latter will be responsible for 
 all injuries in consequence, although the party might also obtain 
 redress of the town bound to maintain the highway.^^ 
 
 12. A railway corporation having acquired the right to lay its 
 line across a highway, may lay and maintain as many tracks as 
 are essential to the convenient transaction of its business.^ 
 
 13. A railway corporation is entitled to damages for land taken 
 by laying a public highway across its line, and for the expense 
 of maintaining signs and cattle guards at the crossing, and of 
 flooring the same and keeping it in repair ; but not for any in- 
 creased liability to accidents, for increased expense of ringing the 
 bell, or for its liability to be ordered by the county commissioners 
 to build a bridge for the highway over the track. And in assess- 
 ing damages, in such a case, no supposed benefits from an in- 
 crease of travel on the railway can be set off against tlie com- 
 pany.^ 
 
 14. Under the revised statutes of Massachusetts, town or city 
 authorities have no power to lay a highway across a railway, at 
 grade, and the company is not estopped from objecting thereto by 
 any agreement with the former owners of the land in regard to 
 
 »« Bell t?. Midland RaUw. Co., 3 De G. & Jones, 673. 
 " Hughes V. Chester & Holyhead Railw, Co., 8 Jur. N. S. 221. 
 »» Judson r. N. Y. & N. Haven Railw. Co., 29 Co;m. 434. 
 " Gillett r. Western Railw., 8 Allen, 560. 
 
 " Commonwealth c. Hartford & New Haven Railw., 14 Gray, 379. 
 »» Old Colony & Fall River Railw. c. County of Plymouth, 14 Gray, 156. 
 *4{K)
 
 §109. 
 
 RIGHTS OP TELEGRAPH COMPANIES. 
 
 401 
 
 the right of way to be used by them at the point where tlie high- 
 way is laid.^* Nor can such authorities, under the general statutes 
 of that state, lay out a way across any portion of the land, not 
 exceeding five rods in width, which has been taken by a railway 
 company for their line, unless permission has been granted by 
 the county commissioners.^^ 
 
 •SECTION V. 
 
 Righi8 of Telegraph Companies. 
 
 1. Right to "pass directly acrott a railuxty," 
 
 does not justify boring under it. 
 
 2. Exposition of the terms " under " and 
 
 " across." 
 
 8. Erecting posts in highway a nuisana, 
 
 even if sufficient sjxux remain. 
 n. 4. Opinion of Crompton, J. 
 
 § 109. 1. Where a telegraph company had by their act the power 
 to pass under highways, but to pass " directly but not otherwise 
 across any railway or canal," and a railway was laid upon the 
 level of a highway, in accordance with their special act, it was 
 held that the telegraph company could carry their works under 
 the highway at the point where it was intersected by the railway.^ 
 But the telegraph company, attempting to pass under the railway 
 in such a manner as to disturb their works, was held liable in 
 trespass.^ 
 
 2. 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 considered 
 independent of each other." 
 
 3. In a recent English case' it was decided, that a telegraph 
 company, which erected posts in any portion of the highway, al- 
 though not in the travelled portion of it, whereby the way is ren- 
 dered in any respect less commodious to the public than before, is 
 
 '• Boston & Maine Railw. r. City of Lawrence, 2 Allen, 107. 
 
 " Commonwealth v. Haverhill, 7 Allen, 523. 
 
 ' Southeastern Railw. r. European & Am. Tel. Co., 9 Ezch. 363 ; s. c. 24 
 Eng. L. & Eq. 513. 
 
 » Post, §§ 130, 143, 164. 
 
 ' Reg. V. United Kingdom Electric Telegraph Company, 9 Cox. C. C. 174 ; 
 3 F. & F. 73, 8 Jut. N. S. 1163. 
 
 26 •401
 
 402 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 guilty of committing a nuisance at common law ; and the fact that 
 the jury find that a sufficient space for the public use remained un- 
 obstructed, will not afford any justification, unless the act is done 
 by legislative permission.^ 
 
 * The case is of so much importance that we have ventured to insert the lead- 
 ing opinion on the final hearing in full bench. 
 
 Crompion, J. "The defendants were indicted for erecting their posts on a 
 high * road, so as to obstruct the public in the use thereof, and we determined 
 before giving judgment to hear the case of Regina v. Train, thinking it possible 
 that the same question might there arise, or that something, at all events, throw- 
 ing light upon it might be elicited during its progress. Having heard that case, 
 there is nothing to prevent our giving judgment without further delay. My 
 brother Martin laid down two propositions, and the question is, whether either 
 of them constitutes a misdirection. The first of these propositions was as follows : 
 ' In the case of an ordinary highway, although it may be of a varying and un- 
 equal width, running between fences, one on each side, the right of passage or 
 way prima facie, and, unless there be evidence to the contrary, extends to the 
 whole space between the fences ; and the public are entitled to the use of the 
 entire of it as the highway, and are not confined to the part which may be 
 metalled or kept in order for the more convenient use of carriages and foot pas- 
 sengers.' Now, this seems to us a very proper direction. It is urged by Mr. 
 O'Malley that this ruling is not applicable to a place where there is a considerable 
 portion of greensward on either side of the metalled road, which either the owner 
 of the adjoining freehold or the lord of the manor would be entitled, if he thought 
 proper, to enclose. This is the first of two objections taken on behalf of the 
 defendants. But it seems to me that my brother Martin carefully guards 
 against that. He says, that prima facie the space between the fences is to be 
 taken as the highway ; and this seems to be in accordance with the judgment of 
 Lord Tenterden, C. J., in Rex v. Wright, 3 B. & Ad. 681, where he says: 'I 
 am strongly of opinion, when I see a space of fifty or sixty feet through which 
 a road passes, between enclosures set out under an act of Parliament, that, 
 unless the contrary be shown, the public are entitled to the whole of that space, 
 though, perhaps, from economy, the whole may never have been kept in repair.' 
 The same principle is involved in the decision in Williams v. Wilcox, and my 
 brother Martin seems to have laid down the law in unison with these cases. He 
 says, 'th&t prima fa^ie, and in absence of evidence to the contrary, the public 
 are entitled to the right of passage over the whole, and are not confined to that 
 part which is metalled for the better convenience of travellers and traffic' Mr. 
 O'Malley was unable, when invited, to say to what definite portion of the road, 
 metalled or otherwise, he held the public to be entitled. He, however, con- 
 tended that the posts might have been erected on what was in fact no part of the 
 highway, such as a rock, or something of that kind, which might occupy part of 
 the space between the fences, but over or across which no road could possibly 
 exist. But this would not be a part of the highway .any more than a house 
 similarly placed, built before the dedication of the road. We think, therefore, 
 on the first point, the direction of the learned judge was correct, and that the 
 right of the public extends over the entire highway. 
 *402
 
 §110. 
 
 DUTY m BEGARD TO SUBSTITUTED WORKS. 
 
 403 
 
 •SECTION VI 
 
 Duty in regard to substituted Works. 
 
 1. Bound to repair bridge substihtted for Jbrd, 
 
 or to carry highway over railway. 
 
 2. The tame rule has been applied to drains, 
 
 tuimtituted Jbr others. 
 
 The extent of this duty as applied to 
 bridge and approaches. 
 
 § 110. 1. Where a public company, as a navigation company, 
 under the powers conferred by the legislature, destroyed a ford 
 
 '* The second proposition laid down by the learned judge is a wider one, and it 
 remains to be seen whether it amounts to a misdirection. It is, ' that a perma- 
 nent obstruction erected on a highway, placed there without lawful authority, 
 which renders the way less commodious than before to the public, is an unlawful 
 act, and a public nuisance at* common law ; and that if the jury believed that 
 the defendants placed, for the purposes of profit to themselves, posts, with the 
 • object and intention of keeping them permanently there, in order to make a 
 telegraphic communication between distant places, and did permanently keep 
 them there, and the posts were of such size and dimensions and solidity as to 
 obstruct and prevent the passage of carriages, and horses, or foot passengers 
 upon the parts of the highway where they stood, the jury ought to find the de- 
 fendants guilty upon this indictment ; and that the circumstance that the pK>8ts 
 were not placed upon the hard or metalled part of the highway, or upon a foot- 
 path artificially formed upon it, or that the jury might think that sufficient space 
 for the public traffic remained, are immaterial circumstances as regards the legal 
 right, and do not affect the right of the crown to the verdict.' This appears to 
 us also to be substantially a proper direction, inasmuch as the real question is, 
 whether there vras a practical, as distinguished by myself in Regina r. Russell, 
 from a mathematical nuisance. My brother Martin appears distinctly to have 
 raised that point, by saying that the posts must not be of such size, dimensions, and 
 solidity as to obstruct and prevent the passage of carriages, and horses, and foot 
 passengers at all. In Regina v. Russell, the jury found there was no practical 
 obstruction ; but where there is a practical obstruction on a highway, by which 
 the public arc prevented from using it, that is a nuisance according to all defini- 
 tions of the word, and it makes no difference whether or not enough be still left 
 unobstructed for the use of the public ; or whether the obstruction is placed on 
 that part of the road which is neither metalled nor repaired for the purpose of 
 traffic. In Rex v. Wright, Lord Tenterden laid it down that the public are 
 entitled to the entire space on either side of the highway, as he says, for the 
 benefit of air and sun. We must take it now that the jury found the defendants 
 guilty upon these facts, and that the posts were of such size and solidity as to 
 create an obstruction, and amount to a nuisance. It was further objected by 
 Mr. O'Malley that certain of the post^ appeared actually to have stood upon 
 parts of the road which were inaccessible to travellers ; but supposing this to be 
 
 * 403, 404
 
 404 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 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 
 
 2. So, where a navigation company had power to use a public 
 drain, by substituting another, or others, it was held that the com- 
 pany were bound to keep in repair the substituted drains, as well 
 as to make them.^ 
 
 3. Under the English statute,* where the company carried the 
 highway, by means of a bridge, over the railway, it is bound to 
 maintain the bridge ; and all the approaches thereto in repair, and 
 such repair includes not only the structure of the bridge, and the 
 approaches, but the metalling of the road on both.^ But this will 
 not include the road beyond where it may properly be regarded as 
 forming an approach to the bridge.^ And the same rule obtains 
 here. In White v. Quincy," it was held the duty of the company as 
 to repair extended to the whole structure, which they had found it 
 necessary to build to effect their purpose ; even where it extended 
 beyond the boundaries of the location of their line. 
 
 the case, it would be no use to the company to have these few isolated posts 
 left standing at different spots along the line of road ; and if they wished to keep 
 them, they should have contended at the trial that some of these posts did not 
 come within the rule laid down by the learned judge. We think, therefore, that 
 with respect to these few posts, which may possibly have excepted from the rule, 
 it would be useless to grant a rule." 
 
 ' Rex V. Inhabitants of Kent, 13 East, 220 ; Rex v. Inhabitants of Lindsey, 
 14 East, 317. 
 
 * Rex V. Kerrison, 3 M. & Sel. 526. This duty may be enforced by indict- 
 ment. Regina v. Ely, 19 L. J. (M. C.) 223. And the same obligation rests 
 upon the assignees of the company. Penn. Railw. Co. v. Duquesne Borough, 
 46 Penn. St. 223. 
 
 3 Priestly ». Foulds, 2 Railw. C. 422 ; 2 Man. & Gr. 176. 
 
 * 8 and 9 Vict. c. 20. 
 
 » Newcastle, &c. Turnpike Co. v. North Staf. Railw. 5 H. &. N. 160. 
 
 « W. & L. Railw. V. Kearney, 12 Ir. Com. L. 224 ; Fosberry v. Waterford & 
 Limerick Railw., 13 Ir. Com. Law, 494; London & North Western Railw. Co. 
 c. Skerton, 5 B. «& S. 659. 
 
 ' 97 Mass. 430. See also Titcomb v. Fitchburg Railw., 12 Allen, 264.
 
 § 111. NATURE OP WORKS. — MODE OF CONSTRUCTION. 406 
 
 •SECTION VII. 
 
 Construction of Charter in rcf^ard to Nature of Works, and 
 Mode of Construction. 
 
 § 111. There are some cases in regard to the construction of 
 railway works, and their requisite dimensions, which have come 
 under the consideration of the courts, and where, the decisions 
 are of little precedent, for other cases, not altogether analogous, 
 and on that account not deserving an extended analysis, but 
 wliich nevertheless we scarcely feel justified in wholly omitting 
 here.^ 
 
 ' Attorney-Greneral v. London & Southampton Railw., 9 Sim. 78 ; 8. C. 1 Railw. 
 C. 302. This case is in regard to the width of a road under a railway bridge. 
 Manchester & Leeds Railw. v. Reg. (in error), 3 Q. B. 528; s. c. 3 Railw. C. 
 633. The footpaths are not to be regarded as any part of the requisite width 
 of the bridge. Reg. v. Rigby, 14 Q. B. 687 ; 8. c. 6 Railw. C. 479 ; Reg. v. 
 London & Birmingham Railw., 1 Railw. C. 317. This is a case in regard to the 
 width of a bridge over a highway. Reg. r. Birmingham & Gloucester Railw., 2 
 Q. B. 47 ; 2 Railw. C. 694, which is a case in regard to the width of the ap- 
 proaches to a bridge across a railway. Reg. r. Eastern Counties Railw., 2 Q. B. 
 347, 569 ; 8. c. 8 Railw. 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. ». Sharpe, 3 Railw. C. 33, as to the right to erect a 
 brit^ at a different angle from the former road. Where a special act required 
 a company to strengthen a bridge described in the act, held that they might, never- 
 theless, pull down the old bridge and build a new one. Wood v. North Stafford- 
 shire Railw., 1 McNagh. & G. 278 ; Rex r. Morris, 1 B. & Ad. 441, as to making 
 a railway on a turnpike road. A turnpike road, having power to take tolls upon 
 any way leading out of their road, may demand tolls of passengers crossing their 
 road upon a railway granted subsequently. Rowe v. Shilson, 4 B. & Ad. 726. 
 
 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 perceived, at the time of turning it, it was held, that the company were not 
 obliged thereafter to watch the operation of the water and take precautions to 
 prevent its encroaching upon the adjoining lands. Norris r. Vt. C. Railw., 28 
 Vt. 99. See also Fitchburg Railw. r. Grand Junction Railw. & Depot Co., 
 4 Allen, 198, where a question in regard to apportioning the expense of a work 
 done by the plaintiff, for the mutual benefit of the parties, in conformity with 
 statutory provisions, is considered, and numerous exceptions on the part of the 
 defendant are overruled by the court. The most important of these exceptions, 
 and which the court regarded as no sufficient ground of defence, are : that the 
 
 •406
 
 406 
 
 CONSTRUCTION OF RAILWAYS. 
 
 CH. XV. 
 
 •SECTION VIII. 
 
 Terms of Contract. — Money Penalties, — Excuse for Non- 
 Performance. 
 
 1. Contracts Jbr construction assume unusual 
 
 forms. 
 
 2. Estimates made by engineer. 
 
 8. Money penalties, liquidated damages. Full 
 
 performance. 
 4. Excuses for non-performance. 
 ' 5. Penalty not incurred, unless upon strictest 
 construction. 
 
 6, 7. Contractor not entitled to any thing fonr 
 
 part-performance. 
 n. 2. Proper construction of the terms used in 
 
 these contracts. 
 8. Contract for additional compensation must 
 
 be strictly performed. 
 
 § 112. 1. As the time within which such works are to be ac- 
 complished is often limited in the act, and as the manner in which 
 the work is done, is of the greatest possible importance to the 
 public safety, the law sanctions contracts for such undertakings, 
 in forms not only unusual, but which might not be strictly binding 
 perhaps in the case of ordinary contracts. For instance, it is not 
 uncommon for the contract to impose penalties upon the contractor 
 for slight deviations from the terms of agreement, and to secure to 
 the company the absolute right to put an end to the contract, 
 whenever they or their engineer are dissatisfied with the mode in 
 which the work is done, or the progress made in it. 
 
 2. And it is almost universal, in these contracts in this country, 
 to refer the quality and quantity of the work done, and the con- 
 sequent amount of payments, to be made from time to time, to 
 the absolute determination of an engineer employed by the com- 
 pany.i 
 
 3. The penalties which these contracts provide, either absolutely, 
 
 commissioner appointed under the statute, in supervising the work and appor- 
 tioning the cost, conducted with partiality towards the plaintiff, and under their 
 imdue influence ; and that the value of the defendant's property and franchise 
 was diminished by the work, and those of the plaintiff increased thereby. 
 
 * Ranger v. Great Western Railw., 18 Sim. 368 ; 1 Railw. C. 1 ; s. c, 5 Ho. 
 Lds. 72 ; 3 id. 298 ; ante, § 105. And where the contract refers the umpirage 
 to the company's engineer, by name, *' if and so long as he shall continue the 
 company's principal engineer," it was held that the reference was not terminated 
 by the amalgamation of this company with another, the same engineer being 
 continued on the old line, but not as the principal engineer of the amalgamated 
 company. Wansbeck Railw. i7i re. Law Rep. 1 C. P. 269. 
 •406
 
 §112. PENALTIES. — EXCUSE FOR ^ON-PERFORMANCE. 407 
 
 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 * done upon 
 
 » Ranger p. Great Western Rail w., 5 Ho. Lds. 72 ; 8. c. 27 Eng. L. & Eq. 61. 
 In regard to the penalties given by the contract, it is said here by the Lord Chan- 
 cellor : *' All the circumstances which have been relied on in the different reported 
 caries, as distinguishing liquidated damages from penalty, are to be found here. 
 The injury to be guarded against was one incapable of exact calculation. The sum 
 to be paid is not the same for every default, for that which should occasion small 
 as for that which should cause great inconvenience, but one increasing as the 
 inconvenience would become more and more pressing; and, finally, the pay- 
 ments are themselves secured by the penalty of a bond ; and this is hardly con- 
 , sistent with the notion that the payments secured were themselves only penal 
 sums to secure something else. For these reasons, I think it clear that these 
 payments, though called penalties, are in truth liquidated damages, agreed on 
 by the parties, and which the company might set off against the demand of the 
 appellant upon them under the contract. But then the appellant contends that 
 the company never had a title to recover these penalties, because the delays in 
 respect of which they claimed were produced by the harassing and vexatious 
 conduct of the respondents themselves, or their agents. It is sufficient on this 
 head to say, that the appellant, in my judgment, wholly fails to make out, in 
 point of fact, the proposition for which he contends. The only penalties actually 
 deducted are 200/. for five weeks' delay in completing tlie headings of tunneb 
 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 com- 
 pany itself. The evidence altogether fails to satisfy me of this." 
 
 Where, in a contract between the original contractors for building a railway 
 and the sub-contractors, it was provided, that the work should be subject to the 
 supervision and control of the engineer of the company, and that he should 
 make monthly estimates, four-fiflhs of which " value" should be paid to the sub- 
 contractors ; and when the work was completed, a final estimate ; the monthly 
 and final estimates as to the quantity, character, and value of the work done, 
 should be conclusive between the parties ; and that if the contractor should not 
 truly comply with his part 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 work 
 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 con- 
 clusive, 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 there- 
 fore 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 
 
 * 407, 408
 
 408 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 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.^ 
 
 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 contract 
 for the same work, upon different terms.^ 
 
 5. Where the work was suspended at the request of the com- 
 pany, with the view to a new location, the company agreeing to 
 pay the plaintiff $750 by way of damages, if the work should not 
 be resumed within two years, and, if it was, the plaintiff to pro- 
 ceed with the work at the prices stipulated, upon those sections 
 not altered ; the route being altered as to some of the section », 
 upon which the defendants resumed within the two years, employ- 
 ing others to do the work, without giving notice to plaintiff; held 
 that the plaintiff could not recover the damages agreed, as the 
 work was resumed within the two years, 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 
 
 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. St. 469. In English contracts for constructing railways, it is common to 
 provide for the use of the contractor's plant, in case of the company putting an 
 end to the contract, and for the sale of the same, and crediting the money to the 
 contractor. But this construction will not be adopted unless loss or expenses 
 have been occasioned, for which the contractor is responsible. Garrett ». Salis- 
 bury & Dorset J. Railw., Law Rep. 2 Eq. 358. 
 
 ^ Andrews v. The City of Portland, 35 Me. 475. And it was held here, that 
 part pa}'ment, under the contract, after the contractor had failed in strict pei^ 
 formance, was no waiver, unless the failure was known to the employer at the 
 time of payment. 
 
 ♦ Whitfield V. Zellnor, 24 Miss. 663. 
 
 * Howard v. The Wilmington & Susquehannah Railw., 1 Gill, 311. 
 
 • Fowler v. Kennebec & Portland Railw., 31 Me. 197.
 
 §113. 
 
 EXECUTION. — EXTRA WORK. — DEVIATIONS. 
 
 409 
 
 earned is to be paid monthly, and the remainder reserved, * as 
 security for the fulfilment of the contract, it was held, that nothing 
 was due till the day of payment, which could be attached by trus- 
 tee process.^ 
 
 7. And where, in such case, the company have the power to 
 determine the contract, and tiie 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 enter- 
 prise, made an additional agreement with the contractor that he 
 would give him his notes to the amount of $10,000, if the work 
 were completed by a day named, it was held, that he was not liable 
 upon the agreement unless the contractor performed his part of 
 the agreement by the day named. The notes were, by the terms 
 of the agreement, to go in part payment of what was due from the 
 company, and the new agreement was not to affect the subsisting 
 contract with the company.* 
 
 SECTION IX. 
 Form of Execution. — Extra WorTc. — Deviations. 
 
 1. No particular farm of contract requitite 
 
 generatly. 
 
 2. But the expresa requirements of the charter 
 
 mutt be complied with. 
 8. Extra work cannot be recovered of the com- 
 
 pany, unleu done upon the terms sped- 
 fed in contract. 
 4. If the comjxtntf have the ben^ of work 
 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 English 
 
 ^ Williams r. Androscoggin & Kennebec Kailw., 36 Me. 201. 
 
 ' Hennessey r. Farrell, 4 Cush. 267. 
 
 • Slater r. Emerson, 19 How. (U. S.) 224. 
 
 ' Post, §§ ISO, 143, 164. Corporations cannot enter into partnerships, bat 
 two or more corporations may become jointly bound by the same contract. 
 Marine Bank of Chicago v. Ogden, 29 111. 248. 
 
 • 409, 410
 
 410 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 courts to maintain the necessity of the contracts of corporations 
 being under seal,^ it is certain that the important business trans- 
 actions of daily occurrence, in both that country and here, where 
 no such formality is resorted to by business corporations, in mat- 
 ters of contract, and where to look for any such solemnity 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 dispensed 
 with. And where, by the charter of a railway company, the direct- 
 ors 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.^ 
 
 * Mayor of Ludlow v. Charlton, 6 M. & W. 815. But see Beverly v. Lincoln 
 Gas Light & Coke Co., 6 Adol. & Ellis, 829 ; Dunston v. The Imperial Gas Co., 
 3 B. & Ad. 125. 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 r. Patterson, 7 
 Cranch, 299, and 2 Kent, Comm. 289, 291, and notes, where it is said the old 
 rule is condemned, and English and American cases cited and commented upon. 
 Post, § 143 ; United States Bank v. Dandridge, 12 ^Vheat. 64 ; Bank of the Me- 
 tropolis V. Guttschlick, 14 Pet. 19 ; Norwich & Worcester Railw. v. Cahill, 18 
 Conn. 484 ; San Antonio ». Lewis, 9 Texas, 69. See, also, Weston v. Bennett, 
 12 Barbour, 196 ; Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74. 
 
 ' Diggle V. The London & Blackwall Railw., 5 Exch. 442 ; s. c. 6 Railw. 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 Railw., 15 Jur. 828 ; 8. c. 5 Eng. L. & Eq. 497, Martin, B., thus com- 
 ments upon the rule of evidence in regard to implied contracts of corporations. 
 " Persons dealing with these companies should always bear in mind, that such 
 companies are a corporation, a body essentially different from an ordinary- part- 
 nership 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 pre- 
 scribed 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 ap- 
 plies in respect of any variation or alteration in a contract which has been made."
 
 §113. EXECUTION. — EXTRA WORK. — DEVIATIONS. 411 
 
 * 3. But where the contract contains express provisions that no 
 allowance shall be made against the company for extra work, 
 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 
 agent for compensation, and cannot recover of the company, either 
 at law or in equity.* So, under the English General Company 
 Acts, where the directors are authorized to contract on the part of 
 the company, although not in writing, when such contracts would, 
 if entered into by private persons, be binding in that form, three 
 directors being a quorum for that purpose, it was held, that the 
 mere fact that extra work was done with the approbation of the 
 company's engineer, the special * contract requiring written direc- 
 tions for all the work, had no tendency to prove a contract binding 
 the company.^ 
 
 But see post, § 143, and cases cited. And where the assistant engineer upon 
 a railway, having charge of the construction of a section of the road, becoming 
 dissatisfied with the contractor, dismissed him, and assumed the work himself, 
 agreeing with the workmen to see them paid, it was held his subsequent decla- 
 rations could not be admitted, to charge the company for supplies furnished the 
 contractors, on the ground that they were not made in the course of the per- 
 formance of his duty as agent of the company. Stiles v. The Western Railw., 
 8 Met. 44 ; s. c. 1 Am. Railw. C. 897. See also Underwood r. Hart, 23 Vt. 
 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 Railw., 24 Vt. 347; 
 Barker v. Troy & Rutland Railw., 27 Vt. 774. In Childs r. The Somerset 
 and Kennebec Railw. in the Circuit Court of the United States, before Mr. 
 Justice Curtis, 20 Law Rep. 661, it was held, 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 capi- 
 tal 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 agree- 
 ment to take pay in shares did not extend to this part of the work. 
 
 ♦ Kirk V. The Guardians of the Bromley Union, 2 Phil. 640; Thayer r. The 
 Vermont Central Railw., 24 Vt. 440; Herrick r. Same, 27 Vt. 673; Van- 
 derwerker r. Same, 27 Vt. 125, 130. 
 
 ' Homersbam c. Wolverhampton Waterworks Co., 6 Exch. 137 ; s. c. 6 Railw. 
 
 • 411, 412
 
 412 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 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 in- 
 formed 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.''' 
 
 SECTION X. 
 
 If one Party repudiate the Contract^ the other may sue presently. 
 — Inevitable Accident. 
 
 1. Party repudiating excuses the other. 1 3. President cannot bind the company. 
 
 2. New contract valid. \ 4. Effect of inevitable accident. 
 
 § 114. 1. Questions often arise in regard to the right of a party 
 to sue for damages before the time for payment arrives, and before 
 he has fully performed on his part. But it seems now to be well 
 settled, that where one party absolutely repudiates the contract on 
 his part, he thereby exonerates the other from further performance, 
 and exposes himself presently to an action for damages.^ 
 
 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." 
 
 8 Nixon V. Taff Vale Railw., 7 Hare, 136. But see post, §§ 130, 143. 
 
 '' Dyer v. Jones, 8 Vt. 205; Gilman v. 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 Railw., 24 Vt. 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. 
 
 > Cort V. The Ambergate, Not. B. & E. J. Railw., 17 Q. B. 127 ; s. c. 6 Eng. 
 L. & Eq. 230 ; Planche «. Colburn, 8 Bing. 14 ; Hochster v. De Latour, 2 El. & 
 Bl. 678 ; 8. c. 20 Eng. L. & Eq. 157. But in an action to recover damages on 
 such contract, the jury are not to go into conjectured profits resulting from a sub- 
 contract very much below what the plaintiff was to be paid, but only the difference 
 between the contract price and the value of doing the work at the time of the 
 breach, can be given. Masterton v. Mayor of Brooklyn, 7 Hill, 61. The re- 
 pudiation of a contract by the company, followed by seizure of the works, under
 
 §114. REPUDIATION. — INEVITABLE. ACCIDENT. 413 
 
 • 2. Where the contract is unconditionally repudiated by one 
 party, before it is fully performed, it is competent for the otlier to 
 stipulate for its performance, upon diflferent terms, no doubt. And 
 such stipulation, although not under seal, would probably be re- 
 garded as made upon a valid and sufficient consideration ; and if 
 made by an agent of the former party to tlie contract, but who had 
 not authority to bind his principal to such contract, it would 
 nevertheless be binding upon the agent and other party contract- 
 ing, and would not be required to be in writing, as it would be an 
 original and not a collateral undertaking. 
 
 3. But it has been held, that after a railway company has en- 
 tered into a written contract, for the performance of certain work, 
 the promise of its president to allow additional compensation to 
 the contractors, for the same work, is without consideration and 
 not binding upon the company .^ 
 
 4. A very singular question arose in a late English case.^ The 
 plaintiff agreed to make and erect on premises, under the control 
 of the defendants, certain machinery, and the latter were to pro- 
 vide all necessary brick work, <fec. Before the works were com- 
 pleted the buildings in which the work was to be done were 
 destroyed by fire. It was held the plaintiffs were entitled to recover 
 for the work already done by them before the fire, and that it was 
 an implied term of the contract that the defendant should provide 
 the buildings in which the work was to be done, and enable the 
 plaintifis to do their part of the work and therefore that the defend- 
 ant was not relieved by the occurrence of the fire ; as a party who 
 contracts to do a thing is bound to carry out his engagement, or to 
 make compensation, notwithstanding he is prevented by inevitable 
 accident. 
 
 order of a court, will be held a waiver of their right to proceed by arbitration 
 under the same contract on all matters involved in the question of the legality 
 of the seizure. Putney r. Cape Town Railw., Law Rep. 1 Eq. 84. 
 
 » Colcock c, Louisville Railw., 1 Strobhart, 829 ; Nesbitt v. L. C. & C. Railw., 
 2 Speers, 697. The controversy here is in regard to hard pan excavation. 
 And as the plaintiff contracted to do all the work on the road, and to construct 
 the road-bed, and his contract only provided for earth and rock excavation, 
 he IB bound to accept his estimates under the contract, and especially, after 
 having done so, he cannot claim extra compensation for excavating hard pan, 
 even if he show that, by usage, " earth" has a technical meaning, and does not 
 include hard pan. 
 
 ' Appleby v. Meyers, Law Rep., 1 C. P. 616; 8. c. 12 Jur. N. S. 600. 
 
 * 413
 
 414 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 •SECTION XI. 
 
 Decisions of Referees 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 tech- 
 nical rules of law, if understandingly made, and exempt from fraud 
 or partiality, has been sometimes applied to contracts for construc- 
 tion 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 contractor compensation for this in- 
 creased expense, it was held to be within the power conferred upon 
 the referees. 1 
 
 2. So, too, where the contract specified a price for eartli excava- 
 tion, and another for rock excavation, but nothing was said of 
 " hard pan," a good deal of which occurred in the course of the 
 work, which was admitted to be more expensive than the ordinary 
 earth excavatioji ; the whole subject was referred, and the plain- 
 tiff" claimed in his specification thirty cents per yard for excavating 
 hard pan, and the referees allowed him fifty cents on trial. The 
 defendants objected to the allowance, being more than the claim. 
 But the court said, where the testimony was received without 
 objection, and showed the party entitled to * recover, beyond his 
 specification, the court will not set aside the report, or grant a 
 
 ' Porter ». Buckfield Branch Railw., 32 Maine, 639. In this case the con- 
 tract provided for payment of a portion of the price of the work in the stock of 
 the company, and the arbitrators directed, that the same proportion of their 
 award should be paid by issuing certificates of stock, and the award was held 
 valid in this particular also. 
 * 414, 416
 
 §116. 
 
 DECISIONS OP company's ENGINEERS. 
 
 415 
 
 new trial, where it is apparent the party has not recovered more 
 than what he is fairiy entitled to.'* 
 
 SECTION XII. 
 
 Dedsions of Company^s Engineers. 
 
 1. Estimates for advances, mere approxima- 
 
 tions, under English practice. 
 
 2. But where the. engineer's estimates are final, 
 
 can only be set aside for partiality or 
 mistake. 
 8. Contractor bound by practical construction 
 of the contract. 
 
 4. Estimates do not conclude matters, not n- 
 ferred. 
 
 6. 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 
 
 bon& 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 provision in 
 regard to monthly or semi-monthly estimates is such, that they are 
 understood to be mere approximations, and it is only equivalent to 
 a provision, that the company shall advance, from time to time as 
 the work progresses, a stipulated proportion of the work, which 
 they shall, by their engineer, adjudge to be done. All that is 
 requisite to the validity of such estimates is, that they were made 
 bo7ia fide, and with the intention of acting according to the exigency 
 of the contract.^ 
 
 • Du Bois p. Delaware & Hudson Canal Co., 12 Wend. 834. 
 
 > Ranger r. Great Western Railw., 6 Ho. Lds. 72 ; 8. c. 27 Eng.L. & Eq. 85,46. 
 
 So where in a canal contract it is provided, that the engineer •' shall in all 
 cases determine the amount or quality of the several kinds of work " to be done, 
 and the compensation therefor, and either party had the right to compel an in- 
 different reference, where he felt aggrieved by the decision of the engineer, 
 ♦• to investigate and determine all questions that may arise relating to compensa- 
 tion for work done under this contract ; " it was held, this umpirage only ex- 
 tended to the final account of the engineer. People v. Benton, 7 Barb. 209. 
 
 Under a contract where the company stipulated to pay the contractor ninety 
 per cent of work done, according to the engineer's estimate ; and the engineer 
 had the 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
 
 416 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 * 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.^ But 
 in an English case^ before Vice-Chancellor Stuart, where in a 
 building contract the corporation reserved the power to determine 
 the contract, which they afterwards exercised, and it was stipulated 
 that any dispute or difference which might arise between the con- 
 tracting parties should be referred to and settled by the engineer, 
 that it should not be competent for either party to except at law 
 or equity to his determination, and that without the certificate of 
 the engineer no money should be paid to the plaintiffs ; " it appear- 
 ing that the engineer had never refused to discharge his duty 
 according to the contract, and had nothing to disqualify him to 
 act, and was ready and willing to proceed and determine all * mat- 
 ters at issue between the parties, it was held that there was no 
 ground for the equitable interference of the court. 
 
 3. If the contractor acquiesce in a particular construction of his 
 
 not absolve the company from the payment of the ninety per cent upon the work 
 done by the contractor, before the contract was declared abandoned. Ricker v. 
 Fairbanks, 40 Maine, 43. 
 
 * Herrick ». The Vermont Central Railw., 27 Vt. 673; Kidwell v. Bait. & 
 Ohio Railw., infra; Alton Railw. v. Northcott, 15 111. 49. In this case it was 
 held that the estimate of the umpire will not bind the parties, if based on an 
 erroneous view of the contract. 
 
 So a court of equity may correct the mistakes of the engineer, although the 
 contract stipulates that his decision shall be final. Mansfield & Sandusky Railw. 
 V. Veeder, 17 Ohio, 385. So, too, where the engineer proved to be a stock- 
 holder in the company. Milnor v. The Georgia Railway «fe Banking Co., 4 Ga. 
 385. And in Kems v. O'Reilley, Leg. Int. Aug. 31, 1866, it was decided that 
 the award of an engineer between contractor and sub-contractor is final. And 
 in Leech v. Caldwell, id. Nov. 16, 1866, it was held, that where the sub- 
 contractor covenanted to abide the decision of the engineer of the work in any 
 dispute arising on the contract, the alleged fraud of th6 engineer did not affect 
 the covenant. 
 
 ' Scott V. Corporation of Liverpool, 31 Law Times, 147, 1858. 
 * 416, 417
 
 § 116. DECISIONS OP company's ENGINEERS. 417 
 
 contract, and allow his estimates, from time to time, to be made 
 npoa such basis, ho 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 pan was excavated, for which no 
 provision was made in the contract, and the other party conceded 
 that compensation was due, beyond the price fixed in the contract 
 for ordinary earth excavation, it was decided that the contractor 
 might recover upon a quantum meruit count. And where the con- 
 tract also provided that the engineer should finally determine all 
 questions necessary to the final adjustment of the contract, this did 
 not render the engineer's estimate conclusive, as to the sum to be 
 paid for excavating hard pan.^ These points are both decided, 
 mainly, it is presumed, upon the concession of the defendant, that 
 the hard pan excavation was a matter altogether outside of the 
 contract. Otherwise it might seem difficult to maintain their en- 
 tire 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 informed 
 the contractor it could not proceed unless he would receive his 
 monthly pay in orders, which were at a discount, and the contract- 
 or consented 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 
 
 * Kidwcll r. The Baltimore & Ohio Railw., 11 Grattan, 676. See also Com- 
 monwealth r. Clarkson, 3 Penn. St. 277. 
 
 * Dubois p. Delaware & Hudson Canal Co., 12 Wend. 334; 8. c. 15 id. 87. 
 See 8. c. 4 Wend. 285. But see ante, § 114; Nesbitt r. L. C. &c. Railw., 2 
 Speers, 697, where hard pan seems to be regarded as earth excavation, unless 
 there is some special provision in the contract ybr estimating it otherwise. 
 
 * Morgan v. Bimie, 9 Bing. 672. See also Sherman v. The Mayor of New 
 York, 1 Comst. 816, 820. 
 
 ^ Kidwell V. The Baltimore & Ohio Railw., 11 Grattan, 676. See also Com- 
 monwealth r. Clarkson, 3 Penn. St. 277, upon the general subject of the con- 
 clusiveness of the engineer's estimate. 
 
 27 • 418
 
 418 
 
 CONSTRUCTION OP RAILWAYS. 
 
 CH. XT. 
 
 or agent, which should be final and conclusive, it was held that 
 such person could not delegate his authority, but that it was 
 indispensable that he should himself make the admeasurement. 
 But in making it, it is not necessary that he should give previous 
 notice to the parties to enable them to be present.^ 
 
 8. But if such agent is to make an estimate of certain expenses 
 to be allowed the plaintiff, and he proceeds to do so, in the absence 
 of plaintiff and without notice to him, he will not be bound by the 
 estimate. But such estimate will not be affected by the inade- 
 quacy of the amount, or that the usual means were not resorted to 
 for ascertaining facts, if the umpire act bona fide^ which is a fact to 
 be determined by the jury.^ 
 
 SECTION XIII, 
 
 Belief in Equity from Decisions of Company's Ungineefs. 
 
 1. Facts of an important case stated. 
 
 2. Claim o/ contractor in the bill. 
 
 3. Bill sustained. Amendment alleging mis- 
 
 take in estimates. 
 
 4. Relie/only to be had in equity. 
 
 6. 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 afrer company had com- 
 
 pleted work. 
 
 10. Money penalties cannot be relieved against 
 
 unless for fraud, 
 n. 1. Review of the cases upon this subject. 
 
 11. Engineer's estimates not conclusive unless 
 
 so agreed. 
 
 12. Contractor, whose work surrendered by 
 
 supplemental contract, entitled to frill 
 compensation. 
 
 13. Direction of umpire binding on contract- 
 
 ing parties, and dispenses with certifi- 
 cate of full performance. 
 
 § 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 by 
 
 • "Wilson V. York & Md. Railw. Co., 11 Gill & Johns. 58. Gross negligence 
 is not fraud, but is eiridence to be considered by the jury. Id. 
 
 > Ranger v. Great Western Railw., 1 Railw. C. 1 ; 8. c. 13 Sim. 368. 
 
 And where by the contract the work was to be done to the satisfaction of the 
 engineer of the defendants, and suit was brought without obtaining the judgment 
 of the engineer, held, that it could not be maintained. Parkes c. The Great 
 Western Railw., 3 Railw. C. 17. 
 
 This case is also found in 3 Railw. C. 298, and in 5 Ho. Lds. 72, and in 27 
 Eng. Law. i& Eq. 35. 
 
 This case came before the House of Lords, on appeal for final determination, 
 •419
 
 § 117. EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 419 
 
 tlio contract that every fortnight the engineer of the * company 
 should ascertain the value of the work done, according to its 
 
 May 26, 1854, just ten years after the decision in the Vice-Cbancellor's court. 
 The judgment was in the main affirmed, but in form was reversed, and sent back 
 to the Court of Chancery, for an account to be taken between the parties, accord- 
 ing 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 tht^line of railway, after reciting that R. agreed to secure the due 
 performance of his contract, by his bond in the penal sum of £4,000 conditioned 
 for the payment to the company of certain fixed sums for everj' 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 
 moneys which either then or thereafter would have been payable to R., together 
 with all the tools and materials then being upon the works, should, upon such 
 default as aforesaid, become and be in all respects considered as the absolute 
 property of the company ; and that if such moneys, tools, and materiab should 
 not be sufficient to pay for the completion of the works, then R. should make 
 good such deficiency on demand. It was then further witnessed, and the 
 company covenanted to pay to 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 sliall have been actually per- 
 formed during 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 com- 
 pletion 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 ap]M.>al ; 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 
 
 *420
 
 420 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 quality and relative proportion to the whole work ; the * contractor 
 to receive eighty per centum, the remainder being reserved to 
 
 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 ver}- considerable extent tow- 
 ards 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 tools and materials 
 thereon, and completed the works by other parties. R. filed his bill, setting up 
 a case of fraud against the company in concealing the nature of the strata through 
 which cuttings and tunnels were to be made, and insisting that he was entitled 
 to be paid for those works at fair prices, regardless of the contract ; that the 
 fortnightly certificates of the value of the 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 
 possession. 
 
 Held, first, that no case of fraud had been made out. But, sevible, that although 
 a corporation cannot be guilty of fraud, yet if their agents employed in canying 
 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 r. The Grand Junction Canal Co., 3 Ho. Lds. 759; 17 Jur. 73; 
 8. C. 16 Eng. L. & Eq. 63), does not apply to the case of the engineer of a rail- 
 way company holding shares in that company, who, according to the terms of a 
 contract between the company and a contractor, was, during the progress of the 
 works, to give periodical certificates of the value of the work done, but which, 
 on the completion of the contract, were not final. 
 
 Thirdly, that the money penalties had been properly charged against R., they 
 being, upon the proper construction of 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 
 ground 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 toob and materials, &c. ; this whole 
 provision is to be regarded, not in the nature of a penalty, but as mere machinery 
 for enabling the company to complete the works at the cost of R., and the com- 
 pany are boimd to account for the value of the tools and materials, in settling 
 •421
 
 § 117. EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 421 
 
 enforce the completion of the works. That if the * engineer should 
 not be satisfied with the works, after notice given to the contractor, 
 
 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 
 chancellor said : " When it is stipulated that certain questions shall be decided 
 by the engineer appointed by the company, that is, in fact, a stipulation that 
 they shall be decided by the company. It is obvious that there never was any 
 intention of leaving to third persons the decision of questions arising during the 
 progress of the works. The company reserved the decision for itself, acting, 
 however, as from the nature of things it must act, by an agent, and that agent 
 was, for this purpose, the engineer. His decisions were, in fact, their decisions. 
 The contract did not hold out, or pretend to hold out, to the appellant, that he 
 was to look to the engineer in any other character than as the impersonation of 
 the company. In fact, the contract treats his acts and their acts, for many pur- 
 poses, as equivalent, 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 applica- 
 tion 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 per- 
 son to decide disputes pending the progress of the works, and the ap])ellant, by 
 assenting to that stipulation, put it out of his power to object, on the ground of 
 what has been called the " unindifferency " 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 whom notwithstanding his relation to the company, 
 the contractor might have so much confidence as to agree to be bound by hit 
 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 afler the works had been 
 begun. 
 
 " But he must have known that the company had it in their power to appoint 
 another engineer in Mr. Brunei's place, who 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 pur- 
 chasing 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 
 maintained, as consistent with the English bankrupt and insolvent laws. Rouch 
 V. The Great W. Railw., 1 Q. B, 51 ; s. c. 2 Railw. C. 605. 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 ». Newcastle-upon-Tyne & N. 
 Shield Railw., 3 Q. B. 784, note a ; s. c. 2 Railw. C. 299. It is said in one case, 
 by a very learned equity judge. Lord Redesdale (O'Connor r. Spaight, 1 Sch. 9t 
 Lef. 809), 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 ne- 
 cessar}- accuracy, a court of equity will, upon that ground alone, take cognizance 
 
 •422
 
 422 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 and his * default in complying for seven days to take possession 
 of the works, thereupon the plant and materials of the contractor, 
 
 of the case. But a court of equity will not ordinarily interfere in any such 
 case, and especially when the party applying has been guilty of laches. North- 
 western Railw. V. Martin, 2 Phil. 758. See also Taff-Vale Railw. v. Nixon, 1 
 H. L. Cas. Ill ; Faley v. Hill, 2 id. 45, 46. See also Nixon v. Taff-Vale Railw., 
 7 Hare, 136. It is questionable, 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 discretion of that court, 
 in assuming such jurisdiction, in any particular case pending in a court of law. 
 But sometimes where the contractor claims the right to appropriate payments, 
 made generally, to a different contract from that upon which the company desire 
 it to apply, it becomes necessary to draw the whole into a court of equity. 
 Southeastern Railw. v. Brogden, 14 Jur. 795 ; s. c. 3 McN. &. G. 8. See upon 
 the general subject. Waring v. The Manch. & Sheffield & L. Railw., 7 Hare, 
 482. An important 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 Railw., may be regarded, perhaps, 
 as bearing something of the same relation to cases in this country' upon that 
 subject which the English case does to cases of that kind in the English 
 courts. 
 
 This is the case of Philadelphia, Wilmington, & Baltimore Railw. v. Howard, 13 
 How. 307 ; 8. c. 1 Am. Railw. C. 70. It came into the United States Supreme 
 Court by writ of error to the Circuit Court of the United States for the District 
 of Maryland. Tlie 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 
 mentioned that it was to be done according to the directions of the engi- 
 neer, bound the company to pay for work done according to his directions, 
 although not strictly in conformity with a profile showing the original proximate 
 estimates. 
 
 And when the contract was to place the waste earth where ordered by the 
 engineer, it was the duty of the engineer to provide a convenient place, and if he 
 failed to do so the other party is entitled to damages. 
 
 Where the contract authorized the company to retain, until the completion of 
 the contract, fifteen per cent of the earnings of the contractor, by way of in- 
 demnity 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 
 *423
 
 § 117. EQUITABLE RELIEF PROM DECISIONS OP ENGINEERS. 423 
 
 and * all the work done and not paid for, and the reserved 
 fund to be forfeited to the company. 
 
 which they had so retained, unless the jury were satisfied the company had sus- 
 tained 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 in- 
 junction. 
 
 If a railway company, having the |>ower 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 
 exercised this power for the purpose of having the work done cheaper, or of 
 oppressing and injuring the contractor, he was entitled to recover damages for 
 any loss of profit he might have sustained, and of the reasons which influenced 
 the company, the jury were to be judges. 
 
 And in Herrick v. Vermont Central Railw., 27 Vt. 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 the 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. 
 
 Such a stipulation, when construed with reference to its subject-matter, and 
 the ordinar}- course of business, docs not require the estimates to be made or 
 verified by the chief engineer, but has reference as well to the assistant, or res- 
 ident engineer, 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 emplojTnent of suitable engineers, &c., the 
 obUgation 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, ac- 
 cording 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 con- 
 jectural. 
 
 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 Railw. Co. contracted with B. for the construction of 
 their railway, and B. contracted with the plaintiff for the construction of a part 
 of it. In both contracts there was such a provision in reference to the conclu- 
 
 •424
 
 424 CONSTRUCTION OP RAILWAYS. CH. XT. 
 
 • 2. The company having taken the forfeiture under the contract, 
 the plaintiff filed his bill, insisting that the engineer had under- 
 estimated the work .£30,000, and that no forfeiture had been 
 incurred by him, and praying that tlie 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. 
 
 siveness of the engineer's estimates. Held, that there was no privity of contract 
 between the plaintiff 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 in- 
 debted to the plaintiff, did not constitute a fund against which the plaintiff had 
 a claim. 
 
 But if there was any connivance on the part of the Vermont Central Railway 
 Co., or their agents, in bringing about the imder-estimates complained of, even 
 if it was without the design ultimately to defraud, but only as a temporary ex- 
 pedient for present relief, the plaintiff would be entitled to recover of them the 
 loss which he sustained by reason thereof. 
 
 The plaintiff claimed in his bill, that he had been under-estimated a given 
 amount, for the payment of which he instituted the present suit ; by the report 
 of the Master, the amount not estimated was found to be more than twice that 
 amount. Held, that the plaintiff should be limited ,to the amount claimed in his 
 bill. 
 
 The report of a Master in Chancery upon the taking of an account, should 
 contain a succinct statement of all the points made by counsel, and the facts 
 found by him upon each point. 
 
 The testimony given viva voce before a Master in 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 aU the facts found 
 by him. So that they will be intelligible, without reference to the testimony. 
 
 In a contract for railway constniction, 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 
 deduct the stipulated forfeiture, notwithstanding the default of the company. 
 Mcintosh c. Midland Counties Railw., 14 M. & W. 548 ; 8. 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. 
 ♦425
 
 § 117. EQUITABLE RELIEF PROM DECISIONS OP ENGINEERS. 425 
 
 3. The Lord Chancellor held, that the facts alleged do entitle 
 the plaintiff to relief in equity. The plaintiff amended his bill, 
 and alleged that the most expensive masonry had been paid for 
 only at the price of inferior work, and claimed large sums in that 
 respect, and also alleged fraud against the company, in the con- 
 tracts and in the certificates. 
 
 4. It was held, that the investigations as to the sufficiency of 
 the payments made could only be made in a court of equity. 
 
 5. That the evidence in support of an allegation of fraud must 
 be very clear, and that it is not enough to show that the state- 
 ments of the company as to the nature of the work, gave imper- 
 fect information, but it must also be shown that the contractor 
 could not with reasonable diligence have acquired all necessary 
 information. 
 
 6. The fact of the engineer being a shareholder in the company 
 is not enough to avoid his decision, as the contractor might have 
 ascertained this fact. The character of an engineer is of more 
 value to him than his interest as a shareholder. 
 
 7. That the decision of the engineer as to the quality of the 
 work is conclusive, but not as to the quantity. The question of 
 measurement and calculation will be entertained and decided by 
 a court of equity. 
 
 * 8. That where the parties have entered into new contracts, it 
 will be considered a condonation of old injuries, unless, at the 
 time of making the new contract, the plaintiff insisted upon his 
 adverse claims, the parties being at liberty to proceed at law. 
 
 9. After the works were completed by the company the court 
 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 stipulations as to for- 
 feiture.^ 
 
 11. In one case in Pennsylvania ^ it was decided that the esti- 
 mates and decisions of the engineer of a railway company are 
 conclusive, in disputes with contractors, only where such is the 
 positive stipulation of the contract ; that in every other case the 
 
 • Memphis Railw. Co. r. Wilcox, 48 Penn. St. 161. 
 
 •426
 
 426 
 
 CONSTRUCTION OF RAILWAYS. 
 
 CH. XV. 
 
 correctness of such estimates are to be tested by evidence, and 
 in an action against the company by a contractor to recover a 
 balance claimed to be due for work, it is correct to instruct the 
 jury to rely on the engineer's final estimates unless shown to be 
 erroneous. 
 
 12. In such a contract, where a supplemental contract was made 
 by the company, assuming the work, and agreeing to pay the con- 
 tractor for what work he had done, and reserving no claim for 
 damages, either on account of the suspension of the work or its 
 not being completed, it was held that the contractor was entitled 
 to compensation according to the stipulations of the supplemental 
 contract, without any deductions on account of suspension of or 
 not completing the work, and that the work done and agreed to be 
 compensated must be estimated at what it was worth, and the 
 contractor's claim could not be restricted to what would be coming 
 to him under the final estimates of the engineer ; nor could the 
 company claim any deductions on account of loss incurred in com- 
 pleting the work. 2 
 
 13. And where the plaintiflf stipulated to perform the work of 
 shifting the track of a railway, under the direction and to the 
 * satisfaction of the city surveyor, whose certificate that the work 
 had been so performed was to entitle him to payment, it was held, 
 that where the surveyor directed that the work should not be done 
 beyond a certain point, that was a valid excuse for not obtaining 
 his certificate of performance beyond that point.^ 
 
 ♦SECTION XIV. 
 
 Frauds in Contracts for Construction. 
 
 1. RdievMe in equity upon general princi- 
 
 ples. 
 
 2. Statement of leading cases upon this subject. 
 
 3. Where no definite contract closed, no rdief 
 can be granted. 
 
 § 118. 1. It is well known that courts of equity will relieve 
 against fraud practised by the agents of railways, in building- 
 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. 
 
 ' Devlin r. Second Avenue Railw. Co., 44 Barb. 81. 
 ♦ 427
 
 §118. FRADD8 IN CONTRACTS FOR CONSTRUCTION. 427 
 
 2. Tlie 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 Railw. C. 1 ; 8. c. 8 Railw. C. 298. On appeal in the House of Lonls, 27 
 Eng. L. &. Eq. 85, 41 ; 8. c. 18 Sim. 368 ; 5 Ho. Lds. 72. In regard to fraud, 
 on the part of railway companies, in building-contracts, the Lord Chancellor 
 said : " The first ground on which the appellant rests his title to relief is, that he 
 was induced to enter into the contract by the fraud of the company ; that the 
 sum at which he agreed to do the works was far below what he would have re- 
 quired had he known the real nature of the soil through which the tunnels were 
 to be made ; but on this point he had been misled by the fraudulent contrivance 
 of the respondents. The case made by the bill on this head is, that there being 
 on the line of the road to be made for the railway in the neighborhood of Bristol 
 three kinds of stone, sandstone, Dunns or Dunn stone, and Pennant or Ilanham 
 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 necessarj- 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 previously known ; and accordingly that the 
 respondents did sink ten such pits, but that eight 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 respect- 
 ively to depths of 78 and 55 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 further alleges that the soil dug out of all of the 
 said pits was laid on the surface near the mouth, and showed apparent ly a sub- 
 stratum of sandstone, the workmen employed to sink the pits having by direc- 
 tions from the company ceased to dig when they reached the hard stone, except 
 that out of the bottom of one of the deep pits some Dunn stone was taken, but 
 which had crumbled away when exposed to the air. 
 
 " The bill then goes on to charge, in substance, that the company, with knowl- 
 edge that the cuttings would have to be made through the harder sorts of stone, 
 caused notice to be given by advertisement, that they were ready to receive 
 tenders acconling to certain printed fonns circulated for the purpose, and the 
 natum of the works to be done was to be ascertained from a specification 
 deposited in their oflice at Bristol. The specification described the works for 
 which the tender was to be made. The printed form of tender contained an un- 
 dertaking by the party tendering, not only that he would do the contract works 
 at a specified sum, but also that he would do any extra works, and make any
 
 428 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 * ment of tliat case, in the House of Lords, by the Lord Chan- 
 cellor Cranworth, is a better commentary than elsewhere exists, 
 
 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 diifcrent heads 
 under which charges were to be made by the contractor, in respect of such extra 
 or altered works were all printed as part of the form of tender, and the party 
 tendering was to write against each such head the price at which he would agree 
 to be bound to do the same works of the nature there referred to. Amongst the 
 works so to be done was the excavating clay, shell, and sandstone, but there was 
 no mention in the schedule of any other stone. Neither Dunn stone nor Pennant 
 are referred to by name ; and the suggestion of the bill is, that the omission of 
 any mention of Dunn or Pennant stone was a contrivance, or part of a con- 
 trivance, for the purpose of leading the persons tendering, to suppose that they 
 might make their calculations on the footing of there being no hard stone 
 to be cut through, — a supposition which would be confirmed by the trial pits, 
 out of which no hard stone had been dug, except the small portion of Dunn stone 
 from one of the pits, which, as I have already stated, crumbled away when ex- 
 posed 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 he had to perform, and so agreed to do it on terms to which, but for the 
 deception practised upon him, he would not have consented. The question on 
 this part of the case is one of fact. Is it established that any imposition 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 for profit, such as forming a railway, these objects 
 can only be accomplished through the agency of individuals ; and there can be 
 no doubt that if the agents employed conduct themselves fraudulently, so that, if 
 they had been acting for private employers, the persons for whom they were 
 acting would have been affected by their fraud, the same principles must prevail 
 where the principal under whom the agent acts is a corporation. The question, 
 therefore, on this part of the case is whether the directors, or the engineers, 
 •428
 
 § 118. FRAUDS IN CONTRACTS FOR CONSTRUCTION. 429 
 
 *upon this subject. The general subject of fraud in railway 
 companies, in regard to building contracts, is somewhat con- 
 sidered in a late case in the Supreme Court of Vermont.^ 
 
 or agents, whom they employed, were guilty of the fraudulent misrepresenta- 
 tions alleged by the bill. I am clearly of opinion that no such case is made 
 out. [His lordship here stated the nature of the evidence on this point, and 
 continued] r — 
 
 " 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 com- 
 pany 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 
 ascertaining to what depth it had been cut, and what was the soil at the bottom ; 
 and though by the 12th March a great deal of water had entered, and 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 Pennant stone are two 
 different kinds of stone, but this is not the conclusion at which, on the evidence, 
 I arrive. * Pennant stone,' says Mr. Brunei, ' is a species of sandstone, and the 
 only species in the neighborhood of Bristol of sufficient hardness to be used for 
 bridges, or other strong masonrj-.' 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. Tliis 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. 
 
 » Herrick r. The Vermont Central^Railw., 27 Vt. 678. 
 
 •429
 
 430 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 *3. But it is clear that where no binding and complete con- 
 tract has been entered into by the company, although the * ten- 
 ders made by a contractor have been accepted by their engineer, 
 authorized to act on their behalf, and the contractor has incurred 
 
 • 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 
 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 con- 
 sequences 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 suflScient 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 2*. 2d., and from tunnels, 2*. dd. 
 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 
 hardness ; some more expensive to work, some less so. To all these considera- 
 tions must be added, that the appellant did not, so far jas 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." 
 * 430, 431
 
 §119. 
 
 engineer's estimate. 
 
 431 
 
 expense upon the faith of having the contract, in preparation to 
 fulfil it, there being certain alternatives in the tender, which liad 
 not been decided upon, and the whole thing being given up and 
 no specific contract made under the seal of the company, 
 equity can grant no relief.^ For if there was no contract equity 
 could not create one, and if there was a valid contract the rem- 
 edy at law is adequate. 
 
 • 
 ♦SECTION XV. 
 
 Engineer's Estimate wanting through FauU of Company. 
 
 1. In such due contractor may maintain bill 
 
 in equity. 
 
 2. Grounds o/ equitable interference. 
 
 8. After company terminate contract, oon- 
 tractor will be enjoined from interference. 
 And same rule sometimes extends to com- 
 pany. 
 
 4. Stipulation requiring engineer's estimate, 
 not void. 
 
 6. Not the same as an agreement, that all dis- 
 putes shall be decided by arbitration. 
 
 Engineer's estimate projter condition pre- 
 
 cedent. 
 Same as sale of goods, at the valuation of 
 
 third party. 
 The resuk of all the English cases seems 
 
 to be, that only the question of damages 
 
 properly referable to the engineer. 
 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 ac- 
 tion, either at law or in equity, can be maintained until such 
 estimate and approval is obtained, unless it is prevented by the 
 fault 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 witliout remedy, in equity.^ Lord 
 Chancellor Cottenham., in affirming this decision,^ sa3:8 : — 
 
 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 
 
 ' Jackson v. The North Wales PUilw., 1 HaU & T. 76, 8. c. 6 Railw. C. 112. 
 
 » Mcintosh r. The Great Western Railw., 2 De G. & S. 758. This is the 
 decision of the Vice-Chancellor, which came before the Lord Chancellor, as 
 mentioned in note 2. 
 
 « Mcintosh r. The Great Western Railw., 2 Hall & T. 260; 8. c. 2 Mac. & 
 G. 74. 
 
 :i -482
 
 432 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 right, and a legal right only, to the benefits they claimed by this 
 bill. But if the facts stated in the bill are such as, if true, de- 
 prive the plaintiffs of the means of enforcing such legal rights, 
 and if those facts have arisen from the conduct of the defend- 
 ants, or of their agent so recognized by the specification and 
 contract, and now used for the fraudulent purpose of defeating 
 * the plaintiffs' claim altogether, the defendants cannot resist the 
 plaintifis' claim in equity upon, the ground that their remedy is 
 only at law ; nor is it any answer to show that, if the plaintifis 
 cannot get at law what they contracted for, they may obtain 
 compensation in damages. It is no answer to a bill for specific 
 performance that the plaintififs 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 have 
 no remedy, but no adequate remedy save in a court of equity. 
 It is therefore no answer in the present case for the defendants 
 to urge, that if they or their agent have been neglectful of what 
 they undertook to do, by which the plaintiffs have suffered, they 
 may be liable in damage to the plaintiffs. They contracted for 
 a specific thing, and are not bound to take that, or something in 
 lieu of it, if such other thing be not what this court considers as 
 a fair equivalent. I do not therefore consider that any answer 
 is given to the plaintiffs' right to file a bill in this court by show- 
 ing that the ground upon which they seek their right so to do, 
 namely, the being barred of their legal remedy by the conduct 
 of the defendants, may subject them to damages at law." 
 
 3. And where disputes arose between the contractor and the 
 company, each charging default upon the other's part, and claim- 
 ing the right to occupy the works, and the workmen of both 
 coming in collision, upon the line of the road, and the comple- 
 tion and opening of the road being delayed in consequence, the 
 court, on the application of the company, restrained the con- 
 tractor from continuing on the line or interfering with the 
 operations of the company, but directed an account of what was 
 due the contractor, without regard to the former certificates of 
 the company's engineer, and an issue to try whether the com- 
 pany were justified in removing the contractor, reserving all 
 claims for loss and compensation till the final hearing.^ 
 
 3 East Lancashire Railw. v. Hattersley, 8 Hare, 72. 
 •433
 
 § 119. engineer's estimate. 433 
 
 And ill a very recent case,* by the terms of the contract it was 
 provided, that if the contractor made default the company might 
 themselves complete the line, and that the plant, <&c., upon the 
 * line belonging to the contractor should become the property of 
 the company, and be set off against tlie debts, if any, due from 
 him to the company, and that the contractor should not hinder 
 the company from using the same. Default having been made 
 by the contractor, the company completed the lino and were pro- 
 ceeding to remove the plant, &c. An arbitration was pending 
 to decide the question of amount between the contractor and the 
 company. It was held that the company must be enjoined from 
 removing the plant before award given. 
 
 Lord Roviilly^ M. R., here suggests that the company have no 
 right to take the plant until it appears that the contractor is in- 
 debted to them ; but we should have said that under such a con- 
 tract the fair construction is that the company may take and use 
 the plant in completing the line, making themselves debtor to 
 the contractor for the same. The purpose of such a stipulation 
 presumptively is, that the work may not be interrupted by the 
 change of hands from the contractor to the company. But after 
 the road is completed, so far as the contract extended, and the 
 company had made no use of the plant, the view suggested by 
 his lordship seems entirely just and reasonable. 
 
 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 
 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- 
 
 * Garrett r. Salisbury & Dorset Junction Railw., Law Rep. 2 Eq. 358 ; s. c. 
 12 Jur., N. S. 495. 
 
 » Scott c. Avery, 6 Ho. Lds. 811 ; 8. c. 36 Eng. L. & Eq. 1. 
 
 * Thompson c. Cbarnock, 8 T. R. 139. See also Tattersall t. Groote, 2 B. 
 
 & P. 181. 
 
 28 *434
 
 434 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 tract, or, wliat is equivalent, that all disputes under it shall be 
 referred to arbitration, is a repugnancy, which if carried out lit- 
 erally must render the contract itself, as a mode of legal redress, 
 * wholly idle. And it is only in this view that contracts are to be 
 considered by the courts. 
 
 6. But a stipulation that the liability under a contract or cove- 
 nant shall not accrue, except upon the basis of certain previously 
 ascertained facts, where the contract contains provisions for ascer- 
 taining them, by the action of either party, without the concurrence 
 of the other, is no more than a limitation upon the right of action, 
 as that no action shall be brought until after one year, or unless 
 commenced within six months,''^ which have been held valid. And 
 even where the concurrence of both parties is requisite and the 
 performance of the condition fails through the refusal of one, it 
 probably is the same as to the other as if performed. 
 
 7. Hence a contract to purchase goods ^at the valuation of N. 
 and M., cannot be made the foundation of an action, without obtain- 
 ing the valuation stipulated,^ or showing that the other party hin- 
 dered it.^ 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 will lie, the only remedy being by a 
 special action for the fraud, or in equity, perhaps.^ 
 
 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 * opposed to 
 allowing any force whatever to such a stipulation. And of the 
 
 ' Wilson V. Mtaa, Ins. Co., 27 Vt. 99, and cases there cited. 
 
 8 Thuraell v. Balbirnie, 2 M. «& W. 786 ; Milnes v. Gery, 14 Vesey, 400. 
 
 * Milner ». Field, 5 Exch. 829. But in a later case in the same court it is 
 said that the award must be obtained, or it must be shown that it is no longer 
 practicable to obtain it. Brown v. Overbury, 11 Exch. 715 ; 8. c. 34 Eng. L. & 
 Eq. 610. This rule, with the qualification that the defendant by his own act or 
 refusal had rendered the performance of the condition impracticable, is now, in 
 this country certainly, held such an excuse as will enable the party to sue in a 
 court of law. United States v. Robeson, 9 Peters, (U. S.) 319, 326. And in a 
 very late case in Pennsylvania, Snodgrass v. Gavit, 28 Penn. St. 221, Mr. 
 Justice Woodward assumes it as the unquestionable rule, in that state, that 
 " where parties stipulate that disputes, whether actual or prospective, shall be 
 submitted to the arbitrament of a particular individual, or tribunal, they are 
 bound by their contract, and cannot seek redress elsewhere." 
 * 435, 436
 
 § 120. CONTRACTS FOR MATERIALS AND MACHINERY. 486 
 
 other six, four held that only the question of damages can properly 
 be made to depend, as a condition precedent, upon the award of an 
 arbitrator, while two held that the award may be made to include 
 all matters of dispute growing out of the contract, which it seems 
 to us must be regarded as equivalent to saying that no action at 
 law or in equity shall be brought to determine any controversy 
 growing out of the contract, which all the judges agree is a void 
 stipulation. We therefore feel compelled to adopt the view that 
 upon principle, and the fair balance of authority, such a stipula- 
 tion, in regard to estimating labor or damages, under a contract 
 for construction, is valid, and may be treated as a condition prece- 
 dent, but that beyond that, the present inclination of the English 
 courts is to hold that it is repugnant to sound policy, and subver- 
 sive of the legal obligation of the contract, as being equivalent 
 to a stipulation that no action at law shall be brought upon the 
 contract, but only upon the award, if not paid. 
 
 9. But the balance of authority in this country seems to be in 
 favor of allowing such a condition precedent, in this class of con- 
 tracts, to extend to the quality of the work, as well as the quan- 
 tity, and to the question, whether the work is progressing with 
 sufficient rapidity, and whether the company on that account are 
 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 feel justified in intimating 
 any desire to see the American cases on this subject qualified. 
 
 •SECTION XVI. 
 CoTdradafor Maieriala and Machinery. 
 
 1. Mannjadurtr not UabU/or latent defect in 
 
 materials. 
 
 2. Contract for railuxtg sleepers, terms stated. 
 8. Construction of suck contract. 
 
 4. Party may vxuve stipulation in contract, 
 
 by acquiescence. 
 6. Company UabUfor 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 
 
 AMe, §§ 116, 117. 
 
 •437
 
 436 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 one thousand miles, with proper loads, the manufacturers to be 
 liable for any breakage which may occur through defect of ma- 
 terials or workmanship, but not where it occurs from collision, 
 neglect, or mismanagement of the company's servants, or any 
 other cause, except the two first named. The trial to take place 
 within one month from the day on which any engine is reported 
 ready to start, in default of which the manufacturers to be re- 
 leased from all responsibility. It was specially agreed the fire- 
 boxes should be of copper, T-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 S-lGths of an inch 
 in thickness, it being conceded it was originally of the thickness 
 required by the contract. In an action for the price of the engine, 
 which by the contract was to be paid upon the satisfactory comple- 
 tion of the trial, it was held the defendants could not give evidence 
 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 aU responsibility in 
 respect of bad materials and workmanship.^ 
 
 2. In a contract for railway sleepers ,2 it was stipulated that the 
 plaintiff below should supply the defendant below with 350,000 
 sleepers, the contract before having recited that the * defendants 
 were desirous of being supplied with that number of railway sleep- 
 ers. The contract specified that the plaintiffs were willing to sup- 
 ply 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 remamder 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, " from 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 performance of the contract, and should pay it 
 over within two months after the sleepers had been delivered, and 
 
 > Sharp c. The Great Western Raaw., 2 Railw. C. 722 ; s. c. 9 M. & W. 7. 
 • The Great Northern RaUw. v. Harrison, 14 Eng. L. & Eq. 189, 12 C. B. 576, in 
 the Exchequer Chamber, from the C. P. ; 8. c. 8 Eng. L. & Eq. 469, 11 C. B. 815. 
 *438
 
 § 120. CONTRACTS FOR MATERIALS AND MACHINERY. 487 
 
 that the contract might be determined upon the default or bank- 
 ruptcy 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 tlie 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 sleepers, 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 instrument, 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 company 
 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 notes for 
 each parcel of iron as it was shipped.^ 
 
 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 terras, the sleepers being delivered and used 
 by the company, tliat they were liable.^ 
 
 ' Bailey v. The Western Vermont Railw., 18 Barb. 112. It was also held, 
 here, that the refusal of the company to give their notes, as stipulated, excused 
 the plaintiff from delivering or tendering the remainder of the iron, until the 
 company should tender their notes, and entitled plaintiff to sue presently. 
 
 ♦ 8 and 9 Vict. c. 16. 
 
 • Paulding v. London & North W. Railw., 8 Exch. 867 ; 8, c. 22 Eng. L. & 
 Eq. 660. 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 
 r. London & North W. Bailw., 18 Q. B. 632 ; 8. c. 14 Eng. L. & Eq. 18. 
 
 •439
 
 438 
 
 CONSTRUCTION OF RAILWAYS. 
 
 CH. XV. 
 
 SECTION XVII. 
 
 Contract to Pay in the Stock of 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 performed 
 
 on his part, can only recover market 
 value. 
 
 8. .Cash portion overpaid, will only reduce 
 stock portion dollar for dollar. 
 
 n. 2. Lawful incumbrance on company's prop- 
 erty, 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 com- 
 pany, as the work progresses, at certain stages, or when it is com- 
 pleted. The time, place, and mode of payment in such cases, will 
 be the same ordinarily as in other contracts for payment of stock. 
 If the company refuse or neglect to deliver the stock or the proper 
 certificates when it becomes due, upon proper request or oppor- 
 tunity, they are generally liable, it is considered, as in other cases 
 of failure to perform contracts, for a certain amount or value, in 
 collateral articles expressed in currency .^ 
 
 * 2. But it was held, that where the plaintiff recovered a bal- 
 ance due on equitable grounds, and not on the groiuid of strict 
 and full performance of the contract, he was precluded on like 
 equitable grounds from recovering more for the stock portion of 
 the contract than its market value at the commencement of the 
 action .2 
 
 * Moore v. Hudson River Railw., 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 thirty days after the completion of the contract, 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. In a recent English case. Re Alexandra Park Co., 12 Jur. N. S. 
 482, where the contractor stipulated to accept a portion of his pay in stock, at 
 the election of the company, it was held he was not bound by such an election 
 after the company was ordered to be wound up as insolvent, as the shares thereby 
 become extinguished. 
 
 * Barker ». T. & R. Railw., 27 Vt. 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 
 *440
 
 § 121. PAYMENTS IN STOCK OP THE COMPANY. 439 
 
 * 3. So, too, where the work is to be paid partly in stock and 
 partlj in money, if the money part be overpaid, even by doing a 
 
 the bearer. And trhen the party stipulated to pay in his own paper, if he re- 
 fose, 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 recov- 
 ery, 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. K it were the stock of 
 another company, no doubt, all which could be recovered is the value of the 
 stock in the market. Certainly, this is the general rule in reganl 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, § 88. 
 
 *' 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 recover}' and apportionment of the con- 
 tract is allowed for 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 per- 
 formance. And, although it has not been regarded as a strict condition pre- 
 cedent in some of the cases (Danville Bridge Co. r. Pomeroy, 15 Penn. St. 
 151), still it is a stipulation in the contract, for the full performance of which 
 the defendants had the right to insist, and for doing which they are not to be 
 themselves 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 condi- 
 tion precedent, 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 
 undertaking, and supposed they had done so, and only failed by mistake and 
 misapprehension, which should not, under the contract, defeat the recovery in 
 toto, 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 defend- 
 ants, 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 
 demanded the whole price, and the defendants refused. The demand itself 
 was 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 r. Ware, 6 Vt. 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 re- 
 quirements seems to be, that no injustice shall be thereby visited upon defend- 
 ants, it would almost necessarily follow that we should not suffer the plaintiffs 
 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 recovery 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 
 
 •441
 
 440 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 * portion of the work, which the party reserved the right to do in 
 order to hasten the work, it will only reduce the stock payment 
 
 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 por- 
 tion of the amount reported, and require the certificates of stock still to be de- 
 livered ; and if defendants refuse, on reasonable request, enter up judgment for 
 the full amount." But if the contractor perform 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. Rallw., Cir. Ct. U. S. Maine District, May 1, 
 1857. 20 Law Rep. 661. In the case of Cleveland & Pittsburgh Railw. v. 
 Kelley, 5 Ohio, N. S. 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 delivered. The court profess to base their 
 opinion upon the ground that in contracts of this character there is not under- 
 stood to be any election reserved by the company to pay either in their stock, 
 or in money, but that it is an absolute undertaking to deliver so much stock aa 
 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, equitable, no doubt, and always 
 where the refusal is upon the ground that nothing is due the contractor. Antey 
 § 121, n. 2. 
 
 The point of the decision is thus summed up by Mr. Justice Stcan. " 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 taken in stock was not a money indebtedness, but a stock indebted- 
 ness ; and, consequently, that the company could derive no benefit from the in- 
 creased value of the stock, and could suffer no loss by its depreciation ; the 
 damages which the contractors suffered from the n,on-delivery of the stock being 
 its market value." 
 
 See also Boody v. Rut. & Bur. Railw. (Cir. Ct. U. S.), 24 Vt. 660. In this 
 case it was held, that the defendants having given their creditors a mortgage upon 
 their road, after the contract with the plaintiff, did not excuse him from accept- 
 ing the stipulated proportion of the payments in stock. 
 
 Nor can the contractors, in such case, refuse to receive the stock, because the 
 legislature, in the mean time, altered the charter of the company, by which the 
 capital stock and debt of the company were increased ; nor because the com- 
 ♦442
 
 § 122. TIME AND MODE OP PAYMENT. 441 
 
 * dollar for dollar, and not according to the market value of the 
 stock at the time.^ 
 
 SECTION XVIII. 
 
 Hme and Mode of Payment. 
 
 1. No time Specified, pen/maU due onlg when 
 
 work completed. 
 
 2. Stock paifmenta must ordinariltf be de- 
 
 manded. 
 
 8. But if company pay monthly, such usage 
 qualijies contract. 
 
 4. Contract to build wall by cubic yard, im- 
 plies measurement in the wall. 
 
 § 122. 1. Where no time of payment is specified in terms in the 
 written contract between the parties for the construction of a por- 
 tion 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 performance of the 
 contract on his part.^ 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 de- 
 mand was necessary before the contractor could maintain an action 
 for it.i 
 
 pany 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 Railw., 12 Barb. 156. 
 
 And where a 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 
 company retaining the same as security for certain liabilities on account of the 
 contractor, and gave the contractor a certificate of such stock, with an agree- 
 ment indorsed, to excliange 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 
 consequence been sold upon execution against him. Jones o. Portsmouth & 
 Concord Railw., 32 N. H. 644. 
 
 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 
 delivered to the company without a proper compliance with the conditions of 
 the statute, under which the subscription was made, the contractor having had 
 knowledge of the facts from the first. Mercer County r. Pittsburgh & Erie 
 Railw., 27 Penn. St. 389. 
 
 ' Jones & Dow v. Chamberlain, 80 Vt. 196. 
 
 » Boody c. Rut. & Bur. RaUw., 24 Vt, 660 (U. S. Cir. Ct.). 
 
 •443
 
 442 CONSTRUCTION OF RAILWAYS. CH. XV. 
 
 8. But where it appeared that the company were accustomed to 
 make monthly payments to their contractors, upon the estimates of 
 the engineer, at the end of eacli month, and that they had so dealt 
 with the plaintiff, it was held that this must be considered 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 constructed, ^ 
 
 ♦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 contracts 
 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 de- 
 claring specially upon the contract, but the recovery may be had 
 under the general counts ; and it will make no difference in this 
 respect that it was not done within the time prescribed by the con- 
 tract, 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.^ 
 
 2. But ordinarily the contract will 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 per- 
 formance 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.^ 
 
 • Wood V. Vermont Central Railw., 24 Vt. 608. 
 
 ' Merrill c. Ithaca & Owego Railw., 16 Wendell, 586 ; 8. c. 2 Am. Railw. C. 
 421. 
 
 •444
 
 § 123 b. REMEDIES OF LABORERS AND SUB-CONTRACTORS. 443 
 
 SECTION XX. 
 Mechanic's Lien. 
 
 1. Such lien cannot exist in regard to a rail- I 2. Opinion of Scott, J. 
 waif. I 
 
 § 123 a. 1. It has been considered that although a public railway 
 may come within the literal import of the terms used in a statute, 
 to secure material-men and laborers, by what is denominated a 
 mechanic's lien upon " buildings or other * improvements," yet that 
 the public have such an interest in pul)lic works of this cliaracter, 
 that it cannot reasonably be presumed that such terms were in- 
 tended to include the bridges and culverts upon the line of a pub- 
 lic railway.^ 
 
 2. Tlie language of Scott, J., shows the ground of the decision. 
 " Although railway companies in some respects resemble private 
 corporations, yet, as they are organized for the public benefit, 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 pub- 
 lic 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 
 therefore, and as the legislature have provided a specific remedy 
 for laborers, it is not to be supposed that a mechanic's lien also 
 exists iu regard to the structures on the works. 
 
 SECTION XXI. 
 Remedies on behalf of Laborers and Suh-contradors. 
 
 8. But a sub-contractor cannot go against tKe 
 proprietor of the works, although laborer 
 employed by him may. 
 
 1. Sub-contractors not bound by stipulations 
 
 of contractor. 
 
 2. habarert on public works have a ckdm 
 
 against the company. 
 
 § 123 b. 1. A sub-contractor who has completed his work to the 
 acceptance of the engineers appointed to pass upon its sufficiency, 
 is entitled to recover of the contractor the sum retained upon his 
 
 ' Dimn r. North Miasouri Railw., 24 Mo. 493. 
 
 •446
 
 444 CONSTRUCTION OP RAILWAYS. CH. XV. 
 
 estimates, as security for the completion of the work, notwithstand- 
 ing any deficiency in the performance of the contractor, whereby 
 he is himself unable to recover such deficiency of the company.^ 
 
 2. By statute in many of the states, the workmen upon a railway, 
 although in the employment of the contractor, have a claim for any 
 arrears of wages, not exceeding a certain period, upon the com- 
 pany, and this provision has been held to extend equally * to work- 
 men employed by sub-contractors.^ And the provisions of this 
 statute being only a matter of general police, will be equally bind- 
 ing upon all railway companies, whether chartered before or after 
 the passing of the statute.^ 
 
 3. But the sub-contractor himself cannot pass by his immediate 
 employers and maintain an action against the principal proprietor 
 of the work.^ 
 
 > Blair v. Corby, 29 Mo. 480, 486. 
 
 " Grannahan ». Hannibal & St. Joseph Railw. Co., 30 Mo. 546. See also 
 McClusky V. Cromwell, 1 Kern. 693; Kent v. N. Y. Cent. Railw., 2 id. 628; 
 Peters ». St. Louis & Iron M. Railw. Co., 23 Mo. 107. 
 
 ' Branin ». Conn. & Pass. Railw. Co., 31 Vermont, 214; Lake Erie, &c. 
 Eailw. Co. V. Eckler, 13 Ind. 67. See Boswell v. Townsend, 37 Barb. 205. 
 *446
 
 §124. 
 
 EXCESSIVE TOLLS, FARE, AND FREIGHT. 
 
 445 
 
 ♦CHAPTER XVI. 
 
 EXCESSIVB TOLLS, FARE, AND FREIGHT. 
 
 1. English companies created sometimes, for 
 
 maintaining road only. 
 
 2. Where excessive tolls taken may be recoo- 
 
 eredback. 
 8. So also may excessive fare and freight. 
 4. By English statute, packed parcds must 
 
 be rated in mass. 
 6. Nature of railway traffic requires unity of 
 
 management and control. 
 
 6. Tolls upon railways almost unknoum here. 
 
 Fare and freight often limited. 
 
 7. Guaranty of certain projit on investment 
 
 lawful. 
 
 8. Restriction of freight to certain rate per 
 
 ton, extends to whole line. 
 
 9. Need not declare for tolls. 
 
 10. Mode of establishing and requisite proof. 
 
 11. A jyrovision in a railway charter for the 
 
 payment of a certain tonnage to the 
 state is only a mode of taxation. 
 
 12. Where a comjiany is allowed to take tolls 
 
 on sections of their road this makes each 
 
 section a distinct work. 
 18, 14. Discussion of cases in New York in 
 
 regard to the difference between fares 
 
 taken in the cars and at the stations. 
 15. Fares fixed by statute are payable in 
 
 legal tender notes. 
 
 § 124. 1. By the English statutes, companies are created who 
 own the railway stations, &c., merely, and who are empowered to 
 demand certain tolls of other persons, or companies, for the use of 
 such road. 
 
 2. In such cases, if illegal tolls are demanded and paid, the 
 excess may be recovered back, as money had and received, to the 
 use of the person paying it, upon the general principles of law 
 applicable to the subject of tolls, and the demand and receipt of 
 excessive tolls.* 
 
 Where the English statute ^ gave the company the right, where 
 any person should fail to pay the toll due upon any carriage, to 
 detain and sell the same, it was held incumbent upon the company 
 first to demand the sum due for toll, and that this was a condition 
 precedent to the right to sell under the statute.^ It was also con- 
 sidered here that a chargo for transporting carriages back is not a 
 toll, but something which may be compensated by special agree- 
 ment between the parties ; and if it be demanded as * part of the 
 
 ' Fearnley v. Morley, 6 B. & C. 26. See also this subject very extensively 
 examined in Centre Turnpike Co. r. Smith, 12 Vt. 212 ; post, § 143. Tolls are 
 a payment for passing along the line of the railway, and should be received with 
 reference to the number of carriages passing. Simpson v. Denison, 10 Hare, 
 61 ; 8. c. 13 Eng. L. & Eq. 369. » 8 and 9 Vict. c. 20, § 97. 
 
 » Field V. Newport, Ab. & Hereford Railw., 3 H. & N. 409. 
 
 •447,448
 
 446 EXCESSIVE TOLLS, FARE, AND FREIGHT. CH. XVI. 
 
 toll, being an illegal claim, as such, it vitiates the entire demand 
 and renders it illegal. 
 
 3. And the same rule has been extended to the recovery of 
 money overpaid upon an exorbitant and illegal demand of freight 
 or fare by railways. And the recovery may be had, although 
 the person paying it did not tender any specific sum, as due, and 
 although a portion of the overcharge was on account of what was 
 claimed to be due another company.* 
 
 4. 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 transacted 
 by the companies themselves. The very nature of the business 
 seems to require absolute unity in the management and control 
 of the traffic, and especially in this country, where a large pro- 
 portion of the roads are operated upon a single track, requiring 
 the utmost watchfulness and circumspection to avoid collisions. 
 We suppose the idea of operating a railway, with large traffic, 
 in England, upon a single track, would be regarded as too glar- 
 ing an absurdity to be seriously entertained, although they have 
 some unimportant single track railways. But in this country it is 
 rather the rule than the exception, and many of the continental 
 railways in Europe have only a single track. 
 
 6. The matter of tolls upon railways is a thing almost unknown 
 in tliis country, and very little practised anywhere at present. 
 But the English special acts, and the American railway 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. 
 
 * Parker v. The Bristol & Exeter Railw. Co., 6 Exch. 702 ; s. c. 6 Railw. C. 
 776. See also Snowden v. Davis, 1 Taunt. 359 ; Atlee v. Backhouse, 3 M. & 
 W. 633 ; and Spry p. Emperor, 6 M. & W. 639, where the general subject is 
 discussed. In Parker v. The Great Western Railw. Co., 3 Railw. C. 563, the 
 very point is decided. Crouch v. London & N. W. Railw. Co., 2 Car. & K. 
 789; Crouch v. Great Northern Railw., 25 Eng. L. & Eq. 449, 
 
 » Parker v. The Great Western Railw. Co., 11 C. B. 545 ; 8. c. 8 Eng. L. & 
 Eq. 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 Great Western Railw. Co., 11 C. B. 588; 8. C. 8 Eng. L. & 
 Eq. 447 ; Crouch v. Great Northern Railw. Co., 9 Exch. '556; 8. c. 25 Eng. L. 
 & Eq. 449.
 
 § 124. EXCESSIVE TOLLS, PARE, AND FREIGHT. 447 
 
 * 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 Rail- 
 way of freight to eight cents per ton per mile, extends to the whole 
 distance of the line of said company, although some of it is by 
 water, and includes the auxiliary roads through New Brunswick 
 and Trenton." 
 
 9. In an action to recover tolls due to a railway it is not neces- 
 sary to describe the dues as tolls. Any description which suflBi- 
 ciently identifies the nature of the service for which compensation 
 is demanded, is all that is required.^ 
 
 10. Freights upon a railway may be established by the directors, 
 or by their agents ; and their assent will be presumed, if nothing 
 appear to the contrary.^ 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.^ 
 
 11. A provision in the charter of a railway company that it shall 
 pay a certain tonnage to the state upon all freight transported by 
 it, is only a mode of taxation, and is not in conflict with any pro- 
 vision of the United States constitution securing to Congress the 
 exclusive power of regulating commerce with foreign nations and 
 among the states, and prohibiting the states, without the consent 
 of Congress, from levying duties on imports and exports. The com- 
 pany by accepting the charter containing such a provision, virtually 
 made an express contract to perform * it, and have no just cause of 
 complaint, treating the provision either as a law or a contract.® 
 
 • Great N. Railw. r. S. Yorkshire Railw., 9 Exch. 642. 
 
 ' Camden & Amboy Kailw. r. 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. Finnic r. Glasgow & Southwestern Railw. Co., 
 2 McQu. Ho. Lds. 177. 
 
 ' ^lanchester & Lawrence Railw. v. Fisk, 33 N. H. 297. 
 Pennsylvania Railw. v. The Commonwealth, 3 Grant^s Cas. 128. As to tbe 
 
 * 449, 460
 
 448 EXCESSIVE TOLLS, FARE, AND FREIGHT. CH. XVI. 
 
 12. And a provision in the charter of a railway company or 
 other road company, that it may demand tolls upon any particu- 
 lar portion of its road as soon as completed and in operation, 
 has been construed to create such portion a distinct public work, 
 not liable to be affected by failure to complete the remainder of 
 the work embraced in the same charter. But if the work is not 
 done in a proper manner, that will be a cause of forfeiture not 
 cured by the provision allowing tolls to be levied upon distinct 
 portions of the entire line.^^ But it is here left in doubt whether 
 such defect in construction will operate to forfeit the entire road 
 or only those sections where such defects occur. 
 
 13. We have discussed the question of railway companies mak- 
 ing a discrimination between fares paid in the cars and at 
 their stations.^^ Under the New York statute, which allows of 
 this discrimination only where the company keep their ticket of- 
 fice open, it was held the company could only make that discrimi- 
 nation in the cases specified in the statute, and not in other cases, 
 even if the passenger took the cars after midnight, the company 
 being required to keep the ticket office open only until 9 o'clock, 
 P. M.12 
 
 14. This question is still further discussed in a laiter case ; ^^ 
 but the questions turned chiefly upon the construction of the stat- 
 ute in force there, requiring the company to keep all their ticket 
 offices open one hour before the trains start, except between 9 
 P. M., and 5 A. M., when they are only required to do so at Utica 
 and other principal offices, and which also enacts, that if any per- 
 son shall, at any station where a ticket office is kept open, enter the 
 cars as a passenger, without having first purchased a ticket, it 
 shall be lawful for the company to require five cents extra fare of 
 such person ; and it was decided that the extra fare * could only be 
 demanded where the company kept a ticket office open. And it will 
 make no difference that the passenger entered the cars at an hour 
 when the ticket offices were required to be kept open, if such was 
 not the fact. It was also held, that the company, by so demanding 
 
 right to tax shares in a corporation for county purposes, see Lycoming County 
 V. Gamble, 47 Penn. St. 106. 
 
 '» The People v. J. & M. Plank-Road Co., 9 Mich. 285. 
 
 " Ante, § 28. 
 
 » Chase v. N. Y. Central Railw., 26 N. Y. 523. 
 
 » Nellis r. N. Y. Central RaUw., 30 N. Y. 505. 
 *461
 
 § 124. EXCESSIVE TOLLS, FARES, AND FREIGHT. 449 
 
 and receiving the five cents extra fare when not entitled to receive 
 it, became liable to the penalty of $50, under the statute, for tak- 
 ing more fare than allowed by law. 
 
 15. Where the company is restricted by statute to the charge of 
 two cents fare per mile, that will not justify their demanding fares 
 in gold, or its equivalent in currency. A fare is a debt, within the 
 terms of the act of Congress creating the legal tender notes, and is 
 payable in that currency, as much as any other debt.^* 
 
 " Lewia v. N. Y. Central Railw., 49 Barb. 330, 
 29
 
 450 
 
 LIABILITY FOB FIRES BY ENGINES. 
 
 CH. XVIL 
 
 ^CHAPTER XVII. 
 
 UABILITY FOB FIRES, COMMUNICATED BY COMPANY'S ENGINES. 
 
 1. Fact of fires hang communicated evidence 
 
 of negligence. 
 
 2. This was at one time questioned in Eng- 
 
 land. 
 
 3. Opinion of Tm^eX, Ch. J., upon this point. 
 
 4. English companies fed hound to use pre- 
 
 cautions against fire. 
 6. Rule of evidence, in this country, more fa- 
 vorable to companies. 
 
 6. But the company are liable for damage by 
 
 fire through want of care on their part. 
 
 7. One is not precluded from recovery, by 
 
 placing buildings in an exposed situa- 
 tion. 
 
 8. Where insurers pay damages on insured 
 
 property, may have action against com- 
 pany. 
 
 9. Where company made liable for injury 
 to all property, are allouxd to insure. 
 
 10. Construction of statutes making compa- 
 
 nies liable for loss by fires. 
 
 11. Extent of responsibility of insurer of 
 
 goods, to company. 
 
 12. Construction of statute as to engines 
 
 which do not consume smoke. 
 
 13. Construction of Massachusetts statute and 
 
 mode of trial. 
 
 14, 16. For what acts railway companies may 
 become responsible without any actual 
 negligence. 
 
 16. Company not responsible for fires result- 
 ing from other fires caused by them. 
 
 § 125. 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 prima facie evidence of negligence on the part of the company, 
 rendering it incumbent upon them to show that some precau- 
 tions 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 
 
 » Piggott V. Eastern Counties Railw. Co., 3 C. B. 229. 
 . • Aldridge v. Great Western Railw., 3 M. ife G. 616 ; 2 RaUw. C. 862. 
 ♦462
 
 § 125. LIABILITY FOR FlUES BY ENGINES. 451 
 
 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 tliem, 
 that they shall in the exercise of the rights and powers so con- 
 ferred upon them, adopt such precautions as may reasonably pre- 
 vent damage to the property of third persons, through or near 
 which their railway passes. The evidence in this case was abun- 
 dantly sufficient to show that the injury of which the plaintiff com- 
 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 
 negligence, and that the injury complained of was the result of 
 such negligence. There are many old authorities to sustain this 
 view ; for instance, the case of Mitchil v. Alestree, 1 Vent. 295, for 
 an injury resulting to the plaintiff" from the defendant's riding an 
 unruly horse in Lincoln's Inn Fields ; that of Bayntine v. Sharp, 
 1 Lutw. 90, for permitting a mad bull to be at large ; and that of 
 Smith V. Pelah, 2 Stra. 1264, for allowing a dog, known to be ac- 
 customed to bite, to go about unmuzzled. Tlie precautions sug- 
 gested 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. Puiglam, in the Year-Books, P. 2, H. 4, fol. 18, pi. 5, 
 comes near to this. There, the defendant was charged, in case, for 
 80 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 coniuetudinem regni nostri Anglice hao- 
 tenus obtentam, quod quilihet de eodem regno igncm suum salvd et 
 secure custodiat, 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 
 
 * Hammono. Southeastern Railw. Co., Maidstone Spring Assizes, 1845, before 
 Lord Dettman, Ch. J., for the destruction of farm buildings, including a thatched 
 bani, by sparks emitted from the defendants' engines in passing along the line of 
 their railway. There was evidence of the fire being so caused, and that defend- 
 ants' engines had no wire guard, or perforated plate, to prevent the escape of 
 the spark;*, although both were in use before that time. There was evidence in 
 this case that it was principally where the engines were overtasked that they were 
 liable to emit sparks. His Lordship directed the jury that it lay upon the plain- 
 
 •468
 
 452 LIABILITY FOR FIRES BY ENGINES. CH. XVII. 
 
 * to secure the engines against emitting sparks. In this last case 
 it was held proper evidence to go to the jury that the company's 
 engines had before, in passing along the line, emitted sparks, a 
 sufficient distance to have done the injury in the present case, 
 as a means of ascertaining the possibility of the building being 
 fired in the manner alleged. The testimony in this case showed, 
 that the danger of emitting sparks is very much increased by 
 overtasking the engine, and that it may be altogether avoided by 
 shutting ofif the steam in passing a place where there is danger 
 from sparks, or that the danger may be guarded against by 
 mechanical precautions. 
 
 The subject has been a great deal discussed in more recent 
 English cases.* In this case it was held by Bramwell B., at the 
 jury trial, and his views seem to have been sustained by the 
 court of exchequer, that the mere fact of the company using fire 
 as a means of locomotion, from which occasional fires will be com- 
 municated, even with the utmost care to prevent it, made them 
 responsible for damage caused thereby. But in the exchequer 
 chamber the judges seem to have been agreed, that the legisla- 
 ture having legalized this mode of locomotion, it could not sub- 
 ject the company, while pursuing a legal business, in a legal 
 mode, to damage thereby caused to others, unless through some 
 degree of neglect. If the company resort to all known precau- 
 tions against fire they are not liable. 
 
 6. But in this country it must be confessed the rule of the 
 liability of railways for damage done by fire communicated by 
 their engines, is more favorable to the companies than in 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.^ 
 
 tiff to establish negligence ; they were to consider that the plaintiff might have 
 saved all hazard by tiling his bam, 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 terra, with similar proof and the same re- 
 sult. " Walford on Railways, 183, 184, and notes. 
 
 « Vaughn r. Taff-Vale Railw., 3 H. & N. 743 ; 8. C. in Exchequer Chamber, 
 6 H. <fe N. 679 ; 8. c. 6 Jur. N. S. 899. See also The King v. Pease, 4 B. & 
 Ad. 30, upon which the last case is decided in Exchequer Chamber. In reference 
 to the decision in the Court of Exchequer, we said in our last edition it was 
 going further than any just principle would allow, unless- the defendant's business 
 is regarded as unlawful. Post, pi. 14, 15, and note. 
 
 * Rood V. N. Y. & Erie Railw., 18 Barb. 80 ; Lyman v. Boston & W. Railw., 
 • 464, 465
 
 § 125. LIABILITY FOR FIRES BY ENGINES. 458 
 
 But after other probable modes of accounting for the fire have 
 been disproved, the onus is on the company to prove that the 
 fire was not communicated by their engines of the train passing 
 at the time.® 
 
 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, skill, 
 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 cases, by 
 having placed his buildings or other property in an exposed posi- 
 tion. ^^^ 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. And 
 in a recent case,^^ it was held, in actions against railway 
 companies for damages caused by fires communicated by coals 
 upon the track, just after the passing of a train, that it was com- 
 
 4 Cush. 288 ; Burroughs r. The Housatonic Railw., 15 Conn. 124. In this case 
 the court compare the injury to that of fire communicated by sparks from the 
 chimney of a dwelling-house. Where the statute reijuires the company to show 
 that the fire occurred " without any negligence on their part," it was held suffi- 
 cient to show that their engines were properly constructed, in good order, and 
 had the usual apparatus for preventing the escape of sparks, and were managed 
 by discreet persons. B. & S. R. v. Woodrull', 4 Maryland, 242. 
 
 ' Sheldon v. Iludson River R., 4 Keriuui, 218. 
 
 ' Baltimore & Susquehannah Railw. v. Woodruff, 4 Maryland, 242. 
 
 * McCready v. The Railw. Co., 2 Strob. 368. Sheldon v. Hudson River 
 Railw., 4 Keman, 218 ; 8. c. 29 Barb. 226. 
 
 » 15 Conn. 124; Huyett ». Phil. & R. Railw., 23 Penn. St. 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. 
 
 "• Coop c. Champ. Trans. Co., 1 Denio, 91, 99, 101. 
 
 " Field V. New York Central Railw., 32 N. Y. 339.
 
 464 LIABILITY FOR FIRES BY ENGINES. CH. XVII. 
 
 petent to show that the company's locomotives, in passing over the 
 road on former occasions, dropped coals upon the track at or near 
 the same place ; and also, where it was in evidence that engines 
 properly constructed and in good order will not drop coals upon 
 the track, that the fact of defendants' engines doing so, is, in 
 itself, evidence of negligence, sufficient to charge the defendants, 
 thus imposing upon them the burden of showing that they were 
 not culpable. 
 
 8. And where the railway companies are made liable for all 
 damage in this way, as they are in Massachusetts, and some of 
 the other states, by statute, if one whose property is insured 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 decided 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.^^ 
 
 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 en- 
 gines, 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 ef- 
 fected ; and that for injuries of this kind to other property the 
 
 ** Hart V. The Western Railw., 13 Met. 99. And under such a statute, -where 
 the sparks from the engine communicated fire to a shop, and the wind drove the 
 sparks from the shop sixty feet across the street, and set fire to a house, it was 
 held that this second fire must be regarded as " communicated " by the company's 
 engine, within the statute. Id. But see j^ost, pi. 16. 
 
 In a contract of insurance in favor of a railway company, upon ' ' cars of all 
 descriptions" — " on the line of their road and in actual use," where, in answer 
 to the inquiry "where the property was situated," the company reply, "from 
 Boston to Fitchburg and branches this side of Fitchburg ; " and the cars of the 
 plaintiff's company loaded with ice, standing upon a track belonging to the 
 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 com- 
 pany were held liable. Fitchburg Railw. v. Charlestown Mutual Ins. Co., 7 
 Gray, 64. • 
 
 '^ Bumside e. Steamboat Company, 10, Rich. (S. C.) 113; Garrison r. 
 Memphis Ins. Co., 19 How. (U. S.) 312. 
 
 *456
 
 § 125. UABILITT FOR FIRES BY ENGINES. 455 
 
 company will only be responsible for negligence, unskilfulness, 
 or imprudence in running and conducting their engines.^* 
 
 * 10. And where by statute railway companies are made liable 
 for all damages caused to property so near the road as to be 
 exposed by fire from their engines, it was held to extend to 
 all property subject to insurance, and to include growing trees.^ 
 
 11. Many of the English railway companies make it a condition 
 that certain goods shall be insured and declared, or else they will 
 not be responsible for any loss which may occur in regard to them. 
 Such a condition seems reasonable, and it is so treated by the 
 English courts. But to be any protection to the companies it 
 must assume that the insurers are bound to make good any loss, 
 as well for the benefit of the assured as for that of the company, 
 and that the company are not responsible to the insurer unless 
 perhaps for neglect of duty as a faithful bailee. ^^ But to produce 
 this result, the policy should specify that the insurance is for the 
 benefit of the company as well as the owners. Strictly speaking 
 there is no privity, in case of insurance against fire, except as to 
 the immediate parties to the risk, and to give any other party not 
 named in the policy the benefit of the insurance is an equitable 
 extension, and one which the courts have declined to make some- 
 times, as between mortgagor and mortgagee." But where the 
 insurer pays the insurance, on the destruction of the property, it 
 has been held that he will be subrogated to any claim the party 
 insured might have against other parties,^^ unless that is excluded 
 by the terms of the policy. 
 
 12. The English statute^® subjects railway companies to a 
 penalty for each day they use an engine upon their roads so 
 constructed as not to consume its own smoke. But it has 
 been held that this only refers to the construction of the engine 
 when under proper management, and that the penalty is not in- 
 
 ^* Chapman v. Atlantic & St. Lawrence Railw., 37 Maine, 92. This is an 
 action for the loss of cedar posts, piled upon land adjoining the railway, by the 
 consent of the owner of the land, and set on fire by a spark from the defendants' 
 engine, and they were held not liable under the statute. 
 
 " Pratt V. Atlantic & St. Lawrence Railw., 42 Maine, 579. 
 
 »• Peck ». North Staffordshire Railw., ElUs B. & EUis, 956. 
 
 " Columbia Insurance Co. c. Lawrence, 10 Pet. 607, 612, per Storj-, J. ; 
 White V. Brown, 2 Cush. 412. 
 
 " Insurance Co. v. Woodruff, 2 Dutcher, 641; ante pi. 8. n. 11, 12. 
 
 » 8 «& 9 Vic. ch. 20, § 114. 
 
 •467
 
 456 LIABILITY FOR FIRES BY ENGINES. CH. XVII. 
 
 curred by an engine emitting smoke instead of consuming it in 
 consequence of bad management and not of defective construc- 
 tion .20 
 
 13. The Massachusetts statute, making railway companies re- 
 sponsible for loss by fire communicated by their engines, and 
 giving them an insurable interest in the property exposed to fire 
 in that mode, was held to embrace personal property, although the 
 company had no knowledge or reasonable cause to believe that 
 such property was situated where it might be so injured.^i And 
 in the trial of an action for such injury, where it was claimed that 
 no burning sparks could reach far enough to communicate the fire, 
 it is competent to show that the same engine, * using similar fuel, 
 emitted sparks reaching a greater distance.^^ And where it was 
 attempted to show that similar engines did not on other roads 
 emit sparks reaching that distance, it is competent to prove that 
 such engines on other roads have emitted sparks which did com- 
 municate fire at that distance. ^^ In such an action, where the 
 question of plaintiff's want of due care depended upon the consid- 
 eration of the dryness of the season, the strength and direction of 
 the wind, and the condition of the plaintiff's buildings, it is proper 
 to submit to the jury, under general instructions, whether the 
 plaintitf exercised due care or not, and if this is done no exception 
 lies to a refusal to instruct the jury that " if the season was dry, 
 and the wind was from the railway and strong, and the plaintiff 
 knew those facts and left a door of a shed open towards the rail- 
 way, and combustible materials within the shed, and that con- 
 tributed to the fire, it is evidence of negligence on his part, which 
 should preclude his recovery." ^^ 
 
 14. A question of considerable practical importance has recently 
 been determined by the Court of Exchequer Chamber in England, 
 which may be thought sometimes to have a bearing upon the con- 
 duct of railways. The proposition there maintained is, that if a 
 person bring on his own land any thing, which, if it escape, may 
 prove injurious to his neighbor's property, such as a large body of 
 water, he is liable to make compensation for any injury that may 
 
 *** Manchester, Sheffield, & Lincolnshire Railw. v. Wood, 29 Law J. 29 ; 8. c. 
 1 L. T. N. S. 31 ; 8. c. 2 Bl. & El. 344. 
 
 *' Ross V. B6ston & Worcester Railw., 6 Allen, 87. The company should use 
 precautions to prevent fire escaping from their engines or they will be respon- 
 sible for consequences. Bass v. Chicago, Bur. & Quincy Railw. Co. 28 111. 9. 
 ♦ 458
 
 § 125. UABILITT FOR FIRES BY ENGINES. 467 
 
 accrue from its escape out of his land ; and it is no excuse, if it do 
 escape and cause damage to his neighbor, that tlie injury was 
 caused without any default or negligence on his part.'^ 
 
 " Fletcher v. Rylands, Law Rep. 1 Exch. 265 ; 12 Jur. N. S. 603 ; 8. c. 11 id. 
 714. The learned judge, in giving the opinion, said : " It appears from the state- 
 ment in the case that the plaintiff was damaged by his property being flooded by 
 water, which, without any fault on his part, broke out of a reservoir constructed on 
 the defendants' land by the defendants' orders, and maintained by the defendants. 
 
 " It appears from the statement in the twelfth paragraph of the case, that the 
 coal under the defendants' land had, at some remote period, been worked out, 
 but that this was unknown at the time when the defendants gave directions to 
 erect the reservoir ; the water in the reservoir would not have escaped from the 
 defendants' land, and no mischief would have been done to the plaintiff but for 
 this latent defect in the defendants' subsoil ; and it further appears, from the 
 seventeenth and eighteenth paragraphs, that the defendants selected competent 
 engineers and contractors to make their reservoir, and themselves personally con- 
 tinued in total ignorance of what we have called the latent defect in the subsoil, 
 but that those persons employed by them, in the course of the work, became 
 aware of the existence of ancient shafts filled up with soil, though they did not 
 know or suspect that they were shafts communicating with old workings. It is 
 found that the defendants personally were free from all blame, but that, in fact, 
 proper care and skill was not used by the persons employed by them to provide 
 for the sufficiency of the reservoir in reference to these shafts. The consequence 
 was, that when the reservoir was filled, the water burst into the shafts and flowed 
 down through them into the old workings, and thence into the plaintiff^s mine, 
 and there did the mischief. 
 
 "The plaintiff, though free from all blame on his part, must bear the loss, 
 unless he can establish that it was the conse(iuence of some default for which the 
 defendants are responsible. The question of law, therefore, arises, what is the 
 obligation which the law casts upon a person who, like the defendants, lawfully 
 brings on his own land something which, though harmless whilst it remains there, 
 will naturally do mischief if it escape out of his land ? It is agreed on all hands, 
 that he must take care to keep in that which he has brought on the land and 
 keeps there, in order that it may not escape and damage his neighbors ; but the 
 question arises, whether the duty which the law casts upon him under such cir- 
 cumstances is an absolute duty to keep it in at his peril, or is, as the majority of 
 the CoUrt of Exchequer have thought, merely a duty to take all reasonable and 
 prudent precautions in order to keep it in, and no more. If the first be the law, 
 the person who has brought on his land and kept there something dangerous, and 
 failed to keep it in, is responsible for all the natural consequences of its escape. 
 If the second be the limit of his duty, he would not be answerable except on 
 proof of negligence, and consequently would not be answerable for escape 
 arising from any latent defect which ordinarj' prudence and skill could not 
 detect. 
 
 ♦' Supposing the second to be the correct view of the law, a further question 
 arises subsidiary to the first, namely, whether the defendants are not so far iden- 
 tified with the contractors, whom they employed, as to be responsible for the
 
 468 LIABILITY FOR FIRES BY ENGINES. CH. XVH. 
 
 * 15. Tlie carefully considered judgment of the full court of 
 Exchequer Chamber by Blackburn, J., contains so many points 
 
 consequences of their want of care and skill in making the reservoir in fact 
 insufficient with reference to the old shails, of the existence of which they were 
 aware, though they had not ascertained where the shafts led to. 
 
 " We think that the rule of law is, that the person who, for his own purposes, 
 brings on his land and collects and keeps there any thing likely to do mischief if 
 it escapes, must keep it at his peril, and that if he does not do so, he is prima 
 facie answerable for all the damage which is the natural consequence of its 
 escape. He can excuse himself by showing that the escape was the consequence 
 of vis major, or the act of God ; but, as nothing of the sort exists here, it is un- 
 necessary to inquire what excuse would be sufficient. The general rule, as above 
 stated, seems on principle just. The person, whose grass or com is eaten down 
 by the escaping cattle of his neighbor, or whose mine is flooded by the water 
 from his neighbor's reservoir, or whose cellar is invaded by the filth of his neigh- 
 bor's privy, or whose habitation is made unhealthy by the fumes and noisome 
 vapors of his neighbor's alkali works, is damnified without any fault of his own ; 
 and it seems but reasonable and just that the neighbor, who has brought some- 
 thing on his own property which was not naturally there, harmless to others so 
 long as it is confined to his own property, but which he knows to be mischievous 
 if it gets on his neighbor's, should be obliged to make good the damage which 
 ensues if he does not succeed in confining it to his own property. But for his 
 act in bringing it there no mischief could have accrued, and it seems but just 
 that he should at his peril keep it there, so that no mischief may accrue, or 
 answer for the natural and anticipated consequences. And, upon authority, this 
 we think is established to be the law, whether the things so brought be beasts, 
 or water, or filth, or stenches. 
 
 " The case that has most commonly occurred, and which is most frequently to 
 be found in the books, is as to the obligation of the owner of cattle which he has 
 brought on his land, to prevent their escaping and doing mischief. The law as 
 to them seems to be perfectly settled from early times. The owner must keep 
 them in at his peril, or he will be answerable for the natural consequences of their 
 escape ; that is, with regard to tame beasts, in the grass they eat and trample 
 upon, though not for any injury to the person of others, for our ancestors have 
 settled, that it is not the general nature of horses to kick or bulls to gore ; but, 
 if the owner knows that the beast has a vicious propensity to attack man, he will 
 be answerable for that too. 
 
 " As early as the Year Book, 20 Edw. 4, 11, pi. 10, Brian, C. J., lays down 
 the doctrine in terms verj* much resembling those used by Lord Ilolt, in Tenant 
 r. Goldwin, which will be referred to afterwards. It was trespass with cattle. 
 Plea, that the defendant's land adjoined a place where the defendant had com- 
 mon ; that the cattle strayed from the common, and the defendant drove them 
 back as soon as he could. It was held a bad plea. Brian, C. J., says : ' It be- 
 hoves him to use his common so that he shall do no hurt to another man ; and if 
 the land on which he has common be not inclosed, it behoves him to keep the 
 beast in the common, and out of the land of any other.' He adds, when it 
 waa proposed to amend, by pleading that they were driven out of the .com- 
 »469
 
 § 125. LIABILITY FOR HRES BY ENGINES. 459 
 
 * bearing upon questions which are liable to arise in the course of 
 tlie construction and operation of railways, that we have deemed 
 
 mon by dogs, that although that might give a right of action against the 
 master of the dogs, it was no defence to the action of trespass by the per- 
 son on whose^land the cattle went. In the recent case of Cox r. Burbridge, 
 WiUianu, J., says : • I apprehend the general rule of law to be perfectly 
 plain. If I am the owner of an animal, in which, by law, the right of 
 property can exist, I am bound to take care that it does not stray into the 
 land of my neighbor ; and I am liable for any trespass it may commit, and for 
 the ordinarj- consequences of the trespass. Whether or not the escape of the 
 animal is due to my negligence is altogether immaterial.' So in the case of May 
 r. Burdett (9 Q. B. 101 ; 10 Jur. 692), the court, after an elaborate examination 
 of the old precedents and authorities, came to the conclusion, that " a person 
 keeping a mischievous animal, with knowledge of its propensities, is bound to 
 keep it secure at his peril." And Lord Hale (1 Hale's P. C. 430) states, that 
 where one keeps a beast, knowing its nature is such that the natural consequence 
 of its being loose is, that it will harm men, the owner must at his peril keep him 
 up safe from doing hurt ; for though he use his diligence to keep it up, if it 
 escape and do harm, the owner is liable to answer damages ; though, as he pro- 
 ceeds to show, he will not be liable criminally, without proof of want of care. 
 In these latter authorities, the point under consideration was damage to the 
 person, and what was decided was, that where it was known that hurt to the 
 person was the natural consequence of the animal being loose, the owner should 
 be responsible in damages for such hurt ; though where it was not known to be 
 so the owner was not responsible for such damages ; but where the damage is, 
 like eating grass, or other ordinary ingredients in damage feasant, the natural 
 consequence of the escape, the rule as to keeping in the animal is the same. In 
 Com. Dig. ' Droit,' M. 2, it is said : 'That if the owner of 200 acres, in a com- 
 mon moor, enfeoffs B. of 60 acres, B. ought to inclose, at his peril, to prevent 
 damage by his cattle to the other 160 acres. For if his cattle escape thither, 
 they may be distrained damage feasant. So, the owner of the 150 acres ought 
 to prevent his cattle from doing damage to the 60 acres at his peril.' The 
 authority cited is Dy. 872 6., where the decision was, that the catth* might be 
 distrained ; the inference from that decision, that the owner was bound to keep 
 in his cattle at his peril, is, we think, legitimate ; and we have the high authority 
 of Coniyns for saying that such is the law. In the note to F, N. B. 128, which 
 is attributed to Lord Hale, it is said : ♦ If A. & B. have lands adjoining, where 
 there is no inclosure, the one shall have trespass against the other on an escape 
 of their beasts respectively (Dy. 372, Rastal Ent. 621, 20 Edw. 4, 10), although 
 wild dogs, &c. drive the cattle of the one into the lands of the other.' No case 
 is known to us on which, in replevin, it has ever been attempted to plead in bar 
 to an avowry for distress damage feasant, that the cattle had escaped without any 
 negligence on the part of the plaintiff; and surely, if that would have been 
 a good plea in bar, the facts must often have been such as would have supported 
 it. The authorities, and the absence of any authority to the contrar}*, justify 
 Williams, J., in saying, as he does, in Cox p. Bnrbidge, that the law is clear, 
 that in actions for damage occasioned by animals that have not been kept in 
 
 •460
 
 460 LIABILITY FOB FIRES BY ENGIKES. CH. XVII. 
 
 * it might afford valuable matter for the profession.^ The opinion 
 will also point out very clearly for what matters railway * companies 
 
 by their owners, it is quite immaterial whether the escape is by negligence or 
 not. 
 
 "As has been already said, there does not appear to be any difference in 
 principle between the extent of the duty cast on him who brings cattle on his 
 land to keep them in, and the extent of the duty imposed on him who brings 
 on his land water, filth, or stenches, or any other thing which will, if it escape, 
 naturally do damage, to prevent their escaping and injuring his neighbor ; and 
 the case of Tenant v. Goldwin is an express authority that the duty is the same, 
 and is to keep them in at his peril. 
 
 " As Martin, B., in his judgment below, appears not to have understood the 
 case in the same manner as we do, it is proper to examine it in some detail. It 
 was a motion in arrest of judgment after judgment by default, and therefore all 
 that was well pleaded in the declaration was admitted to be true. The decla^ 
 ration is set out at full length in the report in 6 Mod. 311. It alleged that the 
 plaintiff had a cellar which lay contiguous to a messuage of the defendant, ' and 
 used (solebat) to be separated, and fenced from a privy house of office, parcel of 
 the said messuage of the defendant, by a thick and close wall, which belongs 
 to the said messuage of the defendant, and by the defendant, of right, ought to 
 have been repaired (jure debuit reparari),^ yet he did not repair it, and, for 
 want of repair, filth flowed into the plaintiff's cellar. 
 
 '* The case is reported by Salkdd, who argued it, in 6 Mod., and by Lord 
 Baymond, whose report is the fullest. The objection taken was, that there was 
 nothing to show that the defendant was under any obligation to repair the wall, — 
 that, it was said, not being a charge of common right, and the allegation, that 
 the wall de Jure debuit reparari by the defendant, being an inference of law 
 which did not arise from the facts alleged. Salkdd argued, that this general 
 mode of stating the right was sufficient in a declaration, and also that the duty 
 alleged did of common right restilt from the facts stated. It is not now material 
 to inquire whether he was or was not right on the pleading point. All three 
 reports concur in saying that Lord Holt, during the argument, intimated an 
 opinion against him on that, but that after consideration the court gave judgment 
 for him on the second ground. 
 
 " In the report 6 Mod., it was stated, ' And at another day, per totam curiam, 
 the declaration is good ; for there is a sufficient cause of action appearing on it, 
 but not upon the word *' solebat.'''' If the defendant has a house of office in- 
 closed with a wall which is his, he is of common right bound to use it so as not 
 to annoy another. . . . The reason here is, that one must use his own, so as 
 thereby not to hurt another ; and, as of common right one is bound to keep 
 his cattle from trespassing on his neighbor, so he is bound to use any thing, 
 that is his, so as not to hurt another by such user. . . . Suppose one sells a 
 piece of pasture lying open to another piece of pasture which the vendor has, 
 the vendee is bound to keep his cattle from running into the vendor's piece ; so 
 of dung or any thing else.' There is an evident allusion to the same case 
 in Dyer, as is referred to in Com. Dig., ' Droit ' (M. 2). Lord Baymond, in his 
 report (2 Ld. Raym. 1089), says, "■ The last day of term, HoU, C. J., delivered 
 • 461, 462
 
 § 125. LIABILITY FOR FIRES BY ENGINES. 461 
 
 and others are or are not to be held responsible, if there is no 
 actual negligence on their part. 
 
 the opinion of the court that the declaration was sufficient. He said that upon 
 the face of the declaration there appeared a sufficient cause of action to en- 
 title the plaintiff to have his judgment ; that they did not go upon the solehat or 
 the^ure debuit reparari, as if it were enough to say that tlie plaintiff had a house 
 and the defendant had a wall, and he ought to repair the wall ; but if the defend- 
 ant has a bouse of office, and the wall which separates the house of office from 
 the plaintiff^s house is all the defendant's, he is of common right bound to 
 repair it. . . . The reason of this case is upon this account, that every one must 
 so use * his own as not to do damage to another ; and as every man is bound so 
 to look to his cattle as to keep them out of his neighbor's ground, so that he may 
 receive no damage ; so he must keep in the filth of his house of office, so that 
 it may not flow in upon and damnify his neighbor. . . . So if a man has two 
 pieces of pasture which lie open to one another, and sells one piece, the vendee 
 must keep in his cattle, so as they shall not trespass upon the vendor. So a man 
 shall not lay bis dung so high as to damage his neighbor ; and the reason of these 
 cases is, because every man must so use his own as not to damnify another.? 
 Salkeld, who bad been counsel in the case, reports the judgment much more con- 
 cisely, but to the same effect. He says, ' The reason he gave for his judgment 
 was because it was the defendant's wall and the defendant's filth ; and he was 
 bound of common right to keep bis wall so as bis filth might not damnify his 
 neighbor; and that it was a trespass on his neighbor, as if his beast should 
 escape, or one should make a great heap on the border of his ground, and it 
 should tumble and roll down upon his neighbor's, ... be must repair the wall 
 of his house of office ; for be whose dirt it is must keep it that it may not tres- 
 pass.' It is worth noticing how completely the reason of Lord Holt corresponds 
 with that of Brian, C. J., in the cases already cited in 20 Edw. 4. Martin, B., 
 in the court below, says, that he thinks this was a case without difficulty, because 
 the defendant had, by letting judgment go by default, admitted his liability to 
 repair the wall, and that be cannot see bow it is an authority for any case in 
 which no such liability is admitted. But a perusal of the report will show that 
 it was because Lord Holt and his colleagues thought (no matter for this purpose 
 whether rightly or wrongly) that the liability was not admitted that they took so 
 much trouble to consider what liability the law would raise from the admitted 
 facts ; and it does, therefore, seem to us to be a very weighty authority in sup- 
 port of the position, that he who brings and keeps any thing, no matter whether 
 beasts, or filth, or clean water, or a heap of earth, or dung, on his premises, 
 must at his peril prevent it from getting on his neighbor's, or make good all the 
 damage which is the natural consequence of its doing so. No case has been 
 found in which the question as to the liability for noxious vapors escaping from 
 a man's work by inevitable accident has been discussed, but the following case 
 will illustrate it. Some years ago several actions were brought against the 
 occupiers of some alkali works at Liverpool, for the damage alleged to be caused 
 by the chlorine fumes of their works. The defendants proved that they, at great 
 expense, erected contrivances by which the fumes of chlorine were condensed, 
 and sold as muriatic acid ; and they called a great body of scientific evidence to 
 
 •463
 
 462 LIABILITY FOB FIRES BY ENGINES. CH. XVII. 
 
 16. A question of considerable practical importance has been 
 somewhat discussed, in regard to the extent of the responsibility 
 
 prove that this apparatus was so perfect that no fumes possibly could escape 
 from the defendant's chimneys. On this evidence, it was pressed upon the jury 
 that the plaintifiTs damage must have been due to some of the numerous other 
 chimneys in the neighborhood ; the jurj-, however, being satisfied that the mis- 
 chief was occasioned by chlorine, drew the conclusion that it had escaped from 
 the defendants' works somehow, and in each case found for the plaintiflF. No 
 attempt was made to disturb these verdicts, on the ground that the defendants 
 had taken every precaution which prudence or skill could suggest to keep those 
 fumes in, and that they could not be responsible unless negligence were shown ; 
 yet if the * law be as laid down by the majority of the Court of Exchequer, it 
 would have been a very obvious defence. If it had been raised, the answer 
 would probably have been that the uniform course of pleading in actions on such 
 nuisances is to say that the defendant caused the noisome vapors to arise on his 
 premises, and suffered them to come on the plaintiff's, without stating there was 
 any want of care or skill in the defendant ; and that the case of Tenant v. Gold- 
 win showed that this was founded on the general rule of law, that he whose stuff 
 it is must keep it that it may not trespass. There is no difference in this respect 
 between chlorine and water; both will, if they escape, do damage, — the one by 
 scorching and the other by drowning ; and he who brings them there, must at his 
 peril see that they do not escape and do that mischief. What is said by Gihbs, 
 C. J., in Sutton v. Clarke, though not necessary for the decision of the case, 
 shows that that very learned judge took the same view of the law that was taken 
 by Lord Holt. But it was further said by MaHin, B., that when damage is done 
 to personal property, or even to the person, by collision, either upon land or at 
 sea, there must be negligence in the party doing the damage, to render him 
 legally responsible, and this is no doubt true ; and, as was pointed out by Mr. 
 Mellish during his argument before us, this is not confined to cases of collision, 
 for there are many cases in which proof of negligence is essential ; as, for 
 instance, where an unruly horse gets on the footpath of a public street, and kicks 
 a passenger (Hammack v. White) ; or where a person in a dock is struck by the 
 falling of a bale of cotton which the defendants' servants are lowering (Scott v. 
 The London Dock Company), and many other similar cases may be found. 
 But we think these cases distinguishable from the present. Traffic on the high- 
 ways, whether by land or sea, cannot be conducted without exposing those whose 
 persons or property are near it to some inevitable risk ; and that being so, those 
 who go on the highway, or have their property adjacent to it, may be held to do 
 so subject to their taking upon themselves the risk of suffering from that inevi- 
 table danger ; and persons who, by the license of the owner, pass near to ware- 
 houses where goods are being raised or lowered, certainly do so subject to the 
 inevitable risk of accident. In neither case, therefore, can they recover without 
 proof of want of care or skill occasioning the accident ; and it is believed, that 
 all the cases in which inevitable accident has been held an excuse for what primd 
 facie was a trespass, can be explained on the same p;rinciple ; viz., that the 
 circumstances were such as to show that the plaintiff had taken the risk upon 
 himself. But there is no ground for saying that the plaintiff here took upon him- 
 ♦464
 
 § 125. LIABILITY FOR FIRES BY ENGINES. 463 
 
 of railway companies, or others, for fires communicated by the 
 accidental extension of other fires, for which the party, through 
 negligence or otherwise, is confessedly responsible. Upon prin- 
 ciple, it would seem, that one who is the unintentional, but careless, 
 cause of setting a fire, should not be held responsible for damage 
 beyond the immediate, direct, and natural consequences of the 
 original fire. There are numerous disastrous consequences re- 
 sulting sometimes from setting fires, but which are so rare as not 
 to be fairly reckoned in the category of natural or ordinary results, 
 by way of cause and effect. A fireman may be fatally injured and 
 a family beggared, or a horse naay be frightened, and the fathers 
 of more than one dependent family killed, or crippled for life, in 
 consequence. But no actions have ever been instituted for any 
 such remote damages. And although some of the cases bear a 
 considerably close analogy to these in principle, it must, we think, 
 be treated as the prevailing rule of law that such remote and con- 
 sequential damages will not form the ground of an action in the 
 courts. Tims in Ryan v. New York Central Railway,^ it was held 
 the defendants were not responsible for the destruction of the 
 plaintiff's house, distant one hundred and thirty feet from their 
 shed, which had been set on fire through their own negligent con- 
 duct in regard to one of their engines, or by reason of some defect 
 in the engine, from which the fire had communicated to the 
 plaintiff's house. 
 
 self any risk arising from the uses to which the defendants should choose to 
 apply their land. He neither knew what there might be, nor could he in any 
 way control the defendants or hinder their building what reservoirs they liked, 
 and storing up in them what water they pleased, so long as the defendants suc- 
 ceeded in preventing the water which they there brought from interfering with 
 the plaintiflTs property. 
 
 " The view which we take of the first point renders it unnecessarj' to consider 
 whether the defendants would or would not be responsible for the want of care 
 and skill in the persons employed by them, under the circumstances stated in 
 this case. 
 
 "We are of opinion that the plaintiff is entitled to recover; but as we have 
 not heard any argument as to the amount, we are not able to give judgment for 
 what damages. The parties, probably, will empower their counsel to agree on 
 the amount of damages ; should they differ on the principle, the case may be 
 mentioned again. Judgment for the plaintiff." 
 
 « 86 N. Y. 210. But see Trask r. Hartford & New H. Railw., 2 AUen, 
 331.
 
 464 
 
 INJURIES TO DOMESTIC ANIMALS. 
 
 CH. XVIII. 
 
 ♦CHAPTER XVIII. 
 
 INJURIES TO DOMESTIC ANIMALS. 
 
 1. Company not liable unless bound to keep 
 
 the animals off the track. 
 
 2. Some cases go even Jiirther, in favor of 
 
 the company. 
 
 3. Not liable where the animals toere vnvng- 
 
 fuUy abroad. 
 
 4. Not liable for injury to animals, on land 
 
 where company not bound to fence. 
 
 5. Where company bound to fence are prirn^ 
 
 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- 
 
 tle to go at large near a railway. 
 
 9. Company not liable in such case, unless 
 
 they might have avoided the injury. 
 
 10. Where company are required to keep 
 
 gates closed, are liable to any party in- 
 jured by omission. 
 
 11. Opinion of Gibson, Justice, on this sub- 
 
 ject. 
 
 12. 17. Not liable for consequences of the 
 
 proper use of their engines. 
 
 13. Questions of negligence ordinarily to be 
 
 determined by jury. 
 
 14. But this is true only where the testimony 
 
 leaves the question doubtful. 
 
 16. Actions may be maintained somdimes, for 
 remote consequences of negligence. 
 
 16-18. Especially where a statutory duty is 
 neglected by company. 
 
 19. The question of negligence is one for the 
 
 Jury. 
 
 20. One who suffers an animal to go at large 
 
 can only recover for gross neglect. 
 
 21. Testimony of experts receivable as to 
 
 management of engines. 
 
 22. One who suffers cattle to go at large must 
 
 take the risk, 
 
 23. The company owe a primary duty to pas- 
 
 sengers, Sfc. 
 
 24. In Maryland company liable unless for 
 
 unavoidable accident. 
 
 25. In Indiana common-law rule prevails. 
 
 26. In Missouri, modified by statute. 
 
 27. In California cattle may lawfully be suf- 
 
 fered to go at large. 
 
 28. 29. Abstract of late cases in Illinois. 
 
 30. The weight of evidence and of presump- 
 
 tion. 
 
 31. Compajiy not liable except for negli- 
 
 gence. 
 82. Company must use all statutory and other 
 
 precautions. 
 33. Not competent to prove negligence of the 
 
 same kind on other occasions. 
 
 § 126. 1. The decisions upon the subject of injuries to domestic 
 animals by railways are very numerous, but may be reduced to a 
 comparatively few principles. Where the owner of the animals is 
 unable to show that as against the railway they were properly 
 upon the track, or, in other words, that it was through the fault of 
 the company that they were enabled to come upon * the road, the 
 company are not in general liable, unless, after they discovered 
 the animals, they might, by the exercise of proper care and pru- 
 dence have prevented the injury. 
 * 466, 466
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 465 
 
 The fact of killing an animal of value by the company's engines, 
 \a not privia facie evidence of negligence on their part.^ A dis- 
 tinction is here taken by the court between injuries to permanent 
 property situated along the line of the railway, as injury to build- 
 ings by fires communicated by the company's engines, and damage 
 to cattle which are constantly changing place, there being more 
 evidence of fault on the part of the company from the mere occur- 
 rence of the injury in the former than in the latter case.* 
 
 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 origi- 
 nally in fault, and the animals were exposed to the injury through 
 the fault of the owner, mediately or immediately. 
 
 3. For instance, if the animal escape into the highway, and 
 thus get upon the track of the railway where it intersects with 
 the highway, and is killed, the company are not liable.^ And if 
 the animals are trespassing upon a field, and stray from the field, 
 upon the track of the railway, through defect of fences, which the 
 
 • company are bound to maintain, as against the owner of the field, 
 and are killed, the company are not liable, either at common law 
 or under the English statute,* 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 opcupiers of the adjoining 
 close.^ 
 
 » Scott V. W. & R. Railw., 4 Jones Law, 432. 
 
 ' See note 1, and also Ind. & Cincin. Railw. r. Caldwell, 9 Ind. 397. 
 
 ' Towns V. Cheshire Railw., 1 Foster, 363; Sharrod v. London & N. W. 
 Railw., 4 Exch. 680. Halloran r. New Y. «fe Harlem Railw., 2 E. D. Smith, 
 257. In Maryland it was held that a statute for the protection of animals and 
 stock did not include negro slaves. Scaggs v. Bait. &Wa8h. Railw., 10 Md. 268. 
 
 * 8 & 9 Vict. ch. 20, § 68. 
 
 » Ricketts r. The East and West India Docks and Birm. J. Railw., 12 C. B. 
 160 ; s. c. 12 Eng. L. & Eq. 620. The same point is ruled in the following cases. 
 Jackson r. Rut. & Bur. Railw., 25 Vt. 150. See also cases referred to in 
 §§ 166, 167. And it was held, Man. Sh. & Lincolnshire Railw. r. Wallis, 14 
 C. B. 248; 8. c. 25 Eng. L. & Eq. 373, that a railway are not bound to fence 
 against cattle straying upon a highway running along the railway, and tliat they 
 are not liable for an injury sustained 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 Railw., 13 Barb. 594. But in the Midland Railw. r. Daykin, 
 
 30
 
 466 INJURIES TO DOMESTIC ANIMALS. CH. XVIII. 
 
 . * 4. So where the statute requires railways to fence their road, 
 where the same passes through " enclosed or improved lands," if 
 injury happen to another's cattle through want of fences, upon 
 common or unenclosed land, it is not legally imputable to the 
 negligence of the company.'' 
 
 5. But if the railway are bound to maintain fences, as against 
 the owner of the cattle, and they come upon the road through 
 defect of such fences, and are injured, the company are, in general, 
 liable without further proof of negligence." 
 
 * 6. But where the statute imposes the duty of building fence 
 upon the railway, they may lawfully stipulate with the land-owners 
 to maintain it, and if such land-owner suffer his cattle to be where 
 they may come upon the railway without building the fence, he 
 
 17 C. B. 126 ; s. c. 33 Eng. L. & Eq. 193, it was held, that where a colt 
 strayed from a field, upon a public road, abutting upon which was a yard not 
 fenced from a railway, the gate of which was, through the neglect of the com- 
 pany'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 lia- . 
 ble. Jervis, Ch. J., says : " I can see no room to doubt that that was a lawful 
 use of the highway." But in Ellis v. London & Southwestern Railw., 2 H. & N. 
 424, where a railway company constructed their road across a public footway, in 
 such a manner that no security against injury to passers on the way was afforded 
 within the provisions of the English statute, 8 & 9 Vict. ch. 20, §§ 46, 61, 68, 
 by means of a bridge or stile, but the company erected high gates which 
 obstructed the footway and gave the key to plaintiff's servant, which had been 
 lost and the gates left open, without notice to the railway company, whereby 
 the plaintiff's colts escaped from his lands adjoining, and came upon the railway 
 and were killed by a passing train, the jury having found that the plaintiff, by 
 his own negligence and that of his servants had contributed to the accident, it 
 was held he could not reeover, notwithstanding the omission of duty by the com- 
 pany. 
 
 * Perkins v. Eastern Railw. and the Boston & M. Railw., 29 Maine, 307. 
 And if by the common usage cattle have the right to run upon unenclosed land, 
 the owner incurs the risk of all accidents. Knight v. Abert, 6 Penn. St. 472 ; Phil. 
 & Germ. Railw. v. Wilt, 4 Whart. 143. 
 
 ^ Suydam v. Moore, 8 Barb. 358 ; Waldron v. Rensselaer & Sar. Railw., 8 
 Barb. 390; Horn v. Atlantic & St. Lawrence Railw., 35 N. H. 169; s. c. 36 
 id. 440; Smith r. Eastern Railw., 35 N. H. 356. But where the cattle come 
 upon the railway, at a point not proper to be fenced, as at the intersection of a 
 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." 402; Lafayette & Ind. 
 Railw. V. Shriner, 6 Ind. 141. 
 * 467, 468
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 467 
 
 cannot recover of the company.^ So, too, if the plaintiff leave 
 down the bars at a cattle crossing, whereby his cattle go upon the 
 railway and are killed, he cannot recover.® 
 
 7. And where the cattle go upon a railway through defect of 
 fences, which the owner is bound to maintain, and suffer damage, 
 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 trespassers,^^ 
 and the owner the cause of the injury sustained, unless the railway 
 might have prevented it. But where there was no reasonable 
 ground to suppose that the portion of fence which it was the 
 duty of the company to build would have protected the animals., 
 and the owner was shown to have been guilty of negligence in not 
 taking care of them, it was * held there could be no recovery, 
 since his negligence was the direct and proximate cause of the 
 injury. ^^ 
 
 8. And it was held to be gross negligence for the owner of cattle 
 to suflfer them to go at large, in the vicinity of a railway, whether 
 the same was fenced or not.^ And it will impose no additional 
 
 • Tower r. Prov. & Wor. Railw., 2 Rhode Island, 404, 411 ; Clark v. Sy. 
 & Utica Railw., 11 Barb. 112 ; C. H. & D. Railw. r. Waterson, 4 Ohio N. S. 
 424. So, also, where the duty of maintaining the fences along the railway is 
 upon the land-owner, and it is burned down by fire, communicated by the com- 
 pany's engines, and be 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 reganl 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 r. New York Central Railw., 22 Barb. 574. 
 
 • Waldron v. Portland, S. & P. Railw., 35 Maine, 422. 
 
 '" Tonawanda Railw. r. Munger, 5 Denio, 265 ; 8. c. 4 Comst. 349 ; Clark r. 
 Syracuse & Utica Railw., 11 Barb. 112; Williams v. Mich. Central Railw., 2 
 'Mich. 259. In this case the horses were wrongfully upon the railway, and the 
 court say " they (the company) cannot be held liable for any accidental 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 r. Portsmouth & Roanoke liailw., 2 Ired. 
 324; C. H. & D. Railw. v. Waterson, 4 Ohio N.S. 424; C. C. & C. Railw. r. 
 Elliott, 4 Ohio N. S. 474; New Albany, &c. Railw. v. McNamara, 11 Ind. 543. 
 
 " Joliet & Northern Ind. Railw. v. Jones, 20 Illinois, 221. 
 
 '• Marsh v. N. Y. & Erie Railw., 14 Barb. 364; Talmadge v. Rensselaer & 
 Saratoga Railw., 13 Barb. 493; Louisville & Frankfort Railw. v. Milton, 14 B. 
 Monroe, 75. This is where the plaintiff below suffered the company to build a 
 railway through his field without stipulating that they should fence the track, 
 and his cattle running upon the track while depasturing in the field were killed, 
 
 •469
 
 468 INJURIES TO DOMESTIC ANIMALS. CH, XVIII. 
 
 obligation upon a railway company, in regard to cattle suffered to 
 go at large in the public highways, by order of the county com- 
 missioners having charge of the same, if the company are guilty 'of 
 no negligence ; in such cases, the owners of cattle killed at the 
 road-crossings, by trains of the company, cannot recover of 
 them.^^ 
 
 9. It has been held not to be sufficient in such cases to charge 
 the company, to show that they were running at an unreasonable 
 rate of speed, or without proper care in other respects.^* 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. 
 
 This subject is extensively discussed in Yicksburg and Jack- 
 son Railway v. Patton,^° and the doctrine enunciated, that the 
 owner of domestic animals not of a dangerous character, may 
 lawfully suffer them to depasture upon the unenclosed commons, 
 and if they wander upon the premises of others not enclosed, the 
 owner of the animals is not liable for any damage in consequence. 
 But a railway, crossing such common, has the same right to its 
 unobstructed use as the owner of cattle, and they may * lawfully 
 run their cars at all times, and at all lawful rates of speed ; but if 
 their own track be unenclosed and cattle liable to wander upon it, 
 the company should have proper regard to so running their trains 
 as not to injure them. And if cattle are injured through any 
 default of the company, it is liable. It is the duty of the com- 
 
 and the court held the company are not liable, "unless the injury could have 
 been avoided with reasonable care." But in Housatonic Railw. v. Waterbury, 
 23 Conn. 101, it was held that in such case the company hold their easement 
 subject to the land-owner's right to cross and recross, to and from the different 
 sections of his farm, provided the right is reasonably exercised, and that the 
 land-owner is not chargeable with negligence in letting his cattle run on his land 
 unfenced, unless he knew they were accustomed to keep near the track, thus im- 
 posing a duty of watchfulness on both parties. 
 
 '^ Mich. & Southern & Northern Ind. Railw. v. Fisher, 27 Ind. 96. 
 
 " Vandergrift v. Rediker, 2 N. J. (Zab.) 185; Clark ». Sy. & Utica 
 Railw., 11 Barb. 112; Williams r. Mich. Central Railw., 2 Mich. 259; 
 Lafayette & Ind. Railw. v. Shriner, 6 Porter (Ind.), 141. Here it is held the 
 company are liable for gross negligence, even where the cattle are wrongfully 
 upon the road. 
 
 '» 31 Miss. 156; Gorman v. Pacific Railw., 26 Mo. 441. 
 *470
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 469 
 
 pany to keep their engines in good repair, and to have a sufficient 
 number of servants to manage their trains with safety ; and if 
 through any default in any of these duties the cattle of another 
 are injured, it will be liable. It was held in this case, contrary to 
 the general course of practice, that it may be proved that the 
 general character of the engineer in charge of the train was that 
 of a reckless and untrustworthy agent. And it is here said that 
 the company are liable to exemplary damages for such an injury 
 occurring through the gross negligence or wanton misconduct of 
 its agents ; both of which propositions seem not entirely recon- 
 cilable with the general course of decision. 
 
 10. And it has been held that where the statute, in general 
 terms, requires railways to keep gates at road-crossings constantly 
 closed, that one whose horses leaped from his field into the high- 
 way, and then strayed upon the railway, by reason of the gates not 
 being kept constantly closed, and were killed, might recover of the 
 company.'^ 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, and not merely the owners 
 of cattle driven along the highway, which, in striqtness, is the only 
 condition in which cattle are rightfully in the highway, at common 
 law.^" 
 
 •• Fawcett ». York & North M. Railw., 16 Q. B. 610; 8. c. 2 Eng. L. 
 & Eq. 289. But it is a question for the jur^% 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 Nm Prius cases 
 (1842), (1845). 
 
 " Trow V. The Vermont Central Railw., 24 Vt. 487. And in Railroad r. 
 Skinner, 19 Penn. St. 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 com- 
 pany, and may himself be made liable for damage done by them to the company ; 
 and it is unimportant whether the owner knew of the jeopardy of the cattle ; and 
 that 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,
 
 470 INJURIES TO DOMESTIC ANIMALS. CH. XVm. 
 
 * 11. In the New York and Erie Railway v. Skinner,^^ Cribson, J., 
 lays down the riile in the broadest terms, that railways, * indepen- 
 
 The Richmond & Fetersburgh 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 
 jvay, 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 company's 
 engines very near the crossing. The plaintiff below suffered the beast to run at 
 large and graze upon the unenclosed 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 Appeals, the decision was final, and the case is discussed at length upon the 
 principles 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 
 apparently 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 pf the company. 
 
 But where cattle are killed along the line of the road, and not at a road- 
 crossing, 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 Irom their track. And the statute depriving the company 
 of an action against the owner of cattle for damages, caused by their straj-ing 
 upon the road, does not render it lawful for cattle to be allowed to go there 
 unrestrained by fences. 
 
 '8 19 Penn. St. 298 ; s. c. 1 Am, Law Reg. 97. But in Banner r. South 
 Carolina Railw., 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 Jacie evidence 
 of the liability of the company, and that the company could only excuse them- 
 selves, by showing, from the manner the injury occurred, that they were not 
 guilty of negligence. And that for this purpose the company must show, not 
 only that the injury was not intentional, but that it was unavoidable, and oc- 
 curred without the least fault on the part of the engineer. But to the main- 
 tenance of an action on 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 r. Railw. Company, 10 Rich. (S. C.) 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 
 entrj', therefore, of cattle, as a horse, upon an unenclosed railway track, is no 
 trespass. Murray r. Railroad Company, 10. Rich. 227. -And it was held, that the 
 * 471, 472
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 471 
 
 dent 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 possibility 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 passen- 
 gers. The opinion contains many sensible suggestions, and is 
 curious for the enthusiasm and zeal manifested by one already be- 
 yond the ordinary limit of human life. These views have some- 
 times been adopted in the jury trials in other states, and as reported 
 in the newspapers, in a recent case in Wisconsin, Prichard v. The 
 La Crosse and Milwaukee Railway. But they are certainly not 
 maintained to the full extent, in any country where the maxim sic 
 utere tuo tit alienum non laedas * prevails, even to the limited extent 
 recognized in the common law in England. 
 
 owner of a horse, permitted to roam at large over unenclosed 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 Greorgia, 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. 
 Railw. r. 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 trespass- 
 ers, 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 direct 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 Railw., 
 3 Kernan, 42. In this case the company had contracted with the land-owner to 
 build the fence, which he bad not done, and it was admitted, tliat 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. But in Shepard r. Buffalo, N. Y. & Erie Railw., 35 N. Y. 641, the court 
 advance a step further in the same direction, and declare, it is no defence that the 
 party whose cattle are killed was legally bound to build the fence himself, under a 
 contract between his assignor and the company. And it seems to be the dispo- 
 sition of the court to give the statute such an extensive operation that the 
 company shall be absolutely responsilile for all cattle injured, until it causes 
 the erection of proper fences, according to the requirements of the statute. 
 This savors rather too clearly of virtuous enthusiasm in the cause of the public 
 good, to be very generally followed by others, or to be very enduring in the 
 place where it originates. 
 
 •473
 
 472 INJURIES TO DOMESTIC ANIMALS. CH. XVIII. 
 
 It was held in Gorman v. Pacific Railway, that the company 
 were not bound to fence their road ^ but it was also held that 
 the jury should consider the fact that the road was not fenced, 
 in determining whether the company exercised proper care under 
 the existing circumstances ; and it was said that such companies 
 should exercise the utmost care and diligence in the enjoyment 
 of their own privileges to avoid doing injury to others.^^ 
 
 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 or- 
 dinary course of their operations.^^ 
 
 13. The subject of negligence in the plaintiff, which will pre- 
 vent his recovery, is discussed much at length in Beers v. The 
 Housatonic Railway ,^1 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 
 where 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 re- 
 mote negligence in the company. In one case,^ the action was 
 for the loss of a horse, by falling into a large well upon the com- 
 
 •» 26 Mo. 441. 
 
 » Burton v. The Phil. Wil. & Bait. Railw., 4 Harr. 252. 
 
 *' 19 Conn. 666. And in Poler v. New York Central Railw., 16 N. Y. 
 476, where a gate adjoining plaintifTs land upon defendant's land got out of 
 repair and liable to be blown open, and the plaintiff, without giving notice to 
 defendant, took measures to secure the gate, which proved ineffectual, and his 
 cattle escaped through the fence and were killed on the track of defendant's road, 
 it was a question of fact whether the plaintiff was guilty of culpable negligence. 
 
 ** Post, § 177, and cases cited ; Chicago & Mis. Railw. v. Patchin, 16 111. 198. 
 
 *» Underhill v. N. Y. & Harlem Railw., 21 Barb. 489; Lyndsay v. Conn. & 
 Pas. Rivers Railw., 27 Vt. 643 ; Scott v. W. & R. Railw., 4 Jones Law, 432. 
 
 " Aurora Branch Railw. v. Grimes, 13 111. 585. 
 ♦474
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 473 
 
 pany'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 discharged 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 com- 
 pany, but his horse proved restive and backed 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 prudence depends upon 
 the question whether the plaintiff is in the exercise of a legal right. 
 For if not, he must show that he exercised extraordinary care 
 before he can be permitted to complain of the negligence of an- 
 other. 
 
 IS. And in another case,* the plaintifTs horse was killed by 
 breaking a blood-vessel in struggling from fright at the defendants' 
 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 usefulness. 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 turn- 
 pike and railway. The plaintiff was passing along the turnpike, lead- 
 ing 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 de- 
 fendants upon a turnpike is a public nuisance, for which any per- 
 son sustaining a particular injury may maintain an action." 
 
 17. And it has been laid down, in general terms, that a * railway 
 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, un- 
 less such engines are used in an extraordinary and unreasonable 
 manner.* 
 
 18. And where the legislature imposed a penalty upon railways, 
 of $100 for every month's delay, in performing the duty of keep- 
 
 *» Moshier v. Utica & Sch. Railw., 8 Barb. 427. But see Coy c. Utica & 8ch. 
 Railw., 23 Barb. 643. 
 
 •• Bordentown & South A. Turnpike v. Camden & Amboy Railw., 2 Harrison, 
 314; Coy r. Utica & Sch. Railw., 23 Barb. 643. 
 
 •476
 
 474 INJURIES TO DOMESTIC ANIMALS CH. XVIII. 
 
 ing 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 injury thereby, in his 
 property, in an action at common law. And if the defect in the 
 fences by which the injury occurs were known to the company, 
 they are liable for the damage suffered, notwithstanding their en- 
 gineer was at the time in the exercise of due care, and notwith- 
 standing the fence was originally imperfectly built by the plaintiff 
 for the company .27 
 
 19. In an action for injury to domestic animals by the passing 
 engines of a railway company, it is not conclusive of the liability 
 of the company that the damage occurred in consequence of the 
 passing of their engine, and that the engineer omitted the statutory 
 requirements of blowing the whistle, ringing the bell, reversing-the 
 engine, &c. It should still be submitted to the determination of 
 the jury whether the damage was caused by the engineer's neglect 
 of duty, as that is a question lying exclusively within their pro- 
 vince.® 
 
 20. One who voluntarily suffers his cow to go at large in the 
 public streets of a city, with no one to take charge of her, and thus 
 to stray upon a railrway track, at a time when cars are passing, is 
 guilty of such carelessness that he cannot recover for any * injury 
 to the animal through any degree of negligence short of that 
 which is gross.® 
 
 21. The competency of the evidence of experts in regard to 
 the management of locomotives so as to avoid the possibility of 
 doing damage to animals upon the track, is discussed in a 
 late case in Ohio.^ It is not easy to define any very exact rule 
 in regard to the extent of the testimony of experts as to the 
 practicability of avoiding doing damage, under a given state of ex- 
 
 *^ Norris V. Androscoggin Railw., 39 Maine, 273. In this case the fence was 
 stone-wall, built by plaintiff, by contract with the company some two years be- 
 fore, 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 e%'idence 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. 
 
 " Memphis & Charlotte Railw. v. Bibb, 37 Ala. 699. 
 
 » Bowman v. Troy & Boston R. Co., 37 Barb. 516. 
 
 » BellfontaJne & Iowa R. Co. r. Bailey, 11 Ohio N. S. 333. 
 *476
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 475 
 
 posure of persons or animals. The subject is a broad one, and to 
 its full discussion would require a volume, instead of a single para- 
 graph. But we make no question, the management of a locomotive 
 steam engine, under any and all conditions and circumstances, is a 
 matter of science and skill, as to which courts and juries are not or- 
 dinarily competent to form a reliable and satisfactory judgment, 
 and tliat they do therefore stand in need of aid and instruction in 
 regard to the matter, whenever it comes before them for deter- 
 mination, and that consequently the testimony of experts may 
 always be received under the ordinary limitations and restrictions. 
 
 22. The subject of the responsibility of railways for injury to 
 cattle running at large and coming upon their track is very care- 
 fully considered in a later case in Ohio.^^ It is here declared that 
 the owner of cattle who does not keep them within his own en- 
 closure, when he might do so by proper care, cannot require of a 
 railway company to regulate the management and speed of their 
 trains with reference to cattle coming upon their track. Such 
 companies, like all others, have a right to regulate the manage- 
 ment and conduct of their business solely with reference to the 
 security of persons and property in their charge, and the meeting 
 of their reasonable appointments in regard to them, and may make 
 their plans upon the reasonable and legal presumption that other 
 persons will perform all their legal obligations towards them, and 
 consequently that the owners of domestic animals will keep them 
 at home, where alone they belong, and not suffer them to stray 
 upon the track of a railway company, unless they * are prepared to 
 incur the legitimate hazards of such an exposure. But when a 
 railway company finds cattle upon its track, it is bound to avoid 
 damage to them, if practicable, by the same degree of effort that a 
 prudent owner of the cattle would be expected to do, properly con- 
 sidering the hazard both to the train and the cattle. And the 
 proper inquiry in such a case is, whether the agents of the com- 
 pany exercised reasonable and proper care, in running their engine, 
 to avoid injury to the cattle of the plaintiff; and the facts and cir- 
 cumstances bearing upon this question are for the exclusive con- 
 sideration of the jury. 
 
 23. And much the same view is taken in a recent case in Ken- 
 tucky ,** where it is said that the paramount duty of a railway 
 
 »• Central Ohio R. Co. v. Lawrence, 18 Ohio N. S. 66. 
 » Lou. & Frankfort R. Co. v. Ballard, 2 Met. (Ky.) 177. But railway com- 
 
 *477
 
 476 INJURIES TO DOMESTIC ANIMALS. CH. XVIII. 
 
 company, in the conduct of a train, is to look to the safety of per- 
 sons and property therein, and subordinate to this is the duty to 
 avoid unnecessary damage to animals straying upon the road. 
 And while a railway company is not justified in any conduct of its 
 agents, in regard to cattle upon its track, which is needless, wan- 
 ton, or wilful, it cannot be responsible for any thing short of this, 
 since the owners of cattle are specially bound to keep them off the 
 tracks of railways. 
 
 24. And in a late case in Maryland,^ it was held that the well- 
 settled principle of the common law, that a plaintiff is not entitled 
 to recover for injuries to which his own fault or negligence has di- 
 rectly contributed, is not abrogated by the several acts of assembly, 
 regulating the liabilities of railways in this state for stock killed or 
 injured by their trains. These acts leave the question of the ef- 
 fect of the plaintifTs conduct upon his right to recover for the acts 
 of others where it was at the common law. But the onus of proof 
 is changed by the statute, and where stock is killed the law 
 now imputes negligence to the company, unless it can show that 
 the damage results from unavoidable accident.^ It was not in- 
 tended hereby to interfere with the time-table or the rate of' speed 
 on railways. The act leaves all this to the discretion of the com- 
 panies, but imposes upon them the highest degree of care and cau- 
 tion ; and in the absence of fault on the part of the plaintiff it must 
 appear that the collision took place without any * fault or negligence 
 on the part of the company or its agents, in order to exonerate 
 them. In other words, if the plaintiff is not in fault the company 
 will be responsible, unless the damage is the result of unavoidable 
 accident. 
 
 25. In Indiana it is held, that in an action against the company 
 for killing stock it must appear, both in the complaint and proof, 
 that the damage resulted from the carelessness of the company or 
 the omission to fence their road.^ 
 
 26. In Missouri ^ it is determined by statute and the construc- 
 
 panies are not bound to maintain fences, sufficient to exclude the possibility of 
 cattle coming upon their line, even under the extreme duty and obligation which 
 they owe toward the protection of their passengers. Buxton v. N. E. Railw. Law 
 Rep. 3 Q. B, 549. 
 
 " Keech v. Baltimore & Wash. R. Co., 17 Md. 32. 
 
 ^ Indianapolis, &c., R. Co. v. Sparr, 15 Ind. 440; Same v. Williams, id. 4S6. 
 
 " Meyer v. North Mo. R. Co., 35 Mo. 352; Powell r. Han. & St. Jos. R. 
 Co., id. 457 ; Burton v. North Mo. R. Co., 30 id. 372. 
 *478
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 477 
 
 tiou of the courts, that if the accident occur upon a portion of the 
 line not enclosed by a lawful fence, and not at a road or street 
 crossing, whereby domestic animals are killed or injured, the com- 
 pany are responsible, at all events, and without reference to any 
 question of negligence, either on their part or that of the owner of 
 the animals. But at highway or street crossings the company are 
 not responsible for any damage to such animals, unless it occur 
 through some neglect or fault on their part. 
 
 27. In California* it seems to be considered that the custom of 
 the country to suffer domestic animals to go at large on the com- 
 mons will override the rule of the common law, obliging the owner 
 to restrain his cattle -within his enclosures, and that consequently 
 no negligence is imputable to the owner on account of so suffering 
 his animals to go at large. But railway companies are not 
 held responsible for damage inflicted upon such animals so 
 running at large unless it might *have been avoided by or- 
 dinary care and prudence on the part of the company at the 
 time.*'^ 
 
 28. There seems to have been some very nice questions raised 
 in the. courts of Illinois, for if it were not so some of the decisions 
 would seem to partake largely of the character of incomprehensi- 
 bility. For we find it gravely declared, in one case,^ that the law 
 does not require any different words to be used in proving a case 
 against a railway from those used in other cases. It is only neces- 
 sary the mind should be convinced of the existence of the neces- 
 
 *• Waters r. Moss, 12 Cal. 636. And in Alger r. Miss. & Mo. Railw. Co., 
 10 Iowa, 268, it was held that permitting cattle to run at large does not impute 
 negligence to the owner, nor is he liable as a trespasser if they are found upon 
 an unfenced railway. A railway company is bound to exercise ordinary care 
 not to injure animals coming upon their track through delect of fence. After 
 the road is fenced the company is only liable in such cases for gross neglect. 
 And in McCall v. Chamberlain, 13 Wise. 637, it is held that the duty upon rail- 
 way companies to fence their roads is intended for the protection of the public 
 generally. And until such fences are built the company is liable for all injuries 
 to animals upon their track, without reference to any question of being rightfully 
 in the adjoining land from whence they escaped upon the track. And the lessee 
 of the company assumes all their responsibility. 
 
 •^ Richmond p. Sacramento Valley R, Co., 18 Cal. 861. There is no statute 
 here requiring railways to be fenced by the companies. But when that is re- 
 quired, and the plaintiff alleges the duty was not performed, he must prove it aa 
 part of his case. Indianapolis, &c., R. Co. r. Wharton, 13 Ind. 609. 
 
 » Ohio & Miss. R. Co. c. Irvin, 27 111. 178. 
 
 •479
 
 478 INJURIES TO DOMESTIC ANIMALS. CH. XVIII. 
 
 sary facts. And in the same case : The presumption is that the 
 houses compose a village, and if an animal is killed beyond the 
 houses the presumption is that it is killed beyond the village, and 
 if the town extends beyond the houses the defendant should know 
 the fact ; and also : Every one is supposed to have some idea of 
 the value of such property as is in general use, and it is not neces- 
 sary to have a drover or butcher to prove the value of a cow. And 
 in another case in this state it seems to have been claimed that the 
 declaration against a railway for injuries to domestic animals must 
 negative the possibility of any excuse on the part of the company. 
 But the court hold that matters of excuse on the part of the com- 
 pany, as that the animals were killed at a farm crossing and that 
 the road was properly fenced by them, must be shown by way of 
 defence.^ But it was held in another case in that state, that the 
 plaintiff, in making out his own cause of action, must negative by 
 proof the existence of a public crossing where the killing occurred, 
 and should show that the defendants were bound to fence at that 
 point.*^ And it was held in a later case, that it was negligence in 
 a railway company to allow vegetation to grow upon its right of 
 way, so that cattle may be concealed from view.^^ 
 
 29. K one allows stock to run in the highway near a railway 
 * crossing it is such negligence that he cannot recover for any in- 
 jury *2 thereto. And if one allows his cattle so to run in the 
 highway and thus come upon the track of the railway, and the 
 company use all statutory and other reasonable precautions to 
 avoid damage to them, the owner cannot recover for any such 
 damage which is thus caused either wholly or in part by his own 
 neglect, and he would also be liable for all injury to the com- 
 pany or to persons or property in their charge. ^^ And the omis- 
 sion of the company to sound the whistle or to ring the bell, in 
 such cases, will not render them responsible for damage to cattle, 
 unless it appear that such precautions would have prevented the 
 injury.^ 
 
 30. In actions for injury to cattle, if negligence is clearly proved 
 on the part of the plaintiff, the company are not responsible unless 
 
 39 Great Western Railw. v. Helm, 27 111. 198. 
 « Ohio & Miss. R. Co. v. Taylor, 27 111. 207. 
 ♦> Bass 0. Chicago, B. & Quincy R., 28 111. 9. 
 «.Ch. Bur. & Quincy R. Co. v. Cauffman, 28 Hi. 613. 
 « Illinois Central Railw. v. Phelps, 29 111. 447. 
 *480
 
 § 126. INJURIES TO DOMESTIC ANIMALS. 479 
 
 guilty of gross negligence, which implies wilful injury.** In such 
 actions, founded upon the statute, the declaration should negative 
 all the exceptions in the statute ; *^ but the plaintiff is not called 
 upon to negative in proof the existence of any contract between 
 himself and the company to maintain the fences along tlie line of 
 the road against his land.*^ 
 
 31. As the statute does not require railway companies to fence 
 their road within the limits of cities and villages, they are not 
 responsible for damage to domestic animals caused by their trains 
 within such corporate limits ; and if the animal come upon their 
 track within these limits, and is driven by the train beyond these 
 limits and there killed, without any fault on the part of tlie com- 
 pany, it is immaterial whether the road was properly fenced at the 
 point where the animal was killed, as it came upon the track at a 
 point where the company were not obliged to fence.** The mere 
 killing of an animal by a railway company does not render them 
 liable unless they have been guilty of negligence or the case comes 
 within the statute.** 
 
 32. In cases where the company are required by statute to * ring 
 the bell or sound the whistle, and that is omitted, if injury occur 
 in consequence, they will be responsible, unless the party injured 
 was himself guilty of negligence contributing to such result.*' It 
 is here said that railway companies are responsible for injuries to 
 persons or property, when wilfully done, or resulting from gross 
 neglect of duty. The company to exonerate themselves must use 
 all reasonable or statutory precautions to prevent the injury, and 
 an omission to do so will render them responsible, if the omission 
 produce or contribute to the injury, and the plaintiff was not 
 himself in fault in any particular also contributing to the injury.*^ 
 
 33. But in actions of tort against railway companies to recover 
 damages for killing cattle upon their track, it is not competent to 
 prove the company guilty of negligence in running their other 
 trains, beside the one by which the cattle were killed.*® 
 
 ♦* nUnois Central Railw. v. Goodwin, 30 111. 117. 
 
 ♦* Great Western Railw. r. Bacon, 30 III. 347. 
 
 ♦• Same v. Morthland, 30 Dl. 451 ; Galena & Chicago R. Co. r. Griffin, 31 
 m. 303. As to cases under positive statute, see Illinois Central Railw. Co. e. 
 Swearingen, 38 111. 289. 
 
 « Great Western R. Co. v. Geddis, 33 Dl. 304. 
 
 *» Mississippi Central Bailw. v. Miller, 40 Miss. 45. 
 
 •481
 
 480 
 
 FENCES. 
 
 CH. XIX. 
 
 ♦CHAPTER XIX. 
 
 FENCES. 
 
 SECTION I. 
 
 Upon whom rests the obligation to maintain fences. 
 
 1. Bt/ the English statute there is a separate 
 
 provision made Jor fencing. 
 
 2. This provision is there enforced against 
 
 the companies hy mandamxis. 
 
 3. But where no such provision exists, the 
 
 expense of fencing is part of the land 
 damages. 
 
 4. 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. Assesstnent of land-damages, on condition 
 
 company build fences, raises an implied 
 duty 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 bound to fence land acquired by 
 
 grant. 
 
 10. Fartn-crossings required tc.'terever neces- 
 
 sary. 
 
 11. Where land-owner declines farm accom- 
 
 modations, has no redress ; courts of 
 equity will not decree specific perform- 
 ance. 
 
 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. 
 
 14. Party bound to fence assumes primary 
 
 responsibility. 
 
 ♦482 
 
 16. Company not responsible for injury at 
 road-crossings. 
 
 16. Railway companies not responsible for in- 
 
 jury to cattle by defect offence about 
 yard. 
 
 17. Case of horse escaping through defect of 
 
 fence. 
 
 18. It must appear the injury occurred by 
 
 default of company. 
 
 19. Cattle-guards required in villages but not 
 
 so as to render streets unsafe. 
 
 20. Company responsible for injuries through 
 
 defect offences and cattle-guards. 
 
 21. Courts of New Hampshire maintain com- 
 
 mon-law responsibility, 
 
 22. Company responsible as long as they con- 
 
 trol road. 
 
 23. Maintaining fences along the line of rail- 
 
 way, matter of police. 
 
 24. Rule as to land-owner agreeing to main- 
 
 tain fence, Sfc. 
 
 25. Company not responsible for defect of 
 
 fence unless in fault. 
 
 26. Railway not responsible in Indiana un- 
 
 less in fault. 
 
 27. Company not Uable where fence thrown 
 
 down by others. 
 
 28. Where owner in fault he cannot recover 
 
 unless, ^c. 
 
 29. Rule of damages for not building fence, 
 
 &c. 
 
 30. Land-owner must keep up bars. 
 
 31. Illustrations oj'the general rule. 
 
 32. In actions under statute case must be 
 
 brought within it. 
 88. In Pennsylvania one required to keep his 
 cattle at home.
 
 § 127. UPON WHOM THE DUTY RESTS. 481 
 
 * § 127. 1. By tlie Railway Clauses Consolidation Act * it is made 
 the duty of the railways in England, before they use land 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 determined by 
 two magistrates. Under this statute it has been held, tliat the 
 railway is not excused from making the necessary accommodations 
 to keep up communication, to the owner, between different parts 
 of lands, intersected by the line of a railway, 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 upon the railways by statute, 
 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 damages are 
 to be appraised, upon the basis of that duty resting upon the rail- 
 way. 
 
 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 
 
 ' 8 and 9 Vict. ch. 20, § 40. But in Kyle ». Auburn & Rochester Railw., 2 
 Barbour's Ch. 489, the court declined to interfere by injunction, to compel the 
 building of a farm-crossing, although the company assumed before the jury for 
 assessing land damages, that 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 necessary 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. 
 
 * Skerratt v. The North Staffordshire Railw., 5 Railw. C. 166, per Lord Cot- 
 tenham. Chancellor. See post, § 193, n. 3. 
 
 * In re South Wales Railw. 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 withflraw 
 thereupon opposition to the bill, it was held the duty to make suitable watering- 
 places might be enforced by mandamus. Reg. r. York & N. Midland Hailw., 
 3 Railw. C. 764 ; infra, §§ 128, 190, 191. The provision for fences, in the Eng^ 
 llsh statute, being a separate, independent, general provision, is enforced, al-* 
 together aside of the proceedings to assess land damages. 
 
 31 ♦ 488, 484
 
 482 FENCES. CH. XIX. 
 
 undoubtedly be borne by the company, in addition to paying the 
 value of the land, for otherwise the land is taken without an equiv- 
 alent. But the courts in most of the American States have resisted 
 this view wherever it was practicable, more commonly upon some 
 technical ground of presumption or inference, when, in fact, the 
 omission of such an express provision in the charter or the general 
 laws of the states was wholly the result of oversight in the legisla- 
 tures. But it is refreshing to find some courts so far relieved from 
 the trammels of mere technicality as not to feel compelled to sacri- 
 fice an obvious principle of justice to the shadow of a mere form. 
 In a recent case in California we find an announcement upon this 
 question which evidently comes from the right quarter, a sense of 
 simple justice. It declares, if fences are rendered necessary for 
 the protection of the crops of the land-owner by means of the con- 
 struction of the railway through the land, the cost of such fences 
 must be included in the compensation to be paid by the company,* 
 and this by necessary consequence must include a sum sufficient 
 to indemnify the owner against the constantly accruing expenses 
 of maintaining such fences. And the tendency of the more 
 recent decisions is sensibly in this direction ; and we might 
 add, without ofience, that in our judgment it is the only sen- 
 sible direction the decisions could take, and we have always 
 expected them to take such a direction in the end, however late it . 
 may come.^ 
 
 4. And where in such circumstances the commissioners assessed 
 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 killed by the engmes 
 of the company, it was held,^ that the obligation * to maintain the 
 
 * Sacramento Valley Railw. v. Moffatt, 6 Cal. 74. 
 
 ' Evansville Railw. v. Fitzpatrick, 10 Ind. 120; Same v. Cockran, id. 660; 
 Same v. Stringer, 651. 
 
 « Quimby v. Vermont Central Railw. Co., 23 Vt. 387; See also Vander- 
 kar V. Rensselaer & Sara. Railw., 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 
 •486
 
 § 127. UPON WHOM THE DUTY RESTS. 483 
 
 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 
 before to enable him to do it, the mere fact that cattle get upon the 
 
 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 re- 
 quiring the owner to pass at such a place as shall " be appointed" for crossing, 
 means, " when such places shall have been appointed." Grand Junction Railw. 
 V. White, 8 M. & W. 214 ; 8. c. 2 Railw. C. 659. 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 commissioner 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 constructing their road, were throwing up an embank- 
 ment 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 crossing or compensate the land-owner. Wheeler 
 c. Rochester & Sy. Railw., 12 Barb. 227 ; Milwaukee & Mis. Railw. v. Eble, 4 
 Chand. 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 elaborate case in Iowa, Henry v. Dubuque & 
 Pacific Railw., 2 Clarke, 288. But the argument of the court seems to us un- 
 satisfactory 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 the 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 
 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 Railw., 23 Vt. 613; 8. c. 1 
 Am. liailw. C. 258; see Lawton r. Fitchburg Railw., 8 Cush. 230. 
 
 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-crosa- 
 ing. Philadelphia, Wilmington, and Baltimore Railw. v. Trimble, 4 Wharton, 
 47 ; 8. c. 2 Am. Railw. C. 245. * 
 
 In the case of Chicago & Rock Island Railw. r. 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. 
 
 •486
 
 484 FENCES. CH. xa.. 
 
 road from the land adjoining is no ground for imputing negligence 
 to the owner of the cattle.^ 
 
 5. In some cases in this country it has been held that tlie rail- 
 way and the adjoining land-owner are to defray equal proportions 
 of the expense of maintaining fences, upon the principle of being 
 adjoining proprietors, and being equally interested in having the 
 fence maintained, unless the land-owner chooses to let his land lie 
 in common, and in that case the company must be at the whole 
 expense of fencing, as a necessary protection and security to their 
 business^ 
 
 ' In the matter of the Rensselaer & Sar. Railw., 4 Paige, 653. In North- 
 eastern Railw. p. Sineath, 8 Rich. 185, it is held that damages are not to be as- 
 sessed for fencing through unenclosed land used for grazing. In a recent case 
 in Kentucky, Louisville & Frankfort Railw. v. Milton, 14 B. Monr. 75, it is 
 held, that where one grants the right of building a railway across his land, nei- 
 ther the land-owner nor the company are bound to fence adjoining the railway. 
 If the land-owner suffer his cattle to run at large, as he may, if he choose to in- 
 cur 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, with- 
 out incurring any responsibility. And in regard to the case of New York & 
 Erie Railw. ». Skinner, 19 Penn. State, 298, the court say: "This court is not 
 disposed to sanction all the legal doctrines avowed in that opinion." 
 
 Railways are only bound to the use of such diligence, prudence, and skill, to 
 avoid injury to cattle rightfully in the highway at a road-crossing, as prudent 
 men exercise in the conduct of their own business. And as to cattle wrongfully 
 upon the railway, unless the injury is caused wilfully, or through gross negli- 
 gence, the company are not liable. Chicago & Mississippi Railw. v. Patchin, 16 
 111. 198; Great Western Railw. r. Thompson, 17 III. 131; Quimby r. Vt. 
 Central Railw., 23 Vt. 387 ; Central Mil. Tr. Railw. v. Rockafellow, 17 111. 541 ; 
 Raih-oad Co. v. Skinner, 19 Penn. St. 298. 
 
 In a late case in New Hampshire, White r. 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 firom one pasture to .the other, unless the
 
 § 127. UPON WHOM THE DUTY BESTS. 485 
 
 * 6. But many of the American cases assume the ground that 
 where there is no statute imposing the duty of fencing upon the 
 
 injury was caused by accident, or by the fault of the owner, or unless it appear 
 that the company have settled with the owner in relation to such guards, passes, 
 and farm-crossings. 
 
 And it was held also, in the same case, that where the plaintiff deeded the 
 land to the company upon condition, " said corporation to fence the land and 
 prepare a crossing, with cattle-guards, at the present travelled path, on a level 
 with the track," this was not such settlement, and did no£ alter the legal rela- 
 tions 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, kngwing of the 
 crossing, and of 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 Railw., 3 Edw. Ch. 487, the Vice-Chancellor 
 seems to consider that a railway company have no interest in having their road 
 fenced, and are not therefore bound to contribute to the expense of fencing, 
 which is at variance with the opinion of the Chancellor (4 Paige, 553), and 
 equally, as it seems to us, with reason and justice. See Campbell v. Mesier, 
 4 Johns. Ch. 334. 
 
 In a case, in the Supreme Court of Pennsylvania, Sullivan r. Fhila. & R. Railw., 
 6 Am. Law Reg. 342, 8. c. 30 Penn. St. 234, 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 a carrier, that the injury 
 was caused by the negligence or even trespass of a third person. The parties 
 are bound by their contract." 
 
 Post, § 176, n. 6 ; § 189. 
 
 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 
 prevented ; these were questions, and grave ones, too, that ought to have been 
 submitted to the jury. 
 
 "The learned jndge, 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 queo- 
 
 •487
 
 486 FENCES. CH. XIX. 
 
 * company, and no stipulation, express or implied, between the 
 company and the land-owners that they shall maintain fences, 
 
 tion in the negative, the judge seems to have misapplied the reasoning of Judge 
 Gibson in Skinner's case, 7 Harris, 298 ; 1 Amer. Law Reg. 97. That was an 
 action, by the owner of a cow killed on a railroad, to recover her value from the 
 company ; and the doctrine laid down was that the owner was a wrong-doer in 
 suffering 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 com- 
 pany have undertaken to carry safely, is it an answer to the passenger suing for 
 damages 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 
 company for the mischief she caused, yet as between the company and its pas- 
 senger, 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 passen- 
 ger 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, but if, by some means, they do not exclude the 
 risk, they are bound to respond in damages when injur)- 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 
 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 
 mechanic who fiimished 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 dam- 
 ages. 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 unenclosed grounds, through which the road runs, the company are bound to 
 take notice of this fact, and either by fencing in their traqk, or by enforcing the 
 owner's obligation to keep his cattle at home, or by moderating the speed of the 
 •488
 
 § 127. UPON WHOM THE DUTY BESTS. 487 
 
 * 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 wliere 
 such a duty is held to result from 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. 
 
 And in the Irish courts the company is only bound to erect 
 such accommodation works for the benefit of the land-owners as 
 are a compliance with the specifications in the award. This is 
 true even where the railway crosses a private road over a farm 
 in the right of some third party as lessee of the farm obliquely, 
 
 * and the award adjudicating the claim of such lessee specified 
 only a crossing over the railway as a " level crossing " at a given 
 point, and the company gave a crossing at right angles with the 
 road, which did not connect the termini of the road, and gave 
 no access to it ; it was nevertheless held that this was a compli- 
 ance with the award.* This is certainly not a fair construction 
 of the award, as applicable to the subject-matter ; and it does 
 not require any gift of prophecy to foretell that the doctrine of 
 
 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 id. 496." 
 
 « Hurd c. Rut. & Bur. Railw., 25 Vt. 116, 123; New York & Erie Railw. ». 
 Skinner, 19 Penn. St. 298; Clark v. Syra. & Utica Railw., 11 Barb. 112; Dean 
 r. The Sullivan Railw., 2 Foster, 316; A. & S. Railw, p. Baugh, 14 111. 211. 
 Where, upon appeal from the first appraisal of land damages, where the erection 
 of fences had been specified, that was vacated, and the new appraisal made no 
 such requirement of the company, it was held that the presumption was, that the 
 whole damages were appraised in money, and the company were not bound to 
 buikl fences. Morss r. Boston & Maine Railw., 2 Cush. 633 ; Williams v. New 
 York Central Railw., 18 Barb. 222. It seems impossible to estimate damages 
 for taking land for the use of a railway, without taking into the account the ex- 
 pense of fencing. Henry r. Pacific Railw., 2 Clarke, 228; Mil. & Mis. Railw. 
 p. Eble, 4 Chandler (Wis.), 72; Northeastern Railw. p. Sineath, 8 Rich. 186; 
 Matter of Rense. & Sar. Railw., 4 Paige, 533. And those cases which hold the 
 company not bound to fence, unless required to do so by statute or contract, go 
 upon the presumption that they have already paid the expense of fencing in 
 the land damages. See Baltimore & Ohio Railw. p. Lambom, 12 Md. 267; 
 Mad. & Ind. Railw. p. Kane, 11 Ind. 375; Stucke p. Milw. & Miss. R. Co., 9 
 Wise. 202; Richards p. Sacramento Valley R. Co., 18 Cal. 361. 
 
 ' Mann r. Great Southern & Western R., 9 Irish Com. Law R. 106. 
 
 • 489, 490
 
 488 FENCES. CH. XIX. 
 
 the case will not be followed in this country, and, with deference 
 be it said, it ought not to be followed anywhere. 
 
 7. And in some of the states the rule of the common law, in 
 regard to the duty resting upon the owner of domestic animals 
 to restrain them, has not been adopted so as to charge the owner 
 with 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, this renders a lessee 
 of the road liable for injury to cattle caused by his operating it 
 without proper cattle-guards at farm-crossings.^^ 
 
 * 9. A general statute, requiring fences to be maintained by 
 railways upon the sides of their road, applies to land acquired 
 by purchase as well as to that taken in invitum.^ 
 
 '" Kerwhacker v. C. C. & Cincinnati Railw., 3 Ohio N. S. 172. In such cases 
 the company are bound to use reasonable care not to injure animals thus right- 
 fully at large. lb. ; C. C. & Cincinnati Railw. v. Elliott, 4 Ohio N. S. 474. If the 
 owner is to be charged with remote negligence in suffering his cattle to go at 
 large, under such circumstances, and the servants of the company are guilty of 
 want of care at the time of the injury, which is the proximate cause of it, the 
 company are still liable. lb. ; Chicago & Miss. Railw. r. Patchin, 16 111. 198 ; 
 Ind., &e. Railw. v. Caldwell, 9 Ind. 397. 
 
 " Clement v. Canfield, 28 Yt. 302. And the same rule applies to a company 
 running its cars over another company's line by arrangement between the com- 
 panies. If the road is not properly fenced, the company running the trains by 
 which the damage is caused will be responsible, although it be the default of the 
 other company, for which that is also responsible to the party injured. Illinois 
 Central Railw. v. Kanouse, 39 111. 272. An order upon a railway for making 
 farm accommodations must specify the time within which they shall be made. 
 Keith V. The Cheshire Railw., 1 Gray, 614. And where the act allowing a rail- 
 way company to lease its road is upon the express condition that it be not 
 thereby exonerated from any of its duties or liabilities, this must include the 
 maintaining offences. Whitney ». Atl. & St. Law. Railw., 44 Maine, 362. 
 Where a railway company permits its cattle-guards to remain filled with snow, 
 so that cattle which have strayed upon the highway without any negligence on 
 the part of the owner pass over such guards, and in consequence are injured by 
 a passing train, the company are liable for the damages. Donnigon v. Ch. & 
 N. W. Railw. Co., 18 Wise. 28. 
 
 " Clarke v. The Rochester, L. & N. F. Railw., 18 Barb. 850. 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 
 * 491
 
 § 127. UPON WHOM THE DUTY RESTS. 489 
 
 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, to prevent cattle, Ac, from getting upon 
 the railway, and the land-owner who is entitled to such protec- 
 tion refuses to have such bars or gates erected, or requests the 
 company not to erect them, or undertakes to erect them himself, 
 he cannot maintain an action against the company for not com- 
 plying with the statute.^ A court of equity will not decree 
 
 requiring the fence to be built upon the side of the road. Ferris r. Van Bus- 
 kirk, 18 Barb. 397. And where the statute provides that, upon certain pro- 
 ceedings, railway companies may be compelled to provide farm-crossings and 
 cattle-passes for the owners of land intersected by the company's road, and no 
 such proceediufrs have been taken, the company are not liable to an action for 
 damages resulting from the want of necessary farm-crossings and cattle passes, 
 unless it appears that the company had contracted to build them. Horn v. At- 
 lantic & St. Lawrence Railw., 35 N. H. 169 ; 8. c. 36 id. 440. Where the rail- 
 way company contract to build fences and farm-crossings, this obliges them to 
 erect bars or gates at such crossings, as required by statute. Poler v. N. Y. 
 Central Railw., 16 N. Y. Court of Appeal, 476. 
 
 " Tombs V. Rochester & Syracuse Railw., IS 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- 
 serihe the time, no action will lie. Keith r. Cheshire Railw., 1 Gray, 614. When 
 the statute requires fences to be maintained by railway companies, it must be 
 done before they begin running trains. Clark r. Vermont & Canada Railw., 
 28 Vt. 103. And in Gardiner p. Smith, 7 Mich. 410, it was held to attach as 
 soon as the company have possession of the land for construction. Since the de- 
 cision of the case of Clark r. Vt. & Canada R., supra, the same court held, that 
 during the construction of a railway the company, in such case, were bound, 
 either by fences or other sufhcient means, to protect the fields of land-owners 
 adjoining the railway. And whether the company have used the proper pre- 
 cautions to prevent the escape of the land-owners cattle or the intrusion of other 
 cattle, during such construction, is a question of fact, in each particular case to 
 be determined by the jury. "WTiere the contractor for building a railway took 
 away the fences in course of construction, and the sheep of the land-owner 
 escaped thereby and were lost, he was held responsible for the loss. Gardiner 
 V. Smith, 7 Mich. 410. And it will make no difference that the land-owner 
 tunied the sheep into the lot after the land was taken possession of by the con- 
 tractor, and he was constantly throwing down the fences to carrj' forward the 
 work. lb. Ilolden r. Rut. & Bur. Railw., 30 Vt. 297. But a railway com- 
 pany cannot fence their road by means of willows set upon the line of the land
 
 490 FENCES. CH. XK. 
 
 specific performance of a covenant by a railway company to main- 
 tain and keep in repair the cattle-guards on the line of plaintiffs 
 land." Nor will the court of chancery, upon any general right, 
 direct that farm-crossings, agreed to be built by a railway company, 
 shall be made under its direction, or at its discretion.^^ 
 
 * 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.'' 
 
 14. And where it is the duty of the company to fence the 
 land adjoining their road, and they omit to do so, whereby cat- 
 tle escape upon the track and are killed, they are liable in dam- 
 ages without any proof of care on the part of the owner to restrain 
 them.^^ And evidence of notice to the owner that the animal had 
 escaped two or three times before and had been upon the track, 
 is inmaterial.^^ But where the duty of maintaining fences 
 is upon the land-owner, and cattle escape and are killed * upon 
 
 taken, and which in growing will injure the adjoining land by the extension of 
 their roots, there being no controlling necessity of fencing in that mode. 
 The company were accordingly enjoined. Brock v. Conn. & Pass. R., 35 
 Vt. 373. 
 
 " Columbus & Shelby Railw. v. Watson, 26 Ind. 50. 
 
 " Damley v. London, Chatham & Dover RaUw., Law. Rep. 2 H. Lds. 43. 
 
 '* Langlois v. Buffalo & Rochester Railw., 19 Barb. 364. But in McMillan 
 r. Saratoga & Wash., 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 post, § 181. 
 
 " Nashville & Ch. Railw. v. Peacock, 25 Alabama, 229. See also Williams 
 r. New Albany & Salem Railw., 5 Ind. Ill ; Lafayette & Ind. Railw. v. Shriner, 
 6 Ind. 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. 
 
 " Rogers r. Newburyport Railw., 1 Allen, 16. 
 * 492, 493
 
 § 127. UPON WHOM THE DUTY RESTS. 491 
 
 the track, the company are not liable without proof of due care on 
 the part of the owner to restrain them.'^ The statute, requiring 
 railways thereafter constructed to fence their roads on both sides, 
 does not apply to a road in the process of construction at the 
 date of the act.^® 
 
 The statute, requiring railways to fence their roads, and mak- 
 ing them liable for injury to cattle without regard to the negli- 
 gence of the owner, or his being an owner of adjoining land, is 
 a police regulation. ^^ But this liability does not extend to ani- 
 mals injured by fright.*^ 
 
 15. Railway companies are not liable for injuries to animals 
 at highway crossings, although the crossing had been abandoned 
 by the public for two years and the highway changed, it not 
 appearing to have been vacated in the mode prescribed by 
 statute, so as to justify the company in fencing their track 
 across it.^ 
 
 16. Railway companies in England are not held responsible 
 for injuries to cattle transported to their stations, in consequence 
 of injury by escaping upon the track through defects of the fence 
 about the cattle-yard ; nor for the cattle being frightened by one 
 of the porters of the company coming out of the station into the 
 cattle-yard, having a lantern, such as was ordinarily used, in 
 his hand ; it being no evidence of negligence on the part of the 
 company's servants.^ It was considered here that the cattle 
 had been delivered to the plaintiff, and it was his fault, since he 
 knew the yard was not fenced, and had himself pronounced it 
 an unsafe place, not to guard against their escape. 
 
 17. It appeared in one case ^ that the plaintiff's horse had es- 
 
 " Stearns r. Old Colony & Fall River Railw,, 1 Allen, 493. 
 
 •^ Indianapolis & C. Railw. v. Townsend, 10 Ind. 38; Jefferson Railw. v. 
 Applegate, id, 49 ; Ind. & C. R. r. Meek, id. 602 ; Jeff. Railw. v. Dougherty, 
 id. 549. 
 
 " Peru Railw. p. Haskett, 10 Ind. 409. And the company are not liable for 
 cattle killed in the highway without their fault, where the track of the road was 
 fully fenced. Northern Ind. R, c. Martin, 10 Ind. 460. 
 
 ** Indian. Railw. v. Gapen, 10 Ind. 292. 
 
 " Roberts t. Great Western Railw., 4 C. B. (N. S.) 606. 
 
 ** Ilolden r. Rutland & Burlington Railw., 30 Vt. 297. WTiere the plaintiff 
 had knowledge at evening that his fence was in danger of being carried off by a 
 flood, and knew his cattle would in consequence be liable to come u|K)n the rail- 
 way track, and refused to remove them from the pasture, and before morning 
 the fence was removed, and the cattle came upon the track and were killed by a
 
 492 FENCES. CH. XIX. 
 
 caped * in the night-time from his pasture upon the railway track 
 on account of the want of proper fence along the line of the 
 road, and was found in the morning a mile from the plaintiff's 
 land in a rocky pasture seriously injured in the leg ; and there 
 was some evidence tending to show that the injury was received 
 in tlie pasture where he was found. The court charged the 
 jury that if they were satisfied there was a clear connection be- 
 tween the escape of the horse and the injury received, the plain- 
 tiff was entitled to recover. This was held erroneous in not re- 
 quiring the jury to discriminate between a direct and a remote 
 connection between the neglect of the company and the damage 
 to the plaintiff's horse, as he could only recover upon the for- 
 mer ground. 
 
 18. In this case^ the plaintiff's cows were killed by escaping 
 from the plaintiff's pasture, and going into a piece of land leased 
 by the plaintiff to the defendants, to be used by them as a wood- 
 yard, and from that upon the defendants' track, for want of fence 
 about the wood-yard. The evidence left it doubtful whether the 
 defendants were to have the exclusive occupancy of the wood- 
 yard, or were to fence the same, as between them and the plain- 
 tiff: It was held that, in order to recover of the defendants for 
 killing the cows, it should be found by the jury that it was the 
 duty of the defendants to maintain the fence for defect of which 
 they escaped upon the defendants' track. 
 
 19. The statute of New York, requiring railways to maintain 
 cattle-guards at road-crossings, applies to streets in a village, but 
 not so as to impede the passage along the streets, or render them 
 unsafe for persons passing.^^ 
 
 * 20. It has often been declared that railway companies, to relieve 
 themselves from responsibility for damage caused by their trains 
 to domestic animals, must not only build but maintain in good 
 
 passing train, it was held the plaintiflF could not recover. Michigan, &c., R. Co. 
 V. Shannon, 13 Ind. 171. There are numerous cases in tliis state where mat- 
 tiTS of practice under the statute of that state are discussed. Wright v. Gos- 
 sett, 15 Ind. 119; Ind., &c. Railw. v. Fisher, id. 203; Same v. Kercheval, 16 
 id. 84 ; Ohio & Miss. Railw. Co. v. Quier, id. 440. See also 19 id. 42 ; 20 id. 
 229 ; 23 id. 438 ; 24 id. 139. And it has been held that all animals killed at one 
 time constitute a separate and indivisible cause of action, and two of these can- 
 not be united to give jurisdiction to the Circuit Court. Ind. & Cin. R. Co. v. 
 Kercheval, 24 Ind. 139. 
 
 ^ Brace V. N. Y. Central RaUw. Co., 27 N. Y. 269. 
 ♦ 494, 495
 
 § 127. tJPON WHOM THE DUTY RESTS. 493 
 
 repair all fences and cattle-guards required of them by law.^^ 
 If such structures are allowed to fall into decay, or are acciden- 
 tally thrown open or thrown down, and not closed and restored 
 within a reasonable time, the company are responsible to the 
 owner of cattle injured by such neglect, provided he is not in fault 
 himself.'-*^ But even where such fences and cattle-guards are 
 properly maintained, the railway companies will be held responsi- 
 ble for all damage to animals caused by the wilful or negligent 
 conduct of their agents and employees. 
 
 21. In New Hampshire the common-law rule of responsibility for 
 damage only as to cattle rightfully in the adjoining fields is main- 
 tained in regard to the duty of railway companies to fence their 
 track, and an omission of this duty will not render them responsi- 
 ble for an injury happening to cattle trespassing upon the track or 
 upon the lands adjoining.^ It is here held that railway compa- 
 nies are not responsible to the owner of lands adjoining their track 
 for damage done upon such lands by cattle suffered by their own- 
 ers to run at large in the highway, and thence escaping upon the 
 railway track, and thus coming upon such adjoining lands, through 
 defect of fences, which it is the duty of the company to maintain. 
 But this seems questionable. We should have said, without 
 much examination or reflection, that although the owners of the 
 cattle are clearly responsible for all such damage, it is not quite 
 certain the company may not also be held responsible for the same 
 damage to the land-owner, inasmuch as the law casts upon them 
 the duty of maintaining the fences against the land, and the 
 damage occurred in consequence of the omission. But the court 
 unquestionably took the surest course to visit the responsibility, in 
 the first instance, where it ultimately belongs. It is here further 
 said diat railways are bound to maintain proper cattle-guards at 
 farm-crossings, and are responsible for all damages to cattle right- 
 fully there by such omission, but are not responsible for any injury 
 to cattle suffered * to go at large in the highway, or wrongfully there 
 for any cause, although such injury may occur by reason of the 
 omission to build and maintain such cattle-guards.^ 
 
 22. A railway company are responsible for all damage done to 
 cattle rightfully in lands adjoining the railway track through de- 
 
 » McDoweU t. N. Y. Central RaUw., 87 Barb. 196. 
 " Chapin v. Sullivan Railw. Co., 89 N. H. 68. 
 " Fost, § 128, pi. 7. 
 
 •496
 
 494 FENCES. CH. XIX. 
 
 feet of fences which the company are bound to maintain ; and 
 they cannot excuse themselves from responsibility by showing 
 that the road is operated for the benefit of other parties, and 
 especially so long as it is done under the direction and control 
 of the company.^ 
 
 23. The building of fences along the line of a railway track is, 
 no doubt, in regard to the security of travel thereon, to be regarded 
 as a matter of police, and a duty which the companies cannot shift 
 upon others by contracts to maintain such fences.*^ And it makes 
 no difference by whom such fences were built, — the company is 
 bound to maintain them in good condition at all times.^^ 
 
 24. A land-owner, who by contract with the company is bound 
 to maintain the fences through his land, cannot recover of the 
 company for damage to cattle by reason of defect of fences, unless 
 he show negligence on the part of the company.^ But a railway 
 company is responsible for cattle killed by their trains at a mere 
 private road-crossing, which was not, but might have been, easily 
 fenced by them.^ This case was controlled by the statute. A 
 sufficient fence in Indiana is held to be such an one as good hus- 
 bandmen usually keep.^* But in many of the states what shall 
 constitute legal fences is defined by statute. 
 
 25. Railway companies are not responsible for damage accruing 
 to domestic animals from want of fences, at points which do not 
 properly admit of being fenced, as in the immediate vicinity * of en- 
 gine-houses, machine-shops, car-houses and wood-yards. ^'^ And 
 where the fence along a railway line is destroyed by unavoid- 
 able accident, as by fire, and is repaired in a reasonable time, but 
 in the mean time cattle get at large by reason of the want of 
 fence, and are injured, the company will not be held responsible.^ 
 
 26. By statute in this state railway companies are made respon- 
 
 » Wyman r. Pen. & Ken. R. Co., 46 Me. 162. 
 
 ^ New Albany & Salem R Co. v. TQton, 12 Ind. 3 ; Same v. Maiden, id. 10. 
 See also Illinois Central R. Co. v. Swearingen, 33 111. 389. 
 
 ^' New Albany, &c. Railw. Co. ». Pace, 13 Ind. 411. 
 
 3« Terre Haute, &c. R. Co. v. Smith, 16 Ind. 102. 
 
 ^ Ind, Central Railw. v. Leamon, 18 Ind. 173. 
 
 ^ Toledo & Wabash Railw. Co. v. Thomas, 18 Ind. 215. If such a fence is 
 maintained, the company is only liable as at common law for negligence, 
 
 ^ Ind. & Cin. Railw. Co. ». Oestel, 20 Ind. 231 ; Galena & Chicago Union 
 R. Co. V. Griffin, 31 111. 303. 
 
 ^ Toledo & Wabash R. Co. v. Daniels, 21 Ind. 266 ; Ind., Pitta. & Qev. R. 
 Co. r. Truitt, 24 id. 162. 
 *497
 
 § 127. UPON WHOM THE DUTY BE8TB. 495 
 
 sible for animals, but not for persons, injured upon their roads, 
 when they might be, but are not fenced, irrespective of the ques- 
 tion of negligence. But when a proper fence is maintained in all 
 places where it is required to be, the company are not responsible 
 for animals injured except, as at common law, where there is neg- 
 ligence on their part conducing to the result, and none on the 
 part of the owner of that character.^ 
 
 27. The requirements of railway companies as to fencing their 
 road are not intended chiefly for the protection of domestic ani- 
 mals, but for the security of travel and transportation, and where 
 the fence is thrown down by third persons without the knowledge 
 of the company that it is down, and cattle stray upon the track and 
 receive injury, the company is not responsible for the damage.^ 
 
 28. Where the plaintiff is guilty of negligence which immediately 
 and directly contributes to the injury of cattle, he caunot recover 
 of a railway company unless by the exercise of ordinary care and 
 prudence at the time the company might have avoided inflicting 
 the injury.® 
 
 29. Where the railway company stipulated with an adjoining 
 land-owner to construct five " cowpits " or cattle-guards upon his 
 land, but did it in so imperfect a manner as to be of no value, and 
 the land-owner brought suit for the breach of contract, it was held 
 he could only recover such damage as he had * sustained up to the 
 time of bringing the action, unless where he had himself con- 
 structed the cattle-guards in a proper manner, when he might also 
 recover the expense of such construction.*^ 
 
 30. Where bars are erected at a farm-crossing at the request of 
 the land-owner, it is his duty to keep them up ; and if he fails to 
 do so, whereby his own cattle or those of third persons straying 
 into his field get upon the track and are injured, the owners of 
 such cattle cannot recover of the company if guilty of no default at 
 the time of the injury.*^ 
 
 " Thayer p. St. Louis, Alton, &c. Railw. Co., 22 Ind. 26 ; McKinley t. Ohio, 
 &c. Railw. Co., id. 99, where it is held it will make no difference as to the re- 
 sponsibility of the company that the road is operated by a receiver. 
 
 » Toledo, &c. Railw. r. Fowler, 22 Ind. 316. 
 
 » Ind. &c. Railw. v. Wright, 22 Ind. 376. 
 
 *" Indiana Central Railw. r. Moore, 23 Ind. 14. 
 
 *• Indianapolis R. Co. p. Adkins, 23 Ind. 340. See also Eames p. Boston & 
 Worcester Railw., 14 Allen. 151. In this case the company erected bars for the 
 accommodation of the land-owner, and the animal killed escaped upon the track, 
 
 *498
 
 496 FENCES. CH. XIX. 
 
 31. A railway running along the line of a highway is required 
 to be fenced with especial care and watchfulness.*^ But where an 
 animal passes upon the track of a railway at the crossing of a high- 
 way, where it would not be proper nor practicable to make any ef- 
 fectual fence or cattle-guards, and is injured, the company is not 
 responsible unless in fault in the management of the train at the 
 time.*^ And it was here considered that notwithstanding the facts 
 that the plaintiff was guilty of negligence in permitting the animal 
 to stray upon the track, and was not an adjoining proprietor, he 
 might recover for an injury thereto by the cars of a railway com- 
 pany if their track was not fenced. But where the owner of a 
 blind horse turned him out upon the common of a town, through 
 which a railway ran, where he was killed by a passing train, and 
 the track was not fenced, it was held he could not recover, on 
 account of his own gross negligence.** 
 
 32. In actions against railway companies, under the statute, for 
 injury to domestic animals, it should appear affirmatively that the 
 case comes within the provisions of the statute. Thus where 
 railways are required to fence their roads within six months after 
 opening them for use, on penalty of being responsible for all cat- 
 tle injured, it should appear, in an action for * injury by reason 
 of such omission, that the six months had expired.*^ So if it 
 claimed that the injury occurred by reason of the omission to 
 fence, it should appear that it occurred at a point in the road 
 where the company were not excused from fencing.*^ To consti- 
 tute a town or village within the statute it is not requisite there 
 should be any plot of the same dedicating streets, &c., in the 
 manner provided by statute.*^ 
 
 by the bars being left down, and afterwards passed upon the adjoining lot, and 
 then upon the railway again, it not appearing precisely how. The court held, 
 the owner could not recover without showing the bars were down without his 
 fault, or else that the animal, after leaving the track, came upon it again through 
 the fault of the company. 
 
 « Ind. & Cin. R. Co. v. Guard, 24 Ind. 222 ; Same v. McKinney, id. 283. 
 
 « Ind. & Cin. R. Co. v. McKinney, 24 Ind. 283. 
 
 ** Knight V. Toledo & Wabash R. Co., 24 Ind. 402. A railway company is 
 not bound to resort to any extraordinary means to insure the fence being kept 
 up along its line night and day ; reasonable diligence is all that is required. Il- 
 linois Central Railw. v. Dickerson, 27 111. 55 ; Same v. Phelps, 29 id. 447 ; Same 
 ». Swearingen, 33 id. 289. 
 
 ** Ohio & Miss. R. Co. V. Meisenhiemer, 27 HI. 30; Same r. Jones, id. 41. 
 
 « Illinois Central Railw. Co. r. Williams, 27 111. 48. 
 •499
 
 § 128. AGAINST WHAT CATTLE BOUND TO PENCE. 497 
 
 33. An owner of mules killed upon the track of a railway by an 
 engine and cars, cannot recover therefor, even where they escaped 
 from a properly fenced enclosure without his knowledge, and were 
 on the highway at its intersection with the railway .^'^ 
 
 SECTION II. 
 Against %ohat Cattle the Company is bound to fence. 
 
 6. Comment upon the last case. 
 
 6. Statement of case in Massachusetts. 
 
 7. Further comment on the last case. 
 
 8. Rule of responsibility as held in Ken- 
 
 tucky. 
 
 9. Rule laid doum in Ohio. 
 
 10. Rule in Indiana. 
 
 11. Distinction between suffering cattle to go 
 
 at large and accidental escape. 
 
 1. At common law every owner bound to re- 
 
 strain his own cattle, 
 
 2. And if bound to fence against others' land, 
 
 it extends only to those cattle rightfully 
 ufxm stich land. 
 
 3. Company may agree with land-owner to 
 
 fence, and this will escuse damage to 
 cattle. 
 n. 6. Review of cases upon this subject. 
 
 4. Owner may recover unless guilty of express 
 
 neglect. 
 
 § 128. 1. At common law the proprietor of land was not obliged 
 to fence it. Every man was bound to keep his cattle upon his 
 own premises, and he might do this in any manner he chose. ^ 
 
 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 statute, 
 in terms, imposes upon railways the duty of fencing their roads, 
 that they are not bound to fence, and that the owner of cattle is 
 
 « North Penn. Railw. Co. v. Rehmon, 49 Penn. St. 101. 
 
 ' Dova«ton p. Payne, 2 H. Bl. 627 ; Rust v. Low, 6 Mass. 90, 99 ; Jackson 
 p. Rut. & Bur. Railw., 25 Vt. 157, 168; Wells p. Howell, 19 Johns. 385; Man- 
 chester, Sh. & Lincoinsh. Railw. p. Wallis, 14 C. B. 243 ; 8. c. 25 Eng. L. & Eq. 
 373 ; Morse r. Rut. & Bur. Railw., 27 Vt. 49 ; Lafayette & Ind. Railw. p. Shriner, 
 6 Porter (Ind.), 141 ; Woolson p. Northern Railw., 19 N. H. 267 ; Indianapolis 
 & Cin. Railw. p. Kinney, 8 Ind. 402. But in Pennsylvania the common-law nile 
 in regard to keeping one's cattle at home is reversed by statute, and improved 
 lands must be fenced in order that the owner may recover for damages done by 
 Stray cattle. Gregg p. Gregg, 26 Legal Intel. 372, Nov. '68. 
 
 * Same cases above ; Lord p. Wormwood, 29 Maine, 282. 
 
 ' Ricketta p. East & West India Docks & Birmingham J. Railw., 12 C. B. 101 ; 
 8. c. 12 Eng. L. & Eq. 620 ; Perkins p. Eastern Railw. Co., 29 Maine, 307 ; Towns 
 p. Cheshire Railw., 1 Foster, 368; Cornwall p. Sullivan Railw. 8 Foster, 161! 
 
 82 *600
 
 498 FENCES. CH. XIX. 
 
 bound to keep them oflf 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 recover for any damage 
 which may befall tliem.° 
 
 * 3. But where a railway is not obliged to fence unless requested 
 
 * Vandegrift r. Rediker, 2 Zab. 186 ; Tonawanda Railw. v. Munger, 6 Denio, 
 255; s. c. affirmed in error, 4 Corast. 349; Clark r. Syracuse & Utica Railw., 
 11 Barb. 112; Williams r. Mich. Central Railw., 2 Mich. 259; New York & 
 Erie Railw. r. Skinner, 19 Penn. St. 298. 
 
 * Brooks V. New York & Erie Railw., 13 Barb. 594. In this case it was held 
 that the statute requiring railways to maintain cattle-guards at road-crossings 
 did not extend to farm-crossings. So too it has been held that the statute re- 
 quiring gates or cattle-guards at road-crossings does not extend to street-cross- 
 ings. Vanderkar v. Rensselaer & Sara. Railw., 13 Barb. 390. In Central 
 Military Track Railw. v. Rockafellow, 17 Illinois, 541, the rule is laid down in 
 regard to cattle straying upon a railway, that they are to be regarded as wrong- 
 fully upon the road, and the owner cannot recover for an injury, unless caused 
 by wilful 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 Railw. v. Reedy, 17 Illinois, 580, the same court say, 
 *' Animals wandering upon the track of an unenclosed 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 that the animal was 
 killed " is not enough. 
 
 In Munger v. Tonawanda Railw., 4 Comst. 349, it is held, that cattle escaping 
 from the enclosure 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 com- 
 pany if the negligence of the plaintiff concurred with that of the company in 
 producing an injury to the cattle while in that situation ; and that the law 
 charges the owner of cattle, in such case, with negligence, although his enclos- 
 ures are kept well fenced, and he is guilty of no actual negligence, in suffering 
 the cattle to escape. And it was accordingly held, that the company was not 
 liable, under such circumstances, for negligently running an engine upon and 
 killing the plaintiff's cattle. 
 
 The same principles substantially are maintained in the same case, 5 Denio, 
 255. And it is further held here, that where the general statutes of the state 
 allow towns to prescribe what shall be a legal fence, and when cattle may run 
 at large in the highway, and which forbid a recovery for a trespass by cattle 
 lawfully in the highway, by one whose fences do not conform to the town ordi- 
 nance 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. 
 •601
 
 § 128. AGAINST WHAT CATTLE BOUND TO FENCE. 499 
 
 by the land-owner, and had agreed with such owner tliat they 
 should not fence against his land, and a cow placed in such lands 
 strayed upon the track of the road, and was killed by a train, it 
 was held the owner of the cow, having by his own fault contributed 
 to the loss, could not recover of tlie company.* 
 
 4, In a late case in Connecticut," it was decided that where cat- 
 tle are at large without the fault of the owner, and go upon the 
 track of a railway, and are injured through the negligence of the 
 company in the management of their train, the owner is not pre- 
 cluded from recovering damages, because the cattle were tres- 
 passers upon the railway. In order to preclude the plaintiff 
 from recovery in such case, he must have been guilty of express, 
 and not merely of constructive, wrong in suffering the cattle to go 
 at large. 
 
 * 5. VVe could not dissent from the propositions maintained in the 
 preceding case, notwithstanding some hesitation in regard to the 
 proper construction placed by the court upon the facts found in 
 the case. The law of every case must be judged of by the facts 
 which the court assume to be established in deciding it. It would 
 be as unfair to criticise the decision of a court, upon a new construc- 
 tion of the facts, as it would upon a different state of the testimony 
 at a different trial. The decision of a court is good or bad upon 
 the facts assumed by the judge, and no fair-minded man will at- 
 tempt to escape from the weight of an authority by assuming or 
 
 • Tower v. Providence and Worcester R&ilw., 2 Rhode Island, 404. 
 
 ' Isbell V. New York & New H. Railw. Co., 27 Conn. 393. The courta in 
 Indiana, in hearing cases in error, feel bound to presume that the court below 
 applied the testimony correctly in determining localities and geographical 
 boundaries, and especially in matters affecting jurisdiction, as tlie local courta 
 would more naturally understand these (juestions than another less familiar 
 with the facts. Ind., &c. Railw. Co. v. Moore, 16 Ind. 43; Same c. Snelling, 
 id. 435. 
 
 By the law of Indiana, before the statute of 18.59, it must appear, in order 
 to recover damages for animals killed or injured by a railway company, that it 
 occurred through the negligence of the company, and without the immediate 
 fault of the owner. Wright p. Ind., &c. Railw. Co., 18 Ind. 168; Toledo A 
 Wabash Railw. Co. v. Thomas, id. 215. The act of 1859 is prospective only. 
 Ind., &c. Railw. Co. p. Elliott, 20 id. 430. It was here made a question whether 
 a statute awarding damages to the owners of animals killed or injured by the 
 rolling stock of any railway, applied equally to freight as to passenger traina, 
 and it was held that it did. The wonder is that any such question should ever 
 be made. We never before supposed there could be any doubt in regard to it. 
 
 •602
 
 600 FENCES. CH. XIX. 
 
 even proving, that the judge took a mistaken view of the facts. It 
 is merely an attempt to balance one assumed blunder of the court, 
 by showing that tliey fell into another in an opposite direction. A 
 decision is good upon the ground upon which it is placed, or it is 
 wrong upon every ground. 
 
 6. We have said thus much in order to state that the case of 
 Browne v. Providence, Hartford, and Fishkill Railway Company,^ 
 which decides that a railway corporation, which is obliged by law 
 to make all needful fences and cattle-guards upon the sides of its 
 track, is liable for injuries by its engines to cattle straying at large 
 through the land of a stranger upon its road, by reason of its neg- 
 ligence in not erecting fences and cattle-guards as required by 
 statute, seems clearly to have assumed a different rule of respon- 
 sibility, as against railway companies, from that which has ordina- 
 rily been before applied to all lawful business, as between adjoining 
 proprietors. Indeed, the court distinctly assume the position, that 
 the common-law responsibility imposed upon adjoining land-owners 
 is not sufficient, and that railway companies must be held to a 
 higher degree of responsibility, " on account of the new circum- 
 stances and condition of things arising out of the general introduc- 
 tion and use of railways in the country," and that the requirements 
 of the railway companies in regard to fencing and cattle-guards 
 " were designed for the safety of the * public, and for the protection 
 of all domestic animals, whether rightfully or wrongfully out of 
 their owners' enclosure." 
 
 7. This decision certainly has the credit of meeting the ques- 
 tion involved fairly, and of wrestling manfully with its difficulties, 
 and of placing it upon the only plausible ground, that the business 
 was so dangerous to the public that it merited a more extended 
 construction, where railways are required to fence their roads, 
 than where other land-owners were required to do the same thing. 
 We had always supposed that railways were required to fence their 
 roads for the protection of their passengers, and of persons and 
 animals rightfully in the highway or the adjoining lands. And we 
 have yet to learn any sound principle upon which they can fairly 
 be required to guard against injuries to persons or animals wrong- 
 fully upon their track, by making permanent erections to preclude 
 such persons or animals from coming there. It is true, unques- 
 tionably, that railway companies, in common with all others, are 
 
 8 12 Gray, 65. Ante, § 127, pi. 21, and notes. 
 •603
 
 § 128. AGAINST WHAT CATTLE BOUND TO FENCE. 601 
 
 bound to avoid doing an injury to any one, if it can be avoided at 
 the time, whether such person or his property be rightfully or 
 wrongfully in their way ; but that this duty extends to previous 
 precautions against doing injuries to persons wrongfully upon their 
 track, either personally or by their property, is more than can 
 fairly be maintained, as it seems to us, unless railways are to 
 be outlawed in this respect Every one in the exercise of a law- 
 ful business has the right to expect, and to conduct his business 
 upon the expectation that others will also perform their duty, and 
 if they do not, that they will be required by the administrators of 
 the law to take the natural consequences of such neglect, provided 
 that even when in fault, in exposing themselves or their property 
 to damage and loss, from the lawful pursuit of lawful business by 
 others, they be not wantonly damaged by such others, but only 
 from necessity. And this is all which we understand to have been 
 decided by the case of Isbell v. New York and New Haven Railway 
 Company J And in the later case in Massachusetts,* Chapman, J., 
 seems to assume the same ground, and it is the only one in our 
 judgment fairly maintainable. 
 
 8. A railway company which is not bound to fence its track * is 
 not liable for injuries inflicted by its engines and trains upon cat- 
 tle straying upon the track of the road, unless such injury was 
 caused by the wanton and reckless negligence of the company 
 through its agents and servants.^^ 
 
 9. It was held in Ohio," that where a land-owner granted to the 
 company the right of way of a given width, and covenanted to 
 maintain the fences on both sides, and subsequently conveyed the 
 land, it was held that the grantee of the land was so far affected 
 by his grantor's covenant to maintain the fences on the line of the 
 railway that he could not visit any consequences upon the com- 
 pany resulting from its not being performed, but must bear them 
 himself. 
 
 10. Where the owner of cattle was not in the habit of suffering 
 his cattle to go at large on the railway track, and was not in a 
 position to take any steps to avert the danger they might be in 
 from the passing trains of the company, the presence of the cat- 
 
 • Rogers r. Newburyport Railw. Company, 1 Allen, 16. 
 » Lou. & Frankfort R. Co. v. Ballard, 2 Met. (Ky.) 177. 
 » Easter r. Little Miami R. Co., 14 Ohio N. S. 48. See also McCool r. Galena 
 & Chicago Union R. Co., 17 Iowa, 461. 
 
 •604
 
 602 FENCES. CH. XIX. 
 
 tie upon the track will be regarded as accidental, and at most 
 they will be deemed but as trespassers, and be presumed to have 
 escaped through the insufficiency of fences, and liable for any 
 damage they might cause. But if the servants of the company 
 used no means to avoid killing the cattle, and manifested such 
 indifference to consequences, such a degree of rashness and wan- 
 tonness as evinced a total disregard for the safety of the cattle, 
 and a willingness to destroy them, although the destruction may 
 not have been intentional, in justice and upon principle the 
 company should be held responsible for the damages, unless it 
 appear that the owner was equally in fault.^ The simple killing 
 of an animal by a railway company's train is prima fade evi- 
 dence of negligence on the part of their engineer.^^ 
 
 11. In one case ^^ it was held that the negligence on the part of 
 * the owner of cattle, which shall preclude his recovery for an injury 
 to them by a railway train, must depend more upon its degree 
 than upon the time when it occurs ; and a distinction in this re- 
 spect should be made, between one who suffers his cattle knowingly 
 to go at large where they will naturally be exposed to passing 
 trains upon a railway, and cases where the cattle get at large with- 
 out the owner's knowledge, through defect of fences or their being 
 temporarily thrown down. 
 
 " Indianapolis, &c. R. Co., v. Meek, 10 Ind. 602. 
 
 " C. H. & N. W. R. Co. V. Goss, 17 Wise. 428. All questions of negli- 
 gence, where there is any uncertainty in the facts, must be submitted to the jury 
 under proper instructions. Congor v. Galena, &c. U. R. Co., id. 477. We 
 have discussed this question in Briggs v. Taylor, 28 Vt. 180, 184. Post, § 176, 
 pi. 2. 
 
 *605
 
 §129. 
 
 CONTRACTORS AND THEIR AGENTS. 
 
 503 
 
 •CHAPTER XX. 
 
 LIABILITIES IN REGARD TO CONTRACTORS, AGENTS, AND SUB-AGENTS. 
 
 SECTION L 
 LiabUityfor Acta and Omissions of Contractors and their Agents. 
 
 1. Compann twl ordinarily liable far tie act 
 
 of the contractor or his tervatU. 
 
 2. BtU if the contractor is empUnfod to do the 
 
 very act, campanj/ is liable. 
 8. AmericoH court* seem disposed to adopt 
 
 the same rule. 
 4. Distinction attempted between liability for 
 
 acts done upon movable and iwimovable 
 
 property not maintainable. 
 6. Cases referred to tohere true grounds of 
 
 distinction are stated. 
 
 6. No proper ground of distinction in regard 
 
 to mode of employment. 
 
 7. Proper basis of company's UabHity ex- 
 
 plained. 
 
 8. 
 
 9. 
 
 So long as one retains control of work he 
 is responsible ftr the conduct of it. 
 
 A master workman is only responsible for 
 the faithfulness and care of his work- 
 men, in the business of their employ- 
 ment. 
 10. Railway company responsible for injuries 
 consequent upon defects of construction, 
 in the course of the work by a ooit- 
 tractor. 
 
 But ordinarily the employer is not respon- 
 sible for the negligent mode in which 
 work is done, the contractor being only 
 employed to do it in a lawful and rea- 
 sonable manner. 
 
 11 
 
 § 129. 1. The general doctrine seems now firmly established, that 
 the company is not liable for the act of the contractor's servant, 
 where the contractor has an independent control, although subor- 
 dinate, in some sense to the general design of the work. The dis- 
 tinction, 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 con- 
 tractor.^ 
 
 ' Laugher e. 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 t. Fox, 5 Exch. 721 ; 
 Burgess v. Gray, 1 C. B. 678 ; Overton r. Freeman, 11 C. B. 867 ; 8. c. 8 Eng. 
 L. & Eq. 479 ; Peachey c. Rowland, 13 C. B. 182 ; 8. c. 16 Eng. L. & Eq. 442 ; 
 Rapson p. Cubitt, 9 M. & W. 710; Reedie t. London & N. W. Railw., 6 Railw. 
 C. 184 ; Hobbitt r. Same, 6 Railw. C. 188 ; 8. c. 4 Exch. 244 ; Steel r. South- 
 eastern Railw., 16 C. B. 550; s. c. 32 Eng. L. & Eq. 366. In this last 
 case, the action against the company was for flowing plaintiff^s land, by the 
 defective manner in which certain mason work was done, by the workmen 
 of one Fumess, who did the work as a contractor under the company, but under 
 the superintendence of one Phillips, the surveyor of the company, who furnished 
 
 •506
 
 504 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. OH. XX. 
 
 * 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.2 Lord Campbell, Ch. J., here said, " The position 
 in effect contended for by defendants' counsel, I think wholly 
 untenable, namely, that where there is a contractor, the employer 
 can in no case be made liable. It seems to me, that if the con- 
 tractor 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 protect 
 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 disposition, 
 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 omissions of a contractor, 
 the same as for those of a servant.^ 
 
 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. 
 Cresswell, 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 com- 
 pany's surveyor, it might have been said that was the same as if Phillips had done 
 it with his own hands, and 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. See also Young v. New York Central Railw., 30 
 Barb. 229. But if a servant of the contractor, while employed on the work, 
 receive an injury from a passing train of the company through the fault of their 
 servants, and without his own fault, he may maintain an action against the com- 
 pany, lb. See also City of Cincinnati v. Stone, 5 Ohio N. S. 38. 
 
 ' Ellis V. The Sheffield Gas Consumers' Co., 2 El. & Bl. 767 ; s. c. 22 Eng. 
 Law & Eq. 198. 
 
 ' Kelly V. Mayor of New York, 1 Keman, 432 ; Blake v. Ferris, 1 Selden, 
 48 ; Pack v. The Mayor of New York, 4 Selden, 222 ; Hutehinsoif v. York and 
 Newcastle Railw., 5 Exch. 343; 8. c. 6 Railw. C. 580, 589.- 
 
 * Bush V. Steinman, 1 B. & P. 404 ; Lowell v. Boston and Lowell Railw. 23 
 
 •607
 
 § 129. CONTRACTORS AND THEIR AGENTS. 505 
 
 * 4. At one time a distinction was attempted to be maintained, 
 between the liability of the owner of fixed and permanent prop- 
 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.^ Bnt the distinction was found to 
 rest upon no satisfactory basis, and was subsequently abandoned.^ 
 
 5. The grounds of all the decisions upon this subject are fully 
 and satisfactorily explained, in the late cases of Ellis v. Gas Con- 
 sumers' Company ,2 and Steel 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 operatives in 
 the latter and not in the former case. But this is obviously no 
 satisfactory ground upon which to determine the question, although 
 it might, in point of fact, come very nearly to * effecting the same, 
 or a similar separation of the instances in which the employer is 
 or is not liable. 
 
 7. The true ground of the distinction being, after all, not the 
 
 Pick. 24. See also, upon this point, Mayor of New York r. Bailey, 2 Denio, 
 433 ; Elder r. Bemis, 2 Met. 599 ; Earle r. Hall, id. 353. In the latter case the 
 subject 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 
 satisfactory opinion, by Mr. Justice Thomas, in which the cases are very exten- 
 sively reviewed, and the old rule of Bush v. Steinman distinctly repudiated. 
 
 * Rich IT. Basterfield, 4 C. B. 783; The King v. Pedley, 1 Ad. & Ellis, 822. 
 And see Fish r. Dodge, 4 Denio, 311. Littledale, J., in Laugher r. Pointer, 5 
 B. & C. 547. Parke, B., in Quannan v. Burnett, 6 M. & W. 510; Randleson 
 r. Murray, 8 Ad. & Ellis, 109. 
 
 * Alien ». Hayward, 7 Q. B. 960; Reedie v. London and N. W. Railw., 4 
 Exch. 244. But it is still maintained, by some, that if the owner or occupier of 
 real estatu employ workmen under a contract which presupposes the underlet- 
 ting of the work, or the employment of subordinates, and in the course of the 
 accomplishment of the work any thing is done, by digging or suiTering rubbish to 
 accumulate, which amounts to a public nuisance, whereby any person suffers 
 special damage, the owner or o«"cupier of the premises is liable. Bush v. Stein- 
 man, 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 wrong- 
 ful act. Burgess v. Gray, 1 C. B. 578. If the nuisance occurred naturally, in 
 the ordinary course of doing the work, the occupier is liable ; but if it is some 
 irregularity of the contractor, or his servants, he alone is responsible. See 
 Carman r. Stubenville and Ind. Railw., 4 Ohio N. S. 399; Thompson r. New 
 Orleans & Carrollton Railw., 1 Louis. Ann. 178 ; 8. c. 4 id. 262 ; 8. c.\0 id. 403. 
 
 •608,609
 
 506 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 form of the employment, or the rule of compensation, but whether 
 the work was done under the immediate control and direction 
 of the employer, so that the operatives were his servants, and not 
 the servants of another, who was himself the undertaker for ac- 
 complishing the work, and having a separate, and independent, and 
 irresponsible control of the operatives, bringing the question again 
 to the same point, the difference between a contractor and a servant." 
 
 8. In a recent case before the Privy Council, where the owner 
 of land employed Indian laborers in the Mauritius, at so much 
 per acre, to clear it, which they did, partly by lighting a fire so 
 negligently that sparks were carried by the wind upon the land 
 of another, and there burned down his house, it was held, upon 
 the ground that the owner of the land retained control of the 
 work, and made constant interference in the conduct of it, that he 
 was responsible for the negligence of the workmen, as the relation 
 of master and servant, or superior and subordinate, continued.^ 
 
 9. Where one gratuitously permits a carpenter to do a piece of 
 work in a shed belonging to the former, and one of the workmen 
 of the carpenter, in the course of the work, dropped a match with 
 which he had lighted his pipe, and thereby set fire to the shed, it 
 was held the master was not responsible for the damage ; notwith- 
 standing the jury found it occurred from the negligent act of the 
 defendant's workman.^ But it would have been otherwise if the 
 negligence had occurred in the course of the employment. 
 
 ' In the case of Blackwell v. Wiswall, 24 Barb. 355, is an elaborate opinion 
 by Harris, J., which was affirmed 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 acts 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. 
 
 » Serendat ». Saisse, Law Rep. 1 P. C. 152; 8. c. 12 Jur. N. S. 301. The 
 case was governed by the rule laid down in the Code Napoleon, but that is not 
 essentially different from the rule of the English law upon'the subject. 
 
 » Williams v. Jones, 3 H. & C. 602 ; s. c. 11 Jur. N. S. 843 ; Woodman v. 
 *509
 
 § 130. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 
 
 607 
 
 10. And when a railway company was empowered by act of 
 parliament to build a bridge across a navigable river, but were to 
 do it so as not to detain vessels longer than while persons and 
 teams ready to cross the bridge were passing over ; and during the 
 construction of the work by a contractor, by some defect of con- 
 struction the bridge could not be raised, and the plaintiff's vessel 
 was detained, it was held the company were responsible.^^ 
 
 11. A person employing another to do a lawful act is presumed, 
 in the absence of evidence to the contrary, to employ him to do it 
 in a lawful and reasonable manner ; and, therefore, unless the 
 parties stand in the relation of master and servant, the employer 
 is not responsible for damages occasioned by the negligent mode 
 in which the work is done.^^ 
 
 •SECTION IL 
 
 lAabUUy of the Company for the Acta of their Agents and Servants. 
 
 10 
 
 1. Courts manifett disposition to give tuch 
 
 agents a liberal discretion. 
 
 2. Company liable for torts committed bj/ 
 
 agents in discharge of their duties. 
 8. May be liable for wilfiU act of servant in 
 
 the range of his employment. 
 4. Some of the cases hold it necessary to show 
 
 the assent of the company. 
 n. 6. Cases upon this subject reviewed. 
 6. Most of the cases adhere to the principle of 
 
 respondeat superior. 
 6. But it seems not to have been amsidered 
 
 that the company is preaaU, 
 7.* The cafes seem to regard the compaiuf a$ 
 
 always absent. 
 
 8. In cases where the company owe a special 
 
 duty, the act of the senxad 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. 
 
 § 130. 1. The extent of the liability of railways for the acts of 
 their servants and agents, both negative and positive, seems not 
 very fully settled in many of its incidents. But the disposition of 
 
 Joiner, 10 id. 852 ; Bartlett v. Baker, 3 H. & C. 153 ; Blake r. Thirst, 2 
 id. 20. •" Hole r. Sittingbonne & Sheemess Railw., 6 H. & N. 488. 
 
 » Butler V. Hunter, 7 H. & N. 826. 
 
 •610 
 
 What shall amount to ratifcation of the 
 act of an agent by a corporation diffi- 
 cult to d^ne. 
 
 How corporations may be held responsible 
 for the publication of a libel. 
 
 The powers of a corporation are such 
 only as are conferred by c/iarter. 
 
 False certificate of capital being paid in 
 money. 
 
 Gas company not bound to supply gas to 
 all who require it. 
 16. Company may become responnltie for false 
 imprisonment. 
 
 Company responsible for injury done by 
 various animals kejit by them or suffered 
 to remain about their stations. 
 
 The general manager of a railway com- 
 pany may bind them for medical aid for 
 servant injured in their employment. 
 
 11 
 
 12. 
 
 18 
 
 14. 
 
 16 
 
 17.
 
 508 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 the courts has been to give such agents and servants a large and 
 liberal discretion, and' hold the companies liable for all their acts, 
 within the most extensive range of their charter powers.^ 
 
 * 2. This seems the only construction which will be safe or just, 
 or indeed practicable. It has long been settled, that corporations 
 are liable for torts committed by their agents, in the discharge of 
 the business of their employment, and within the proper range of 
 such employment.^ 
 
 3. But it has been claimed sometimes, that a corporation is not 
 liable for the wilful wrong of its agents or servants.^ This opinion 
 seems to rest upon those cases which have maintained that the 
 master, whether a natural person or a corporation, is never liable 
 for the wilful act of his servant.* Without stopping here to dis- 
 cuss the soundness of the general principle, as applicable to the 
 relation of master and servant, it must be conceded, we think, that 
 it is not applicable to the case of corporations, and especially such 
 as railways. In regard to such corporations, it seems to us alto- 
 gether an inadmissible proposition, to excuse them for every act of 
 their servants and agents which is done, or claimed to have been 
 done, positively and wilfully, and which results in an injury to some 
 
 ' Derby p. Phil. & Read. Railw., 14 Howard, 468, 483: Noyes v. Rutland 
 & Burlington Railw., 27 Vt. 110. We may suppose the officers and servants 
 of railways to take exorbitant fare and freight, to refuse to permit passengers 
 to have tickets at the fixed rate, or to destroy the life of animals, or of persons, 
 by recklessness, or wantonness, in the discharge of their appropriate duties, and 
 it would be strange if the company were liable in the former case, on account of 
 their special duty as common carriers, and not in the latter, because they owed 
 no duty to the public in that respect. Alabama & Tenn. Rivers Railw. v. Kidd, 
 29 Alabama, 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. Railw., 14 How. (U. S.) 468, 483. See 
 also Southwick ». Estes, 7 Cush. 385. 
 
 * Yarborough v. The Bank of England, 16 East, 6 ; Queen v. Birmingham, 
 & Gloucester Railw., 3 Ad. & Ell. (N. S.) 223 ; Hay v. Cohoes Co., 3 Barb. 42 ; 
 2 Aiken's Vt. 255, 429 ; Bloodgood v. M. & H. Railw. 18 Wend. 9 ; Dater v. 
 Troy T. & Railw., 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., 
 32 N. H. 295. 
 
 ^ Foster v. The Essex Bank, 17 Mass. 479, 510 ; State v. Morris & Essex 
 Railw., 3 Zab. 360, 367. 
 
 * M'Manus v. Crickett, 1 East, 106 ; Croft v. Allison', 4 B. & Aid. 590 ; 
 Wright V. Wilcox, 19 Wend. 343. 
 
 •611
 
 § 103. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 509 
 
 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.* 
 
 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 impulses, 
 the act is his, and not that of the corporation.^ 
 
 » Edwards r. The Union Bank of Florida, 1 Florida, 136 ; Whiteman r. Wil- 
 mington & 8us. Railw., 2 Harr. 514. 
 
 • Phil., Germantown & N. Railway t?. Wilt, 4 Whart. 143; Fox ». The 
 Northern Liberties, 3 W. & S. 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 c. 
 Crickett, 1 East, 106, for they all profess to base themselves upon that case. 
 
 That case we apprehend was never intended to decide more than that the 
 master is not liable, in trespass, for the wilful act of the servant. Lord Kent/on, 
 Ch. J., in delivering his opinion in that case, with which the court concur, ex- 
 pressly says, speaking of actions on the case, brought against the master, where 
 the servant negligently did a wrong, in the course of his employment for the 
 master : — 
 
 " The form of these actions shows, that where the servant is, in point of law, 
 a trespasser, the master is not liable, as such, though liable to make compensa- 
 tion 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 im- 
 pliedly 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 senant 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 ua unsound, although (juoted from 
 80 ancient a date as Rollers Abridgment, and adopted by so distinguished a judge 
 as Lord Kenrjon. 
 
 The truth is the whole argument is only a specious fallacy ; and whether Lord 
 Kenyon 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 ver)' obvious the proper distinction, in regard to the master's liability, 
 cannot be made to depend upon the question of the intention of the servant. 
 The master has nothing to do, either way, with the purpose and intention of 
 his servants. It is with their acts that he is to be affected, and if these come
 
 510 LIABILITY FOR CONTRACTORS, AGENTS AND SUB-AGENTS. CH. XX. 
 
 /' 
 
 * 5. Most of the cases, upon the subject of the liability of railways, 
 for the acts of their officers, agents and servants, have * attempted 
 
 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 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 ser- 
 vant and such party, no duty owing to such person from the servant. But in 
 such case the servant will be liable for his positive wrongs, and wilful acts of in- 
 jury, and the master is also liable for these latter acts, but not in trespass, as the 
 servant is ordinarily, but in case. 
 
 And so, where the servant goes out of his emplojTuent, 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 emplojinent, 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 
 compelled to pay a fine for the act as the omission. State v. Vermont Central 
 Railw., 27 Vt. 103; Maund v. The Monmouthshire Canal Co., 4 M. & G. 452, 
 where it is held, that trespass wiU lie against a corporation for the act of its 
 servant. 
 
 This is familiar law in the American courts. And it is not deemed of any 
 importance that the agent should act by any particular form of appointment ; 
 and it would be strange if the liability of the corporation could be made to 
 depend upon the intention of the agent. 
 
 This distinction is not claimed to be of any importance where the company 
 owe a duty, as carriers of freight or passengers, for there the corporation are 
 liable 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 wilfully, 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 suffer- 
 ing 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 belialf, 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 
 * 612, 613
 
 § 130. LIABIUTIEB IN BE6ARD TO AGENTS AND SERVANTS. 511 
 
 to carry out the analogy of principal and agent, or * master and 
 servant, as between natural persons, and to apply strictly the 
 principle of respandeat superior.' 
 
 done purposely by the engineer, of other servants or the company. It u proba- 
 bly true, that if the engineer should kill cattle, in any way wholly disconnected 
 with his emplojTnent, either upon the land of the company, or of others, the com- 
 pany could not be made liable ; but if the engineer should destroy them wilfully, 
 by rushing the engine upon them, the company would be liable undoubtedly, if 
 any one were, of which there can 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 Railw. v. The European & Am. Telegraph 
 Co., 9 Exch. 363, seems to have adopted, in principle, the view for which 
 we contend. The act here complained of was, boring under the railway, 
 and it was held the company had no right to do so, and that they were liable, in 
 trespass, for this unauthorized act of their servants. See also Sinclair r. Pearson, 
 7 N. H. 219, 227, opinion oi Parker, Ch. J. ; Phil. & Reading Railw. p. Derby, 
 14 How. 468, 483, Orier, J. ; Case of the Druid, 1 Wni. Rob. 391, opinion of 
 Dr. Lnshington, reviewing the cases. 
 
 And we do not very well see why the railway is not liable to the very same 
 action which the 8er\'ant would be, because his act is the act of the corporation, 
 within the range of his employment, as running over ^heep upon the track, 
 in Sharrod v. London & N. W. Railw., 4 Exch. 580, where it is held the 
 action must be case. The distinction between this case and that of The South- 
 eastern Railw. r. 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. Railw. Co. p. Wilt, 4 Whart. 143, where it is said the 
 action should be case, and that trespass will not lie unless the act is done by the 
 command or with the assent of the corporation, which never occurs. Corpora- 
 tions do not vote such acts. A vote of a corporation that their engineers should 
 run their engines over cattle would be an anomaly. 
 
 In Sleath t. Wilson, 9 C. & P. 607, where a servant had been driving his 
 master^s carriage, and being directed to return to the stable, or while that was 
 his duty, in the ordinarj' course of his employment, he went out of his way with 
 the carriage, to do some errand of his own, and drove against a person negli- 
 gently ; it was held that the master was liable, this being the act of the servant, 
 in the course of his employment, because the injurj- was done with the master's 
 horses and carriage, which he put into the servant's hands. 
 
 But here the servant was far more obviously going aside of his emplo^inent. 
 
 ' Sherman t. Rochester, &c. Railw., 15 Barbour, 574, 577; Vanderbilt v. 
 Richmond T. C, 2 Comst. 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 c. Mayor of 
 New York, 1 Selden, 369; Ross c. Madison, 1 Carter (Ind.), 281. 
 
 ♦614
 
 512 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 * 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 
 
 than in the supposed cases of his assuming to do a wilful wrong in the direct 
 course of his ordinary employment. 
 
 This case certainly cannot stand with the argument of the court, 1 East, 106. 
 And yet it is confirmed by other cases. Joel v. Morrison, 6 C. & P. 501. Any 
 different view of this subject will, it seems to us, in principle, bring us back to 
 the earlier theory of the relation of corporations to their servants ; that corpora- 
 tions are not liable for torts, committed by their servants, they having no 
 authority to bind the corporation by unlawfid acts. 
 
 There is an elaborate case in 20 Maine, 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. 
 
 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. Felder v. Railw. Co., 2 
 McMullan, 403. 
 
 See also Mitchell v. Crassweller, 13 C. B. 237 ; s. c. 16 Eng. L. & Eq. 448; 
 Leame v. Bray, 3 East, 593 ; Claflin ». Wilcox, 18 Vt. 605, where the principles in- 
 volved in this inquirj'are examined. Smith v. Birmingham GasCo., 1 Ad. «&E11. 526. 
 
 In two cases in Vol. 24 Conn., Crocker v. New London, W. & P. Railw., 249, 
 and Thames Steamboat Co. v. Housatonic Railw., 40, the general proposition is 
 maintained, that railway companies are not liable for acts done without the 
 command of the agent, having the superior control in that 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 proposi- 
 tion. See also Giles v. TaffVale Railw., 2 Ell. & Bl. 822; Glover ». London 
 & North W. Railw., 5 Exch. 66. 
 
 It is said, in Illinois Central Railw. ». Downey, 18 111. 259, that case cannot 
 be maintained against a corporation for injuries wilfully and intentionally com- 
 mitted by its servants, and not occasioned in the course of their employment in 
 the pursuit of their regular business. The judge, in lapng down the proposition, 
 seems to found himself upon the form of the action. But if any action will lie 
 against a corporation for the wilful misconduct of its agents, we do not see why 
 it may not be the same ordinarily brought against natural persons for similar 
 injuries. But the proposition laid down in the case is not entirely clear or per- 
 spicuous. The act of a servant may be in the direct course of his employment 
 and business, and still be wilful, and that was the very case before the court, if 
 the act was done wilfully. 
 *616
 
 § 130. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 513 
 
 consideration, in regard to natural persons, is held sufficient, 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 within the range of his 
 employment.^ 
 
 S. This distinction is of no importance in regard to the liabiHty 
 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 abstraction 
 should not be regarded as always existing and present in the dis- 
 charge of its functions. It is indeed a mere fiction, whether we 
 regard the company as present or absent. And it seems more just 
 and reasonable, that the fiction should not be resorted to, to excuse 
 just responsibility. It is certain we never require proof of any 
 organic action of the corporation, to constitute railways carriers 
 of freight and passengers. All that is required, to create the lia- 
 bility, is the fact of their assuming such offices. So, too, for the 
 most part, in regard to injuries to strangers and mere torts, it is 
 not expected that proof will be given of any express authority to 
 the servant or employee to do the particular act." 
 
 ' Morse v. The Auburn & Syr. Railw. Co., 10 Barb. 621 ; Vanegrift ». Railw., 
 2 N. J. 185, 188. See also Burton r. Philadelphia, &c. Railw., 4 Harring. 
 (Del.) 252. 
 
 ' 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 
 servant. M'l^ughlin r. Pryor, 1 Car. & M. 354. 
 
 '** Foster v. The Essex Bank, 17 Mass. 479, 510. Trespass will lie against a 
 railway company. Crawfordsville Railw. v. Wright, 5 Ind. 252. 
 
 " Lowell V. Boston & Lowell Railw., 23 Pick. 24. Numerous cases upon the 
 
 subject of the liability of railways show this practically. Where the company 
 
 begins to run trains before condemning the land to their use, it is seldom that 
 
 the act of running them is traceable directly to the corporation, except as the 
 
 . act of the employees. This is always done by design, and never any doubt was 
 
 . entertained that the company are liable, and in trespass, to the land-owner, 
 
 38 ♦sie
 
 514 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 * 10. What shall amount to a ratification of the acts of its agent 
 by the stockholders of the corporation, so as to give an authority 
 not expressly conferred, or one not intended to have been conferred, 
 or even where the formal act of the corporation was a denial of 
 the authority, has been a good deal discussed, and is not, perhaps, 
 susceptible of a specific definition. The question is discussed and 
 the authorities examined in Cumberland Coal Company v. Sher- 
 man.^ 
 
 11. And it seems to be settled, both in this country and in 
 England, that a corporation may become responsible for the pub- 
 lication of a libel. In the English case,^^ a railway company were 
 held responsible for telegraphing along their line, that the plaintiffs, 
 who were bankers, had stopped payment. Lord Campbell said : 
 The allegation of malice " may be proved by showing that the 
 publication of a libel took place by order of the defendants, and 
 was therefore wrongful, although the defendants held no ill will to 
 the- plaintiffs, and did not mean to injure them." And the leading 
 American case ^* decides that a railway may be liable for a libel 
 
 which could not be the case upon the strict analogies referred to in note (6) , 
 unless the corporation were regarded as present, and assenting to the act. Ha- 
 zen V. Boston & Maine Railw., 2 Gray, 574 ; Eward v. Lawrenceburg & Upper 
 Mis. Railw., 7 Porter (Ind.), 711 ; Hall v. Pickering, 40 Maine, 648. 
 
 The rule laid down upon this subject by Lord Benman, Ch. J., in a case which, 
 although a trial at Nisi 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 
 attempted, or could fairly be made here between the liability of the company 
 and that of the directors. 
 
 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 
 personally ignorant of the particular plan adopted, and though such plan was a 
 departure 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." 
 
 » 30 Barb. 653. 
 
 " Whitefield v. Southeast. Railw. Co., Ellis, Blackb. and Ellis, 115. 
 
 " Philadelphia, Wil. & Bait. RaUw. v. Quigley, 21 How. (U. S.) 202. 
 ♦ 617
 
 § 130. LIABILITIES IN REGARD TO A0ENT8 AND SERVANTS. 615 
 
 published and circulated in their reports, wherein they represented 
 the plaintiff as an incompetent * mechanic and builder of bridges, 
 station-houses, and other structures, and wanting in all requisite 
 capacity and skill for such employment. The court held that, in 
 the absence of express malice or bad faith, the report to the stock- 
 holders is a privileged communication, but the privilege does not 
 extend to the publication of the report and evidence in a book for 
 distribution among the persons belonging to the corporation and 
 others, and so far as the corporation authorized the publication in 
 the form employed they are responsible in damages. 
 
 12. It is well settled, that corporations have no powers except 
 such as are conferred by their charters, or incidentally requisite 
 to carry into effect the purposes of their charters. HenCe it was 
 held, that a charter to build a road to the top of a mountain and 
 take tolls thereon, does not warrant the company in purchasing 
 horses and carriages and establishing a stage route. Nor does 
 an additional act for erecting and leasing buildings for the ac- 
 commodation of the business of the company or others on the 
 road have that effect. And an agent can do no act not within 
 the corporate powers, nor can the corporation ratify any such 
 act.^ 
 
 13. Where the statute requires the directors of a corporation to 
 certify the fact of the capital stock being paid into the treasury 
 in cash, and this is done, when in fact the payment was made in 
 property of uncertain value, such certificate is false, and the 
 directors responsible for the debts of the company under the 
 statute, imposing that penalty for making a false certificate in 
 that respect.^* 
 
 14. A gas company, chartered for the purpose of lighting the 
 streets and buildings of a town, is not obliged to supply gas to all 
 persons having buildings on the line of their pipes, upon being 
 tendered reasonable compensation.^^ 
 
 15. In one case ^^ it is said the company are responsible for a 
 
 " Downing r. Mount Washington Road Co., 40 N. H. 230. 
 
 '• Waters v. Quimby, 3 Dutcher, 198. 
 
 " Paterson Gas Light Co. r. Brady, 3 Dutcher, 245. 
 
 " Goff p. Great Northern Railw. Co., 3 El. & El., 672 ; 8. c. 7 Jur. N. S. 286. 
 But where the station master ordered the owner of a horse into custody till it could 
 be ascertained if his claim that the horse was to be carried free of charge were well 
 founded, it was held that, as there could be no pretence of the company having any 
 claim to make any such arrest, they could not be held liable for what was so mauifest- 
 
 ♦518
 
 516 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 false imprisonment committed by its agents, and no- authority 
 under seal is requisite ; but there must be evidence justifying the 
 jury in finding that the company's servants who did the act * had 
 authority from the company to do so. In this case the plaintiff 
 had been taken into custody by the servants of the company, and 
 by direction of the superintendent of the line, carried before a 
 magistrate, and charged with an attempt to travel in one of the 
 company's carriages without having first paid his fare and pro- 
 cured a ticket. The fact was, he had paid his fare and procured a 
 ticket and mislaid it at home, and, by mistake, taken another 
 ticket accidentally laid in the same place. He explained the trans- 
 action to- the company's servants, and declined to pay fare again, 
 because he had not the means, but offered to pawn some of the 
 tools of his trade which he had with him. The court held, that, 
 as some one must have authority to act for the company in such 
 emergencies, the superintendent of the line must be regarded as 
 having that authority. The jury gave a verdict for the plaintiff for 
 <£50 damages, and the court declined to interfere on the ground 
 that they were excessive. The wonder is that any one should 
 have had any hesitation in regard to the acts of the agents who 
 thus acted in matters representing the company. It should 
 be considered in all cases, that where a servant of any corpo- 
 ration does any act coming fairly within the scope of the 
 business intrusted to him, it must be held binding upon the 
 company. 
 
 16. It seems to be considered that railway companies may be 
 responsible where injury to passengers, or others rightfully there, 
 occurs in consequence, for allowing a dangerous animal to remain 
 about their stations after they have sufficient knowledge of its 
 
 ly a mere tort of the servant. Poulton v. London & S. W. Railw., Law Rep. 
 2 Q. B. 534; But where the servant of a railway company does an act of force 
 towards another, in the due course of his employment, or under discretionary 
 authority from the company, as in expelling a passenger from their cars for not 
 paying fare, under a mistake of the fact, or with needless violence, the company 
 is responsible, and the action may be against the servant and corporation jointly. 
 Moore v. Fitchburg Railw., 4 Gray, 465. But the president of the company is 
 not liable in such case for merely transmitting the general authority of the corpo- 
 ration to the servant, but would be if he originated the particular order. Hewett 
 V. Swift, et als., 3 Allen, 420. See St. John v. Eastern Railw., 1 Allen, 544. 
 So, too, the company is responsible for any negligence or misconduct of its 
 servants, in the course of their employment, in assisting passengers to alight from 
 the cars. Drew v. Sixth Avenue Railw., 40 N. Y. (3 Keyes) 429. 
 •519
 
 §131. 
 
 INJURIES BY FELLOW-SERVANTS. 
 
 617 
 
 vicious propensities. But the fact that a stray dog had torn tiie 
 dress of one passenger a few hours before, and attacked a cat soon 
 after, and been driven from the station by the servants of the com- 
 pany, and soon after returned and bit the plaintiff, will not be 
 sufficient to render the company responsible.*^ But where injury 
 occurred from the bite of a dog kept about the stables of a horse 
 railway company, by a person employed by them and having charge 
 of their stables, and with the knowledge and implied assent of 
 their superintendent, it was held that the company might properly 
 be regarded as the keeper of the dog, and responsible under the 
 statute for double the damages sustained by the bite.* 
 
 17. The general manager of a railway has authority to bind the 
 company to pay for medical attendance on a servant of the com- 
 pany, injured by an accident, in their employment.^^ 
 
 •SECTION III 
 
 Ir^uriea to Servants, by neglect of Fdhw-Servants, and use of 
 
 Machinery, 
 
 1. In general no such cause of action exists 
 
 against company. 
 
 2. But if there is any fault in employing 
 
 unsuitable servants, or machinery, they 
 
 are liable. 
 8. But not liable for deficiency ofhdp or for 
 
 not fencing road. 
 4. Has been questioned whether rule applies 
 
 to servants of different grades. 
 & Rule not adcipted in some states. Case of 
 
 Slaves. Scotland. 
 
 6. No implied contract, by ship-owners, that 
 
 ship is seaworthy. 
 
 7. But rule does not apply where servant has 
 
 no connection with the particular work. 
 n. 9. Cases reviewed in England, Scotland, 
 and America, 
 
 8. Recent English case illustrating the Eng- 
 lish doctrine. 
 
 9. Statement of the law in Kentucky and 
 
 review of the subject. 
 
 10. Subject reviewed by Chief Justice Shaw. 
 
 11. Company may show in excuse, that the 
 
 damage accrued from the servant dis- 
 regarding his instructions. 
 
 12. lite servants of one company, notfellouh 
 
 servants with those of another company, 
 using the same station, where the injury 
 occurred. 
 18. The fact that the injury occurred by 
 reason of the intoxication of a fellow- 
 servant, and that his being an habitual 
 drunkard uxis known, or ought to have 
 been, by the company, tends to show ad' 
 pable neglect on their part. 
 
 § 131. 1. It seems to be now perfectly well settled in England, 
 and mostly in this country, that a servant, who is injured by the 
 
 •» Smith r. Great Eastern Railw., Law Rep. 2 C. P. 4. 
 *> Barrett v. Maiden & Melrose Railw., 3 Allen, 101. 
 «? Walker v. Great Western Railw., Law Rep. 2 Exchequer, 228. 
 
 •620
 
 518 LIABILITY FOB CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 negligence or misconduct of his fellow-servant, can maintain 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.'^ 
 
 ' Priestly V. Fowler, 3 M. & W. 1 ; Hutchinson v. York, Newcastle & Ber- 
 wick Railw., 5 Exch. 343 ; Wigmore v. Jay, 5 Exch. 354 ; Skip v. Eastern Coun- 
 ties Railw., 24 Eng. L. & Eq. 396 (1853) ; Farwell v. Bos. & W. Railw., 4 Met. 
 49 ; ^Murray r. South C. Railw., 1 McMuUan, 385 ; Brown r. Maxwell, 6 Hill 
 (N. y.), 592; Coon v. Sy. & Utica Railw., 6 Barb. 231 ; 8. c. 1 Selden, 492; 
 Hayes r. Western Railw., 3 Cush. 270; Sherman v. Roch. & Sy. Railw., 15 
 Barb. 574; McMillan v. Railroad Co., 20 Barb. 449; Honner v. The Illinois 
 Central Railw., 15 111. 550; Ryan v. Cumberland Valley Railw., 23 Penn. St. 
 384; King v. Boston & Worcester Railw., 9 Cush. 112 ; Madison & I. Railw. v. 
 Bacon, 6 Porter (Ind.), 205. The same rule prevails in Virginia. Hawley v. 
 Baltimore & Ohio Railw., 6 Am. Law Reg. 352. 
 
 » Shaw, Ch. J., 4 Met. 49, 57; Keegan ». Western Railw., 4 Selden, 175. 
 But 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 particular emergency, and was killed by the negligence of some of the 
 servants. Degg v. Mid. Railw. Co., 1 H. & N. 773. It is said, McMillan v. 
 Saratoga & Wash. R., 20 Barb. 449, that the servant, in order to entitle himself 
 to recover for injuries from defective machinerj', 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 servant makes no objection to continue the service, he probably could not 
 recover of the master for any damage in consequence. But if the master know 
 of the defect, and direct the servant to continue the service, in a prescribed 
 manner, he is responsible for the consequences. Mellors v. Shaw, 7 Jur. N. S. 
 845. Where the defendants were joint owners and workers of a coal-mine, and 
 one of their employees was injured by a defect in the machiner}-, and it ap- 
 peared that one of the defendants personally interfered in the management 
 of the colliery, and the jury found that defendant guilty of personal negligence, 
 it was held sufficient to implicate both defendants, as they must be presumed to 
 have known that improper machinery was being employed. Ashworth t?. Stan- 
 wix, 30 L. J. Q. B. 183. But see Wright ». N. Y. Central Railw., 28 Barb. 80. 
 Post, n. 3, 20. Morgan v. Vale of Neath Railw., L. R. 1 Q. B. 149. The com- 
 pany was held responsible for an injury to one of its servants caused by want 
 of repair in the road-bed. Snow v. Housatonic Railw., 8 Allen, 441. But the 
 company cannot be held as guarantors to its servants that the structures con- 
 tinue in proper condition. If originally properly built and properly inspected, 
 from time to time, it is all that can be required. As, for instance, if a servant
 
 § 131. INJURIES BY FELLOW-SERVANTS. 619 
 
 * III Frazier v. The Pennsylvania Railway Company,' it was 
 held, that if the company knowingly or carelessly employ a rash 
 or incompetent conductor, whereby the brakeman on the train is 
 injured, the company are responsible for the injury ; that the act 
 of the agent of the company having charge of employing such 
 agents or servants, and of dismissing them for incompetency, is 
 * the act of the company ; but the company are not responsible for 
 such injury, unless they were in fault in employing or continu- 
 ing the conductor in their service ; that the character of such 
 conductor for skill and faithfulness may be shown by general 
 reputation. The master is not in general bound to use any 
 special precautions to secure the servant from injury in regard to 
 matters equally within the knowledge of both.* But the master 
 is liable for all injuries accruing to his servants from his own 
 personal negligence ; and this may consist in personal interfer- 
 ence in the particular matter causing the injury, or by negligently 
 retaining incompetent servants, producing the injury.^ But a 
 railway company is liable in damages for an injury resulting to 
 any person lawfully using its road, from its neglect to introduce 
 any improvement in its machinery or apparatus, which is known 
 
 is killed by the falling of a bridge, properly constructed, and carefully inspected 
 the day before, the company is not responsible. Faulkner v. Erie Railw., 49 
 Barb. 324 ; Warner v. Same, 8 Am. Law Reg. N. S. 209. 
 
 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 r. Webb, 18 C. B. 797. In Dj-nen r. Leach, 26 Law J. N. 
 S., Exch. 221, it was decided, that where an injury happens to a servant 
 in the use of machinery', in the course of his employment, of the nature 
 of which he is as much aware as his master, and the use of which is the proxi- 
 mate cause of the injury, the servant cannot recover, nor, if death ensues, can 
 his personal representative recover of the master, there being no evidence of 
 any personal negligence on his part, conducing to the injur)'. 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 r. Yates, 2 H. & N. 768, 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 contribated 
 to the result. 
 
 » 38 Penn. St. 104 ; Wright v. N. Y. Central RaUw. Co., 28 Barb. 80; Carle 
 V. B. & P. Canal and R. R. Co., 43 Me. 269. 
 
 * Se}-mour c. Maddox, 16 Q. B. 326. 
 
 * Ormond v. Holland, 1 £1. Bl. & £1. 102. 
 
 • 621, 622
 
 620 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 to have been tested, and found materially to contribute to safety, 
 and the adoption of which is within its power so as to be leason- 
 ably practicable.^ But in another case,^ in an action by a ser- 
 vant against his master for injuries sustained by the explosion of 
 a steam-boiler used in his business, the plaintiff introduced evi- 
 dence without objection, that there was no such fusible safety- 
 plug on the boiler as was required by statute ; and the presiding 
 judge excluded evidence of a custom among engineers not to use 
 such a plug, and instructed the jury that if the defendant know- 
 ingly used the boiler without the plug, and the want of it caused 
 the accident, the plaintiff was entitled to recover, and refused to 
 instruct them that if the defendant used all the appliances for 
 safety that were ordinarily used in such establishments, he was 
 not liable, although he did not use the fusible plug required by 
 statute, and it was held the defendant had no ground of exception. 
 It is here declared by the court that ordinary care must be meas- 
 ured by the character and risks and exposures of the business, 
 and the degree of care required is higher when life or limb is 
 endangered, or a large amount of property is involved, than in 
 other cases. ^ 
 
 * 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 
 
 8 Smith V. N. Y. & Harlem Railw. Co., 19 N. Y. 127. 
 ' Cayzer v. Taylor, 10 Gray, 274. 
 
 * Post, Common Carriers of Passengers. See also Briggs v. Taylor, 28 Vt. 
 180, 184. 
 
 " Skip r. Eastern Counties Railw., 9 Exch. 223; Hayes ». Western Railw., 
 3 Cush. 270. 
 
 '0 Langlois v. Buf. & Roch. R. 19 Barb. 364. 
 
 " Gardiner, J., in Coon v. Sy. & Utica Railroad Co., 1 Seld. 492: 8. c. 6 
 Barb. 231. But in Gillshannon r. Stony Brook Railw., 10 Cush. 228, it was 
 held to make no difference that the servants were not in a common employment. 
 This was the case of a laborer riding upon a gravel train to the place of his em- 
 ployment, and injured by the negligence of those in charge of the train. In 
 Wilson 0. Merry, Law. Rep. 1 H. Lds. 326, it was decided, that a master is notre- 
 ♦623
 
 § 181. INJURIES BY PELLOW-SERVANTS. 621 
 
 is attempted to be maintained is one of policy chiefly, that it 
 is better to tlirow the hazard upon those in whose power it is to 
 guard against it, it seems very questionable how far any such 
 distinction is maintainable. It has been attempted in a good 
 many cases, but does not seem to have met with favor. 
 
 5. And the rule itself has been denied in some cases, in this 
 country, after very elaborate consideration.^* 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 
 
 ponsible for injurj' to a servant caused by the negligence of a fellow-servant, by 
 the mere fact that the latter is of a higher grade, &s a superintendent, s. r., Fel- 
 tham r. England, L, R. 2 Q. B. 33. But in Haynes v. East Tenn. & Ga. llailw,, 3 
 Coldwell, 222, a somewhat different view was taken, the company being 
 held responsible for an injury to one of the subordinate servants of the com- 
 pany by the carelessness of the superintendent in starting a train at an unusual 
 hour. 
 
 " Little Miami Railw. v. Stevens, 20 Ohio, 415 ; C. C. & C. Railroad Co. 
 r. Keary, 3 Ohio N. S. 202. These cases are placed mainly upon the ground of 
 the person injured being in "a subordinate position. It was held the rule did not 
 apply to day laborers upon a railway, who were not under any obligation to 
 renew their work from day to day, where one, after completing his day's work, 
 was injured through the negligence of the conductor of one of the company's 
 trains, upon which he was returning home, free of charge, but as part of the 
 contract upon which he worked. Russell v. Hudson River R., 6 Duer, 39. And 
 in Whaalan r. M. R. & Lake Erie Railw., 8 Ohio N. S. 249, it was held that where 
 one of the employees of a railway, engaged in making repairs upon its track, 
 was injured by the neglect of a fireman upon one of the trains, there was no 
 such subordination in regard to their duty as to justify any departure from the 
 general rule of excusing the master. See also Indianapolis Railw. r. Love, 10 
 Ind. 554 ; Same r. Klein, 11 Ind. 38. In Hard, AdmV v. Vt. & Canada Railw., 
 32 Vt. 473, the plaintiff's intestate, who was an engineer on the defendant's road, 
 was killed by the explosion of a locomotive engine which he was running, which 
 occurred by the neglect of the company's master-mechanic in not keeping the 
 machine in repair. It was his duty to superintend and direct the repairs upon 
 the engines. Tlie directors of the company were not guilty of any neglect in 
 furnishing the road, in the first instance, with suitable machinery and competi-nt 
 employees, and they were ignorant of any defect in this engine. The company 
 were held not responsible for the death of plaintiff's intestate, on the ground 
 that under the circumstances the injury must be considered as occurring from 
 the neglect of a fellow-Kervant, employed in the same common business. 
 
 " Scudder v. Woodbridge, 1 Kelly, 195. 
 
 " Duncan r. Railroad Co., 2 Richardson, 613. 
 
 •624
 
 522 LIABIUTT FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 Scotland, too, seems to have dissented from the English rule 
 upon this subject.^* 
 
 " Dizon V. Ranken, 1 Am. Railw. C. 669. The remarks of Lord Cockbum 
 are pointed and pertinent. " The English decisions certainly seem to determine 
 that in England, where a person is injured by the culpable negligence of a ser- 
 vant, that 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 re- 
 spect, it most certainly is not the law of Scotland. I defy any industry to pro- 
 duce 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. 
 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 prin- 
 ciple that seems less reconcilable with legal reason. I can conceive some 
 reasoning for exempting the employer from liability altogether, but not one for 
 exempting him only when those who act for him injure one of themselves. It 
 rather seems to me that these are the verj' 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. L. & Eq. 1. Opinion of 
 Crcmworth, Chancellor. 
 
 But see the verj' lucid and conArincing argument of Shaw, Ch. J., in Farwell 
 r. Boston & Wor. Railw., 4 Met. 49, 56 ; s. c. 1 Am, R. C. 339 ; and the most 
 ingenious attempt at reductio ad abstirdutn upon the subject by Lord Abinger, 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 put- 
 ting the servant into wet sheets !
 
 § 131. INJURIES BY FELLOW-SERVANTS. 623 
 
 * 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 
 
 If a man should receive damage in any way by his own foolhardiness, even 
 where a fellow-servant was concerned in producing the result, he could not re- 
 cover 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-sen-ant, but whether the difficulty of its ap- 
 plication will fairly justify its abandonment, would seem somewhat questionable, 
 if the thing were rt» integra, which it certainly is not, either in the English or 
 American law. 
 
 In an English case, in the Court of Exchequer, 11 Exch. 832 ; 8. c. 86 Eng. 
 L. & Eq. 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 different, there being an implied obligation upon the master not to employ 
 such persons. 
 
 With this qualification there seems to be no serious objection to the English 
 rule of law upon this subject. Bassett r. Norwich & Nashua Railw., Superior 
 Court of Conn. 19 Law Rep. 651. 
 
 In a case in the Court of Sessions in Scotland, so late as January, 1857, the 
 court repelled a plea, founded on the claim that the master is not liable to a 
 servant for the negligence of a fellow-servant. The Lord Justice Clerk took 
 occasion to remark, that the master's liability rested upon the broad prin- 
 ciple,^that an employer being liable to third parties for injuries caused by his ser- 
 vants, ^ 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, unknown to the servant, but which the employer by the 
 use of ordinary care could have cured, the cases all agree that he is liable. Mc- 
 Gatrick c.Wason, 4 Ohio N. S. 566. 
 
 In the Exchequer Chamber, so late as May, 1857, in Roberts r. Smith, 29 
 Law Times, 169, it was held, that where the master directs the conduct of the 
 servant, he is liable for any injur)* resulting therefrom to the other servants. 
 See also Weyant r. N. Y. & Harlem 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 tlie 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 v. Bollmg, 22 Alab. 294 ; Cook p. 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 em- 
 
 ♦ 626, 626
 
 524 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 on board, that the ship is seaworthy, and in the absence of any ex- 
 press warranty to that effect, or of any knowledge of the defect, or 
 any personal blame on the part of the ship-owner, the seaman can- 
 not maintain an action, by reason of the ship becoming leaky, and 
 his being obliged to undergo extra labor. ^^ 
 
 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 par- 
 ticular connection with the conduct of the business in which he 
 was injured.^'^ 
 
 8. The English courts still maintain their former stand, that all 
 the servants of the same company engaged in carrying forward the 
 common enterprise, although in different departments, widely sepa- 
 rated, or strictly subordinated to others, are to be regarded as fel- 
 low-servants, bound by the terms of their employment to run the 
 hazard of any negligence or wrong-doing which may be committed 
 by any of the number, so far as it operates to their detriment. 
 This is strikingly illustrated in a recent case in the Common 
 
 ploys 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. 659. 
 
 »« Couch V. Steel, 3 El. & Bl. 402 ; s. c. 24 Eng. L. & Eq. 77. But if the 
 master might have known the exposure of the servant, but for his own want of 
 ordinarj' care, as in the use of a defective locomotive engine, which exploded and 
 injured the servant, through defective construction, the master is liable for the 
 injurj'. Noyes v. Smith, 28 Vt. 59. But where the danger is known to the ser- 
 vant and not communicated to the superior, or master, he cannot recover for 
 any injurj- he may sustain in consequence. McI^Iillan c. Saratoga & Wash. R. 
 20 Barb. 449 ; Hubgh c. N. O. & C. Railw., 6 Louis. An. 495. 
 
 " Gillenwater v. Mad. & Ind. Railw. 5 Ind. 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 unloading, but 
 had no agency in managing, and in such transportation, by the gross negligence 
 and unskllfulness of the engineer were injured, it was held the company were 
 liable. Fitzpatrick r. New Albany and Salem Railw,, 7 Porter (Ind.), 436. 
 But not where the servant Is in fault in attempting to get upon the train when In 
 motion. TImmons r. The Central Ohio Railw., 6 Ohio N. S. 105. 
 *627
 
 § 131. INJURIES BY FELLOW-SERVANTS. 525 
 
 Pleas,^^ where it was held that one employed to pick up stones 
 from oflf the defendant's line, and who, while returning in the evening 
 after his work was over in a train driven by the defendant's ser- 
 vants, was injured by a collision caused by the negligence of those 
 who had charge of the train, it being one of the terms of the con- 
 tract of hiring that he should return in the defendant's train, could 
 not recover damages of the company, as he and the person guilty 
 of the negligence resulting in the injury were fellow-servants, en- 
 gaged in a common employment, within the meaning of the rule of 
 law applicable to the case. 
 
 9. This whole question is very elaborately revic^wed in a recent 
 case in Kentucky ,^^ which we shall here repeat, together with our 
 own comments at the time upon the several propositions embraced 
 in the opinion, at the risk of some repetition, perhaps. 
 
 Where an employee upon a railway is injured by the negligence 
 of the engineer of the company, and is himself guilty only of such 
 neglect and want of care as would not have exposed him * to the 
 injury but for the gross neglect of the engineer, and when the en- 
 gineer might with ordinary care have avoided the injury, he is not 
 precluded from maintaining his action. 
 
 What is gross neglect in the engineer may be determined by the 
 court, as a question of law, where there is no controversy in regard 
 to the facts. 
 
 In regard to those acts of a corporation which require care, dili- 
 gence and judgment, and which it performs through the instru- 
 mentality of general superintending agents, the corporation itself is 
 to be regarded as always present supervising the action of its agents. 
 
 The rule of law, that the master is not responsible to one of 
 his servants for an injury inflicted through the neglect of a fel- 
 low-servant, is not adopted, to the full extent of the English de- 
 cisions, in the state of Kentucky. The rule is there regarded as 
 anomalous, inconsistent with principle, analogy, and public policy, 
 and unsupported by any good or consistent reason. 
 
 In regard to all servants of the company acting in a subordinate 
 sphere, the one class to another, and receiving injuries while in 
 the performance of duties, under the command of a superior, whose 
 authority they have no right to disobey or disregard, it is the same 
 
 '» Tunney c. Midland Railw. Co., Law Rep. 1 C. P. 291 ; s.c. 12 Jur. N. S. 691. 
 '» Louisrille & Nashville Kailw. r. Collins, 6 Am. Law. Reg. N. S. 205 ; 8. C. 
 2 DuvaU, 114. 
 
 * 528
 
 526 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 precisely as if the injury were inflicted by the act of the company ; 
 and if there is any want of care and skill in the superior such as his 
 position and duty reasonably demand, the company are responsible. 
 
 •In such cases there is no implied undertaking on the part of the 
 servant to risk the consequences of the misconduct of the agent of 
 the company under whose authority he acted, and through whose 
 negligence he received the injury. 
 
 Servants so situated, in distinct grades of superiority and subor- 
 dination, are not to be considered as " fellow-servants," or " in the 
 same service ; " but rather in the light of strangers to each other's 
 duties and responsibilities ; and the subordinate may recover of 
 the company for any injury sustained by reason of the ordinary 
 neglect of the superior. 
 
 But if the subordinate is himself guilty of any want of ordinary 
 care, whereby he is more exposed to the injury, he cannot recover, 
 unless the superior was guilty of wilful misconduct or * gross 
 neglect, but for which he might have avoided inflicting the injury, 
 notwithstanding the negligence of the other party. 
 
 Where, therefore, an engineer, while upon his engine, ordered a 
 common laborer to do some needed work under the engine, in fast- 
 ening bolts or screws belonging to it ; and such workman, while 
 lying upon his back in the performance of the service, had both 
 his legs cut off by the movement of the engine forward and back- 
 ward, through the gross neglect or wilful misconduct of such en- 
 gineer, the company are responsible for the injury, notwithstanding 
 there might have been some want of ordinary care on the part of 
 the subordinate, contributing to some extent to the injury, but 
 not necessitating it, except through the gross misconduct of the 
 superior. 
 
 Per Robertson^ C. J. — We do not consider that the rule exempt- 
 ing the company from responsibility for injuries inflicted upon 
 their servants through the want of ordinary care in other servants 
 of the company, extends beyond those who are strictly " fellow- 
 servants " in the same grade of employment, and where one is not 
 subject to the order or control of the others. 
 
 Beyond this the company is responsible for the consequences of 
 the misconduct of superiors towards inferiors in its service, the 
 same as towards strangers.^ 
 
 * We have presented a very extended syllabus of the foregoing case, em- 
 bracing all the points upon which the opinion of the court is given, without 
 ♦629
 
 § 131. INJURIES BY FELLOW-SERVANTS. 627 
 
 * 10. The question is again reviewed by the same learned judge 
 who gave the widely-admired opinion in Farwell v. Boston and 
 
 regard to their being directly and necessarily involved in the decision of the 
 cause. 
 
 And notwithstanding the avowed willingness of the learned judge to disregard 
 the general current of authority upon the point, and the apparent spirit of free- 
 dom with which he deals with the decisions in other states and countries, — not- 
 withstanding all this, and more that might be fairly said as to the fearlessness 
 and disregard of self with which the opinion abounds, which is not altogether 
 common in dealing with the opinions of such men as Lord Abinger and Chief 
 Justice ShavD, and a host of others scarcely less eminent in their field of service ; 
 notwithstanding all this, which has rather surprised us, we must confess, at the 
 same time that we could not but regard It as a refreshing exception to the pro- 
 verbial subserviency of opinion to precedent and analog}*, we have nevertheless 
 felt compelled to the conclusion that the opinion is altogether and entirely sound 
 in its principles, and maintained with very uncommon ability in its logic as well 
 as its illustrations, both of which seem altogether unexceptionable. 
 
 But we must warn those members of the profession who are not altogether 
 aware of the extent of the decisions in the opposite direction, that they embrace 
 a very large number of the best-considered English cases, and an equal number, 
 almost, in the American states, including all, as far as we know, with the ex- 
 ception of Ohio, and Georgia, and now Kentucky. And the decisions in these 
 latter states are all attempted to be placed upon peculiar grounds, thereby 
 virtually confessing the soundness of the general rule, that one cannot recover 
 of his employer for an injury inflicted through the want of care in a fellow- 
 servant, employed in the same department of the master's business, and under 
 the same general control. This is declared by the learned judge in the case 
 last cited. 
 
 The opinion in the case would have been far more satisfactory if the learned 
 judge could have devoted more time and labor to the matter. If a careful review 
 of the preceding cases, with the reasoning of the judges, could have been pre- 
 sented in the very carefully prepared opinion, it could not have failed to be more 
 valuable. Discussion of a broad principle is much less expensive to the author, 
 and far less satisfactory, as a general thing, to the profession, than a careful 
 review of the cases. 
 
 We should not expect our readers would here listen to such an attempt on our 
 part, since it must occupy considerable space, and would be merely professional, 
 instead of being clothed with the weight of judicial authority. 
 
 But we have noticed with gratification, more for the justice of the view than 
 because we had before contended for the same, that the learned judge declares 
 most unequivocally, in the principal case, that the corporation is to be regarded 
 as constructively present in all acts performed by its general agents witliin the 
 scope of their authority, i. e. within the range of their ordinary employment. 
 The consequences of mistake or misapprehension, upon this point, have led many 
 courts into conclusions greatly at variance with the common instincts of reason 
 and humanity, and have tended to interpose an unwarrantable shield between 
 the conduct of railway employees and the just responsibility of the company. 
 
 •630
 
 528 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 * Maine Railway, in a later case,^^ and the following propositions 
 maintained. A carpenter employed by the day by a railway * cor- 
 
 We trust that the reasonableness and justice of this construction will at no dis- 
 tant day induce its universal adoption. See ante, § 130, pi. 6, 7, 8, 9, and notes, 
 and cases cited. 
 
 In regard to the leading point involved in the principal case, how far a servant 
 is entitled to recover of the master for an injury inflicted by the negligence or 
 want of skill of a feUow-servant, the doctrine of exemption was first established 
 in the Court of Exchequer, in Priestly v. Fowler, 3 ^I. & W. 1, which was 
 decided at Michaelmas Term, 1837. The same rule was adopted in this country 
 by the Supreme Judicial Court of Massachusetts, in Farwell v. The Boston & 
 Worcester Railroad Corporation, 4 Met. 49, at the March Term, 1842, supported 
 by one of the ablest and most unexceptionable opinions ever delivered from the 
 American Bench, — an opinion which has commanded the admiration of the entire 
 profession, both Bench and Bar, in England as weU as in America ; and which 
 has been more extensively adopted and formally incorporated into the opinions 
 of the English courts than perhaps any other opinion of an American judge. This 
 opinion Was in fact preceded by that of Murray v. The South Carolina Railw. 
 Co., 1 McMullan, 385, in the same direction; but the former has been regarded 
 as the leading American case. 
 
 These leading opinions, in the diflferent countries, have been followed by a 
 multitude of cases reaching do>vn to the present time, most of them occupied in 
 the discussion of what were claimed to be exceptional cases. In England, we 
 may, among a multitude of others, refer to Hutchinson v. York, Newcastle & 
 Berwick Railw., 5 Exch. 343 ; Wigmore v. Jay, id. 354 ; Skip v. Eastern Coun- 
 ties RaUw., 9 Exch. 223 ; s. c. 24 Eng. L. & Eq. 396 ; Degg v. Midland Railw., 
 1 Hurlst. & N. 773 ; Tarrant v. Webb, 18 C. B. 797 ; s. c. 37 Eng. L. & Eq. 
 281 ; Mellors v. Shaw, 1 B. & S. 437 ; s. c. 7 Jur. N. S. 845 ; Seymour v. Mad- 
 dox, 16 Q. B. 326 ; Ormond v. Holland, 1 El. Bl. & EUis, 102. 
 
 In the American states the decisions are considerably numerous where the 
 general principle of the foregoing decisions has been acted upon, or recognized, 
 but we shall not refer to more than will be requisite to show how far the rule 
 prevails in different states. 
 
 It is adopted in Brown v. Maxwell, 6 Hill (N. Y.), 692; Coon v. Syracuse 
 & Utica Railw., 6 Barb. 231; 8. c. 1 Selden, 492, and numerous other New 
 York cases cited, ante, § 131. See also Honner v. III. Central Railw., 15 HI. 
 550; Ryan v. Cumberland Valley Railw., 23 Penn. St. 384; Madison & 
 Indianapolis Railw. v. Bacon, 6 Porter (Ind.), 205; Hawley r. Baltimore & 
 Ohio Railw., 6 Am. Law. Reg. 352; Frazier v. Pennsylvania Railw. Co., 38 
 Penn. St. 104; Wright r. New York Central Railw., 28 Barb. 80; Carle ». 
 B. & P. Canal & Railw. Co., 43 Maine, 269; Noyes v. Smith, 28 Vt. 59; 
 Indianapolis Railw. v. Love, 10 Indiana, 554; Same v. Klein, 11 id. 38. The 
 general principle is adopted in all the other states where the question has arisen ; 
 for although in Ohio, in the cases of Little Miami Railw. Co. r. Stevens, 20 Ohio, 
 
 " Seaver r. Boston & M. Railw. Co., 14 Gray, 466. 
 • 631, 632
 
 § 131. INJUMES BY FELLOW-SERVANTS. 529 
 
 poratioii to work on the line of their road, and carried on the cars 
 to the place of such work without paying fare, cannot maintain an 
 
 415, and C. C. & C. Railw. Co. e. Keary, 3 Ohio N. S. 201, the companies are 
 held responsible for the injury, the decisions are placed upon the ground, that 
 the persons injured were in subordinate positions. And in Scudder v. Wood- 
 bridge, 1 Kelly, 195, it was held the rule did not excuse the master for injury 
 thus caused to slaves, mainly upon the same ground of their dependent and sub- 
 ordinate positions. And the principal case is placed upon the same ground. 
 And in the more recent case of Whaalan v. Mad. R. & Lake Erie Railw. Co., 8 
 Ohio, N. S. 249, it was held, that where one of the trackmen was injured by 
 neglect of the fireman upon one of the trains, there was no such subordination of 
 position as to take the case out of the general rule, and the case was decided in 
 favor of the company ; thus maintaining the soundness of the general rule in that 
 state by its latest decision. 
 
 It is safe, therefore, to state, that all the cases, both English and American, 
 maintain the general rule to the extent of those who are strictly " fellow-ser- 
 vants " in the same department of service. And where this is not the fact, bat 
 the employees are so far removed from each other that the one is bound to obey 
 the directions of the other, so that the superior may be fairly regarded as rep- 
 resenting the master, we think it more consonant with reason and justice to 
 treat the matter as not coming within the principle of the rule. This is so de- 
 clared by Gardiner, J., in Coon v. Syracuse & Utica Railroad Co., 1 Selden, 
 492. But this qualification is denied by Shaw, C. J., in Farwell v. Boston & 
 Worcester Railw., 4 Met. 49, 60, 61, unless the departments of service are so far 
 independent as to have no privity with each other, not being under the control 
 of a common master. And it was so decided in Gilshannon v. Stony Brook 
 Railw. Co., 10 Cush. 228. And it seems finally to be settled upon authority, 
 that it is sufficient to bring the case within the rule, that the servants are em- 
 ployed in the same common service, as in running a railway, or working a mine. 
 Wright r. New York Central Railw., 25 N. Y. 562, 564, by Allen, J. The 
 question is whether they are under the same general control. Abraham v. 
 Reynolds, 5' U. & N. 142; Hard, AdmV v. Vermont & Canada Railroad, 32 
 Vt. 473. And there is no question that the master is responsible for any want 
 of skill or care in employing competent and trustworthy servants, and in suffi- 
 cient numbers ; and in furnishing safe and suitable machinery for the work in 
 hand, unless the servants, knowing, or having the means of knowing, of the 
 deficiency in furnishing proper help or machinery, consent to continue in the 
 employment. And the neglect or want of skill of the master^s general agent 
 employed in procuring help and machinery, is the act of the master ; Hard c. Ver- 
 mont & Canada Railw. Co., stipra; Wiggett r. Fox, 36 Eng. L. & Eq. 486 ; 11 
 Exch. 832 ; Noyes c. Smith, 28 Vt. 59. Indeed this exception is recognized in 
 most of the preceding cases. Many of the late cases upon the question have 
 turned upon this point, the general rule having been regarded as settled beyond 
 question for many years. We are not disposed to question the extent of the ex- 
 ceptions to the general rule ; and possibly any greater extension in that direc- 
 tion might essentially impair the general benefit to be derived from it. But we 
 would be content to treat all the subordinates who were under the control of a 
 
 34
 
 630 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 action against the corporation for injuries received while being so 
 carried, by the negligence of the engineer employed by them for 
 that service, or by a hidden defect in the axle, the failure to dis- 
 cover which, if discoverable, was occasioned by the negligence of 
 servants of the corporation, whose duty it was to examine and 
 keep in repair the cars, engines, and axles. In such a case, if the 
 company exercised reasonable care in providing and using the 
 machinery, in the use of which the plaintiff was so injured, they 
 are not responsible for the injury. 
 
 11. And in a late case^ before the same court, where a servant 
 was accidentally hurt by an engine running upon him from the 
 turn-table, through some defect in the brake, it was held competent 
 for the company to show in defence that the person having charge 
 of all the engines upon the road had given instructions to the en- 
 gineers to have the wheels of their engines blocked while turning 
 upon the turn-table, and that the accident occurred in consequence 
 of some servant neglecting such instructions, although the instruc- 
 tions had not been communicated to the plaintiff. 
 
 12. But the servants of one railway company are not fellow- 
 servants with the servants of another company who use the same 
 station with the fii"st company, and while those are subject to the 
 direction of the station-master of that company, and the second 
 company is responsible for an injury to one of the servants of the 
 first company, by the negligence of their engine driver.^ 
 
 13. Although a railway company is not responsible to one whom 
 they employ to repair their cars, for any hurt he may receive in 
 passing upon the company's cars to and from his work, free of 
 charge, through the misconduct of a switchman, provided the com- 
 pany were not in fault in his selection or retainer ; but, if he were 
 an habitual drunkard and that known to the company, or might 
 have been known but for their own neglect to make proper inspec- 
 tion of their business, and the injury resulted from this intoxica- 
 tion, the testimony is proper to be submitted to the jury, as tending 
 to show culpable neglect on the part of the company .^^ And when 
 
 superior as entitled to hold such superior as representing the master, and the 
 master as responsible for his incompetency or misconduct. We should regard 
 this as a more salutar}' rule, upon the whole, than the present one, but the gen- 
 eral current of authority seems greatly in the opposite direction. 
 
 ■* Durgin v. Munson, 9 Allen, 396. 
 
 " Warburton r. Great Western Railw., L. R. 2 Exch. 80. 
 
 ** Gilman r. Eastern Railw., 10 Allen, 233.
 
 § 131 a. 
 
 INJURIES BT FELLOW-SERVANTS. 
 
 531 
 
 this case was before the court, at another time,^ it was held that a 
 verdict for the plaintiff will not be disturbed in such a case, be- 
 cause it was, by the order of the company, the regular business of 
 another servant of the company to manage the switch, and on this 
 occasion it was wrongly adjusted by the flagman, who was an 
 habitual drunkard, and had usually been intrusted with the man- 
 agement of the switch, and that his habits were known, or by the 
 exercise of proper care would have been known, to the corporation. 
 Nor will it excuse the company that due care was exercised in the 
 original selection of such flagman, and that a proper local agent 
 had been employed by the company with authority to hire and su- 
 perintend such servants of the company as may be necessary. It 
 was also held here that evidence that the flagman was commonly 
 reputed to be an habitual drunkard, in the place where he lived, 
 was competent evidence for the jury as tending to show that his 
 intemperate habits should have been known to the officers of the 
 company. 
 
 *§ 131 a. The following points, decided by a court of ability, 
 and the opinion in which the several propositions were very care- 
 fully illustrated, with our own comments upon them, as pub- 
 lished in the American Law Register,^ appear to us proper to be 
 repeated here, as the clearest exposition of our own views upon 
 the questions involved which we could give. 
 
 Where a passenger is injured on a rail- 
 uxitf the priin& fecie presumption is, that 
 it resulted from the want of due cart on 
 the part of the company. 
 
 But, nevertheless, it is competent to prove 
 the damage occurred without their fault. 
 
 One who rides upon a free pass, or in the 
 baggage-car, is not thereby deprived of 
 his remedy against the comjxiny for in- 
 juries received through their uxtnt of due 
 care, provided he was at the time a pas- 
 senger and without fault on his own part. 
 
 The following propositions were declared by the Supreme Court 
 of Missouri, in the case of Hannibal and St. Joseph Railroad 
 Company v. Hattie Higgins, by Eliza Higgins, her guardian:^ — 
 
 1. The statute of Missouri giving a remedy to the representa- 
 tives of a passenger killed upon a railway train, goes upon the 
 same principle which before obtained in regard to injuries to 
 passengers, that such injury or death prima facie results from 
 want of due care in the company. 
 
 2. The presumption is not conclusive under the statute, but 
 
 » 13 Allen. 433. 
 
 > 6 Am. Law Reg. N. S., 715-721 ; 8. c. 86 Mo. 418. 
 
 •633
 
 632 UABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 may be rebutted by evidence of the cause of the injury. One 
 who had been in the employment of the company as an engineer 
 and brakcman, until his train was discontinued a few days pre- 
 vious, and who had not been settled with or discharged, although 
 not actually under pay at the time, and who signalled the train 
 to take him up, and who took his seat in the baggage-car with 
 the other employees of the company, and paid no fare and was 
 not expected to, although at the time in pursuit of other employ- 
 ment, cannot be considered a passenger. If he would secure 
 the immunities and rights of a passenger, he should have paid 
 his fare and taken a seat in the passenger-car. 
 
 3. It will not deprive of his remedy a passenger who comes 
 upon the train in that character, and is so received, that he is 
 allowed as matter of courtesy to pass free, or to ride with the 
 employees of the road in the baggage-car. But a passenger who 
 •leaves the passenger carriages to go upon the platforms or into 
 the baggage-car, unless compelled to do so for want of proper 
 accommodations in the passenger carriages, or else by permission 
 of the conductor of the train, must be regarded as depriving 
 himself of the ordinary remedies against the company for injuries 
 received, unless upon proof that his change of position did not 
 conduce to the injury.^ 
 
 * Holmes, J. — " The plaintiff below, an infant and only child of Thomas G. 
 Higgins, who was killed while riding in a baggage-car on the Hannibal and St. 
 Joseph Railroad, on the 16th day of September, 1861, brings this suit ; the widow 
 having failed to sue within six months to recover the $5,000, which are given by 
 the second section of the act concerning damages (Rev. Stat. 1855, p. 647), 
 where any passenger shall die from an injury resulting from or occasioned by 
 any defect or insufficiency in any railroad. 
 
 "The petition is evidently framed upon that act, though the statute is not 
 named or referred to by any express words. It contained two counts ; one 
 founded upon the second section, and the other upon the third section of the 
 act. 
 
 " The verdict was for the plaintiff upon the first count, and for the defendant 
 upon the second count ; and the damages were assessed at $5,000. The de- 
 fendant's motion for a new trial was overruled. The case came up by appeal, 
 and stands here upon the first count only. 
 
 " The clause of the act on which this first count is founded relates exclusively 
 to passengers, and to the cases of injury and death occasioned by some defect or 
 insufficiency in the railroad. This statute makes the mere fact of an injur)' and 
 death resulting from a cause of this nature, a prima facie case of negligence 
 and liability on the part of the defendant, as a presumption of law. It is not a 
 conclusive presumption, but disputable by proof that such defect or insufficiency 
 •634
 
 § 132. DEFECTS IN fflGHWAYS CAUSED BY COMPANY'S WORKS. 533 
 
 •SECTION IV. 
 
 Injuries by defects in Highways caused by Company^s Works. 
 
 Liable for injuries caused bjf leaving streets 
 in insecure condition. 
 
 Municipalities liable primarUy to travdlers 
 suffering injury. 
 
 They may recover indemnity of the company. 
 
 Towns liable to indictment. Company lia- 
 ble to mandamus or action. 
 
 Construction of a grant to use streets of a 
 city. 
 
 Such grant does not give the public any 
 right to use the tracks. 
 
 7. Bound to keep highways in repair. 
 
 8. Municipalities not responsible for injuries 
 
 by such grant, 
 
 9. Canal company not excused from nuuH- 
 
 taining fann accommodations by rail- 
 way interference. 
 
 10. Railway track crossing private way. 
 
 11. One being wrong-doer in opening compa- 
 
 ny's gates cannot recover. 
 
 § 132. 1. Where a public company has the right, by law, of 
 taking up the pavement of the street, the workmen they employ 
 
 wa« not the result of negligence, nor does it preclude any other defence of a 
 different nature. The act ia to be interpreted and construed with reference to 
 the state of the law as it stood before its passage. By the general principles of 
 law, which were applicable to common carriers of passengers and to persons 
 standing in that relation, the fact of an injury to a passenger, occasioned by a 
 defective railroad car or coach, or by a defect in any part of the machinery, 
 makes a. prima facie case of negligence against the defendant sufficient to shifl 
 the burden of proof: and by that law carriers of passengers were held respon- 
 sible for the utmost degree of care and diligence, and were liable for the slight- 
 est neglect. This act is evidently based upon the same principles : it is confined 
 by its terms strictly to passengers and to injuries arising from cases of that pe- 
 culiar nature only ; and it must receive a construction in accordance with these 
 principles. Viewed in this light, it is clear that the intent of this clause of the 
 act was to provide greater security for the lives and safety of the passengers as 
 such, and to enable the representatives of a deceased passenger to pursue the 
 * remedy given by the act ; and no other class of persons is intended within its 
 purview. 
 
 " The first question here presented is, whether the deceased person was a pas- 
 senger within the meaning of the act. The evidence shows he had been in the 
 employ of the company as an engineer and brakeman for several years, with 
 some intermission : that for several months previous to the accident, and down 
 to the 4th day of September, 1861, when his train was stopped by guerillas, he 
 had been continually on duty as a brakeman ; and that, about that time, the in- 
 terruptions occasioned by actual hostilities in that neighborhood had caused the 
 train on which he was employed to cease running for a time ; and that for sev- 
 eral days before the day of his death he had not been in actual service upon 
 any train, but his name still remained on the roll of the company's employees 
 as before. He had never been paid ofi* and discharged ; bis account was unset- 
 tled ; there were arrears still due him at the time of his decease. It appeara 
 
 •636,638
 
 534 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 are bound to use such care and caution in doing the work as will 
 protect the king's subjects, themselves using reasonable care, 
 
 brakemen were paid monthly, but at the rate of so much per day for as many 
 days as they actually worked during the month. 
 
 "These facts would all go to show that his emplojTnent still continued, and 
 that his relations to the company was still that of an employee. On the morn- 
 ing of the accident he signalled the train to stop, and take him up where he 
 was ; he took his place on the baggage-car among other employees ; he appears 
 to have treated himself as an employee, and was treated by the conductor as an 
 employee who was passing from one point to another on the road in the usual 
 manner. He engaged no passage, took no seat in any passenger-car, paid no 
 fare, and evidently did not expect to pay any ; and none was exacted from him. 
 He did not claim to be a passenger, nor was he treated otherwise than as an 
 employee by the conductor. Upon a careful examination of the evidence on this 
 point, we think it tended to prove that he was an employee, and not a passen- 
 ger within the purview of this act, and that under all the circumstances the con- 
 ductor had a right to presume he was travelling as an employee of the company 
 merely. 
 
 " Such being the relation of the parties, the mere circumstances that he had 
 been off duty as a brakeman for some days, or that he was then passing on his 
 own private errand, and not immediately engaged on the business of the com- 
 pany or in running that verj' train, cannot be allowed to make any diiference : 
 Gilshannon v. Stony Brook Railw. Co., 10 Cush. 228. The conductor, knowing 
 him only as an employee, was not bound to inquire into his particular errand ; 
 and though informed, by a casual conversation with him in the baggage-car, that 
 he was looking for some temporary employment so as not to lose time, he still 
 might be justified as treating him as an employee who had the privilege of free 
 passage on the train as such. Under such circumstances it was his business, if 
 he claimed to be a passenger, to engage or take a seat in the passenger-coach, 
 or at least in some way to make it known to the conductor that he claimed to be 
 travelling in the character of a passenger. 
 
 ' * Where a director was invited by the president to pass over the road as a pas- 
 senger, without paying fare ; Philadelphia and Reading Railroad Co. ». Derby, 
 14 How. (U. S.) 468 ; where a man was taken up by the engineer of a gravel- 
 * train, to be carried as a passenger, paying fare as the practice had been, and 
 was allowed to go from the tender to the gravel-car : Lawrenceburg & Upper 
 Mississippi Railroad Co. v. Montgomery, 7 Ind. 474 ; and where a man who had 
 been a work -hand on the road, but had left the service of the company two 
 weeks before the accident, because they did not pay him, got upon the train to 
 be carried as a passenger : Ohio and Mississippi Railroad Co. v. Muhlins, 30 111. 
 9 ; and where a house-carpenter was employed to build a bridge, and was sent 
 by the company on their cars to another place to assist in loading timber for the 
 bridge: Gillenwater v. Madison and Indiana Railroad Co., 5 Ind. 340; the in- 
 jured person was held to be clothed with all the right and character of a passen- 
 ger and a stranger ; and that he was not to be considered as standing on the same 
 footing as ordinary employees and fellow-servants of the company. 
 
 " If this party had been invited to go in the train as passenger, or had taken a 
 *636
 
 § 132. DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 535 
 
 from injury. And if they so lay the stones as to give such an 
 appearance of security as would induce a careful person, using 
 
 seat in the passenger-car, or had been taken on board the train in the character 
 of a passenger, and the conductor had merely waived his right to demand fare 
 as an act of liberality or courtesy, and had then allowed him to pass into the 
 baggageM;ar to ride there, the case would have been quite different, and might 
 have fallen within the reasoning and the principles of these adjudicated cases. 
 The benefit of this act was plainly intended for those only who stand, strictly 
 speaking, in the relation of passengers, and between whom and the carrier there 
 exists the privity of contract, with or without fare actually paid, and the peculiar 
 responsibilities which are implied in that relation and depend wholly upon it. 
 Where the relation is properly that of master and servant only, this particular 
 clause of the act has no application. We think this matter was not fairly nor cor- 
 rectly laid before the jury by the instructions of the court below. 
 
 "Again, even if the deceased party would be considered as having been in any 
 proper sense a passenger, there would not be the least doubt that he himself 
 neglected all precautions and voluntarily placed himself in a position which be 
 knew to be the most dangerous on the train for passengers. A baggage-car is 
 certainly no place for a passenger, and as such the proof shows he had no busi- 
 ness to be there at all. We are aware that it had been held in some cases, that 
 if a passenger, who is travelling as such, is allowed to go into the baggage-car 
 or into a part of the baggage-car which is used as a post-office, where passengers 
 are sometimes permitted to be, as in Carrol v. New York and New Haven Rail- 
 road Co., 1 Duer, 571, and while there an accident and injury occur, by reason 
 of negligence on the part of the company, and under such circumstances that his 
 being in that place cannot be said to have materially contributed to produce the 
 accident or injury, the defendant would still be held liable. In many cases of 
 this kind, it might be difficult to determine whose negligence had been the real 
 cause of the injury. 
 
 " But any question of this nature is removed from our consideration in this case 
 by force of another statute which finds an apt and just application here. 
 
 •• By the 64th section of the Act concerning Railroad Associations, Rev. Stat. 
 1855, p. 430, approved one day only after the act in question, it is expressly 
 provided as follows : — 
 
 " • In case any passenger on any railroad shall be injured while on the platform 
 • of a car, or in any baggage, wood, or freight-car, in violation of the printed reg- 
 ulations of the company, posted up at the time in a conspicuous place inside of 
 its passenger-cars, then in the train, such company shall not be liable for the in- 
 jury. Provided, said company at the time furnish room inside its passenger- 
 cars sufficient for the proper accommodation of its passengers.^ 
 
 " This provision is by the 57th section of the same act made applicable to all 
 existing railroads in this State : Ibid., p. 438. Under this section the exemp- 
 tion of the company is made to depend upon a violation by the passenger of the 
 printed regulation hung up in the passenger-cars only. They are not required 
 to be posted up in a baggage-car : it is presumed that no passenger will ever be 
 found there. There was evidence in the case tending to prove that the pro- 
 
 •637
 
 536 LIABILITY FOR CONTRACTORS, AGENT8, AND SUB-AGENTS. CH. XX. 
 
 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.^ 
 
 ▼inon of the statute had been complied with on the part of the defendant ; but 
 the printed forms used had been changed since that time, and no copy of the 
 former cards had been found, and on proof made of the loss of them secondary- 
 evidence was offered to prove their contents. This evidence was excluded as 
 irrelevant, and having no bearing upon the case. In the view we have taken of 
 this statute the evidence was certainly verj' material and should have been admit- 
 ted. It is true such notice would have given this party no information, for the 
 reason he did not go in the passenger-car ; the evidence tended to show that 
 he was in fact well acquainted with these regulations ; and this consideration, 
 80 far from weighing any thing in his favor, would rather tend to strengthen the 
 inference that he was not a passenger at all. This statute proceeds again upon 
 the general principles of law in relation to contributory negligence, and it sup- 
 poses that a passenger who has had the warning of this notice, and yet has 
 placed himself in a situation so dangerous as a baggage-car, is to be considered 
 as contributing by his own negligence to produce the injury, and therefore that 
 the company is not to be held liable in such cases. 
 
 " We think that the first and second instructions asked for by defendant should 
 have been given, and that the fifth, sixth, and seventh instructions asked for by 
 plaintiff should have been refused. It is not deemed necessary more particu- 
 larly to notice the other instructions." 
 
 The foregoing opinion seems to us to present several interesting practical 
 points, in a very judicious and sensible light. It is sometimes difficult to deter- 
 mine, with exact precision, when a person ceases to be an employee of the road 
 and becomes a passenger. There is perhaps no fairer test than the one pre- 
 sented in this case, to allow his own claim and conduct at the time, and the 
 acquiescence of the company, to determine that question. At the time, one 
 who has recently been in the employment of the company has a motive to claim 
 the privileges of the employment, by passing without the payment of fare. And 
 if he claims the privilege, and it is acceded to by the officers of the company, 
 there is great injustice in allowing the person at the same time to hold the com- 
 pany to the higher responsibility which it owes to passengers, from whom it 
 derives revenue. It should therefore be made to appear, that one who passes 
 in the character of an employee of the road was really a passenger, before he 
 can fairly be allowed to demand the indemnity which passengers may by law re- 
 quire. If the person assumes one character for his advantage, and the company 
 accede to the claim, he ought not to be allowed the benefits of any other charac- 
 ter, unless it is very clear such was his real position, and that this was under- 
 stood by the company. 
 
 The effect of free passes, and of the passenger being out of his place in the 
 carriages, is very fairly presented, as it seems to us, in the foregoing opinion, 
 and the principal cases are referred to upon all the points. 
 
 ' Drew V. The New River Co., 6 Carr. & P. 764.
 
 § 132. DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 537 
 
 And in a more recent case,^ a canal and railway company, as 
 early as the 28 Geo. 2, had acquired the right, by act of parlia- 
 ment, to construct a canal and take tolls thereon, and had built 
 the same across an ancient highway near St. Helens, a small 
 village, and had made a swivel bridge across the canal for the 
 passage of the highway; and by subsequent acts, reciting the 
 •existence of such works, all persons were to have free liberty 
 with boats to navigate the canal for the transportation of goods, 
 and penalties were imposed upon such persons as should leave open 
 the drawbridges. The company maintained the works and re- 
 ceived a toll from all others using them. A boatman having 
 opened the swivel bridge, to allow his boat to pass through, in 
 the night-time, a person walking along the road fell into the 
 canal and was drowned, just as the boat was coming up. When 
 the bridge was open the highway was wholly unfenced. Two 
 lamps had formerly been kept burning, of which one had been 
 removed and the other was out of repair at the time. The jury 
 found that the deceased was drowned by reason of the neglect of 
 reasonable precautions on the part of the canal company, without 
 any fault on his own part. 
 
 Held that the defendants, having a beneficial interest in the 
 tolls, were liable to an action, the same as any owner of private 
 property would be for a nuisance arising therefrom. That the 
 bridge being in the possession of defendants, the action was prop- 
 erly brought against them and not against the boatman. That 
 the passing the subsequent acts, recognizing the existence of the 
 bridge, was not a legislative declaration of its sufficiency. 
 
 It was further held, that even if the bridge had been sufficient 
 at the time of its erection, it was the duty of the company so to 
 alter and improve its structure, from time to time, as at all times 
 to maintain a bridge sufficient, with reference to the existing 
 state of circumstances, and that the jury were warranted in con- 
 sidering the bridge, in the state in which it was, insufficient. 
 
 2. But it has been held, that where such companies, having 
 the power, by law, to cut through and alter highways, either 
 temporarily or permanently, do it in such a manner as to leave 
 them unsafe for travellers, who in consequence sustain injury 
 without fault on their part, that the towns or cities in which 
 
 * Manley r. The St. Helens Canal & Railw. Co., 2 H. & N. 840. 
 
 •M9
 
 538 LIABILITY FOR COKTRACTOBS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 such highways or public streets are situated are primarily lia- 
 ble ^ for all 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.* 
 
 ' Willard v. Newbury, 22 Vt. 458 ; Batty v. Duxbury, 24 Vt. 155 ; Currier 
 V. Lowell, 16 Pick, 170; Buffalo ». Holloway, 14 Barb. 101. In this last case 
 an opinion is intimated, that a contractor for such works is not liable to make 
 such precautionary erections as may be requisite to guard the public against 
 injury, no such provision being found in his contract. But is not that a duty 
 which every one owes the public in all works which he undertakes ? In Barber 
 r. Essex, 27 Vt. 62, the following points are decided : An old highway, which a 
 railway proposes to use for its track, is not considered as discontinued till the 
 company have provided a substitute, or unless effected by some other definite 
 legal act, or by an abandonment by legal authority, or nonuser. Towns are 
 responsible to the public for the safe condition of their highways, and cannot 
 excuse themselves from the performance of the duty by showing that a railway 
 company, proceeding under their charter, had caused the defects complained of. 
 The towns are bound to watchfulness upon this subject, and theirs being a 
 primary responsibility, they cannot shift it upon the railway, whose responsibility 
 is secondary in regard to travellers and the public generally. The towns have 
 their remedy over against the company. See, also, to same effect, Phillips v. 
 Veazie, 40 Maine, 96. The obligation upon the towns to make highways safe 
 and convenient for travellers continues when they are crossed by railways at 
 grade, except so far as the necessary use of the crossing by the railway may 
 prevent it, and subject to such specific directions as may be given by the county 
 commissioners. Davis v. Leominster, 1 Allen, 182. But towns are not liable 
 for obstructions caused by telegraph poles which they have no right to remove. 
 Young V. Yarmouth, 9 Gray, 386. The railway is also responsible for all un- 
 lawful obstructions of the highway. Parker v. Boston & Maine Railw. Co., 
 8 Cush. 107. But where the duty of maintaining a bridge is imposed exclu- 
 sively upon the railway, the town is not responsible for any defects in the same. 
 Sawyer v. Northfield, 7 Cush. 490. See, also, Jones c. Waltham, 4 Cush. 299 ; 
 Vinal V. Dorchester, 7 Gray, 421. 
 
 * Lowell V. Boston & Lowell Railw., 23 Pick. 24; Newbury r. Conn. & Pas. 
 Rivers Railw., 25 Vt. 377. The recovery in these cases is allowed upon the 
 ground, that the wrong is altogether upon the part of the company, and the town, 
 standing primarily liable to the public for the sufficiency of the highways, and 
 being virtual guarantors against the negligence of the railway company, may 
 therefore rei-over of them an indemnity, not only for the damages they are com- 
 pelled to pay, but also the costs and expenses incurred by them in defending 
 bona Jide against suits brought against them for the default of the company. 
 
 •540
 
 § 132. DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 539 
 
 And where the injury did not accrue for more than six years, 
 it was held that tlie railway was still liable to indemnify the 
 town, notwithstanding the bar of the statute of limitations, * reck- 
 oning the cause of action as accruing at the date of the neglect ; 
 and that it did not exonerate the company guilty of the neglect, 
 that they had leased tlieir road to another company who were 
 operating it at the time the injury occurred.^ 
 
 4. And where the statute provides that railways " shall main- 
 tain and keep in repair all bridges, with their abutments, which 
 they shall construct for the purpose of enabling their road to 
 pass over or under any road, canal, highway, or other way," 
 and the company omitted to perform the duty in the manner re- 
 quired for the public safety, it was held that the town, within 
 which the road lay, were liable to indictment for not keeping it 
 in safe repair, and that they may compel the railway company 
 to make all such repairs as may be necessary, by writ of man- 
 damus ; or if they have been obliged to make expenditures there- 
 in, may reimburse themselves by an action on the case against 
 the company.^ 
 
 5. And where a railway company were authorized by the leg- 
 islature to construct and operate their road through the streets 
 of a city, and the city government have assented to the location 
 and construction upon a designated route, on certain conditions, 
 it was held that the municipal authority had no power by reso- 
 lution to annul or impair the grant to the company on account of 
 its failure to complete the road within the time limited in the con- 
 ditions annexed to their assentJ And that such condition was 
 not to be regarded as precedent to the vesting of the estate or 
 franchise, but only a condition subsequent upon the non-perform- 
 ance of which the grantor might elect to defeat it, but that noth- 
 ing short of a judicial determination would operate to divest the 
 interest of the company .^ 
 
 Duxbury c. Vt. C. Railw., 26 Vt. 761, 762, 768; Hayden v. Cabot, 17 Mass. 
 168; Hamden r. New Hav. & Northamp. Co., 27 Conn. 168. 
 
 • Hamden ». New H. & North. Co. & N. Y. & N. H. Railw., 27 Conn. 158. 
 But wht-re the company have the right to lay their rails in the street, they are 
 not responsible for any injury resulting therefrom to others, unless they have 
 been in fault either in laying them down or in keeping them safe. Mazctti v. 
 New York & Harlem Railw., 3 E. D. Smith, 98; post, § 225, pi. 7. 
 
 ' State r. Gorham, 37 Maine, 451. 
 
 ' Brooklyn Central Railw. v. Brooklyn City Railw., 82 Barb. 868. 
 
 •541
 
 540 LIABILITY FOR CONTRACTORS," AGENTS, AND SUB-AGENTS. CH. XX. 
 
 6. Where a railway has been laid upon a public street, it does 
 not thereby become public property, in such a sense as to entitle 
 the public at large or other railway companies to use the * track 
 for the passage of carriages constructed for such use." Nor will 
 the permission of the municipal authorities for that purpose give 
 
 . any such right." 
 
 7. Where a railway company is required to construct its road 
 so as not to obstruct the safe and convenient use of the highway, 
 this is a continuing obligation requiring the company to so main- 
 tain their road as to leave the highway safe and convenient for 
 public use ; but this will not exonerate the towns from their 
 primary responsibility.^ 
 
 8. Cities or towns are not liable for damages resulting from 
 the proper exercise of authority in permitting railway tracks to 
 be laid in the streets, or in raising the grade of streets, unless 
 they exceed their lawful authority in this respect.^ And it is 
 here said to be a legitimate use of a street to allow a railway 
 track to be laid in it. 
 
 9. Where a canal company had constructed a bridge as part of 
 the farm accommodations of an adjoining land-owner which the 
 company were bound to maintain, and a railway company by sub- 
 sequent legislative grant had laid its track along the line of the 
 canal, and in consequence had been compelled to alter the con- 
 struction of the bridge so as to render it more expensive to main- 
 tain the same, it was held the canal company were not thereby 
 exonerated from maintaining the bridge, but were liable to the 
 land-owner the same as before the alteration by the railway com- 
 pany, notwithstanding any liability which might rest upon the 
 railway company.^" 
 
 10. Where a railway crossed on a level a considerably fre- 
 quented footpath, and there was no servant of the company at the 
 crossing to warn persons of the approach of the trains, the view 
 being somewhat obstructed by the pier of the bridge, but a person 
 before reaching the track could see nearly three hundred yards 
 either way along the line, and the plaintiff's wife, while crossing 
 the line at the spot was run over and killed, it was held that the 
 fact of the company not keeping a servant at the crossing to warn 
 
 * Wellcome r. Leeds, 61 Me. 313. 
 » Murphy r. City of Chicago, 29 111. 279. 
 >** Ammennon v. Wyoming Land Co., 40 Penn St. 256. 
 •542
 
 § 133. LIABILITY FOR INJURY IN THE NATURE OP TORTS. 541 
 
 persons of the approach of trains, was not evidence of negligence 
 to go to the jury." 
 
 * 11. And where it was made, by statute, the duty of a railway 
 company to maintain gates at all level crossings of highways, and 
 to have persons to open and shut them when any one wished to 
 pass, but at all other times they were to be kept shut, and a yer- 
 son coming along the highway when no servant of the company 
 was present, as he should have been, to open and shut the gates, 
 the plaintiff having waited a reasonable time opened the gates 
 himself in order that he might be able to proceed on his journey, 
 and in doing so was injured by the closing of .the gates, which 
 were so constructed as to fall back into their places with their 
 own weight, it was held the action would not lie, one judge dissent- 
 ing." This case was decided mainly upon the ground that by the 
 act of parliament requiring the gates to be kept closed, except when 
 opened by the servants of the company, it amounted to a virtual 
 prohibition of any one crossing the railway at any other time, and 
 if the plaintiff found no servant of the company to open the gate, it 
 was his duty to wait until he could find one, and seek his remedy 
 for the delay against the company ; and being a wrong-doer in open- 
 ing the gate, he could not recover of the company for any injury 
 he thereby sustained. 
 
 •SECTION V. 
 
 Liability for Injury in the Nature of Torts. 
 
 1. Railwatf crosaingt upon a level aboaya 
 
 dangeroxu. 
 
 2. Company not excused by use of the signals 
 
 required by statute. 
 8. Party cannot recover if his own act con- 
 
 tributed to injury. 
 4. But company liable still if they might have 
 
 avoided the injury. 
 6. If company omit jrroper signals, not liable, 
 
 mdess that produce the injury. 
 
 6. Nat liable for injury to cattle trespassing, 
 
 m&n guilty of wilful wrong. 
 
 7. General d^nitions of company's duty. 
 
 8. Action accrues from the accruing of the 
 
 injury. 
 
 9. Where injury is wanton, jury may give 
 
 exemplary damages. 
 
 10. One who follows direction of gate-keeper 
 
 excused. 
 
 11. Company responsible for injury at a 
 
 crossing opened by themselves for public 
 use. 
 
 12. The responsibility of railway companies 
 
 for damages to persons crossing, mainly 
 matter of fact, and each case depends 
 on its peculiar circumstances. 
 
 § 133. 1. We have discussed the subject of this chapter, in 
 
 ' " Stapley r. London, Brighton, «Sbc., Railw. Co., Law Rep. 1 Exch. 21 ; s, c. 
 11 Jur. N. S. 954. 
 
 " Wyatt V. Great Western RaUw. Co., 6 B. & S. 709 ; s. c. 11 Jur. N. S. 826. 
 
 •643,644
 
 542 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 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 consid- 
 erable travel upon the highway, and is followed by many painful 
 scenes of mutilation and death, under circumstances more dis- 
 tressing, if possible, than even the accidents, so destructive some- 
 times to railway passengers. 
 
 2. In a case^ where the plaintiff was injured at a railway 
 crossing, by collision with an engine, it was held that where the 
 statute required, at such points, certain specified signals, the 
 compliance with the requirements of the statute will not excuse 
 * the company from the use of care and prudence in other re- 
 spects. That it is not necessarily enough to excuse the company, 
 that they pursued the usual course adopted by engineers in such 
 cases. The question of negligence is one of fact, in such cases, 
 to be submitted to the jury, under all the circumstances of the 
 case, and to be determined by them, upon their view of what 
 prudence and skill required. 
 
 3. But when the statute requires certain precautions against 
 accidents, and its requirements are disregarded, the party suffer- 
 ing damage is not entitled to recover, if he was himself guilty of 
 negligence which contributed to the damage.* And where the 
 
 ' Ante, § 130, post, 177. 
 
 'Ante, I 108. 
 
 ^ Bradley v. Boston & Maine Railw., 2 Cush. 639. 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 
 Supreme Court in revising the case. See, also, Gleason v. Briggs, 28 Vt. 185 ; 
 Linfield v. Old Colony Railway, 10 Cush. 562. 
 
 * Parker «. Adams, 12 Met. 415; post, § 177; Macon & W. Railw. v, Davis, 
 18 Georgia, 679, where the question of negligence in the conductors of a rail- 
 way train in passing a road-crossing, is held to be one of fact depending upon 
 the circumstances of each particular case. Dascomb v. I^uffalo & State Line 
 Railw., 27 Barb. 221. But the omission of any statute duty by railway com- 
 panies at the time and place where an accident occurs is prima facie evidence 
 *545
 
 § 133. LIABILITY FOB INJURY IN THE NATURE OF TORTS. 543 
 
 * plaintiflTs farm was intersected by the line of a railway, and he, 
 witli a wagon and one horse, having his son and a servant with 
 
 of liability. Aug. & Sav. Railw. r. McElmurry, 24 Ga. 75. In Johnson r. 
 Hudson River Railw., 6 Duer, G33, where the plaintiflTs husband was killed in 
 the streets of the city of New York by one of defendants' freight cars in the 
 night-time, it being verj- dark, and the company using neither lights nor bells to 
 guard against accident ; it was held, that although the law required of defend- 
 ants only ordinarj' care towards the deceased, it must be measured by the degree 
 of peril against which such care is to be exercised, which, under the circum- 
 stances, was so extreme as to justify the court in telling the jury that defend- 
 ants were required to use every precaution in their power to insure the safety 
 of persons passing ; and that if lights or bells would have contributed to that 
 end, they were culpable for not using them ; and that in this form the question 
 of negligence was properly submitted to the jur}' as one of fact. 
 
 It was also held that the deceased was only bound to the exercise of ordinary 
 care, and that his being found upon the track was not sufficient ground to pre- 
 clude the recovery. In the case of Wakefield v. Conn. & Pass. Rivers Railw., 
 87 Vt. 330, it was held, that the requirements of the statute in regard to blowing 
 the whistle and ringing the bell, a prescribed distance before crossing the highway, 
 was a duty of the company not only in reference to travellers about crossing the 
 track of the railway, but with reference to all persons, who being lawfully at or 
 in the vicinity of the crossing, are exposed to accident or injury by reason of 
 the passing train, short of actual contact with it. And it is further said here, 
 that although there might be cases in which the company would be excused from 
 a strict compliance with the statute, and might be justified in omitting the 
 signals, in all cases of such omission, where damage ensued in consequence, the 
 company must show that they were justified in the omission. This seems rather 
 a loose view to be taken of a peremptory statutory requirement, that the party 
 is to exercise a discretion when to comply. Ab a general rule, the party must 
 omit any such requirement at the peril of all legal consequences. But the court 
 seem to suppose that the statute in imposing a penalty for the " unreasonable" 
 omission of such signals must have contemplated cases of reasonable omission. 
 That may be so ; but it would be more satisfactory to the common mind to find 
 such an important qualification of the leading provision of the statute, more 
 explicitly declared, than by so indirec^ an inference. We do not suppose any 
 such construction could sai'ely be applied to these statutes generally. It would 
 be sure to result in a virtual repeal or disregard of the statute. It would be far 
 more salutar}' to have the engineer understand that he bad no discretion in the 
 matter, that be must give the signals regardless of consequences. 
 
 In an important case, Shaw c. Boston & Worcester Railw., 8 Gray, 45, the 
 subject of injuries at railway and highway intersections is a good deal discussed. 
 Fast, § 179, pi. 9 & n. It is here decided that the record of the county commis- 
 sioners stating that in their opinion no fiagman at the crossing was necessary, is 
 not competent to show due care on the part of the company in omitting that 
 precaution. The court said it was the duty of the judge in charging the jury in 
 regard to the precautions required to be taken by a railway company at a lugh- 
 way crossing, to distinguish between such circumstances as could have been 
 
 •646
 
 644 LUBILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 him, drove upon a trot directly over the track at a public cross- 
 ing, without taking the slightest precaution to ascertain whether 
 a locomotive was coming, it was held that he was guilty of great 
 carelessness, and that he could not recover for any damage there- 
 by sustained, and that it was immaterial whether the train was 
 on time or not. It was also held, that the question of negligence, 
 in a case of this character where the testimony was all one way, 
 was one of law to be decided by the court and could not be left 
 to th\3 jury.^ The company are bound to maintain a sign-board 
 and other precautions, required by statute at railway crossings, 
 at the place where an opened travelled street in a city intersects 
 the railway, although the street has not been so laid out and es- 
 tablished by the municipal authorities as to make the city respon- 
 sible for damages occasioned by defects therein, such passage 
 being a " travelled route " within the meaning of the statute.® 
 But it has been held, that the company is not liable for not con- 
 structing an under pass for the accommodation of the public 
 travel, on a way which was not laid out agreeably to the statute, 
 and had not been in use by the public twenty years.''' It is such 
 negligence for a deaf man to drive an unmanageable horse across 
 a railway track when a train is approaching, that he cannot 
 recover for any damage sustained. He should wait and avoid 
 exposure.^ 
 
 reasonably anticipated, and such as would have required extraordinary precau- 
 tions, but were of so extraordinary a character as not to have been anticipated. 
 It was also held a fatal variance that the proof showed the injury to have occurred 
 some rods out of the highway where the plaintiflTs horse drew the carriage by 
 reason of being frightened by defendants' locomotive engine, the declaration 
 charging it to have occurred while travelling in the highway, and the declaration 
 cannot be amended after verdict so as to cure the variance. Also that the 
 degree of care required of the company and travellers, at a railway and highway 
 crossing, is the same, being that which men of ordinary capacity would exercise 
 under like circumstances. The fact that a collision occurred at a railway cross- 
 ing, and that the plaintiff was in no fault, is not proof that the defendant was in 
 fault. 
 
 » Dascomb v. Buffalo & State Line Railw., 27 Barb. 221 ; Mackey v. New 
 York Central Railw., 27 Barb. 528. It would seem to be the duty of one about 
 to pass a railway to exercise watchfulness to know that a train is not approach- 
 ing, lb. 
 
 " Whitaker v. Boston & Maine Railw., 7 Gray, 98. But later statutes adopt 
 a different phraseology. 
 
 '^Northumberland r. At. & St. Law. R. Co., 35 N. H. '574. 
 
 ^'lll. Cent. R. Co. v. Buckner, 28 HI. 299. This question, both as to the
 
 § 133. LIABILITY FOB INJURY IN THE NATURE OP TORTS. 545 
 
 * 4. If the plaintifTs negligence did not contribute to his injury, 
 it will not preclude his recovering for the consequences of defend- 
 
 caae required of the company and the person crossing a railway, ia considered 
 and discussed, in Ernst r. Hudson River Railw., 35 N. Y. 9, and the following 
 proposition maintained. The omission of a railway company to give the signals 
 required by the statute on the approach of a locomotive within eighty rods of a 
 highway crossing, is a breach of duty to the passengers, whose safety it imperils, 
 and to the wayfarer, whom it exposes to mutilation and death. 
 
 Such a crossing is dangerous, only when the company makes it so by pro- 
 pelling its engines across it; and the statute, therefore, for the protection 
 of human life, exacts public warning of the approach of such danger. The 
 injunction is plain and absolute, and the company who violates it does so at its 
 peril. 
 
 The omission of the customar}- signals is an assurance by the company to the 
 traveller, that no engine is approaching from either side within eighty rods of 
 the crossing ; and he may rely on such assurance, without incurring the imputa- 
 tion of breach of duty to a wrong-doer. 
 
 When the passer-by knows of the immediate proximity of an advancing train, 
 whether the warning be by signals or otherwise, and, having a safe and season- 
 able opportunity to stop, he voluntarily takes the risk of crossing in front of it, 
 he is guilty of culpable negligence, and forfeits all claims to redress. 
 
 But when the usual warning is withheld, the wayfarer has a right to assume 
 that the crossing is safe, and that the company is not violating the law, and 
 endangering human life, by running an engine without signals. 
 
 The citizen, on the public highway, is bound only to the exercise of ordinary 
 care ; and when he is injured by the negligence of a railroad company, it is no 
 answer to his claim for redress, that, notwithstanding the omission of the signals, 
 he might, by greater vigilance, have discovered the approach of the train, if he 
 had foreseen a violation of the statute, instead of relying upon its observance. 
 
 The traveller is not bound to stop on the highway, or to look up and down an 
 intersecting railway track before crossing, when there are no signals of an ap- 
 proaching engine. 
 
 Ordinarily, in cases of this description, the question whether the party injured 
 was free from culpable negligence, is one of fact to be determined by the jury, 
 under appropriate instructions, and subject to the revisory power of the 
 courts. 
 
 Where the proof is undisputed and decisive, that the plaintiff was guilty of 
 misconduct, and that this contributed to the injury, a nonsuit is matter of right; 
 but it is equally matter of right to have the issue of negligence submitted to the 
 jurj-, when it depends on conflicting evidence, or on inferences to be deduced 
 from a variety of circumstances, in regard to which there is room for fair differ- 
 ence of opinion between intelligent and upright men. 
 
 The same view is maintained and further illustrated in the subsequent case 
 of Renwick r. New York Central Railw., 36 N. Y. 132. It seems to us these 
 cases develop a very important and most unquestionable rule of responsibility 
 on the part of railway companies, in regard to injuries to persons at highway 
 crossings; i.e., that the companies, when omitting the customary and rei{uired 
 
 35 •647
 
 546 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 ant's wrong.* If the wrong on the part of the defendant is so 
 * Wanton and gross as to imply a willingness to inflict the injury, 
 
 signals before arriving at such crossings, should expect a proportionally less 
 degree of watchfulness on the part of travellers. That is certainly natural, 
 almost inevitable. In such a case the company ought not to complain, if held 
 responsible for all consequences not the result of absolute foolhardiness. In 
 State of Maryland v. Baltimore & Ohio Railw., 5 Am. Law Reg. N. S. 397, 8.C. 
 24 Md. 84, it was held, that the plaintiff cannot recover for an injur)- resulting from 
 the negligence of the defendant, provided he might, himself, by the exercise of 
 proper prudence, care, and skill, have escaped from its consequences, or where his 
 own want of such prudence, care, and skill directly contributed to produce the 
 damage complained of. Railways owe a higher degree of watchfulness to their 
 passengers than to mere strangers. In the former case the utmost care and skill 
 is required, in order to avoid injuries ; but in the latter case, only such as skilful, 
 prudent, and discreet persons, having the management of such business in such 
 a neighborhood, would naturally be expected to put forth. 
 
 * Kennard r". Burton, 25 Maine, 39. In the newspaper report of a recent 
 trial in the Supreme Court of Pennsylvania, the court are reported to have 
 charged the jury, as matter of law, that " a person about to cross a railway track 
 [with a team] is in duty bound to stop and look in both directions, and listen be- 
 fore crossing." It has recently been decided by the fuU bench Supreme Court 
 in Massachusetts, ante, n. 4, that it is not competent for the judge to lay down 
 any definite rule, as to the duty of the company, in regard to proper precautions 
 in crossing highways ; that the circumstances attending such crossings are so in- 
 finitely diversified that it must be left to the jury to determine what is proper 
 care and diligence in each particular case. This we apprehend is the true rule 
 upon that subject, both as to the company and travellers upon the highway, and 
 that it will finally prevail, notwithstanding occasional attempts to simplify the 
 matter by definitions. The Pennsylvania case referred to is that of O'Brien r. 
 Philadelphia, Wilmington, & Baltimore Railw., 10 Am. Railw. T. No. 10, 13. 
 The following extracts fi-om 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 plaintiflf. 
 
 He was a carter, and the same general principles apply to him as to the 
 defendants. He was bound to pursue his business with aU that regard to the 
 safety of himself and others which prudent men commonly employ in like occu- 
 pations. Did he demean himself in that manner ? In answer to the 6th and 7th 
 points on the part of the defendants, I instruct the jur}- that a carter, or any man 
 having charge of a team, but who is about to cross a railroad at grade on which 
 locomotives run, is bound to stop and listen, and look in both directions, before 
 he permits his team to set foot within the rails, and omission to do ^o is negli- 
 gence on his part. This rule of law is demanded by a due regarf to the safety 
 of life and property, both his own and that which is passing on the railroad. 
 From the diagram in evidence it is perfectly apparent thab the plaintiff could have 
 seen the approaching train if he had looked. If he saw it, it was extreme rash- 
 
 * 648
 
 § 133. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 547 
 
 plaintiff may recover, notwithstanding his own ordinary neglect.**' 
 And this is always to be attributed to defendant, if he might 
 have avoided injuring plaintiff, notwithstanding his own negli- 
 gence. So, too, if the neglect on the part of the plaintiff is not 
 the proximate cause of the injury, it will not preclude a re- 
 covery." 
 
 5. If a railway wholly omit to give the proper signal at a road- 
 crossing, they are not necessarily liable for injury to one crossing 
 at that moment, whose team took fright and injury ensued. It 
 should be shown that the omission had some tendency to pro- 
 duce the loss.^ The statute requiring railway companies to 
 make signals in all cases of crossing highways, applies to cross- 
 ings above or below the grade of the highway, as well as to those 
 at grade.^ 
 
 6. A conductor was held not liable for running the engine over 
 an animal trespassing upon the track, unless he acted wilfully." 
 
 ncss in him to allow his lead horse to advance so far, and if he did not see it, it 
 must have been because he did not look. 
 
 I state the general rule, but whether it is applicaBle to the 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 
 bis lefl, according to his witnesses, was the omnibus in close proximity to the 
 crossing. 
 
 Now, for these circumstances the plaintiff was in no wi8e*re8ponsible, and the 
 question is, whether they constituted any excuse for his not looking up the 
 road. 
 
 In Brooks v. Buffalo & Niagara Falls Railw., 25 Barb. 600, it is said if one 
 cross a railway at grade with a team, where the danger may easily be seen by 
 looking for it, and especially where he drives upon the railway track and there 
 stops, looking in an opposite direction from an approaching train till it strikes 
 him, he is guilty of such negligence as will preclude a recovery. 
 
 '" Wynn v. Allard, 6 Watts & Serg. 624; Kerwhaker r. C. C. & Cincinnati 
 Railw., 3 Ohio, N.S., 172, 188. 
 
 " Trow V. Vermont Central Railw., 24 Vt. 487 ; IsbeU r. N. Y. & N. H. 
 Railw. Co., 27 Conn. 393; Chicago «fe R. I. Railw. v. Still, 19 Illinois, 499. 
 
 '* Galena & Ch. Railw. r. Loomis, 13 Illinois, 548. A railway is not liable 
 for an injury which happens in crossing a railway, in consequence of the station- 
 ary cars of the company, upon their track, obstructing the view of the plaintiff 
 in his approach to the road. Burton r. The Railw. Co., 4 Harr. 252. See also 
 Morrison v. Steam Nav. Co., 20 Eng. L. & Eq. 267, 456 ; 8 Exch. 733. 
 
 » People V. New York Central Railw., 25 Barb. 199. 
 
 "* Vandegrifl v. Rediker, 2 Zab. 185. But where the act is wrongful, the 
 action may be against both the engineer and fireman. Suydam v. Moore, 
 8 Barb. 358.
 
 548 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 So, too, where the train passed over slaves asleep upon the track, 
 the company were held not liable.^^ 
 
 " Herring v. Wil. & R. Railw., 10 Iredell, 402. In this case, it is held that 
 the engineer might not be chargeable with the same degree of culpability in 
 driving his train over a rational creature, or one who seemed to be such, and in 
 the exercise of his faculties, as in doing the same when the obstruction was 
 a brute animal. And in the case of running over a person asleep, or a deaf- 
 mute, or an insane person, some indulgence is, doubtless, to be extended, inas- 
 much as the peculiar state of the person might not be readily discoverable by 
 those in charge of the train, if not they would have a right to calculate that they 
 would conduct like other rational beings, and step off the track as the engine 
 approaches. But in East Tennessee & Ga. Railw. v. St. John, 5 Sneed, 524, it 
 was held that the company were responsible for killing a slave asleep on the 
 track, who might have been seen by the conductor a quarter of a mile, but 
 who was mistaken for the garments of the laborers, and no signal given in 
 consequence. 
 
 The practice of allowing persons to walk upon a railway track is a vicious one, 
 and one which would not be tolerated in any state or country where the railways 
 are under proper surveillance and police. But as it now is in many parts of this 
 country, an engineer will find some person upon his track every mile, and, in 
 some places, every few rods. If he were required to check the train at every 
 such occurrence, it would become an intolerable grievance. If men will insist 
 upon any thing so absurd as to be permitted to walk upon a railway track at will, 
 they must expect that those who are bereft of sense, but preserve the form of 
 humanity, when they chance to come into the same peril, will perish ; not so 
 much from their own infirmities, as from the absurd practices of those who have 
 no such infirmities. And their destruction is not so much attributable, perhaps, 
 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, 
 80 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
 
 § 133. LIABILITY FOB INJUBT IN THE NATUBE OP T0BT8. 549 
 
 * 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 skill 
 in using it as skilful, prudent, and discreet persons would be ex- 
 pected to put forth, having a proper regard to the interests of the 
 company, the demands of the public, and the interests of those 
 having property along the road, exposed to fire, and to injury in 
 other modes. 1^ They are, at least, bound to exercise as much 
 care as if they owned the property along the line, i.e., what 
 would be regarded as the duty of a prudent owner under all the 
 circumstances.*" It has been held that the company, when their 
 
 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. St. -465. In Ranch r. Lloyd & Hill, 31 Penn. St. 
 358, it was decided, that where the state owned the railway, and its regulations 
 were prescribed by the canal commissioners, and the state supplied the motive 
 power, and allowed persons to use their cars, furnishing a conductor, that such 
 conductor is the responsible person in charge of the train throughout its entire 
 route. That the agencies provided for him, whether of steam, or horse power, 
 become his agencies, and the ultimate responsibility in regard to their proper 
 conduct, so far as strangers are concerned, rests upon him and upon the owners 
 of the train, whose servant he is. And that where it was the practice to have 
 cars pass over a portion of the road by the force of gravity, and after arriving 
 at a given point, to be drawn by horse power to the storehouses, and the con- 
 ductor left them standing across the usual crossing of the highway and went to 
 his breakfast, and during his absence a lad, seven years old, attempted to crawl 
 under the cars, in returning from an errand on which he had been sent, and by 
 means of the starting of the train by the horse power, furnished by a stable- 
 keeper, by contract with the state, and driven by the proprietors' drivers, was 
 seriously injured, it was considered that the conductor and his employers were 
 responsible for the injury. 
 
 It was also decided that where cars were so left standing in the highway un- 
 necessarily, it is not a question to be submitted to the jury, whether they con- 
 stitute an unlawful obstruction. As matter of law, such obstruction, if it could 
 be avoided, is unlawful. 
 
 In such a case, no greater care and prudence is required to be exercised by 
 such child than it is reasonable to expect of one of such tender years. See 
 Galena & Ch. Railw. c. Jacobs, 20 111. 478. 
 
 '• Baltimore & Susq. Railw. v. Woodruff, 4 Maryland, 242, 257. And it is 
 said in Mersey Docks v. Gibbs, Law Rep. 1 II. Lds. 93, that if one would be 
 responsible for injury resulting from a cause of mischief, of whose existence he 
 has knowledge, he will be equally so if he is negligently ignorant of its 
 existence. 
 
 " Quimby r. Vermont Central Railw., 23 Vt. 887. And where one was in- 
 jured by the company's train, at a road-crossing, by collision between the com- 
 
 * 549, 550
 
 550 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 * road passes the thoroughfares of a city, are bound to use extraor- 
 dinary care not to injure persons in the streets.^^ 
 
 8. Tlie 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 .^^ In the case 
 of Backhouse v. Bonomi,'* it was held that no cause of action 
 accrued from defendant's excavation in his own land, until it 
 caused damage to the plaintifiPs ; and the case of Nicklin v. Wil- 
 liams,^^ as fiir as it conflicts with this, was held not maintainable. 
 The cases were examined very thoroughly in the course of the 
 discussion of this case before the Queen's Bench, which held that 
 the cause of action accrued from the act of defendant, and in 
 the Exchequer Chamber, where that judgment was reversed, and 
 finally in the House of Lords, where the judgment of the Ex- 
 chequer Chamber was affirmed. The law on this point may now 
 be considered settled in the English courts. Where the issue is 
 in regard to the prudent use of a highway by the company, it is 
 
 pany's locomotive and the carriage in which the plaintiff was riding, it was held, 
 that the carelessness of the driver of the carriage cannot be shown by common 
 reputation. Nor can the occupation of the plaintiff, and his means of earning 
 support, be shown, with a view to enhance the damages for such an injur)', 
 unless specially averred in the declaration. Baldwin v. Western Railw., 4 Gray, 
 833. In O'Brien v. Philadelphia, Wilmington & Baltimore Railw., 10 Am. 
 Railw. Times, No. 13, where plaintiff was injured at a railway crossing a 
 highway, by collision with his team, Mr. Justice Woodward, of the Pennsylvania 
 Supreme Court, charged the jury, that the plaintiff was only entitled to com- 
 pensatory damages, there being no pretence of any intentional wrong, or fla- 
 grant rashness, on the part of the agents of the company. 
 
 '* Wilson V. Cunningham, 3 Cal. 241. 
 
 " Roberts v. Read, 16 East, 215. Where the act complained of was mali- 
 ciously opposing plaintiff's discharge as an insolvent, and the act was more than 
 six years before action brought, but the consequent imprisonment continued 
 within the six years, it was held the cause of action was barred. Violet ». Simp- 
 son, 30 Law Times, 114 ; s. c. 8 El. & Bl. 344. 
 
 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. 560. 
 
 » 9 Ho. Lds. 503 ; s. c. El. Bl. & El. 646 ; Id. 622 ; 7 Jur. N. S. 809 ; s. c. 
 5 Jur. N. S. 1345 ; 4 id. 1182. " 10 Exch. 259. 
 
 • 661
 
 § 133. UABILITY FOR INJURY IN THE NATURE OF TORTS. 551 
 
 not competent to give evidence of the mode of using the same by 
 the company at other times.^ 
 
 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 questioned 
 by some writers, and in many cases.'^ 
 
 10. Where a level crossing- over a railway is protected by a 
 gate, established by the company and tended by one of its ser- 
 vants, in conformity with the law, those having occasion to cross 
 the track, and who are injured by an attempt to cross when the 
 gate-keeper assures them the line is clear, may recover dam- 
 ages of the company. It is the implied duty of the gate-keeper 
 to know when trains arc due, and to give correct information in 
 that respect, and not open a gate for passage across the track 
 unless he knows no duly advertised train is due. And if a train 
 not advertised to the gate-keeper, or at a time not advertised to 
 him, is allowed to pass, whereby injury accrues to those having 
 just occasion to pass tlie track, it is the fault of the company.^ 
 
 11. And where a railway company make a private crossing 
 over their track, at grade, in a city, and allow the public to use 
 it as a highway, and station a flagman there to warn persons of 
 the approach of trains, they will be held responsible in damages 
 to any one, who in the exercise of proper care, is induced to cross 
 by signal from the company's flagman that it is safe, ho being dam- 
 aged by collision with approaching trains, through this neg- 
 ligence of the flagman .2^ 
 
 12. In the English courts, the cases in regard to responsibility 
 on the part of the companies for injuries at the crossings of high- 
 
 " Gabagan r. Boston & Lowell Railw., 1 Allen, 187. 
 
 " Sedgwick on Dam. 38, 98, 454 ; ante, §§ 131, 154. In the case of Shaw ». 
 Boston & Worcester Railw., ante, n. 4, where the plaintifiPs 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. 
 
 ** Appendix to Sedgwick on Dam. 609 ; Yarillat v. N. Orleans & Car. Railw., 
 10 Louisiana Ann. 88. 
 
 » Lunt p. London & N. W. R. Co., Law Rep. 1 Q. B. 277 ; 8. c. 12 Jur. N. S. 409. 
 
 *• Sweeney r. Old Colony & Newport Railw., 10 Allen, 368. 
 
 •662
 
 652 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 ways and private ways, do not seem always entirely consistent 
 with each other, the rule being never to disturb a verdict where the 
 damages are at all reasonable, provided there was any proof, al- 
 though the slightest, of the omission of duty on the part of the com- 
 pany's servants, and provided also that the plaintiff was not himself 
 in fault. In two recent cases, there were no watchmen or gate- 
 tenders present, at crossings of public ways ; and in both instances 
 foot-passengers were run down by passing trains in crossing. In 
 one case,^ there seemed no specific omission by the company, and 
 the court held them not liable ; in the other case,^ the gates were 
 partly open, contrary to the statutes, and the court refused to set 
 aside a verdict against the company. 
 
 SECTION VI. 
 
 Misconduct of Railway Operatives sJioivn 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. 
 
 2. In cases of alleged torts company not bound 
 
 to exculpate. 
 
 3. So, too, the plaintiff is not bound to pro- 
 
 duce testimony f-om experts. 
 
 4. The jury are the final judges in such 
 cases. But omission to produce testi- 
 mony of experts will often reqtdre expla- 
 nation. 
 
 n. 6. General rules of law in regard to the 
 testimony of experts. 
 
 § 134. 1. The conduct of a railway train is not strictly matter 
 of science perhaps. Its laws are not so far defined, and so ex- 
 empt from variation, as to be capable of perfect knowledge, like 
 * those of botany and geology, and other similar sciences, or even 
 those of medicine and surgery perhaps, whose laws are subject to 
 more variation.^ But they are nevertheless so far matters of 
 skill and experience, and are so little understood by the com- 
 munity generally, that the testimony of inexperienced persons 
 in regard to the conduct of a train, on a particular occasion, or 
 under particular circumstances, would be worthy of very little 
 reliance. They might doubtless testify in regard to what they 
 saw, and what appeared to be the conduct of the operatives, but 
 those skilled in such matters might, as experts in other cases are 
 
 " Stubley ». London & N. W. Railw., Law Rep. lExch. 13. 
 " Stapley r. London B. & So. Coast Railw., L. R. 1 Exch. 21. 
 ' Quiinby v. Vermont Central Railw., 23 Vt. 394, 395. 
 *o53
 
 § 134. MISCONDUCT OP OPERATIVES SHOWN BY EXPERTS. 558 
 
 allowed to do, express an opinion in regard to the conduct of the 
 train, as shoWn by the other witnesses, and how far it was ac- 
 cording to the rules of careful and prudent management, and 
 what more might, or should have been done, consistently with 
 the safety of the train, in the particular emergency.^ But where 
 the plaintiff, who claimed damages on account of the misconduct 
 of a flagman at a railway crossing, had attempted to prove that 
 he was a careless and intemperate person, it was held that the 
 company might show that he was careful, attentive, and temper- 
 ate, and that these facts might be proved by those who had seen 
 his conduct, and need not be shown by experts.^ 
 
 2. But a railway company, when sued for misconduct, are not 
 bound, in the first instance, ordinarily, to show, by the testimony 
 of experts, that they were guilty of no mismanagement. But in 
 the case of an injury to passengers, the rule is otherwise.* 
 
 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 par- 
 ticular * case. If he sees fit to trust that question to the good 
 sense of the jury, he may.^ 
 
 5. But it is obvious, that in cases of this kind, although the 
 jury are ultimately to determine, upon such light as they can 
 obtain, and will be governed a good deal by general principles 
 of reason, based upon experience, and that the testimony of wit- 
 nesses, unskilled in tiie 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- 
 
 • Illinois Central Railw. r. Reedy. 17 Illinois, 680, 683. Caion, J.: "The 
 burden of proof is on the plaintifT, and it is for him to show, by facts and circum- 
 stances, and by those acquainted with the management of trains, who could 
 speak understandingly on the subject, that it was practicable and e&ay 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 re- 
 quires to establish the liability.^' 
 
 ' Gahagan r. Boston & Lowell Railw., 1 Allen, 187. 
 
 ♦ Post, § 176 ; Galena & Chicago Railw. v. Yarwood, 17 Illinois, 609. 
 » Quimby r. Vermont Central Railw., 23 Vt. 394, 895. 
 
 •654
 
 ^54 LIABILITY FOR CONTRACTORS, AGENTS, AND SUB-AGENTS. CH. XX. 
 
 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 .^ 
 
 ® Murray v. Railroad Company, 10 Rich. (S. C.) 227. As we find few cases 
 in the books bearing upon this general question, in regard to railways, we may 
 refer to analogous subjects where the question has arisen. Nautical men may 
 testify their opinion, whether, upon the facts proved by the plaintiff, the collision 
 of two ships could have been avoided, by proper care on the part of defendants' 
 servants. Fenwick v. Bell, 1 C. «fe 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, 376 ; Sills v. Brown, 
 9 C. & P. 601. 
 
 It has been held, that even experts may not be called to express an opinion, 
 whether there was misconduct in the particular case on trial, as that is the 
 province of the jury, but that they may express their opinion upon a precisely 
 similar case, hypothetically stated, which seems to be a very nice distinction, and 
 which is combated in a very sensible note to Fenwick v. Bell, 47 Eng. Cora. 
 Law R. 312. The opinion of Lord EUenhorough, in Beckwith v. Sydebotham, 
 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 
 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 accordin'^ 
 to the rule in Sills v. Brown. 
 
 In an action against a railway company for carrying their road through plain- 
 tifTs 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 ease, on the point to be deter- 
 mined by the jury. Baltimore & Ohio Railw. v. Thompson, 10 Md. 76. 
 
 In Webb v. Manchester & Leeds Railw., 4 Myl. & Cr. 116 ; s. c. 1 Railw. C. 
 676, a point involving questions of practical science being in dispute, and the testi- 
 mony conflicting, it was referred to an engineer for his opinion, and his conclusion, 
 ♦655
 
 § 134. MISCONDUCT OF OPERATIVES SHOWN BY EXPERTS. 565 
 
 in rco^anl to the facts, adopted and made the basis of the order of court. In the case 
 of Scaver r. Boston & Maine Railw. Co., l-l Gray, 466, after several experts called 
 by the plaintiff had testified, upon a statement of facts and circumstances of the 
 accident, what in their opinion threw the cars from tlie tracks, the defendants were 
 permitted to ask a machinist who had been connected for many years with rail- 
 ways, and with the running of cars and engines upon them, and who was in the 
 cars at the time of the accident, and saw the occurrence and all the attending 
 circumstances, what in his opinion threw the cars from the track, and it was 
 held no ground of exception. 
 
 We had occasion, in our book on Wills, pt. 1, § 15, pp. 135-159, to examine 
 the subject of the testimony of experts upon the question of mental soundness 
 in all its bearings. Many of the principles there laid down, and especially the 
 course of practice, will apply to the general bearing of this class of testimony 
 in other cases.
 
 556 
 
 RAILWAY DIRECTORS. 
 
 CH. XXI. 
 
 ♦CHAPTER XXI. 
 
 RAILWAY DIRECTORS. 
 
 SECTION I. 
 
 Extent of the Authority of Railway Directors. 
 
 1. Notice to one director, if express, sufficient. 
 
 2. Applications to the legislature for enlarged 
 
 powers, and sale of company's works, 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 ofrailtcay enterprise. 
 n. 9. Opinion of Lord Langdale, and review 
 of cases on this subject. 
 
 6. An act ultra vires can only be confirmed 
 
 by actual and not by constructive assent. 
 
 7. The directors of a trading company may 
 
 give bills of sale in security for dAts con- 
 tracted by them. 
 
 8. Directors cannot bind company except in 
 conformity with charter. 
 
 9. Company cannot retain mono/ obtained 
 
 by fraud of directors. 
 
 10. But it must appear the plaintiff vxis mis- 
 
 led without his own fault. 
 
 11. Company, by adopting act of directors, 
 
 are liable to make recompense. 
 
 12. A prospectus and report should contain 
 
 the whole truth. 
 
 13. Directors cannot issue shares to procure 
 
 votes and control corporation. 
 14. What will amount to fraud in the reports 
 of the company. 
 
 15. Directors responsible for fraudulent acts 
 
 and representations. 
 
 16. Extent of power of directors. 
 
 § 135. 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 
 cliarter and by-laws.^ Notice to one of a board of directors, in 
 
 » Ante, § 113; Post, § 164. 
 
 ' Whitwell, Bond & Co. v. Warner, 20 Vt. 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 
 representations as to the state of its finances. Bumes v. Pennell, 2 H. L. Cas., 
 Clark & F. (x. 8.) 497. But where the directors of the company make such 
 false representations 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 de- 
 ceived, or to criminal prosecution ; and transfers of stock, made upon the faith 
 of such representations, will be set aside in equity. lb. Lord Campbell said, it 
 •556
 
 § 135. EXTENT OP THEIB AUTHORITY. 557 
 
 * 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 sucli 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 authority, 
 without a vote of the sliareholders, 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 a company, could not, in the lease, give an 
 optiou to the lessee, to purchase, or not, at a price fixed, the entire 
 works of the company, at any time within twenty years, and that 
 such a contract must be ratified by every member of the company 
 to become binding upon them.^ 
 
 3. And where the deed of a joint-stock company enables the 
 majority to bind the company, by a resolution passed in a certain 
 manner, these formalities must be strictly complied with, or the 
 minority will not be bound by the act.* 
 
 was not necessary the representation should have been made personally to the 
 plaintiff. See, also, Soper r. Buffalo & Roch. Kailw., 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. Railw. Times, No. 16 ; 8. C. 28 How. (U. S.) 381. 
 
 Where a tariff of fares of freight and passengers upon a railway are established 
 and posted up by the president of the company, and are acted upon in transact- 
 ing the business of the company without objection, the consent of the corporation 
 will be presumed. Hilliard v. Goold, 34 N. H. 230. 
 
 ' Powles V. Page, 3 C. B. 16. Dunham v. Troy Union Railw., 40 N. Y. 
 (3 Keyes) 643. But the secretary of a railway company cannot bind the com- 
 pany by admissions. Bell v. London & N. W. Railw., 15 Beav. 648. Nor 
 can the directors bind the company by their declarations, unless connected 
 with their acts, as part of the res gatas. Soper r. Buffalo & Roch. Railw., 19 
 Barb. 310. Notice of process to two directors of a canal company is good notice 
 to the company, and will bind it, although never communicated to the board. 
 Boyd r. Chesapeake & Ohio Canal Co., 17 Md. 195. 
 
 * Marlborough Manufacturing Co. p. Smith, 2 Conn. 579. 
 
 » CUy t. Rufford, 5 De G. & S. 768 ; 8. c. 19 Eng. L. & Eq. 360. 
 
 • 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, 12 Beav. 339, 377 ; 8. c. 6 Railw. C. 289. 
 
 In the case of Ernest r. Nichols, 6 Ho. Lds. 401 ; 8. c. 30 Law Times, 46, 
 
 • 557
 
 558 RAILWAY DIRECTORS. • CH. XXI. 
 
 * 4. So, too, where the directors, or even a majority of the share- 
 holders, assume to enter into a contract, beyond the legitimate 
 scope of the objects and purpose of tlie incorporation, the contract 
 is not binding upon the company, and any shareholder may restrain 
 such parties, by injunction out of Chancery, from applying the 
 funds of the company to such purpose, however beneficial it may 
 promise to become to the interests of the company. This is a 
 subject of vast concern to the public, considering the large amount 
 of capital invested in railways, and the uncontrollable disposition 
 which seems almost everywhere to exist, in the utmost good faith, 
 no doubt, to improve the business of such companies, by extending 
 the lines of communication, and even by the virtual purchase of 
 other extensive works, more or less nearly connected, either in 
 fact, or in apprehension, with the proper business of the company. 
 In a late English case (1861), before the Master of the Rolls, it 
 was held, that where a railway company were required by their 
 charter to keep up a ferry accommodation between certain points, 
 and for that purpose were obliged to have a much larger number 
 of steamboats on certain days, than upon ordinary occasions, they 
 were not acting ultra vires in employing the steamboats for excur- 
 sions to a point beyond the ferry and back, when not required for 
 the purposes of the ferry.'' The learned judge thus defined the 
 powers of railway companies. After saying that if every share- 
 holder but one assented, the company could not carry on a trade 
 perfectly distinct from that for * which they were constituted ; " it 
 is impossible," said the Master of the Rolls, " for them to set up 
 a brewery, — they cannot carry on a trade such as managing a 
 packet company." — " And if this were the case of a railway com- 
 pany embarking in the formation of a packet company, for the 
 
 decided in the House of Lords, in August, 1867, the subject of the power of the 
 directors of a joint-stock company to bind the company, is discussed very much at 
 length, and the conclusion reached, as in some former cases (Ridley ». Plymouth, 
 &c. Co., 2 Exch. 711, and some others), that the directors could execute no bind- 
 ing 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 con- 
 tracted. 
 
 ' Forrest ». Manchester S. & L. Railw., 30 Beav. 40 ; 7 Jur. N. S. 749 ; 8. c. 
 affirmed in Court of Chancery Appeal, id. 887, but upon the ground that the suit 
 was illusory, and not in fact the suit of the plaintiff, but of a rival company. 
 ♦ 558, 659
 
 § 135. EXTENT OF THEIR AUTHORITY. 559 
 
 purpose of carrying passengers between two places, or even for the 
 mere purpose of making excursions, I should be of opinion it was 
 not justified. JBut I am of opinion, that no capital of the company 
 is embarked expressly and solely for the "purpose of making excur- 
 sion trips." 
 
 And in the Supreme Court of the United States ^ it has been 
 decided, that the separate railway corporations had no right to 
 consolidate their roads into one, and put them under one manage- 
 ment, which seems to us a very questionable proposition, to say 
 the least, since such a combination of management is obviously the 
 only thing which will be adequate to produce the kind and degree 
 of concentration of effort and management, in the carrying forward 
 of railway enterprises in this country, which will make them either 
 remunerative or useful to the public. And as there is no national 
 supervision of these vast interests, we must find it either in the 
 discretion of railway directors and managers, or in some new con- 
 stitutional provisions in the national government, adequate to the 
 exigency. But the proposition that such companies cannot estab- 
 lish a steamboat line in connection with their business, and that 
 their joint notes given for the purchase of boats cannot be enforced, 
 is unquestionable.^ 
 
 5. Tliere can be no doubt the courts of equity hold some rightful 
 control over these- speculative schemes and enterprises. But they 
 lie so deeply entrenched, in the general spirit of the age, and re- 
 ceive so much countenance and sympathy from kindred enterprises, 
 in almost all the departments of business, that it often becomes 
 extremely difficult, if not impossible, to fix any well-defined and 
 practicable limits to the operations of railway companies, that shall 
 not allow them, on the one hand, the power of indefinite extension, 
 and overwhelming absorption of kindred enterprises, or which will 
 not be regarded, on the other, as a denial of fair liberty and free 
 scope to carry out the just objects of * their creation. We have 
 thought that we could not afford a more just and unexceptionable 
 commentary upon tliis difficult and important subject, than in the 
 language of one of the most sober, discreet, and learned of the 
 English equity judges, Lord Langdale, M. R.® 
 
 " Pearce e. M. & L & P. & I. Railw., 21 How. 441. Bat see Rut. & Bur. 
 Railw. V. Proctor, 29 Vt. 93, 95. 
 
 » Colman v. The Eastern Counties Railw. Co., lOBeav. 1 ; 8. c. 4 Railw. C. 613. 
 The managing directors of a railway company, with the view of increasing the 
 
 •660
 
 560 RAILWAY DIRECTORS. CH. XXI. 
 
 * 6. Ill a recent English case,^^ it was declared by the Court of 
 Chancery that the directors of the company were restricted, as to 
 
 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 proper- 
 ties of the steam-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 be against public policy. That acquies- 
 cence by shareholders in a project for however long a period, affords 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 
 injunction was refused, with costs. 
 
 The learned judge said : " To look upon a railway company in the light of a 
 common partnership, and as subject to no greater vigilance than common 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 necessarily 
 occasion, those private rights must always be carefully looked to. 
 
 " I am clearly of opinion, that the powers given by an act of parliament like 
 that which is now in question, extend no further than expressly stated in the act, 
 except where they are necessarily and properly acquired for the purposes which 
 the act has sanctioned. How far those powers may extend which are necessarily 
 or conveniently to be exercised for the purposes intended by the act, will very 
 oflen be a subject of great difficulty. We cannot always ascertain Avhat 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 
 
 "* Stanhope's case. Law Rep. 1 Ch. App. 161 ; s. c. 12 Jur. N. S. 79, reversing 
 the decision of the Master of the Rolls in 8. c. 11 Jur. N. S. 872; Lord Bel- 
 haven's case, 3 De G., J. & S. 41 ; s. c. 11 Jur. N. S. 572", is here denied, and 
 Spackman's.case, id. 207, approved. 
 *56i
 
 § 135. EXTENT OP THEIR AUTHOBITT. 661 
 
 * the extent of their authority to bind the members, by the terms 
 of the deed of settlement or charter, or fundamental constitution 
 
 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 verj' properly adniitted, 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 
 suppose that the acquiescence of railway shareholders, for the last fifteen years, 
 in any transaction conducted by a railway company, is any evidence whatever 
 of their having a lawful right to enter into it, is, I think, wholly to forget the 
 frenzy in which the country has been for the last fifteen or sixteen years, or 
 thereabout. There is no project, however wild, which has not been encouraged 
 by some one or more of these companies. There is no project, however wild, 
 which the shareholders, 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 extraordinary 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 trans- 
 actions as affording no ground whatever for the presumption that they may be in 
 themselves legal." 
 
 The case was afterwards mentioned to the court, on behalf of the defendants, 
 when his lordship stated, that the injunction was only meant to refer to the 
 guaranty 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 r. Laing, the same learned judge said (12 Beav. 339, 377 ; s. c. 
 6 Railw. C. 301) : "A railway company, incorporated by act of parliament, is 
 bound to apply all the moneys and property of the company for the purposes di- 
 rected 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 pro- 
 vided for by the act of parliament, — which, in truth, was the motive and induce- 
 ment for granting the extraordinary powers given by all these acts of parliament, — 
 when these purposes are fully performed, any surplus which may remain after set- 
 ting apart the sum to answer contingencies, may, if not applied in enlarging, im- 
 proving, or repairing the works, be divided among the shareholders. Tin; divi- 
 dends, which belong to the shareholders, and are divisible among thcfii, may be 
 
 36 •662
 
 562 RAILWAY DIRECTORS. CH. XXI. 
 
 * of the company ; and that any arrangement ultra vires of the 
 directors, by which, in consideration of a money payment by a 
 
 applied by them severally as their own property, but the company itself, or the 
 directors, or any number of the shareholders assembled at a meeting or 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 con- 
 sent or authority of that particular shareholder. Any application of or dealing 
 with the capital, or any part of the capital, or any funds or money of the com- 
 pany, 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 par- 
 ticular sums, I am of opinion that if, as in this case, the directors are proceeding 
 upon an illegal principle, and for purposes not authorized by the act of parlia- 
 ment, 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 cir- 
 cumstance of the Brighton company having obtained, as it is not disputed they 
 did lawfully obtain, a certain number of shares in the Portsmouth company, is 
 not a reason why the company should be enabled or permitted to purchase more 
 shares, and thereby increase the risks to which parliament permitted the share- 
 holders 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 applied to purposes different from those in consideration of 
 which alone those powers were granted to them." Ante, § 56. Where the 
 statute prohibits the directors of a company from being concerned, directly or 
 indirectly, in building its road, a contract between the company and two of its 
 directors, for that purpose, is absolutely void. Barton ». Port Jackson, &c., 
 Plank Road Co., 17 Barb. 397. 
 
 The deed of a joint-stock banking company contained provisions, that the 
 directors should be not fewer than five or more than seven ; that three, or more, 
 should constitute a board, and be competent to transact all ordinary business, 
 and that the directors should have power to compromise debts. Agents might 
 be appointed by the directors to accept or draw bills, without reference to the 
 directors. The number of directors became reduced to four, and three executed 
 a deed, compromising a large debt due the company, taking from the debt or a min- 
 ing concern, and covenanting to indemnify him against certain bills of exchange. 
 
 In an action on this covenant, held that it did not bind the company, not being 
 ordinary business, and no number of directors less than five being competent to 
 transact it. And query, whether a board of three directors could transact even 
 ordinary business, unless when the board consisted of five only. Kirk v. Bell, 
 16 Q. B, 290 ; s. c. 12 Eng. L. & Eq. 385. 
 
 But where a series of contracts have been openly made by the officers of a 
 corporatioh, within the knowledge of the corporators, who have acquiesced in 
 *563
 
 § 135. EXTENT OF THEIR ADTHORITY. 563 
 
 shareholder desiring to retire, they declared his shares forfeited, 
 is not, nor can any lapse of time render it, binding on the general 
 body of the shareholders, unless it is shown, not only that the 
 latter might have been, but also that they actually were, fully aware 
 of the transaction. This seems to us to be placing the question of 
 ratification of an act ultra vires upon its only safe and salutary 
 basis. There should always be either express or * presumptive 
 evidence of actual and unconstrained acquiescence entirely satis- 
 factory to the court, in order to bind a principal by any act of his 
 agent, beyond the proper limits of the authority delegated to him. 
 This is a principle of universal acceptance and application in the 
 law of agency. 
 
 7. One of the latest English cases " declares, that the power of 
 the directors to give a bill of sale, as security for debts, is incident 
 to all trading corporations, although it be not expressly conferred 
 by the articles of association, or the constitution of the company. 
 Mr. Ch. Justice Erie said, " The fact that the company carries on 
 a trade is a sufficient answer to the first objection. Every trading 
 company must have the power of giving security for the debts 
 which it contracts." 
 
 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. 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 (juestion 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. Railw., 4 Seld. 160. But the facts that the directors have exe- 
 cuted some ten or twelve similar contracts, and that such contracts had been 
 published in the annual reports, and distributed to the stockholders without ob- 
 jection, 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 e. C. C & C. Railw., 10 Am. Railway Times, No. 15. 
 Ante, § 56. 
 
 " Shears v. Jacobs, Law Rep. 1 C. P. 513 ; 8, c. 12 Jur. N. S. Z85. 
 
 •664
 
 564 RAILWAY DIRECTORS. CH. XXI. 
 
 8. Where power is given in the charter of a corporation or in 
 the deed of settlement, for the directors to confirm any contract 
 made by provisional directors, or any persons acting as directors of 
 the company in its formation, the directors alone have power to 
 confirm such contracts by deed.^^ But the directors have no 
 power to make any contract under seal binding upon the corpora- 
 tion, if the formalities prescribed by its constitution have not been 
 complied with.^^ 
 
 9. The directors being but the servants or trustees of the com- 
 pany, it cannot, as before stated, retain money obtained from one 
 by the fraudulent sale by the directors of the company property, 
 unless the purchaser has by his own misconduct precluded himself 
 from redress.^* It was here held, that directors are not justified 
 in using reports to induce a sale of property, which were true at the 
 time they were made, if not true at the time they are so used. 
 
 10. But the last case was reversed in the House of Lords, and 
 the decree of Vice-Chancellor Stitart ^^ affirmed with costs, — his 
 * honor not having awarded costs, — on the same grounds mainly 
 which the Vice-Chancellor had assumed : that as no specific rep- 
 resentations had been made by the company, and no specific in- 
 quiry by the plaintiff, his case failed on that point ; and inasmuch 
 as he completed the purchase after being informed of the facts as 
 to defect of title, he could not complain of any previous misrep- 
 resentation.i^ 
 
 11. But it was declared in the House of Lords,^^ that if reports 
 are made to the stockholders of a company by their directors, and 
 adopted by them at one of their appointed meetings, and after- 
 wards circulated in their published reports, they are binding upon 
 the company. And if erroneous statements in such reports can 
 be clearly shown to have been the proximate and immediate cause 
 
 " Wilkins V. Roebuck, 4 Drew. 281. 
 
 " Hambro v. Hull & London Fire Ins. Co., 3 H. & N. 789. See, also, East- 
 wood V. Bain, id. 738; Bryon v. Met. Saloon Omnibus Co., 3 De G. »&; J. 123; 
 Baker ex parte, 4 Drew. & Sm. 55; 8. c. 6 Jur. N. S. 240. 
 
 '* Conybeare v. New B. & Canada Railw. Co., 1 De G. F. & J. 578; s. c. 
 6 Jur. N. S. 518 ; ante, § 41, pi. 2. " 6 Jur. N. S. 164. 
 
 '* 9 Ho. Lds. 711 ; 8. c. 8 Jur. N. S. 575. See here Lord Chebns/ord's strictures 
 upon the loose mode of stating fraud. See Royal British Bank in re Mixer's case, 
 4 De G. & J. 575. See, also, Cullen v. Thompson, 4 MoQu. 424, in the House 
 of Lords, where all the officers of a company participating in a fraudulent repre- 
 sentation are held liable, although but part signed the report. 9 Jur. N. S. 85. 
 ♦666
 
 § 135. EXTENT OP THEIR AUTHORITY. 565 
 
 of shares having been bought from the company by any individuals, 
 a court of equity will not permit the company to retain the benefit 
 of the contract. 
 
 12. But when a company issues a prospectus, a person contract- 
 ing to take shares on tiie faith of it, has the right to claim, not 
 only that he shall not be misled by any statements actually false, 
 but that he shall be correctly informed by it of all the facts, the 
 knowledge of which might reasonably have deterred him from 
 entering into the contract.'" But the false representation of an 
 officer is not that of the company, even if made at the office.'® 
 But to become the act of the company it must be contained in a 
 report of the company adopted at a regular meeting.^ 
 
 13. The directors of a railway company are not justified in 
 acting on an old resolution authorizing the issue of shares, after 
 the purpose for which the issue was authorized has ceased to be 
 available ; ^ nor in issuing shares, supposing them to possess the 
 power, for the express purpose of procuring votes to influence a 
 • coming general meeting.'^ An injunction will be issued to re- 
 strain such action of the directors, it not being a question of the 
 internal management of the company, but an attempt to prevent 
 such management being legitimately carried on. 
 
 14. In a trial ^ before Martin, B., where it appeared that the 
 profits of the company had been studiously misrepresented by the 
 manner of keeping the books, and a large apparent profit on the 
 year preceding the report presented, by not bringing all the cost 
 of material forward into the account of the year in which it was 
 consumed, it was held that any error in the mere mode of keeping 
 the accounts would not be evidence of fraudulent representation, 
 but the falsification of facts and figures was so, as against any of 
 the officers of the company who were aware of the issue of the 
 prospectus, and had aided or connived at the mode in which it 
 was made up. 
 
 " N. B. & C. Railw. & Land Co. r. Muggeridge, 1 Drew. & Sm. 363 ; 8. c. 7 
 Jar. N. S. 132. '» Royal British Bank in re, 3 L. T. N. S. 843. 
 
 »• Fraser r. Whalley. 2 H. & M. 10. 
 
 «» Bale V. Clelland, 4 F. & F. 117 ; Kisch r. Venezuela Railw. Co., 3 De G. 
 J. & S. 122; 8. c. 11 Jur. N. S. 646. The question of fraud by means of induc- 
 ing a shareholder to. buy his shares upon a misapprehension of the true condition 
 of the company, is one of fact, to be judged of by the jurj' upon a consideration 
 of all the facts, and is mainly one of intent. Cleveland Iron Co. v. Stephenson, 
 2 F. & F. 428. 
 
 •666
 
 566 
 
 RAILWAY DIRECTORS. 
 
 CH. XXI. 
 
 15. It was also held in the last case, that as the statute required 
 the dividend to be declared by the directors, though with the 
 sanction of the shareholders, if to the knowledge of the directors 
 and officers of the company such dividend so declared by the direc- 
 tors was paid otherwise than out of profits, they are responsible 
 for it, and for the circulation of any declaration of it, acted upon 
 by innocent shareholders. 
 
 16. Directors may ratify any contract made on their behalf 
 which they have power to make themselves.^^ And where the 
 constitution of the corporation gives to the directors, with the 
 sanction of an extraordinary meeting of the shareholders, by a 
 majority of two-thirds, power to do any act which might be done 
 with the consent of all the shareholders, the directors may lease 
 the entire business of the company in that mode.^ 
 
 ♦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 hdden. 
 
 3. Are liable personally, if they assume to go 
 
 beyond their powers. 
 
 Extent of powers affected often by usage 
 and course of business. 
 
 But if contract is beyond the power of com- 
 pany, or not in usual form, directors 
 personally liable. 
 
 Statement of case illustrating last point. 
 
 § 136. 1. The English statute, enacts, what was the common 
 law indeed, that no director should become personally liable by 
 reason of any contract made, or any act done, on behalf of the 
 company, within the scope of the authority conferred by the 
 statutes of the legislature and the company, or, as it is expressed, 
 " by reason of any lawful act done by them." Corporations are 
 not, in general, responsible for the unlawful or unauthorized acts 
 of their officers.^ But the corporation may be held responsible 
 
 " WUson V. West Hartlepool Harbor & Railway Co., 34 Beav. 187; s. c. 
 2 De G., J. «& S. 475 ; 11 Jur. N. S. 124. 
 
 *• Featherstonhaugh v. Porcelain Co., Law Rep. 1 Eq. 318; s. c. 11 Jur. 
 N. S. 994. 
 
 ' Mitchell r. Rockland, 41 Me. 363. Commissioners to accept subscriptions 
 for a corporation, who are by the charter required to give notice of the time and 
 place of opening the books, may give such notice by a majority of their number. 
 Penobscot Railw. v. White, 41 Me. 512. 
 •667
 
 § 136. WHEN THEY BECOME PERSONALLY RESPONSIBLE. 567 
 
 for the publication of a libel, by its agents and servants in the 
 due course of the business of the company, as where the com- 
 pany were the owners, and by their agents managed the electric 
 telegraph along their line, and sent a despatch to the effect that 
 the plaintiff's bank " had stopped payment," which proved not to 
 be the fact. This despatch was sent for their own protection, in 
 order to insure their agents against taking bills on such bank. 
 But the message went beyond what was necessary for that pur- 
 pose, and thus made the company responsible as for a voluntary 
 publication. It would have answered all purposes to have directed 
 their agents not to take the bills without assigning any reason.^ 
 So, too, in Philadelphia, Wilmington, and Baltimore Railway v. 
 Quigley,' it was decided, *that a railway may become liable for 
 publishing and circulating among its members a statement of the 
 report of the directors, and the evidence on which it is based, al- 
 though the report itself, when made to the stockholders in good 
 faith, and for their information upon matters affecting their inter- 
 est, would be regarded as a privileged communication. 
 
 2. But directors have been h^d liable, in many cases, person- 
 ally, where the debt was that of the company, and where it so 
 appeared upon the face of the contract. As upon a promissory 
 note, which was expressed, "jointly and severally we promise to 
 pay," " value received for and on behalf of the Wesleyan News- 
 paper Association. S. & W., Directors."* But it is ordinarily 
 a question of intention, whether the directors are personally 
 liable if they act within the powers conferred by the company.* 
 
 » Whitfield V. South Eastern Railw., 1 Ellis, B. & Ellis, 115; 8. c. 4 Jur. N. 
 S. 688. 
 
 » 21 How. (U. S.) 202. 
 
 * Healey r. Story, 3 Exch. 3. Alderson, B., said the terms, jointly and 
 severally, imported a personal undertaking, inasmuch as they could properly 
 have no application to the company. But see Roberts r. Button, 14 Vt. 196, 
 and the cases cited, where the subject is examined more at length than space 
 will here allow. Dewers v. Pike, Murphy & Hurl. 131. But in the case of 
 Lindus v. Melrose, 3 H. & N. 177, before the Court of Exchequer Chamber 
 (February, 1868), it was held that a promissory note expressed, " For value re- 
 ceived we jointly promise to pay," and signed by three of the directors of a joint- 
 stock company, and countersigned by the secretary, and expressed to have been 
 on account of stock of the company, did not bind the signers personally, but im- 
 ported, on its face, a contract on behalf of the company. 
 
 » Tyrrell v. Woolley, 1 Man. & Gr. 809 ; Burrell v. Jones, 3 B. & Aid. 47. In 
 a somewhat recent case, Davidson v. TuUoch, 3 McQu. 783 ; 8. c. 6 Jur. N. S. 643, 
 
 •668
 
 568 RAILWAY DIRECTORS. CH. XXI. 
 
 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 par- 
 ticular case, how far the directors may draw or indorse bills, or, 
 indeed, what particular acts they may or may not do. 
 
 In a recent case the question of the extent of corporate powers 
 is considerably discussed,' and it was held that the exercise 
 of such powers must be conferred by their charters, but that it is 
 the duty of courts to give the charters such a construction as to 
 eflfect the leading purposes of the grant where that can be done 
 consistently with the grant ; and that business corporations have 
 the power to make such contracts and in such forms as are re- 
 quisite to accomplish the purposes of the grant, having regard to 
 any special limitations contained in such grants, and that promis- 
 sory notes or bills made or received by such corporations are 
 prima facie valid, but that it is competent to show that the trans- 
 actions out of which they arise are not within the powers of the 
 corporation and thus defeat their operation. In another case^ it 
 
 before the House of Lords, it was determined, that an action may be maintained 
 against the directors of a company in respect of any transactions which the body of 
 the shareholders could not sanction, but in respect of any transactions which they 
 might sanction, although the directors might not have been justified in what they 
 were doing, there can be no right of action. And directors are not liable for defect 
 of authority to make a conveyance of property, the sale of which they had 
 negotiated, but the actual sale being broken off by an objection of the vendee's 
 solicitor, that the directors had not the requisite authority. Wilson r. Miers, 10 
 C. B, X. S. 348. See also Nowell v. Andover & R. Railw. Co., 3 Gif. 112 ; s. 
 C. 7 Jur. ^. S. 839. The company are not liable to make good any loss sus- 
 tained through the false representations of their officers, although incidentally 
 benefited thereby, unless they entered into the scheme for the purpose of such 
 gain. Barrj' v. Croskey, 2 Johns. & H. 1. 
 
 • Owen & Van Uster, 10 C. B. 318 ; Roberts v. Button, 14 Vt. 195. They 
 are in all cases responsible for the consequences of omission of duty, to the same 
 extent as other trustees. Vanguard ». Marshall, Law Rep. 6 Eq. 112. 
 
 ' Straus r. Eagle Insurance Co., 5 Ohio, N. S. 59. 
 
 « Hamilton ». Newcastle & Danville Railw., 9 Ind. 859; M. & M. Railw. v. 
 Hodge, id. 163. In Massachusetts it was held that the only remedy under the 
 late statute for a corporate debt, against an officer of the corporation, was in 
 equity. Bond v. Morse, 9 Allen, 471. 
 *569
 
 §137. 
 
 COMPENSATION FOR SERVICE OP DIRECTORS. 
 
 669 
 
 was lield, that prima facie a railway company had power to execute 
 promissory notes for its legal indebtedness, and that it could do 
 this only by its agents ; that no written or sealed authority to 
 the agent was requisite r nor that the contract should be under 
 seal unless specially so required by the charter ; that it was not 
 important to prove the consideration, as the law will make the 
 same implications in favor of the note of a corporation as in other 
 cases. 
 
 5. By the construction of the English statutes, if a trustee or 
 director of any public work made a contract for any matter not 
 provided for in the special acts of the company or by the general 
 statutes, applicable to the subject, or in a ditferent 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 payment 
 to a third party of the company's money, was drawn by three 
 directors in the name of the company, but the document was 
 signed by them in their own names, and countersigned by the 
 secretary of the company, adding to his name " Secretary," and 
 a stamp bearing the name of the company was affixed, but the 
 three directors did not appear, on the face of the check, to be 
 directors or to sign as such, it was held that it did not purport to 
 be the check of the company, and was not binding on them.^^ 
 
 ♦SECTION III. 
 Compensation for Service of Directors. 
 
 1. In En^and, directon of railway t an enti- 
 
 tled to comj^enaatian for services. 
 
 2. DiU the comp<tny may grant an annuity to 
 
 a disabled officer. 
 8. In this country are entitled to compensation, 
 in conformity to the order of the board. 
 
 4. Some American cases follow the English 
 
 rule. 
 
 5. Official bonds strictly limited to term for 
 
 which executed. 
 
 § 1.37. 1. In England, in the absence of contract or usage, from 
 which one might be inferred, directors of railways and other corjK)- 
 
 » Parrott v. Eyre, 10 Bing. 283; WiUon v. Goodman, 4 Hare, 64, 62; 
 Higgins r. Livingstone, 4 Dow, P. C. 341. 
 
 " SeiTfll V. Derbyshire, Staffordshire '& Wor. J. Railw., 19 Law J. 371 ; 8. 
 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. 
 
 •670
 
 570 RAILWAY DIRECTORS. CH. XXI. 
 
 rations are not entitled to compensation for services as directors. 
 This is regarded as an office, and so an honorary service. And a 
 resolution of the board of directors that compensation should be 
 allowed for certain specified services, not being under seal, so as 
 to amount to a 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 an- 
 nuity 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.^ 
 
 ' Dunston v. The Imp. Gas L. Co., 3 B. & Ad. 125. But see Hall v. The 
 Vt. & Mass. R., 28 Vt. 401. The rule of law in that respect is different in this 
 country, a resolution of the board of directors having the same force, whether 
 under seal or not. Post, § 164, ante, § 130. See also Gaskell v. Chambers, 5 
 Jur. N. S. 52 ; 8. c. 26 Beav. 360. In this case the directors transferred the 
 business of the company to another company, and received from the latter a 
 large sum for compensation, and withheld the particulars from their members. 
 It was held they were trustees of the money for the members, and the directors 
 were ordered to pay it into court. But the directors are not the servants of the 
 individual shareholders, and therefore such an one who feels aggrieved must seek 
 redress through the company for any misconduct of the directors. Orr v. Glas- 
 gow, A. & M. J. R. Co., 3 McQu. Ho. Lds. 799 ; 8. c. 6 Jur. N. S. 877. 
 
 » Clarke v. Imp. G. L. Co., 4 B. «& Ad. 315. 
 
 ' Hodges r. Rut. & Burlington Railw., 29 Vt. 220. But where a director per- 
 forms services for the company, disconnected with his office, he is not restricted, 
 in regard to compensation by any resolution of the board in regard to the com- 
 pensation to be made the directors. Henry v. Rut. & Bur. Railw., 27 
 Vt. 485. In another case it was held, that railway directors, as a general 
 rule, are not entitled to compensation for their personal services, unless 
 rendered under some express contract. Hall v. Vermont & Mass. Railw., 28 
 Vt. 401. But an allowance to a director for extra services made by a board of 
 which the claimant was one, and his presence indispensable to constitute a quo- 
 rum, is void, and any stockholder may on behalf of himself and others, enjoin 
 the treasurer from payment. Butts r. Wood, 37 N. Y. 817. 
 *571
 
 § 138. RECORDS OF THE PROCEEDINGS OP DIRECTORS. 571 
 
 4. Some of the American states adopt the English rnle tliat 
 railway directors cannot recover compensation for services ren- 
 dered in obtaining subscriptions to the capital stock of the com- 
 pany, before its organization ; or for any other services, unless they 
 are most unquestionably beyond the range of their official duties.* 
 And it is here determined that it would make no difference that 
 the services were rendered under an expectation and an under- 
 standing among those engaged in the enterprise that the services 
 should be compensated by the company after its organization. 
 And. from the technical embarrassment of * holding the company 
 bound by any such arrangements before its existence, the policy 
 of the law is wholly opposed to them.* We think this by far 
 the most salutary rule upon the subject. 
 
 5. It is scarcely necessary to state that official bonds for faith- 
 ful adii.inistration by officers of corporations are to be limited 
 strictly to the term for which such officer is elected. And if the 
 office is annual, and the officer continued from year to year, with- 
 out the renewal of the bond, and the officer's annual account is 
 passed from year to year, until finally a defect occur at a remote 
 period from that covered by the. bond, there is no indemnity to be 
 obtained under the bond.^ 
 
 SECTION IV. 
 Records of the Proceedings of Directors. 
 
 1. English ttatutes require minutes of pro- 
 ceedings of directors and make it evi- 
 dence. 
 
 2. Presumptions in favor of their containing 
 
 aU that passed. 
 8. Company will ratify unauthorized act of 
 
 directors ly acquiescence. 
 
 § 138. 1. The English general statutes require the directors to 
 keep minutes of all appointments, contracts, orders, and proceed- 
 ings of the directors and committees, in books kept for that pur- 
 pose, and these, duly made, are receivable as evidence, without 
 further authentication. But this is held not to exclude other 
 evidence of such transactions.^ 
 
 * N. Y. & N. H. Railw. Co. r. Ketchum, 27 Conn. 170; post, § 140. 
 
 • M. & M. Savings Co. r. O. F. Hall Ass., 48 Penn. St. 446. 
 
 » Inglis r. The Great Northern Railw., 1 McQu. Ho. Lds. 1 12 ; 8. c. 16 Eng. L. 
 & Eq. 55. Lord St. Leonards said, in the House of Lords : *' But independently 
 of the evidence furnished by the books, the due appointment was proved by a 
 
 •672
 
 572 
 
 RAILWAY DIRECTORS. 
 
 CH. XXI. 
 
 2. As against the company and the members present at a par- 
 ticular meeting, the minutes of the directors will be held prima 
 facie correct.^ And where the proceedings of the minutes of the 
 meeting are imperfect, it will be presumed that every thing was 
 brought before the meeting which it was * requisite to bring before 
 them to have the action of the company valid.^ 
 
 3. The legality of the proceedings of directors in purchasing 
 shares of the company for the company, which required the sanc- 
 tion of a general meeting, will be presumed either from lapse of 
 time and no dissent on the part of the shareholders, or from the 
 proceedings of the general meeting at which the matter would 
 naturally have been acted upon not being forthcoming, as it was 
 the duty of the company to keep regular minutes of such meeting.^ 
 And it was also here held that the company, by transferring such 
 shares, thereby confirmed the validity of the transfer to them.^ 
 So also by paying an annuity, the price of such shares.^ 
 
 SECTION V, 
 
 Authority of Directors to borrow Money, and buy Croods. 
 
 Authority of directors to bind compatof, 
 
 express or implied. 
 General agent will bind company within 
 
 scope of his duties. Directors presumed 
 
 to assent to his contracts. 
 Contracts under seal of company prim& 
 
 facie bind them. 
 4. Strangers must take notice of general voant 
 
 2. 
 
 3 
 
 of authority in directors, but not of mere 
 informalities. 
 6. Cannot subscribe for stock of other com^ 
 panies. 
 
 6. May borrow money if requisite. 
 
 7. How far directors may bind company ly 
 
 accepting land in payment of subscrip- 
 tion. 
 
 § 139. 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 
 
 witness, and his evidence was admissible evidence, for the act confers a privilege, 
 but does not exclude other evidence of the fact. Miles r. Bough, 3 Q. B. 845. 
 
 • Ex parte Stark, 10 Jur. N. S. 790. 
 
 ' ExparU Lane, 1 De G. J. & Sm. 504, s. c. 10 Jur. N. S. 25. 
 » 7 & 8 Vict. ch. 110. 
 
 • Ridley v. Plj-mouth Banking Co., 2 Exch. 711. Where one has the actual 
 charge and management of the business of a corporation,- with the knowledge of 
 the directors, the company will be bound by his contracts, made on their behalf, 
 within the apparent scope of the business thus intrusted to him. Goodwin r. 
 
 •573
 
 § 139. AUTHORITY TO BORROW MONEY, ETC. 673 
 
 •such companies, ou contracts made with the directors, must 
 show tlieir authority to biud the company, either by the terms 
 of the deed of settlement, or that the body of the shareholders 
 authorized these persons to act on their behalf. A ratification 
 by a competent board of directors will bind the company .^ 
 
 2. The general rule upon this subject, in regard to goods and 
 inoney 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 oflRcers and delegate their au- 
 thority, purchased goods through the general manager of the 
 company, or his deputy, or the secretary, all of whom were duly 
 appointed, and when the goods were delivered on the company's 
 premises, and used for their purposes, they were held liable, ou 
 the ground that the manager had authority to give siich orders, 
 in the absence of any express provision to the contrary. And it 
 was held that, as to the other, the directors must be taken to 
 have known that the goods had been furnished and used, and 
 that, therefore, the company was liable to pay for them.^ 
 
 3. A contract under the seal of the company is prima facie 
 binding upon them. In such case it is not enough, in order to 
 defeat a recovery upon the contract, to show an excess of au- 
 thority on the part of the directors, who made the contract.^ The 
 
 Union Screw Co., 34 N. H. 878; Chicago, Burlington, & Qiiincy Railw. r. 
 Coleman, 18, Illinois 297. In this case it is held, the admission of the president 
 of the company in regard to the authority and acts of a sub-agent will bind the 
 company. 
 
 ' Smith V. Hull Glass Co., 11 C. B. 897. And where the general agent 
 of a manufacturing company directed the clerk to issue a promissory note 
 in the name of the company, and it was shown that the note was in the form 
 customarily used by the company, in other similar cases, and which they had 
 always recognized, it was held to be sufficient proof of the execution of the note 
 by the company to go to the jury, and to warrant them in finding that the 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. 20. Such company may 
 borrow money for its legitimate business, and bind itself by a written obligation 
 for its repayment. lb. See also Curtis v. Leavitt, 15 New York, 9, where this 
 subject is discussed. 
 
 * Royal British Bank e. Turquand, 6 El. & Bl. 248 ; s. c. 32 Eng. L. & Eq. 273. 
 Lord Ch. J. Campbell said, in giving judgment : " A good plea must allege facts to 
 establish illegality, as was done in Collins r, Blantem, 2 Willes, 347, and Paxton 
 V. Popham, 9 East, 408. A mere excess of authority by the directors, we think of 
 
 •674
 
 574 RAILWAY DIRECTORS. CH. XXI. 
 
 * 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 Royal 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, 
 
 itself would not amount to a defence. The bond being under the seal of the 
 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 j)otior est conditio defendetdis. 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 bona 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, must be 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., 7 Exch. 
 911 ; 8. C. 14 Eng. L. «& Eq. 378, was decided on the same principle." Agar v. 
 Atbenseum Lile Assurance Co., 3 C. B. N. S. 725 ; 8. c. 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. 268. 
 » 6 El. & Bl. 327 ; s. c. 36 Eng. L. & Eq. 142. 
 *675
 
 § 139. AUTHORITY TO BORROW MONEY, ETC. 575 
 
 * 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." Tliis rule has been extended to negotiable paper 
 drawn in the name of the company by the directors, beyond the 
 scope of their powers to bind the company,* even while in the 
 hands of a bona fide holder. 
 
 5. It was held that a joint-stock business company had no 
 power to take stock in a savings bank, and that a loan efifected 
 by that means could only be enforced to the extent of the money 
 actually received by the company over and above the amount 
 retained upon the subscription.' 
 
 6. Th0\-e 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. The rule has recently 
 been extended to insurance companies.^ 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.^*' 
 
 7. It is made a question in a recent case ^^ how far the propo- 
 sition by one to subscribe to the stock of the company, payable 
 in certain specified lands at a given price, may be lawfully ac- 
 cepted by the directors of the company, and whether the same 
 should not be made by a special agent appointed for that pur- 
 
 • Post, § 239, pi. 6. 
 
 ^ Mutual Savings Bank v. Meriden Agency Co., 24 Conn. 159. See also 
 post, § 211, note 3. 
 
 » Nelson r. Eaton, 26 N. Y. 410. 
 
 • Wilmot V. Corporation of Coventry, 1 Younge & Coll. Exchequer, 618. 
 
 " Marshall c. Queenborough, 1 Simons & Stu. 620. See cases before referred 
 to in this section. And it was held that the directors of a company incorporated 
 for making a cemeter)- could not raise money, by indorsing and accepting bills, 
 for the purposes of the undertaking. Steele v. Manner, 14 M. & W. 831. The 
 same principle is recognized in the earlier cases. Broughton r. Manchester 
 Waterworks, 3 B. & Aid. 1. ; Clarke v. Imperial Gas-Light Co., 4 B. & Ad. 315. 
 And where the by-laws of the corporation provide that in the management of its 
 afiairs the directors shall have all the powers of the corporation not inconsistent 
 with the by-laws or the laws of the commonwealth, and there is no prohibition, 
 in the by-laws, of the directors borrowing money, issuing bonds, or conveying 
 the lands of the company, the directors may exercise such powers. Hendee r. 
 Pinkerton, 14 Allen, 381. 
 
 " Junction R. Co. t?. Reeve, 15 Ind. 236. 
 
 •676
 
 576 
 
 RAILWAY DIRECTORS. 
 
 CH. XXI. 
 
 pose. But it was held clearly tliat the separate consent of sev- 
 eral members of the board, not shown to constitute a quorum, 
 did not create an acceptance binding upon the company. 
 
 ♦SECTION VI. 
 
 Duty of Railway 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 Hoffinan upon the 
 
 legality of such contracts. 
 n. 3. Cases reviewed upon tlie subject of secret 
 services. 
 
 4. Directors cannot buy of themselves for the 
 
 company. What amounts to ratifica- 
 tion. 
 6. The point further illustrated. Authority 
 of directors. 
 
 6. Purchase of shares to buy peace. 
 
 7. Director may loan money to company. 
 
 8. Director de facto sufficient. 
 
 9. Hotel company may lease premises to 
 
 others. "» 
 
 10. Director cannot recover for vxrk done for 
 
 company. 
 
 11. Contract of projector not binding on com- 
 
 pany. 
 
 12. Director cannot act where interested. 
 
 13. Court will not act on petition of member 
 
 who is a mere puppet for others. 
 
 § 140. 1. The general duty of railway directors is stated, 
 somewhat in detail, in another part of this work.^ It is an im- 
 portant and public trust, and whether undertaken for compen- 
 sation or gratuitously, imposes a duty of faithfulness, diligence, 
 and truthfulness in the discharge of its functions, in proportion 
 to its difficulty and responsibility. 
 
 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 Cincinnati 
 to St. Louis. The mode of his performing this service seems to 
 have been through one Clement, who knew nothing of defend- 
 ants, but who acted upon the plaintiff's recommendation of them, 
 and, for the agreed compensation of f 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. 
 
 » § 211, n. 6, post. 
 
 * Davison r. Seymour et al.,1 Bosworth, 88 ; Redmond'r. Dickerson, 1 Stock- 
 ton, Ch. 507. 
 
 •677
 
 § 140. MUST SERVE INTEREST OP COMPANY. 677 
 
 " 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 
 individuals. 
 
 " 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 
 efibrts 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 ; * 
 
 ' Gray v. Hook, 4 Comst. 449 ; Waldo c. Martin, 4 Bam. & Cress. 319 ; s. c. 
 2 Can-. & Payne, 1 ; Harrington p. du Chastel, 2 Swanston, 167 ; Hopkins v. 
 Prescott, 4 Com. Ben. 678; Money r. Madeod, 2 Simons & Stuart, 801; 
 Marshall p. Baltimore and Ohio Railroad Co., 16 Howard (U. S.), 314, 325; 
 FuUer p. Dame, 18 Pick. 472. 
 
 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 this court to sanction such a pro- 
 ceeding.'" Fawcett p. Whitehouse, 1 Russ. & 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 these 
 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 p. 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 p. Bernard, 1 Salk 26. In Marshall v. Baltimore and 
 Ohio Railw., supra, Mr. Justice Grier made some verj' pertinent remarks, in 
 regard to the duty of courts of justice, in enforcing against railway companies 
 
 87 • 678
 
 578 BAILWAY DIRECTORS. CH. XXI. 
 
 * and continued : " I am led to the conclusion, that it would be 
 imposible to allow Clement to sustain an action upon the * agree- 
 
 contracts for obtaining legislative grants, by extraordinary efforts 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 different 
 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 be 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 
 attempts 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 
 influences of interested and unscrupulous agents or solicitors. 
 
 " Influences secretly urged under false and covert pretences must necessarily 
 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 consequence 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 effect of quickening the perceptions 
 and warming the zeal of influential or ' careless ' members in favor of his bill. 
 The use of such means and such agents will have the effect to subject the state 
 governments 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 politic, and it will be said of us as of Rome, — * omne Rovkb venule.'' " 
 
 The following cases take a similar view. Wood v. McCann, 6 Dana, 366 ; 
 
 Hunt». Test, 8 Alab. 713; Harris v. Roof, 10 Barb. 4^9; 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 
 
 • 679, 680
 
 § 140. MUST SERVE INTEREST OP COMPANY. 679 
 
 ment with him. There was in it most of the elements of a 
 vicious contract, which have avoided similar obligations in the 
 
 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 
 fountains 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 tlie press. The difficulty is one which, for its cure, demands 
 sterner remedies. The perpetrators of such enormities are quite too apt to con- 
 sider, 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 administrators 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-sounding 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 
 justice. 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, not only 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 
 administered to the offender, very little remains. 
 
 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 TV. 
 Lowber r. The Mayor, Aldermen, and Commonalty of the city of New York ; 
 and In re A. C. Flagg, Comptroller, and others, tax-payers p. 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, lioosevelt, 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 tiie 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
 
 680 RAILWAY DIRECTORS. CH. XXI. 
 
 * leading cases cited. There was secrecy, individual application, 
 a concealed promise of compensation, and utter ignorance and 
 
 million of dollars, the probable cost of 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 
 constitution, 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 defen* 
 a suit, the corporators may be permitted to do it for them ; and that if the court 
 cannot compel 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 
 judgment, 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 it is 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 discourse, the aldermen and assistant aldermen are commonly called 
 
 * the corporation,' 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 depart- 
 ment,' 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 ' com- 
 monalty.' 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 counterpoise 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 in- 
 timation will, I have no doubt, be ' perfectly prepared [see his communication] 
 
 *581
 
 § 140. MUST SERVE INTEREST OP COMPANY. 581 
 
 * 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 organi- 
 zation inferior to that of a stat«, 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 original 
 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 agreement were, — how far they extended. 
 All is indefinite, except merely an employment. He engages 
 Clement, and here again, that employment may have been perfectly 
 free from censure on the plaintiff's part. But upon the best con- 
 sideration 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 Clem- 
 ent to do what he did do, or to have been bound to superintend 
 his proceedings, and free them from what was illegal. It is impos- 
 sible to permit him to profit by the misdeeds of his own agents, 
 however ignorant and exempt from * them himself. His igno- 
 rance, when knowledge was a duty, becomes equivalent to a fault." 
 
 4. The directors of a corporation, created for business purposes 
 and profit, are trustees for the shareholders, and owe them all the 
 duties and responsibilities which attach to other trustees and 
 agents. If, therefore, a director enter into a contract for the 
 company, he can derive no personal benefit from it.* Accordingly, 
 
 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 drafl to the court for 
 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 fded and served 
 in twenty days from the date of this order, unless the comptroller, within the 
 said twenty days, should elect, as he may, oflicially, and as a tax -payer and cor- 
 porator, on behalf of himself and others, to file an original bill of complaint, 
 setting forth such matters and making such parties, and praying such relief in the 
 premises, as he may be advised.^ 
 
 See also Semmes c. Mayor, &c. of Columbus, 19 Ga. 471. Ante, § 176. 
 
 * Great Luxembourg liailw. r. Magnay, 25 Beavan, 686 ; s. c. 4 Jur. N. S. 839. 
 
 • 682, 683
 
 582 RAILWAY OraECTORS. CH. XXI. 
 
 where the company had furnished the director with a large sum of 
 money, to enable him to purchase the concession of another com- 
 pany in regard to their line, and he purchased it, as it turned out, 
 of himself, being the concealed owner of it, it was held that the 
 transaction could not stand, but the company must adopt or 
 repudiate it altogether. But the company having sold the conces- 
 sion during the pendency of a suit impeaching the transaction, it 
 was held they could have no relief, either as to the application of 
 the money or otherwise.^ ^ 
 
 5. And where the directors of an insurance company had pur- 
 chased the stock of one of the board, and allowed him to retire 
 from his position both as director and shareholder, and had used 
 the funds of the company to compensate him for his shares, it was 
 held that this was such an irregularity as could not be confirmed 
 and legalized by a meeting of the shareholders even, unless the 
 deed of settlement under which the company was formed provided 
 for its being so ratified, or for its transaction by the directors.® 
 And it was held, that in such case a bill in equity, filed by certain 
 shareholders on behalf of themselves and the others against the 
 company and the directors, praying that the directors might be 
 decreed to restore to the company the funds so diverted by them, 
 was maintainable.® 
 
 6. It seems to be regarded as a valid contract between the 
 different directors of a corporation, by which one portion purchase 
 the interest of another portion, to enable them to retire with a 
 view to heal dissensions in the board ; and the fact that the money 
 is paid by the company's bankers and refunded by a * resale of the 
 shares thus purchased, will not render the contract invalid." 
 
 7. But where by a constitutional provision of a corporation the 
 director's office was vacated, if he participated in the profits of any 
 contract with the company, but the company were empowered to 
 borrow money on the director's own individual responsibility, or 
 on other securities, it was held that a director, lending his own 
 money to the company at a large interest, was not thereby disqual- 
 ified from being a director.® 
 
 • See also Sturges r. Enapp, 31 Yt. 1. 
 
 • ,Hodgkinson c. National Live Stock Ins. Co., 5 Jur. N. S. 478, 969 ; s. c. 
 26 Beav. 473. 
 
 ' Haddon r. Ayers, 1 Ellis & Ellis, 118, ; 8. c. 5 Jur. N. S. 408. 
 
 • Bluck V. Mullalue, 6 Jur. N. S. 1018; s. c. 27 Beav. 898. 
 
 *584
 
 § 140. MUST SERVE INTEREST OP COMPANY. 583 
 
 8. A director who acts as such by sitting at the board and 
 executing works for the company, will be treated as such so far 
 as his claim against the company is concerned, although he was 
 not properly appointed.^ 
 
 9. It is not ultra vires for a hotel company to lease part of their 
 premises to a business company, with the condition that the first 
 company shall have the exclusive privilege of supplyhig the por- 
 tion so leased with all provisions, wines, and liquors.*^ 
 
 10. Under the English statute " it is an answer to a claim for 
 
 compensation for works of the company executed by the plaintiff, 
 
 that he was at the time of entering into the contract interested 
 
 therein, and it makes no difference that the consideration was 
 
 executed, and the company had had the benefit of the con- 
 tract. ^2 
 
 11. A contract made between the projector of a corporation and 
 the directors of the company thereafter created, which is not in 
 terms made conditional on the completion of the company, is not 
 under the English statute binding upon the company when fully 
 established. ^3 
 
 12. A rule of the constitution of the company, whereby a direc- 
 tor is prohibited from voting upon any matter in which he is inter- 
 ested, will not preclude him from voting as a shareholder at * a 
 general meeting.^* But the resolution of a board of directors, of 
 which the creditor is a member, acknowledging the existence of a 
 debt barred by the statute of limitations, will not operate to remove 
 
 * South Essex Gas Light & Ck)ke Co., in re, 20 L. J. Ch. 43. 
 
 w Simpson r. Westminster Palace Hotel Co., 6 Jur. N. S. 985; 8, c. 2 De 
 G. F. & J. 141 ; 8. c. 8 Ho. Lds. Cas. 712. But where the promoters of a rail- 
 way contracted with a land-owner, a peer in parliament, to pay him £20,000, 
 for his countenance and support in obtaining their act, independent of and above 
 all ordinary compensation for land and other damages, another separate contract 
 defining the land to be taken and the amount to be paid therefor, the directors 
 of the company after its organization having ratified the first contract, it was 
 held tliat the original agreement and the ratification by the directors were ultra 
 vires of the company, and could not be enforced against it. Earl of Shrewsbury 
 V. North StoSbrdshire Railw. Law. Rep., 1 £q. 698. 
 
 »' 7 & 8 Vic. c. 110, § 29. 
 
 " Stears r. South Essex Gas Light & Coke Co., 9 C. B. N. S. 180 ; s. c. 7 
 Jur. N. S. 447. See also Walker ex paHe, 8 De G. M. & G. 607. 
 
 " Gunn r. London & Lancashire Ass. Co., 12 C. B. N. S. 694. 
 
 '* Lead Mining Co. v. Merryweather, 10 Jur. N. S. 1281 ; s. c. 2 H. & M. 
 254. 
 
 •686
 
 684 
 
 RAILWAY DIRECTORS. 
 
 CH. XXI. 
 
 such bar, if indeed any resolution of the board will bind the com- 
 pany to that extent.^^ 
 
 18. Although it is the unquestionable right of every member of 
 the company to restrain the unlawful acts of the directors, still 
 when it appears that the plaintiff is a mere puppet in the hands of 
 others not members of the company, who indemnify him against 
 the costs of • the suit, the court will not interfere by interlocutory^ 
 injunction.^^ 
 
 SECTION VII. 
 
 Right to dismiss Employees. — Rule of Damages, when done 
 wrongfully. 
 
 Some cases hold, that if icrongfully 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. 
 
 4. Where the contract provides for a term of 
 wages, after dismissal, it is to be re- 
 garded as liquidated damages. 
 
 6. Statute remedy, in favor of laborers of 
 contractors, extends to laborers of sub- 
 contractors. 
 
 § 141. 1. Where a railway company dismiss a servant, superin- 
 tendent, or other employee, without just cause, it seems to be con- 
 sidered, in some cases, that they are prima 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 acquiesced in, 
 by the profession, to a very great extent, but in a late English 
 case,^ where the subject is examined with great * thoroughness, the 
 opinion of the judges certainly seems to incline to a dififerent result. 
 Patteson, J., said : — 
 
 2. " I am not aware that this precise point has been raised in 
 
 " Gold Mining Co., ex parte, 10 L. T. N. S. 229. 
 
 " Filder v. L. Brighton & South Coast Railw. Co., 1 H. & M. 489. 
 
 * Costigan v. The Mohawk & Hudson Railw., 2 Denio, 609. 
 
 * Goodman v. Pocock, 15 Q. B. 576. This is the case where 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. The plaintiff 
 then brought this action for those services, and here the court held, that those 
 services should have been taken 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. 
 
 ♦686
 
 § 141. EMPLOYEES DISMISSED. — RULE OF DAMAGES. 685 
 
 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 assumpsity 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(5 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 
 tlie contract in dismissing plaintiff, but cannot do both. 
 
 And JErle., 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 till the expiration 
 of the period for which he was hired, and then sue for his wiiole 
 wages, on the ground of a constructive service, after dismissal. I 
 think the true measure of damages is the loss sustained 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 similar 
 view of the rule of damages, in such cases, and the rule must, we 
 think, ultimately prevail everywhere.* 
 
 ' Algeo V. Algeo, 10 Serg. & Rawle, 235 ; Donaldson r. Fuller, 8 id. 505 ; 
 Perkins c. Hart, 11 Wheaton, 237. 
 
 * Spear & Carlton r. Newell, Sup. Ct. Vt., not reported. In this case the 
 pbuntiff sued for the price of rags and other materials furnished, to supply a 
 
 •687
 
 686 RAILWAY DIRECTORS. CH. XXI. 
 
 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 con- 
 tract.^ But even this cannot be recovered under the indebitaPAs 
 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 re- 
 maining unpaid, in certain contingencies, and thus charge the 
 company, the provision was held to extend to laborers and work- 
 men of sub-contractors.' 
 
 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. 
 
 * Hartley v. Harman, 11 Ad. «fe Ellis, 798. 
 
 8 Fewings v. Tisdal, 1 Exch. 295. 
 
 ' Kent V. New York Central Railw., 2 Kernan, 628. Peters v. St. Louis & 
 Iron Mountain Railw., 24 Mo. 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. lb. Fost, § 232, n. 5.
 
 § 142. LEASES, ETC., REQUIRE CONSENT OF LEGISLATURE. 587 
 
 ♦CHAPTER XXII. 
 
 ARRANGEMENTS BETWEEN DIFFERENT COMPANIES. 
 
 SECTION 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, 
 8. Original company liable to public, afier 
 
 such lease. But lessee not excused. 
 4. Courts of equity enjoin companies from 
 
 leasing, without legislative consent. 
 6. But such contracts, made by legislative 
 
 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 
 <f ferry, without legislative grant. 
 
 10. The grant to a railway of the implied 
 
 right to establish a ferry over a public 
 river directly beyond the terminus of its 
 road, does not extend the responsibility 
 of the company to the ferry. 
 
 11. Such a ferry may become an encroach- 
 
 ment u]wn another by carrying pas- 
 sengers gratuitously. 
 
 12. The grant to a railway of a ferry in ex- 
 
 press terms wiU not authorize them to 
 carry any thing except jiassengers and 
 freight passing over their line. 
 
 § 142. 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 pas- 
 sengers 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 persons 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 
 
 ' 8 and 9 Vict. th. 20, § 87. 
 
 * Simpson p. Denison, 10 Hare 51 ; 8. c. 16 Jurist, 828 ; 2 Shelf., Ben. ed. 694 ; 
 13 Eng. L. & Eq. 359. 
 
 ' Great Northern Railw. v. Eastern Co. Railw., 9 Hare, 806; 2 Shelf., Ben. 
 ed. 696 ; 12 Eng. L. & Eq. 224. 
 
 •688,689
 
 588 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 will not lend its aid to carry such contract into effect.* But it 
 has been held, that a contract, by which one railway gives anotli*r 
 the right of passage, upon the guaranty of a certain per cent profit 
 upon their stock and all other investments, is a payment 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 general statute, and as 
 the public thereby lose the security of the first company, for care 
 and diligence, in the discharge of its public 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 
 
 * Same case, 9 Hare, 306 ; 12 Eng. L. & Eq. 244 ; South Yorkshire Railw. v. 
 Great N. Railw., 19 Eng. L. & Eq. 513 ; Johnson v. Shrewsbury & B. Railw., 
 3 De G. M. & G. 914 ; s. c. id. 584 ; Lond. B. & South Coast R. v. L. & S. W. 
 R. & Portsm. R., 4 De G. & J. 362 ; s. c. 5 Jur. N. S. 801, where the subject 
 is extensively examined by the Lord Chancellor, and the cases commented upon. 
 
 In a recent case before the Superior Court of Cincinnati, Ohio & Miss. 
 Railw. V. Ind. & Cin. Railw., the question of the right of a railway, chartered 
 by one state to contract with the railways of other states for permanent privi- 
 leges in running cars upon such railways, is extensively considered and denied 
 by Storer, J. The case illustrates very forcibly the demand which obviously exists 
 for making all lines of railway extending into different states national agencies 
 rather than mere state institutions. For military- and postal purposes railways 
 are far more national than banks, and as means of intercommunication equally so. 
 
 * The South Yorkshire R. & R. D. v. Great Northern Railw., 9 Exch. 55; 
 22 Eng. L. & Eq. 531 ; s. c. in Exchequer Ch. 9 Exch. 642 ; s. c. 25 Eng. L. 
 & Eq. 482. One company having made a beneficial contract with another com- 
 pany in regard to traffic, may, with a lease of itself, transfer the benefit of this 
 contract. London & S. W. Railw. v. South .E. Railw., 8 Exch. 584; s. c. 20 
 Eng. L. & Eq. 417. 
 
 * Johnson v. The Shrewsbury & Birmingham Railw., 3 De G. M. & G. 914; 
 8. c. 19 Eng. L. & Eq. 584; Troy & Rut. Railw. c. Kerr, 17 Barb. 581. This 
 doctrine is reaffirmed in the House of Lords in Shrewsbury & B. Railw. v. L. 
 & N. W. R., in May, 1857, 6 Ho. of Lds. 113. 
 
 7 South Yorkshire & River Dun Co. v. Great N. Railw., 19 Eng. L. & Eq. 
 613; Johnson v. Shrewsbury & Birmingham R., 3 De G. M. & G. 914; s. c. 
 Shrewsbury & Birm. Railw. v. London & N. W. & Shropshire Union Railw., 
 21 Eng. L. & Eq. 319 ; 8. c. 1 Eng. L. & Eq. 122 ; 3 De G. M. & G. 115. But 
 see cases arite, n. 5 ; post, § 185. 
 •590
 
 § 142. LEASES, ETC., REQUIRE CONSENT OP LEGISLATURE. 589 
 
 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 contract or 
 privity between the party injured and the railway.^ 
 
 But there seems no good reason to excuse the company, assum- 
 ing to act as common carriers, by virtue of the lease of another 
 company's road, from the ordinary responsibility of common * car- 
 riers for the transportation across the portion of the route held by 
 lease, on the ground of the responsibility of the company owning 
 and leasing the road, even when the loss occurred from the default 
 
 • Nelson r. The Vernhont & Canada Railw., 26 Vt. 717. But it is, perhaps, 
 worthy of consideration, in regard to this case, that the effect of legislative con- 
 sent to the lease is not made a point or decided in this case. Sawyer r. The 
 Rut & Burl. Kailw., 27 Vt. 370. And in Parker v. Rensselaer & SanAga 
 Railw., 16 Barb. 315, where the defendants were running upon the Saratoga & 
 Sche. Railw. by virtue of a contract, and the plaintiff's cow was killed through 
 defect of cattle-guards, which it was the duty of the Saratoga & Sche. Railw. 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 
 the soundness of this decision is, whether both companies are not chargeable with 
 negligence, the one for suffering the road to be used, and the other for using it 
 in that condition. This is the view taken of the law in Clement e. Canfield, 28 
 Vt. 302 ; aiUe, § 169. Ohio & Miss. Rail. v. Dunbar, 20 111. 623. 
 
 But in the York & Mar}'land Line Railw. e. Winans, 17 How. 30, it is decided, 
 that whci-c a railway is chartered by one state, and all its stock owned and the 
 road operated by a cprporation erected and existing in another state, the first 
 corporation is nevertheless liable to the patentee of an improvement in railway 
 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 
 carried thereon by such other company. Murch r. Concord Railw., 9 Foster, 9 ; 
 jt>o»/, § 183. See also Briggs v. Ferrell, 12 Ired. 1. And in Vermont Central 
 Railw. r. Baxter, 22 Vt. 365, the company are held liable for the acts of the con- 
 tractor in the exercise of the right of eminent domain, in obtaining materials for 
 constructing the road. 
 
 And a railway company leasing the entire use of its road to another company, 
 is still responsible for daraiiges caused by fires communicated by the engines of 
 the lessees while operating the road. And it will make no difference that one of 
 the buildings destroyed by the fire caught from another building to which the fire 
 first communicated. Ingersoll r. Stockbridge & Pittsfield Railw., 8 Allen, 438. 
 
 •691
 
 690 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 of the latter company in not performing the stipulations in thdr 
 lease.^ Nor can the lessees of a railway excuse themselves from 
 responsibility in such cases on the ground that their lease is void, 
 being taken without the sanction of the legislature.^ 
 
 And a railway company is always responsible for an injury oc- 
 casioned by want of proper care and prudence on the part of 
 its servants, in the management of a train which is under their 
 exckisive care, management, and control, although belonging to 
 another company.^'' But if such injury is occasioned by the negli- 
 gence of another company, whose car, for the purpose of being 
 loaded by the plaintiff, has been placed upon a side track of de- 
 fendants' which is in constant use by other roads, that other com- 
 pany is bound to use reasonable care to prevent a collision, and if 
 it fails to do so, whereby the plaintiff receives an injury, lie can- 
 not recover of the company whose cars caused the collision.^'' 
 And if such injury results from the negligence of another company, 
 which has a joint right with the defendants to use defendants' 
 track under a lease, and which is running trains over defendants' 
 road on its own account, the defendants are not responsible.^'' 
 
 There can be no question of the liability of the company leas- 
 ing another line of railway, whether within or beyond the limits 
 of the state where the first company exists, for all acts and omis- 
 sions whereby injury accrues to other parties, while so operating 
 such other line, as lessees, to the same extent and in the same 
 manner precisely as if such injury had occurred upon the line of 
 the first company. And it seems to be the inclination of the 
 American courts to hold this in regard even to those companies 
 who have assumed to operate the roads of other companies, wheth- 
 er temporarily or permanently, and whether by express legislative 
 sanction or not.^^ This subject is very extensively discussed in 
 the case last referred to, and the views presented, * although 
 differing somewhat from those hitherto adopted by the English 
 courts, certainly have very much to commend them to favorable 
 consideration. But the original company will be responsible even 
 for the safe delivery of goods carried over the line, where it is 
 leased to a corporation out of the state.^ 
 
 ® McCluer v. Manchester & Lawrence Railw., 13 Gray, 124. 
 "* Fletcher v. Boston & Maine Railw., 1 Allen, 9. 
 " Bissell r. Mich. So. & N. Ind. Railw., 22 N. X. 258. 
 " Langley v. Boston & Maine Railw., 10 Gray, 103. 
 •692
 
 § 142. LEASES, ETC., REQUIRE CONSENT OP LEGISLATURE. 591 
 
 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 con- 
 struction ; 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 Eng- 
 land 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 dif- 
 ferent 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 
 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 ma- 
 jority of the company, or by contracts to procure such powers by 
 act of parliament.^^ 
 
 " Winch r. Birkenhead, L. & C. Railw., 6 De G. & S. 562; 8. c. 18 Eng. 
 L. & Eq. 506 ; Beman v. Rufford, 1 Simons (N. S.) 550 ; s. c. 6 Eng. L. & Eq. 106. 
 
 *•* Ea«t Lancashire Ilailw. r. The L. & Yorkshire Railw., 9 Exch. 591 ; s. c. 
 25 Eng. L. & Eq. 465. 
 
 '* Mozley ». 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." 
 
 '* Stevens r. South Devon Railw., 9 Hare, 818; Great Western Railw. v. 
 Rushout, 5 De G «& S. 290 ; s. c. 10 Eng. L. & Eq. 72 ; post, § 252. 
 
 " Great Western Railw. r. Birm. & Oxford Junction Railw., 5 Railw. C. 241. 
 The Lord Chancellor says, that to nullify, in a court of ecjuity, 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 pro- 
 jecting new companies." Shrewsbury & Birm. Railw. r. London & N.W. Railw., 
 
 4 De G. M. & G. 115; s. c. 9 Eng. L. & E<i. 394. 
 
 And it has been held, in an important case in the Circuit Court of the United 
 States, Columbus, Piqua. & Ind. liailw. r. Indianapolis & UcUefontainc Railw., 
 
 5 McLean, 450, that an agreement between two railway companies to build their
 
 692 ARRANGEMENTS BETWEEN COMPANIES. CH. X3». 
 
 * 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 
 the ground that this opposition was clearly bona fide, and clearly 
 prudent." 
 
 8. In a very recent case, in Vice-Chancellor Wood^s court,i^ 
 *the defendants entered into an agreement to purchase plain- 
 tiffs' property, there being at the time no legislative permis- 
 sion either to buy or sell such property. Subsequently such 
 
 roads from certain cities, to meet at a given place, and that the charges for trans- 
 portation shall be regulated by both companies, and also the meeting of the cars, 
 and the through freight cars, is a valid contract, and will be enforced by injunc- 
 tion in equity. That to fix the charge for the transportation of passengers and 
 freight, is the exercise of the corporate franchise of each company, and an agree- 
 ment that both companies shall regulate this is no abandonment or transfer of the 
 franchise of either, 
 
 '* 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 its most 
 essential powers of sovereignty, that of eminent domain, and of a virtual mo- 
 nopoly in transportation of freight and passengers, and in return therefor stipu- 
 lates 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. 
 
 *' Leominster Canal Co. v. Shrewsbury & Hereford Railw., 3 Kay & J. 654 ; 
 8. c. 29 Law Times, 842, 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 : " I cannot, however, but feel that solicitors 
 acting for railway 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." 
 • 693, 694
 
 § 142. LEASES, ETC., REQUIRE CONSENT OP LEGISLATURE. 593 
 
 permission was obtained, and steps taken by the defendants, 
 under the act, to carry the contract into effect, but they ulti- 
 mately refused to complete their purchase, on the ground that 
 the original agreement was not under the seal of the corpora- 
 tion, nor signed by two of their directors. The plaintiffs then 
 filed a bill for specific performance, and it was held, that the bill 
 must be dismissed, on the ground that the contract was origi- 
 nally 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 required in the defendants' spe- 
 cial act, and if it w^re 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.^ 
 
 10. And the grant to a railway company, having its terminus 
 at the bank of the river Hudson, opposite the city of Albany, of 
 power to connect its terminus upon one side of the river with a 
 depot upon the opposite bank ; though it does, by implication, 
 give the right to establish a ferry, does not make it a part of the 
 railway, so that passengers crossing the river may be regarded as 
 carried under the general railway franchise. 
 
 11. And where the grant of such a ferry was restricted, by 
 express condition, to the transportation of freight and persons 
 carried by the railway, and their servants and employees, it was 
 held that the company, by constantly carrying other persons gra- 
 tuitously across their ferry, were guilty of an infringement of the 
 • franchise of a pre-existing ferry, the same as if such persons were 
 carried for toll.^^ 
 
 12. And the grant in express terms of a ferry as a portion of 
 the line of a railway, will not empower the railway company to 
 use the ferry for any other purpose than the transportation of the 
 freight and passengers of the company.^ 
 
 ** Battle, J., in State o. Wilmington & Manch. Railw., Busbee, 234. 
 •» Aikin r. The Western Railw., 20 New York, 870. 
 « Fitch p. N. H. N. L. & Stonington Railw. Co., 30 Conn. 38. 
 38 • 696
 
 594 
 
 ARRANGEMENTS BETWEEN COMPANIES. 
 
 CH. ZXII. 
 
 SECTION II. 
 
 Necessity of Contracts of Corporations being under seal. 
 
 1. 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 tie American cases. 
 
 2. Reference to later decisions. 
 
 3. What amounts to a seal, according to 
 
 modem use. 
 
 § 143. 1. The apparent hesitation among the English courts 
 and text-writers ^ to accept the acknowledged rule of the Ameri- 
 can courts, that a corporation may as well contract, by mere 
 words, without writing, or by implication of law, or by vote, or by 
 writing, without seal, as a natural person ; in short, that in the 
 case of a contract, by a corporation, a seal is of no more neces- 
 sity 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.^ 
 
 ' Hodges on Railways, 69, 60, 61, and notes. 
 
 * 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 
 matter of reason and discretion, or more properly, perhaps, of intention and 
 convenience, 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. & Ell. 829, is the case of gas-meters ordered for the 
 use of the company by one of the committee, taken on trial, and not returned 
 in a reasonable time, and the company held liable. This is the earliest case in 
 the English 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 common law, that a corporation aggregate could speak and act only by 
 its common seal, has been almost entirely superseded, in practice, by the courts 
 of the United States." And after stating the greater facilities here for advance- 
 ment in jurisprudence, the learned judge enters a formal disclaimer against 
 •'the right or the wish to innovate on the law upon any ground of inconven- 
 ience, 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 necessary 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
 
 § 143. WHAT CONTRACTS MUST BE UNDER SEAL. 595 
 
 * 2. The English courts in many recent cases seem to have ap- 
 plied the general rule of presumption, by which the conduct of 
 
 established by previous decisions." And this seems to form the basis of the sub- 
 sequent 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 exct-ptions, the decisions have not always commended themselves as consist- 
 ent 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 exception to the old rule of executed contracts 
 for goods sold and used by the company 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 contract not under seal. Church v. The Imperial Gas- 
 Light & Coke Co., 6 Ad. & Ell. 8-16. This was upon a contract to take gas of 
 the company, which the defendant below declined to receive. In 1843 a case 
 arose in the Common Pleas, Fishmonger's Co. v. Robertson, 5 M. & G. 131. 
 This was an action upon a contract to pay the plaintiffs 1,OOOZ. 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 plaintiffs. The subject was very much considered, and an elab- 
 orate 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 con- 
 tract 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 London can appoint an attorney except under 
 the corporate seal. Mayor of Ludlow v. Charlton, 6 M. & W. 816 (1840). 
 But the Court of Q. B., in 1846 (Sanders v. St. Neot's Union, 8 Q. B. 810), 
 held, that if work be done for a corporation, and adopted by them for purposes 
 connected with the incorporation, although not under seal, they are liable for it. 
 The case of the Governor & Company of Copper Miners ». Fox, 16 Q. B. 229 
 (1851), holds that the plaintiffs could not sue upon a mutual contract, be- 
 cause the plaintiffs' portion of it, not being under seal, and being for the deliv- 
 er}* of iron rails, and the plaintiffs being incorporated for dealing in copper, not 
 coming within the propter 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 attempts 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 Exch. 193; 8. c. 6 
 Railw. C, 790, ante, § 113), in the order of time, is for extra work, under a con- 
 tract, which was done in express violation of the provisions of the general contract, 
 in regard to extra work, and was not authorized, in the manner required in rela- 
 
 *696
 
 596 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 * natural persons is to be judged of, to corporations. Thus^ it was 
 held, that where a company has stood by and seen works * por- 
 tion 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. 283 (1849) . But Cope 
 V. Thames Haven Dock & Railw. Co., 3 Exch. 841, seems to be an express decision 
 affirming the general necessity of the corporate seal to bind the company (1849). 
 So also Diggle v. The London & Blackwall Railw., 5 Exch. 442, is of the same 
 character, being for extra work performed 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 Fin- 
 lay V. Bristol & Exeter Railw., 7 Exch. 409 ; s. c. 9 Eng. L. & Eq. 483, and here 
 it was held, that although a corporation was liable for use and occupation, on a 
 parole demise, it is only liable for the actual occupation, and a continuous occupa- 
 tion, for several years, will not render the corporation tenants from year to year. 
 In Clark v. The Guardians of the Cuckfield Union, 1 B. C. C. 81 ; s. c. 11 Eng. 
 L. & Eq. 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 ex- 
 ecuted, the corporation cannot refuse to pay, upon the ground that the contract 
 was not under seal ; and the case of Lamprell v. Billericay U^nion, 3 Exch. 283, 
 is seriously questioned. In Lowe v. The London & N. W. Railw, 17 Jur. 375; 
 8. c. 14 Eng, L. & Eq. 18, it is held, 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, 10 Exch. 867; s. c. 30 Eng. L. & Eq. 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 
 the case of Clark v. The Guardians of the Cuckfield Union, I must say that I 
 am not satisfied with the observations of my brother Wightman, 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 Royal Mail Co. r. Marzetti, in June, 1855, 
 in the Court of Exchequer, 11 Exch. 228; Pollock, Ch. B., says, in regard 
 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 "m respect of matters for which it was created.'''' — " These 
 principles," adds the learned chief baron, " are founded on justice, public con- 
 
 ' Hill r. South Staffordshire RaUw. Co., 2 De G. J. & S. 230 ; 11 Jur. N. S. 192. 
 ♦ 597, 598
 
 § 143. WHAT CONTRACTS MUST BE UNDER SEAL. 1^91 
 
 formed, it will be held to have assented to them, as much as if it 
 had been a natural person. But the principle that a company 
 
 venience, and sound sense," and he might have said,- perhaps, with equal pro- 
 priety, will finally be found virtually to include all the legitimate business of 
 corporations. 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 corpora- 
 tion. And tliis is conceded by Lord Camppell, in the Governor & Company of 
 Copper Miners r. Fox, supra, 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. The Australian Royal Mail Steam Nav. Co., 5 El. & Bl. 
 409 ; 8. c. 32 Eng. L. & Eq. 167 (June, 1855), where the defendants, a company 
 incorporated for the purpose of carrj-ing the mails, passengers, and cargo, be- 
 tween 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 Sydney 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 commentarj- upon 
 the present state of the English law upon the subject, and will present a ver\- 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 Australian Royal Mail Steam Navigation Company, 
 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 acci- 
 dents abroad? The wonls of the contract, as set out in the declaration, show 
 an emplojTnent directly within the scope of the objects for which the conq)any 
 was incorporated. 
 
 " It is true there is a conflict of authorities which it is difficult to reconcile. 
 Two or three cases in the Court of Exchequer, Lamprell r. The Billericay 
 Union, 3 Exch. 283, and the Mayor of Ludlow r. Charlton, 6 M. & W. 815, and
 
 598 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 * is not bound by a deed of agreement entered into by its direc- 
 tors or trustees for and on behalf of the company, which is not 
 
 Arnold r. 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 deci- 
 sions preceded upon a principle adapted to municipal corporations, which are 
 created for other objects than trade ; and the Court of Exchequer applied that 
 principle to modem trading companies, which are of an entirely different 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, when 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 re- 
 laxation, especially in the case of corporations created by charter for trading 
 purposes, and other like corporations. The general result of the cases men- 
 tioned in Clark v. The Guardians of the Cuckfield Union, 16 Jur. 686; s. c. 11 
 Eng. L. & Eq. 442, is, that in the case of trading corporations, wherever the 
 contract relates and is essential to the purpose for which the company was in- 
 corporated, it may be 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 prin- 
 ciple laid down by my brother Wightman, in which I concur. In Beverley v. The 
 Lincoln Gas Light and 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 v. The Guardians of the St. Neot's Union, 8 Q. B. 810; and in 
 the elaborate judgment of Wightman, J., in Clark ». The Guardians of the 
 Cuckfield Union, 16 Jur. 686 ; s. c. 11 Eng. L. & Eq. 442, it was assumed that 
 the matter was within the scope of the coihpany's charter. 
 
 " The judgment delivered by Lord Campbell, Ch. J., for this court, in the 
 Copper Miners' Company v. Fox, 16 Q. B. 229 ; s. c. 3 Eng. L. & Eq. 42(J, 
 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 r. 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 con- 
 stituted. 
 
 " The other cases to which I adverted were corporations for trading purposes 
 and it is difficult to reconcile them. In Lamprell v. Tlie Guardians of the Bil- 
 lericay Union, 3 Exch. 283, the action related to the building a workhouse, with 
 •699
 
 § 143. WHAT CONTRACTS MU8T BE UNDER SEAL. 699 
 
 • under the seal of the company,* is still adhered to by the Eng- 
 lish and Irish courts. And to this extent the rule may not be 
 
 which the defendants were, as a corporation, connected. Diggle v. The London 
 & Blackwall Railw., 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 autliorities I 
 adhere to those who 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 pemicious- 
 ness. that I do not tln'nk that it can be adhered to, and must be considered as ap- 
 plicable only to municipal corporations. 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 insig- 
 nificancy 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. 420, and Clark ». The Guardians of the Cuckfield 
 Union, 16 Jur. 686; 8. c. 11 Eng. L. & Eq. 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 
 plaintiff in this case did not require a seal. I cannot, however, distinguish this 
 from Lamprell r. The Guardians of the Billericay Union, 3 Exch. 283, and 
 Diggle r. The London & Blackwall Railw. 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 those cases created considerable surprise at the time." 
 
 And in a still more recent case. Renter v. The Electric Telegraph Co. 6 El. 
 & Bl. 346 (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 
 
 * McArdle v. Irish Iodine Co., 15 Ir. Com. Law, 146. 
 
 *600
 
 600 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 •objectionable. But there are many American cases, where the 
 construction in favor of the responsibility of the company for the 
 
 messages, and all he could collect, for a commission not exceeding £500, or less 
 than £300 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 £50 per cent, in consideration of the plaintiff's further 
 services in collecting public intelligence and sending it by the company's 
 telegraph. These additional services were found to be beneficial to the com- 
 pany, and this agreement was entered upon the minutes of the company, and the 
 plaintiff had received £300 for services in pursuance of it. 
 
 The deed of settlement provided, that all contracts, where the consideration 
 exceeds £50, should be signed by three directors. It was held, that the parol 
 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 ». The Darenth Valley Railw., 1 H. & N. 305 ; s. c, 37 Eng. L. 
 & Eq. 539, the Court of Exchequer held, that one who had served the com- 
 pany, as secretary, might recover compensation for his services, although the re- 
 muneration 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 parties, which is the view taken of the subject here. Noyes v. 
 Rut. & Burling. Railw., 27 Vt. 110-113; ante, § 136, n. 5. 
 
 But it has been held, that if a corporation contract through an agent, who at- 
 taches a seal to his execution of the contract on their behalf, it thereby becomes 
 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 Railw., 37 Maine, 349. But it must be executed in the name of the 
 company. Sherman v. New York Central Railw., 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 com- 
 pany. Philadelphia, Wilmington & Baltimore Railw. v. Howard, 13 Howard, 
 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 Railw. v. London 
 & N. W. Railw., 6 Ho. Lds. 113. 
 
 In The London Docks Co. v. Sinnott, 8 El. & Bl. 847 (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 
 general rule, mercantile contracts, contracts with customers, and such as do not 
 admit of being executed under seal, as bills of exchange. But in some English 
 cases, decided since the publication of the second edition of this work, it seems 
 •601
 
 § 143. WHAT CONTRACTS MUST BE UNDER SEAL. 601 
 
 • act of the directors, even in execnting a contract under seal, 
 without using the specific seal of the cor|)oration, is more forci- 
 ble, the directors for the time being held to have adopted the 
 seal used as the corporate seal, the same as any number of nat- 
 ural persons may adopt the same seal. But this latitude of con- 
 struction in regard to the seal of a corporation is common in this 
 
 * country, it being generally held indispensable to bind the com- 
 pany by deed that their corporate seal should be used. 
 
 ^. There has been considerable controversy, first and last, as 
 to what, precisely, amounted to a seal. The generally received 
 opinion upon the subject seems now to be, that a mere scroll or 
 engraved likeness of the device of a seal will not answer the de- 
 mands of the law.^ It must be the result of the use of some 
 adhesive or impressible material. It was at one time restricted 
 to the use of wax, or some similar material. But it seems now 
 to be regarded as sufficient, in the case of a corporation, if the 
 impression is stamped into the substance of the paper on which 
 the seal is used.^ There is a great deal of curious learning on 
 the subject, much of which will be found in a carefully prepared 
 article upon the subject, lately published.^ 
 
 to be conceded that corporations may be as much bound by the contracts of 
 their agents as natural persons. Thus in Wilson r. The West Hartlepool Railw. 
 Co., 34 Beav. 187 ; s. c, 10 Jur. N. S. 1064, it was held that when a company, 
 through their directors, hold out to the world that a person is their agent for a par- 
 ticular purpose, they cannot afterwards dispute acts done by him, within the scope 
 of such countenanced agency. And accordingly where the general manager of a 
 railway company had in several instances entered into contracts for the sale of the 
 company's lands, which contracts had been adopted by the company, and he 
 entered into a contract with the plaintiff for the sale to him of a portion of their 
 land, and in pursuance of the terms of the contract the company's servants laid 
 down a branch line of railway, and the plaintiff removed machinery and other 
 effects to the land, and no act was done by the company to lead the plaintiff to 
 believe that the contract bad been entered into without authority ; but they 
 subsequently repudiated the authority of the manager and refused to convey 
 the land to the plaintiff, upon bill for specific performance ; it was held that the 
 case fell within the principle of the London & Birmingham Railw. Co. v. Win- 
 ter, Cr. & Ph. 67, and specific perfonnance was decreed. 
 
 » Bates r. Boston & N. Y. Central liailw., 10 Allen, 261. 
 
 • Hendee v. Pinkerton, 14 Allen, 381. 
 
 ' 1 Am, Law Review, 649. 
 
 • 602, 603
 
 602 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 SECTION III. 
 Duty of the respective Companies to Passengers and Others. 
 
 1. Company bound to keep road safe. Act 
 
 of other companies no excuse. 
 
 2. Some cases hold that passenpers can only 
 
 6. This rule extends to railways, where per- 
 sons are rightfully upon them. 
 n. 3. Cases, as to the necessity of privity of 
 
 sue the company carrying them. i contract existing, reviewed. 
 
 8. Passenger carriers bound to make landing- 7. One who keeps open public works is bound 
 places safe. to keep them safe for use. 
 
 But those who ride upon freight trains, by 
 favor, can only require such security as 
 is usual upon stich trains. 
 
 Owners of all property bound to keep it in 
 state, not to expose others to iryury. 
 
 8. Corporations presumptively responsible to 
 the same extent as natural persons in 
 the same situation. 
 
 9. A railway company drawing the cars of a 
 connecting road over its oum line is re- 
 sponsible as a common carrier. 
 
 § 144. 1. A public company, like a canal or railway, who are 
 allowed to take tolls, owe a duty to the public to remove all 
 obstructions in the canal or upon the railway, although not 
 caused by themselves or their servants, but by those who are 
 lawfully in the use of the canal or railway, or by mere stran- 
 gers.^ Nor can a railway company excuse themselves from lia- 
 bility for injury to passengers carried over any part of their road, 
 by showing that the particular neglect was that of a servant em- 
 ployed and paid by a connecting road as a switchman at the 
 junction of two railways.^ 
 
 * Parnaby v. Lancaster Canal Co., 11 Ad. & Ell. 223; and Lancaster Canal 
 Co. V. Parnaby, id. 230. See post, § 145, pi. 7, 8, and note. 
 
 * McElroy v. Nashua & Lowell Railw., 4 Cush. 400. Shaia, 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." So also where a train 
 of another company and through its own fault, ran into a train standing upon its 
 own track, but over which the other company had running power, it was held 
 the company owning the track was prima facie responsible to its own passengers 
 thus injured. Ayles r. S. E. Railw., L. R. 8 Exch. 146. So also where a 
 company grants the use of its track to another company whereby through the 
 fault of the latter company its own passengers are injured, the first company is 
 responsible. Railway Co. v. Barron, 5 "Wallace, 90. And a railway passenger 
 carrier is responsible for the sufficiency of a carriage which it borrows and uses.
 
 § 144. DUTY OP COMPANIES TO PASSENGERS AND OTHERS. 603 
 
 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, hy 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 be- 
 ing no privity of contract between the plaintiff and such com- 
 pany ; the remedy being in such case against the company who 
 were carrying the plaintiff as a passenger.^ 
 
 to the same extent as for its own. Jetter v. N. Y. & H. Railw., 39 N. T. (2 
 Keyes) 164. 
 
 » Murch t>. The Concord Railw., 9 Foster, 9 ; Winterbottom r. 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 
 parties. Sawj-er ». Rutland & Bur. Railw., 27 Vt. 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 coextensive with the lawful 
 use of the road, and is required as a matter of public security and safety." 
 The same principle is maintained in Smith v. New York & Harlem Railw. Co., 
 19 N. Y. 127, where it was decided that a switch-tender, employed by a rail- 
 way company on a portion of its road upon which it permits another company 
 to run trains, is not a servant of the latter ; and an engineer of the latter, 
 injured by the negligence of such switch-tender, may maintain an action against 
 the company employing him. But where animals were killed by the train of one 
 company, while rightfully upon the track of another company, it was held that 
 the company owning the road was responsible for the damage. Ind. & Madison 
 Railw. V. Solomon, 23 Ind. 534. So an apothecary, 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 contract 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, there- 
 fore, though the poisonous drug, with such label, may 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 animal to go at large, is respon- 
 sible for the consequences. Thomas v. Winchester, 2 Seld. 397. ■ 
 
 In Toomey ». London Br. & South C. Railw., 3 C. B. (N. S.) 146, the 
 plaintiff mistook 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 pur- 
 pose 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 dangerous. Held that the company were not liable. But a railway 
 * 604
 
 604 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 * 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 passenger who, 
 out of special favor, is allowed to get upon the train at an unusual 
 place for receiving passengers.^ And the same rule has been ex- 
 tended to the owners of docks, who keep up the gangways to 
 ships while remaining at their docks ; and where they were left un- 
 safe by the negligence of the servants having charge of the same, 
 and one who visited a ship in the dock on business, by invitation 
 of the officer, and was injured by the defect in the gangway with- 
 out his own fault, it was held the dock owners were responsible.* 
 
 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- 
 company is bound to fence a station so that the public may not be misled, by 
 seeing a place unfenced, into injuring themselves by passing that way, being the 
 shortest to the station. Where a passenger, in waiting for a train, had gone to 
 a public house for refreshments, the porter showing him the way with his lantern, 
 and hearing the bell ring started out for the station, and mistaking the light of 
 the engine for that of the station crossed an open space direct, and was injured 
 by falling into a hole three feet deep, it was held the company were liable. Bur- 
 gess V. Great Western Railw., 6 C. B. N. S. 923. 
 
 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 partj' 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 servants had sustained injury in its prudent and lawful use. But 
 the party here was called in for the occasion. Blakemore v. The Bristol & Exe- 
 ter Railw., 8 El. & Bl. 1035. 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, was pro hac vice a servant of 
 the borrower, and it was the same as if the borrower himself had been injured. 
 The furnishing the instrument had express and direct reference to its use by the 
 consignee and his servants, extraordinary as well as ordinary. 
 
 * Smith V. London & St. Katherine's Dock Co., Law Rep. 3 C. P. 326. 
 
 * 605
 
 § 144. DUTY OP COMPANIES TO PASSENGERS AND OTHERS. 605 
 
 lie 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 a 
 highway that it may be dangerous to passers-by if left unguarded.* 
 
 * 6. The same rule has ofton 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 question, 
 80 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 another 
 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. * 
 
 7. This principle, or an extension of it, has been a good deal 
 discussed in a case in the House of Lords.^ The * plaintiffs, 
 
 » Barnes v. Ward, 2 Carr. & K. 661. 
 
 * Randall v. Cheshire Turnpike Co., 6 N. H. 147; Townshend v. Susquehan- 
 nab T. Co., 6 Johns. 90. 
 
 ' Davis V. Lamoille County Plank Road, 27 Vt. 602. 
 
 In the case of Gibbs ». Trustees of the Liverpool Docks, 3 H. & N. 164 ; 
 8. c. 31 Law Times, 22, 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 dan- 
 ger, citing Parnaby v. Lancaster Canal Co., 11 Ad. & Ell. 223, and distin- 
 guishing the case from Metcalfe v. Hetherington, 11 Exch. 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 ». Mayor of New York, 
 6 Duer, 674. See post, n. 9. 
 
 * Cumberland Valley Railw. v. Hughs, 11 Penn. St. 141. 
 
 ' The Mersey Docks & Harbor Board v. Penhallow, Law Rep. 1 Ho. Lds. 93 ; 
 8. c. 12 Jur. N. S. 671. The recent cases bearing upon the general question of the 
 responsibility of one party for negligence in his own business, which incidentally 
 operates to produce injury to another, and which are here discussed by court or 
 counsel, are the following : Metcalfe v. Hetherington, 5 H. & N. 719 ; Coe P.Wise, 
 10 Jur. N. S. 1019 ; HoUiday r. St Leonard's, Shoreditch, 8 Jur. N. S. 79 ; 8. c. 
 11 C. B. N. S. 192 ; Pickard r. Smith, 10 C. B. N. S. 470 ; Southampton & L Bridge 
 Co. V. The Local Board of Health, 8 Ellis & Bl. 801 ; Ruck v. Williams, 3 H. 
 & N. 308 ; Whitehouse v. Fellowes, 10 C. B. N. S. 765 ; Brownlow ». The 
 Metropolitan Board, 8 Jur. N. S. 891 ; 8. c. 13 C. B. N. S. 768 ; Jones p. The 
 Mersey Board, 11 Jur. N.'S. 746. 
 
 There is obviously considerable conflict in the decisions bearing upon the 
 general question involved. The result of the discussion in the latest case before 
 the court of last resort in England, supra, seems to be, that the statute is the only 
 
 ♦ 606, 607
 
 606 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 a corporation, were empowered by act of parliament to make 
 and maintain docks for the use of the public, and to take tolls 
 from persons using them. The corporation did not, nor did ita 
 individual members, derive any emolument from the tolls, but was 
 bound to apply them in maintaining the docks, and in paying a 
 debt contracted in making them. The corporation had the usual 
 powers of appointing water-bailiffs, harbor-masters, and servants, 
 by whose hands the duties of superintendence were carried out. 
 A ship, in entering one of the docks, struck against a bank of 
 mud left at its entrance, of the existence of which the corporation 
 was either aware, or negligently ignorant. The ship and cargo 
 being both injured, separate actions were brought by the respective 
 owners. It was held, affirming the judgment of the Exchequer 
 Chamber,^'' that as long as the docks were open for the use of the 
 public, the corporation were bound, whether they received the tolls 
 for private or fiduciary purposes, to take care that the docks were 
 navigable without danger, and consequently that they were liable 
 in damages. 
 
 8. It was here held, that in construing statutes creating bodies 
 corporate, such as the plaintiffs, the legislature must be consid- 
 ered, unless the contrary appears, to intend that the corporate 
 body shall have the same liabilities and duties as are imposed by 
 the general law upon private persons doing the same things. 
 
 9. A railway company which for an agreed compensation re- 
 ceives and draws over its own line the cars of a connecting road 
 
 and sufficient warrant for creating any such pablic work as a railway, harbor, or 
 canal. But the responsibility of those to whom the power is given, depends 
 upon the provisions and construction of the statute; that it is unimportant 
 whether the grantee of the power be a natural or corporate person, the respon- 
 sibility in either case will be the same ; that in the absence of all special statutory 
 pro^nsion to the contrani*, the builders of such works, and those who operate the 
 same for their own benefit, or that of others, are bound to see that they are con- 
 structed with reasonable care and skill, and maintained in the same manner. It 
 was at one time supposed the grantee of such a {>ower might excuse himself from 
 all responsibility by showing good faith and diligence in the discharge of Uie 
 public duty imposed by the grant of the power. Sutton r. Clarke, 6 Taunt. 29, 
 where Chief Justice Gibbs said : " He has done all that was incumbent on him, 
 having used his best skill and diligence.'" But it has since been held that this is 
 not enough, and that the grantees of such a power are bound to conduct them- 
 selves in a skilful manner, and to do all that any skilful person could reasonably 
 be required to do in such a case. Jones r. Bird, 5 B. & A. 837. 
 •» 3 H. & Norm. 164, 4 Jur. N. S. 636.
 
 § 145. POWEBS AND DUTIES OP LESSEES. 607 
 
 is responsible, as a common carrier, for the safe delivery of the 
 passengers and freight, the same as in other cases. And where by 
 an agreement between the two companies, the latter is to indemnify 
 the former from all claims for damages in consequence of the 
 transportation, unless caused by the default of the transporting 
 company, or from some defect in its road, this will leave the trans- 
 porting company responsible, both under the contract, and in- 
 dependently of it, upon general principles, for an injury caused by 
 a defect in its track, although without its fault." 
 
 •SECTION IV. 
 Extent of the Powers and Duties of Lessees of Railways. 
 
 1. Statement of the points in an important | 2. Lessees of railways liable for their own 
 English case. \ acts, and for many acts of lessors. 
 
 § 145. 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 it 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 the 
 West London Railway Company) was incorporated by act of Parlia- 
 ment for the making of a railway from the Kensington Canal to 
 join the London and Birmingham (afterwards called the London 
 and Northwestern) and the Great Western Railways at a place 
 called Holsdeu Green, and certain duties were by the act cast 
 upon the company ; and, amongst other things, it was provided 
 that, if the railway should bo abandoned, or should, after its com- 
 pletion, 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 entered 
 into an agreement with the Great Western Railway Company, 
 under which the last-mentioned company bound themselves to 
 stop certain of their trains at a point where their railway inter- 
 
 " Vermont & Mass. Railw. p. Fitchburgh RaHw., 14 Allen 462. 
 • The West London Railw. c. The London & N. W. Railw., 11 C. B. 827; 
 8. c, 18 Eug. L. & Eq. 481. 
 
 • 608
 
 608 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 sected the West London Railway, for the purpose of transferring 
 passengers and goods from one railway to the otlier, 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, regulated the 
 * mode of crossing, until the plaintiffs' railway should be com- 
 pleted ; 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 used as arailway for 
 three years after its completion, then, on payment 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 Yict. c. 156), reciting that " it had 
 been found that the said West London Railway [which it appeared 
 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 Railway and the said 
 Great Western Railway, or either of them, by both or either of 
 the companies to whom the said last-mentioned railways belonged ; 
 that the West London Railway Company were therefore desirous 
 of letting the said railway on lease to the London and Birming- 
 ham 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 Railway Company was au- 
 thorized to lease to the London and Northwestern Railway Com- 
 pany 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 Northwestern Railway Company cove- 
 nanted, amongst other things, that they would " at their own 
 expense, during the continuance of the lease, efficiently work and 
 repair the railway and works thereby demised,, and indemnify the 
 West London Railway Company against all liabilities, loss, charges, 
 * 609
 
 § 145. POWERS AND DUTIES OP LESSEES. 609 
 
 and expenses, claims and demands, whether incurred or sustained 
 in consequence of any want of repair, or in consequence of not 
 working, or in any manner connected with * the working of the 
 same railway or works ; but the West London Railway Company 
 shall have no control whatever over the working or management 
 by the London and Birmingham (Northwestern) Railway Com- 
 pany 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 bo obtained by efficiently working the railway for goods 
 only, as for passengers only, or for both passengers and goods, 
 the covenant was well performed, — Flatty B., Martin, B., not 
 concurring. 
 
 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, although 
 the defendants had power to stop the Great Western trains, they 
 were not bound to exercise it, necessarily, as a part of the efficient 
 working of the line demised ; and that they were not bound nec- 
 essarily 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 defendants 
 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 effi- 
 ciently, 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 covenant, was 
 not limited, as decided by the court below, to the indemnification 
 of the plaintiffs from the obligations cast upon them by their acts 
 of incorporation. The court say, in substance : — 
 
 39 • 610
 
 610 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 * 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 from 
 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. 
 
 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 les- 
 see 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 
 
 ♦ 611, 612
 
 I 146. CONTRACTS BETWEEN DIFFERENT COMPANIES. 611 
 
 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.* 
 
 SECTION V. 
 Contracts between different Companies regidaiing the Traffic, 
 
 1. Such contract generally held valid and I 2. Arrangements to avoid competition valid, 
 binding, | 
 
 § 146. 1. It seems in general to have been considered, that 
 contracts between different connecting companies, with a bona 
 fide view to regulate traffic, in a reasonable and just manner, 
 were legal and binding.^ But when it is considered that these 
 * companies 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 
 
 • 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 & Yorkshire Railw. v. The East L. Railw., 7 Exch. 126 ; 
 
 8 Eng. L. & Eq. 564 ; s. c. reversed in Exchequer Ch., 9 Exch. 691 ; 26 Eng. 
 L. & Eq. 466 ; and affirmed H. Lords, 5 Ho. Lds. 792 ; 36 Eng. L. & Eq. 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. Railw. v. Stirling & D. Railw., 
 1 McQu. Ho. Lds. 790; Brown r. The Cayuga & Susquehanna Railw., 2 Ker- 
 nan, 486. ' Linfield p. Old Colony Railw., 10 Cush. 662. 
 
 * Walford on Railways, 184, citing two cases not reported. 
 
 ' Shrewsbury & Birm. Railw. r. London & N. W. Railw., 17 Q. B. 652 ; 8. C. 
 
 9 Eng. L. & Eq. 894. Lord Campbell says here, That if the object of the con- 
 tract were to create a monopoly, and to deprive the public of all benefit of com- 
 petition, it might be illegal, but an agreement that one company shall not interfere 
 or compete with the other, is no more illegal than a contract by which one trades- 
 man 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 v. 
 The Eastern Counties Railw., 10 Beav. 1 ; s. c. 4 Railw. C. 613. 
 
 •618
 
 612 ARRANGEMENTS BETWEEN COMPANIES, CH. XXII. 
 
 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 be 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 tolls, 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.^ 
 
 2. There is no principle of public policy which renders void 
 a traffic arrangement between two lines of railway for the pur- 
 pose of avoiding competition. And if the arrangement embrace 
 the division of the net earnings of both companies in certain 
 definite proportions, the court will not interfere upon the ground 
 that one company may not adventure its profits upon the chances 
 of the earnings of another company.* And it is no valid objec- 
 tion that such division is based upon the experience of the result 
 of past traffic* 
 
 SECTION VI. 
 
 What is requisite to constitute a perpetual Contract betiveen 
 different Railway Companies. 
 
 1. Railway connections commonly temporary, I ience and so subject to legislative con- 
 
 2. The matter is one mainly of public conven- \ trd. 
 
 § 147. 1. Where in the charter of a railway company a right is 
 reserved to the legislature to allow other railways to connect 
 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 
 
 ' Simpson v. Denison, 10 Hare, 51 ; s. c. 13 Eng. L. & Eq. 359, 
 ' Ante, § 142, 
 
 * Hare v. London & N, W. Railw., 2 Johns. & H. 80; s. c. 7 Jur, N. S. 
 1145 ; post, § 148, 
 *614
 
 §148. 
 
 CONTRACTS ULTRA VIRES. 
 
 613 
 
 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.^ 
 
 2. It seems that ordinarily a mere legislative permission to rail- 
 way companies to connect their lines imposes no obligation upon 
 either company to do so. And if that were to be so regarded, it is 
 certain that no absolute vested right to insist upon the per- 
 manency of such connection could exist in either company, which 
 it would not be competent for the legislature to dissolve. After 
 the connection is made, it is optional with either party to dis- 
 continue it, and clearly so by legislative permission. Even after 
 such connection is made, it is not incumbent upon either company 
 to continue the same gauge, or if so, such right cannot by possi- 
 bility exist until the connection is made, and if, before that, 
 either company, by legislative act, is relieved from all obligation 
 to connect, this will terminate all possible claim on the part of 
 the other.^ 
 
 SECTION VII. 
 
 Contracts by Railways ultra vires, and Illegal. 
 
 Money unlawjidly borrowed company must 
 
 refund. 
 How far acts ultra yirea confirmed by 
 
 acquiescence. 
 Comf)any not restrained from making 
 
 unlawful payments on the ground of 
 
 policy. 
 Decision rests on no safe grounds. 
 It seems too much like paying black mail 
 
 to buy peace. 
 
 1. Contracts to make erections not authorized 
 
 by their charter. 
 
 2. Contracts to indemnify other companies 
 
 against expense. 
 8. Contracts to divide profits. 
 
 4. Illustration of the doctrine ultra Tires. 
 
 5. How far railuxiys may accept bills of ex- 
 
 change. Railway companies not empow- 10. 
 ertd to make bills and notes except from 11. 
 necessity. 
 
 6. Contracts ultra yires cannot be specifi- 
 
 cally enforced against the directors. 
 
 § 148. 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, 
 
 > Boston & Lowell Railw. c. The Boston & Maine Railw., 5 Cush. 375. 
 ' Androscoggin & Kennebec Railw. r. Androscoggin Railw., 52 Me. 417.
 
 614 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII, 
 
 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 bill being rejected, 
 insure the company, of which they were the managing commit- 
 tee, against all loss, and would pay all expenses incurred by 
 them 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.* 
 
 » The Mayor of Norwich v. The Norfolk Railw., 4 El. & Bl. 397; s. c. 30 
 Eng. L. & Eq. 120. 
 
 * McGregor v. The Official Manager of the Deal & Dover Railw., 16 Eng. 
 L. & Eq. 180, in Exchequer Chamber ; s. c. 18 Q. B. 618. See also East Anglian 
 Railways Co. v. Eastern Counties Railw., 11 C. B. 775 ; s. c. 7 Eng. L. & Eq. 505, 
 where the same question, in effect, is determined. Ante, § 16. 
 
 3 Ante, § 66, n. 3. 
 
 * Shrewsbury & Birmingham Railw. v. London & Northwestern Railw., 
 6 House of Lords, 113 ; s. c. 29 Law Times, 186. But one company may law- 
 fully accept the lease of an unfinished railway under a specified rent yearly after 
 the same is finished, and may stipulate for the payment in advance of the rent 
 for the whole term for the purpose of constructing the road ; and this will be no 
 infringement of the statute allowing the connection of the two roads, upon con- 
 dition the first company shall not expend any portion of its reserved funds for 
 the construction of the other road. This looks very much like one company 
 building the road of the other out of its own funds, surplus or borrowed, for 
 the use of such road a certain number of years. If so, it is converting surplus 
 into capital without legal warrant. The case is so near the dividing line between 
 what is and what is not justifiable as not to be of much authority, for general 
 adoption, by those who desire to protect an existing company against expending 
 its funds in extending its line. It is one of those cases which relucts, at declar- 
 
 •616
 
 § 148. CONTRACTS ULTRA VIRES. 615 
 
 4. The rule laid down upon this subject by a distinguished 
 English judge, on a recent occasion in the House of Lords,* is 
 perhaps as fair and full a definition of the doctrine as can be 
 made. " There can be no doubt that a corporation is fully car 
 pable of binding itself by any contract under its common seal in 
 England, and without it in Scotland, except where the statutes by 
 which it is located or regulated expressly or by necessary implica- 
 tion prohibits such contracts between the parties. Prima facie all 
 its contracts are valid, it lies on those who impeach any contract 
 to make out that it is avoided. This is the doctrine of ultra vires, 
 and it is no doubt sound law, though the application of it to the 
 facts of each particular case has not always been satisfactory to 
 my mind." His lordship here declares that it would not be 
 ultra vires for a company wishing to alter one of its branches, 
 and about to apply to parliament for authority to do so, to enter 
 * into a contract for land which would be necessary for the pur- 
 pose if they should obtain the act. 
 
 6. The question how far a railway company, without special 
 grant of power for that purpose, may accept bills of exchange, is 
 very carefully examined and thoroughly discussed, both by court 
 and counsel, in a recent English case.^ It seems to be there * con- 
 ing the bona fide acts of corporations ultra vires, where no great harm to any- 
 one is expected to ensue, and the public interest has been materially subserved. 
 Durfee p. Old Colony & Fall River Railw. 5 Allen, 230. 
 
 ' * Lord Wensleydale, in the Scottish Northeastern Railw. Company c. Stewart, 
 .3 McQu. Ho. Lds. 382 ; 8. c. 6 Jur. N. S. 607. 
 
 • Bateman v. Mid-Wales Railw. Company, Law Rep. 1 C. P. 499 ; 8. c. 12 
 Jur. N. S. 453. The language of Crompton, J., in Chambers v. Manchester & 
 Milford Railw. Co., 6 B. «& S. 688 ; 8. c. 10 Jur. N. S. 700, seems to place the 
 question upon its true basis. 
 
 " The law as laid down by Parke, B., in the South Yorkshire Railw. & River 
 Dun Company ». The Great Northern Railw. Company, does not appear to be 
 questioned, and seems to be applicable to the present case. ' Corporations, 
 which are creations of the law, are, when the seal is properly affixed, bound 
 just as individuals are by their own contracts, and as much as all the members of a 
 partnership would be by contract in which all concurred.' This is undoubtedly 
 true of corporations generally ; but as Mr. Lush has observed, railway corpora- 
 tions are the creatures of an act of parliament ; and the question is, how far pro- 
 vision has been made for conferring upon them borrowing powers, which are said 
 to have been exercised in the present case. ' But,' proceeds Parke, B., * where 
 a corporation is created by act of parliament for particular purposes, with 
 special powers, then indeed another question arises ; their deed, thouph under 
 their corporate seal, and that regularly affixed, does not bind them, if it appear 
 
 • 616, 617
 
 616 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 sidered, that unless the corporation is a trading company, as the 
 Bank of England or the East India Company, there is no pre- 
 sumptive power to accept bills of exchange. In the case of rail- 
 way corporations, created for a special purpose, there is no pre- 
 sumptive power either to borrow money, or to issue or accept 
 bills of exchange for the purpose of negotiation in the market. 
 The rule is thus stated by one of the judges in the case last 
 cited, speaking of trading corporations. " Such a corporation 
 may, in some cases, bind itself by promissory notes and bills of 
 exchange. . . . But a corporation will not have these extraordi- 
 nary powers, unless the nature of the business in which it is 
 engaged raises a necessary implication of their existence." 
 
 6. Contracts ultra vires ^ entered into by the directors, and which 
 are not binding upon the company, cannot be specifically enforced 
 against the directors, nor can the directors be decreed by the court 
 to make good their representations.^ 
 
 7. A corporation having no power to lend, made a loan to a 
 company having no power to borrow. The borrowers were aware 
 of those facts. They bought a canal with the money ; but that 
 
 by the express provisions of the statute creating the corporation, or by necessary 
 and reasonable inference from its enactments, that the deed was ultra vires, — 
 that is, that the legislature meant that such a deed should not be made.' This, 
 as it appears to me, touches the very question before us, and, moreover, seems 
 to convey the notion that directors of a railway company are of the nature of 
 special rather than general agents of the company they represent. They have 
 the custody of the seal of the company, but they have not the power to affix it to 
 instruments which the legislature has declared to be ultra vires ; and should this 
 be done, the company are not bound." . . . 
 
 " These bonds, therefore, seem in effect to amount to an account stated, and 
 a promise to pay, under seal ; and, so long as they are used for the purpose for 
 which they were originally intended, it may be that there is nothing objectionable 
 in them. But here the bonds are issued by the directors for the purpose of rais- 
 ing money to discharge liabilities into which the plaintiff has entered on behalf 
 of the company, of which he was chairman ; and this is, to say the least of it, an 
 indirect mode of borrowing, and beyond the powers conferred upon the company 
 under their act. The point was also put to us upon the argument whether the 
 prohibition to borrow was to be held to extend to the raising of small sums for 
 the immediate necessities of a newly started company ; and to this, we think, it 
 was well answered, that if once a company be permitted to overdraw one 
 hundred pounds, there would be no impediment to their doing so to any extent 
 to which their credit would reach. I am therefore of opinion that these bonds 
 are void, and that the plaintiff is not entitled to recover upon them." 
 
 ' ElUs V. Coleman, 25 Barb. 662.
 
 § 148. CONTRACTS ULTRA VIRES. 617 
 
 was set aside, and the purcliase-money ordered to be refunded. 
 The loaning company sought a refunding of the money loaned by 
 them, with the interest, out of the refunded purchase-money. It 
 was held they were entitled to a decree accordingly.* But the 
 lender of money to a company having no power to borrow, cannot 
 compel the company to refund the money, unless it has been bona 
 fide applied to the purposes of the company.* 
 
 8. Where part of a contract only is ultra vires of the company, 
 a court of equity will restrain that portion only.^^ Where there 
 * is a defect of capacity in the company to do the act, the power 
 cannot be created by the express agreement of the sharoliolders ; 
 nor can it be presumed from any extent of acquiescence. But 
 where only certain formalities are required to the valid execution 
 of the act, as the consent of a general meeting, that will be pre- 
 sumed from acquiescence.^^ But where dissentient members ^^ 
 were allowed to retire by the resolution of a general meeting, it 
 was held the other members could not be allowed to question its 
 regularity and validity, after an acquiescence of twenty years, 
 although ultra vires. 
 
 9. Directors of an insurance company offered to pay losses 
 caused by the explosion of gunpowder, although expressly ex- 
 cepted from the risks assumed by the policy, at the same time not 
 admitting any legal liability to do so. On a bill by a shareholder to 
 restrain the directors from doing so, it appearing that it was usual 
 and advantageous for companies to do so, although not strictly 
 
 • Ernest v. Croysdell, 2 De G. F. & J. 176 ; s. c. 6 Jur. N. S. 740. 
 
 ' Troup in re, 29 Beav. 353; Hoare ex pari e, 30 id. 225. 
 
 '" Maunsell v. Midland Great Western (Ireland) Railw. Co., 1 H. & M. 180; 
 8. C. 9 Jur. N. S. 660. It was here held, that an agreement to contribute to the 
 parliamentary deposit required on bills promoted by another company is ultra 
 vires. So is an agreement to take shares in the future extension of another 
 company. So also is an agreement to make traffic regulations applicable to 
 future extensions. But no such agreement is ultra vires if its validity is ex- 
 pressly made dependent upon the sanction of parliament. But where part of 
 an entire arrangement between two companies, the parts of which are dependent 
 upon each other, is illegal, or ultra vires, a court of equity will restrain the 
 execution of every portion of the arrangement. Hattersley v. Shelbume, 7 Law 
 T. N. S. 650. 
 
 " British Provident Life Ins. Co., ex parte Grady, 9 Jur. N. S. 631. 
 
 '• Brotherhood in re, 31 Beav. 366. A restriction upon the liability of tlie 
 shareholders for bills drawn by the company will not aQuct the responsibility of 
 the company. State Fire Ins. Co., 8 L. T. N. S. 146. 
 
 •618
 
 618 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 responsible for the loss : held, that this was a mode of carrying 
 on the business with which the court could not interfere.^^ 
 
 10. Tliis is a most remarkable decision, but more remarkable 
 for the reasons and grounds upon which it is placed. The fact 
 that the unlawful payments proposed to be made were prudent 
 and politic, is nothing more than may be urged in favor of all 
 proposed illegal diversion of the funds of a company. It is always 
 proposed thereby to advance the interests of the company, and 
 consequently the dividends to the shareholders. It is impossible 
 to suppose that any such principle can ultimately maintain its 
 ground in the English courts of equity. 
 
 11. The subsequent cases seem to manifest the feeling that all 
 secure ground to rest upon is taken from under them. It is said in 
 one case ^* * that in matters strictly relating to the internal manage- 
 ment of the company, even though not strictly within the terms of 
 the constitution of the company, the court will not interfere. But 
 it is here added, if the matters complained of are plainly beyond 
 the powers of the company, and are inconsistent with the objects 
 for which the company was constituted, the court will interfere, 
 at the instance of the minority, to prevent the act complained of 
 from being carried out. If this is intelligible to others, or rec- 
 oncilable with good sense and good law, it certainly passes our 
 comprehension, and we can only say that we should not expect 
 it to be long maintained anywhere. It is nothing more or less 
 than paying black mail to buy peace, and if public companies can 
 do that witli funds they hold in trust, it may be as well for courts 
 of equity not to attempt to define what they may or may not do. 
 
 § 148 a. The following points, decided by a court of learning 
 and experience, in regard to the rights of railway corporations in 
 one state to enter into permanent arrangements with similar cor- 
 porations in other states, with our own comments upon it, as 
 published in the American Law Register ,i we deem of sufficient 
 importance as illustrating some of the doctrines discussed in the 
 preceding section, to be here repeated. The opinion of Judge 
 Storer^ at length, will be found in the American Law Register,^ 
 and will repay careful reading. 
 
 " Taunton r. Royal Ins. Co.. 2 H. «& M. 135 ; s. c. 10 Jur. N. S. 291. 
 " Gregory v. Patchett, 38 Beav. 595 : 8. c. 10 Jur. N.- S. 1118. 
 > Vol. 5, N. S., 733. « Vol. 6, N. S., 733-744. 
 
 *619
 
 § 148 a. C0NTRACT8 ULTRA VIRES. 619 
 
 1. TTupowero/a receiver to sue in the name I 8. Statement of the contract and ground of 
 
 of the corporation. 
 Foreign railway corporation acquired no 
 prerogative rights by leasing a portion of 
 the track of a domestic railway. 
 
 holding it void, as being ultra virea. 
 
 Further reasons why such contract cannot 
 be spec\ficaUy perfomud here. 
 
 8. Comments ujnn the preceding proposi- 
 tions. 
 
 Superior Court of Cincinnati. Ohio and Mississippi Railroad 
 Company v. Indianapolis and Cincinnati Railroad Company. 
 
 1. A receiver appointed by the Circuit Court of the United 
 States for the Southern District of Ohio, to take possession of a 
 railway and its effects, may sue in this court, upon a contract 
 made by that corporation in the corporate name of the railway, 
 without disclosing in the petition his own name as receiver. 
 
 * 2. A foreign corporation having no charter from the state of 
 Ohio, authorizing it to construct and operate a railway in this 
 state, cannot, by a transfer of a portion of a railway already con- 
 structed in the state by legal authority, acquire a right to use and 
 operate such railway witliin this state. 
 
 3. The plaintiffs, being autliorized to construct and operate a 
 railway from Cincinnati to Vincennes, and the defendants, being 
 authorized to construct and operate a railway from Indianapolis 
 to Lawrenceburg, of a different gauge, entered into a contract 
 whereby the defendants, in consideration of being allowed to lay a 
 third rail on the road of the plaintiffs, to furnish motive power for 
 hauling the cars of the defendants on that part of the road, agreed, 
 among other things, to lend to the plaintiffs $30,000, for the pur- 
 pose of erecting a depot for the plaintiffs in Cincinnati, to become 
 the property of the plaintiffs at the expiration of the contract ; to 
 form no connections at or beyond Lawrenceburg prejudicial to the 
 plaintiffs ; and to give the plaintiffs exclusive control of the em- 
 ployees of the defendants while on the road of the plaintiffs. Held, 
 on the construction of the charters of the plaintiffs and defendants, 
 that such contract was beyond the competency of the contracting 
 parties, and was void. 
 
 4. The contract also provided, that the defendants should have 
 the use of a depot and certain grounds in Cincinnati for unloading 
 goods and lumber, for thirty years. Held, that this created an 
 easement in the land, and was, in connection with the laying and 
 keeping up the third rail, in substance a lease, which the plaintiffs 
 had no authority to make, and that it being for more than tlirce 
 years, was also invalid under the statute of frauds, for the 
 
 •620
 
 620 ARRANGEMENTS BETWEEN COMPANIES. CH. XXII. 
 
 want of legal acknowledgment. Held, also, that the defendants 
 having as a foreign corporation no right to accept a lease of a 
 railway in Ohio, the plaintiffs could not have had a specific per- 
 formance of the agreement, the remedies of the parties not being 
 mutual.^ 
 
 •SECTION VIII. 
 
 Companies exonerated from Contracts, by Act of the Legislature. 
 
 § 149. It seems to be conceded that a railway company may 
 plead a subsequent act of the legislature, in bar of the perforin- 
 ance of their covenant or contract. But it will afford no bar, 
 
 * We can see no good ground to question the soundness of the foregoing 
 opinion ; but it seems to us that the case exhibits in a strong light the embar- 
 rassments constantly resulting from having railway corporations restricted in 
 their corporate functions to the limits of state lines. It would certainly seem 
 that there is far more necessity and propriety in having all the railway corpora- 
 tions in the country possess a national character, than there is in giving the 
 same character to all the banks of the countr}', which has been already practi- 
 cally effected by means of discriminating taxation. There is every reason to 
 regard railways as national institutions, in almost every sense in which they 
 possess a public character, or perform public service, with the single exception 
 of intercommunication, which is mainly of local and state concern. 
 
 1. As one of the wonderful advancements of military operations in modern 
 times, by which railways have wrought a complete change in the conduct of war, 
 and have become an indispensable necessity, they are entirely of a national 
 character, so much so as to exclude all state control in times of war or civil 
 commotion. 
 
 2. In regard to postal communication, which has been regarded as exclusively 
 of a national character, since the early and palmy days of the Persian monarchy, 
 where public posts are said to have originated, railways must also be regarded as 
 an indispensable necessity. For if we admit the right of state control over all 
 or any considerable portion of the railways in the country, it will place all postal 
 communication at the mercy and good will of state authority, which any one 
 must see is wholly inadmissible. 
 
 We discussed the rights of railway corporations in regard to acquiring land 
 and other prerogative rights in adjoining states, without the action of the legisla- 
 ture, in a case in Vermont, many years since, when we came to the conclusion 
 that no such prerogative rights could be acquired out of the state of the charter, 
 except by legislative act. State v. B. C. & M. Railw., 25 Vt. 433. This will 
 not preclude such corporations from acquiring the title of land out of the state, 
 by voluntary contract, or entering into any other contract, of the ordinary 
 character of contracts between natural persons, but it will not justify taking 
 land compulsorily, or operating a railway and taking tolls, &c. 
 •621
 
 §150. 
 
 WIDTH OP GAUGE. — JUNCTION OP RAILWAYS. 
 
 621 
 
 unless the act either expressly, or hy clear implication, renders the 
 duty of the contract unlawful or comes in conflict with it.^ 
 
 •SECTION IX, 
 
 Width of Gauge. — Junction with other Roads. 
 
 Contract to make gatige of the companies 
 the same, although contrary to law of 
 state, at its date, may be legalized by 
 statute. 
 
 1. Where the act requires broad gauge, does 
 
 not prohibit mixed gauge. 
 
 2. Permission to unite with other road, signi- 
 
 Jies a road dc facto. 
 8. Equity will sometimes enjoin company 
 against changing gauge. 
 
 § 150. 1. Where the company's special act required them to lay 
 down a railway of such gauge and construction as to be worked 
 in connection with another company named (the broad gauge), a 
 court of equity declined to interfere, by injunction, when the com- 
 pany were laying down part of the line with double tracks of the 
 mixed gauge, there being no prohibition in the act against such a 
 construction, the broad gauge being all which was required by the 
 act.i 
 
 2. Where the act of incorporation gave the company the right 
 to construct a road in a particular line, and also required them to 
 purchase a former railway along the same route, and gave them 
 the right to connect " their road with any road legally authorized 
 to come within the limits of the city of Erie," it was held that this 
 right extended equally to the road purchased or built by them, 
 and that they had the right to connect with any other railway in 
 the actual use of another company in Erie, without inquiry whether 
 such company were in the legal use of their franchises at the time 
 or not. That is a question which cannot be inquired into in this 
 collateral manner.^ 
 
 * Wynn r. The Shropshire Union Railw. & Canal, 6 Exch. 420 ; Stevens v. 
 South Devon Railw., 18 Beav, 48; s. c. 12 Eng, L. & Eq. 229. But where 
 one was induced to give lands to a railway company, or subscribe for stock, and 
 the essential inducement to make the contract was that the company should con- 
 struct their road within some definite time, the extension of time for the construc- 
 tion of the road, by act of the legislature, will not exonerate the company from 
 their obligation to such person. Henderson e. Railw. Company, 17 Texas, 560. 
 
 ' Great Western Railw. v. Oxford, Worcester,' & Wolverhampton Railw., 
 6 De G. & 8. 437 ; 8. c. 10 Eng. L. & Eq. 297. 
 
 * Cleveland, Painsville, & Ashtabula Railw. v. The City of Erie, 27 Penn. 
 St. 380. 
 
 •622
 
 622 ARRANGEMENTS BETWEEN COMPANIES. CH. XXH. 
 
 3. Where two railway companies agree to operate their roads in 
 connection, between certain points, if one of the companies changes 
 its gauge, so as to break up the connection contemplated, an in- 
 junction will be granted to enforce the contract.^ 
 
 * 4. A contract entered into by railway companies to make the 
 gauge of both the companies the same, is not illegal, although this 
 be contrary to the law of one of the states, if the contract appear 
 to have been made with reference to an alteration of the powers of 
 the company, in that respect, and that such alteration was pro- 
 cured before any part of the track was laid.^ 
 
 ' Columbus, Piqua, & Ind. Railw. v. Ind. & Belief. Railw., 5 McLean's 
 C. C. R. 460. 
 
 *623
 
 § 151. GENERAL RULES OF LAW GOVERNING THIS REUEDT. 623 
 
 ♦CHAPTER XXIII. 
 
 HANDAMUS. 
 
 SECTION I. 
 
 General Rules of Law governing this Remedy. 
 
 1. Regarded at a auppUmentary remedy. 
 
 2. Mode of procedure. 
 
 ( 1 . ) Matter o/discretion. 
 (2.) Alternative writ. 
 8. Proceedings in most of the American 
 
 courts. 
 4. English courts do not allow application to 
 be amended. 
 
 6. Recent English statute has easentially sim- 
 plified proceedings. 
 
 6. Mode of trying the truth of the return. 
 
 7. Costs rest in the discretion of court. 
 
 8. Mode of service. 
 
 9. By late English statutes, mandamus effects 
 
 specific performance. 
 
 §151. 1. The office of the writ of mandamus is very extensive. 
 It is the supplementary remedy where all others fail. Lord Mans- 
 field says,^ " 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.* 
 
 • Rex r. Barker, 3 Burr. 1266. See Woodstock v. Gallup, 28 Vt. 687. 
 People r. Head, 26 111. 325. Draper r. Noteware, 7 Cal. 276. The same 
 principles are declared by Lord Ellenborough, in Rex r. Archbishop of C, 8 
 East, 213, 219; 6 Ad. & Ellis, 321. And where there is any other equally effi- 
 cacious remedy this writ will not lie. Bush v. Beavan, 1 H. & C. 500 ; 32 L. 
 J. Exch. 54. Post, § 160, pi. 3. 
 
 * Commonwealth ». Pittsburgh, 34 Penn. St. 496 ; Fremont v. Crippen, 10 
 Cal. 211. In this last case it was held mandamus would lie to compel the sheriff 
 to execute a writ of possession, although there might be either a civil action or 
 a criminal prosecution against him for the refusal, since neither of these reme- 
 dies would do full justice to the complainant. 
 
 » 12 Petersdorff, Ab. 438 ; 6 Bac. Ab. 309, 418, tit. Mandamus ; 3 Black. 
 Coram. 110, 264; 1 Kent, Coram. 322; Curtis's Digest, 333. And that the 
 party may have some remedy in equity will not preclude this remedy. But see 
 
 *267
 
 624 MANDAMUS. CH. XXIII. 
 
 * 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 ,3 
 and in most of the American states it is given, by statute, 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 an alternative mandamus issues 
 
 infra. Nor that an indictment will lie. Post, § 160. 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. Railw., 4 Railw. 
 C. 112. The legislature empowered the board of supervisors of the county of 
 New York to cause to be raised and collected a sum not exceeding $80,000 to 
 meet and pay whatever sum up to that amount might be found due to the con- 
 tractors with the commissioners of records, and authorized the comptroller to 
 pay "said amount when it should be judicially determined."' The contractor 
 not having the power to bring action and obtain judgment against the supervi- 
 sors in the regular manner, it was held that this was n6t the intention of the 
 legislature, and that, in the absence of any specific directions in the act as to 
 how this judicial determination should be obtained, it would be unreasonable to 
 infer that any other remedy was intended than that attainable by mandamus ; 
 and that application for mandamus was the proper remedy for the contractors, 
 upon the refusal of the comptroller to pay them the amount certified by the 
 commissioners to be due them. People v. Haws, 34 Barb. 69. And see, to the 
 same point, Regina v. Port of Southampton, 1 E. B. & S. 5 ; s. c. 7 Jur. N. S. 
 990 ; 30 L. J. Q. B. 244. And where a new right has been created by act of 
 Parliament, the proper mode of enforcing it is by mandamus at common law. 
 Simpson v. Scottish Union Fire «& Life Ins. Co., 9 Jur. N. S. 711 ; 8. c. 32 L. J. 
 Ch. 329 ; 8. c. 1 H. & M. 681. Commonwealth v. Pittsburg, 34 Penn. St. 496. 
 
 * The Rioters' Case, 1 Vernon, 175 ; Ang. & Ames on Corporations, § 697. 
 But see R. v. Severn & Wye Railw., 2 B. & Aid. 646 ; R. ». Commissioners of 
 Dean Inclosure, 2 M. & S. 80 ; R. ». Jeyes, 3 Ad. & El. 416. 
 
 * Rex V. Bishop of London, 1 T. R. 331, 334 ; Rex v. Bishop of Chester, id. 
 896, 404 ; id. 425 ; 2 T. R. 336. People v. Auditor of Public Accounts, 33 111. 
 9 ; 8. C. 3 Am. Law Reg. N. S. 332. And the court wilT not entertain juris- 
 diction unless substantial interests are involved. Id. 
 
 • 268, 259
 
 § 151. GENERAL RULES OP LAW GOVERNING THIS REMEDY. 625 
 
 upon the ex parte hearing, and the definitive hearing is had upon the 
 return of the rule, or the return to the alternative writ. 
 
 3. The more common practice in the American courts (which 
 often hold but one or two short sessions annually in a county, and 
 where, by consequence, such formal proceedings would be attended 
 with embarrassing delays) is, by formal petition, alleging in detail 
 the grounds of the application, which is served upon the opposite 
 party, and all parties supposed to have an interest in the questions 
 involved, a sufficient time before the term to give an opportunity 
 for taking the testimony upon notice ; and, upon the return of the 
 petition, the case is heard upon its general merits ; and in either 
 form, if the application prevails, a peremptory mandamus issues, 
 the only proper return to which is a certificate of compliance with 
 its requisitions, without further excuse or delay.^ 
 
 " Hodges on Railways, 640, 641, 642, 643, 644. It is 6rst 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 r. Wilts & Berks Canal Navigation, 3 Ad. & Ellis, 477 ; 
 The King r. Brecknock & Abergavenny Canal Navigation, 3 Ad. & Ellis, 217. 
 People r. Romert, 18 Cal. 89. The refusal must be of the thing demanded, 
 and not of the right merely. The King v. Northleach & Witney Roads, 5 Barn. 
 & Ad. 978. The refusal must be direct and unqualified, but may be made as 
 effectual, by silence as by words or acts, but the party should understand that 
 he is expected to perform the required duty, upon pain of the legal redress be- 
 ing resorted to, without further delay. The Queen v. Norwich & Brandon 
 Railw., 4 Railw. C. 112; The Queen r. Bristol & Exeter Railw., 4 Q. B. 162. 
 But this should be taken, as a preliminary qucstioil, according to the English 
 practice. Queen v. Eastern Counties Railw., 10 Ad. & Ellis, 531. But in 
 Commonwealth r. Commissioners, 37 Penn. St. 237, a demand was held unne- 
 cessary in the case of public officers neglecting to do their duty. 
 
 Conditions precedent must be shown to have been performed. 
 
 But the mere retjuisition of an act of Parliament that parties claiming dam- 
 ages, by reason of a railway company's works, shall enter into a bond to prose- 
 cute 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 commenc- 
 ing the inquiry, was held not to be a condition precedent, unless required by 
 the company. The Queen v. The North Union Railw., 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 compensation, and no formal demand was necessary'. Ilodgcs on Railways, 
 642, and note; South Yorkshire & Goole Railw., in re 18 Law Jour. (Q. B.) 
 63. A return stating an excuse for non-compliance with a peremptory writ of 
 mandamus, is not admissible. Regina r. Ledgard et ah. Mayor, &c. of Poole, 1 
 
 40
 
 626 MANDAMUS. CH. XXIII. 
 
 * 4. The general nile of the English courts seems to be, that if 
 the first application is denied on account of defects in the affida- 
 vits, not to permit a second application to be made ; and the rule 
 extends to other writs, resting in the discretion of the courtJ 
 
 * 5. But the late Common-law Procedure Acts in England, 1852, 
 1854, apply to this class of writs, and have essentially simplified 
 the proceedings, and rendered them more conformable to reason 
 and justice than in some of the American courts even,* the rule for 
 
 Q. B. 616. Application by the prosecutor for leave to withdraw his plea and 
 argue the case on the return refused. R. v. Mayor of York, 3 Q. B. 550 ; 
 Strong, Petitioner, &c., 20 Pick. 484. 
 
 It is the practice for different persons, in the same or similar situation, to 
 unite in the same application for a mandamus, and it is said but one writ can issue in 
 such a case. Rex v. Montacute, 1 Wm. Black. 60 ; Rex v. Kingston, 1 Strange, 
 678 (note 1) ; Scott v. Morgan, 8 Dowl. P. C. 328. But it seems to be consid- 
 ered that where the rights are distinct and wholly independent, one writ -will 
 not be awarded, but several, and therefore the application should be several. 
 Reg. V. Chester, 5 Mod. 11 ; The case of Andover, 2 Salk. 433 ; Smith v. Erb, 
 4 Gill (Md.), 437; State r, Chester & Evesham, 5 Halst. 292. And the 
 petitioner for a mandamus must set forth clearly his interest in the matter which 
 he presents as the ground of his application. Fleming, ex parte, 2 Wallace 
 (U. S.), 759. 
 
 But several connected matters, which are not repugnant, may be included, by 
 way of defence, in the return. Reg. v. Norwich, 2 Salk. 436 ; Wright v. Faw- 
 cett, 4 Burrow, 2041 ; Rex v. Churchwardens of Taunton, 1 Cowp. 413. 
 
 Upon a mandamus to restore a corporate officer to his functions, the return 
 should specify the grounds of the amotion. Commonwealth v. The Guardians 
 of the Poor of Philadelphia, 6 Serg. & Rawle, 469, unless the officer were re- 
 movable upon the mere motion of the corporation. Rex v. Guardians of Thame, 
 1 Strange, 115. It is not a sufficient reason for setting aside a peremptory man- 
 damus that a previous alternative writ had not issued. Knox County v. Aspin- 
 wall, 24 How. (U. S.) 376. 
 
 ' Queen v. Manchester & Leeds Railw., 8 Ad. & Ell. 413. And the same 
 rule obtains where the first writ is denied because no sufficient demand had been 
 made, and a subsequent demand is made. Ex paHe Thompson, 6 Q. B. 721. 
 But it is apprehended no such rule of practice could be enforced in this countr}', 
 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. Railw., 5 Q. B. 597, 601 ; Regina v. The East Lancashire Railw., 9 Q. B. 
 980. And in Reg. v. Derbyshire, S. & W. Railw., 18 Jur. 1054; s. c. 26 Eng! 
 L. & Eq. 101, the writ was amended, as to the name of the company. Reg. v. 
 Eastern Counties Railw., 2 Railw. C. 836, amendment allowed. Regina v. Jus- 
 tices of Warwickshire, 5 Dowl. 382 ; Reg. p. Jones, 8 Dowl. 307 ; Shaw v. Per- 
 kins, 1 Dowl. (N. S.) 306; Reg. v. Pickles, 3 Q. B. 599, n. ; State v. Hastings, 
 10 Wise. 518, 525. 
 
 8 And by 23 and 24 Victoria, Ch. 126, § 32, costs are to be allowed against 
 * 260, 261
 
 § 151. GENERAL RULES OP LAW GOVERNING THIS REMEDY. 627 
 
 the issuing of the alternative writ being now, in all cases, made 
 absolute in the first instance, and the whole hearing had, upon the 
 return, which in our practice is still further simplified, by admitting 
 the party to make answer to the petition, alleging the grounds of 
 his refusal, which are tried at once.^ 
 
 * 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 
 
 the defendant where an absolute writ ia granted, unless otherwise specially 
 directed by the courts. 
 
 • Walter v. Belding, 24 Vt. 658 ; Rogers, ex parte, 7 Cowen, 626. 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 determine 
 the truth, either upon affidavit or by the verdict of a jury in their discretion, has 
 been pretty extensively adopted, either in practice or by statute. The People 
 V. Beebe, 1 Barb. Sup. Ct. 379 ; The People v. The Conunissioners of Hudson, 
 6 Wend. o59 ; Smith v. Commonwealth, 41 Penn. St. 835. 
 
 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 iirst instance issue 
 the peremptorj' mandamus. Ex parte Jennings, 6 Cow. 618 ; The People v. 
 Throop, 12 Wend. 183. The rule for the peremptory mandamus is sometimes, 
 in the first instance, made nisi, to allow the respondents to consult, if they will 
 comply with the requirements of the judgment. Walter v. Belding, 24 Vt. 668. 
 Or sometimes this is done to allow the parties to arrange the matter, or the court 
 to consider the case. Rex p. Tappenden, 3 E&st, 186. 
 
 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 r. Everett, 1 Gaines, 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 £nglisb 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. 648. But see Reg. c. Hopkins, 1 Q. B. 161. But where 
 an alternative mandamus is issued, and the defendants make their return, and 
 the relators, instead of demurring, take issue upon the material allegations in 
 the return, they thereby admit that, upon its face, the return is a sufficient 
 answer to the case made, by the alternative writ. And if no material fact is dis- 
 proved upon the trial, the defendants will be entitled to a verdict in their favor. 
 The People ex rel. Kipp c. Finger, 24 Barb. 341. The return should set forth 
 an available justification for defendant's refusal to do the act sought to be 
 enforced, and it may allege different independent facts as furnishing such justi- 
 fication. 
 
 •262
 
 628 MANDAMUS. CH. XXIII. 
 
 court issuing the writ, and the remedy there applied, damages and 
 costs being given in the discretion of the court, and execution en- 
 forced. 
 
 7. Costs in all the proceedings for mandamus rest in the dis- 
 cretion of the court, unless controlled by statute. By the English 
 practice it is common to award costs where the application is de- 
 nied, but not always where it prevails.^*^ The more general and 
 tlie 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." 
 
 * 8. Service of such process, and indeed of all process, by sum- 
 mons, in England, is by delivering the original where there is but 
 
 '" Reg. V. Mayor of Bridgenorth, 10 Ad. & El. 66 ; Reg. v. The Eastern 
 Counties Railw., 2 Q. B. 578, 579, and cases cited by counsel. Reg. ». East 
 AngUan Railw., 2 El. & Bl. 475 ; s. c. 22 Eng. L. & Eq. 274. 1 Wm. 4, c. 
 21, § 6, makes costs discretionary with the courts, in England. 23 and 24 
 Victoria, c. 126, § 132. Regina v. St. Saviour, 7 Ad. & Ell. 925. See Regina 
 V. Brighton & South Coast Railw., 10 Law T. N. S. 496. 
 
 " 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. 
 267, unless strong reasons for denying costs exist; 1 Q. B. 751. 
 
 Where the prosecutor omitted to proceed with a mandamus after a return had 
 been made, the Court of Queen's Bench compelled him to elect either to pro- 
 ceed or pay the costs. Reg. v. Mayor of Dartmouth, 2 Dowl. (N. S.) 980. If 
 the qtio warranto, mandamus, or other like writ, is procured by the real party in 
 interest, who is able to pay costs, to be prosecuted by some one, not able to pay 
 costs, the Court of Queen's Bench will grant a rule, requiring the real party to 
 pay costs. Reg. v. Greene, 4 Q. B. 646. See also a general rule, adopted im- 
 mediately after the decision of the last case, Easter Term, 1843, requiring a 
 formal rule, for pajTnent of costs in mandamus, to be drawn up immediately on 
 reading all the affidavits on both sides, 4 Q. B. 653. The rule for costs is de- 
 cided upon the reading only of the affidavits, with reference to which the rule 
 is drawn up. Reg. v. St. Peter's College, 1 Q. B. 314, overruling Rex v. Kirke, 
 6 B. & Ad. 1089. 
 
 The parties are, in the English cases, required to pay costs occasioned by 
 their delay. Reg. v. Mayor of Cambridge, 4 Q. B. 801. But where the judge 
 makes a mistake, the parties who come to defend his ruling, which they are 
 bound to suppose correct, do not pay costs. Reg. v. London & Blackwall Railw., 
 3 Railw. C. 409, and note. 
 
 The party who institutes proceedings 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 Railw., 4 Jurist, 859. See also 
 Morse, Petitioner, 18 Pick. 443. 
 *263
 
 § 151. GENERAL RULES OP LAW GOVERNING THIS REMEDY. 629 
 
 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 mandamus,^ 
 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 plaintifif 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 plaintiff" is personally interested. 
 And if a mandamus is awarded, it may issue peremptorily in the 
 first instance, in aid of the execution, for damages and costs. The 
 form of the writ is very brief, and compliance with its requisition 
 is to be enforced by attachment. The prerogative writ is still re- 
 tained, but its use, and also that of decrees for specific perform- 
 ance in equity, seem to be pretty effectually superseded by these 
 provisions.** 
 
 '* Reg. V. Birmingham & Oxford Railw. Co., 1 EL & Bl. 293 ; s. c. 16 Eng. 
 L. & Eq. 94. The conductor of a railway train in some of the states is regarded 
 a« a " hired agent" of the company, within the meaning of the statute allowing 
 the service of process upon such agent. New Albany & Salem Railw. p. 
 Grooms, 9 Ind. 243. 
 
 " 17 & 18 Vict. ch. 125. 
 
 " A mandamus to a local board of health, constituted under 11 & 12 Victoria, 
 ch. 63, recited that the prosecutor had been injured by the board in the prosecu- 
 tion of its powers under the act ; that he had demanded compensation from the 
 board, and that they had denied all liability, and commanded the board that com- 
 pensation be made to him out of the general or special rate to be levied under 
 the act. The return stated that the board had not denied all liability, and that 
 it was always ready to make compensation, as soon as it Iiad been duly ascer- 
 tained under the act ; that it had not as yet been so ascertained ; nor had the 
 prosecutor as yet taken any steps to ascertain the amount, nor notified the 
 board of the amount of his claim, nor appointed nor given notice to appoint an 
 arbitrator. This return was traversed, generally ; and on the trial it was found 
 that the board had denied all liability, and a verdict was entered for prosecutor. 
 On a motion to enter the venlict on the rest of the return for the board, and to 
 enter judgment for the board, Held, that the mandamus was good, and that the 
 prosecutor was entitled to a verdict on the whole of the return, and to a per- 
 emptory mandamus, on the ground that, as there did not appear by the return
 
 630 MANDAMUS. CH. XXIH. 
 
 •SECTION II. 
 
 Particular cases where Mandamus lies to enforce Duty of 
 Corporations. 
 
 § 152. The opinion of Jervis, Ch. J., in the case of York & 
 North Midland Railway v. Reg.,^ is perhaps the best commentary 
 
 to be any dispute as to the amount, the rest of the allegations in the return, 
 apart from the traverse of denial of liability, were immaterial. Regina r. Burs- 
 lem Board of Health, 5 Jur. N. S. 1394 ; s. c. 1 Ellis & Ellis, 1077, 1088. And gen- 
 erally, where a debt is of such a nature that mandamus will be granted to enforce 
 its payment, it is not necessary that the amount of the debt should be previously 
 ascertained, but such amount may be ascertained in the verdict of the jurj- in 
 the action in which mandamus is claimed. Ward v. Lowndes, 5 Jur. N. S. 
 1124 ; 8. c. in Exch. Cham. 1 L. T. N. S. 268 ; 1 Ellis & Ellis, 940. But see 
 McCoy V. Harnett County, 5 Jones Law, 265. 
 
 ' 1 El. «& Bl. 858; s. c. 18 Eng. L. & Eq. 199. "Upon these facts several 
 points arise : First, does the statute of 1849 cast on the plaintiffs in error a duty to 
 make this railway ? Secondly, if it does not, is there under the circumstances a 
 contract between the plaintiffs in error and the land-owners, which can be enforced 
 by mandamus ? Thirdly, and failing these propositions, does a work, which in its 
 inception was permissive only, become obligator)' by part performance ? These 
 questions will be found upon examination to exhaust the subject, and to compre- 
 hend 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 
 permission 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 lawful 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 substitute 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 express words of the statute of 1849 ; and, indeed, it was not so urged in the 
 ♦ 264
 
 § 152. CASES TO ENFORCE DUTY OP CORPORATIONS. 631 
 
 * we could give upon the present state of tlio English law upon this 
 subject. 
 
 argument ; nor was it so pat by Lord Campbell in his judgment in the court 
 below. But it does not follow, merely because the words of the Sd section are 
 permissive only, that there is no duty cast upon the plaintitTs in error, by the 
 statute taken altogether, to make this railway. This point was not relied upon 
 in this case in the court below, but it was made the distinct ground of a decision 
 in another case in that court (The Queen v. The Lancashire & Yorkshire Railw. 
 Co.), and was much pressed in the argument before us in support of this judgment. 
 "It becomes necessary, therefore, to examine the statute in its general pro- 
 visions, and to consider the grounds on which the Court of Queen's Bench pro- 
 ceeds in the case of the Queen r. The Lancashire & Yorkshire Railw. Co., 1 E. 
 & B, 228 ; 16 Eng. L. & Eq. 328. We agree with Lord Campbell, that the por- 
 tion of the line between Market Weighton and Cherry Burton, to which the 
 mandamus applies, is not to be considered as a separate railway, or even as a 
 separate branch of a railway, but it is to be treated as if in its present direction 
 it had been included in the act of 1846. The acts, then, taken together, in sub- 
 stance, recite that it will be an advantage to the public if a railway is made from 
 York to Beverley, through Market Weighton and Cherrj' Burton, according to 
 certain plans and sections deposited, as required by the practice of parliament, 
 and referred to in the statute, and that the plaintiffs in error are willing to make 
 that railway. On this basis the whole provisions are founded. It has been 
 proved that the work will be advantageous to the public ; it is assumed it will be 
 profitable to the company, and that, therefore, they will willingly undertake it. 
 Accordingly, the company are empowered to make this line. If they do make 
 it they may take land ; but if they do take land they must make compensation. 
 If necessar}', they may turn roads, or divert streams ; but if they do, they must 
 make new roads and new channels for the streams they alter. Similar provisions 
 pervade the whole statute, and throughout the command waits upon the authority, 
 and the distinction between ' may ' and ' must ' is clearly defined. But as it is 
 manifest that such general powers must stop competition, and may, to a certain 
 extent, be injurious to land-owners on the line, the compulsory' power to take 
 land is limited to three years, and tlie time for making the railway to five, after 
 which the powers granted to the company cease, except as to so much of the line 
 as shall have been completed, and the land, if taken by the company, reverts, 
 on certain terms, to the original proprietors. An argument might have been 
 founded on the terms in which the latter provision is contained. By the 10th 
 section of the act of 1849, it is enacted that the railway shall be completed 
 within five years from the passing of this act. That section was not referred to 
 in the argument for this purpose, but it might be said that these words were com- 
 pulsory, and imposed a duty upon the company to make the line. The context 
 of the section, however, when examined, shows that such is not the meaning of 
 it. If not completed within five years, the powers of the act are to expire, 
 except as to so much of such railway as shall have been completed. If the 
 section were intended to be obligatory, it would not contain that exception 
 whiih contemplates that the line may be made in part. It is inconsistent to sup- 
 pose that the legislature would say to the company in the same section, you may 
 
 •265
 
 632 
 
 MANDAMUS. 
 
 CH. XXIII. 
 
 *SECTION III. 
 
 Mandamus the appropriate Remedy to restore Officers and Mem- 
 bers of Corporations to the Discharge of their proper Functions, 
 where they have been deprived of the same through the agency of 
 the Corporation. 
 
 1. The ivrit formerly granted only to restore 
 
 to puldic office. 
 
 2. Now granted in all cases where of value 
 
 and sufficiently permanent. 
 
 3. Not available, where election annual and 
 
 facts traversed. 
 
 4. Claimant must have permanent and vested 
 
 interest. 
 
 § 153. 1. It does not come within the scope of this work to ex- 
 amine with minuteness all questions arising upon the law of * cor- 
 
 complete a part only, if you can, in five years, and then as to that part the 
 powers of the act shall continue, but you must complete the entire line in that 
 time. Upon the whole, therefore, we find no duty cast upon the company 
 to make this railway in any part of this act of parliament. On the contrary, the 
 legislature seems to contemplate the possibility of the railway being made 
 in part, or being totally abandoned. In the latter case the powers expire 
 in three or five years ; in the former, the statute remains in force as to so much 
 of the railway as shall have been completed within that time, and expires as to 
 the residue. This provision is inconsistent with the intention to compel the com- 
 pany to make the entire line, as the consideration for the powers granted by the 
 act. 
 
 But it is said that a railway act is a contract on the part of the company to 
 make the line, and that the public is a party to that contract, and will be ag- 
 grieved if the contract may be repudiated by the company at any time before it 
 is acted upon. Though commonly so spoken of, railway acts, in our opinion, are 
 not contracts, and cannot be construed as such. They are what they purport to 
 be, and no more. They give conditional powers, which, if acted upon, carry 
 with them duties, but which, if not acted upon, are not, either in their nature or 
 by express words, imperative on the companies to which they are granted. 
 Courts of justice ought not to depart from the plain meaning of the words used 
 in acts of parliament. When they do, they make but do not construe the laws. 
 If it had been so intended, the statute should have required the companies to 
 make the line in express terms ; indeed, some railway acts are framed upon this 
 principle ; and to say that there is no diflference between words of requirement 
 and words of authority when found in such acts, is simply to affirm that the 
 legislature does not know the meaning of the commonest expressions. But if 
 we were at liberty to speculate upon the intentions of the legislature when the 
 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 laws, much might be said in favor jof the course which, 
 in our opinion, is taken by the legislature on such subjects. Assuming that the 
 * 266, 267
 
 § 153. BEMEDT TO RESTORE OFFICERS AND MEMBERS. 633 
 
 porations, as affected by the writ of mandamus. But it may be 
 useful to state that this is the appropriate remedy, where any 
 
 line, if made, would be profitable to the public, that benefit may be delayed for 
 five years, during which time competition is suspended. On the other hand, if 
 the line would pay, it probably will be proceeded with, unless the company 
 having the power is incompetent to the task. Individual land-owners may be 
 benefited by the expenditure of capital in their neighborhood, without looking 
 to the ultimate result ; but it is not for the public interest that the work should 
 be undertaken by an incompetent company, nor that it should be begun, if, when 
 made, it would not be remunerative. By leaving the exercise of the powers 
 to the option of the company, the legislature adopts the safest check on abuse in 
 either of those respects, namely, self-interest. It seems to us, therefore, that 
 these statutes do not cast upon the plaintiffs in error the duty, either by express 
 words or by implication ; that we ought to adhere to the plain meaning of the 
 words used by the legislature, which are permissive only, and there is no reason, 
 in policy or otherwise, why we should endeavor to pervert them from their 
 natural meaning. 
 
 " But it is said that the land-owners are in a better situation than the public 
 at large, and that the privilege to take their own lands is the consideration which 
 binds the company to complete the railway. That during the currency of the 
 three years they are deprived of their full rights of ownership, and, if not to be 
 compensated by the construition of the railway, they would in many cases suffer 
 a loss, because, whilst the compulsory power of purchase subsists, they are pre- 
 vented from alienating their lands or houses described in the books of reference, 
 and from applying them to any purposes inconsistent with the claim that may be 
 made to them by the railway company. In truth, they are not prevented from 
 so doing at any time before the notice to take their land is given, if they act 
 bonajide 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, becau.se certain land-owners are subjected 
 to temporarj' inconvenience for the performance of a public good, that therefore 
 the company are bound to make the whole railway. If it were a contract be- 
 tween the land-owners and the company, it would not be just, the one should be 
 bound and the other free. But to assert that there is a contract between the 
 land-owners and the company, is to beg the whole question ; for on this part of 
 the case the question is, whether there is such a contract ? As a matter of fact, 
 we know that in many cases no such actual contract exists. Some few proprie- 
 tors may desire and promote the railway, but many others oppose it, either from 
 disinclination to the project or with a view to make better terms. With the dis- 
 sentients there is no contract, unless it be found in the statute, and to the statute 
 therefore we must look to see what is the obligation that is cast upon the company 
 in respect of the land-owners upon the line. As in the former case, the words 
 upon this subject are permissive only. The company may take land ; if they do 
 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
 
 634 MANDAMUS. CH. XXIH. 
 
 * member or officer of a corporation is unlawfully deprived of his 
 proper agency or function in the affairs of the company through 
 
 be paid for the land is the full compensation mentioned in the act, and also the 
 fbrther consideration of the construction of the entire line of railway from York 
 to Beverley. But if this is the price which the prosecutors are to have, each land- 
 owner is entitled to the same value, and yet by this mandamus the other proprie- 
 tors on the line from Market Weighton to Cherry Burton, who perhaps are hostile 
 to the application, are constrained to sell their lands for an inadequate consid- 
 eration, namely, the full compensation and a part only of the line of railway, to 
 which, by the hj-pothesis, 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 dutj' of making full compensation to each land-owner, as the 
 option of taking the land of each is exercised ; and further, from the section to 
 which we have already referred, which contemplates the total abandonment of 
 the line, or a part performance of it, and makes provision for the return of the 
 land to the original proprietors in certain cases. Upon this part of the case the 
 authority of Lord Eldon, in Blakemore v. The Glamorganshire Canal Company, 
 1 Myl. & K. 154, was much pressed upon the court. Speaking of contracts for 
 private undertakings he says : ' When I look upon these acts of Parliament I re- 
 gard them all in the light of contracts made by the legislature on behalf of every 
 person interested in any thing to be done under them, and I have no hesitation 
 in asserting that, unless that principle be applied in construing statutes of this 
 description, they become instruments of greater oppression than any thing in the 
 whole system of administration under our constitutiorf. Such acts of Parliament 
 have now become extremely numerous, and from their number and operation 
 they so much afiFect individuals, that I apprehend those who come for them to 
 Parliament do, in effect, undertake that they shall do and submit to whatever the 
 legislature empowers and compels them to do, and that they shall do nothing else ; 
 that they shall do and forbear all that they are hereby required to do and for- 
 bear, as well with reference to the interest of the public as with regard to the 
 interest of individuals.' There is nothing in that language to which it is neces- 
 sary to make the least exception ; indeed it is nothing more than an illustration 
 of the obligatory nature of the duty imposed by acts of Parliament, which do im- 
 pose a duty with reference to other persons. In that case the statute had secured 
 to Mr. Blakemore the surplus water, and had commanded the company to do 
 certain things that he might enjoy it. In discussing whether Air. 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 Par- 
 liament do, in effect, undertake that they shall do and submit to whatever the 
 legislature empowers and compels them to do. As we understand them, the 
 words used by Lord Eldon in no respect conflict with the view we take of this 
 case ; but if they mean that words of permission only, when used in the class of 
 ♦268
 
 § 153. REMEDY TO RESTORE OFFICERS AND MEMBERS. 635 
 
 * its agency. This is somewhat questioned by some of the earlier 
 English cases.^ 
 
 cases under consideration, should receive a construction different from their 
 ordinary meaning, because, if construed otherwise, they might work injustice, with 
 great respect for his high authority, we dissent from that proposition. We agree 
 with my brother Alderson, who, in Lee r. Milner, 2 Y. & Coll, 611, said : ' These 
 acts of Parliament have been called parliamentarj' bargains, made with each of 
 the land-owners. Perhaps more correctly they ought to be treated as condi- 
 tional 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 carrj'ing into effect a bargain between the undttrtakers 
 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 Com- 
 pany.' There remains 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 tlie 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 arc of opinion 
 that the mandamus cannot be supported, on the ground that the railway com- 
 pany, 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 
 desire not to be understood as assenting to the proposition of my brother Erie, 
 that many cases may occur where the exercise of some compulsory powers may 
 create a duty to be enforced by mandamus ; and, on the other hand, we do not say 
 that such may not be the law. If a company, empowered by act of parliament 
 to build a bridge over the^Thames, were to build one arch only, it would be well 
 desen'ing consideration whether they could not be indicted for a nuisance in 
 obstructing the river, or for the non-performance of duty in not completing the 
 bridge. It is sufficient to say that in this case there are no circumstances to 
 raise such a duty, if such a duty can be created by the acts of plaintiff him- 
 self. The plaintiffs in error have made the principal portion of their line, and 
 they have abandoned the residue for no corrupt motive, but because Beverley 
 has already sufficient railway communication, and because the residue of the line 
 passes through a countr}' thinly populated, and if made would not be remuner- 
 ative. But it is said that the railway company are not in the situation of pur- 
 chasers 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 ac- 
 quired 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 
 
 • Vaughn v. Company of Gunmakers, 6 Mod. 82 ; S. P. Comb. 46 ; White's 
 case, 6 Mod. 18. 
 
 •269
 
 636 MANDAMUS. CH. XXIII. 
 
 * 2. But a different rule, as to requiring the office to be of a pub- 
 lic nature to justify the writ of mandamus to restore the * party to 
 
 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 
 their estate, and leading neither to nor from any available terminus. The pre- 
 caution against such a wasteful expenditure of capital may, perhaps, safely be 
 left to the self-interest of the company, but if such work were 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 inconvenience without the corresponding advantage of rail- 
 way communication, but in the mean time he would have received full compen- 
 sation in the market value of the land, and for all damage by severance or 
 otherwise, and would receive back the land on more reasonable terms. To be 
 a railway it must- have available termini. When the statutes passed, all persons 
 supposed the termini would be York and Beverley ; and if the arguments be well 
 founded, and the company are bound, if they take the land upon any portion of 
 the railway, to complete the whole line, it would seem to follow that one of the 
 proprietary, by compelling the company to take his land on the line from Market 
 Weighton to Cherry Burton, would thus entitle himself to a mandamus to 
 compel them to make the line from Cherry Burton to Beverley, and the acts 
 having expired, to apply to Parliament for a renewal of their powers for that 
 purpose. But although the termini were originally intended to be York and 
 Beverley, it is plain that the legislature contemplated the possibility of the line 
 being abandoned or being only partially made, because in the one case the powers 
 of the act were to cease, and in the other they were partially continued. An 
 option, therefore, is given to some one. By the course taken the Court of Queen's 
 Bench has exercised that option, and said the line is to be made, not to Beverley, 
 but to Cherry Burton. In our opinion that option is left to the company, and 
 the company having bona fide made an available railway over the land taken, 
 the obligation to the land-owner has, in that respect, been fulfilled. The cases 
 upon this subject are very few, and the absence of authority is very striking, 
 when we remember how many acts have passed in pari materia, not only for 
 railways, but also for bridges and turnpike roads. Notwithstanding the numer- 
 ous occasions on which such proceedings might have been taken, and the mani- 
 fest interest of land-owners to enforce their rights, no instance can be found of 
 an indictment for disobeying such a statute, or of a mandamus for the purpose of 
 enforcing it. If correctly reported. Lord Mansfield determined this point in 
 The King v. The Proprietors of the Birmingham Canal, 2 Wm. B. 708, for he 
 says the act imports only an authority to the proprietors, not a command. They 
 may desert or suspend the whole work, and, it 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 authority for this mandamus. In our opin- 
 ion it does not bear that construction, although it appears that the Court of 
 Queen's Bench took a different view of that authority in the case of The Queen 
 V. The Eastern Counties Railw. Company, 10 Ad. »& Ell. 531, and was inclined 
 to act upon it, and award a mandamus. The writ was subsequently withheld in 
 • 270, 271
 
 § 153. REMEDY TO RESTORE OFFICERS AND MEMBERS. 637 
 
 it, seems to have obtained since the case of Rex v. Baker,^ and the 
 only proper inquiry now is whether the plaintiff has any such val- 
 uable and pernaanent interest in the office or place as to justify the 
 granting of the writ.^ 
 
 * 8. It was held, in an early case* in Massachusetts, that this' 
 remedy could not be rendered available in cases where the office 
 only extended to one year, and the question arising upon the re- 
 turn of the writ was one of fact, the traverse to whicli could not, 
 according to the course of practice in that court, be determined 
 before the term of the office would expire. " The cases, there- 
 fore," say the court, " in which the writ of mandamus may be an 
 adequate remedy, in admitting or restoring to office, seem to be 
 where the office is holden for a longer term than a year, or where 
 the return to the writ will involve merely a question of law, so that, 
 admitting the facts to be true, a peremptory mandamus ought 
 to go." 
 
 4. It was accordingly held, in a very late English case,^ that, as 
 mandamus to reinstate a person in office only lies where the office 
 and its tenure are of a permanent nature, it is not an available 
 remedy for the secretary of a benefit society, who had been dis- 
 missed by a resolution of a meeting of the society. The court 
 here seem to consider that the office must be of such a character 
 that the incumbent has such a vested and permanent interest in 
 the same as that the court could render the operation of the writ 
 of mandamus effective towards restitution, and where its operation 
 is not liable to be countervailed by any counter agency. 
 
 that case on another ground, but Lord Denman seems to have been of opinion 
 that on a fit occasion a mandamus ought to go. That, and the recent cases in 
 the Queen's Bench, now under discussion, are the only cases which bear upon 
 the subject. We feel that Lord Denman and Lord Campbell are high authori- 
 ties upon this or any other matter, and are both equally entitled to the respect 
 of this court ; but we are bound to pronounce our own judgment, and, after the 
 most careful consideration, are of opinion that the judgment ought to be for the 
 plaintiffs in error. The result is, that the judgement of the Court below must be 
 reversed." 
 
 • 3 Burrows, 1267. 
 
 » Angell & Ames, §§ 704, 705. 
 
 * Howard r. Gage, 6 Mass. 462, 464. 
 
 » Evans t. The Heart of Oak Benefit Society, 12 Jur. N. S. 163. 
 
 •272
 
 638 
 
 MANDAMUS. 
 
 CH. XXIII. 
 
 SECTION IV. 
 
 Mandamus to compel Company to complete their Road. 
 
 1. English courts have r&juired this upon a 
 
 general grant. 
 
 2. But these cases otxrruled. Not required 
 
 now, unless undei- peculiar circum- 
 stances. 
 3. Recent case in New York court of appeals. 
 
 § 154. 1. The English courts at one time, it would seem, re- 
 garded a parliamentary grant to a railway company as equiva- 
 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 
 mind the English parliamentary rules, in regard to passing acts * of 
 incorporation of such companies. The promoters are required to 
 prepare plans and sections, and maps of their roads, with the line 
 delineated thereon, so as to show its general co\irse and direction, 
 and to deposit copies of the same with the clerks of the peace, in 
 the office of the Board of Trade, the Private Bill Office, in certain 
 cases at the Board of Admiralty, and with the parish clerk of each 
 parish through which the proposed line passes, before parliament 
 assembles, and the plans are usually referred to in the charter as 
 defining the course of such railway, and thus become binding upon 
 the company, although not so regarded unless so referred to.^ 
 Specific notice too is to be served upon each land proprietor whose 
 land is to be taken.^ There is therefore some plausibility in re- 
 garding the obtaining of a charter under these circumstances as a 
 binding obligation on the part of the company that they will build 
 the road. No act of incorporation of a railway is passed in the 
 British parliament until three-fourths of the estimated outlay is 
 subscribed. Accordingly, in some of the earlier cases upon this 
 subject, after considerable discussion and examination, it is laid 
 down,2 that when a railway company have obtained an act of par- 
 
 * Hodges on Railways, 18, and notes ; North British Railw. Company v. Tod, 
 6 Bell Ap. Cas. 184 ; s. c. 4 Railw. Cas, 449 ; Reg. v. The Caledonian Railw. 
 Co., 3 Eng. L. & Eq. 285. 
 
 * The Queen v. The York & North Midland Railw. Co., 16 Q. B. 19 ; s. c. 
 16 Eng. L. & Eq. 299. This case was decided by a divided court, Erie, J., dis- 
 senting, whose opinion 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 Glamorgan- 
 shire Canal Navigation, 1 Mylne & Keen, 154. See also Reg. v. Ambergate, &c. 
 Railw. Co., 23 Law Times, 246 ; s. c. 17 Q. B. 362, 967 ; Reg. v. Eastern Counties 
 
 *273
 
 § 154. COMPEL COMPANY TO COMPLETE THEIR ROAD. 639 
 
 liament, reciting that the proposed railway will he beneficial to the 
 public, aiid 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 lawful 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 circum- 
 stances 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 sufllicient 
 funds to build the road, and that the period for exercising 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 elab- 
 orate opinion delivered by Jervis, Ch. J., of the Common Bench, 
 reversing the judgment of the Queen's Bench, chiefly on the ground 
 that there was no implied obligation upon the company, either be- 
 fore or after entering upon the work, to complete it.^ 
 
 Railw., 1 Railw. C. 609. 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 ; 8. c. 10 Ad. & El. 631 ; 2 Q. B. 347, 669. 
 
 ' Reg. V. The Lancashire and Yorkshire Railw. Co., 7 Railw. Cas. 266 ; s. C. 
 16 Eng. L. & Etj. 327. 
 
 * Reg. V. Great Western Railw. Co., 16 Eng. Law & Eq. 341. The extreme 
 to which this ver}' 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. 
 
 * York & North Midland Railw. Co. c. Reg., 1 El. & Bl. ^58 ; 8. c. 18 Eng. 
 L. & Eq. 199 ; Great Western Railw. Co. v. Same, 1 El. & Bl. 874. These de- 
 cisions, rendered (in April, 18.")3), one of which is given at length in the last 
 section, seem to have been acquiesced in, and they certainly conform to what has 
 ever been regarded as the law upon that subject in this country. And the same 
 principle was maintained in Scottish Northeastern Railw. r. Stewart, 3 McQueen's 
 H. L. Cases, 382 ; 8. c. 5 Jur. N, S. 607. But see Lind v. Isle of Wight Ferry 
 Co., 7 Law Times, N. S. 416 ; Mason v. Stokes Bay Pier & Railw. Co., 11 W. 
 
 •274
 
 640 
 
 MANDAMUS. 
 
 eg. XXIII. 
 
 3. This question arose and was examined in the courts of New 
 York, somewhat, in a late case,^ where it was held that a railway 
 corporation, which has completed its road between the termini 
 named in the charter, forfeits its franchise by * abandoning or 
 ceasing to operate a part of the route. The remedy, however, in 
 such cases, is not by injunction at the suit of the public, but by 
 mandamus or indictment at the election of the state, or by proceed- 
 ing to annul the charter of the corporation. 
 
 It is here said, that it seems that the corporation owes a duty 
 to the public to exercise the franchise granted to it, and that it 
 cannot abandon a portion of its road and incur a forfeiture at its 
 mere pleasure. 
 
 SECTION V. 
 
 In what Cases this is the 'proper Remedy. 
 
 1. Where the act is imperative upon the com- 
 
 pany to build road. 
 
 2. Mandamus more proper remedy than in- 
 
 junction. 
 
 3. Commissioners of public works not liable 
 
 to this lorit. 
 
 4. Public duties of corporations may be so en- 
 
 forced. 
 6. Facts tried by jury. Instances of this 
 remedy. 
 
 6. Cannot be substituted for certiorari, 
 when that is taken awny. 
 
 7. Requiring costs to be allowed. 
 
 8. Other instances of its application. 
 
 9. Lies where the duty is clear, and no other 
 remedy. 
 
 10. Not awarded to control legal discretion. 
 
 11. Does not lie to try the legality of an elec- 
 tion. 
 
 12. Lies to compel transfer of stock. 
 
 § 155. 1. But although it must be regarded as now definitively 
 settled that the writ will not lie, in any case, coming within the 
 categories laid down in the foregoing opinion of Jervis, Ch. J., 
 yet wliere the act of the legislature is imperative upon the com- 
 pany to build their road, this duty will still be enforced by man- 
 damus.^ 
 
 K. 80. It is here held, that where a notice from a railway company to take 
 lands for the purposes of their undertaking has been followed by an award fix- 
 ing the amount of purchase and compensation-money, the court has jurisdiction 
 to compel the company to complete the purchase. S. P. Metropolitan Railw. 
 V. Woodhouse, 11 Jur. N. S. 296; s. c. 34 L. J., Ch. 297. But see Quicke ex 
 parte, 13 W. R. 924; 8. c. 12 L. T. N. S. 113. 
 
 6 The People v. The Albany & Vermont Railw., 24 N. Y. 261; s. c. 37 
 Barb. 216. 
 
 ' Hodges on Railways, 665, in note ; Great Western Railw. Company v. Reg. 
 Excheq. Ch. 1853. 1 El. & Bl. 874; s. c. 18 English Law & Eq. 211. The 
 land-owners are so far interested in the building of a railway as to be entitled 
 *275
 
 § 155. IN WHAT CASES THIS IS THE PROPER REMEDY. 641 
 
 * 2. But it has been held that such public duty cannot be enforced 
 by injunction, at the suit of the attorney-general.* Corporations 
 have for a very long time been compelled, by writ of mandamus, 
 to perform duties imposed by statute.' A turnpike company was 
 compelled to fence its road where it passed through the land of 
 private persons, and it was held no excuse that the company had 
 made satisfaction for the damages awarded to the land-owner, or 
 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 For- 
 
 to bring the petition, and different owners of land may join. Reg. v. York and 
 North Midland Railw. IG Eng, L. & Eq. 299. But it has been held, that a land- 
 owner could not apply for an injunction to restrain a railway company from ap- 
 plying for an act of the legislature repealing a former act, and to restrain them 
 from paying back deposits. Hodges on Railways, 657, note ; Anstruther v. 
 East Fife Railw., 1 McQueen, Ho. Lds. 98. Nor can a land-owner maintain 
 a suit in equity against a company for not completing their line, in pursuance 
 of tljeir act of incorporation. Heathcote v. North Staffordshire Railw. Com- 
 pany, 6 Railw. C. 358. The Lord Chancellor here held, reversing the opinion 
 of the Vice-Chancellor, that in such case, a court of equity will leave the party 
 to his legal rights. Reg. v. Dundalk & Enniskillen Railw., 6 L, T. N. S. 26; 
 Lind V. Isle of Wight Ferry Co., 7 L. T. N. S. 416 ; State v. Hartford and 
 New Haven Railw., 29 Conn, 638. And mandamus is the proper remedy by 
 which to compel a canal company to bridge over a private way which it in- 
 tersects. Habersham v. Savannah, &c. Canal Co., 26 Georgia, 665. 
 
 * Attorney-General v. Birmingham & Oxford Junction Railw., and two other 
 Companies, 3 Mac. & G. 463 ; 8. c. 7 Eng. L. & Eq. 283. 
 
 ' The Hartford & New Haven Railway Company was chartered to construct 
 and operate a railroad from Hartford to the navigable waters of the harbor of 
 New Haven. A steamboat company was afterwards chartered to run in con- 
 nection with it to New York ; and the railway and steamboat line constituted a 
 route that was of great convenience to the public. After the construction of the 
 road and the use of it in connection with the steamboat line for several years, 
 the railroad company constructed a track diverging from its original track at a 
 point a mile and a half from tide-water and running to the station of the New 
 York & New Haven railway company, in the city of New Haven, and discon- 
 tinued the running of its passenger trains to its original terminus at tide-water. 
 This change incommoded travellers who wished to' pass by the steamboat route, 
 of whom there were many. Held, that a mandamus ought to be issued to com- 
 pel the company to run passenger trains to its original terminus, and that the 
 mandamus was properly applied for by the attorney for the state. State v. Hart- 
 ford & New Haven Railw., 29 Conn. 638. 
 
 * Reg. V. Trustees Luton Roads, 1 Q. B. 860. Lord Denman, Ch. J., said, 
 '* The law orders these parties to perform the duty if they build the road." Pai- 
 teson, J., said, " If they had not adequate funds they ought not to have made the 
 road." 
 
 41 • 276
 
 642 MANDAMUS. CH. XXIII. 
 
 ests, who gave notice that they intended to take certain lands, in 
 order to ascertain if they could be obtained at a certain price, and 
 fuidiug, by the claim of the land-owners, that the land could not 
 be obtained, so as to bring the amount to be expended within the 
 legislative limit, and the funds at the disposal of the •commission- 
 ers, abandoned their notice, could not be compelled by mandamus 
 to take the land, such commissioners acting in a public capacity, 
 although the rule is otherwise as to private railway companies.^ 
 
 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 
 alterations in the sewers of a city ; and where, in the act of parlia- 
 ment, this duty is defined, " to make such alterations and amend- 
 ments in the sewers as may be necessary in consequence of the 
 floating of the harbor," it was held this was a proper form for the 
 command of the writ.'^ Also to restore a highway, intersected by 
 a railway, to its former width.^ 
 
 * Reg. ». Commissioners of Woods and Forests, 15 Q. B. 761 ; Ante, § 88. 
 
 « Reg. r. Bristol Dock Company, 1 Railw. C. 548, 2 Q. B. 64, 2 Railw. C. 
 699. A return that the law imposed no such duty, but that they had per- 
 formed it, "as near as circumstances permitted," is insufficient, as being a tra- 
 verse of the law, or an evasion of the writ. Reg. v. Caledonian Railw., 16 Q. 
 B. 19 ; 8. c. 3 Eng. L. & Eq. 285. 
 
 ' The King v. The Bristol Dock Company, 6 Bam. & Cress. 181. Man- 
 damus is the appropriate remedy to compel a delinquent municipal corporation 
 to discharge its liabilities under a subscription to stock of, or a loan of its credit 
 to, a railroad company. Commonwealth v. Perkins, 43 Penn. St. 400. A dec- 
 laration for a mandamus to levy a rate to pay a debt is good, though it does 
 not state the amount of the debt. Ward v. Lowndes, 6 Jur. N. S. 247 ; s. c. 
 29 L. J., Q, B. 40; Ellis & Ellis, 940. But see McCoy v. Harnett Countj', 
 6 Jones Law, 265. But in Austin, ex parte, 13 Law Times, N. S. 443, it was 
 held that the court will not in the first instance grant a rule for a mandamus 
 calling on a public order to make a rate for the payment of costs due to a suc- 
 cessful appeal against a rate which had been quashed at quarter sessions. 
 After the order for paj-ment of costs is found good, if it is still disobeyed, a 
 mandamus may be called for. Austin, ex patie, sttpra. See People v. Mead, 
 24 N. Y. 114. 
 
 Mandamus wiU lie to compel a town committee to pay their damages to land- 
 owners for lands taken for a highway. Minhinnah v. Haines, 5 Dutch, 388 ; 
 State r. Keokuk, 9 Iowa, 438. And see State v. County Judge, 12 Iowa, 237; 
 State V. Davenport, id. 335 ; Knox County v. Aspinwall, 24 How. (U. S.) 376 ; 
 Uniontown v. Commonwealth, 34 Penn. St. 293 ; Commonwealth v. Pittsburg, 
 id. 496. 
 
 » Reg. V. Birmingham & Gloucester Railw., 2 Railw. C. 694 ; 2 Q. B. 47 ; Reg. 
 ♦277
 
 § 155. IN WHAT CASES THIS IS THE PROPER REMEDY. 643 
 
 5. Ill 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 land damages, after giving 
 notice to treat." So the sheriff or officer who holds the inquisition, 
 may be compelled to proceed where he has no legal excuse, as 
 where such officer assumed to direct a verdict against the claim, on 
 the ground the applicant could not recover.^^ 
 
 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 dam- 
 ages, including witnesses, attendance by attorney at the inquest, 
 
 p. Manchester & L. Railw., 1 Railw. C. 523; 3 Q. B. 528; 2 Railw. C. 711. 
 But in some cases it is requisite the dut}' should be strictly defined. Reg. ». The 
 Eastern Counties Railw., 3 Railw. C. 22 ; 2 Q. B. 569. 
 
 ' Reg. r. London *& Birmingham Railw., 1 Railw. C. 317 ; Reg. v. Manch. & 
 Leeds Railw., 3 Q. B. 628; 8. c. 2 Railw. C. 711; Reg. p. Newcastle-upon- 
 Tj-ne, 1 East, 114. 
 
 " Clarke r. L. & N. Union Canal, 6 Q. B. 898. But in this case judgment 
 was given for defendant, by reason of the " insufficiency of the writ." 
 
 " Ante, §§ 88, 99, et seq. and cases there cited. 
 
 '* Walker r. The London & Blackwall Railw., 3 Q. B. 744. In Carpenter 
 p. Bristol, 21 Pick. 258, which was where county commissioners refused to assess 
 damages sustained in consetjuence 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. ch. 39, § 56 : Held, that 
 the party was entitled to a jury to revise, and that a mandamus would lie to com- 
 pel the commissioners to grant a warrant. 
 
 The court say, " Where application was made to county commissioners to esti- 
 mate damages caused by the laying out of a railway, turnpike, or highway, the duty 
 required of them would be a judicial duty. If they refused or neglected to 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, & Quincy Railw. p. Wilson, 17 111. 123, it was held, that 
 upon application to a judge, to appoint commissioners to condemn land for the 
 use of a railway, he is compellable to act, if a case is made under the statute. 
 His duty is ministerial, and not judicial, and a mandamus was accordingly- 
 awarded. 
 
 " The King p. The Justices of West Riding of Yorkshire, 1 Ad. & Ell. 563. 
 " The King v. The Justices of the City of York, 1 Ad. & Ell. 828 ; Reg. p. 
 Sheriff of Warwickshire, 2 Railw. C. 661. 
 
 •278
 
 644 MANDAMUS. CH. XXTH. 
 
 conferences and briefs, but not the expenses of surveyors, as 
 such. 
 
 *8. And where the commissioners refused to assess the value 
 of land taken for a railway, on the ground that the prosecutor 
 had no title to the same, it was held that he is entitled to have 
 their judgment revised by a jury, and a mandamus will lie, on his 
 behalf, to compel the commissioners to grant a warrant for a jury.^ 
 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 implica- 
 tion, and there is no other specific or adequate remedy, the writ of 
 mandamus will be awarded. But if the charter, or the general 
 law of the state, afibrds any other specific and adequate remedy, it 
 must be pursued. ^^ 
 
 10. 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 
 
 " Carpenter v. Bristol, 21 Pick. 258. See Smith v. Boston, 1 Gray, 72 ; s. p. 
 Fotherby r. Met. Railw., Law Rep. 2 C. P. 188. 
 
 " Whitmarsh Township r. Phil., Ger., & N. Railw. Co., 8 Watts & Serg. 365. 
 
 " Cambridge & Somerville v. Charlestown Branch Railw., 7 Met. 70. 
 
 '^ Rex V. Nottingham Old Waterworks, 6 Ad. & El. 355 ; Dundalk Western 
 Railw. V. Tapster, 1 Q. B. 667 ; Corregal v. London & Blackwall Railw., 3 
 Railw. C. 411 ; The People v. The Corporation of Xew York, 3 Johns. Cas. 79. 
 It seems to be considered, that quo warranto will not lie to an eleemosynarj- cor- 
 poration, 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 r. Bank of 
 England, Douglas, 524 ; Shipley v. Mechanics' Bank, 10 Johns. 484 ; The State 
 r. Holiday, 3 Halst. 205 : Asylum v. Phenix Bank, 4 Conn. 172. Unless the 
 rights of the stockholders in this respect are restricted by the charter of the cor- 
 poration, or by its rules and by-laws passed in conformity thereto, stockholders 
 have a right of access at reasonable hours to the proper sources of information, 
 to know how the affairs of the corporation are conducted ; and if such access is 
 refused to them, mandamus is the appropriate remedy to enforce this right. 
 Cockbum v. Union Bank, 13 La. Ann. 289, See also People v. Haws, 34 Barb. 
 69 ; Lamb r. Lynd, 44 Penn. St. 336. But see Briggs, ex parte, 1 Ellis & Ellis, 
 881 ; s. c. 28 L. J., Q. B. 272, where the assertion of the right to inspect ac- 
 counts is somewhat modified. 
 
 " Rex V. Afchbishop of Canterbury, 8 East, 213 ; People c. Collins, 19 Wend. 
 66 ; 1 Wend. 318 ; Napier, ex parte, 18 Q. B. 692 ; s. c. 12 Eng. L. & Eq. 461. 
 • 279
 
 § 155. IN WHAT CASES THIS IS THE PROPER REMEDY. 645 
 
 never awarded to compel the officers, or visitors of a corporation, 
 * who have discretionary powers, to exercise such powers according 
 to tlie 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.^ And it may be laid down as a general rule, 
 that where any officers, or boards, have a legitimate discretion, 
 and are acting within their appropriate jurisdiction, they cannot 
 be controlled in their action by mandamus, issuing from a su- 
 perior court.^^ If the visitor or trustee be himself the party in- 
 terested in the exercise of the function, it is said to form an 
 exception.^ 
 
 * Rex r. Bishop of Ely, 1 Wm. Black. 81 ; Reg. r. Dean and Chapter of 
 Chester, 15 Q. B. 513; Appleford's case, 1 Mod. 82. Lord Hale's opinion 
 cited with approbation by Lord Campbell, Ch. J., 15 Q. B. 520; Rex ». Bishop 
 of Ely, 2 T. R. 290; Murdock's Appeal, 7 Pick. 322; Parker, Ch. J., Attala 
 County r. Grant, 9 Sm. & Mar. 77 ; Towle v. The State, 3 Florida, 202 ; 2 Q. 
 B. 433; Ex parte Benson, 7 Cow. 363, and cases cited, 3 Binney, 273; 5 id. 
 87 ; 6 id. 456 ; 5 id. 536 ; 2 Penn. 517 ; 5 Wend. 114 ; 10 Pick. 244 ; 13 Pick. 
 225; 24 id. 343; People c. Columbia C. P.. 1 Wend. 297. 
 
 But the officers of a municipal corporation will be compelled to hold a court 
 for the revision of the list of burgesses, notwithstanding the time for holding the 
 same, in compliance with the terms of the statute, had elapsed, and notwith- 
 standing the mayor, at the time of granting the mandamus, was not the same 
 person who acted at the court. Regina ». Mayor and Assessors of Rochester, 
 7 El. & Bl. 910 ; 8. c. 30 Law Times, 73. 
 
 But it was held, in Heffner v. Commonwealth, 28 Penn. St. 108, that the 
 plaintiff in the proceeding must show a specific legal right, which had been 
 infringed ; and that the damage, which the petitioner suffered, in common with 
 other citizens, by the neglect of a municipal corporation to lay out an alley, 
 although, by reason of his land lying adjacent, he was specially exposed to suffer 
 loss by the neglect, would not entitle him to demand the writ : that the injury 
 sustained by the 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 commis- 
 sioners 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 man- 
 damus. Morse, Petitioner, 18 Pick. 448. And the court will not grant a man- 
 damus requiring parish officers to receive a pauper in obedience to an order of re- 
 moval, the proper course being by indictment. Downton, ex parte, 2 El. & Bl. 856. 
 
 " Waterbury r. Hart., Prov., & F. Railw. Co., 27 Conn. 146. 
 
 *• Reg. r. Dean and Chapter of Rochester, 17 Q. B. 1 ; s. c. 6 Eng. L. & Eq. 
 269. 
 
 •280
 
 646 
 
 MANDAMUS. 
 
 CH. xxni. 
 
 * 11. But in a recent case,^ it is said to be an inflexible rule of 
 law, that where a person has been de facto elected to a corporate 
 office, and has accepted and acted in the office, the validity of 
 the election and the title to the office can only be tried by proceed- 
 ing on a quo warranto information. A mandamus will not lie, 
 unless the election can be shown to be merely colorable. 
 
 But where the right is clear, or where the old board refuse to 
 surrender to the newly elected one, without any color of excuse, 
 the new board may be put in possession of the insignia or func- 
 tions of office by writ of mandamus, or, as held in some of the 
 states, by bill in equity.^ 
 
 12. And this is the proper remedy to compel a corporation to 
 allow the transfer of stock upon their books ,^ or the company 
 may be compelled to pay damages for such refusal by an action at 
 law.26 
 
 SECTION VI. 
 Proper Excuses, or Returns to the Writ. 
 
 1. Company may return that powers had ex- 
 
 pired at date of writ. 
 
 2. May show want of funds to perform duty. 
 
 3. But cannot show that road is not neces- 
 
 sary, or would not be remunerative. 
 
 4. May quash part of return, and require 
 
 answer to remainder. 
 6. Counsel for writ entitled to begin and dose. 
 
 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 writ. 
 
 § 156. 1. It seems to be an unquestionable answer to the writ 
 of mandamus to compel the company to complete their road, 
 that the time for taking lands under the act had expired at the 
 time of issuing the alternative writ, so that it had become * impos- 
 sible to build the road, as required in the writ.^ But where, at the 
 
 " Reg. V. Mayor, &c. of Chester, 5 El. & Bl. 531 ; s. c. 34 Eng. L. & Eq. 69. 
 
 " Dart V. Houston, 22 Ga. 506. 
 
 ** Helm V. Swiggett, 12 Ind. 194. But where a shareholder executed a 
 transfer of his shares, which he took together with the certificate of his shares to 
 the company's office for registration, and left the transfer, but refused to leave 
 the certificate for the inspection of the directors, it was held that the court 
 would not compel the company to register the transfer. East Wheal Martha 
 Mining Company in re, 33 Beav. 119. 
 
 ' Reg. V. London & N. W. Railw., 16 Q. B. 864 ; s. c. 6 Eng. L. & Eq. 220, 
 * 281, 282
 
 § 156. PROPER EXCUSES, OR RETURNS TO THE WRIT. 647 
 
 time of the service of the alternative mandamus, the company had 
 time to institute compulsory proceedings for taking lands, it was 
 held, that if, instead of doing so, they attempted to defend the writ, 
 and failed, it was at their peril, and the court would not excuse 
 them, upon the ground that in the mean time their compulsory 
 powers had expired.* 
 
 2. And where it was attempted to defend against the writ, on 
 the ground that it was not shown that the company had funds, the 
 court said, in the last case referred to : " We shall presume that 
 the company have funds." But it would seem that the want of 
 funds, and of the ability to obtain them, if shown on the return to 
 the alternative mandamus, might be an excuse.* * And the com- 
 
 denying the authority of Reg. r. Birmingham & Gloucester Railw., 2 Q. B. 47, 
 upon this point, as justifying the writ. And in the former case it was held, the 
 prosecutors were guilty of laches in not sooner applying for the writ. But a 
 plea that the cause of action did not accrue within six years, is a bad plea to a 
 declaration for a mandamus, as the) statute of limitations does not bar an action 
 for such a writ. Ward r. Lowndes, 6 Jur. N. S. 247 ; s. c. 1 Ellis & Ellis, 940, 
 956 ; 2 id. 419 ; 29 L. J. Q. B. 40. 
 
 • Reg. P. York, Newcastle, & Berwick Railw., 16 Q. B. 886; s. c. 6 Eng. 
 L. & Eq. 259; Reg. v. Lancashire & Yorkshire Railw., 16 Q. B. 906; 8. c. 
 6 Eng Law & Eq. 265; Reg. r. G. W. Railw., 1 El. & Bl. 263, 744; 8. c. 18 
 Eng. L. & Eq. 364. In this case it was held, that the return must show that 
 the company's compulsory powers for taking land had expired, and that they 
 could not obtain the necessary land without exercising those powers. • Where, 
 on motion for mandamus to compel the company to build a bridge, it was stated 
 on behalf of the company tliat they could not build it without purchasing 
 additional land, and that their powers for that purpose had expired, and the pros- 
 ecutor stated that they could build it without taking additional land, it was held 
 that a writ of mandamus should issue to the company, and that they might 
 return their inability from want of power to purchase land. Regina r. Dundalk 
 & Enniskillen Railw., 5 L. T. N. S. 25. Where mandamus was issued to a rail- 
 way, reciting that premises in the occupation of B. had been injuriously affected 
 by the works of the company, and that the company having declined to join in 
 the appointment of an arbitrator to estimate the damage to B., he had appointed 
 an arbitrator, who had duly made his award, and commanding the company to 
 take up his award, and the company returned that B. also occupied other lands 
 that were taken by the company, and that, before the execution of their works, 
 it was agreed between him and the company that the company should pay to him 
 a certain sum in satisfaction of the lands so taken, and the premises so inju- 
 riously affected, this was held a good return. Regina ». West Midland Railw., 
 11 W. R. 857, in the Queen's Bench. 
 
 ' Lord CampbeU, Ch. J., in Reg. v. London & N. W. Railw., 16 Q. B. 864; 
 8. c. 6 Eng. L. & Eq. 220; Reg. v. Ambergate, &c. Railw., 1 El. & Bl. 372; 
 8. C. 18 Eng. L. & Eq. 222. In Reg. v. Eastern Counties Railw., 10 Ad. & 
 
 •283
 
 648 MANDAMD8. CH. XXIIL 
 
 pany 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 
 unnecessary, or that it would nojb 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 mandamus, that they were as convenient to the public as 
 the original road, or as they could be made, in execution of the 
 powers of the act, and that to widen them to the dimensions de- 
 fined in the act would require more land, and that their powers for 
 taking land compulsorily had expired before they were called upon 
 to widen these approaches, is bad.^ 
 
 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.^*^ 
 
 Ellis, .531, it was considered no objection to granting the writ that the company- 
 had not the requisite funds, and could not raise them, without a new act. 
 
 * Reg. V. Ambergate, &c. Railw., 1 El. & Bl. 372 ; s. c. 18 Eng. L. & Eq. 222. 
 
 * Reg. V. York & N. M. Railw., 16 Eng. Law & Eq. 299, not reversed upon 
 these points. Reg. v. L. & Y. Railw., 7 Railw. Cas. 266; s. c, 16 Eng. L. & 
 Eq. 327. 
 
 ' 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. Pancras, 6 Ad. & Ellis, 314 ; State». Directors of Bank, 28 Vt. 594. 
 
 * Clarke v. Leicestershire & Northamptonshire Canal Co., 6 Q. B. 898 ; s. c. 
 3 Railw. C. 730. 
 
 » Reg. V. Birmingham & Gloucester Railw., 2 Q. B. 47 ; 3 id. 223 ; 2 Railw. 
 C. 694 ; Rex v. Ouse Bank Commissioners, 3 Ad. & Ellis, 644. 
 
 " Reg. V. 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 
 sums was due, and the inquiry was not finished in regard to the other. The 
 •284
 
 § 157. WRIT REQUIRING TOO MUCH. 649 
 
 8. The court will not quash a return summarily, or order it taken 
 off the* file, unless it is frivolous, so as to be an obvious insult, and 
 contempt of court.*^ 
 
 9. No excuse for non-compliance with a peremptory writ of 
 mandamus is admissible.^* It is no ground of objection to a man- 
 damus, that a requisition is made on parties in the alternative, to 
 do one of three things, if the duty enjoined by the act of parlia- 
 ment forms one of them, and there has been a general refusal to 
 comply with the requisition.^^ 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 VII. 
 
 Where the aUemative Writ requires too much, it is hadi for that 
 which it might have maintained. 
 
 § 157. It seems to be well settled in the English practice, that 
 if the writ issue, in the first instance, for some things which de- 
 fendant is not bound to do, it cannot be supported, even as to 
 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 
 
 court refused to grant a peremptory writ for the payment of the sum, about 
 which tlie controversy was ended. 
 
 » Reg. V. Payn, 3 Nev. & P. 165 ; The King r. Round, 6 Nev. & M. 427. 
 But the return to a writ of mandamus must be very minute in showing why the 
 party did not do what he was commanded to do. Reg. v. Port of Southampton, 
 1 El. B. & S. 5 ; 8. c. 7 Jur. N. S. 990 ; 30 L. J. Q. B. 244. 
 
 " Reg. r. Mayor of Poole, 1 Q. B. 616. But after judgment for the crown, 
 on a return to a writ of mandamus, the defendants having voluntarily, and with 
 the prosecutor^s assent, done the act commanded, the court will quash a peremp- 
 tory writ of mandamus as unnecessary, and an abuse of the process of the court. 
 Reg. ». Saddlers' Company, 3 El. & El. 42 ; 8. c. 10 Ho. Lds. Cas. 404 ; 33 L. J. 
 Q. B. 68. " Reg v. St. Margarets, Leicester, 8 Ad. & Ellis, 889. 
 
 » Reg. V. Caledonian Railw., 16 Q. B. 19; 8. c, 8 Eng. L. & Eq. 286; Reg. 
 r. East & West India Docks & Birm. June. Railw., 2 El. & Bl. 466; 8. c. 22 
 Eng. L. & Eq. 113. 
 
 » Reg. p. York & North M. Railw., 16 Eng. L. & Eq. 299. This case waa 
 reversed in Exchequer Chamber upon other grounds. 
 
 • . •285
 
 650 
 
 MANDAMUS. 
 
 CH. XXIII. 
 
 be done to comply with the statute, it will be quashed, notwith- 
 standing the party might have been entitled to this remedy to a 
 certain extent.^ 
 
 SECTION VIII. 
 
 Enforcing Payment of Money awarded against Railways. 
 
 1. The enforcement of payment of money 
 
 against corporations by mandamus. 
 
 2. Where debt will lie, the party not entitled 
 
 to mandamus. 
 
 3. Mandamus proper to compel payment of 
 
 compensation under statute. 
 
 4. Mandamus not allowed in matters of equity 
 jurisdiction. 
 
 Contracts of company not under seal en- 
 forced by mandamus. 
 
 Where a statute imposes a specific duty, 
 an action will lie. 
 
 5. 
 
 § 158. 1. It seems to have been the more general practice to 
 enforce the payment of money awarded against a corporation, in 
 pursuance of a statute duty, by mandamus, where no other spe- 
 cific remedy is provided.^ 
 
 ^ York & North Midland Railw. v. Milner, 3 Railw. C. 774, reversing, in the 
 Exchequer Chamber, The Queen v. York & N. M. Railw., 3 Railw. C. 764. 
 
 ' The King v. Nottingham Old Waterworks, 6 Ad. & Ellis, 355 ; Rex ». 
 Trustees of Swansea Harbor, 8 Ad. & EUis, 439. In this case one party moved 
 for a certioran with a view to quash the proceedings, and the other for a manda- 
 mus to carry them into effect. The rule for the former was discharged, and for 
 the latter made absolute. Reg. v. Deptford Improvement Co., 8 Ad. & Ellis, 
 910. Where a city council is authorized and required by law to levy and col- 
 lect a tax upon the real and personal property of the city, sufficient to pay the 
 interest upon bonds issued by the city in payment of a subscription to the stock 
 of a railway company, and the council refuses to do so, and there is no specific 
 legal remedy provided for such refusal, mandamus may be issued to compel 
 them to perform that duty, at the instance of holders to whom the bonds have 
 passed from the company. An express or explicit refusal in terms is not neces- 
 sary to put the respondents in fault ; it will be sufficient that their conduct makes 
 it clear that they do not intend to do the act required. The writ, in such case, 
 may be applied for by any of the bondholders ; and it is not necessary that all 
 the bondholders should be parties to it. Nor is it necessary to make the railway 
 corporation, to which the bonds were originally executed, or the tax-payers of 
 the city, or the commonwealth, parties to the bills, in Kentucky. And it is no 
 objection to the issuing of the writ that an action has been brought against the 
 city, upon some of the coupons, such action having been dismissed before judg- 
 ment, on the petition for mandamus. Maddox v. Graham, 2 Met. (Ky.) 66. 
 
 It is laid down in the above case, that a proceeding for a mandamus against 
 the city council is virtually a proceeding against the corporation, and the judg- 
 ment is obligatory upon the members of the common council who may be in 
 office at the time of its rendition. And a change in the membership of this coun- 
 cil does not so change the parties as to abate the proceeding. lb.
 
 § 158. ENFORCING PAYMENT AWARDED AGAINST RAILWAYS. 651 
 
 * 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 decrease of tolls ; it 
 was held that debt will lie for such purchase, and that mandamus 
 is no more effectual remedy and ought not to be granted.^ If the 
 party have no right to execution, upon an award, mandamus will 
 be awarded, otherwise not.* 
 
 3. So the court will not enforce an ordinary matter of contract 
 or right, upon which action lies in the common-law courts, as to 
 compel common carriers to perform their public duties, or special 
 contracts,^ 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, * although the 
 party may claim that the company went beyond their powers, and 
 thus committed a wrong for which the proper remedy is an action.^ 
 
 4. Nor will mandamus lie where the proper remedy is in equity,^ 
 
 * Corrigal v. The London & Blackwall Railw., 6 Man. & Gr. 219. 
 
 ' Reg. r. The Hull & Selby Railw., 6 Q. B. 70; Williams ». 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. Railw. r. Gattke, 3 Mac. & 6. 166 ; 
 8. c. 3 Eng. L. & Eq. 59. 
 
 * Rex r. St. Catherine's Dock Co., 4 Bam. & Ad. 360; Corpe r. Glyn, 8 B. 
 & Ad. 801 ; Reg. r. The Victoria Park Co., 1 Q. B. 288. And in this case Den- 
 man, Ch. J., says, the court should not go beyond our extraordinary interposi- 
 tion by mandamus, to rt-quire a corporation to make a call upon the shareholders, 
 to pay debts, where the legislature had intrusted them with that power, and they 
 had no standing capitaL 
 
 * Ex parte Bobbins, 7 Dowl. P. Cases, 666. 
 
 * Reg. r. North Mid. Railw., 2 Railw. C. 1 ; 11 Ad. & Ellis, 955 ; Thicknesse 
 V. Lancaster Canal Co., 4 M, & W. 472 ; Fenton r. Trent & Mersey Nav. Co., 
 9 M. & W. 203 ; Rex p. Hungerford Market Co., 3 Nev. & M. 622. 
 
 ' Rex r. 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. 204. The relation of 
 trustee and cestui que trust gives no right of action at law for money due. Par- 
 doe r. Price, 16 M. & W. 451. The proper remedy is in equity, and mandamus 
 will not lie. Reg. r. Trustees of Balby & Worksop Turnpike, 1 B. B. C. 134 ; 
 8. C. 16*Eng. L. & Eq. 276. 
 
 • 286, 287
 
 652 MANDAMUS. CH. XXIII. 
 
 and the right is one not enforceable at law, but only in equity, as 
 in matters of trust and confidence. But in a case where the act 
 of incorporation allowed the company to sue and to be sued in the 
 name of their clerk, it was held that execution could not issue 
 against the clerk personally, and in giving judgment, Tindal, Ch. 
 J., said : " There can be no doubt but that the funds of the trus- 
 tees may be made answerable for the amount ascertained in the 
 action, in case of a refusal to apply them, either by a mandamus 
 or a bill in equity." ^ 
 
 5. And where, after a rule wm, for a mandamus to compel the 
 company to summon a jury to assess compensation to land- 
 owners, a contract was entered into between the land-owners 
 and the agent of the company, wherein they agreed upon the 
 payment of a stated sum, and also a weekly compensation ; upon 
 the payment of the stated sum, and the execution of the contract, 
 the proceedings were discontinued. The company paid the weekly 
 sum for a time, and then discontinued the payment. The applica- 
 tion for mandamus being renewed, the court held, that, as the 
 contract was not under their seal, no action will lie upon it, 
 against the company,^ and it should therefore be enforced by man- 
 damus .^^ 
 
 * 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.^i 
 
 ^ Wormwell v. Hailstone, 6 Bing. 668. 
 
 8 Reg. V. Mayor of Stamford, 6 Q. B. 433. 
 
 >° Reg. V. Bristol & Exeter RaUw., 4 Q. B. 162 ; s. c. 3 Railw. C. 777. This 
 seems to us rather a refinement. If the contract was really obligatory upon the 
 company, it might as well be the foundation of an action, as to be enforced by 
 mandamus. In Tenneyu. East Warren Lumber Company, 43 N. H. 343, it was 
 held, that evidence that a deed purporting to be the deed of a corporation was 
 executed by agents duly authorized by it, is prima facie evidence that any seal 
 affixed to it has been adopted by the corporation for that occasion. And the same 
 point is maintained in Ransom v. Stonington Savings Bank, 2 Beasley, 212. 
 
 " Tilson V. Warwick Gas-Light Co., 4 B. & Cres. 962; Garden v. General 
 Cemetery Co., 6 Bing. (N. C.) 253. 
 *288
 
 §159. 
 
 WRIT DENIED IN MATTEBS OF PRIVATE CONCERN. 
 
 653 
 
 SECTION IX. 
 
 The Writ sometimes denied in Matters of Private Concern. 
 
 Mandamus denied to compel company to 
 divide profits. 
 
 Allowed to compel production and inspec- 
 tion of corporation books. 
 
 Will compel the performance of statute 
 duty, but not to undo what is done. 
 
 Allowed to compel the production of the 
 
 register of shares, or the registnf of the 
 name of the owner of shares, and in 
 other oases. 
 
 It is the common remedy for restoring per- 
 sons to corporate offices of which thej/ 
 are unjustly deprived. 
 
 § 159. 1. Where the charter and subsequent acts relating to the 
 Bank of England required the corporation to divide their profits 
 semi-annually, a mandamus to compel the production of the books 
 of the company, so as to show an account of their net income and 
 profits, since the last dividend was declared, more tlian 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 accounts of profit and loss, and to 
 divide their profits, if any there be." It was also said, that this 
 might very properly be done in a Court of Chancery, but a court 
 of law is a very unfit tribunal for such a subject. " A mere 
 trading corporation differs materially from those which are intrusted 
 with the government of cities and towns, and therefore have im- 
 portant public duties to perform." ^a^Zey, 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 corporations in England." 
 
 2. But in a later case ^ it was held, that mandamus may be 
 granted to compel the production and inspection of corporation 
 books and records at the suit of a corporator, where a distinct 
 controversy has already arisen, and the relator is interested in the 
 question, and the former cases upon the subject are elaborately 
 reviewed, and held to confirm this view.^ 
 
 ' Rex r. The Bank of England, 2 B. & Aid. 620. 
 
 * Rex c. Merchant Tailors' Company, 2 B. & Ad. 116. 
 
 ' Rex r. Hostmen of Newcastle-upon-Tyne, 2 Strange, 1223. So to inspect 
 the court roll of a manor, at the instance of a tenant who has an interest in a 
 pending question, and has been refused permission to inspect the court rolls by 
 
 *289
 
 654 MANDAMUS. CH. XXIII. 
 
 3. The court has refused to grant a mandamus to a private 
 trading corporation, to permit a transfer of stock to be made in 
 their books.* In one case 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 tribunal 
 (Q. B. in Ireland), which is said to have complied with a similar 
 application. But having no doubt, I am bound to act on my own 
 view. The writ of mandamus is most beneficial, but we must 
 keep its operation within legal bounds, and not grant it at the 
 fancy of all mankind. We grant it when that has not been done 
 which a statute orders to be done, but not for the purpose of un- 
 doing what has been done." ^ " It is said the court will 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 difierence seems to be one 
 of form rather than substance, and to rest mainly upon the 
 consideration, that after the act is done, its legality had better 
 be tested in the ordinary mode, by an action at law or in 
 equity. 
 
 4. But the writ has been granted to compel the production of 
 a register of shareholders, to enable a creditor to proceed against 
 them." So, too, to compel the registry of the name of the owner 
 of shares, properly transferred, or of the name of the personal 
 
 the lord of the manor. Rex ». Shelley, 3 T. R. 141. But not otherwise. Rex 
 r. Allgood, 7 T. R. 746. But it is not necessary a suit shall be pending, if a 
 distinct question have arisen. R. v. Tower, 4 M. & S. 162. And in an action 
 against an incorporated company, which had ceased to carry on business, a 
 director of the company may be ordered by the court or a judge to give the 
 plaintiff inspection of documents not denied to be in his possession, or under his 
 control. Lacharme v. Quartz Rock Mariposa Gold Mining Company, 31 L. J. 
 Exch. 335 ; s. c. 1 H. & C. 134. And the corporators may compel the in- 
 spection of the stock ledger, if that contain important evidence, although the 
 corporation do not keep the books required by law. People v. Pacific Mail 
 Steamship Co., 50 Barb. 280. 
 
 * Rex V. The London Assurance Company, 5 B. & Aid. 899. 
 » Nash, ex paHe, 15 Q. B. 92. 
 
 • The office of the writ of mandamus is to stimulate and not to restrain the 
 exercise of official functions ; and after the officers have performed the duties 
 imposed upon them, they are no longer subject to it. School Directors of Bed- 
 ford Borough V. Anderson, 45 Penn. St. 388. 
 
 ' Reg. ». Worcestershire & Stafford Railw., Q. B. Weekly R. 1853-64, 482. 
 ♦ 290
 
 § 159. WRIT DENIED IN MATTERS OF PRIVATE CONCERN. 655 
 
 representative, in case of the decease of the owner.* But in 
 some cases of peculiar necessity for specific aid by way of man- 
 damus, as the delivery of a key to the party entitled to hold 
 it, by the foundation of a private charity,* the writ has been 
 awarded. 
 
 5. And there can be no doubt the Court of Queen's Bench has 
 almost immemorially been accustomed to try the validity of mu- 
 nicipal and other public corporate elections by q\io warranto, 
 which, in case of illegality found, will displace the incumbents, 
 but not establish those rightfully entitled to the function j^*^ * 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 will try the validity 
 of an election and the question of usurpations, and the legality of 
 amotions in private corporations " in this mode. But there is one 
 
 * Ante. § 42 and § 44 ; Reg. v. L. & C. Railw., 13 Q. B. 998. No question 
 is made here but the court will compel the company, by mandamus, to enter a 
 transfer upon their books in a proper case, but the application was denied on 
 other grounds. See Reg. v. Midland Counties & Sh. J. Railw., 9 L. T. N. S. 
 15 Ir. Com. Law, 514, 525 ; 8. c. 161, 155. And see Helm v. Swiggett, 12 Ind. 
 194. But not where inspection of the certificate of shares was refused to the 
 directors. East Wheal Martha Mining Co., in re, 33 Beav. 119. 
 
 • Reg. r. Abrahams, 4 Q. B. 157. 
 
 »« Rex ». Williams, 1 Bur. 402 ; Rex r. Hertford, 1 Ld. Ray. 426 ; 1 Sal. 
 874 ; Rex v. Breton, 4 Burrow, 2260 ; Rex r. Cambridge, 4 Bur. 2008 ; Rex 
 r. Tregony, 8 Mod. Ill, 127 ; Rex v. Turkey Co., 2 Burrow, 999 ; Anonymous, 
 2 Strange, 696. 
 
 In some English cases the King's Bench seems to have altogether disregarded 
 the distinction between public and private corporations, in exercising control 
 over their functionaries. Rex r. Bishop of Ely, 2 T. R. 290. And in Rex v. 
 St. Catherine's Hall, 4 T. R. 238, 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 righta of the minority. 
 The King v. Gray's Inn, Douglass, 353 ; Rex r. 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 pos- 
 session. Rex r. 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 r. The 
 Corporation of New York, 3 Johns. Cases, 79. The St. Louis County Ct. ». 
 Sparks, 10 Missouri, 117 ; Bonner v. State, 7 Georgia, 473 ; Clayton v. Carey, 
 4 Maryland, 26. 
 
 " Commonwealth r. Arrison, 15 S. & R. 131 ; People v. Thompson, 21 
 Wendell," 235 ; s. c. 23 WendeU, 537 ; People v. Head, 25 111. 325 ; State 
 
 •291
 
 656 MANDAMUS. CH. XXIII. 
 
 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.^^ 
 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, i* a member of a religious corporation, 
 and many similar officers. ^^ 
 
 V. Common Council, 9 Wise. 254; State v. Boston, Concord, & M. R., 25 
 Vt. 433 ; In the matter of the White River Bank, 23 Vt. 478 ; Commonwealth 
 V. The Union Fire and Marine Insurance Co., 5 Mass. 231 ; State v. Ashley, 1 
 Pike, 570; St. Luke's Church v. Slack, 7 Cush. 226. But in Gorman v. Board 
 of Police, 85 Barb. 527, it is intimated that mandamus will not issue to restore 
 an officer removed in an illegal manner, but for a sufficient cause. Martin v. 
 Board of Police, id. 550. See to the same point Barrows v. Mass. Medical 
 Society, 12 Cush. 402. And a fortiori mandamus lies where the office concerns 
 the public or the administration of justice. Lindsey v. Luckett, 20 Texas, 516 ; 
 Felts V. Memphis, 2 Head, 650. 
 
 ^' Howard v. Gage, 6 Mass. 462. But this case was decided upon the 
 ground that the statute of Anne not being in force in that state, the truth of the 
 return to the alternative writ could not be tried till the term would expire. But 
 the decision is scarcely maintainable even upon that ground. But it was held a 
 good defence to a writ of mandamus to compel a township treasurer to pay an 
 order for a teacher's salary, that his term of office had expired, and all the funds 
 in his hands had in good faith been paid over to his successor. State e. Lynch, 
 8 Ohio, N. S. 347. 
 
 " Angell & Ames on Corporations, § 704. And where, by the custom of a 
 parish, one churchwarden was appointed annually by the parishioners, and one 
 annually by the rector, and the latter appointed a person who was not an in- 
 habitant of or an occupier of property in the parish, it was held that a manda- 
 mus to the rector to appoint a churchwarden was the proper process by which to 
 question the validity of the appointment. Barlow in re, 30 L. J. Q. B. 271 ; 
 8. c. 5 L. T. N. S. 289. And see Reg.' v. Hearts of Oak Benefit Society, 13 W. 
 R. 724. 
 
 " Fuller V. The Trustees of the Academic School in Plainfield, 6 Conn. 532. 
 The opinion of Daggett, J., here discusses the power of amotion of trustees and 
 officers by eleemosynary corporations somewhat at length, and comments very 
 judiciously upon the cases upon the subject. 
 
 '* 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. 
 Institution, 2 Serg. «&; R. 141 ; Franklin Ben. Association v. Commonwealth, 10 
 Penn. St. 357 ; Commonwealth v. The German Society, 15 Penn. St. 251. But 
 if the society have the absolute power of expulsion, it would seem their judgment 
 in the matter is not revisable. lb. 
 
 But it was said, a private person who makes a highway upon his own land, 
 and dedicates it to public use, had no such interest in the highway as to enable 
 ♦292
 
 § 160. REMEDY LOST. — PROCEEDING MUST BE BONA FIDE. 657 
 
 SECTION X. 
 
 This Remedy lost by Acquiescence. — Proceeding must be Bona 
 
 Fide. 
 
 1. Remedy must be sought at earliest conven- 
 
 ient time. 
 
 2. Courts will not hear such case, merdtf to 
 
 settle the qmestiom. 
 
 In New York may be brought any time 
 within statute of limitations. 
 
 § 160. 1. The right to interfere in the proceedings of a corpora- 
 tion by mandamus, is one of so summary a character, that it 
 should be asserted at the earliest convenient time, or it will not be 
 sustained.* And especially where, in the meaii time, the * facilities 
 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 till public works are completed, be- 
 fore moving for the writ.* 
 
 2. The English courts decline to hear applications for manda- 
 
 him to sue for penalties given against a railway which had cut through the high- 
 way and not restored it, and a mandamus to enforce the recovery of such penalty 
 was denied on the ground that the prosecutor had no public duty in regard to 
 the highway. Reg. c. Wilson, 11 Eng. L. & Eq. 403 ; 8. c. 1 El. & Bl. 597. 
 
 • Rex r. Stainforth & Keadby Canal Co., 1 M. & S. 32; Rex v. The Com- 
 missioners of C. Inclosurc, 1 B. & Ad. 378; Reg. c. Leeds and Liverpool 
 Canal Co., 11 Ad. & Ell. 316 ; Lee v. Milner, 1 Railw. C. 634, Appendix ; Reg. 
 r. London & N. W. Railw., 16 Q. B. 864 ; s. c. 6 Railw. C. 634, and Ri-g. r. Lan- 
 cashire & Yorkshire Railw., 16 Q. B. 906; 8. C. id. 654. So, in Connecticut, 
 where by statute a school district can change its school-house only by a two-thirds 
 TOte, and a district which had an established school-house voted by a less majority 
 to have the school kept for the season in a room furnished for the purpose within 
 half a mile from the school-house, more convenient for the children generally, and 
 the district committee kept the school there, a mandamus, being applied for by 
 some members of the district, tax-payers therein, and some of whom had children 
 whom they wished to send to the school, to compel the district committee to have 
 the school kept in the school-house, it appearing tiiat at the time of the application 
 the term of the school had half expired, and had nearly expired at the time of the 
 hearing, this was held not to be such a case as called imperatively for the inter- 
 position of the court by mandanms, it not appearing to be a permanent attempt 
 to change the place of the school. Colt v. Roberts, 28 Conn. 330. See State 
 r. Lynch, 8 Ohio N. S. 347. 
 
 » Reg. c. Rochdale & Halifax T. Railw., 12 Q. B. 448. 
 
 • Parkes ex parte, 9 Dowl. P. C. 614 ; Ante, § 88. Reg. ». Bingham, 4 Q. 
 B. 877; 3 liailw. C. 390. 
 
 42 •293
 
 658 
 
 MANDAMUS. 
 
 CH. xxni. 
 
 mus, which are not bona fide^ but merely to obtain the opinion of 
 the court,* even where the prosecutor may have bona fide purchased 
 shares in the corporation, but for the mere purpose of trying a 
 question in which the public have an interest.* 
 
 3. In New York it was held, that as there was no special lim- 
 itation upon this remedy, it might be brought within the time 
 fixed for the limitation of other similar or analogous remedies.^ 
 But this rule seems liable to objection in many cases. The 
 English rule, that the party should suffer no unreasonable delay, 
 in the opinion and discretion of the court, seems more just and 
 equitable, and is countenanced by other American cases.^ The 
 late decisions of the English courts are very strict upon this 
 point.'^ 
 
 ♦SECTION XI. 
 
 Mandamus allowed where Indictment lies. 
 
 1. Party may have mandamus sometimes 
 
 wheie act is indictable. 
 
 2. Allowed to compel company not to take up 
 
 their rails. 
 
 3. Will not lie where there is other adequate 
 remedy. 
 
 § 161. 1. It seems to have been considered that the fact that a 
 railway or other corporation had exposed themselves to indictment 
 by the very act or omission proposed to be remedied by mandamus, 
 was no sufficient answer to the application.^ But we are not to 
 understand by this that the two remedies are regarded as in any 
 just sense concurrent, and at the election of the party injured. 
 An indictment is ordinarily no adequate redress for private wrong. 
 The case of a nuisance, put by Lord Denman, in the last case, illus- 
 trates the subject fairly. The indictment only redresses the 
 public wrong inflicted by a nuisance. One who suffers special 
 damage is entitled to a private action, and sometimes to specific 
 redress, in equity or by mandamus. 
 
 * Reg. V. Liverpool, M. & N. Railw., 21 L. J. Q. B. 284; 16 Jur. 149; 11 
 Eng. L. & Eq. 408 ; Reg. v. Blackwall Railw., 9 Dowl. P. Cas. 558. 
 
 » The People v. The Supervisors of West Chester, 12 Barb. 446. 
 
 • Mayor, &c. of Savannah v. State, 4 Ga. 26. 
 ' Reg. V. Townsend, 28 Law Times, 100. 
 
 ' Reg. ». Bristol Dock Co., 2 Q. B. 64: s. 0. 2 Railw. C. 699; Reg. v. 
 Manchester & Leeds Railw., 3 Q. B. 628. 
 * 294
 
 § 162. JUDGMENT FOR MANDAMUS REVISABLE IN ERROR. 659 
 
 2. Hence, where a railway company, after having completed 
 their road, under an act of parliament, by which it was provided 
 the public should have the beneficial enjoyment of the same, pro- 
 ceeded to take up the railway, a mandamus was awarded to compel 
 them to reinstate it.^ 
 
 • 3. And it may safely be affirmed that the mandamus will bo 
 denied where there is other adequate remedy .^ 
 
 SECTION XII. 
 
 Judgment upon Petition for Mandamus revisable in Error. 
 
 § 162. In those states where the court having jurisdiction to 
 award the writ of mandamus is not the court of last resort, the 
 judgment upon applications for such writs is revisable upon writ 
 
 » Rex. r. The Severn & Wye Railw., 2 B. & Aid. 64G. 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 com- 
 pelled, by indictment, to reinstate the road." 
 
 " The court may, indeed, in case of conviction, impose a fine, and that fine may 
 be levied by distress ; but the corporation may submit to the payment of the fine 
 and refuse to reinstate the road." Grant on Corp. 270. And in State v. Hart- 
 ford & New H. Railw. Co., 29 Conn. 538, this writ was awarded to com- 
 pel the defendants to continue to run trains to connect with the steamboats on 
 the Sound, after the company had formed a connection with the New Haven & 
 New York Railw., and had discontinued running trains across that portion of 
 their road which connected with the steamboats. And it was here considered 
 that a contract with tlie connecting railway to discontinue connection with the 
 steamboats for some equivalent benefit to both companies was void, as against 
 good policy, and that it was a proper case for the public attorney to interfere by 
 way of petition for mandamus. 
 
 » Reg. c. Gamble & Bird, 11 Ad. & Ell. 69; Reg. r. Victoria Park Co., 
 1 Q. B. 288 ; Draper r. Noteware, 7 Cal. 276 ; Williams r. Judge of County 
 Court, 27 Miss. 225; Trustees ». State, 11 Ind. 205; Bush r. Beaven, 1 H. & 
 C. 500; 8.0. 32 L. J. Exch. 54. But in People c. Ililliard, 29 111. 413, the 
 court hold, that it is not indispensable that the petition should state that the 
 relator is without any other sufficient remedy. If such appear to the court to be 
 the fact, the alternative writ will not be quashed. Id. But see School Board 
 r. People. 20 111. 525, contra. People v. Wood, 35 Barb. 653 ; Goodwin r. 
 Glazer, 10 Cal. 333. But the existence of an equitable remedy is no ground for 
 refusing mandamus. Commonwealth c. Commissioners of Alleghany, 32 Peon. 
 St. 218. 
 
 •295
 
 660 MANDAMUS. CH. XXIII. 
 
 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 .2 
 
 * Reg. V. The Manchester & Leeds Railw., 9 Q. B. 528, reversing the judg- 
 ment of K. B. in s. c. 1 Railw. C. 523, this last hearing being in the Exchequer 
 Chamber. 6 & 7 Vict, 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. U. S. 540. Cowell v. Buckelew, 14 Cal. 640. See 
 also Columbia Ins. Co. v. Wheelright, 7 Wheat. 534. The matter of grant- 
 ing the writ of mandamus, being discretionary in the court, should not preclude 
 a revision of the questions decided by the court below as matter of law. When 
 the writ is denied as matter of discretion, that judgment is of course not revis- 
 able in a court of error. 
 
 * Angell & Ames on Corp, § 697.
 
 § 163. TO REMOVE PBOCEEDINGS AGAINST RAILWAYS. 661 
 
 ♦CHAPTER XXIV. 
 
 WRIT OF CERTIORARI. 
 
 SECTION L 
 
 To remove Proceedings against Raihoays. 
 
 Lies to bring up unfinished proctiedings, or 
 thote not according to the common law. 
 
 Thia writ is one of very extensive ap- 
 plication, unless controlled by statute. 
 
 8. Where the case isJuUy heard on the appli- 
 cation, judgment may be entered. 
 
 § 163. 1. Where the proceedings against a railway are in a court 
 of record, and according to the course of the common law, after 
 final judgment the writ of error is the appropriate process for 
 their revision in a superior court, and the writ of certiorari will not 
 lie.^ But the certiorari is the proper process to bring up an un- 
 finished proceeding,^ in an inferior court of record, or a * summary 
 
 ' The King v. Inhabitants of Pennegoes, 1 B. & C, 142 ; s. c. 2 Dow & R. 
 209 ; Queen v. Dixon, 3 Salk. 78. 
 
 Ceiiiorari is the appropriate remedy to revise erroneous rulings of county 
 commissioners, when there is no mode of revision appointed by law. Mendon v. 
 County Commissioners, 2 Allen, 463. The same principle is maintained in 
 People V. Board of Delegates, 14 Cal. 479. It does not lie to review acts 
 simply ministerial, but all acts of a judicial nature, whether of a court or a muni- 
 cipal board. Robinson r. Supervisors, 16 Cal. 208. And see, to the same 
 point, People v. Board of Health, 33 Barb. 344 ; People r. Hester, 6 Cal. 
 679 ; Borough of Sewickley, 2 Grant's Cases, 136 ; Justice, &c. v. Hunt, 29 Ga. 
 165. But see Camden v. Mulford, 2 Dutch. 49; State v. Jersey City, id. 
 444. The power of review on a common-law certiorari extends not only to 
 questions affecting the jurisdiction of the magistrate and the regularity of the 
 proceedings before him, but to all other legal questions. Mullins v. People, 24 
 N. Y. 399; Jackson v. People, 9 Mich. 111. But see People r. Van Al- 
 styne, 32 Barb. 131; People v. Board of Delegates, 14 Cal. 179. Only 
 questions raised by the record can be considered. People p. Wheeler, 21 N. Y. 
 82. And see Frederick v. Clarke, 6 Wise. 191 ; Greenway ». Mead, 2 Dutch. 
 803; Low p. Galena & Chicago Railw., 18 111. 3-24; Mayo County, in re. It 
 Ir. Com. Law, 892. 
 
 * The writ of certiorari before judgment corresponds to the writ of error after 
 it. Comjjionwealth v. Simpson, 2 Grant's Cases, 438. And a proceeding by 
 certiorari is like an appeal, and is governed by the same rules, so that the plain- 
 
 ♦ 296, 297
 
 662 WRIT OP CERTIORARI. CH. XXIV. 
 
 proceeding in such court, not according to the course of the com- 
 mon law, after judgment thereon, and where there is alleged error 
 in the proceedings.^ 
 
 2. Tliis 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.* 
 
 tiff can dismiss the case in the appellate court, and leave the whole matter as if 
 no steps had been taken therein. Joliet, &c. Railw. v. Barrows, 2-4 111. .562. 
 
 ' Where a party has had no notice of an assessment of damages for land 
 taken, until after the time limited for the appeal has expired, he may have the 
 decision reviewed by certiorari. Joliet, &c. Railw. v. Barrows, 24 111. 562. 
 And see McConnell v. Caldwell, 6 Jones Law, 469 ; Aycock v. Williams, 18 
 Texas, 392. In the last case it was held, that, if a justice of the peace grant 
 a new trial without notice to the adverse party, who does not appear at the 
 second trial, the latter may either enjoin the collection of the judgment thus 
 rendered, or remove the cause to the District Court by certiorari. And certio- 
 ran will be granted to bring up an order of Quarter Sessions which was void 
 on the ground of interest in the justices. See MoHeran v. Melvin, 3 Jones 
 Equity, 195; Darling v. Neill, 15 Texas, 104; Robson in re, 6 Mich. 137; 
 Clary v. Hoagland, 5 Cal. 476. And one against whom a judgment is sought 
 to be enforced, though not a party to the proceedings, may apply for a certiorari. 
 Clary v. Hoagland, supra. And see Reg. v. Bell, 8 Cox, C. C. 28 ; Reg, r. 
 Hammond, 12 W. R. 208; Reg. v. London & Northwestern Railw., 12 W. R. 
 208. 
 
 * Woodstock V. Gallup, 28 Vt. 587 ; Ottawa v. Chicago, &c. Railw., 25 
 111. 43. And in New York the only way of reviewing a decision of a justice 
 of the peace in summary proceedings is by a certiorari. Romaine v. Kinshimer, 
 2 Hilton, 519 ; Reg. v. Bristol & Exeter Railw., 11 Ad. & Ellis, 202 ; Crosse v. 
 Smith, 3 Salk. 79. It is here said: "There is no jurisdiction which can with- 
 stand 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 manda- 
 mus. Rex V. Justices of W. R. of York, in the Matter of Railway, 1 Ad. & El. 
 563 ; Rex v. Fell, 1 B. «& A. 380 ; Rex v. Saunders, 5 Dow. & R. 611. Where 
 the certiorari upon a given subject is taken away by act of parliament, it must 
 be understood as extending only to the terras of the act, and for something done 
 in pursuance of it. Denman, Ch. J., Reg. v. Sheffield, A. & M. Railw., 11 Ad. 
 & El. 194; s. c. 1 Railw. C. 537, 545. Patteson, J., ♦' Where there is a total 
 want of jurisdiction and parties have proceeded in defiance of ceiiiorai'i, it is 
 not taken away." South Wales Railw. Co. r. Richards, 6 Railw. C. 197. 
 
 See Jubb v. Hull Dock Co., 9 Q. B. 443. Denman, Cb. J., intimates, that
 
 § 164. WHERE THERE IS AN EXCESS OP JURISDICTION. 668 
 
 * 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 judg- 
 ment, without Waiting for the record to be brought upon certiorari^ 
 similar to the course we have intimated in regard to applications 
 for mandamus.* 
 
 SECTION II. 
 
 Where there is an Excess of Jurisdiction. 
 
 § 164. Where there is an excess of jurisdiction, the appro- 
 priate remedy ordinarily is by action of trespass. And in such 
 cases the court have more coinmonly refused to give redress, 
 either by certiorari or mandamus.^ But it is not considered that a 
 statutory provision, taking away the writ of certiorari, for any thing 
 • done under the act of incorporation, or the general statutes as 
 to railways, applies to things done wholly without the jurisdic- 
 tion conferred.^ 
 
 where the certiorari is taken away, in regard to proceedings under an act of 
 parliament, that will not deprive the party of that remedy, when the proceeding 
 is complained of, as not coming within the act, although some part of the pro- 
 ceedings is confessedly within the act, citing Rex r. The Justices of Kent, 
 10 B. & C. 477. See Reg. v. St. Olaves, 8 Ellis & Bl. 529. The right to have 
 proceedings reversed in the Supreme Court does not deprive the party of the 
 right to bring certiorari. Vanwickle r. C. & A. Railw. ; Bennett v. Same, 
 2 Green, 145, 162. A certiorari suspends all proceedings in a case till it is 
 decided. Taylor c.Gay, 20 Ga. 77. 
 
 » In Re Edmunson, 17 Q. B. 67 ; 8. c. 24 Eng, L. & E. 169. This was a 
 case where the statute required the complaint to be made within six months afler 
 the cause of action arose, and for non-compliance with this requirement the court 
 held the proceedings liable to be quashed, and granted the certiorari. 
 
 * Ante, § 152. On certiorari the court will not reverse a judgment for error 
 in taxing costs, but will correct the error in tliis respect. Marshall v. Burton, 
 5 Ilarring. (Del.) 295. 
 
 > Reg. V. Bristol & Exeter Railw., 2 Railw. C. 99 ; 11 Ad. & Ellis, 202; Reg. 
 V. Shedield & Ashton-under-Lyne & Manchester Railw., 11 Ad. & El. 194; 
 8. c. 1 Railw. C. 537, 545. The court will rarely grant this writ where the party 
 has an opportunity to litigate the question in action at law. People t*. Board of 
 Health, 33 Barb. 344. And see Baltimore, &c. Co. v. Northern, &c. Railw., 15 
 Md. 193; Peabodyr. Buentillo, 18 Texas, 313; Clary r. Hoagland, 13 Cal. 173. 
 
 * Ante, § 162; Reg. r. Sheffield, A. & M. Railw., 11 Ad. & El. 194; 8. c. 
 1 Railw.' C. 545 ; South Wales Railw. r. Richards, 6 Railw. C. 197 ; Reg. v. 
 
 * 298, 299.
 
 664 
 
 WBIT OP CERTIORARI. 
 
 CH. XXIV. 
 
 SECTION IIL' 
 
 Jurisdiction and Mode of Procediwe. 
 
 1. Lies in rases of irregulcaihf, unless taken 
 
 away by statute. 
 
 2. Inquisitions before officers, not known in 
 
 the law. 
 
 8. Granting the wrk is matter of discretion. 
 Defects not amendable. 
 
 4. Not allowed for irregtdarily in proceed- 
 ings, or evidence, or form of judgment. 
 
 § 165. 1. Although it is held that a statutory provision, deny- 
 ing the certiorari^ is to be limited to matters within the jurisdiction 
 conferred, and will not restrict the power of the court in regard 
 to matters wholly beyond the jurisdiction, the same rule caimot 
 be extended to mere irregularity in the exercise of the jurisdic- 
 tion. For unless the prohibition of the writ could apply to such 
 cases, it could have no application, and it is incumbent upon the 
 court to give it a reasonable operation and construction.^ 
 
 2. An inquisition taken before two under-sheriffs extraordinary, 
 will be set aside on that ground.^ But an inquisition taken before 
 a clerk of the under-sheriff, and an assessor appointed pro hac vice 
 by the sheriff, although none of the persons named in the act, for 
 such an office, will not be quashed on certiorari.^ 
 
 * 3. Tlie 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 
 
 Lancashire & Preston Railw., 6 Q. B. 759 ; 3 Railw. C. 725. Where a jury, sum- 
 moned under 8 «& 9 Victoria, ch. 18, § 68, have taken into consideration, in awarding 
 compensation, one claim, among others, as to which they had no jurisdiction, a certi- 
 orari lies, although such excess of jurisdiction does not appear upon the face of the 
 proceedings, but it may be shown by affidavit. Penny in re, 7 Ellis & Bl. 660. 
 
 * Reg. r. Sheffield, A. & M. Railw., 1 Railw. C. 537 ; 11 Ad. & El. 194. 
 
 * Denny r. Trapnell, 2 Wilson, 379. This decision is upon the groimd that 
 the sheriff can only appoint one under-sheriff extraordinary. 
 
 3 Reg. c. Sheffield, A. & M. Railw., 11 Ad. & EUis, 194. Thus showing the 
 disposition of the court to sustain the proceedings when not in contravention of 
 the express terms of the statute. 
 
 * State r. Hudson, 5 Dutch. 115 ; Lantis in re, 9 Mich. 324 ; People v. Board 
 of Health, 33 Barb. 344; Johnson v. McKissack, 20 Texas, 160; People r. Pea- 
 body, 26 Barb. 437 ; Randle c. Williams, 18 Arkansas, 380; Mayo County in re, 
 14 Ir. Com. Law Rep. 392; Reg. r. Reynolds, 13 W. R. 925; s.c. 12 L. T. 
 •N. S. 580. 
 
 * Reg. F. Manchester & Leeds Railw., 8 Ad. & Ellis, 413. Lord Denman says, 
 •• I disclaim the principle, that we are to issue a certiorari to bring up the inqui- 
 
 •300
 
 § 165. JURISDICTION AND MODE OF PROCEDURE. 665 
 
 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 induce the defects complained of, 
 is important to he considered in determining the question of dis- 
 cretion, in regard to issuing the writ.^ 
 
 4. The court will not ordinarily quash proceedings in inferior 
 tribunals for mere formal irregularity in the proceedings or the 
 testimony received, especially when there was no objection made 
 at the time ; nor will the form of the judgment or decree be consid- 
 ered any sufficient ground for allowing the writ, provided substan- 
 tial justice has been done.'^ 
 
 sition, on the ground that there may probably be defects ; we must clearly see 
 that facts do exist which will bring the defects before us." And an individual 
 member of a corporation cannot carry on suit by bringing certiorari in the name 
 of the corporation without the consent of a legal majority of the members thereof. 
 Silk Maimfacturing Co. r. Campbell, 3 Dutcher, 539. 
 
 • Reg. c. South Holland Drainage, 8 Ad. & El. 429. 
 
 ' Salem & South Danvers Railw. v. County Commissioners, 9 Allen, 563.
 
 666 INFORMATIONS IN THE NATURE OP QUO WARRANTO. CH. XXV. 
 
 ♦CHAPTER XXY. 
 
 INFORMATIONS IN THE NATURE OF QUO WARRANTO. 
 
 1. General nature of the remedy. 
 
 2. Its exercise conjined to the highest court of 
 
 ordinary civil jurisdiction. 
 
 3. In the English practice, this remedy not 
 
 extended to private corporations. 
 
 4. In this country it has been extended to 
 
 such corporations. 
 
 5. This remedy will only remove an usuiper, 
 
 but not restore the one rightfully entitled. 
 
 6. Will not lie where railway company open 
 
 part of their road. 
 
 7. Nor where company issue stock below par, 
 
 or begin to build road before subscription 
 full. 
 
 8. Form of the judgment. 
 
 9. Rules in regard to taxing costs. 
 
 10. Used to test corporate existence and 
 
 power. 
 
 11. Penalties provided by charter cannot 
 
 subsequently be increased to a for- 
 feiture. 
 
 12. But a grant of corporate franchises may 
 
 be annulled when its purposes have 
 failed. 
 
 13. Scire facias the proper remedy to deter- 
 
 mine forfeiture. 
 
 14. Insufficient excuses for failure to repair 
 
 a turnpike road. 
 16. This remedy does not supersede any 
 equitable redress. 
 
 § 166. 1. This is a subject of very extensive application to corpo- 
 rations, for the purpose of determining when they have forfeited their 
 corporate franchises, or usurped those not rightfully belonging to 
 them, and for numerous other purposes.^ It will be found 
 treated very much at length in treatises upon corporations.^ We 
 should scarcely feel justified in going into the subject further 
 here than it has a special application to railways. The form 
 of the proceedings in modern times is by information of the at- 
 torney-general, or other public prosecuting officer, on behalf of 
 
 1 See Palmer v. Woodbury, 14 Cal. 43 ; Gano v. State, 10 Ohio N. S. 237 ; 
 Parker v. Smith, 3 Minn. 240 ; Cleaver v. Commonwealth, 34 Penn. St. 283 ; 
 People V. Ridgely, 21 111. 65; Scott v. Clark, 1 Clarke, 70; Mississippi, «&c. 
 Railw. r. Cross, 20 Ark. 443, 495. 
 
 * Angell & Ames on Corporations, §§ 731-765. See State v. Mississippi, &c. 
 Railw., 20 Ark. 443, 495 ; State v. Brown, 5 Rhode Island, 1 ; Lindsey v. Attor- 
 ney-General, 33 Miss. 608. The information may set forth specifically the ground 
 of forfeiture relied upon, or may call upon the corporation to show by what war- 
 rant they still claim to exercise their corporate franchises ; and the information, 
 like any other criminal information, is regarded as amendable. Commonwealth 
 V, Commercial Bank, 28 Penn. St. 383. And the information must acquaint the 
 court with the charter of the company, so as to show its powers and duties. 
 Danville, &c. Co. v. State, 16 Ind. 456. 
 *301
 
 § 166. INFORMATIONS IN THE NATURE OP QUO WARRANTO. 667 
 
 * the state, or sovereignty, in the nature of a quo warranto^ upon 
 wliich a rule issues to the defendant to show by what warrant ho 
 exercises the function or franchise called in question.^ These pro- 
 ceedings are how very much controlled in England and in the 
 American states by statute defining the form of process and the 
 jurisdiction of the courts in regard to them. 
 
 2. In the absence of special provisions, the highest courts of 
 ordinary civil jurisdiction are accustomed to exercise the prerog- 
 ative right of sovereignty, to issue this process, as well as other 
 prerogative writs, such as a mandamus, certiorari, procedendo, 
 prohibition, <fec. In some of the states the courts refuse to ex- 
 ercise 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 exercise 
 of this proceeding in the case of mere private corporations, although 
 there are numerous cases in the English books of its exercise in 
 regard to municipal corporations,^ and others of an important pub- 
 lic character. 
 
 * State r. Brown, 33 Miss. 500. 
 
 * State tj. Ashley, 1 Pike (Ark.), 279; State v. Turk, Mart. & Yerg. 287; 
 Attorney-General v. Leaf, 9 Humph. 753. See also State v. Merrj*, 3 Missouri, 
 278; State v. McBrido, 4 id. 303 ; State v. St. Louis P. M. & Life Ins. Co., 8 id. 
 330, where in the latter state it was held the writ should issue. 
 
 In Pennsylvania the Supreme Court has authority to try by mandamus or quo 
 toarratUo whether or not a contract entered into between two difierent corpora- 
 tions is in excess of the lawful powers of either, and if either corporation is ex- 
 ercising rights or franchises to which it is not entitled, then to oust it therefrom ; 
 and the proceeding may be either at common law or in equity, jirovided the right 
 of trial by jury is not interfered with. Commonwealth v. Delaware & Hudson 
 Canal Co., 43 Penn. St. 295. 
 
 * State p. Turk, Mart. & Yerg. 287 ; State v. Merchants' Ins. Co., 8 Humph. 
 263 ; Attorney-General v. Leaf, 9 id. 753. 
 
 « Rex V. Williams, 1 Bur. 402 ; Rex v. Breton, 4 Burrow, 2260 ; Rex v. High- 
 more, 5 Bam. & Aid. 771 ; Rex v. M'Kay, 4 B. & C. 351 ; Smyth ex parte, 11 
 W. R. 754 ; 8. c. 8 L. T. N. S. 458 ; Reg. v. Hampton, 13 L. T. N. S. 431. The 
 same rule obtains in regard to this proceeding in this respect in England as in 
 regard to mandamus. 
 
 Ante, § 155 ; Rex v. Sir 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; nor the office of a churchwarden. Barlow in re, 30 L.J. 
 Q. B. 271 ; 8. c. 5 L. T. N. S. 289. 
 
 •302
 
 668 INFORMATIONS IN THE NATURE OF QUO WARRANTO. CH. XXV. 
 
 * 4. But there is no qiiestion that in the American states this 
 form of proceeding is extended to aggregate corporations in gen- 
 eral, and more especially to the case of banks and railways, 
 which partake in some sense of a public character. "^ The general 
 principles which we have found applicable to the subject of man- 
 damus, 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 the court will not proceed by mandamus to fill an office until 
 the title is first tried.^^ 
 
 ' Commonwealth r. Arrison, 15 Serg. & Rawle, 128 ; The People v. Thomp- 
 son, 21 Wend. 235 ; s. C. 23 id. 537 ; Commonwealth v. Union Ins. Co. ,'5 Mass. 
 231; People v. River Raisin & Lake Erie Railw., 12 Mich. 381. See ante, 
 § 153; State v. B. Concord & M. Railw., 25 Vt. 433; Grand Gulf Railw. and 
 Bank v. State, 10 Sm. & M. 427 ; State v. A. P. Hunton and others, 28 Vt. 594. 
 But if an election of managers of a corporation be not disputed during their term 
 of office by quo warranto, and they are permitted to act throughout their term 
 as managers de facto, the legality of the next election cannot be questioned for 
 any vice or irregularity in the first. A writ of quo warranto brought during the 
 term of an office may be tried after the term has expired, but title to a term of 
 office already expired, at the issue of the writ, cannot be determined in this man- 
 ner by proceedings instituted against those afterwards succeeding to the office. 
 Commonwealth r. Smith, 45 Penn. St. 59. This writ will be granted, although 
 the defendant has resigned the office, if the object of the relator is not only to 
 cause the defendant to vacate the office, but to establish another candidate in the 
 office, as the relator is entitled in such case to have judgment of ouster, or a dis- 
 claimer upon the record. Queen v. Bloyzard, Law Rep. 2 Q. B. 55. In Neall 
 V. Hill, 16 Cal. 145, it is said that the removal of a mere private or ministerial 
 officer of a corporation is a right that belongs to the corporation alone, and 
 the courts have no jurisdiction to remove such officer, or, it seems, even to 
 enjoin him from acting. 
 
 * Ante, chap. xxin. And see State v. Commercial Bank of Manchester, 33 
 Miss. 474, where the acts and omissions that will allow a forfeiture of the charter 
 by quo warranto, are discussed, 
 
 ^ In the matter of the Long Island Railw., 19 Wendell, 37 ; 2 Am. Railw. C. 
 453. In quo warranto against a usurper by a claimant, it is competent for the 
 court to oust the usurper without determining the right of the claimant. Gano 
 V. State, 10 Ohio N. S, 237. See Doane v. Scannell, 7 Cal; 393 ; People ». Same, 
 id. 432. One who is relator in a quo warranto, on the ground of the use of 
 blank voting papers, but who has previously used blank voting papers on the 
 same and former elections, and has been formerly elected in that mode, is pre- 
 cluded from maintaining the writ upon that ground. Sed quaere. Queen ». Lof- 
 thome, L. R. 1 Q. B. 433. 
 
 '0 Rex V. Truro, 3 B. & Aid. 590. 
 •303
 
 § 166. INFORMATIONS IN THE NATURE OP QUO WARRANTO. 669 
 
 6. And where a railway company were 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 warranto against the company, to prevent them from opening 
 the part completed, until the whole is perfect." 
 
 7. And an information in the nature of a qua warranto^ under 
 the Massachusetts statute, will not lie against a railway company, 
 in behalf of a stockholder, merely because they issued stock below 
 the par valuc,^^ and began to construct their road, before the re- 
 quisite amount of stock was subscribed, it not appearing that the 
 petitioner's private right was thereby put at hazard.*^ 
 
 8. The form of the judgment in proceedings of this character 
 will depend upon the facts proved, and the object to be attained. 
 Where the defect in defendant's right is merely formal, like the 
 omission to take the requisite oath, the judgment is for a suspen- 
 
 " Attorney-General v, Birmingham Junction Railw., 3 Mac. & Gor. 453 ; s. C. 
 8 Eng. L. & E<i. 243. 
 
 " See Howe v. Derrel, 43 Barb. 604 ; Commonwealth r. Farmers' Bank, 2 
 Grant's Cas. 392. 
 
 " Hastings ». Amherst & Belchertown Railw., 9 Gush. 696. 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 
 extending " to the village of Amherst," and the other from " Amherst to Mon- 
 tague." It was held, that taking land for the road, upon a route not terminat- 
 ing '* in either village of Amherst," was not the exercise of a franchise, not 
 granted by the charter. 
 
 Any material departure from the points designated in the charter for the loca- 
 tion of a railway, is a violation of the charter, for which the franchise may be 
 seized upon quo Karratiio, unless the legislature has waived this right of the state 
 by acts recognizing the legality of such violation of the charter. Mississippi, 
 Ac. Railw. r. Cross, 20 Ark. 44:3. 
 
 Where an act incorporating a railway provided that no subscription should 
 be received and allowed, unless there sliould be paid to the commissioners at the 
 time of subscribing five dollars per share, and' this provision was not complied 
 with, but the corporation organized itself, elected directors, &c., and began the 
 construction of its road, by making contracts to grade it, some of the contractors 
 not being aware of this 'failure to make the stipulated payment on the shares at 
 subscription, and one of the stockholders, who was aware of that failure when 
 he became a stockholder, and who had voted at the election of directors, and 
 otherwise aided in setting up the corporation, applied to the court for leave to 
 file an information in the nature of a qtio warranto against the directors, to com- 
 pel them to show by what authority they exercised their powers : it was held that 
 this application should be rejected. Cole v. Dyer, 29 Georgia, 434. 
 
 •304
 
 670 INFORMATIONS IN THE NATURE OF QUO WARRANTO. CH. XXV. 
 
 sion of the exercise of the function until qualified by compliance 
 with the requisite formality. ^^ But if there be shown, or *con- 
 fessed, a total defect of title in defendant, there is a judgment of 
 ouster or forfeiture.^^ And where it is intended to dissolve the 
 corporation, judgment to that effect should be given in form.^^ 
 
 9. The relator is liable to costs if he fail, and is entitled to re- 
 cover costs if he prevail ordinarily. But where the office is one 
 where the party is compellable to serve, and is accepted and held 
 in good faith, it is not common to allow costs against the incum- 
 bent upon judgment of ouster.^^ 
 
 10. In some of the states a process or proceeding under the 
 name of " Quo. Warranto" has been applied to test the question of 
 corporate existence and power, on the ground of forfeiture of cor- 
 porate rights by means of the omission to perform acts required 
 by the charter, or of an excess of power having been resorted to, 
 in either case in violation of granted powers and duties.^" 
 
 11. And where the charter of a plank road company provides 
 for the security of travel and for the enforcement of the duty of 
 the company by suitable penalties, and the legislature, after the 
 road was built and in use, imposed an entire forfeiture of the 
 whole franchise of the corporation for failure to keep any portion 
 of the road in repair, it was held to be such a modification of the 
 charter as did not come within the proper exercise of the police 
 power of the state, and therefore void as a violation of the contract 
 in the grant of the charter.^^ 
 
 12. But where a turnpike charter provides penalties upon the 
 company and its agents for neglecting to keep the road in good 
 and perfect repair, such provision cannot be held to deprive the 
 state of its sovereign power to annul a grant when its purposes 
 have failed, through either the positive acts or neglect of the 
 grantees ; and when the fact of such act or neglect is duly estab- 
 lished, the special remedy provided by the charter will be regarded 
 as merely cumulative. It is of the very essence of a *corporation, 
 
 " Rex V. Clarke, 2 East, 75. But a judgment of ouster will conclude the 
 party in any subsequent proceeding. lb. 
 
 " State V. Bradford Village, 32 Vt. 50; Rex v. Tyrrell, 11 Mod. 335. 
 
 '« Rex V. Wallis, 5 T. R. 375 ; State v. Bradford Village, supra. 
 
 " Danville & W. L. Plank Road Co. v. The State, 16 Ind. 456. See also 
 The People v. J. & M. Plank Road Co., 9 Mich. 285, where the extent of the 
 remedy and the form of procedure is extensively discussed, but by a divided 
 court. " The People ». J. & M. Plank Road Co., 9 Mich. 285. 
 
 • 305, 306.
 
 § 166. INFORMATIONS IN THE NATURE OP QUO WARRANTO. 671 
 
 as a political existence or abstraction, that it should always be 
 liable to dissolution by a surrender of its corporate franchises, 
 and by a forfeiture of them, either by non-user or misuser.^ 
 
 13. In a case where the statute directed the public prosecuting 
 officers to take proceedings to determine whether the charter and 
 franchises of a turnpike company had become forfeited by non- 
 user or abuser, where no form of remedy is prescribed, it was 
 held that scire facias was the proper one to be adopted, and all 
 that is required to be set forth in the writ is enough to inform the 
 company of the causes of complaint and the extent of redress 
 sought.** This procedure is very much the same, in effect, as 
 that by quo warranto, already discussed, except that it is in the 
 form of a civil action.'* 
 
 14. It is no excuse for a turnpike company not keeping its road 
 in repair, that the state have chartered a railway along the same 
 route, and thereby disabled the company from maintaining its road 
 in the state of repair required by the charter.'^ Nor is it a bar 
 to the proceedings that the company have applied all their tolls to 
 the repair of the road.** 
 
 15. This remedy under tlie Massachusetts General Statutes,*' 
 in order to redress an injury to private rights or interests from 
 the exercise by a private corporation of a franchise or privilege not 
 conferred by law, does not supersede the jurisdiction in equity in 
 cases of private nuisance.^* 
 
 " Wash. & Bait. T. Road Co. v. Tbe State, 19 Md. 239. The particular 
 formfl of the pleading, both on the part of the plaintiff and defendant, are here 
 extensively discussed, as well as many questions in regard to the admissibility of 
 evidence. 
 
 » C. 145, § 16. 
 
 " Fall River Iron Works r. Old Colony & Fall River Railw., 6 Allen, 221. 
 
 END OF VOL. I.
 
 APPENDIX OF LATER CASES. 
 
 43
 
 APPENDIX OF CASES 
 
 REPORTED SINCE THE EDITION WENT TO PRESS. 
 
 CORPORATIONS. 
 
 Receivers appointed to close up when same are insolvent. 
 If two receivers are appointed to close up the concerns of a corporation, 
 and one of them misapplies the funds by putting them to his own private 
 use, and the other is guilty of gross neglect of duty in giving no attention 
 to the matters thus intrusted to his care and supervision, they will be joint- 
 ly liable for the amount found due in stating their account, and will be 
 charged with interest thereon, from the time the money was thus received 
 and misapplied. Commonwealth v. Eagle Ins. Co., 14 Allen, 344. 
 
 Commissioners appointed hy special act of the legislature to arrange connec- 
 tions between different companies. 
 
 In such cases, the court will give the award of the commissioners such 
 construction as to secure to the commissioners scope for the fair and full 
 exercise of the legal duties enjoined upon them, and no more. 
 
 Their award is not held, in this state, final and conclusive upon the rights 
 of the parties ; but is open to future examination and revision. Eastern 
 Railw. V. The Concord & Portsmouth Railw., 47 N. H. 108. This latter 
 view, as to the proper effect of the award of such a board is unquestionably 
 the true view ; but the precise extent to which the award is re-examinable 
 is somewhat difficult to define. It should, commonly, only be subject to 
 impeachment for some error or irregularity in the proceedings before the 
 board, or else for favor, partiality, or mistake. But some courts go much 
 further, and some refuse to hear any allegations or proof against the award. 
 
 Right of owner of shares to demand registry of transfer. 
 
 In the absence of any provision in the organic law of the corporation, 
 the directors have no power to refuse to register the transfer of shares. 
 Re Smith & Co. ; Weston's case, 17 W. R. 62. In the absence of any 
 counter-provision in the organic law of a corporation, the shareholders have
 
 676 APPENDIX OF LATER CASES. 
 
 a right at any time to get rid of their shares by an out and out transfer to 
 any one. lb. Transfer to an infant is not void, but voidable, at his election 
 upon coming of age, and not having done it in five months after coming of 
 age he was held bound thereby. Ex parte Rayner ; Re "Waud, id. 64. 
 
 Costs of litigation when properly chargeable to company. 
 
 If the litigation is undertaken mala fide, and from improper motives and 
 in respect of a matter in which the corporation is only collaterally inter- 
 ested, the costs cannot be charged upon the funds of a municipal corpora- 
 tion. But if undertaken in the bona fide assertion of the rights of the 
 corporation, the expenses are properly chargeable to the company, although 
 the litigation may not have resulted favorably to its interests. Reg. v. 
 Tamworth, 17 W. R. 231. The usages of the stock exchange as to trans- 
 fer of shares binding on parties. Maxted v. Paine, id. 886. 
 
 Transfer of shares as collateral security. 
 
 In such case, the transferee is bound to return the identical shares pledged. 
 And if he sell them, and buy others of the same description for less price, 
 the debtor is entitled to receive the difference. But if the debt being paid 
 and the shares retransferred before he learns that he has not received back 
 the identical shares, he parts with them, so that it is no longer in his power 
 to restore them, he is not in condition to sustain his bill, founded upon an 
 offer to restore the shares received by him. Langton v. Waite, 17 W. R. 
 475. 
 
 Specific contract for sale of shares. 
 
 Such contract will be enforced, notwithstanding the depreciation of the 
 value of the shares in the market by an unexpected caU made. Hawkins 
 V. Maltby, 17 W. R. 557 ; approving case between same parties, 16 id- 209 ; 
 overruling s. c. 15 id. 1075 ; Price v. Denb. R. & C. Railw. 17 id. 572. 
 
 Right to inspect entries in hooks of company. 
 
 The court will allow a passenger who sues a railway for injuries on their 
 trains, to inspect the company's entry of accidents on report of the guard, 
 engineer, &c., kept in obedience to the statute. Woolley v. North London 
 Railw. id. 650 ; s. c. id. 797. 
 
 EMINENT DOMAIN. 
 
 Location of railway confirmed by statute. 
 
 A statute which " ratifies and confirms " the location of a railway, and 
 " the railroad " " as actually laid out and constructed " does not exempt the
 
 APPENDIX OF LATER CASES. 677 
 
 company from liability for injuries caused to public or private rights, by 
 the manner in which they have constructed, or are maintaining, part of the 
 road at the time of the enactment. Salem v. Eastern Railw., 98 Mass. 431. 
 
 Difficulty of accest. 
 
 The difficulty of access to a mill, and consequent loss of custom to the 
 same by reason of the frequent passing of trains rendering it unsafe, is 
 proper to be considered in estimating land damages. Western Penn. 
 Railw. V. Hill, 56 Penn. St. 460. 
 
 Company when liable in ejectment. 
 
 Where a railway company takes possession of the land of another, with- 
 out his consent and without taking proceedings to have the land condemned 
 under their statutory powers, the owner may maintain an action to recover 
 possession of the same. Graham v. Columbus & Ind. C. Railw. 27 Ind. 
 260. 
 
 Relief by injunction for nuisance in navigable highway. 
 
 The principle is the same in such cases, whether the nuisance is created 
 in a tidal or non-tidal river. Attorney General r. Earl of Lonsdale, 17 W. 
 R.219. 
 
 Notice to take land. 
 
 The English courts regard this as a purchase at the election of the land- 
 owner, and will carry it into effect by mandamus, and give substantial 
 damages, in case of restoring the party to his rights as owner of the land. 
 Morgan v. Met. RaOw., 17 W. R. 261. 
 
 Covenants against building upon adjoining lands. 
 
 It is no breach of such covenant on the part of the vendor, extending to 
 the act of his assigns as well as his own, that the land has been taken by 
 a railway company, since such covenant will not extend to the act of a 
 compulsory assignee, like a railway company, acting under their compulsory 
 parliamentary powers. Bailey v. De Crespigny, 17 W. R. 494. 
 
 Extent of lien for price of land taken by railway company. 
 
 In the case of Pell v. Northampton & B. Railw. M. R. 16 W. R. 1077, 
 affirmed by L. C., 17 id. 308, it is held that the owner retains his lien 
 for the price of the land taken by a railway company, and upon which by 
 the vendor's consent the company have constructed and opened their road, 
 and given security for the price, upon which part of it had been recovered 
 by suit. 
 
 The holder of a rent charge in security for the price of land taken by a
 
 678 APPENDIX OF LATER CASES. 
 
 railway company, has a lien superior to the debenture holders of the com- 
 pany. Eyton V. Denb. R. & C. Railw., 17 W. R. 646. 
 
 May take land for substituted road, even when not strictly indispensable. 
 
 It will not deprive a railway company of the power to take land for the 
 purpose of constructing a new way in place of one used by them, that they 
 already have land upon which they might build this way, but for their pur- 
 pose of using such land for the site of a public house. Lamb v. The North 
 London Railw., 17 W. R. 746. 
 
 Extent of powers of company in building branches and new lines. 
 
 In Morris & Essex R. R. v. Central Railw., 2 Vroom, 205, it was 
 decided : 
 
 1. The Central Railroad Co., was chartered Feb. 20, 1847, and has for 
 many years owned and used a road between Elizabethport and Phillips- 
 burgh. Their charter authorized them to construct a " railroad or lateral 
 roads," with a branch road between certain termini, and gave power to 
 build and maintain at the Delaware River, or within thirteen miles of the 
 borough of Easton, such wharves, piers, bridges, and other facilities as 
 they might think expedient and necessary for the full enjoyment of all the 
 benefits conferred by the charter. 
 
 2. In May, 1860, the Morris & Essex Railway, the plaintiff, filed the 
 survey of a route, for the extension of their road from Hackettstown to 
 the Delaware, at Phillipsburgh, and, in 1863, purchased lands in Phillips- 
 burgh, on the line of said route, upon which, they constructed the road-bed 
 as early as April 1, 1864. 
 
 3. On March 24, 1864, the defendants filed a survey or location of a part 
 of their road, in the village of Phillipsburg, the route of which survey 
 crossed the location of the extension above mentioned, thus giving to the 
 defendants a new access to the Delaware River. They afterwards applied 
 to have damages appraised for the lands so to be taken. An award having 
 been made, the proceedings were removed to this court by certiorari. Held, 
 by the court : — 
 
 1. That the defendants' road having been completed and in use, and the 
 branch now proposed to be made, having formed no part of the original 
 plan in making the road, they had no right to add such branch under any 
 provision of the charter. 
 
 2. That the charter gave to the defendants no authority to add a branch 
 or spur to their road. Having laid out the road according to the charter as 
 they understood it, their powers were exhausted. 
 
 3. That the term limited for taking land under the charter had expired, 
 and the right of eminent domain conferred, no longer existed. 
 
 4. By the 7th section of the defendants' charter, it is provided that it shall
 
 APPENDIX OP LATER CASES. 679 
 
 be lawful for the company to change or alter the location of said road, or to 
 locate new lines when additional lines shall be required at any point or 
 points between Phillipsburgh and Elizabethport, not varying in any case 
 over one mile from the line located and filed. The court held^ — 
 
 1. That as the company had not since the passage of the act established 
 any new lines, its power in that respect was not exhausted. 
 
 2. That by the terms " between Phillipsburgh and Easton," as used in 
 the charter, these two places being the termini of the road, are not excluded. 
 
 3. To authorize the Central Railway to cross the track of the Morris and 
 Essex road, it is not necessary that any express power should be given in 
 the charter. 
 
 When cuseasment of land damages to be set aside. 
 
 When in the assessment of damages for lands taken for the purpose of a 
 railway, it appears to the court that injustice has been done through some 
 mistake or misapprehension of the jury, the verdict should be set aside. 
 Cadmus v. Central R. R. Co., 2 Vroom, 179. 
 
 77te interest of a railway company, laid in the streets of a city, in such streets. 
 
 A railway corporation, whose track is laid in the streets of a city, has no 
 such interest in the street as will entitle them to move for an injunction 
 against another company for laying another track in the same street, so 
 remote from the track of the first company, as not in any manner to inter- 
 fere with the use of same. N. Y. & H. Railw. v. Forty-Second Street & 
 G. S. F. Railw., 50 Barb. 285 ; 8. c. id- 309. 
 
 Injuries to land affecting easements therein, not taking of land. 
 
 A. being an owner of a nail factory, together with the easement or right 
 to carry the waters of a creek across a certain parcel of land thereto, the 
 defendant, for the purpose of constructing its railway, acquired by pur- 
 chase a portion of the land subject to such easement. The road being 
 constructed in such manner and upon such a grade that the water could 
 no longer be conveyed to the factory across the land in a straight trunk, 
 the defendant took down the original raceway, and carried the water under 
 the railway track in a new trunk built for that purpose. A. accepted the 
 new structure without objection, and used the water flowing through it during 
 his life: Held, that such acceptance of the substituted structure was, in 
 judgment of law, a compensation for all damages sustained by A. in conse- 
 quence of the removal of the original raceway. Arnold v. The Hudson 
 River Railw. Co., 49 Barb. 108. 
 
 The legislature may rightfully authorize the construction of railways, 
 or other works of public nature, without requiring compensation to be 
 made to persons whose property has not been actually taken or appro-
 
 680 APPENDIX OP LATEB CASES. 
 
 priated for the use thereof, but who may, nevertheless, suffer indirect or 
 consequential damages by the construction of such works. lb. 
 
 The case of a railway company acquiring its roadway, subject to an 
 easement or servitude appurtenant to mill property, consisting of the right 
 to carry water across the land of another to the mill, is within the above 
 principle. lb. 
 
 If the owners suffer an injury, by having an easement impaired, this is 
 an injury which the property suffers in consequence of the construction of a 
 public work under legal authority, and not the taking of the property. lb. 
 
 Such a loss is to be regarded as damnum absque injuria, except in cases 
 where, by statute, compensation is required to be made. lb. 
 
 The principle of the last case is also maintained in Cleveland & Pitts- 
 burgh Railw. V. Speer, 56 Penn. St. 325. 
 
 It was further held in this case, that where the grant for a railway is 
 defined by the extreme termini, and the company have once definitely 
 located the same, they have no further right to change the route. In the 
 first instance, they had an unlimited discretion where to locate the same, 
 and for that purpose might use streets or highways. And if the act of 
 location were voidable, none but the commonwealth could interfei'e. But 
 railways are not precluded from changing the point of a switch and other 
 arrangements in regard to their track, within the limits of the land appro- 
 priated to their road. lb. 
 
 Responsibility of company for legal use affranchise. 
 
 A citizen cannot maintain an action against a railway company for 
 injury to his property by reason of noise, smoke, and offensive odors, caused 
 by the side tracks and the locomotives being placed near his dwelling. lb. 
 
 In estimating land damages for the construction of a railway, all such 
 natural and probable consequences of the works as would occur to the mind 
 of an intelligent viewer must be allowed ; but not such as might result 
 firom improper construction, which the company have no right to do, and 
 are responsible in damages for doing. But the company are liot respon- 
 sible for not building a culvert, so as to carry off the water of an extraor- 
 dinary flood. Pittsburgh, Ft Wayne, &c. Railw. v. Gilleland, id. 445. 
 
 Company cannot assign powers. 
 
 The company, being imable to raise money to build their road, cannot 
 delegate their powers to a natural person ; and if that is attempted, and 
 the road so constructed, a bill in equity will lie against such person to 
 restrain him from creating a nuisance to the adjoining property. Stewart 
 & Foltz's Appeal, id. 413.
 
 APPENDED OF LATER CASES. 681 
 
 Effect of acquiescence on the part of railway company. 
 
 The mere existence and use, for seventeen years, of a turnout from the 
 main track of a railway company, chartered for general purposes, and the 
 receipts by the company from the owner of the turnout for mending 
 the turnout, &c, do not give him an irrevocable right to maintain a frog 
 and switch on such railway. Heyl v. Phil., W. & B. Railw. Co., 51 
 Penn. 469. 
 
 An incorporated railway company is a trustee of the right of way for the 
 commonwealth for the use of her citizens ; and a permissive privilege from 
 such company differs entirely from a privilege on private property by 
 individuals, where the expenditure of money is to be attributed to a mutual 
 understanding that the privilege should remain unaltered. lb. 
 
 Time and mode of exercising compulsory powers against land-owners. 
 
 The charter of the Philadelphia, Wilmington, and Baltimore Rail- 
 way authorizes them, " as soon as they conveniently can," to construct a 
 road with one or more tracks and to make and erect " such warehouses," 
 and all the works and appendages for the convenience of the said company 
 for the use of said railroad." This gives the right to construct sidings, 
 turnouts, stations, engine-houses, and all works and appendages usual in the 
 convenient operation of a railway. Phil., Wil., & Bal. Railw. v. Williams, 
 54 Penn. 103. 
 
 The expression, " as soon as they conveniently can locate and construct," 
 is not a limitation upon the power to compel the company to exercise its 
 whole authority in the very beginning. lb. 
 
 It is not the special use made of the property taken which characterizes, 
 but its convenient necessity for public use. lb. 
 
 The charter giving power to take land, gives power to take a right of 
 way over it, under the maxim, omne majus continet in se minus. lb. 
 
 The charter of the company provides for compensation for taking the 
 right of way, and its owner may have a view to assess the damages when- 
 ever his right is directly injured by entry upon the land. lb. 
 
 " Owners of such acquired land " includes all owners of titles in or 
 growing out of the land, whose rights are capable of actual privation by 
 taking. lb. 
 
 The remedy for obstructing a right of way by a railway track under this 
 charter, is not by action denying the right of entry to take the land, but by 
 application for the assessment of damage. lb. 
 
 A land-owner said to the president of a railway company, when en- 
 deavoring to settle for damages, that if they would run the road " further 
 over" from his house and spring, he would give the land occupied for 
 nothing ; and the president said he would try to accommodate. Heidj that
 
 682 APPENDIX OP LATER CASES. 
 
 this was too slight to prove the grant of a right of way or release of dam- 
 ages ; for there was no designation of the land released. East Penn. Railw. 
 V. Schollenberger, 54 Penn. 144. 
 
 The promise to try to accommodate was not an acceptance of the 
 offer. lb. 
 
 The right of passage which a railway corporation acquires across land is 
 an interest in the land, and must come by private purchase or under the 
 eminent domain which the state has vested in them. lb. 
 
 If the company had the right to deposit stone and earth on land outside 
 the sixty feet appropriated to the road, it was in some sense taking the 
 land, and was a proper subject for compensation. lb. 
 
 Concessions by natural persons to public company construed strictly. 
 
 Where a railway company claim to lay their track upon the land of 
 another, without compensation, and in violation of the constitutional rights 
 of the land-owner, upon the assertion of his contract or assent, it is incum- 
 bent upon them to show by written contract, or very satisfactory proof, 
 that they are acting in conformity to the terms of the concession. Unangst's 
 Appeal, 55 Penn. St. 128. 
 
 Right to inter upon lands for preliminary surveys. 
 
 The legislature may grant the right to enter upon land for the purpose 
 of preliminary surveys, without compensation. Fox v. "Western Pacific 
 Railw., 31 Cal. 538. 
 
 Eule of estimating land-damages. 
 
 The measure of damages for building a railway through a man's land, 
 is the difference between the value of the property before and after building 
 the road. Hornstein v. Atlantic & Gt. West. Railw., 51 Penn. St. 87 ; 
 s. p. in S., F., A. & S. Railw. v. Caldwell, 31 Cal. 867. 
 
 Such advantages only as are special and peculiar to the property in 
 question, not common to the public, are to be considered. lb. 
 
 The viewers and the jury in court are to balance the advantages that are 
 special against the disadvantages that are actual, and decide how much less 
 the land would bring in the market by reason of the road. lb. 
 
 The owner of land adjoining a public street in a town or village, after a 
 public railway is legally laid and established upon the street, has no claim 
 for additional land damages because the company remove the track nearer 
 to his land than it was first laid. That is a privilege inherent in the public 
 authority, and which the company may exercise by delegation. Snyder v. 
 Penn. Railw., 55 Penn. St. 340. This case seems to assume the ground, 
 that the laud-owner whose land is once appropriated for a highway has no
 
 APPENDIX OP LATER CASES. 683 
 
 additional claim for damages by reason of it being thereafter appropriated, 
 also to the additional servitude of the railway track, which claim has been 
 abandoned in most of the other states as no longer tenable. 
 
 CONTRACTS. 
 
 Such errors as are apparent, being errors of computation, may be set right 
 by a court of equity. Neill v. The Midland Railw., 17 W. R. 871. 
 
 RESTRICTIONS IN REGARD TO TOLLS. 
 
 By the charter of the Philadelpliia & Reading Railway, it was provided 
 that the " toll on any property transported should not exceed four cents per 
 ton per mile, and on each passenger two cents." Held, that they might 
 charge for transportation in addition to the toll. Boyle v. Phil. & Reading 
 Railw., 54 Penn. St. 310. 
 
 The company was incorporated as a railroad and transportation com- 
 pany, lb. 
 
 The legislature is presumed to have used words in their ordinary sig- 
 nification, lb. 
 
 " Toll " is a tribute or custom paid for passage, not for carriage ; some- 
 thing taken for a liberty or privilege, not for a service. lb. 
 
 A corporation authorized to engage in a business, as a necessary incident 
 to their authority has the right ordinarily belonging to such business, and 
 compensation for services is inseparable from the right. lb. 
 
 When several distinct powers are given by one statute, the restriction 
 imposed on one are not restrictions on the others. lb. 
 
 FIRES CAUSED BT SPARKS FROM COMPANIES* ENGINES. 
 
 In such cases the company is responsible, where the fire first communi- 
 cated spreads in a direct line, without any break, across the lands of several 
 different proprietors, and a highway, to woodlands half a mile distant from 
 the railway. Perley v. Eastern Railw., 98 Mass. 414. And it is com- 
 petent for the jury to find, in such case, that the back fires kindled in a 
 vain effort to stop the progress of the flames, which were swallowed up as 
 it advanced, did not contribute to the plaintiff's loss. lb. 
 
 The use of any ordinary fuel to make steam in engines on a railway is
 
 684 APPENDIX OF LATER CASES. 
 
 legal. The limit on its use is, that the latest improvements in its manage- 
 ment in practical use should be applied to it. Lackawanna & Blooms. 
 Railw. V. Doak, 52 Penn. St. 379. 
 
 A building near a railway was found to be on fire, whilst a train drawn 
 by an engine without a " spark-catcher " was passing ; there was no direct 
 evidence that the fire had been communicated from the engine. Held, 
 that it was proper for the court to submit the question of negligence to the 
 jury. lb. 
 
 It is the duty of a railway company, in the use of an engine, to use such 
 precaution as might reasonably prevent damage to others ; and failure to 
 do so is negligence. lb. 
 
 There being in the charter of a railway company no prescribed limit of 
 approach towards buildings and bridges, the company may locate their 
 roads and stations on such route and at such points as in their judgment 
 will be beneficial to their own and the public interest. Frankford & 
 Bristol Turnpike r. Philadelphia & Trenton Railw., 54 Penn. St. 345. 
 
 The emission of sparks from the stack of a locomotive is not in itself 
 illegal ; and the loss of property adjacent to a railway from the sparks, 
 apart from the nuisance, is damnum absque injuria. lb. 
 
 The law in conferring the right to use an element of danger, protects the 
 person using it, except for the abuse of his privilege ; but in proportion to 
 its danger will arise the degree of caution and care he must use. lb. 
 
 Great danger demands higher vigilance and more eflBcient means to 
 secure safety. lb. 
 
 It is the duty of railway companies running their engines close to build- 
 ings, to use the utmost vigilance and foresight to avoid injury. lb. 
 
 It is the duty of companies to control their engines carefully, to adopt 
 every known safeguard, and to avail themselves from time to time of every 
 approved invention to lessen their danger. lb. 
 
 Questions of skill, vigilance, care, and proper management in any busi- 
 ness, are questions of fact to be referred to the jury. lb. 
 
 The degree of care having no legal standard, such care must be required 
 as is onlinarily sufficient, under similar circumstances, to avoid the danger, 
 and secure the safety needed. lb. 
 
 It is the duty of railway companies to adopt the best precautions against 
 danger in use ; and it is not sufficient for them to exercise what, under 
 circumstances of less risk, would be ordinary care. lb. 
 
 The court below charged, " if the defendants used ordinary skill in pro- 
 curing a good and safe spark-catcher, such as are most in use in the coun- 
 try, and approved by experienced railway operators and mechanics, they 
 would not be required to use any other or greater care or skill in respect 
 to the spark-catcher used by them." Held, not to be error. lb. 
 
 Evidence of the practice and common use of the stack by many others
 
 APPENDIX OP LATER CASES. 685 
 
 in the same business is admissible on the question of the safety of the 
 stack. lb. 
 
 If the construction of the stack was that which was best adapted for the 
 purpose in known practical use, the duty of the company was per- 
 formed, lb. 
 
 Negligence is the absence of care according to the circumstances. lb. 
 
 INJURIES TO DOMESTIC ANIMALS. 
 
 A party whose cattle, without fault on his part, escape from his 
 enclosure, and wander upon a railway track, and are there killed by alleged 
 carelessness in not slackening the 8j>eed of the locomotive, cannot recover 
 for their loss from the railway company. Price v. New Jersey Railroad 
 & Transp. Co., 2 Vroom, 229. 
 
 There are some very sensible suggestions in Card v. New York & 
 Harlem Railw., 50 Barb. 39, in regard to the duty of an engineer, when 
 he |)erceives that his track is obstructed by cattle. He is not to assume 
 that travellers upon the highway, either when driving cattle or not, will 
 always conduct with entire prudence and discretion ; but he is bound to know 
 and to remember that this is not always the case, and to exercise the more 
 watchfulness to avoid collisions, and especially where he already sees 
 evidence of exposure, either carelessly or not. And the fact that the 
 driver of the animals was not without fault will not excuse the company, 
 if they were reckless or careless, and but for that the injury would not 
 have occurred. 
 
 Cattle suffered to go at large hy law. 
 
 Where, by the laws of the state, the owner of animals is not bound 
 to confine his stock within his own enclosures, or where such a rule is 
 established by the towns or cities, the owner is not guilty of negligence 
 in not confining them ; but he may be guilty of such wilful misconduct in 
 regard to his animals as to render himself liable to a railway company for 
 damages caused by their being upon the track. Hannibal <& St. Jo. Railw. 
 V. Kenney, 41 Mo. 271. 
 
 But in such case the company are not bound to exercise any special 
 watchfulness in regard to cattle; but must conduct their business with 
 reference to their being allowed to run at large, and not injure them, if it 
 can be reasonably avoided. Mich. So. & No. Ind. v. Fisher, 27 Ind. 96. 
 
 Cattle, estrayt, Sfc. 
 
 One who negligently suffers his sheep to stray upon a railway, where 
 they are killed by a passing train, has no cause of action against the com-
 
 686 APPENDIX OP LATER CASES. 
 
 pany. Eames v. Salem & Lowell Railw., 98 Mass. 560 ; Chicago & Alton 
 Railw. V. Utley, 38 111. 410. 
 
 The statute making railways responsible for all damages done to cattle, 
 without reference to any other consideration except the mere fact of having 
 done the damage, is a police regulation for the security of passengers, and 
 applies to companies organized under special charters, as well as under 
 the general law, and has reference to all animals which may be con- 
 trolled by fences. Indianapolis P. & C. Railw. v. Marshall, 27 Ind. 
 300. 
 
 In regard to sufficiency of the averments against a railway company for 
 killing stock, see Great Western Railway v. Hanks., 36 111. 281. 
 
 No more" than the value of animals killed can be recovered, unless 
 there is proof of wantonness or wilful injury. Toledo, P. & W. Railw. v. 
 Arnold, 43 lU. 418. 
 
 FENCES. 
 
 The doctrine of the case of Shepherd v. Buffalo, &c., Railw., 35 N. Y. 
 641, ante, vol. 1, p. 471, affirmed. Tracy v. Troy & Boston Railw., 38 
 N. Y. 433. 
 
 The fact that a railway crossing is near a station, where it would be in- 
 convenient to construct a cattle guard, will not excuse the company 
 from compliance with the positive requirements of the statute to that 
 effect. lb. 
 
 One company running its engines over the track of another company, 
 by special license or permanent contract, or as lessee or joint-owner, is 
 equally responsible for damages done to cattle, through defect of fences, as 
 would be the company owning the track, for committing a similar injury in 
 the same mode. lb. s. p. Toledo & P. & W. Railw. v. Rumbold, 40 111. 
 143. 
 
 A statute, induced by public consideration, in order to protect passen- 
 gers and the owners of domestic animals, along the line of the road, should 
 receive a liberal construction to effect the benign purpose of its framers ; 
 and every statute should be expounded, not according to the letter, but 
 according to the meaning. lb. 
 
 5. The " suitable " fences required by statute, to be maintained by rail- 
 ways, need not necessarily be such as are required to be maintained between 
 adjoining proprietors of lauds, and which by statute are called legal and 
 sufficient. Eames v. Salem & Lowell Railw., 98 Mass. 560. But in 
 Enright v. San F. & San J. Railw., 33 Cal. 230, it is held that " sufficient 
 fences " in such a statute must be considered as " referring to and adopting 
 the general law fixing the standard of lawful fence,"^and with great rea-
 
 APPENDIX OP LATER CASES. 687 
 
 son as it seems to us. But see Chicago & Alton Railw. v. Utlej, 38 
 111. 410. 
 
 liailways are required to build fences along the line of their roads, for 
 the protection of adjoining proprietors, and if waived by the latter the com- 
 pany are not responsible for injury to cattle in consequence of the fence 
 not being built Enright t\ San F. & San J. Railw., 33 Cal. 230. 
 
 Where the owner of land adjoining a railway, for whose benefit and at 
 whose request the company construct an insufficient bar<way, acquiesces in 
 the use of the same without objection, he cannot afterwards recover of the 
 company for any loss in consequence of such deficiencies. lb. 
 
 The question of the obligation of the company to build fence at a par- 
 ticular place, is one of law, and should not be submitted to the jury. Illinois 
 Central Railw. v. Whalen, 42 111. 396. 
 
 A railway company, in purchasing the right of way, bound itself by con- 
 tract with the owner of land through which the road passed, to fence the 
 road through his land. The company neglected to fence, and the owner's 
 cattle being on his land, went upon the road, and were killed by the engines. 
 Held, that he could not recover damages for the injury in an action of tort. 
 Drake v. Pliil. & Erie Railw., 51 Penn. St. 240. 
 
 He should have built the fences himself, before turning his cattle upon the 
 land and was guilty of inexcusable negligence in thus exposing them to 
 almost certain injury. The company having purchased the right of way 
 for a fixed sum of money, and an agreement to fence, the owner had no right 
 to obstruct the road by allowing the cattle to roam upon it. 
 
 But in Fernow v. Dubuque & So. Western Railw., 22 Iowa, 528, it was 
 held the company were responsible in such case ; and that seems to be the 
 general opinion. To render the defendants liable, it must appear that the 
 disaster was exclusively the result of their neglect ; the plaintiff's cattle being 
 on the road, when they ought not to be, he could not recover. lb. 
 
 Whether the plaintiff could recover for the loss of his cattle by an action 
 on the contract, not decided. lb. 
 
 Company not bound to fence against cattle trespassing. 
 
 A railway is not bound to maintain a fence on the line of its road against 
 cattle unlawfully in a pasture adjoining. Mayberry v. Concord Railw., 
 47 N. H. 891. 
 
 Whether it would be otherwise if the owner of the cattle was in posses- 
 sion of the pasture by disseisin, qucere. lb. 
 
 INJURY BY FELLOW-SEKVANTS OR MACHINERY. 
 
 A master who has used due diligence in the selection and employment 
 of his servants, is not responsible for an injury done to one of them by the
 
 688 APPENDIX OF LATER CASES. 
 
 carelessness of another, in the course of their common employment. Har- 
 rison Adm'x. r. Central Railw., 2 Vroom, 293. 
 
 A railway company are responsible to an employee for all damages 
 resulting from their own misconduct ; but to warrant a recovery, the fault 
 or misconduct must be that of the company themselves, and not simply the 
 negligence of a fellow-servant. lb. 
 
 An employer contracts with his employee to use reasonable diligence to 
 protect him from unnecessary risks ; and for the omission of such diligence, 
 which is equivalent to negligence or want of care, he will be answerable to 
 the action of such employee for all damages that may ensue. lb. 
 
 The company are not responsible for the negligence of a servant, by 
 which damage accrues to a fellow-servant, unless wanting in proper care in 
 the selection of such servant, or of improperly continuing him in their 
 service, or for injury to servant from machinery, unless it was unsuitable 
 for use. Weger v. Penn. Railw., 55 Penn. St. 460. 
 
 The servant is by no means entitled to the same redress for injuries as a 
 passenger. The presumption from injury in the case of the latter is against 
 the company ; but in the case of the servant, the presumption is against the 
 servant. lb. Where the injury happened by reason of the foreman's watch 
 being behind time, and his directing the hands to go upon the track when a 
 train was due, the company were held not responsible. lb. 
 
 See also to same effect, Shauck v. Northern Central Railw., 25 Md. 462 ; 
 S. P. Pittsburgh, Ft. Wayne & Chicago Railw. v. Devinney, 17 Ohio, N. S. 
 197 ; Warner v. Erie Railw. Co., 39 N. Y. 468. 
 
 Responsihility of master for tortious acts of servant. 
 
 The master was not held reponsible for his servant driving the master's 
 cart against another in the street, when the servant left the line of the 
 master's business and went some distance out upon his own business, during 
 which deviation the injury occurred. Storey v. Ashton, 17 W. R. 727. 
 
 INJUBIBS IN THE NATUBE OF TORTS. 
 
 The maxim — "So use your own property as not to injure the rights of 
 another " — is applicable alike to corporations and individuals. Hill v. 
 Portland & Rochester Railw., 55 Me. 438. 
 
 A railway corporation has the right to establish reasonable signals, to be 
 given for the starting of trains from its station. lb. 
 
 Whether or not the loud and sudden sounding of a steam-whistle is a 
 reasonable signal for such purpose, and within the rule of ordinary care, 
 depends upon all the circumstances of each particular case ; and it is a 
 question for the jury. lb.
 
 APPENDIX OP LATER CASES. 689 
 
 In the trial of an action for personal injury to the plaintiff, caused by 
 being thrown from his carriage in consequence of his horse becoming 
 frightened at the sound of a locomotive whistle, at a railway crossing near 
 a station, it is competent for the plaintiff to show that the sound of the 
 whistle produced a similar effect upon other horses, at the same time and 
 place. lb. 
 
 Also to show the usual effect of that whistle, at the same place, on ordi- 
 nary horses. lb. 
 
 It is not competent for the corporation to ask a witness acquainted with 
 the practice of railways generally, and who had the charge of another rail- 
 way for sixteen years, whether or not, in his opinion, the signals in question 
 were " reasonable or unreasonable," " prudent or extraordinary," or whether 
 or not similar signals were given by other railway corporations. lb. 
 
 One who approached a railway at a point in a town where he had often 
 crossed, muffled in his coat within the covered top of his wagon, taking no 
 notice of the railway, and drove slowly upon the track without stopping 
 or looking out, was guilty of negligence. Hanover R. Co. v. Coyle, 55 
 Penn. St. 396. 
 
 In an action against a railway for injuring the plaintiff by negligence, 
 the court below admitted declarations of the engineer, by whose negligence 
 the plaintiff was injured, made at the time of the injury, as part of the res 
 gest<e, and it was held not to be error. lb. 
 
 The plaintiff was a pedler; evidence of the annual amount of his sales, 
 the profit he made, tended to show the amount he might have earned if he 
 had been able to attend to his business, and was admissible. lb. 
 
 In the case of Wilcox v. Rome & Watertown Railw., 39 N. Y. 358, 
 the general question of the duty of travellers and railway companies at 
 road crossings is considerably discussed, and it is said that it is the duty of 
 the traveller before crossing a railway track to look out, and also to listen, 
 for an approaching train, and if it appears that he might have seen it if he 
 had looked, and he was killed in crossing, it will be presumed he did not look, 
 and so was guilty of culpable neglect, which will preclude any recovery, 
 on account of the death. And the fact that the company omit the statute 
 duty required of them, in not ringing the bell and sounding the whistle, 
 will not excuse the traveller in omitting any precaution to insure his 
 safety. lb. 
 
 Where a passenger carrier by steamboat was sued for injury to another 
 boat through want of due care, it was held that, notwithstanding the fact 
 that the passenger carrier owed the highest possible degree of care to his 
 passengers to avoid the collision, so as not to expose them to injury, he was 
 only bound to exercise the care of a prudent owner towards the owner of the 
 other boat, and could only be held responsible for want of that degree of 
 care. Ph., W. & Baltimore Railw. v. Kerr, 25 Md. 521. 
 
 44
 
 690 APPENDIX OF LATER CASES. 
 
 The burden of proof in this class of cases is upon the plaintiff to show 
 that his injury resulted from the want of ordinary care upon the part of the 
 company. Baltimore & Ohio Railw. v. Bahrs, 28 Md. 647. The company 
 is bound to exercise such care in moving trains about the city of Baltimore 
 as a prudent person would, having equal reference to the despatch of the 
 business of the company and the safety of others. Bannon v. Baltimore & 
 Ohio Railw., 24 id. 108. The infancy of the person injured will not affect 
 the duty of the company. lb. 
 
 A railway company is not bound to keep a flagman at a road crossing to 
 give travellers notice of the approaching train. It is only bound to run its 
 trains in a «areful and prudent manner, so as not needlessly to inflict 
 damage upon others. But it may, by having kept a flagman at a road or 
 street crossing, have so far excited the public expectation of being warned 
 of danger in that mode, as to make it an act of negligence on the part of the 
 company to withdraw the flagman, for which the company would be held 
 responsible where injury occurred in consequence. Ernst v. Hudson 
 River Railw., 39 N. Y. 61. 
 
 Case illustrating the proper degree of care to be exercised by the 
 driver of street cars, as well as by the owners of other carriages. Cook v. 
 Met. Railw. 98 Mass. 361. 
 
 The effect of certain kinds of contributory negligence, as being in a car- 
 house, without the knowledge of the railway employees ; or attempting to 
 cross a railway track where a train is within forty feet, is considered in 
 Lehey v. Hudson River Railw., 4 Rob. (N. Y.) 204 ; Schwartz v. The same, 
 id. 347. The plaintiff was held in both these cases not entitled to recover, 
 by reason of such negligence on his part. See also Ernst v. Hudson 
 River Railw., 39 N. Y. 61 ; Edgerton v. N. Y. & H. Railw., id. 227. 
 
 If a railway construct an open crossing at the intersection of a way laid 
 open by dedication, so as to become public, they are bound to maintain it in a 
 safe condition for passing. At road crossings, both the railway company and 
 travellers are bound to exercise care to prevent collisions. The traveller, 
 in approaching, is bound " to stop, look out, and listen," and if he fails to do 
 so he cannot recover for any damage he sustains by any collision with the 
 company's trains. So, too, if the traveller by defect in the crossing is 
 stopped upon it, he must do all in his power to notify any trains which 
 may approach, and to extricate himself as soon as possible, and if he fails in 
 either particular, and that contributes to his damage, he cannot recover. 
 And it is the duty of the company on approaching a crossing to give all 
 notice of their approach by the usual signals, and to look out for objects at 
 the crossing, and if any thing is seen to stop the train, as speedily as 
 possible. Pittsburgh, Ft. Wayne, & Chicago Railw. v. Dunn, 56 Penn St. 
 280. See also Baltimore & Ohio Railw. v. Breinig, 25 Md. 378.
 
 APPENDIX OF LATER CASES. 691 
 
 DIRECTORS. 
 
 Directors retponsibU for the atUhority they assume. 
 
 The duty of the directors of joint-stock companies to serve the interests 
 of the company, and their responsibility in making contracts on behalf of 
 the company, has been considerably discussed in the Knglish courts of late. 
 In Colonial Bank of Australasia v. Cherry & McDougall, 17 W. R, 1031, 
 the Judicial Committee of the Privy Council held, mainly upon principle 
 and the authority of Mr. Justice Story's Agency, that when the directors 
 assume to act on behalf of the company they impliedly warrant their au- 
 thority to bind the company. And where directors stated, without inten- 
 tion to deceive, that they had appointed an agent with certain powers, and 
 they had not in fact authority to give any such powers, it was held they 
 were responsible, without proof of any actual warranty, that being implied 
 from the appointment of the agent to do the act. Ilv 
 
 Directors when responsible for the act of co-directors. 
 
 A director of a company who knows that his co-directors are misappro- 
 priating the moneys of the company, or are otherwise guilty of a breach of 
 trust, is bound to take active and immediate steps to prevent the same, by 
 notification to the shareholders or otherwise ; or if he cannot prevent the 
 same without filing a bill in chancery, to do that, and if he fails to do this 
 he will be held to have concurred in the breach of trust, and will be held 
 responsible accordingly, notwithstanding any amount of mere protest against 
 the proceeding. And a director who signs checks to the prejudice of the 
 company cannot be excused on the ground that it was done as " a matter of 
 routine " or as " a ministerial act." Joint Stock Discount Co. v. Brown, 17 
 W. R. 1037. 
 
 Power of directors and duty of courts in controlling their action. 
 
 The directors of a railway corporation, acting in good faith, have power 
 to issue convertible bonds in the name of the corporation, for the amount 
 they may borrow to complete and finish, or to operate the road, with the 
 right to authorize their conversion into stock, although it increases the 
 amount of capital stock beyond that fixed by the charter. And that being 
 so, the right of the directors to issue stock in conversion of such bonds is 
 clear. Belmont v. Erie R. R. Co., 52, Barb. 637. 
 
 If the court were satisfied, however, that bonds were about to be issued 
 by the directors of a corporation, not for the payment of money actually 
 borrowed for the purposes authorized by the charter, but as part of a 
 fraudulent device to increase the stock, the issuing of them might be re- 
 strained by injunction. lb.
 
 692 APPENDIX OP LATER CASES. 
 
 So while the bonds remain in the hands of any persons affected with 
 notice that they do not represent a honafide indebtedness, but were issued 
 with such fraudulent design, the issuing of stock in conversion of them 
 may also be enjoined. lb. 
 
 To enable a stockholder in a corporation to maintain an action to re- 
 strain the directors from the exercise of their corporate powers and for the 
 appointment of a receiver, the risk and responsibility must be upon him — 
 so as to afford a guarantee that he is acting for the benefit of the company. 
 If it appears that other persons whose interests are hostile to those of the 
 company have agreed with the plaintiff to bear and pay the expenses of 
 the litigation, any relief, especially upon an interlocutory motion, will be 
 refused. lb. 
 
 Although a stockholder of an incorporated company may have an 
 injunction to restrain illegal acts of the directors, and in certain cases 
 he may have a receiver appointed of a particular fund the proceeds of an 
 unlawful act, yet where the complaint makes no case for any partial re- 
 ceivership, but while neither charging insolvency, nor asking to dissolve 
 and wind up the company, prays " that a receiver may be appointed of 
 all and singular the funds and books and papers and rights of action 
 of such company," the court is not authorized to appoint a receiver, the 
 effect of which would be to remove all the directors. lb. 
 
 A court of equity has no visitorial power over corporations, except such 
 as may be expressly conferred on it by statute. lb. 
 
 An action will not lie in behalf of a stockholder in a corporation and its 
 directors to remove the directors and appoint a receiver of all the prop- 
 erty, rights of action, and records of the company, and for an injunction, 
 upon allegations of misconduct in a part of the directors only, in which the 
 others are not charged with participating — except that they are \mder the 
 influence of the former. lb. 
 
 The misconduct of some, or even all, of the directors, affords no ground 
 for taking away the right of the stockholders, who constitute the company, 
 either by dissolving the corporation, or taking away its management and 
 placing it in the hands of an officer of the court. lb. 
 
 The dviy of the directors to serve the interests of the company. 
 
 This duty is so imperious and unyielding, that no contract made by one 
 of the directors of the company to accept the assignment of a portion of the 
 contract for construction without the knowledge of the company can be 
 upheld. And the fact that no injury accrues to the company in conse- 
 quence will make no difference. Flint & Pere M. Railw. v. Dewey, 14 
 Mich. 477.
 
 APPENDIX OP LATER CASES. 693 
 
 Directort personally responsible to refund money expended by them in " rig' 
 
 ging the market." 
 
 By this is understood purchasing shares above par for the purpose of 
 raising the credit of the shares. Land Credit Co. of Ireland v. Lord 
 Fermoy, 17 W. R. 562. 
 
 So, too, all the members of a committee of directors are responsible for 
 the loss of money which one of their number has misapplied, if the money 
 went into his hands with the consent of the others. Ottoman Co. v. Far- 
 ley, id. 761. 
 
 MANDAMUS. 
 
 It will not lie when the statute has provided another adequate remedy. 
 Louisville, «&c Railw. v. State, 25 lud. 177. 
 
 The remedy is discretionary, and will pever be awarded where there 
 is another sufficient remedy. People v. Hatch, 33 111. 9. The applicant 
 must show a clear legal right to the redress sought. lb.
 
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