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Full text of "The law of railways: embracing corporations, eminent domain, contracts, common carriers of goods and passengers, telegraph companies, equity jurisdiction, taxation, constitutional law, investments, &c., &c"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 






THE 



LAW OF RAILWAYS: 



EMBRACING 

CORPORATIONS, EMINENT DOMAIN, CONTRACTS, COMMON 

CARRIERS OF GOODS AND PASSENGERS, TELEGRAPH 

COMPANIES, EQUITY JURISDICTION, TAXATION, 

CONSTITUTIONAL LAW, INVESTMENTS, 

&c, &c. 



BY 



ISAAC F. REDFIELD, LL.D., 

CHIEF JUSTICE OF VERMONT. 



FIFTH EDITION, 

CAREFULLY REVISED AND ENLARGED. 



VOL. I. 



BOSTON: 

LITTLE, BROWN, AND COMPANY. 

1873. 



Entered according to Act of Congress, in the year 1857, by 

ISAAC F. REDFIELD, 

In the Clerk's Office of the District Court of the District of Vermont. 



Entered according to Act of Congress, in the year 1858, by 

ISAAC F. KEDF1ELD, 

In the Clerk's Office of the District Court of the District of Vermont. 



Entered according to Act of Congress, in the year 1867, by 

ISAAC F. REDFIELD, 

In the Clerk's Office of the District Court of the District of Massachusetts. 



Entered according to Act of Congress, in the year 1869, by 

ISAAC F. REDFIELD, 

In the Clerk's Office of the District Court of the District of Massachusetts. 



Entered according to Act of Congress, in the year 1873, by 

ISAAC F. REDFIELD, 

In the Office of the Librarian of Congress, at Washington. 



T 
£2415 r 

\tl3 



CAMBRIDGE: 

PRESS OF JOHN WILSON AND SON. 



i? 



I 



PREFACE TO THE FIFTH EDITION. 



We have made no change in the arrangement of the 
work, in this edition, except to place the title of each sep- 
arate portion of the work on the leaf preceding it, and to 
number the Parts, and place their titles on the first page 
of the Table of Contents, as a Summary ; thus enabling 
any one to see at a glance what the work contains. It 
will thus be seen that it really embraces the discussion of 
thirteen distinct topics of law, in each of which is em- 
braced an analysis of the law, almost as comprehensive 
and complete as a distinct treatise. The Parts upon 
Corporations ; Common Carriers of Goods and Passen- 
gers ; Telegraphs ; Mandamus ; Certiorari, and some 
others, are complete treatises, and all the Parts embrace 
every thing pertaining to railways, and much more. 

The plan of the work is novel, but it seems the only one 
suited to such a work ; and by striking out nearly all the 
opinions in the notes, and rearranging to some extent 
the other portions of the notes, so as to bring them into 
the same order as if now prepared for the first time, we 
have saved nearly space enough for the new matter 
added, and at the same time have been able to have the 
work come nearer its original ideal — that of giving the 



756029 



iv PREFACE TO THE FIFTH EDITION. 

matic analysis of principles in the text, and a com- 
plete digest of all the cases in the notes — than has ever 
been possible before. 

The American opinions found in the notes to the for- 
mer editions were originally inserted, because they con- 
Btituted, to Bome extent, the basis of important doctrines, 
connected with the law of railways, and could not be 
readily obtained elsewhere by the profession in many por- 
tions of the country. But now that we are able to fur- 
nish tin- leading American cases upon the subject in 
separate volumes, to those who desire to obtain them 
in thai form, there seems no propriety in longer in- 
cumbering the pages of our principal work with any of 
them, however indispensable it might formerly have been. 
And although many law book-makers have adopted that 
course, and some of high authority, at an early day, we 
glad to see that the fashion is going into disuse, as 
we have long since become convinced it w r as not the best 
nmde. either in writing or editing law books, and have 
eliminated as fast as possible all extended opinions from 
all law treatises with which we have had to do of late. 
Where an opinion contains the basis of the law upon a 
particular point, as some of the English cases do, and 
bl) some few of the American cases, it may as well 
riven in that form; and when a brief extract from an 
opinion gives the very point we desire, it comes with more 
it in that form than any other; but, beyond that, 
opinions Bhould never be permanently retained in text- 
books. 

'I"h'- additions to the present edition, both in the text 
and notes, have been very large for the short time since 



PREFACE TO THE FIFTH EDITION. V 

the former one, covering about a hundred pages in the 
work itself, besides the appendix of the latest cases, re- 
ported while the work was in press. When any late case 
establishes any new point, it is inserted in the text, and 
the exact point of all the new cases is given in the notes, 
when it varies in any particular from those before stated. 
. We have not the vanity to suppose the work will be 
found perfect, or complete in all its details. That is 
scarcely to be expected in any work covering so wide a 
space. But we believe it contains as much that will be 
found useful and instructive, both to students and the 
profession generally, as it would be reasonable to expect 
in the same space, without such an extreme degree of 
condensation as greatly to impair both its clearness and 
completeness. 

In taking leave of our professional brothers, we beg to 
assure them how deeply and gratefully we appreciate their 
uniform kindness and respect ; and our only surprise is, 
that, in our humble and patient way of daily toil on their 
behalf, we should have been able to earn so much at their 
hands. We will not, however, impugn their good sense 
and discrimination by presuming to doubt its propriety, 
however difficult it may be for us always to compre- 
hend it. 

I. F. R. 

Boston, Jan. 1, 1873. 



PREFACE TO THE FOURTH EDITION. 



]\ presenting this edition of our first book to the profes- 
sion, we have to crave the indulgence of an elder brother, 
in alluding briefly to the origin and history of the work. 
The book was undertaken at a period when we had it in our 
power to command considerable portions of time, in every 
year, for uninterrupted study. The work was, therefore, 
prepared with great labor and care ; and so carefully printed 
as to attract special attention abroad on that account. It 
was everywhere received in a spirit, and with a degree of 
cordial commendation, both at home and abroad, which the 
author had scarcely dared to expect. But it was gratifying 
to feel that his efforts to give the entire law upon every topic 
he touched, as fully as if a special brief had been prepared 
upon the particular points, and, as nearly as might be allow- 
able in the form of successive judicial opinions upon the 
si vera) subjects, were duly appreciated by the profession, or 
certainly by those who had leisure and opportunity to exam- 
ine tip work carefully. 

1 hit for some reasons the first two editions did not obtain 
Ktensive a sale as to become at all remunerative for the 
very large amount of labor bestowed. This led us to sus- 
pect that the baldness of our title, " The Law of Railways," 
might have led the mass of the profession, who were not 
much engaged in railway litigation, to suppose that our book 
treated of do other topics. We were convinced that the 



PREFACE TO THE FOURTH EDITION. vii 

book was not generally understood to comprehend compact 
treatises upon Corporations ; Eminent Domain ; Contracts 
for Construction ; Mandamus ; Certiorari ; Equitable Con- 
trol of Public Works ; Taxation ; Indictments against 
Corporations ; Quo Warranto ; Constitutional Questions 
affecting Legislative Grants ; Investments, Stocks, Mort- 
gages, Police, Amalgamation, &c, as well as all other mat- 
ters in the law, more exclusively affecting railways. 

When the third edition was called for, we resolved to make 
the treatment of the above topics, and all others in the book, 
as complete as possible ; and to that end had expended a 
large amount of labor ; but before the work was more than 
half through the press, we received an unexpected public 
appointment abroad, which compelled us to push the first 
half of the second volume through the press in a few days, 
and to leave the remaining materials in very judicious hands, 
to be used as far as needful in completing the volume in 
proper size; and which, we are happy to say, was exceedingly 
well done. But the difficulty in knowing precisely what to 
omit, in our absence, led to the natural result of using the 
whole ; which swelled the second volume to somewhat un- 
wieldy proportions ; and presented some matters, which we 
had originally prepared for other occasions, in a shape not 
fully assimilated to the present work. 

By enlarging in the present edition the scope of the work 
on Common Carriers of Goods and Passengers, and Tele- 
graphs, so as to embrace the entire range of those topics, 
and form complete treatises upon those important subjects, 
and nearly so upon all the subjects treated ; we are now en- 
abled to omit all matter contained in the third edition not 
entirely in harmony with the plan of the work. This matter 
will be published soon, in a separate volume of leading cases 
and opinions upon the Law of Railways, with extensive notes, 
as a supplement to the main work, but sold separately to such 
as may desire it, whether with or without the main work. 



yiii PREFACE TO THE FOURTH EDITION. 

A- this edition is but the carrying out of our original pur- 
rd to the third edition, by perfecting the treat- 
ment of each topic, so as to embrace complete treatises upon 
each, and extending the title so as to give some hint of what 
the book contains; it may be proper to add, that the third 
edition met with a very extended and rapid sale, so as to 
prove more remunerative to the author in two years than in 
the ten preceding years. And as the work seems now to 
have obtained the very general confidence of the profession 
at home, and as the author has received many very flattering 
testimonials in regard to the last edition, while abroad, he 
trusts no apology will be required for quoting a brief extract 
from that of the Lord Chief Justice of England, especially 
as it breathes so much of that cordial fraternal spirit towards 
hi- American brothers, engaged in the same great field of 
labor, and which it will be the pleasure of every noble-hearted 
and cultivated patriot, in this country, to reciprocate. 

Bis Lordship says, in regard to the Wills and Railways: 
•• 1 Laving now read the books through, I beg, in offering you 
my most sincere thanks for your gift, to add the expression 
of my admiration for the great learning, research, and power 
of reasoning, displayed in these valuable treatises. They 
must. I am convinced, prove standard works on the subjects 
of which they treat, and must prove a very valuable addition 
to the juridical literature, which, I am happy to think, is 
common to our two countries. America may indeed be 
proud of her jurists, who have done so much for the pro- 
motion ot" legal science." 

We cannol but feel some well-grounded trust, that the 
tit edition will be found useful to the general practi- 
tioner, who desires to have always at hand, in compact form, 
the synopsis of the law upon the many important topics 
discussed in the- two volumes. And to that end we have 
done all in our power to make the book as complete as 
'!<•• There will, no doubt, be found some errors and 



PEEFACE TO THE FOURTH EDITION. IX 

defects, since it is not possible to exclude all errors from so 
extended and complicated a work, or to have it contain all 
that every one would most desire. If it shall prove a rea- 
sonably successful accomplishment of the author's purpose, 
it will be a sufficient reward for a large amount of labor, 
through many years, which no faithful book-maker, in the 
profession of the law, can reasonably expect to have fully 
compensated in any other mode. 

I. F. R. 
Boston, Sept. 1, 1869. 



PREFACE TO THE FIRST EDITION. 



This work was undertaken with the purpose of supply- 
ing, whal seemed to the writer a want, if not a necessity, to 
the profession in this country; a book upon the law of rail- 
. which should present, within reasonable compass, and 
in a properly digested form, the whole law upon the subject, 
both English and American. No treatise had attempted this. 
Ami the attempt has confirmed the expectation, that the 
accomplishment of such an undertaking would be attended 
with labor and perplexity. 

It seems desirable that such a work should present every 
ease which has been decided in both countries, in such a form 
as to make the point of decision plain and obvious, and at 
the same time not convert a treatise into a mere digest. A 
mere treatise, too, upon the principles involved in the sev- 
eral departments of the law brought under discussion in such 
a work, would he of little benefit except to the student. 
This, too, will be found in the approved treatises already 
published upon these several subjects. On the other hand, 
a digesi of the cases upon any plan, however comprehen- 
sive or philosophical might be the analysis, would appear 
an unsatisfactory labor when we have already so much of 
the kind. 

It is the mdcavor of this undertaking to combine the two 

in Buch a manner as to render the work intelligible, and in- 

in exposition of the principles involved; and at 

the Bame time present a thorough analysis and digest of all 



PREFACE TO THE FIRST EDITION. XI 

the important cases upon the subject, in such a manner as 
to enable the reader at once to know the result of all the 
decisions upon the several topics discussed. 

The plan of the work is mainly new, and the effort has 
been to render it natural, simple, and comprehensive. The 
manner of arranging the heads to the several subdivisions 
has been adopted chiefly with a view to enable the profes- 
sion to find at once whatever the work contains upon any 
topic or question. 

How far the design of the author has been accomplished, 
he submits to the indulgent judgment of his professional 
brethren who have hitherto shown him so much forbear- 
ance. In justice to himself, perhaps it should be here 
mentioned, that the work has been prepared under some 
disadvantages, from the constant pressure of official duties 
which could not be required to accommodate themselves, in 
any respect to the demands of this subordinate labor. It 
has thus happened, that, although a considerable time has 
elapsed since the work was seriously taken in hand, it has 
of necessity been done, to a great extent, at such intervals, 
more or less extensive, as circumstances would allow the 
writer to command, and always in haste. 

If some mistakes should be discovered, therefore, and 
some graver faults even, it is hoped that the profession will 
bear with them ; with the assurance that, if the work should 
be found of sufficient importance to require another edition, 
they will be corrected ; and that, if no such demand should 
be made, the work' has probably received as much labor as 
it deserves. 

I. F. R. 

Windsor, Vt., Nov. 20, 1857. 



SUMMARY OF CONTENTS. 



PART I. 

The Law of Preliminary Associations 5-52 

PART II. 

The Law of Corporations 53-229 

PART III. 

The Law of the Right of Way; Eminent Domain, etc. . . 231-400 

PART IV. 

The Law of Contracts as to Railway-Construction ; Tolls, etc. 401-469 

PART V. 

The Law of Responsibility for Fires ; for Injuries to Do- 
mestic Animals; for Fences 470-524 

PART VI. 

The Law of Agency as to Railways 525-655 

PART VII. 

The Law of Mandamus axd other Prerogative Remedies . . 656-706 

Appendix of Later Cases 707-719 

Regulation of Traffic on Interstate Railways by Congress 721-729 



ANALYSIS OF CONTENTS. 



\CF" The citations to other portions of the work are thus expressed, § — pi. — n. — , and the §§ are placed 
in the inner margin of the pages, for convenience of reference. The paging of the fourth edition is 
preserved in this edition at the bottom of the page. 



CHAPTER I. 



INTRODUCTION. 



PAGE 

1. Origin of railways in England 1, 2 

2. First built upon one's own land, or by special license from the owner . . 2 

3. Questions in regard to private railways 2 

4. Railways in America, public grants 3 

5. Use of steam-power on railways 3 

6. The franchise of a railway not necessarily corporate nor unassignable . . 4 



PART I. 
THE LAW OF PRELIMINARY ASSOCIATIONS. 

CHAPTER II. 

PUBLIC RAILWAYS AS CORPORATIONS. — PRELIMINARY ASSOCIATIONS. 

SECTION I. 
MODE OF INSTITUTING RAILWAY PROJECTS. 

1. Subscribers' Associations in England 7 

2. Subscribers bound by subsequent charter 7, 8 

3. Issue and registry of scrip certificates 8 

4. Original subscriber liable to unregistered purchaser 8 

5. Holders of scrip entitled to registry 8, 9 

6. Preliminary associations not common in this country 9 

7. Petitioners for incorporation file plan and surveys 9, 10 

8. Present English statutes 10 

9. Preliminary associations may be registered 10 

10. Not now held responsible as partners in England 10 



KV i AN UiYSIS OF CONTENTS. 

SEI TION II. 

I,,, PROMOTERS tfOl BINDING AT LAW UPON THE COMPANY. 

untry promoters only bind themselves and their associates . . 11, 12 

. re nol enforceable by company 12, 13 

a decree in equity setting up the contract, the com- 
. ; I to have adopted it 13 

SECTION III. 

R.8 rO THE PRELIMINARY ASSOCIATION INTER SESE. 

■ f directors limited by terms of subscription 13,14 

on not binding until preliminaries arc complied with 14 

how far controlled by oral representations of directors ... 14 

iused from paying calls by contract of directors ... 14 

cepl by terms of agreement 14,15 

. terally make provision for expenses 15 

■ obtains shares without executing the deed not bound to con- 
tribute 15 

nil i icrship subsists between subscribers . . . 15-17 

SECTION IV. 

PRAI I- OF THE PROMOTERS ADOPTED BY THE COMPANY. 

lility may lie transferred with assent of creditors, but not unless that 

■ table 16-18 

rovisional company to contract limited by statute . . . .17,18 

SECTION V. 

OP Till. PROMOTERS MAY BE ADOPTED BY THE COMPANY. 

me the benefit without the burden 18 

SECTION VI. 

'• I ' N llll. PROMOTERS AND OPPOSERS OP A BILL FOR THE 
• II \UI l.i: OF A RAILWAY. 

11 ■ - numerous 19 

ipinion in the case of Vauxhall Bridge Col '.'.'.'.'. ! 19-21 

section vn. 

COHTRA< I- OF nil, PROMOTERS KNFORCED IN EQUITY. 

. Grand Junction Railway 22-24 

SECTION VIII. 

" THE PROMOTERS BINDING UPON THE COMPANY AT LAW. 

in 25 26 



ANALYSIS OP CONTENTS. XVU 



SECTION IX. 

WHAT CONTRACTS BETWEEN THE PROMOTERS OF RAILWAYS AND OTHERS WILL BE 
ENFORCED, EITHER IN LAW OR EQUITY, AGAINST THE CONTRACTING PARTIES 
OR THE COMPANY. 

1. Contract to take land of opposing party 26,27 

2. Contract prejudicial to the public 27 

SECTION X. 

COURTS OF EQUITY WILL ENFORCE CONTRACTS WITH THE PROMOTERS. 

1. Bona fide contract, not evading statute, valid 27, 28 

n. 8. Statement of English cases 28-40 

SECTION XI. 

SUCH CONTRACTS ENFORCED WHERE THE RAILWAY IS ABANDONED. 

1. Where a certain sum is to be paid to quiet opposition 29-35 

2. Merely provisional contracts not always enforced 36-40 

SECTION XII. 

PRACTICE OF COURTS OF EQUITY IN DECREEING SPECIFIC PERFORMANCE. 

1. Mutual arrangements protected in chancery 41 

2. But decisions are conflicting. In cases of doubtful right, plaintiff is remit- 

ted to common law remedies 41, 42 

n. 2. Statement of cases 41-45 

SECTION XIII. 

SPECIFIC PERFORMANCE IN COURTS OF EQUITY. 

Object of courts to compel good faith when a definite contract is made . . . 43-46 

SECTION XIV. 

COURTS OF EQUITY MAY RESTRAIN A PARTY FROM OPPOSITION OR PETITION IN 

PARLIAMENT. 

1. Such cases not common in 1 practice 46, 47 

2. Such cases not readily recognized 47 

SECTION XV. 

CONTRACTS TO WITHDRAW OPPOSITION TO RAILWAY PROJECTS AND TO KEEP THIS 
SECRET, AGAINST SOUND POLICY, AND WOULD SEEM TO BE ILLEGAL. 

1. Principle of foregoing decisions obscure 47, 48 

2. Not adopted in this country unless terms inserted in charter 48, 49 

3. Recent change of views in English courts 49 

3-5. Statement of late .case in which principle of Edwards v. Grand Junction 

Railway is doubted 49 

6. Act of incorporation should not be varied by oral testimony 49, 50 

YOL. i. b 



I 



xv iii ANALYSIS OP CONTENTS. 

t 8 to quiet opposition not favored in this country 50 

,nd American decisions r\ A 

,••,*:, 'j ' eo 

f legislature not exposed to be misled o^ 



I 'ART II. 
THE LAW OF CORPORATIONS. 

CHAPTER III. 

RAILWAYS AS CORPORATIONS. 

SECTION l. 

ORIGIN AM> DIFFERENT CLASSES OF CORPORATIONS. 

porations dates very early 55 

2. The different kinds of corporations, sole and aggregate 55,56 

8. This work treats chiefly of aggregate joint-stock corporations . .... 56 

rporationB are eitl iastical or lay 56,57 

are divided into eleemosynary and civil corporations 57 

porations are public or private 57 

ations where stock is private property 57 

iic corporations where stock is owned and management retained by the 

58 

ect tin' private character of a corporation that the State or 

the United States own a portion of the stock 59,60 

tinction between corporations and partnerships. The latter defined 60, 61 
11. Farther definition of the distinction between corporations and partnerships 61 

SECTION II. 

now CORPORATIONS ARE CREATED. 

1. Corporations created by grant <>t' the sovereignty. This may be proved by 

implication or by presumption 62 

- Th( v may establish corporations hy general act, or by delega- 
tion or inoculation 62, 63 

• forms of defining a corporation 63 

a of corporations restricted to State creating them . . 63 

irs and agents in other States 63,64 

d. 10. But cannot properly transfer its entire business to another State . . . 64 
ited at one place cannot establish a branch at another ... 64 

SECTION III. 

Till CONSTITUTION "i CORPORATIONS AND MODE OF PROOF. 

oe of the different sense of the term constitution, as applied to cor- 

' gg 

may be composed or constituted . ....'.'.' .' .'■ 65 

n illustrated more iii detail 65 66 

•Hon .,f legislative, electorial, and administrative assemblies not 






66 



i only act by its name. Subject discussed' .' .' .' .' '. '. 66 



"\ ANALYSIS OP CONTENTS. xix 

5. Any deviation from the name allowed, if the substance and sense be pre- 

• served 67 

6. Courts of equity will not restrain corporations from applying for enlarged 

powers 67 

7. Change of constitution. Effect of change of name 67,68 

8. Courts of equity will enjoin a new corporation from assuming the name of 

one of established credit 68 

9. Promissory note payable to A. B., treasurer of a corporation, may be sued 

in the name of A. B. Promissory note for subscription waives condi- 
tion • • • 68 

10. Corporation may be estopped to deny its existence. How described . . 68, 69 

11. How the existence and nonexistence of corporations may be proved . . . 69 

12. Party to written contract, payable to corporation, cannot deny corporate 

existence 69 

13. Proof of corporation in fact sufficient in all cases 69 

CHAPTER IV. 

PROCEEDINGS UNDER THE CHARTER. 

SECTION I. 
ORGANIZATION OF THE COMPANY. 

1. Conditions precedent must be performed 70 

2. Stock must all be subscribed, ordinarily 71 

3. Charter, location of road, condition precedent 71 

4. Colorable subscriptions binding at law 71, 72 

5. Conditions subsequent, how enforced 72 

6. Stock distributed according to charter 72 

7. Commissioners must all act 72, 73 

8. Defect of organization must be pleaded specially 73 

9. Question cannot be raised collaterally 73 

10. Records of company, evidence 73, 74 

11. Membership how maintained 74 

12. By subscription and transfer of shares 75 

13. Offers to take shares not enforced in equity, and may be withdrawn ... 75 

SECTION II. 

ACCEPTANCE OF CHARTER, OR OF MODIFICATION OF IT. 

1. New or altered charter must be formally accepted 75, 76 

2. Subscription for stock sometimes sufficient 76 

3. Inoperative unless done as required 76 

4. Assent to beneficial grant presumed 76 

5. Matter of presumption and inference 76 

6. Organization or acceptance of charter may be shown by parol .... 76 

7. Corporators assenting are bound 76, 77 

8. Charter subject to recall until accepted 77 

SECTION III. 

ORDINARY POWERS. CONTROL OF MAJORITY. 

1. Ordinary franchises of railways 77,78 

2, 3. Majority control, unless restrained 78 

4. Cannot change organic law 78, 79 

5. Except in the prescribed mode 79 

6. Cannot accept amended charter 79 

7. Or dissolve corporation 79 



xx ANALYSIS OF CONTENTS. 

nlarged powers ■•■■••■•• ••.;*•• • JJJ 

• , quitj "ill ii"! restrain the use oi their funds for that purpose . HO 

., n canal into railway 80 

B losl by acquiescence 81 

i i our plaintiff) fatal 81 

.i public trus! 81 » 82 

n tamed l>v rival interest °z 

\ will aot restrain the majority l'rom winding up unless for 
82 

SECTION IV. 

MEETINGS OF COMPANY. 

1 M ial and general 83 

musl be notified as required 83 

ind important matters, named in notice 83, 84 

al meetings need not name business 84 

turned meeting, still the same 84,85 

- by meetings, by directors, by agents 85 

esume meetings held at proper place 85 

- 1 rerj shareholder may vote, but not by proxy 85 

eral owner 3 entitled to vote and act as member .... 85,86 

- icl as owners 86 

i 1 ; iration issue stock in the name of B. to secure a debt, which it 

to A., no one can vote upon the same 86 

i collateral security cannot be changed 86 

SECTION V. 

ELECTION OF DIRECTORS. 

I. 6 general meeting, or upon special notice 87 

nay restrain their authority 87,88 

apany bound by act of directors, defacto 88 

l Act of officer defacto, binds third persons 88,89 

SECTION VI. 

MEETINGS OF DIRECTORS. 

I All should be notified to attend 89 

- A , timed meeting still the same '.'.'.! 90 

urd not required to be kept full '.'.'. 90 

' Usurpai >ns tried by shareholders or courts ...... '. '. '. '. '. 90 

11 often excuse irregularities .'.'.'.'. 90 91 

lajority valid ' qi 

I proceedings, evidence . . , 91 92 

lion must be taken at a formal meeting . '. '. '. '. \ . \ . . '92 

SECTION VII. 

"1 M.IFICATION OF DIRECTORS. 

ontractor and director. 09 

•-' May be their banker and director . qo 

lirector by virtue of stock mortgaged '. 4 

J {; " ,kr -•""■ "ill not vacate office qq 

pelted to fill vacancies in board 93 



ANALYSIS OF CONTENTS. XXI 

CHAPTER V. 

PREROGATIVE FRANCHISES. 

1. Control of internal communication in a state a prerogative franchise . . 94 

2. Such a grant confers powers pertaining exclusively to sovereignty, as tak- 

ing tolls, and the right of eminent domain 94 



CHAPTER VI. 

BY-LAWS AND STATUTES. 

SECTION I. 
POWER OF MAKING BY-LAWS OR STATUTES. 

1. May control conduct of passengers 95 

2. Must be reasonable and not against law 95, 96 

3. Power may be implied, where not express 96 

4. Not required to be in any particular form unless by special provision . . 96 

6. Model code of by-laws framed by board of trade in England 97 

7. Company may demand liigher fare if paid in cars 98 

8. Public statutes control by-laws 98, 99 

9. Cannot impose penalty 99 

10. Cannot refuse to be responsible for baggage 99 

11. Statutes operate upon members from promulgation ; upon others, from 

knowledge of the same 99 

12. Regulations, for accommodation of passengers, must yield to the right of 

others to be carried 99, 100 

SECTION II. 

BY-LAWS REGULATING THE USE OF STATIONS AND GROUNDS. 

1. May exclude persons without business 101 

2. May regulate the conduct of others 101 

3. Superintendent may expel for violation of rules 101,102 

4. Probable cause will justify 102 

5. In civil suit must prove violation of rules 102-104 

6. Regulation of stations and traffic by means of injunction. Equality of 

charges 104 

7. Through trains will not be required unless reasonably necessary for public 

accommodation 104 

8. Mode of enforcing search warrants in freight stations 104 

9. The right of railway companies to exclude persons having no business from 

their stations 104, 105 

10. Company bound to maintain platforms about passenger stations in safe 

condition 105 

SECTION III. 

BY-LAWS OR RULES, AS TO PASSENGERS. 

1. By-laws as statutes 106 

2. As mere rules, or regulations 106, 107 

3. Requiring larger fares for shorter distances 107 

4. Requiring passengers to go through in same train 107-110 

n. 5. Discussion of cases in point .107-110 



XX 11 



ANALYSIS OF CONTENTS. 



nger by company's servants m 

ompanj responsible -^ 

7 i • ny liable for act of servant ' ' ' ' 111 112 

iust be published * ' ,,« 

luding merchandise from passenger trams . ' 19 1U 

nation between fares paid in cars and at stations 114 

of force 114 11 s . 

may enforce rules of compaoy • ■ •. • ■ • • • • X1 *> "£ 
, , , ale againsl pass, ager, when in fault themselves 115 

f the company to tariff of fares how presumed 110 

ound ofcolor • • • • * 

,ns and duties of street-railways 110,110 



CHAPTEB VII. 

CAPITAL STOCK. 
SECTION T. 

LIMITATIONS. 

- of shareholders 11? 

not the limit of property 117 

... unless on special license of the legislature 117 

SECTION II. 

HDITIONS PRECEDENT, WHICH THE 1'UBLIC AUTHORITIES MAT ENFORCE. 

I Stock, if limited, must all be subscribed 118 

ments at time of subscription 118, 119 

section m. 

SHAKES PERSONAL ESTATE. 

ional estate' at common law 119, 120 

• growing out of land, or goods, wares, and merchandise . . 120 
ated such shares as real estate 120, 121 



CHx\PTER VIII. 

TRANSFER OF SHARES. 

SECTION I. 

RESTRICTIONS UPON TRANSFER. 

rter to be observed 122 

! directory merely 123, 124 

-•'II. -in restrictions void 121,125 

1 upon the indebtedness of the owner is valid 125,' 126 

implied ' 126 

•' w < >- wrongfully refused, vendee may recover value of the 

126 



ANALYSIS OF CONTENTS. XXiii 

SECTION II. 

CONTRACTS TO TRANSFER STOCK. 

1. Transfer under English statutes. Registered companies 127 

2. Contracts to transfer stock valid, where bona fide, 127, 128 

3. Vendor must have the stock, when due 128 

n. 3. Vendor must procure the consent of directors, where requisite . . . 127, 128 

4. Eorce of usages of stock exchange 129, 130 

5. Company will reform their registry at its peril 130 

6. 10. Company may compel one to accept shares on contract 131, 132 

7. Stock standing in joint names belongs to survivors 131 

8. Mode and effect of correcting registry 131 

9. If the company vary the contract, specific performance will be denied . . 131 

10. Closing contracts by offer and acceptance 131, 132 

11. Eorm of transfer. Two may join in one transfer 132 

SECTION III. 

INTERVENING CALLS OR ASSESSMENTS. 

1. Vendor must pay calls, if that is requisite to pass title 132, 133 

2. Generally it is matter of construction and inference 133 

n. 2. Calls paid by vendor after executing transfer 133, 134 

SECTION IV. 

TRANSFER BY DEED IN BLANK. 

1 and 2. Blank transfer formerly held invalid in England 134, 135 

3. Rule different in America 135 

4. Deed executed in blank and filled by procuration valid , 135 

SECTION V. 

SALE OF SPURIOUS SHARES. — RULES OF STOCK EXCHANGE. 

1. Vendor, who acts bona fide, must refund money 136 

3. No implied warranty in such case, which will entitle the vendee to special 

damage 137 

4. and n. 4. Rule of the stock-exchange, made after the sale, not binding upon 

parties. How far such rules bind parties 137, 138 

n. 1. Discussion of the extent of implied warranty 136 

SECTION VI. 

READINESS TO PERFORM. CUSTOM AND USAGE. 

1. Vendor must be ready and offer to convey 138 

2. Vendee must be ready to pay price ]38 

3. General custom and local usage 139-141 

4. The party taking the initiative must prepare the writings 141 

n. 3. Oral evidence to explain memoranda of contract 139, 140 

SECTION VII. 

DAMAGES. SPECIFIC PERFORMANCE. 

1. Damages, difference between contract price and price at time of delivery . 142 

2. Equity will decree specific performance of contract for sale of shares. . 142, 143 



vuv \N IlLYSIS of contents. 

SECTION \ III. 

gp] OIFH I'l RFOBMANCE. 

mance de< i the sendee ||| 

early cases *** 

- may transfer them • • • ■ • i*j? 

ific performance where not in the power of the party . 14D 

SECTION IX. 

MM -ll I IM I CO INDEMNITl AGAINST FUTURE CALLS. 



. 146 
. 146 

146, 147 

147, 148 
. 149 
. 150 

150 



entitled to indemnity, on general principles .... 
- : ited in regard to railway shares .... 

ed 

jetoi kholders, for the debts of the company 
nsible owner must respond to all responsibilities . . 

i Bonally 

!■ i> entitled to redeem on restoring the shares as stipulated 
in \\\> deed 

SECTION X. 

I I 1ST PRACTICES TO RAISE THE PRICE OF SHARES. 

equity will vacate sales so procured 150,151 

Extent of redress 151-153 

i Dividends declared when none are earned will vacate sales and sub- 

ra to indictment 153 

iv will not interfere where vendor acted bona fide,, unless the shares 

153, 154 

mpany liable in tort to party injured 154 

a I 11 - Purchasing Bhares in another company considered .... 154,155 
purchaser of shares fraudulently issued acquires same rights as 

155 

SECTION XL 

LIABILITY "I '"MPANY FOR NOT REGISTERING TRANSFERS. 

pany liable to action 155, 156 

ompelled to record transfers by mandamus 156 

record i -tgages of shares 156,157 

ue 157 

in/, most appropriate remedy 157, 158 

158 

ancellation of an unregistered transfer will not affect the 
158 

SECTION XII. 

w II l.s 0AXL8 BECOME PERFECTED. 

when the Him i< assessed, notice may be given afterwards 159' 

proper authority to make calls .' 160 

■* J otice and of proof .... ^ 



ANALYSIS OF CONTENTS. XXV 

SECTION XIII. 

TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 

1. Mandamus lies to compel the registry of successor 161 

2 and 8. In case of death personal representative liable for calls .... 161, 162 

4. Notice requisite to perfect the title of mortgagee 162 

5. Stock in trust goes to new trustees 162 

6. Assignees of insolvents not liable for the debts of the company .... 162 

7. Effect of marriage of feme sole 162 

SECTION XIV. 

LEGATEES OF SHARES. 

1. Entitled to election, interest, and new shares, but not to bonds .... 163 

2. Shares owned at date of will pass, although converted into consolidated 

stock 163 

3. Consolidated stock subsequently acquired will not pass 163 

SECTION XV. 

SHARES IN TRUST. 

1 and 2. Company may safely deal with registered owner ....... 164 

3. But equity will protect the rights of cestuis que trust 164 

4, and n. 2. Discussion of the rights of cestuis que trust in stock certificates . 165, 166 

SECTION XVI. 

THE EXTENT OF TRANSFER REQUISITE TO EXEMPT FROM CLAIM OF CREDITORS. 

1. How transfer of stock perfected as to creditors 165,166 

2. Reasonable time allowed to record transfer 166 

3 and 4. In some of the states no record required 166, 167 

n. 3. Question further considered 166, 167 

CHAPTER IX. 

ASSESSMENTS OR CALLS. 

SECTION I. 

PARTY LIABLE FOR CALLS. 

1. The party upon the regfster liable for calls 168 

2. Bankrupts remain liable for calls 168, 169 

3. Cestuis que trust not liable for calls in law or equity 169, 170 

4. Trustee compelled to pay for shares 170 

5. One on registry may show his name improperly placed there 170 

SECTION II. 

COLORABLE SUBSCRIPTIONS. 

1. Colorable subscriptions valid 170, 171 

2. Directors may be compelled to register them 171,172 

8. Oral evidence to vary the written subscription inadmissible 172, 173 



xxv | ANALYSIS OP CONTENTS. , 

I R dence although not made in the time prescribed 173 

, nii.il subscriptions void 

issued to secure debt of company lio 

HON III. 

MODE "I i M OBCING PAYMENT. 

lefinite stock, raises no implied promise to pay the 

l 1/4 > *'" 

ti subscription implies a promise to pay assessments. 

Tfeiture a cumulative remedy 175,176 

ng new stock will bar a suit against subscriber, qucere . . 177,178 

it": ■ 1'° 

uirements of the charter and general laws of the state, must be 

L in declaring forfeiture of stock 178,179 

e must name place 179 

s nol affected by misconduct of directors in other matters 179, 180 

lust be regular at date 1^0 

will estop the party, often 180 

1" of shares 180 

11. ; sthe declared void, before others can be made to supply 

ilace 180 



SECTION IV. 

■ REDITOBS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. 

ipany compelled to collect of subscribers by mandamus 181 

\ iunt due from subscribers, a trust fund for the benefit of cred- 

181 

own the stock it will be the same 182 

7. A diversion of the funds from creditors is a violation of contract on 

the part of the company, and a state law authorizing it invalid . . . 182 

leral doctrine above stated found in many American cases . 182 

10. Judgmen may bring bill in equity 183 

railways liable as partners, for expenses of procuring charter 183 
1 — Railway company may assign calls before due, in security for bona Jide 
debt. No notice required to perfect assignment against attachments or 

183, 184 

SECTION V. 

CONDITIONS PRECEDENT TO MAKING CALLS. 

edent must be performed before calls ........ 184 

era! or subsequent conditions not 184-188 

must all be subscribed before calls '. . 188,189 

i e defined by the company as in the charter . . . . ' 189 

I] - tlOl tO I e reckoned 190 

repeal conditions precedent 190 191 

ments cannot be exceeded for any purpose .....'. ' 191 

to limit stock, corporation may ...... '. '. 191 

II in amount of stock ....*.".'.' 192 

SECTION VI. 

I MAI BE BADE PAYABLE BY INSTALMENTS . . . 192,193 



ANALYSIS OP CONTENTS. XXV11 

SECTION VII. 

PARTY LIABLE FOE CALLS. 

1. Subscribers liable to calls 193 

2 and 6. What constitutes subscription to a capital stock 193, 195 

3. How a purchaser of stock becomes liable to the company 194 

4. One may so conduct as to estop him from denying his liability . . . . 194. 

5. The register of the company evidence of membership 195 

6. Subscriptions must be made in conformity to charter 195 

7. Transferee liable for calls. Subscriber also in some cases 195 

8. Original books of subscription primary evidence 195 

9. If lost secondary evidence admissible 196 

10. What acts will constitute one a shareholder 196 

11. May take and negotiate or enforce notes for subscriptions 196 

12. But note fraudulently obtained not enforceable 196 

13. Subscriptions as executor distinct contracts from those in private capacity 196 

SECTION VIII. 

EELEASE FROM LIABILITY FOR CALLS. 

1 and 2. Where the transfer of shares, without registry, will relieve the pro- 
prietor from calls 197 

3. Where shares are forfeited by express condition, subscriber no longer liable 

for calls 198 

4. Dues cannot be enforced which accrue upon shares after they were agreed 

to be cancelled 198 

SECTION IX. 

DEFENCES TO ACTIONS FOR CALLS. 

1. Informality in organization of company insufficient 199,200 

2. Slight acquiescence estops the party in some cases 200 

3 and 4. Default in first payment insufficient 200-202 

5. Company and subscriber may waive that condition 202 

6. Contract for stock, to be paid in other stock 203 

7 and 8. Infancy. Statute of limitations and bankruptcy 204,205 

9. One commissioner can give no valid assurance as to the route 205 

10. What representations matters of opinion 205, 206 

SECTION X. 

FUNDAMENTAL ALTERATION OF CHARTER. 

1. Will release the subscribers to stock 206 

2. Railway company cannot purchase steamboats 207 

3. 7. Majority may bind company to alterations, not fundamental . 207-209, 211 

4. Directors cannot use the funds for purposes foreign to the organization . 209 

5. 9. But where the legislature or the directors make legal alterations in the 

charter, or the location of the road, it will not release subscribers 209, 210, 

212 

6. But if subscriptions are made upon condition of a particular location, it 

must be complied with 210, 211 

8, 9. Consideration of subscription, being location of road, must be substan- 
tially performed 211, 212 

10. Express conditions must be performed 212, 213 

11. How far alterations may be made without releasing subscribers .... 214 

12. It may be done where such power is reserved in the charter 214 



xxv ;ii ANALYSIS OF CONTENTS. 

wbTcriptions no, released by subsequent ones in lam. . . . 

,,„„„, emigrate into another state i^en by legislative per 



representative liable to same extent as subscriber 214 

' .! i i,, • vnl»...iii<Mit ones in land - 



|(».\ XI. 
91 BB( Kl , noNS EM .1 ORB DATE OF CHARTER. 

215 

of charter good 215-217 

upon condition not performed 216 217 

a i Where the condition is performed ,• ' ■ ' 91 o 

ai er to induce company to build station .... ^jo 

i condition, an offer merely . .... • • • • • • • 

titiona) 8ul bakes effecl upon performance of the condition . &\xs 

6 How far commissioners may annex conditions to subscription . . . . . £io 

tions void, if fraudulent as to company zio, zi» 



SECTION XII. 

-I BSl KIl'TION UPOK SPECIAL TERMS. 

ble in money 219 

ions al a discount, not binding o'iq oon 

n. 2. Contr ise subscriptions not binding oon wi 

tions before and after organization ' ~d\ 

may accept conditional subscriptions 221 

Lge in Alabama 221 

i. True rule to be deduced from all the cases ■ ^1 

ie on par values ^' Hon 

of maintaining them _ ■ 222 

ipposite course on commercial fair dealing 222,223 

irporation stipulate to pay interest on stocks 223 

rtiflcate of stock is not thereby rendered inoperative for legitimate 
purposes 



223 



SECTION XIII. 

[TABLE RELIEF PROM SUBSCRIPTIONS OBTAINED BY FRAUD. 

1. Substantial mil tions in obtaining subscriptions will avoid them . 224 

natantial misconduct of the directors, in the matter, they 

aloni 225 

asonable examination of papers referred to 
■I mbtful points. But no relict' will lie granted, where there is no 

I, or intentional misrepresentation 225,226 

- cannot make profit for themselves 226 

SECTION XIV. 

'"CM I I IM OJ BHARES. — RELIEF IN EQUITY. 

•<tnt<< must be strictly pursued 226 

■ forfeiture 226 

. at t:tll market value 227 

tutes 227 

i all requisite steps were pursued .... 227 



ANALYSIS OP CONTENTS. XXIX 

SECTION XV. 

EIGHT OF COKPOKATORS AND OTHERS TO INSPECT BOOKS OF COMPANY. 

1. May inspect and take minutes from books 227, 228 

2. Discussion of the extent to which such books are evidence 228 

3. For what purposes such books are important as evidence 228, 229 

4. This will not embrace the books of proceedings of directors 229 

5. Party claiming to be shareholder may inspect register 229 

6. Allowed when suit or proceedings pending 229 

7. Party may have aid in the inspection 229 



PART III. 

THE LAW OF EIGHT OF WAY, EMINENT DOMAIN. . 
CHAPTER X. 

RIGHT OF WAY BY GRANT. 

SECTION I. 
OBTAINING LANDS BY EXPRESS CONSENT. 

1. Leave granted by English statute 233 

2. Persons under disability 234 

3. and n. 2. Money to take the place of the land ' . . . . 234 

4. Consent to pass railway 234 

5. Duty of railway in all cases 234 

6. License to build railway. Extent of duration 235 

7. Company bound by conditions in deed 235 

8. Parol license good till revoked 235, 236 

9. Sale of road no abandonment 236 

10. Deed conveys incident ; not explainable 237 

11. One cannot derogate from compulsory grant 237 

12. But this does not apply to accidental incidents 237, 238 

13. Case in N. Y. Court of Appeals somewhat at variance with the preceding 

cases 238 

14. A municipal corporation may be bound by implied contract in the grant of 

land, so as not to be at liberty to recede from it 238 

15. A mere agreement to sell, although in writing, will not justify the company 

in entering upon the land, or defeat proceedings under the statute to 
recover damages for taking the land 239 

SECTION II. 

SPECIFIC PERFORMANCE IN EQUITY. 

1. Contracts before and after date of charter 239 

2. Contracts where all the terms not denned 239, 240 

3. Contracts for land umpire to fix price 240 

4. Where mandamus also lies 240 

5. Contracts not signed by company 240 

6. Where terms are uncertain 240, 241 



xxx ANALYSIS OF CONTENTS. 

241 
mpanj an option ^ 242 

l>\ liotli parties ■ • • ■ ' > 

I ,o construction of highways may be enforced at the suit of^ ^ 

performance on the ground ' ^ 

; ,„;, in „„. fi nal decree'make the price a charge on the 
land eclared al first 

CHAPTER XI. 

KM I MAT DOMAIN. 

SECTION I. 

G BNEK \I. PRINCIPLES. 

1 Definition of the right |45 

on ,: : ( 'i 

\ attribute of sovereignty ' T,,L 

ignition ^47 

nutations upon its exercise £|7 

principally in th< • j™ 

mpensation -■*>> -™ 

f*° 

and 11. Its exercise in rivers, above tide-water -^48 



SECTION II. 
TAKING LANDS IN [NVITUM. 

nit requisite 249 

ation must be made 250 

sequential damages 250 

• Mich liability 250 

strictly construed 250, 251 

iwer to take lands 251, 252 

courts of equity 252 

ruction in American courts 252,253 

astruction 253 

I by company 253 

rani 254 

12 l)i the House of Lords 254 



SECTION III. 

DITIONS PRECEDENT. 

' must be complied with 255 

d in petition 255, 256 

i impany 256 

ition in the land office is notice to subsequent purchasers . . 256 
edand confirmed by the court the owner is en- 

n 256 

■ the land 256, 257 

i- payable in land without compensation, a court of equity will 

; Hunt 257 



ANALYSIS OF CONTENTS. XXXI 

SECTION IV. 

PRELIMINARY SURVEYS. 

1. May be made without compensation 258 

2. Company not trespasser 258 

3. For what purposes company may enter upon lands 258, 259 

4. Company liable for materials 259 

5. Right to take materials 259 

6 and 7. Location of survey 260 

SECTION V. 

POWER TO TAKE TEMPORARY POSSESSION OP PUBLIC AND PRIVATE WATS. 

1. The railway company may take possession of public or private ways, in 

building their works. Responsibility 260 

2. Remedy under the statutes, unless special damage 260 

3. Party excavating highway in building sewer and having restored' it, no 

further responsible 261 

SECTION VI. 

LAND FOR ORDINARY AND EXTRAORDINARY USES. 

1. By English statute may take land for all necessary uses 261, 262 

2. Companies have the same power here 262 

3. So also of companies connecting at state lines 262, 263 

SECTION VII. 

TITLE ACQUIRED BY COMPANY. 

1. Company have only right of way 264 

2. Can take nothing from soil except for construction 264, 265 

3. Deed in fee simple to company 265 

4. For what uses may take land 266, 267 

5. Right to cross railway, extent of 267 

6. Conflicting rights in different companies 267 

7. 8. Rule in the American states 267, 268 

9. Right to use streets of a city 268 

10. Law not the same in all the states 268, 269 

11. Rule in Massachusetts 269, 270 

12. 13. Land reverts to the owner 270 

14. True rule stated 270, 271 

15. Conditions must be performed 271 

16. Further assurance of title 271 

17. Condemnation cannot be impeached 271 

18. Where public acquire fee, it will never revert to grantor 271 

SECTION VIII. 

CORPORATE FRANCHISES CONDEMNED. 

1. Road franchise may be taken : 272 

2. Compensation must be made ". ' 272, 273 

o. Railway franchise may be taken 273 

4. Rule defined 273 

5. Constitutional restrictions 273, 274 



xxx ii ANALYSIS OF CONTENTS. 

■ well defined 274 



7. Must be exclusive in tonus 
- Legislative discretion 



274 

274 



i compared 274, 275 

eminent domain 275 

at, a subordinate franchise 275 

nnot create a franchise, above tlie reach of eminent domain 276 

iy apply streets in city to any public use ; . 276 

impensation in such cases, to the owner of the fee, converting 
canal into railway 5276, 277 

SECTION IX. 

COMPENSATION. MODE OF ESTIMATING. 

era! inquiry simple 277 

2. Remote damage and benefits not to be considered 277 

eral rule of estimating compensation 277,278 

■). Prospective damages assessed 278 

.'. [n some spates value "in money" is required 279 

and benefits cannot be considered in such cases . . . 279-281 

- statute 281 

'.•. Farm accommodations 282 

efits and damage, if required, must be stated 282,283 

n. 18. Course of the trial in estimating land damages 282.283 

es not indispensable to be stated 283,284 

or land statutory privileges must be stated to be secured . . 284 

s of doubt referred to experts 284 

•revisions as to crossing streets only permissive 284 

1'.. In an award of farm accommodations, time of the essence of the award . 284 



SECTION X. 

MODE OF PROCEDURE. 

l Legislature may prescribe 285 

•J. Must be upon proper notice 285,286 

mal exceptions waived, by appearance 286 

A. Unless exception is upon record 286 

. those in interest 286 

l tie maj be examined 286,287 

7. Plaintiffs must show joint interest 287 

. may find facta and refer title to the court 287 

1 in i erdict 287 

finding on each claim 288 

'•■nut interests 288 

12. Whal evidenci nl 288 

A value of land w 288 289 

nion of witnesses 290 

my of experts . 290 291 

acapable of description 291 

...'.'.'.'.'.'. 292, 293 

293 

293 

I failing must pay costs * \ 293 

21. < •.'juror- . v . . 294 

proceedings 294 

i bt will not lie on conditional report \ 294 

.round of setting aside verdict ........ 294 

ten of practice ' 295 296 

ee required in order to give jurisdiction . . ' '296 

-V Interest on value from time of taking 296 



ANALYSIS OF CONTENTS. XXXlii 

SECTION XI. 

THE TIME COMPENSATION TO BE MADE. 

1. Opinions conflicting 296 

2. Chancellor Kent's definition 297 

3. That of the Code Napoleon 297 

4. Most state constitutions require it to be concurrent with the taking . . . 297 

5. English cases do not require this 298, 299 

6. Adequate legal remedy sufficient 299-301 

7. Where required, payment is requisite to vest the title 301 

8. Some states hold that no compensation is requisite 302 

SECTION XII. 

APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 

1. Consequential damage barred 302, 303 

2. Such as damage, by blasting rock 303 

3. But not where other land is used unnecessarily 304, 305 

4. But loss by fires, obstruction of access, and cutting off spi'ings, is barred . 305 

5. Loss by flowing land not barred 305,306 

6. Damages, from not building upon the plan contemplated, are barred . . 306 

7. Special statutory remedies reach such damages 307 

8. Exposure of land to fires 307, 308 

9. No action lies for damage sustained by the use of a railway 309 

SECTION XIII. 

ACTION FOR CONSEQUENTIAL DAMAGES. 

1. Statute remedy for lands "injuriously affected " 309,310 

2. Without statute not liable to action 310 

3. Are liable for negligence in construction, or use 311, 312 

4. Statute remedy exclusive 312 

5. Minerals reserved 312 

6. Damages for taking land of railway for highway 313 

7. Compensation for minerals, when recoverable 313 

SECTION XIV. 

RIGHT TO OCCUPY HIGHWAY. 

1. Decisions conflicting 314 

2. First held that owners of the fee were entitled to additional damages . . 314 

3. Principle seems to require this 315-317 

4. Many cases take a different view 317 

5. Legislatures may and should require such additional compensation . . . 318 

6. Courts of equity will'not enjoin railways from occupying streets of a city . 318 

7. Some of the states require such compensation 319, 320 

n. 11. All do not. But the English courts, principle, and many of the state 

courts, do require it, as matter of right 320-322 

8. Recent decisions upon the right to occupy the highway . . . ... 321, 322 

1. The decisions in the state of New York require compensation to the 

owner of the fee 322, 323 

2. Distinction between streets of cities and highways in the country . . . 323 

3. Legislature may control existing railways 323 

4. In Ohio the owner of the fee may claim indemnity against additional 

injury 323, 324 

5. True distinction, whether the use is the same 324 

vol. i. c 



XXZiv ANALYSIS OF CONTENTS. 

! | e present Inclination seems to be to require additional compensation 

for ' railway in highway 324 

i the opposite direction. Judge Ellsworth's opinion . . . . 324,325 

B I xplanation oi the apparent confusion 325 

permanenl erections made in Btreet, compensation must be made __ 325 

10 Rights of land-owners as to obstructing railway 3 - _'">, 326 

Recent cases in N<« York, property rights of the company . 326-328 

lemands reasonable protection 32s, 329 

slature have power to impose a permanent burden upon streets . 329 

tuned as matter of construction 329 

I D( iniform. Generally held that street railway franchise exists 

in the easement for the highway. Analogy of steam roads .... 329 

• .1 t increase the servitude of the highway .... 329,330 

:. and treated, us a portion of the highway . . . 330 
v or franchise ol street railways, exclusive, as to passenger traffic 330 

point further illustrated •. . . 330,331 

n far the legislature may effect the exclusiveness of this franchise . . 331 
11. \\ nsation is required, no abridgment of right implied . . . . 331 
■ and property must remain subject to legislative and munici- 
pal control 331, 332 

llow additional land-damages for change of grade of the 

332 

14. This not demandable, unless the change is required for something in addi- 
tion to highway, or unless given by special statute 332, 333 

16-19. Summary of the argument under this head 333 

SECTION XV. 

CONFLICTING KIGIITS IN DIFFERENT COMPANIES. 

1 l: ulway company subservient to another, can only take of the other land 

enough for its track 334 

•J. When- do apparent conflict in route, first located acquires superior right . 334 

SECTION XVI. 

RIGHT TO BUILD OVER NAVIGABLE WATERS. 

1. Legislature may grant the right 335 

irian proprietor owns only. to the water 336 

he water subservient to public use 337 

islative grant paramount, except the national rights 337 

ii flats where tide ebbs and flows . 338 341 

• adjoining owners in Massachusetts .'.'.. '341 

7. Railway grant to place of shipping . . '. . 341 

ncipal grant carries its incidents '.'.', 341 

a harbor includes necessary erections ' 341 342 

10,11 » held navigable in this country .......... '342 

it off from wharves is " injuriously affected " '. . . . . 342 343 

ress infringed creates a nuisance. Party specially ' 

injured m ition ... 343 

Hampshire ' 040 

" ;| nuisance .......... 343 344 

- applied to use oJ railway ........... ' 344 

SECTION XVII. 

" l: -" : " ""'• '" BTEBAM8 BY COMPANY'S WORKS. 

m, witl, out compensation . Q44 

ny liable for defective construction . ...'.'..['. ' ' 345 



ANALYSIS OF CONTENTS. XXXV 

3. So also if they use defective works, built by others 345 

4. Company liable to action, where mandamus will not lie 346 

5. Company liable for defective works, done according to their plans . . . 346 

6. When a railway " cuts off" wharves from the navigation 346, 347 

7. Stream must be restored and maintained 347 

8. Company cannot cast surface water on adjoining land, except from strict 

necessity 347 

9. Public company exceeding their powers, liable to an action 347 

10. In such cases courts of equity will relieve by injunction 347, 348 

SECTION XVIII. 

OBSTRUCTION OF PRIVATE WATS. 

1 . Obstruction of private way matter of fact, need not be illegal 348 

2. Farm road on one's own land, not private way 348 

3. But railway may lawfully pass along public street 349 

SECTION XIX. 

STATUTE REMEDY EXCLUSIVE. 

1. Eemedy for land taken, exclusively under the statute 349 

2. But if company do not pursue statute are liable as trespassers. Liable for 

negligence also 350, 351 

3. Courts of equity often interfere by injunction 351 

4. Important case in the House of Lords 351, 352 

5. Right at law must be first established 352 

6. Where statute remedy fails, common-law remedy exists 352 

7. The general rule adhered to in America 352 

8. Company adopting works responsible for amount awarded for land dam- 

ages . 352, 353 

SECTION XX. 

LANDS INJURIOUSLY AFFECTED. 

1. Obstruction of way, loss of custom 353-355 

2. Equity will not enjoin legal right 355 

3. Liable for building railway, so as to cut off wharf 355 

4. Not liable for crossing highway on level 355, 356 

5. English statute only includes damages by construction 356 

6. Equity will not enjoin a doubtful claim 356 

7. Damages unforeseen, at the time of the appraisal, may be recovered, in 

England 356,357 

8. Injuries to ferry, and towing-path, compensated .• . . 357,358 

9. 10. Remote injuries not within the statute 358 

11. Damages compensated, under statute of Massachusetts 358, 359 

12. Damages not compensated, as being too remote 359 

13. For negligence in construction, remedy at common law 359 

14. Or neglect to repair 359 

15. Recovery under the statute, &c 360 

16. Possession by railway, notice of extent of title 360 

17. Railways have right to exclusive possession of roadway 360 

SECTION XXI. 

DIFFERENT ESTATES PROTECTED. 

1. Tenant's good- will and chance of renewal protected 361 

2. Tenants entitled to compensation for change of location 362 

3. Church property in England, how estimated 362 



xxxv i ANALYSIS OF CONTENTS. 

i Tenant not entitled to sue, as owner of private way 362 

ould sue for compensation . • • • ' „„„ 

d lessee both entitled to compensation 't^t 

■i ,,; way, from necessity, protected ™* 

.v Mill-owner entitled to action for obstructing water <£° 

upier of land entitled to compensation . . . • • • • ■ • . ■ ; • 

,ant, without power of alienation, forfeits Ins estate, by license to com- ^ 

U. Damages not transferable by deed of land, after they accrue 364 

SECTION XXII. 

ARHITRATION. 

L. Attorney, without express power, may refer disputed claim 365 

aid binding, unless objected to in court 365 

SECTION XXIII. 

STATUTE OF LIMITATIONS. 

I. General limitation of actions applies to land claim 365,366 

tition will not save bar 366 

[uiescence of forty years by land-owner, effect of 366 

ppel will take effect if the use is clearly adverse 366, 367 



CHAPTER XII. 

REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. 

SECTION I. 

I OMPANT BOUND TO PURCHASE THE WHOLE OF A HOUSE, ETC. 

1. The company to "take the accessories with the house 368 

the owner has an election in regard to that 368,369 

leposit of the appraised value means the value of all the company are 

bound tn take 369 

1 ' tpany bound to take all of which they take part, and pay special dam- 

des 370 

5. Where the company desire part, not compellable to take whole unless they 

-i-i in taking part 370 

[from house by highway not part of premises 371 

SECTION II. 

THE COMPACT COMPELLABLE TO TAKE INTERSECTED LANDS, AND THE OWNER TO 

SELL. 

- than half an acre remains on either side, company must buy . 371 
'" ner J? U8 . 1 M " whe . re lani1 of less value than railroad crossing . . . 371, 372 



._ crossing . . . 371,372 
8 and 4. Word " town, how construed 372 



SECTION III. 

IICE TO TREAT FOR THE PURCHASE OF LAND. 

m under statute of limitations 372 

..■■•my compelled to summon jury 372 



ANALYSIS OP CONTENTS. XXXV11 

3. Ejectment not maintainable against company 373 

4. Powers to purchase or enter, how saved 373, 374 

5. Subsequent purchasers affected by notice to treat as the inception of title . 374 

6. But the notice may be withdrawn before any thing is done under it . . . 374 

7. Not indispensable to declare the use, or that it is for station, and another 

company to participate in use 375 

SECTION IV. 

REQUISITES OF THE NOTICE TO TREAT. 

1. Notice, to treat must, in terms or by reference, accurately describe land . 375 

2. After notice to treat company compellable to purchase. Company cannot 

retract after giving notice to treat 375, 376 

3. New notices given for additional lands • 376 

4. Power to take land not lost by former unwarranted attempt 376 

5. Lands may be taken for branch railway 376 

6. Effect of notice in case of a public park 376, 377 

SECTION V. 

THE NOTICE MAT BE WAIVED, BY THE PARTY ENTERING INTO THE NEGOTIATION. 

1. Notice must be set forth in proceedings 377 

2. Agreement to waive operates as estoppel 377 

3. Certiorari denied where party has suffered no injury 377 

SECTION VI. 

TITLE OP THE CLAIMANT MUST BE DISTINCTLY STATED. 

1. Claimant's reply to notice should be clear and accurate 378 

2. Award bad, which does not state claimant's interest 378 

3. Where lands are held by a receiver or commission for a lunatic. Expres- 

sion " fee-simple in possession " 378, 379 

n. 3. Analogous American cases •• 379 

SECTION VII. 

THE CLAIM OF THE LAND-OWNER MUST CORRESPOND WITH THE NOTICE. 380 



CHAPTER XIII. 

ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. 

SECTION I. 

LANDS TAKEN OR INJURIOUSLY AFFECTED, WITHOUT HAVING PREVIOUSLY MADE 
COMPENSATION TO THE PARTIES. 

1. No entry under English statutes without previous compensation, except 

for preliminary survey 381 

2. Legal remedies against company offending 381 

3. What acts constitute taking possession under statute 382 

4. Company may enter with land-owner's consent after agreement for arbitra- 

tion 382 

5. Bond may be given in certain cases 382, 383 

6. Company restrained from using land until price paid, even after line in 

operation. But this rule dissented from 383, 384 



tXXViii ANALYSIS OP CONTENTS. 

SECTION II. 

| - 111 [SITE TO ENABLE THE COMPANY TO ENTER UPON LAND. 

nal valuation under English Statutes 384 

pilarities in proceedings 385 

:;. Penalty for irregular entry upon lands 385 

er verdict estimating damages, but before judgment 38o 

sing damages provided in charter not superseded by subse- 
quent general railway act 385 

SECTION III. 

HOD] ..I- OBTAINING COMPENSATION UNDER THE STATUTE, FOR LANDS TAKEN, OR 
IN II Kl. 1 1 my EFFECTED, "WHERE NO COMPENSATION IS OFFERED. 

1 mant may elect arbitration or jury trial 386 

•J Biethod of procedure 386 

SECTION IV. 

THE ONUS OF CARRYING FORWARD PROCEEDINGS. 

1 Rests upon claimant after company have taken possession 386,387 

■J. Miscellaneous provisions 387 

annut be had unless actual possession is taken, or injury 
done 387 

SECTION V. 

EQUITY WILT. NOT INTERFERE, BY INJUNCTION, BECAUSE LANDS ARE BEING INJU- 
BIOl BL1 AFFECT! D, WITHOUT NOTICE TO TREAT OR PREVIOUS COMPENSATION. 

manl must wait until works are completed 388 

2 Even if appearance of land will be greatly altered 388 

:•; How far equity interferes where legal claim of party is denied . . . . 388,389 
4 Wh.re a special mode of compensation has been agreed upon 389 

SECTION VI. 

-IIIIMII ■'- TOBY, OB ARBITRATOR, CANNOT DETERMINE THE QUESTION OF RIGHT IN 
THE CLAIMANT, BUT ONLY THE AMOUNT OF DAMAGES. 

-ions sustain this view 389 

itement of recent case 389,390 

states assessment is final ' 390 

1 intiff will recover damages assessed if he suffered any legal injury . . 391 

SECTION VII. 

Tl " IX1,N| '" COMPENSATION TO LAND-OWNERS, AND OTHER INCIDENTS BY THE 

ENGLISH STATUTES. 

1 Liberal compensation allowed 391 

- ; ■ ler English Btatutes ■■........, ' 391 392 

estimating damages ...... ... , ^ 

laim for damages passes to the devisee ! or executor .' '.'.'.'. 392 

illy entitled to damages accruing during his time .... 392 



ANALYSIS OF CONTENTS. XXXIX 



SECTION VIII. 

RIGHT TO TEMPORARY USE OF LAND TO ENABLE COMPANY TO MAKE ERECTIONS 

UPON OTHER LANDS. 

1. Right to pass another railway by a bridge gives a temporary use of their 

land, but no right to build abutments upon it 393 

2. Right to construct a bridge across a canal gives right of building a tem- 

porary bridge 393 

3. And if thus erected bona fide may be used for other purposes .... 393,394 

SECTION IX. 

RESERVATIONS TO LAND-OWNERS TO BUILD PRIVATE RAILWAY ACROSS PUBLIC 

RAILWAY 394 



SECTION X. 

DISPOSITION OF SUPERFLUOUS LANDS. 

1. Vest in adjoining owner unless disposed of in ten years 394, 395 

2. Former owner not excluded. Effect of cottage in field 395 

CHAPTER XIV. 

THE MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES. 

SECTION I. 

BY JUSTICES OF THE PEACE. 

1. Where compensation claimed does not exceed £50 396 

2. Mode of enforcing award 396 

3. Value of land and injury accruing from severance to be considered . . . 396 

SECTION II. 

BY SURVEYORS 396, 397 

SECTION III. 

BY ARBITRATION. 

1. May be claimed in cases exceeding jurisdiction of justices of the peace . . 397 

2. How made compulsory 397, 398 

3. What form of notice is sufficient 398 

n. 5. Analogous American cases 398 

4. Arbitrator's power limited to award of pecuniary compensation .... 398 

5. Where land-owner gives no notice, company may treat it as case of dis- 

puted compensation 398, 399 

6. Similar rule under Massachusetts statute regarding alteration of high- 

ways 399 

7. And land-owners may recover without waiting for selectmen to act . . . 399 

8. Company estopped in such case from denying that road was constructed 

by their servants. Embankments part of the railway 399 

9. Finality of award 399 

10. May employ experts. Damages embraced 400 

11. Construction of general award 400 



x l ANALYSIS OF CONTENTS. 



PART IV. 

T HB I WV OF CONTB UTS AS APPLIED TO THE CONSTRUCTION OF 
RAILWAYS AND TELEGRAPHS. TOLLS, &c. 

CHAPTER XV. 

CONSTRUCTION OF RAILWAYS. 

SECTION I. 
LINK OF RAILWAY. — RIGHT OF DEVIATION. 

1. Manner of defining the route in English charters Sr_ii$ 

2. Question involved stated .'••'• ~7nl 

I. Plans only binding, when and for the purpose referred to, m the act . . . 407 

tor bound by deviation, unless he object .......... 407 

f equity will not enforce contract against public security . . . . 407 

• to construct accessory works • 408 

Company may take lands designated, in their discretion 408,409 

uty cannot enforce contract, not incorporated into the act 409 

ght of deviation lost by election 409, 410 

11. Railway between two towns, extent of grant 410 

\-l. Grant of land for railway includes accessories 411 

ited need not be followed literally 411 

11 Terminus being a town, is not extended as the town extends .... 411,412 

epting compensation waives informality 412 

owers limited in time expire with limitation 412 

•.-miction of charter as to extent of route 412 

p may be made to yield to other grounds of construction .... 412,413 
19. Power to change location must be exercised before construction .... 413 

ding force of plans made part of charter 413 

21. Grant terminating at town liberally construed 413 

SECTION II. 

DISTANCE HOW MEASURED. 

1. This is affected by subject-matter 414 

tracts to build railway, by rate per mile 414 

neral rule to measure by Btraight line 414, 415 

lie rule in regard to turnpike roads 415 

v tixed by- mile means lull mile; no charge for fractions 415 

SECTION III. 

MODE OK CONSTRUCTION, TO BE DONE WITH LEAST DAMAGE. 

1 D I to form of the road, but the mode of construction . . . 416 

al provisions of act not controlled by this general one 416 

interfered with, to be restored, for all uses 416 

SECTION IV. 

MODE OF CROSSING HIGHWAYS. 

luire it should not be at grade 417 

2 Or if so, that gates should be erected and tended 417 



ANALYSIS OF CONTENTS. xli 

3. And if near a station, railway train not to exceed four miles an hour . 417, 418 

4. Cannot alter course of highway ' 418 

5. Right to appropriate military road 418 

6. Mandamus does not lie where company have an election 418 

7. Railway cannot alter highway to avoid building bridge 418,419 

8. Extent of repair of bridge over railway 419 

9. Permission to connect branches with main line not revocable .... 419, 420 

10. Grant to build railways across main line implies right to use them as 

common carriers 420 

11. Railway responsible for injury by falling into culvert when covered by 

snow '. 420 

12. The right to lay line across railway carries right to lay as many tracks 

as are convenient for the business 420 

13. Damages for laying highway across railway 420 

14. Laying highway across railway at grade. Company not estopped by 

contract with former owner of land 420,421 

15. Towns not at liberty to interfere with railway structures 421 

SECTION V. 

RIGHTS OP TELEGRAPH COMPANIES. 

1. Right to " pass directly across a railway," does not justify boring under it . 421 

2. Exposition of the terms " under " and " across " 422 

3. Erecting posts in highway a nuisance, even if sufficient space remain . . 422 
n. 4. Opinion of Crompton, J 422-424 

SECTION VI. 

DUTY IN REGARD TO SUBSTITUTED WORKS. 

1. Bound to repair bridge substituted for ford, or to carry highway over rail- 

way 423,424 

2. The same rule has been applied to drains, substituted for others .... 424 

3. The extent of this duty as applied to bridge and approaches .... 424, 425 

SECTION VII. 

CONSTRUCTION OF CHARTER IN REGARD TO NATURE OP WORKS, AND MODE 

OF CONSTRUCTION 425 



SECTION VIII. 

TERMS OF CONTRACT. MONET PENALTIES. EXCUSE FOR NON-PERFORMANCE. 

1. Contracts for construction assume unusual forms 426 

2. Estimates made by engineer 426, 427 

3. Money penalties, liquidated damages. Full performance 427, 428 

4. Excuses for non-performance 428 

5. Penalty not incurred, unless upon strictest construction 428, 429 

6,7. Contractor not entitled to any thing for part-performance 429 

n. 2. Proper construction of the terms used in these contracts 427, 428 

8. Contract for additional compensation must be strictly performed .... 429 

SECTION IX. 

FORM OF EXECUTION. EXTRA WORK. DEVIATIONS. 

1. No particular form of contract requisite generally 430 

2. But the express requirements of the charter must be complied with . . . 431 



xlii \ A.LY8I8 OF CONTENTS. 

ik cannol be recovered of the company, unless done upon the 

Bed in contract 431,432 

mpany have the benefit of work are liable 432 

SECTION X. 

PABT1 Kill HI Ml. INK CONTRACT, BHE "ill BR MAY SUE PRESENTLY. — 

IM \ I 1 W.l.i: \< CIDEH 1. 

1 Party repudiating excuses the other 433 

2 New contract valid 433 

it cannot bind the company 433 

inevitable accident 434 



SECTION XI. 

I BJCFBREES AM> ARBITRATORS IN REGARD TO CONSTRUCTION 
CONTRACTS. 

ird valid if substantially correct 434,435 

it will not set aside award, where it does substantial justice .... 435 



SECTION XII. 

DECISIONS OF COMPANY'S ENGINEERS. 

timatee fur advances, mere approximations, under English practice . 435, 436 

h here the engineer's estimates are final, can only be set aside for par- 
tiality or mistake 436,437 

tractor bound by practical construction of the contract 437 

mates do not conclude matters not referred 437,438 

.-'lit to accept pay in depreciated orders, he is bound by it 438 
by acquiescence 438 

7. Engineer cannot delegate his authority 438 

8. Arbitrator must notify parties, and act bona fide 438 



SECTION XIII. 

l:l l!ir IV K'H'ITV FROM DECISIONS OF COMPANY'S ENGINEERS. 

m important case stated. 439-444 

:u ui' contractor in the hill 445 

3. Bill sustained. Amendment alleging mistake in estimates 445 

; ef only to be had in equity 445 

fraud must he very Hear 445 

being shareholder, not valid objection 445 

conclusive as to quality of work, but not as to quan- 

445 

1 contract condonation of old claims 445 

ed after company had completed work .' 445,446 

1. Money penalties cannot be relieved against unless for fraud '446 



11 1 _'■ es upon this subject ', 439-445 

■ mates not conclusive unless so agreed 446 

e tor. whose work surrendered by supplemental contract, entitled to 
tnll r 1, ^g 

18. Direction of umpire binding on contracting parties, and dispenses with cer- 
tificate oi lull performance . 446 



ANALYSIS OP CONTENTS. xliii 



SECTION XIV. 

FRAUDS IN CONTRACTS FOR CONSTRUCTION. 

1. Relievable in equity upon general principles 447 

2. Statement of leading eases upon this subject 447-449 

3. Where no definite contract closed, no relief can be granted 450, 451 

SECTION XV. 

ENGINEER'S ESTIMATE WANTING THROUGH FAULT OF COMPANY. 

1. In such case contractor may maintain bill in equity 451, 452 

2. Grounds of equitable interference 452, 453 

3. After company terminate contract, contractor will be enjoined from inter- 

ference. And same rule sometimes extends to company 453, 454 

4. Stipulation requiring engineer's estimate, not void 454 

5. Not the same as an agreement, that all disputes shall be decided by arbi- 

tration 454 

6. Engineer's estimate proper condition precedent 454 

7. Same as sale of goods, at the valuation of third party 454, 455 

8. The result of all the English cases seems to be, that only the question of 

damages properly referable to the engineer 455 

9. The rule in this respect different, in this country 455, 456 

SECTION XVI. 

CONTRACTS FOR MATERIALS AND MACHINERY. 

1. Manufacturer not liable for latent defect in materials 456, 457 

2. Contract for railway sleepers, terms stated 457 

3. Construction of such contract 457, 458 

4. Party may waive stipulation in contract, by acquiescence 458 

5. Company liable for materials, accepted and used 458 

SECTION XVII. 

CONTRACTS TO PAY IN THE STOCK OF THE COMPANY. 

1. Breach of such contract generally entitles the party to recover the nomi- 

nal value of stock 458, 459 

2. But if the party have not strictly performed on his part, can only recover 

market value 459 

3. Cash portion overpaid, will only reduce stock portion dollar for dollar . 460, 461 
n. 2. Lawful incumbrance on company's property, will not excuse contractor 

from accepting stock 459-461 

. SECTION XVIII. 

TIME AND MODE OF PAYMENT. 

1. No time specified, payment due only when work completed 461 

2. Stock payments must ordinarily be demanded 461 

3. But if company pay monthly, such usage qualifies contract 461 

4. Contract to build wall by cubic yard, implies measurement in the wall . . 461 

SECTION XIX. 

REMEDY ON CONTRACTS FOR RAILWAY CONSTRUCTION. 

1. Recovery on general counts 462 

2. Amount and proof governed by contract 462 



xHv ANALYSIS OF CONTENTS. 

I [ON XX. 
BBCH LHK -' I.H'.N. 

t exist inn urd to a railway 462, 463 

, J 4bd 

SECTION XXI. 

. ., ,,s i.i II Ml 01 LAB0HEB8 AND S IB-CONTRACTORS. 

rg not bound by stipulations of contractor 463 

mblic works have a claim against the company .... 463,464 
tractor cannot go against the proprietor of the works, although 
employed by him may 464 

SECTION XXII. 

CONDITIONS IN . HAKTER AND ELECTIONS. 

i performed, waived, or extended 464 

ipanj bound by its election 464 



CHAPTER XVI. 

I \< B88ITB COLLS, FARE, AND FREIGHT. 

ompanies created sometimes for maintaining road only .... 465 

ills i.ikcn may be recovered back 465, 466 

ve fare and freight 466 

-1 Bj - statute, packed parcels must be rated in mass 466 

i requires unity of management and control . . . 466 
id railways almost unknown here. Fare and freight often 

limited ..." 466,467 

■.mi v of certain profit on investment lawful 467 

jtriction of freight to certain rate per ton, extends to whole line . . . 467 

declare for tolls 467 

lishing and requisite proof 467 

11. A provision in a railway charter for the payment of a certain tonnage to 

» onlj a mode of taxation 467,468 

company is allowed to take tolls on sections of their road this 

tion a distinct work 468 

York in regard to the difference between 

taken in the cars and at the stations 468,469 

Btatute are payable in legal tender notes 469 



PART V. 



THE LAW OF LIABILITY FOR FIRES; INJURIES TO DOMESTIC 
ANIMALS; FENCES. 

CHAPTER XVII. 

UABILIT1 I mi; pibbb COMMUNICATED BY COMPANY^ ENGINES. 

immunicated evidence of negligence 473 

ne tune questioned in England 474 



ANALYSIS OF CONTENTS. xlv 

3. Opinion of Tindal, C. J., upon this point 475 

4. English companies feel bound to use precautions against fire .... 475, 476 
6. Rule of evidence, in this country, more favorable to companies .... 476 

6. But the company are liable for damage by fire through want of care on 

their part " 476 

7. One is not precluded from recovery, by placing buildings in an exposed 

situation 477,478 

8. When insurers pay damages on insured property, may have action against 

company 478 ■ 

9. Where company made liable for injury to all property, are allowed to 

insure 478,479 

10. Construction of statutes making companies liable for loss by fires . . . 479 

11. Extent of responsibility of insurer of goods, to company 479 

12. Construction of statute as to engines, which do not consume smoke . . . 480 

13. Construction of Massachusetts statute and mode of trial 480 

14. 15. For what acts railway companies may become responsible without any 

actual negligence 480, 481 

16. Company not responsible for fires resulting from other fires caused by 

them 481,482 

17 & n. 27. The point illustrated by the late cases, and the conclusion 

reached, that these cases are not sound 482-484 



CHAPTER XVIII. 

INJURIES TO DOMESTIC ANIMALS. 

1. Company not liable unless bound to keep the animals off the track . . 485, 486 

2. Some cases go even further, in favor of the company 486 

3. Not liable where the animals were wrongfully abroad 486,487 

4. Not liable for injury to animals, on land where company not bound to 

fence 487 

5. Where company bound to fence are prima facie liable for injury to cattle . 487 

6. But if owner is in fault, company not liable . 488 

7. In such case company only liable for gross neglect or wilful injury . . 488, 489 

8. Owner cannot recover, if he suffer his cattle to go at large near a rail- 

way 489,490 

9. Company not liable in such case, unless they might have avoided the 

injury 490 

10. Where company are required to keep gates closed, are liable to any party 

injured by omission 490,491 

11. Opinion of Gibson, J., on this subject 492, 493 

12. 17. Not liable for consequences of the proper use of their engines . . 493-495 

13. Questions of negligence ordinarily to be determined by jury 494 

14. But this is true only where the testimony leaves the question doubtful . 494 

15. Actions may be maintained sometimes, for remote consequences of negli- 

gence 494, 495 

16-18. Especially where a statutory duty is neglected by company . . 495, 496 

19. The question of negligence is one for the jury 496 

20. One who suffers an animal'to go at large can onlv recover for gross neg- 

lect " 496 

21. Testimony of experts receivable as to management of engines . . . 496, 497 

22. One who suffers cattle to go at large must take the risk 497 

23. The company owe a primary duty to passengers, &c 497, 498 

24. In Maryland company liable unless for unavoidable accident 498 

25. In Indiana common-law rule prevails 498 

26. In Missouri, modified by statute 498, 499 

27. In California cattle may lawfully be suffered to go at large 499 

28. 29. Abstract of late cases in Illinois 499, 500 

30. The weight of evidence and of presumption 500, 501 

31. Company not liable except for negligence 501 

32. Company must use all statutory and other precautions 501 

33. Not competent to prove negligence of the^ame kind on other occasions . 501 

34. Rule of damages 501 



xlvi ANALYSIS OF CONTENTS. 

CHAPTER \rx. 

i l \< ES. 
TION I. 

I ion WHOM l.l -I- MM OBLIGATION TO MAINTAIN FENCES. 

1 By the English statute there is a separate provision made for fencing . . 503 
is there enforced against the companies by mandamus . . 503 
-mli provision exists, the expense of fencing is part of the 

land damages 503, 504 

: where that is assessed, and payment resisted by the company, the 

land-owner is not obliged to fence 504-506 

... In Bome cases it has been held the fencing is to be done equally, by the 

company and the land-owner 506 

• A in. ni of land damages, on condition company build fences, raises 

an implied duty on their part 507,508 

7. In Borne states, owners of cattle not required to confine them upon their 

own land 508 

■ railway bound t<> keep up fences and farm accommodations . 508, 509 

l ompany bound to fence land acquired by grant 509 

dred wherever necessary 509 

11. Where land-owner declines farm accommodations, has no redress; courts 

of equity will not decree specific performance 509,510 

Mul farm accommodations not required for safety of servants and 

employes 510,511 

■ where company liable for all cattle killed 511 

rty bound to fence assumes primary responsibility 511 

• responsible tin- injury at road crossings 512 

ilway companies not responsible for injury to cattle by defect of fence 

about yard 512 

one escaping through defect of fence 512, 513 

nust appear the injury occurred through default of company .... 513 
. irda required in villages, but nut so as to render streets unsafe . 513 
npany responsible tin- injuries through defect of fences and cattle- 

guards 513 

Sew Hampshire maintain common-law responsibility . . . 513,514 

2. Company responsible as long as they control road 514 

-■: Maintaining fei ong the line of railway, matter of police. Duty of 

statute'and at common law. Fence held 

important in keeping children off the track 514, 515 

toland-owm ng to maintain fence, &c 515 

ponsible for defect of fence unless in fault 515,516 

not responsible in Indiana unless in fault 516 

y riot liable where fence thrown down by others 516 

iwner in fault he cannot recover unless, &c 516 

bi not building fence, &c 516,517 

i-t keep up bars ' 517 

111 ral rule '.'.'. 517 

must be brought within it .' '. '. '. '. ' 517 518 

ie required to keep his cattle at home ' 518 

[uired 51g 



SECTION II. 

' 'Ml MM COMPANY IS BOUND TO FENCE. 

1 law every owner bound to restrain his own cattle 519 

oth, ,V land, it extends only to those cattle 
such land J > 519 520 



ANALYSIS OF CONTENTS. xlvii 

3. Company may agree with land-owner to fence, and this will excuse damage 

to cattle 520, 521 

n. 5. Review of cases upon this subject 520 

4. Owner may recover unless guilty of express neglect 521 

5. Comment upon the last case 521, 522 

6. Statement of case in Massachusetts 522 

7. Further comment on the last case 522, 523 

8. Rule of responsibility as held in Kentucky 523 

9. Rule laid down in Ohio 523 

10. Rule in Indiana 523,524 

11. Distinction between suffering cattle to go at large and accidental escape . 524 



PART VI. 

THE LAW OF AGENCY AS APPLIED TO RAILWAYS. 
CHAPTER XX. 

LIABILITIES IN REGARD TO CONTRACTORS, AGENTS, AND SUB-AGENTS. 

SECTION I. 
LIABILITY FOR ACTS AND OMISSIONS OF CONTRACTORS AND THEIR AGENTS. 

1. Company not ordinarily liahle for the act of the contractor or his servant 527, 628 

2. But if the contractor is employed to do the very act, company is liable . 528, 529 

3. American courts seem disposed to adopt the same rule 529 

4. Distinction attempted between liability for acts done upon movable and 

immovable property not maintainable : 9 

5. Cases referred to where true grounds of distinction are stated 530 

6. No proper ground of distinction in regard to mode of employment . . . 530 

7. Proper basis of company's liability explained 530 

8. So long as one retains control of work, he is responsible for the conduct of 

it 530, 531 

9. A master workman is only responsible for the faithfulness and care of his 

workmen, in the business of their, employment 531 

10. Railway company responsible for injuries consequent upon defects of con- 

struction, in the course of the work by a contractor 53.1 

11. But ordinarily the employer is not responsible for the negligent mode in 

which work is done, the contractor being only employed to do it in a 
lawful and reasonable manner 631 

SECTION II. 

LIABILITY OF THE COMPANY FOR THE ACTS OF THEIR AGENTS AND SERVANTS. 

1. Courts manifest disposition to give such agents a liberal discretion . . . 532 

2. Company liable for torts committed by agents in discharge of their duties . 533 

3. May be liable for wilful act of servant in the range of his employment . 533, 534 

4. Some of the cases hold it necessary to show the assent of the company . . 534 
n. 6. Cases upon this subject reviewed 534-538 

5. Most of the cases adiiere to the principle of respondeat superior .... 535, 536 

6. But it seems not to have been considered that the company is present . 537, 538 

7. The cases seem to regard the company as always absent 538 

8. In cases where the company owe a special duty, the act of the servant is 

always that of the company 538 



xlviti ANALYSIS OF CONTENTS. 

mora ju-i and reasonable to regard the company as always pres- 

n of their agent ■ 539 

. nounl to ratification of the acl of an agent by a corporation 

.11 to define ■ • 539 > 540 

11. How corporations maj be held responsible for the publication of a hbel . . 540 
rporation are such only as are conferred by charter . . 540 

capital being paid in money • • • •. 540,541 

not bound to supply gas to all who require it 541 

mpanj ma} become responsible for false imprisonment 541,542 

onsible for injury done by various animals kept by them or 

remain about their Btations • • 542 

i ral manager of.a railway company may hind them for medical 

lerranl injured in their employment 542 

ii general manager of a railway, can give no valid 
j to his subordinates to do an act which operates as a - fraud 
upon the company 542, 543 

SECTION III. 

IV. II 111! « rO -I K\ IHTS, IV NEGLECT OF -FELLOW "-SERVANTS, AND USE OF MACHINERT. 

1 !• general no Buch cause of action exists against company 543,544 

ii there is any fault in employing unsuitable servants or machinery, 

544-547 

t not liable for deficiency of help or for not fencing road 547 

jtioned whether rule applies to servants of different grades 547, 548 
adopted in some states. Case of slaves. Scotland .... 548, 549 
mtract, by ship-owners, that ship is sea-worthy .... 550,551 
ool apply where servant has no connection with the particu- 

irork 551 

n 15 ewed in England, Scotland, and America 549-551 

B R< -trating the English doctrine 551, 552 

: le law in Kentucky and review of the subject .... 552, 553 

reviewed by Chief Justice Shaw . 554,557 

ipany may show in excuse, that the damage accrued from the servant 

- instructions . 557 

of one company, not fellow-servants with those of another 

company, using the same station, where the injury occurred .... 557 

ih.it the injury occurred by reason of the intoxication ofafellow- 

nt, and thai an habitual drunkard was, or ought to have 

known by the company, tends to show culpable neglect on their 

. . . . . 557, 558 

11 i nsible where his own negligence concurs with that of 

fellow servant 558 

SECTION Ilia. 

PROOF OF NEGLIGENCE, ETC. 

1- W i- injured on a railway the prima facie presumption 

• -ulted from the want of due care on the part of the com- 

I 558, 559 

ompetent to prove the damage occurred without 

559 

upon a free pas-, or in a baggage-car, is not thereby de- 
.aiiiM the company for injuries received through 
lui ire, provided he was at the time a passenger and 
I lit on his own part 559 

SECTION IV. 

FECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 

1. Liable for injuries caused by leaving streets in insecure condition . . 560,561 



ANALYSIS OP CONTENTS. xlix 

2. Municipalities liable primarily to travellers suffering injury 561 

3. They may recover indemnity of the company 562, 563 

4. Towns liable for indictment. Company liable to mandamus or action . . 563 

5. Construction of a grant to use streets of a city 563 

6. Such grant does not give the public any right to use the tracks . . . 563, 564 

7. Bound to keep highways in repair 564 

8. Municipalities not responsible for injuries by such grant 564 

9. Canal company not excused from maintaining farm accommodations by 

railway interference 564 

10. Railway track crossing private way 564, 565 

11. One being wrong-doer in opening company's gates cannot recover . . . 565 

SECTION V. 

LIABILITY FOR INJURY IN THE NATURE OF TORTS. 

1. Railway crossings upon a level always dangerous 566 

2. Company not excused by use of the signals required by statute . . . 566, 567 

3. Party cannot recover if his own act contributed to injury 567-570 

4. But company liable still if they might have avoided the injury . . . 571, 572 

5. If company omit proper signals, not liable, unless that produce the injury 573 

6. Not liable for injury to cattle trespassing, unless guilty of wilful wrong . 573 

7. General definitions of company's duty 574, 575 

8. Action accrues from the accruing of the injury 575, 576 

9. Where injury is wanton, jury may give exemplary damages 576 

10. One who follows direction of gate-keeper excused 576,577 

11. Company responsible for injury at a crossing opened by themselves for 

public use 577 

12. The responsibility of railway companies for damages to persons crossing, 

mainly matter of fact, and each case depends on its peculiar circum- 
_ stances 577, 578 

13. Points decided in late case, speed, negligence, &c 578 

14. The company may establish and use proper and necessary signals in the 

conduct of its business 578 

15. Duty of company in driving trains in a city. Presumptions as to negli- 

gence 578 

16. Company responsible for damage caused by needless blowing of steam- 

whistles 579 

SECTION VI. 

MISCONDUCT OF RAILWAY OPERATIVES SHOWN BY EXPERTS. 

1. The management of a train of cars is so far matter of science and art, that 

% it is proper to receive the testimony of experts 579, 580 

2. In cases of alleged torts company not bound to exculpate 580 

3. So, too, the plaintiff is not bound to produce testimony from experts . . 580 

4. The jury are the final judges in such cases. But omission to produce tes- 

timony of experts will often require explanation 580, 581 

n. 6. General rules of law in regard to the testimony of experts .... 581, 582 



CHAPTER XXL 

RAILWAY DIRECTORS. 

SECTION I. 

EXTENT OF THE AUTHORITY OF RAILWAT DIRECTORS. 

1. Notice to one director, if express, is sufficient 583, 584 

vol. i. d 



I ANALYSIS OP CONTENTS. 

2. Application* to the legislature for enlarged powers, and sale of company's 

works, require consent of shareholders 584 

MUtutional requisites must be strictly followed 584,585 

I |> .... in or shareholders, cannot alter the fundamental business of the 

company 585, 586 

erent difficulty of defining the proper limits of railway enterprise . 580, 587 
•pinion of Lord Langdale, and review of cases on this subject . . ._ 587-590 
can only be confirmed by actual and not constructive 

588-590 

7. The directors of a trading company may give bills of sale in security for 

debts contracted by them 590, 591 

Bctora cannot bind company except in conformity with charter . . . 591 

B I mpany cannot retain money obtained by fraud of directors 591 

in But it must appear the plaintiff was misled without his own fault . . . 591 
mpany, bj adopting act of directors, are liable to make recompense . 591, 592 

12, A prospectus and report should contain the whole truth 592 

! Din ctors cannot issue Bhares to procure votes and control corporation . 592 

II What will amount to fraud in the reports of the company 592,593 

16. Directors responsible for fraudulent acts and representations 593 

I Extent of power of directors 593 

17. Represent the company as to the employe's 593 

it of equity w ill not require a useless or injurious act, even to remedy 

a proceeding ultra vires 593 

19. If the corporation knowingly accept the avails of a contract it will amount 

to ratification 594 

n. 25. Notice estoppel 594 



SECTION II. 

WHEN DIRECTORS BECOME PERSONALLY LIABLE. 

1. Not liable personally, for any lawful act done as directors 594, 595 

'2. Mut are liable upon express undertaking to be personally holclen .... 595 
:;. Are liable personally, if they assume to go beyond their powers .... 596 

4. Extenl of powers affected often by usage and course of business . . . 596,597 

5. But if contract is beyond the power of company, or not in usual form, 

directors personally liable 597 

6. Statement of case illustrating last point 597, 598 



SECTION III. 

COMPENSATION FOR SERVICE OF DIRECTORS. 

1. In England, directors of railways not entitled to compensation for services 598 

L But the company may grant an annuity to a disabled officer . . . .598 599 
3. In this country are entitled to compensation, in conformity to the order of 

the board rqq 

e American cases follow the English rule '. '.'.'.'. 599 

... I 'Itinal bonds strictly limited to term for which executed' ..'..'. 599, 600 



SECTION IV. 

RECORDS OF THE PROCEEDINGS OF DIRECTORS. 

I. Bug - require minutes of proceedings of directors and make it 

■■ "»>l" ions in favor of their containing all that passed! .' .' '.'.'.'. 600 
3. Company will ratify unauthorized act of directors by acquiescence ... 600 



ANALYSIS OP CONTENTS. li 

SECTION V. 

AUTHORITY OF DIRECTORS TO BORROW MONET, AND BUT GOODS. 

1. Authority of directors to bind company, express or implied 601 

2. General agent will bind company within scope of his duties. Directors 

presumed to assent to his contracts 601, 602 

3. Contracts under seal of company prima facie bind them 602,603 

4. Strangers must take notice of general want of authority in directors, but 

not of mere informalities 603 

5. Cannot subscribe for stock of other companies 603, 604 

6. May borrow money if requisite 604 

7. How far directors may bind company by accepting land in payment of sub- 

scription 604 

SECTION VI. 

DUTT OP RAILWAT DIRECTORS TO SERVE THE INTERESTS OF COMPANT. 

1. General duty of such office defined 605 

2. Claim for secret service and influence with directors 605 

3. Opinion of Justice Hoffman upon the legality of such contracts . . . 606-609 
n. 3. Cases reviewed upon the subject of secret services 606-608 

4. Directors cannot buy of themselves for the company. What amounts to 

ratification 609 

5. The point further illustrated. Authority of directors 609,610 

6. Purchase of shares to buy peace 610 

7. Director may loan money to company 610 

8. Director de facto sufficient 610 

9. Hotel company may lease premises to others 610 

10. Director cannot recover for work done for company 611 

11. Contract of projector not binding on company 611 

12. Director cannot act where interested 611 

13. Court will not act on petition of member who is a mere puppet for others . 611 

14. Cannot charge costs of libel suit to company 612 

15. Directors responsible for wrongful acts of each other, if known at the 

time 612 

16. Right of courts to appoint receivers and take the management of corpora- 

tions 612 

17. Directors personally responsible for money expended in raising the prices 

of shares 612, 613 

SECTION VII. 

RIGHT TO DISMISS EMPLOTES. RULE OF DAMAGES, WHEN DONE WRONGFULLT. 

1. Some cases hold, that if wrongfully dismissed may recover salary . . . 613 

2. English courts do not favor this view. Case stated by English judges . 613, 614 

3. The American cases have sometimes taken the same view 614 

4. Where the contract provides for a term of wages, after dismissal, it is to 

be regarded as liquidated damages 615 

5. Statute remedy, in favor of laborers of contractors, extends to laborers of 

sub-contractors 615 



lii ANALYSIS OF CONTENTS. 

CHAPTER XXII. 

kRRAXGEMENTS BETWEEN DIFFERENT COMPANIES. 
SECTION I. 

I | tg] i, iST> BIMIl Ut CONTBA( rS, KEQ1 IKK THE ASSENT OF LEGISLATURE. 

1 By I'i lish Btatutes one company may pass over road of another, but con- 

' tract binding •••••■ 616 

• cannot transfer duty of one company to another, without legislative 

grant • • • 617 

ina] company liable to public, after such lease. But lessee not ex- 

. . " 618-620 

• equity enjoin companies from leasing, without legislative consent 620 

contracts, made by legislative grants, are to he carried into effect 620 

6 Majority of company may obtain enlarged powers, with new funds . . 620,621 

the majority may defend against proceedings in legislature .... 621, 622 

> Legislativi sanction will not render valid contracts ultra vires 622 

[way company cannot assume duties of terry, without legislative grant 622 
-rant to a railway of the implied right to establish a ferry over a pub- 
lic river directlj beyond the- terminus of its road, does not extend the 

risibility of the company to the ferry . . 622 

11. Such a terry may become an encroachment upon another by carrying pas- 

rs gratuitously • • 622,623 

12. The -rant to a railway of a terry in express terms will not authorize them 

ry any thing except passengers and freight passing over their line 623 

13. Legislative confirmation of a railway and its location will not affect its past 

defaults 623 

SECTION II. 

M> l-lll 0] CONTRACTS OF CORPORATIONS BEING UNDER SEAL. 

1. The English courts manifest great reluctance to abandon the former rule 

of law on this subject 623 

11.2. Extended review of the English and some of the American cases . . 623-630 

:e i" later decisions 624-630 

tat amounts to a seal according to modern use 630, 631 

SECTION III. 

Dl H "I Tilt. RESPECTIVE COMPANIE8 TO PASSENGERS AND OTHERS. 

. bound to keep road safe. Act of other companies no excuse . 631, 632 
-•- hold tl. era can only sue the company carrying them 632 

.: Passenger-carriers bound to make landing-places safe 633,634 

1 1'-.' those who ride upon freight trains, by favor, can only require such 

security a- i> usual upon such trains 635 

• all property hound to keep it in state, not to expose others to 

634 

Is to railways, where persons are rightfully upon them . 634, 635 
y of privity of contract existing reviewed . 632-634 
■ i public works is bound to keep them safe for use . 635,636 
one presumptively responsible to the same extent as natural per- 

u the same situation 636 

upany drawing the cars of a connecting road over its own 
line is reponsible as a common carrier 636 



ANALYSIS OF CONTENTS. llii 

SECTION IV. 

EXTENT OF THE POWERS AND DUTIES OF LESSEES OF RAILWAYS. 

1. Statement of the points in an important English case 637-640 

2. Lessees of railways liable for their own acts, and for many acts of lessors 640, 641 

SECTION V. 

CONTRACTS BETWEEN DIFFERENT COMPANIES REGULATING THE TRAFFIC. 

1. Such contracts generally held valid and binding 641, 642 

2. Arrangements to avoid competition valid 642 

3. Construction, force, and operation of contracts between different railways 642, 643 

SECTION VI. 

WHAT IS REQUISITE TO CONSTITUTE A PERPETUAL CONTRACT BETWEEN DIFFER- 
ENT RAILWAY COMPANIES. 

1. Railway connections commonly temporary 643 

2. The matter is one mainly of public convenience, and so subject to legisla- 

tive control 643 

SECTION VII. 

CONTRACTS BY RAILWAYS ULTRA VIRES, AND ILLEGAL. 

1. Contracts to make erections not authorized by their charter 644 

2. Contracts to indemnify other companies against expense 644, 645 

3. Contracts to divide profits 645 

4. Illustration of the doctrine ultra vires 645, 646 

5. How far railways may accept bills of exchange. Railway companies not 

empowered to make bills and notes except from necessity .... 646, 647 

6. Contracts ultra vires cannot be specifically enforced against the directors . 647 

7. Money unlawfully borrowed company must refund 647 

8. How far acts ultra vires confirmed by acquiescence 647, 648 

9. Company not restrained from making unlawful payments on the ground of 

policy 648 

10. Decision rests on no safe grounds 648 

11. It seems too much like paying black-mail to buy peace 648, 649 

1. The power of a receiver to sue in the name of the corporation. . . . 649 

2. Foreign railway corporation acquired no prerogative rights by leasing a 

portion of the track of a domestic railway 650 

3. Statement of the contract and ground of holding it void, as being ultra 

vires 650 

4. Further reasons why such contract cannot be specifically performed 

here 650 

n. 3. Comments upon the preceding propositions 650-652 

SECTION VIII. 

COMPANIES EXONERATED FROM CONTRACTS, BY ACT OF LEGISLATURE . . 651, 652 

SECTION IX. 

WIDTH OF GAUGE. JUNCTION WITH OTHER ROADS. 

1. Where the act requires broad gauge, does not prohibit mixed gauge . . . 652 

2. Permission to unite with other road, signifies a road cle facto .... 652, 653 



Jiv ANALYSIS OF CONTENTS. 

lity win sometimes enjoin company against changing gauge .... 653 

I ,,, make gauge of the companies the same, although contrary to 

[aw of state, at its date, may be legalized by statute ....... 653 

5 The import and construction of the terms " railway connection .... 6o3 



PART VII. 

Till LAW OF MANDAMUS AND OTHER PREROGATIVE REM- 
EDIES AS APPLIED TO RAILWAYS. 

CHAPTER XXIII. 

MANDAMUS. 

SECTION I. 

GENERAL RULES OF LAW GOVERNING THIS REMEDT. 

1. Regarded as a supplementary remedy 657,658 

■j Mode of procedure 658 

(1.) Matter ol discretion 658 

Alternative writ 659 

ings in most of the American courts 659 

l I glish courts do not allow application to be amended 660 

English statute has essentially simplified proceedings 661 

le of trying the truth of the return 661,662 

-t in the discretion of court 662 

• of service 662 

9. By late English statutes mandamus effects specific performance .... 663 

SECTION IT. 

PARTICULAR CASES WHERE MANDAMUS LIES TO ENFORCE DUTY OF CORPO- 
RATIONS 664, 665 

SECTION III. 

SL1VDAJTD8 THE APPROPRIATE REMEDT TO RESTORE OFFICERS AND MEMBERS OF 
CORPORATIONS TO nil, DISCHARGE OF THEIR PROPER FUNCTIONS, WHERE 
Till V II WK BEEN DEPRIVED OF THE SAME THROUGH THE AGENCY OF THE 
< "KIOUATION. 

1. The writ formerly granted only to restore to public office 666-669 

inted in all cases where of value and sufficiently permanent . . 670, 671 

lable, where election annual and facts traversed 671 

.imant must have permanent and vested interest 671,672 

SECTION IV. 

MANDAMUS TO COMPEL COMPANY TO COMPLETE THEIR ROAD. 

1 '' - ' »urtl hive required this upon a general grant 672,673 

• these cases overruled. Not required now, unless under peculiar 

circumstances . . . . , 673 674 

3. Recent case in New York Court of Appeals . . . . . . . . . . . '674 



ANALYSIS OP CONTENTS. lv 

SECTION V. 

IN WHAT CASES THIS IS THE PROPER REMEDY. 

1. Where the act is imperative upon the company to build road 675 

2. Mandamus more proper remedy than injunction 675,676 

3. Commissioners of public works not liable to this writ 676 

4. Public duties of corporations may be so enforced 676, 677 

5. Facts tried by jury. Instances of this remedy 677 

6. Cannot be substituted for certiorari, when that is taken away 678 

7. Requiring costs to be allowed 678 

8. Other instances of its application 678 

9. Lies where the duty is clear, and no other remedy 678, 679 

10. Not awarded to control legal discretion 679, 680 

11. Does not lie to try the legality of an election 680 

12. Lies to compel transfer of stock 681 

13. Where a railway company omit to have damages estimated under the 

statute, they may be compelled to do so by mandamus 681 

SECTION VI. 

PROPER EXCUSES, OR RETURNS TO THE WRIT. 

1. Company may return that powers had expired at date of writ .... 681, 682 

2. May show want of funds to perform duty 682,683 

3. But cannot show that road is not necessary, or would not be remunerative 683 

4. May quash part of return, and require answer to remainder 683 

5. Counsel for writ entitled to begin and close 683 

6. Cannot impeach the statute in reply to the writ 683 

7. Peremptory writ cannot issue till whole case tried 683, 684 

8. Will not quash return summarily 684 

9. No excuse allowed for not complying with peremptory writ 684 

SECTION VII. 

WHERE THE ALTERNATIVE WRIT REQUIRES TOO MUCH, IT IS BAD, FOR THAT 

WHICH IT MIGHT HAVE MAINTAINED 684, 685 

SECTION VIII. 

ENFORCING PAYMENT OF MONEY AWARDED AGAINST RAILWAYS. 

1. The enforcement of payment of money against corporations by manda- 

mus 685 

2. Where debt will lie the party not entitled to mandamus 686 

3. Mandamus proper to compel payment of compensation under statute . 686, 687 

4. Mandamus not allowed in matters of equity jurisdiction 687 

5. Contracts of company not under seal enforced by mandamus 687 

6. Where a statute imposes a specific duty, an action will lie 688 

SECTION IX. 

THE WRIT SOMETIMES DENIED IN MATTERS OF PRIVATE CONCERN. 

1. Mandamus denied to compel company to divide profits 688, 689 

2. Allowed to compel production and inspection of corporation books . . . 689 

3. Will compel the performance of statute duty, but not to undo what is 

done 689, 690 



lv j ANALYSIS OP CONTENTS. 

| Allowed to compel the production of the register of shares, or the registry 

of the Q ame of the owner oi shares, and in other cases . . • • • • bJU 

., i- £ the common . I « restoring persons to corporate offices of 
which they are unjuBtly deprived 

SECTION X. 

nngUKIDl LOST B1 ACQUIESCENCE. — PROCEEDING MUST BE BONA FIDE. 

1 Remedy must he sought at earliest convenient time . 692, 693 

irts will not hear such case, merely to settle the question . . . ... wa 

|. l„ New York may be brought any time within statute of limitations ... oJd 

SECTION XL 

HANDAM1 S ALLOWED WHERE INDICTMENT LIES. 

1. Party may have mandamus sometimes where act is i indictable 694 

i Allowed to compel company not to take up their rails 694 

:;. Will not lie where there is other adequate remedy 6J& 

section xn. 

JUDGMENT UPON PETITION FOR MANDAMUS REVISABLE IN ERROR . . 695 



CHAPTER XXIV. 

WRIT OF CERTIORARI. 

SECTION I. 
TO REVISE PROCEEDINGS AGAINST RAILWAYS. 

- to bring ii]) unfinished proceedings, or those not according to the 
common law 696, 697 

2. This writ is one of very extensive application, unless controlled by 

697 

3. Where the case is fully heard on the application, judgment may be en- 

698 

SECTION II. 

WHERE I llllli; IS AN EXCESS OF JURISDICTION 698 

SECTION III. 

JURISDICTION AND MODE OF PROCEDURE. 

' Lii of irregularity, unless taken away by statute 699 

aisitione before officers, not known in the law 699 

rit is matter of discretion. Defects not amendable .. . 699,700 
allowed for irregularity in proceedings, or evidence, or form of 

"<"t 700 



ANALYSIS OF CONTENTS. lvii 

CHAPTER XXV. 

INFORMATIONS IN THE NATURE OF QUO WARRANTO. 

1. General nature of the remedy 701,702 

2. Its exercise confined to the highest court of ordinary civil jurisdiction . . 702 

3. In the English practice, this remedy not extended to private corporations . 702 

4. In this country it has been extended to such corporations 703 

5. This remedy will only remove a usurper, but not restore the one right- 

fully entitled 703 

6. Will not lie where railway company open part of their road 704 

7. Nor where company issue stock below par, or begin to build road before 

subscription full ' 704 

8. Form of the judgment 704,705 

9. Rules in regard to taxing costs 705 

10. Used to test corporate existence and power 705 

11. Penalties provided by charter cannot subsequently be increased to a 

forfeiture 705 

12. But a grant of corporate franchises may be annulled when its purposes 

have failed 705, 706 

13. Scire facias the proper remedy to determine forfeiture 706 

14. Insufficient excuses for failure to repair a turnpike road 706 

15. This remedy does not supersede any equitable redress 706 



TABLE OF CASES. 



PAGE 

A. & N. L. R. Co. v. Smith 186 

A. & S. Railw. v. Baugh 507 

v. Carpenter 278 

Aberdeen Railw. v. Blakie 92 

Abervstwith Railw., in re 51 

Abraham v. Great Northern Railw. 335 

v. Reynolds 556 

Ackland v. Lewis 121 

Adair v. Shaw 182 

Adams v. Ferick 162 

v. Frye 135 

v. London & Blackwall 

Railw. 
v. Saratoga & Wash. Railw. 

811, 315 
Adderley v. Storm & Bailey 148 

Adler v. Milw. Patent Brick Co. 183 
Adley v. Whitstable Co. 96 

Agar v. Athenaeum Life Ass. Co. 

v. Regent's Canal Co. 
Agricultural Bank v. Burr 

v. Wilson 
Agricultural Branch Railw. v 

Winchester 
Aiken v. Western Railw. 
Alabama & Tenn. Railw. v. Kidd 
Albany N. Railw. v. Lansing 

283, 311 
Aldham v. Brown 50 

Aldred v. North Midland Railw. 

Co. 45, 409 

Aldrieh v. Cheshire Railw. 305, 350 
Aldridge v. Great Western Railw. 474 
Alexander v. Crystal Palace Railw. 370 
Alexandra Park Co., in re 459 

Algeo v. Algeo 614 

Alger v. Miss. & Mo. Railw. 499 

Alleghany v. Ohio & Pennsylvania 

Railw. 320 

Alleghany City v. McClurkan 590 



387 



603 
208 
125 
125 

188 
623 
532 

277, 



Allen v. Graves 137 

v. Hay ward 529 

v. Montgomery R. 177 

Allyn v. Boston & Albany Railw. 569 

v. Prov. W. & B. Railw. 287 

Alton Railw. v. Nort ott 436 

Ambergate, N. & Boston & E. J. 

R. v. Coulthard 192 

v. Midland Railw. 350 

v. Mitchell 159, 160 

Ambergate River v. Norcliffe 192 

American Railw. Troy Co. v. 

Haven 671 

Ammermon v. Wyoming Land 

Co. 564 

Anderson v. Kerns Draining Co. 73 
v. N. & R. Railw. 73 

v. Ohio & Miss. Railw. 179 
Andover, Case of 660 

Andover Turnpike v. Gould 174 

v. Hay 174 

Andrews v. City of Portland 428 

v. Ohio & Miss. Railw. 187 
Androscoggin Railw. Co. v. Rich- 
ards 104 
Androscoggin & Kenebec Railw. v. 

Androscoggin Railw. 643 

Anglo- Cahfornian G. M. Co. v. 

Lewis 180 

Anonymous 63, 66, 690 

Anstruther v. East Fife Railw. 675 

Anthony Street, matter of 287 

Antisdel v. Ch. & N. W. Railw. 518 
Appleby v. Meyers 434 

Appleford's case 679 

Applegate v. Lexington & Ohio 

Railw. 315 

Armington v. Barnet 246, 272 

Armstrong v. Burnet 162 

v. Waterford & Limer- 
ick Railw. 383 



Ix 



TAHLE OF CASES. 



Anu.1.1 v. Hudson R. Railw. 274 
I .\ or of Poole 86 

627, 628 

1 2 1 

Arthur r Commercial Bank 266 

Ashby d Eastern Railw. 286, 287, 355 

iula >v New I.. Railw. i>. 

Smith 69, 218, til 

A - lit • 'ii r. Lord Longdale 1 1 9 

Ashwoi tli o. M.inw i\ 5 1 1 

Aspinwall v. Ohio & Miss. Railw. 214 

v. Yates . r > 15 

Aston 241 

M v. I'll' nix Bank 67'.) 

Athenamm Life Lis. < '<-.., in re 

Sheffield 153 

Atkinson v. Marietta & Cin. 

Railw. 281,413 

Atlantic Cotton Mills r. Abbott 189 
Atlantic & Ohio R. R. v. Sullivant 

69, 256 
A. & St. L. Railw. v. Commission- 

t < uinli irland ( iounty 286, 293 
Atlee r. Backhouse 466 

Attala Co. r. Grant 679 

Att'y-Gen. d. Bir. and Oxford J.R. 675, 

704 
irporation of Rye 67 
r. Davy 90 

r. Detroit & Erie Plank- 
Road Co. lis 
v. Dorsel Railw. 284 
v. E. H. & S. Railw. 593 
v. Earl of Lonsdale 319 
v. Great N"orth'n Railw. 67, 
1 55 
v. Hudson River Railw. 337 
v. Leaf 702 
''■ London & South- 
ampton Railw. 425 
''■ Nichol 352 
S Railw. 244 
v. Sheffield Gas Con- 

sumers 1 < !o. 352 

'ens ;;n 

v. Tewkesbury A- (ireat 

Malvern Railw. 11, 413 

Railw. v. McElmurry 567 

Annua Branch Railw. v. Grimes 194 

West 411 

Austin, ex />mle 677 

Bank ofc. Cheny 568 

1 Mail Co. v. Mar- 

626 

Williams 697 

: E. Railw. 632 

Mount 195, 198 

>-. Thomson 168 

■ I ■ ■ . Railw. 95 



B. 



B. <). & M. Railw. v. Smith _ 262 

Babcock v. The Western Railw. 235, 

341 

Backhouse v. Bonomi 576 

Backus r. Lebanon 273,276 

Bagge, ex parte 123 

Bagnall v. London & N". W. Railw. 358 

Bagshaw v. Eastern Union Railw. 8 

Bagshawe v. Same 30, 33 

Bailey v. Hollister 214 

v. Mayor of New York 346 

v. Phil. & Wil. Railw. '337 

v. Western Vermont R. 458 

Baily v . De Crespigny 358 

Baker, ex parte 591 

v. Johnson 265, 299 

Balch v. N. Y. & O. M. Railw. 615 

Baldwin v. Western Railw. 575 

Bale v. Clelland 592 

Balls v. Met. Board of Works 369 

Bait. &c. Co. v. Northern &c. 

Railw. 698 

Baltimore City Passenger Railw. v. 

Wilkinson 116 

Bait. & O. Railw. v. Bahrs 578 

Baltimore & Ohio R. v. Blocher 106 

v. Breinig 569 

v. Lamborn 508 

v. Thomson 307, 363, 581 

v. Wheeling 212 

Baltimore & Susq. Railw. v. Mus- 

selman 210 

v. Nesbit 256, 301 

v. Woodruff 476, 575 

Banet v. Alton & Sangamon Railw. 

176, 185, 211 
Bangor Bridge Co. v. McMahon 175, 

177 
Bangor House Proprietary v. 

Hinckley 174 

Bangor &Pisc. R. v. Harris 271 

Rank v. McChord 135 

Bank of Augusta v. Earle 63 

of Australasia v. Cherry 596 

of Columbia v. Patterson 430 
of Commonwealth v. Curry 135 
of Manchester v. Allen 76 

of Metropolis v. Guttschlick 430 
of Middlebury v. Edgei'ton 4 
of Pennsylvania v. Common- 
wealth 410 
of South Carolina v. Gibbs 65 
of U. S. v. Dandridge 76 
v. The Planters 1 Bank of 

Georgia 59, 65, 66 

of Utica v. Smalley 125 

of Waltham v. Waltham 121 



TABLE OP CASES. 



lxi 



Bannor v. Baltimore & Ohio R. 578 
Barber v. Essex 562 

Barclay v. Howard's Lessee 268 

Bardstown & Lou. Railw. v. Met- 
calf 59, 251 



Baigate v. Shortridge 
Barker, ex parte 

v. Midland Railw. 

v. North Staffordshire 
Railw. 

v. Troy & Rutland R 



12:3 

K6 

101 



369 

414, 

431, 459 

691, 702 

155 

3, 249 

142 



Barlow, in re 
Barnard v. Bagshaw 

v. Wallis 
Barned v. Hamilton 
Barnes v. Ward 634 

Barnesley Canal Co. v. Twibill 351 
Barret v. Great N. Railw. 104 

Barrett, ex parte 157 

v. Maiden & Melrose 

Railw. 542 

v. Stockton & D. Railw. 253 

Barrington v. Miss. Central Railw. 119 

Barron v. Baltimore 247 

v. Eldridge 4«3 

Barrows v. Mass. Medical So. 6'J1 

Barry v. Croskey 596 

v. Merchants 1 Exchange Co. 

117 
619 
531 
ISO 



618. 



Barter v. Wheeler 
Bartlett v. Baker 
Barton's case 
Barton v. Port Jackson, &c. Plank- 
Road Co. 589 
Bass v. Chicago, Bur. & Quincy 

Railw. Co. 480, 500 

Bassett v. Norwich & Nashua 

Railw. 550 

Bateman v. Mid-Wales Railw. 646 

Bates v. Boston & N. Y. Cen. 

Railw. 631 

v. New York Ins. Co. 124 

Bath River Navigation Co. v. Wil- 
lis 256 
Batty v. Duxbury 561 
Battve v. Gresley 91 
Baxter v. B &. W. Railw. 511 
Bayley v, Manch. S. & L. R. 537 
v. Wilkins 139 
Bayliffe v. Butterworth 139 
Bavntine v. Sharp 474 
Beach v. Smith 119, 203 
Beardmer v. London & North- 
western Railw. 406 
Beattie v. Lord Ebury 596 
Beaty v. Knowler 253 
Beaufort v. Swansea Harbor Trus- 
tees 399 



Beaulieu v. Finglam 474 

Beckett v. Midland Railw. 354, 389 
Bcckitt v. Bilbrough 8 

Bcckwith v. Sydbothain 581 

Bedford R. Co. v. Bowser 192, 218 
Beebe v. Ay res 110 

Beekinan v. Saratoga & Sch. 

Railw. . 245 

Beene v. Cahawba & M. R. 176 

Beers v. Housatonic Railw. 494 

Beisigel v. New York Central Rail- 
way 577 
Belfast & Angelica Plank-Road 

Co. v. Chamberlain 74 

Belli'. Railw. v. Suman 486 

Bellf. & Iowa R. C. v. Bailey 496 

Bell v. Francis 12 

v. Cough . 336 

v. Hull & Selby Railw. 343, 355 

v. London & N. W. Railw. 584 

v. Midland Railw. 420 

Belmont v. Erie Railw. 612 

Beman v. Rurford 81, 620 

Bemfclly v. Green Bay Co. 280 

Bemis v. C. & P. Railw. 519 

Bend v. Susquehanna Bridge Co. 70, 

195 
Benedict v. Coit 317 

Bennett, ex parte 178 

Bennett v. C. & A. Railw. 698 

v. Button HO 

v. Railway 285, 294 

Benson, ex parte 679 

Bentinck v. Norfolk Estuary Co. 260, 

408 
Bermingham v. Sheridan 143 

Beverly v. Lincoln Gas Light & 

Coke Co. 430, 624, 628 

Bigelow v. Miss. Central & Tenn. 

Railw. Co. 296 

Bill v. Darenth Valley Railw. 629 

v. Sierra Nevada L. W. Co. 67 

Binney's case 120 

Binney v. Hammersmith & City 

Railw. Co. 374 

Birkenhead R. v. Pilcher 204, 205 

Birkenhead, L. & Ch. Railw. v. 

Webster 192 

Birmingham, B. & Th. J. Railw. 

v. Locke 8, 168, 178, 195 

Birmingham & Oxford J. Railw. v. 

Reg. 373 

Bish v. Johnson 210 

Bishop v. North 2, 3 

Bishop of Winchester v. Mid- 
Hants Railw. 301, 384 
Bissell v. Mich. 'So. & N. Ind. 

Railw. 620 

Black River Railw. v. Clarke 73, 201 



lxii 



TAHLE OF CASES. 



Black River A Dtica Railw. v. 
Barnard '3 

■ •■il d Wiswall 

:1)V 468 

I 529 

r. Rich 268 

birat 531 

Blakemore p. Bristol & Exeter 

lw. ^ 633 

p. Glamorganshire Canal 

Co. HO, 668,669,670, 673 

Bland p. Crowley 31, 40 

Bligfa P. l'.nnt ' 120 

Hosmer 259 

p. Pass. River Railw. 348 

Blodgetl r. Morrill 171, 172 

Lowell& Nashua Railw. 363 

Bluod^ood r. M. & II. Railw. 246, 

258, 285, 297, 299, 323, 533 

Blount p. Hipkina 144, 162 

Bloxam, ex parte 17 

Bluck p. Mullalue 610 

Blundell p. Winsor 122 

i p. ( larpenter 150 

Iman p. (lore 135 

Bog Lead Co. p. Montague 131 

p. Midland Railw. 361 

Bonaparte p. Camden & Amboy 

Railw. 58, 285, 297 

II 1 P. Morse .">y? 

Bonner p. v 691 

I;mi. & Bur. Railw. 460, 461 
Booker, ex parte 173 

Boothby p. Androscoggin & K. 

Railw. < o. 360 

Bordentown & South A. Turnpike 

< lamden & Amboy Railw. 495 

Boron;:!, of Sewickley 696 

luel p. Shortridge 122 

■ k i'. North Staffordshire 
Railw. 267 

Bost ii & Lowell Railw. v. Boston 
& M line Railw. 643 
p. Proctor 109 
• ni & Lowell Railw. 274 
Boston A: Maine Railw. v. Bab- 
cock 241 
v. Bartlett 216, 242 
r. City of Lawrence 420 
ounty of Middlesex 313 



V, 



B 



»v 1'. l; I, u. ,-. Magruder 
p. Mi. Hand Railw. Co. 



345 

298, 
406, 410 
306 
476 



1 '•■•'. p. ' lompton 
p. Woodruff 
Boston Type & Mereotype Foun 
dry *-. Spo mer 73 

n Water PowerCo. v. Boston 
,v \V r. ■ iter Railw. 272, 273, 336 



Boston & Worcester Railw. v. Old 

Colony & F. R. Railw. 293 

Boswell v. Townsend 464 

Boughton v. Carter 344 

Boultoii v. Crowther 317 

ex parte v. Skelehley 164 

Bowen, ex parte 14 

Bowlby v. Bell 138 

Bowman v. Troy & Boston Railw. 496 
v. Wathen 342 

Bowring v. Shepherd 138 

Boyd v. Chesapeake & Ohio Canal 

Co. 584 

v. Negley 271 

Boyle v. Phil. & Reading Railw. 467 
Boynton v. Peterboro' & Shirley 

Railw. Co. 297, 362 

Brace v. New York Central Railw. 513 
Bra-ken v. Rushville Gravel Road 

Co. 236 

Bradley v. Boston & Maine Railw. 566 
v. Holdsworth 120 

v. London & N. W. 

Railw. Co. 398 

v. N. Y. & N. H. Railw. 60, 

246, 253, 312, 318 

Bradshaw, in re 295 

v. E. & W. I. Docks & 

Birm. J. Railw. 379 

v. Rogers 248 

Brainard v. Clapp 269 

v. Conn. River Railw. 242, 316 

Brand v. Hammersmith & City 

Railw. Co. 309, 354, 357 

Branin v. Conn. & Pass. R. R. 464 
Branson v. Philadelphia 239, 281 

Braynton v. London & Northwest- 
ern Railw. 407 
Breed v. Eastern Railw. 379 
Breedlove v. M., &c. Railw. 74, 192 
Brewer v. Boston Theatre 596 
Brewster v. Hartley 86, 173 
Briekett v. Morris 345 
Bridges v. Wilts, Somerset, & 

Weymouth Railw. 385 

Briggs, ex parte 151, 679 

v. Ferrell 618 

v. Taylor 524, 547, 567 

Brigham v. Agricultural Branch R. 411 
Bright p. Hutton 15 

Brightwell v. Mallory 121 

British Provident Life Ins. Co., 

ex parte Grady 648 

Britton v. Great Western Cotton 

Co. 547 

Broadbent ». Imperial Gas Co. 291 
Broadway Bank v. MeElrath 166 

Brock v. Conn. & Pass. Railw. 510 
Brockett v. Railw. 411 



TABLE OF CASES. 



lxiii 



Brockwell's case 

Brooklyn Central & J. Railw. v. 
Brooklyn City Railw. 317, 

Brooks v. Buffalo & Niagara Railw. 
v. New York & Erie Railw. 
487, 
Broom v. Comm. 
Brotherhood, in re 
Broughton v. Manchester Water- 
works 
Brown v. Beatty 281, 

v. Bellows 
v. Byrne 

v. Cayuga & Susquehannah 
Railw. 312, 345, 

v. Chadbourne 
v. City of Cincinnati 
v. Duplessis 
v. Fellows 
v. Illius 

v. Maxwell 544, 

v. Overbury 
v. Peterson 

v. Providence, Warren, & 

Bristol Railw. 290, 

Browne v. Providence, Hartford, 

& Fishkill Railw. Co. 
Brownlee v. Ohio, Ind., & 111. 
Railw. 173, 187, 

Brownlow v. Metropolitan Board 
Bryan v. Lewis 
Bryon v. Met. Sal. Om. Co. 
Bryson v. Warwick & Birmingham 

Canal Co. 
Buck v. Squires 
Buckeridge v. Ingraham 
Buckfield Branch Railw. v. Irish 
Bucknam v. Bucknam 
Budge, ex parte 
Buffalo v. Holloway 
Buffalo & Alleghany Railw. v. 

Cary 
Buffalo, Corning, & New York 

Railw. v. Pottle 
Buffalo & New York City Railw. 
v. Dudley 177, 211, 

Buffum v. N. Y. & Boston Railw. 
Building Association v. Sende- 

meyer 
Bull v. Chapman 
Buncombe T. Co. v. McCarson 
Bunger v. Koop 
Burbridge v. New Albany & S. 

Railw. 
Burgess v. Gray 528, 

v. Great Western Railw. 
Burke v. Leclimere 
Burkinshaw v. Birm. & Ox. J. 
Railw. 375, 



224 

563 
572 

520 

85 

648 

604 
350 
240 
140 

641 
335 

278 
324 
240 
312 
555 
455 
271 

303 

522 

215 

635 
128 
591 



315 
120 
177 
315 
377 
561 

74 

213 

220 
290 

158 
18 
73 

433 

363 
530 
633 
215 

387 



Burlington & Mo. River Railw. v. 



White 
Burmester v. Norris 
Burnes v. Pennell 
Burnet v. M. Bisco 
Burnett v. Lynch 
Burns v. Dodge 

v. Milw. & Miss. 



214 

80 

153, 583 

185 

133, 148, 149 

300 

Railw. Co. 

272, 351 
Burnside v. Steamboat Co. 478 

Burr v. Wilcox 196 

Burrell v. Jones 595 

Burroughs v. Housatonic Railw. 476 
Burrows v. The March Gas and 

Coke Co. 483 

Burt v. Farrar 70 

Burton, ex parte 15 

v. North Missouri R. Co. 498 

v. Phil., Wil. & Bait. Railw. 

311, 494, 538 

v. Railw. Co. 573 

Bush's case 169 

Bush v. Beavan 657, 695 

v. Steinman 529 

Butler v. Hunter 531 

v. Mehrling 293 

Butman v. Vermont Central R. 306 

Button v. American Tract Society 67 

Butts v. Woods 599 

497, 515 



Buxton v. N. E. Railw. 



c. 



c. c. 



488, 
548, 



& C. Railw. v. Elliott 

v. Keary 

v. Terry 
C. H. & D. Railw. v. Waterson 
C. H. & N. W. Railw. v. Goss 
Cabot and West Springfield Bridge 

Co. v. Chapin 
Cadmus v. Central R. 
Cahill v. Kalamazoo Ins. Co. 
Calder Navigation Co. v. Pilling 

Caledonian Railw. v. Lockhart 
v. Ogilvy 
v. Sprot 
Caledonian & Dumbartonshire 
Junction Railway v. Helens- 
burgh Harbor Trustees 
Callender v. Marsh 

v. Painesville & H. 
Railw. 
Cambridge &Somervillet>. Charles- 
town Br. Railw. 
Cam. & Amboy Railw. v. Briggs 

Camden v. Mulford 



508 
555 
116 
488 
524 

189 

294 
91 
95, 
99 
400 
356 
312 



49 
317 

69 

678 

253, 

467 

696 



I\!V 



TABLE OF CASES. 



( lamden Bank v. I [alls 

( lameron v. < baring < Irosa Railw. 

( lampbell < . M( 

< anal • ". v. Ai cher 

I '.I tke •'• 

( ' :i 1 1 il ( lommissioners v. People 
( lanai S , Railw. v. Payne 

( lape Sable < Company 1 ! 
( apper v. Earl of Lindsey 
Card r, X. V. & II. Railw. 

< larden <•. < len < !emetery < !o. 

( lardiff C. & C. ( lompany, in re 

ton 
( !arington <\ W\ comb Railw. 



r. B 

Railw. 

1 nan '•. 
Railw. 



Canal eV R. It. 

545, 

< lahawba iV Marion 



Steubenville & Ind. 
303, 304, 

< ii mi' hael, ex p 

( larnocban o. Norw ich & Spaulding 
Railw. 364, 

< larpi nter v. Bristol <>77, 

v. Countj ' lommission- 
ers i'l Bristol 
r. [ns, « '". 
Carr o. Georgia Railw. & Banking 

i o. i, -jii, 

v. Royal Exchange Ins. < !o. 
I n v. Western Railw. 

' real Eastern Railw. 
v. Thompson 
pole >-. Ambergati Railw. 
iin Railw. '•. London & Br. 
Railw. 
< ' izyer '■. Taj lor 

< ecil v. I'. Railw. 

< lentral Bridge I lorporation v. ( lity 

"i Lowell 
Central Military Track Railw. v. 
R k if< How ' /an;, 

< lentral < >hio Railw. r. Lawrence 

P Road < !o. v. Clem- 
• 
' R lil. < ". /•. Bunn 

o. Midi. -1.1 
R ilw. r. Kis li 
' I Turnpike Co. v. Valen- 

tine 

< 'nt r.- Turnpike Co. v. Smith 

< I. ids Mi ' ri ■!•!• 

Cham e i iin p. Painesville& Hud- 

■ 
( ,i:i "" ! End of Lon- 

don & i rystal Palai e Railw. 



135 
360 
60; 
278 
410 
315 
277, 
310 
L20 
43 
489 
688 

154 
372, 
395 

555 

L85 

530 
15 

374 
678 

287 
143 

349 
136 
311 

:;?i 
297 
156 

KM 
546 
186 

■>12 

520 

197 

212 
210 
238 
225 

118 

465 

68 

186 

857 



Chamberlain v. West End of Lon- 
don & C. Railw. 354 
Chambers v. London, Chatham, & 

Dover Railw. 370 

v. Manchester & Mil- 

ford Railw. 646 

( lhampion v. Memphis & Charles- 
ton Railw. 212, 411 
Champ lain & St. Lawrence Ilailw. 
r. Valentine 336 

< lhamplin r. Pendleton 315 
Chandler v. Broughton 538 
Chapin v. Boston & Providence 

Railw. 289 

v. Sullivan Railw. 265, 614 
v. Verm. & Mass. Railw. 135 
Chapman v. Albany & Sch. Railw. 

311, 815, 318 
v. Atlantic & St. Law- 

rence Railw. 
v. Mad River & 
Erie Railw. 

< lhapple's case 
Charitable Corporation v. Sutton 606 
Charles River Bridge v. Warren » 

Bridge 76, 253, 274 

Charles River Railway v. County 
Commissioners of Norfolk 

( lharlestown Branch Railw. v. Mid- 
dlesex 

Charlotte & S. C. Railw. v. Blake- 
ly 176, 200 

Cha.se v. New York Central Railw. 

306, 468 

Chasemore v. Richards 846 

< lhatham v. Brainerd 315 

< licali' v. Kenward 143 
Cheltenham & Great Western 

Union Railw. v. Daniel 8, 13.'i, lilt 
v. Medina 194 

< Iheney v. Boston & Maine Rail- 

| way' 107 

Chesapeake & Ohio Canal Co. v. 

Baltimore and Ohio Railw. 
Chester Glass Co. v. Dewey 



479 
Lake 

190 
169, 205 



366 
298 



Chestnut Hill Turnpike Co. v. 

Rutter 
C. & A. Rail 



273 
125, 

175 



v. 



533 
569 
548 

98, 112 
489, 518 



< rretzner 
v. Keefe 
v. Roberts 
v. Utley 
Chicago, Burlington, & Quincy 
Railw. V. < 'audinan 500 

v. ( ioleman 601 

». Darks 98, 112, 114 

v. Wilson 261, 078 

Chicago & Miss. Railw. v. Patch- 
in 269, 494, 506, 508 



TABLE OF CASES. 



lxv 



Chicago & Mont. Railw. v. Bull 293 
Chicago & N. W. Railw. v. Pea- 
cock 98, 112 
v. Simonson 477 
Chicago & Rock Island Railw. 

v. Still 572 

v. Ward 505 

Child v. Coffin 125 

v. Hudson Bay Co. 95, 96 

Childs v. Somerset & Kennebec 

Railw. 431, 459 

Chilton v. London & Croydon 

Railw. 97, 106 

Chinnock, ex parte L69 

Chouteau Spring Co. v. Harris 124 

Church v. imperial Gas Light & 

Coke Co. 624, 628 

v. Northern Cent. Railw. 287 
Cincinnati Coll. v. State 253 

Cincinnati & Spring Grove Ave. 

Railw. v. Cumminsville 323 

Cincinnati, Indiana, & Chicago 

Railw. v. Clarkson 220 

Cincinnati, \V. & Z. Railw. v. 

Clinton Co. Commissioners 246 

City of Cincinnati v. Stone 528 

City of London v. Vanacre 85 

City of Janesville v. Milvv. & 

Miss. Railw. 324 

Claflin v. Wilcox 537 

Clarence Railw. v. Great North 

of England Railw. 234, 252 

Clark v. Boston, Cone, & Mont. 

Railw. 348 

v. Guardians of Cuckfield 

Union 625, 626, 

627, 628, 629 
Clark's case 96 

Clarke v. Leicestershire & North- 
amptonshire Canal Co. 683 
v. Mayor of Syracuse 246 

v. Monongahela Navigation 

Co. 200 

v. Syracuse & Utica Railw. 488, 
490, 507, 520 
v. Vermont & Canada Rail w. 

278, 510 
Clarke, ex parte 15 

v. Dickson 151, 153 

v. Imperial Gas Light Co. 599, 
604 
v. L. & N. Union Canal 677 
v. M., Sh. & L. Railw. 284 
v. Rochester, L. & N. F. 

Railw. 509 

Clarkson v. Hudson River Railw. 295 
Clary v. Hoagland 697, 698 

Clay v. Rulford 584 

Clayton v. Carey 691 



Cleaver v. Commonwealth 701 

Clement v. Caniield 509, 618 

Cleveland Iron Co. v. Stephen- 
son 592 
Cleve. & Pittsb. Railw. v. Ball 290, 

293 
v. Kelley 459 

v. Spear 310, 464 
Cleveland, Painesville, & Ashta- 
bula Railw. v. City of Erie 73, 653 
C. P. & Indiana Railw. v. Simp- 
son 289 
Cleveland & C. Railw. v. Bar- 
tram no 
Cleveland & Toledo Railw. v. 

Prentice 288 

Cliff, v. Midland Railw. 568 

Clipper v. Logan 581 

('live v. Clive 162 

Clowes v. Staff Potteries Water 

Works Co. 347 

( 'oates v. Mayor of New York 246 
Cobb v. Mid Wales Railw. 372 

Cockburn, ex parte 124 

v. Union Bank 679 

Cockerell v. Van Dieman's Land 

Co. 227 

Coe v. Wise 635 

Coffin v. Collins 76, 92 

Coggs v. Bernard 606 

Coil v. Pittsburgh Female College 75 
( 'nlcock u. Louisville Railw. 433 

Colcough v. Nashville & N. W. 

Bailw. 288, 312, 350 

Cole v. Crystal Palace Railw. 370 

v. Dyer 704 

Coleman, ex parte 157 

Colman v. Eastern Counties Railw. 33, 

208, 209, 251, 587, 641 

Coles v. Bristowe 129, 138 

College of Physicians v. Salmon 66 

Collins v. Blantuin 602 

v. South Staffordshire 

Railw. 398 

Collinson v. Newcastle & Darling- 
ton Railw. 362 
Colonial Life Ass. Co. v. Dome & 

Col. Life Ass. Co. 68 

Colt v. Roberts 693 

Columbia Ins. Co. v. Lawrence 479 
v. Wheelright 695 
Columbine v. Chichester 145 

Col. & Ind. Central Railw. v. Ar- 
nold 544, 593 
Columbus, Piqua, & Ind. Railw. 
v. Indianapolis & Bellefontaine 
Railw. 621, 653 
Columbus, P. & I. Railw. v. Simp- 
son 278 



1 x. v i 



TABLE OF CASES. 



I m j Shelby Railw. v. 

5 1 ( i 

Colvin v. Turnpike Co. 209 

i •. Mori is <■> 

< onwealth v. B. & W. Railw. .'m 

p, Alger 339 

rison 691,708 

ston & Maine Railw. 293, 

341, 379 

v. Canal < lommissionera 91 

I!- il Passenger Railw. 328 

d. Clarkson 137,438 

I - 1 1 . 1 1 wealth Bank 701 

r. ( lommissionera 659 

v. ( lommissionera of Alle- 

•j ll;ili %- 695 

p. Cullen 209 

v. Del. & Hud. Canal Co. 702 
p. Erie & Northeastern R. 253, 
320, 412 
r. Fanners 1 Bank 
v. Pisher 
r. Fitchburg Railw 



704 
299, 317 
406, 
410, 411 
rman Society 692 

t. Guardians of the Poor of 

Phil. 
r. Hartford & New Haven 

Railw. 
v. 1 1 iverbill 
r. Mayor of Lancaster 
i. Mniis 

v. Penn. Benevolent Inst. 
v. Perkins 

r. Philanthropic Soc, 
> Pittsburgh 
v. Power 
v. Ritcher 
v. Roxbury 

r. St. Pat Benevolent Soc. 
r. Simpson 
ith 

wksbury 

steea of St. Mary's 
< !hur< h 
t-. I'm on I ire & Marine Ins. 

691, 703 



660 

420 
421 
183 
75 
6 ( J2 
670 
692 
657, 658, 677 
101, 102, 106 
248 
339 
692 
696 
703 
246 

87 



»•. \ ■ ter Kailw. 

1 [uehannah Kailw. 



I B ulw. v. ' lough 



278, 
291 



73 
256, 
299 
543 
290, 
, 348 
52 t 



I v. Gelena, &c. II. Railw. 

I R lilw. o. < llapp 283 

Riven Railw. p. 

■ y 172, 177, 210, 210 

I Baxter 186 

v. Holton 264 



Connop v. Levy 15 

< !onro v. Port Henry Iron Co. 87 

Conservators of the Thames v. 

Railw. Co. 345 

( lonservators of the Tone v. Ash 62 
Cotitoocook Valley Railw. v. Bar- 
ker 189 
Conybeare v. New B. & Canada 

Railw. & Land Co. 152, 591 

Cook v. Burlington 344 

v. Champ. Trans. Co. 477 

v. Parham 550 

Cooke v. Oxley 185, 216, 217 

Cooling, i» re 357 

v. Great Northern Railw. 357 

Coomb v. New Bedford Cordage 

Co. 546 

Coon v. Syracuse & Utica Railw. 544, 

547, 555, 556 

Coope v. Eyre 61 

Cooper v. M. & Prairie du Ch. 

Railw. 547 

Cope v. Thames Haven Dock & 

Railw. 625 

Copeland v. Copeland 120 

v. Northeastern Railw. 132 
Copper Mines Co. v. Fox 628, 629 
Goppin v. Braithwaite 111 

Corby v. Hill 236 

Corey v. Buffalo, Corning, & N. 

Y. Railw. 321 

Cork & B. Railw. v. Cazenove 204 
v. Goode 205 

Cork & Youghal Railw., in re 591 
v. Patterson 206 

Cornwall G. C. M. Co. v. Ben- 
nett 180 
Cornwall v. Sullivan Railw. 519 
Corpe v. Glyn 686 
Corregal v. Lon. & Bl. Railw. 679, 

686 
Cort v. Ambergate, Not., B. & E. 

J. Railw. 433 

Corwin v. New York & Erie 

Railw. 492 

Coster v. New Jersey Railw. 269, 296 
Costigan v. Mohawk & Hudson 

Kailw. 613 

( lotheal v. Brower 228 

( !other v. Midland Railw. 408 

Cott v. Lewiston Railw. 347 

Couch v. Steele 551 

Cowell v. Buckelew 695 

Coy v. Utica & Sch. Railw. 495 

Cozens v. Bognor Railw. 257, 383 

Cracknell v. Thetford 312 

Craig v. Rochester City & Br. 

Railw. 322 

Cram v. Bangor House 91 



TABLE OF CASES. 



lxvii 



Crawford v. Chester & Holyhead 

Railw. 408 

v. Lelawne 323 

Crawfordsville Railw. v. Wright 538 

Creed v. Lancaster Bank 119 

Crittenden v. Wilson 349 

Crocker v. Crane 72. 203, 295 

v. New London, Willi- 

mantic & Palmer Railw. 112, 

537 

Croffe v. Smith 697 

Croft v. Allison 533 

». London & N. W. Railw. 359 

Cromford Canal Co. v. Cutts 358 

Cromt'ord & High Peak Railw. 

v. Lacey "" 195, 200 

v. Stockport, D. & W. 

Bridge Railw. 27 

Crosby v. Hanover 263, 272, 276 

Croskey v. Bank of Wales 17 

Cross v. Mill Co. 178 

Crouch v. Great N. Railw. 466 

v. London & N. W. Railw. 466 
Cruger v. Hudson River Railw. 295 
Cullen v. Thompson 591 

Cumberland Coal Co. v. Sherman 540 
Cumberland Valley Railw. v. Baab 35, 

185 

v. Hughs 635 

Cumming v. Prescott 86, 93, 162 

CunlhT v. Manchester & Bolton 

Canal Co. 80, 207 



Cunningham v. E. & K. Railw 

v. Rome Railw. 
Curran v. State of Arkansas 
Currier v. Boston & M. Railw. 
v. Lowell 

r. Marietta & Cin. Railw 
Curtis v. Eastern Railw. 
v. Leavitt 
v. Vermont Central Railw. 



187 

360 

181 

292 

561 

250 

347 

602 

287, 

505 

Cushman v. Smith 258, 280, 297 

Cutbill v. Kingdom 83 

Cutler v. Middlesex Factory Co. 175 



D. 



Dadson v. East Kent Railw. 369 

Dalton v. Midland Railw. 156 

Daly v. Thompson 9 

Dana v. Bank of United States 87 

Danbury & N. Railw. v. Wilson 176, 
177, 204, 209, 211, 215 
v. Town of Norwalk 421 

Dance v. Girdler 13, 24 

Dand v. Kingscote 2 

Danforth v. Smith 392 



Danner v. South Carolina Railw. 492 
Danville, &c. Co. v. State 701, 705 
D'Arcy v. Tamar, K. & C. Railw. 92 
Darling v. Nt-ill 697 

Darnley v. London, Chatham, & 

Dover Railw. 284, 510 

Dart v. Houston 680 

Dartmouth College v. Woodward 58, 
63, 76, 274 
Dartmouth & Torbay Railw., in re 51 
Dascomb v. Buffalo & State Line 

Railw. 567, 569 

Dater v. Troy T. & Railw. 533 

Dauchy v. Brown 124 

Davidson v. Boston & Maine 

Railw. 248, 287, 298, 299, 341, 398 

Davidson v. Tulloch 152, 595 

Davis v. Bank of England 157 

v. Detroit & Mich. Railw. 545 

v. Bur. & Mo. R. Railw. 512 

v. Charles River Branch 

Railw. 286, 287 

v. Combermere 42 

v. E. T. & Ga. Railw. 256 

v. La Crosse & Milwaukee 

Railw. 351 

v. Lamoille County Plank- 
Road 634 
v. Leominster 562 
v. London & Bl. Railw. 351 
v. Meeting House in Lowell 95 
v. Ru-sell 300 
Davison v. Seymour 605 
Dawson v. Midland Railw. 487, 519 
Day v. Day 163 
v. Newark India Rubber Co. 63 
v. Owen 95, 100 
Dayton v. Borst 176, 182, 183 
Dayton, &c. Railw. v. Lewton 301 
Dean and Canons of the English 

Cathedrals 66 

Dean v. Sullivan Railw. 265, 268, 351, 

507 
Dearborn v. Boston, C. & Mon- 
treal Railw. 58, 278, 303 
Dedzell & Ind. & Cin. Railw. 560 
Del. & Atlantic Railw. v. Irie 209, 

215 
Delaware Canal Co. v. Sansom 177 
Denny v. North W. Christian Uni- 
versity 175 
V. Trapnell 699 
Denton v. Livingston 121 
v. Macmel 12 
Deposit & G. Life Ass. Co. v. 

Ayscough 204 

Derby v. Phil. & Read. Railw. 532, 533 
Degg v. Midland Railw. 544, 555 

De Grave v. Mayor of Monmouth 629 



lwiii 



TABLE OF CASES. 



1>,. | 169 

1>. V ■ i ne r. Fox 269 

Devlin v. S< cond Avenue Railw. 4 Hi 
p. Penrose Ferry Bridge 

887 
Pike 595 

1»,- Winl r. Willi.- 505 

Dickinson r. Valpy 1 1 

D trichp. Penn. Railw. 109 

, p. London & Blackwall 
iw. 130, 625, 628, 629 

l>ill n_li.nn p. Snow 62 

Dimi .» p. » Irand June. < anal Co. 441 
Dimick v. Brooks 294 

Direct Shrewsbury and Leicester 

l!;iiiu ., in re 178 

1 1 . & ■•■ r. Elailw. 287 

I' or p. Railw. 288 

Dixon p. Rankan 649 

Doane p. Scannell 703 

1 1 in, ex i>mte 135 

Dodd p. Salisbury & Y. Railw. 262, 409 

i I p. Burns 271 

mnty Commissioners 303, 

304, 305 

1» e d. Armistead v. The North 

StaflTordshire Railw. 873, 387, 408 
1> •■ <[. Hudson p. Leeds & Brad- 
ford Railw. 382 
I 1 I. Hut binson v. Manchester, 

Bury, & Rosendale Railw. 381 

I>" d Payi e p. Bristol & Exeter 

Railw. ' 408 

D B 247 

P.Georgia Railw. & Banking 
Co. 301 

Domestic & Foreign Missionary 

S iety'a Appeal 07 

Donaldson p. Fuller 014 

Donaldson p. (iillot 158 

I I iher o. St;ite of Mississippi 58, 

246 
D Ch. & X. \V. Railw. 509 

D Lo don & Croydon Railw. 27, 

375 
D ic. E. Br. & \\\ Raihv. 279, 

290 

Doubl day p. Muskett n 

D gbty p. Somerville & Easton 

1: ' ilw - 255,285 

Jton p. Payne 267, 316, 519 

Harboi p. L. C. & Dover 

Railw. 

•' Bank of Zanesville 

Downie p. White 

Downing p. Mount Washington 
Roa 

I I ■■■ nton, ex p u /■ 
Down. r. N. Y. & X. II. Railw. 



284 
125 
172 



540 
680 
109 



Drake v. Hudson River Railw. 298, 

315, 318 

v. Phil. & Erie Railw. 521 

Draper v. Gordon 146 

v. Noteware 657, 695 

v. Williams 235 

Drew v. New River Co. 560 

v. Sixth Avenue Railw. 541 

Druid, Case of the 536 

Drummond, ex parte 170 

Drybutter v. Bartholomew 120 

Dublin & W. Railw. v. Black 204 

Du Bois v. Delaware & Hudson 

Canal Co. 435, 437 

Dudden v. Union 312 

Duke v. Cahawba Nav. Co. 73 

Duke of Norfolk v. Tennant 389 

Du Laurans v. Pacifip Railw. 114 

Duncan v. Chamberlayne 162 

v. Hodges 135 

v. Luntley 123 

v. Railroad Co. 549 

Duncuft v. Albrecht 120, 142, 143, 

144 
Dundalk W. R. v. Tapster 679 

Dunham v. Troy Union Railw. 584 
v. Trustees of Rochester 249 
Dunn v. City of Charlestown 235, 349 
v. North Missouri Railw. 463 
Dunston v. Imperial Gas Co. 430, 598 
Durfee v. Old Colony & Fall 

River Railw. 645 

Durgin v. Munson 557 

Durham & Sunderland R. v. 

Walker 2, 3 

Durkee v. Vermont Central Railw. 142 
Dutchess Cotton Manufacturing 

Co. v. Davis 176 

Duvergier v. Fellows 122 

Duxbury v. Vermont Central 

Railw. 562 

Dyer v. Jones 432 

v. Walker & Howard 75 

Dynen v. Leach 545 



E. 

E. & W. I. Docks & B. J. Railw. 

v. Gattke 312, 349, 353, 388, 686 
E. & A. Railw. v. Poor 610 

Ea»le v. Charing Cross Railw. 354 

Eakin v. Raub 297 

Eakright v. L. & N. I. Railw. 73, 187 
Eales v. Cumberland Black Lead 

Mine Co. 16 

Earnest'. Boston & Worcester R. 517 
v. Salem & Lowell Railw. 

489, 518 



TABLE OP CASES. 



lxix 



Earl of Jersey v. B. F. Floating 

Dock Co. ' 301 

Earl of Lindsay v. Great Northern 

Railw. 45 

Earl of St. Germans v. Crystal 

Palace Railw. 376 

Earl of Shrewsbury v. North Staf- 
fordshire Railw. 611 
Earle v. Hall 529 
East Anglian Railw. v. Eastern 

Counties Railw. 30, 34, 45, 209, 645 
East Lancashire Railw. v. Hatters- 
ley 453 
East Lancashire Railw. v. L. & 

Yorkshire Railw. 620 

East London Water Works Co. v. 

Bailey 23 

East Pascagoula . Hotel Co. v. 

West 73, 119 

East Penn. Railw. v. Heister 290 

v. Hottenstine 290 
East Tennessee & Ga. Railw. v. 

St. John 573 

East & West India D. & B. Railw. 

v. Gattle 686 

East Wh. M. M. Co., in re 157, 681, 

690 
Easter v. Little Miami Railw. 523 

Eastern Counties Railw., ex parte 383 
v. Broom 111 
Eastham v. Blackburn Railw. 295 

Eastwood v. Bain 591 

Eaton v. Aspinwall 199 

v. E. & N. A. R. 304, 419, 531 
Eckert v. L. I. Railw. 567 

Edgerly v. Emerson 91 

Edgerton v. N. Y. & N. H. Railw. 578 
Edinboro' & Dundee R. v. Leven 375 
Edinburgh & G. Railw. v. Stirling 

& D. Railw. 641 

Edinburgh, L. & N. H. Railw. v. 

Hibblewhite 178, 226 

Edinburgh, Perth, & Dundee 

Railw. v. Philip 40, 50 

Edmundson,- in re 698 

Edwards v. Grand J. Canal Co. 36 

v. Grand Junction Railw. 19, 

22, 47, 49 

v. Great Western Railw. 466 

v. London &N.W. Railw. Ill 

v. Lowndes 687 

v. Union Bank of Florida 534 

Egbert v. Brooks 146 

Elder v. Bemis 529 

Elderton v. Emmins 614 

Electric Tel. Co., in re 169 

v. Bunn 169 

Ellicottville Plank-Road v. Buffalo, 

&c. Railw. 316 



Elliot v. Northeastern Railw. 358 

Eliott, in re 398 

Elliott v. Fairhaven & Westville 

Railw. 325 

v. South Devon Railw. 372 

Ellis v. Coleman 647 

v. Essex Bridge Co. 125 

v. London & Southwestern 

Railw. 487 

v. Marshall 76, 208 

v. Sheffield Gas Consumers' 

Co. 528, 530 

v. Swanzey 315 

Ellison v. Mobile & Ohio Railw. 187 
Elsworth v. Cole 128 

Elwood v. Bullock 95 

Elysville v. O'Kisco 176 

Embury v. Conner 235, 246 

Emmerson's case 155 

Enfield Toll Bridge v. Hartford & 

N. H. Railw. 253, 273, 274, 275 
Enright v. San Fr. & San J. Railw. 518 
Enthoven v. Hoyle 134 

Eppes v. M. G. & T. Railw. 221 

Erie & Northeastern Railw. v. 

Casey 270 

Ernest v. Nichols 585 

Ernst v. Croysdell 647 

v. Hudson River Railw. 570, 

577 
Essex Bridge Co. v. Tuttle 177 

Etty v. Bridges 162 

Eustis v. Parker 58 

Evans v. Haefner 265, 300 

v. Smallcombe 590 

v. The Heart of Oak Bene- 
fit So. 671 
Evansville & C. Railw. v. Cochran 279, 

504 
Evansville & Crawf. Railw. v. Dick 

250, 269 
Evansville & C. Railw. v. Duke 322 
Evansville & C. Railw. v. Fitz- 

patrick 279, 504 

Evansville Railw. v. Stringer 504 

Everhart v. West Chester & Phila- 
delphia Railw. 197, 201, 211 
Eversfield v. Midsussex Railway 262, 

409 
Eward v. Lawrenceburg & Upper 

Miss. 539 

Eyton v. D. B. & C. Railw. 374 



F. 

F. Street, matter of 
Falconer v. Campbell 
Faley v. Hill 



278 

76 

442 



Ixx 



TABLE OF CASES. 



Fall River [ron Works r. Old 
Coloin & F. R. Railw. 886, 413, 

706 
Falls r. Belfast & B. Railw. 371 

Farlon . 361 

1 Bank of Maryland V. 

[glehart 125 

Farnum p. Bla«kstone (anal Co. 63 

Farrow p. Vansittarl 2 

;, Boston & Worcester 

[w. 644, 549, 554, 555, 556 

1 o»er p. Erie Railw. 545 

p. Hebard 210 

Faonce p. Burke 428 

Faviell p. Eastern Counties Railw. 365 

Fawcett p. House 606 

p. fork & North M. 

Railw. 491 

Fearne vV Deane's case 86 

1 nley v Morley 465 

le & 1 >ean's case 150 

Featherstonbaugh v. Porcelain 

< lompany 593 

Felder p. Railw. Co. 537 

F< It ham p. England 547 

I . Memphis 691 

Fenton p. Treni & Mersey Nav. 

Co. 358,687 

Fenwick v. Bell 581 

I fees of Heriot's Hospital v. 

Gibson 404 

I p. Brighton & S. C. 

Iw 370 

Fernow p. Dubuque & S. W. 

Railw 521 

Feul p. T. P. & W. Railw. 483 

p. \'an Buskirk 509 

ngs p. Tisdal 615 

Ffooka p. London & S. W. Railw. 81 

Field p. Field 91 

p. I. 'Iran 129 

v Newport, Ab. & Hereford 

Railw. 465 

r. New York Central Railw. 477 
p. Vermonl & M iss. Railw. 286 
Filder p. L. Brighton & South 

ilw. 611 

I '•. Bristol & Exeter Railw. 625 

I Gla jow & S. W. Railw. -Ilw 

Pai isb in Sutton p. ' 07 

. Miss, & Tenn. Railw. 119 

Fish p. I lodge 529 

Fiahi : Hank 166 

p. Evansville & Crawfords- 

ville Railw. 213 

p. Price 128 

Fishmongers 1 I p. Robertson 624 

Fitch v. N. H. M. L. & Stoning- 

ton Railw. 623 



Fitchburg Railw. v. Boston & 
Maine Railw. 236, 286, 288, 

341. 355 
v. Charlestown M. Fire 

Ins. Co. 478 

Fitchburg Railw. v. Grand Junction 

Railw. & Depot Co. 426 

Fitzpatrick v. New Albany & Sa- 
lem Railw. 551 
Flagg, in re et als. v. Lowber, 608 
Flamank, ex parte 234 
Fleming, ex parte 660 
Fletcher v. Auburn & Syracuse 

Railw. 299, 314 

v. Boston & Maine Railw. 619 

v. Great Western Railw. 313 

v. Rylands 481 

Flint & P. M. Railw. v. Dewey 609 

Flowpr v. London, Br. & S. Coast 

Railw. Co. 252 

Flynn v. San Fr. & St. J. Railw. 477 
Fooks v. Wilts, Somerset, & Wey- 
mouth Railw. 381 
Foote v. City of Cincinnati 111 
Ford v. Ch. & N. W. Railw. 300, 324 
Forrest v. Manchester, S. & L. 

Railw. 585 

Forster v. Cumberland Valley 

Railw. 366 

Fort Edward, &c. Plank -Road 

Co. v. Payne 183 

Forward v. Hampshire & Hampden 

Canal Co. 273 

Fosberry v. Waterford & Limerick 

Railw. 425 

Foster v. Bank of England 229 

v. Essex Bank 208, 533, 538 

v. Fitch 464 

v. Oxford W. & W. R. 92 

v. Walter 67 

Fotherly v. Met. Railw. 678 

Fowler v. Kennebec & Portland 

Railw. 429 

Fox v. Northern Liberties 534 

v. State of Ohio 247 

v. Western Pacific R. 381 

Franklin Ben. Asso. v. Common- 
wealth 692 
Franklin Bridge Co. v. Wood 3 
Franklin Glass Co. v. Alexander 174 
v. White 174 
Franklyn v. Lamond 135 
Fraser v. Whalley 592 
Frazier v. Penn. Railw. Co. 545, 555 
Frederick v. Clarke 696 
Freedle p. North Carolina Railw. 289 
Freeman v. Winchester 176 
Fremont v. Crippen 657 
Frost v. Union Pacific Railw. 547 



TABLE OP CASES. 



lxxi 



Fry's Ex'r v. Lex. & Big. S. 

Railw. 118, 178, 210, 211, 411 

Fuller v. Dame 606 

v. Trus. of Academic School 

in Plainfield 692 

Furniss v. Hudson River Railw. 305, 

351 
Fyler v. Fyler 161 



G. 



Gage v. Newmarket Railw. Co. 32, 

35, 38 
Gahagan v. Boston & Lowell 

Railw. 576, 580 

Galena & Chicago Railw. v. Grif- 
fin 501, 516 
v. Jacobs 57-4 
v. Loomis 573 
v. Yarwood 580 
Galloway v. Mayor & Commonalty 

of London & Metropolitan Railw. 251 
Galvanized Iron Co. v. Westoby 15 
Gandell v. Pontigny 614 

Gano v. State 701, 703 

Gardiner v. Boston & Worcester 

Railw. 319 

v. Smith 510 

Gardner v. Charing-Cross Railw. 374 

v. Newburgh 245, 297, 299, 

344 

Garrett v. Salisbury & Dorset J. 

Railw. 428, 453 

Garrick v. Taylor 131 

Gari-is v. Portsmouth & Roanoke 

Railw. 488 

Garrison v. Memphis Ins. Co. 478 

Gaskell v. Chambers 598 

Gawthern v. Stockport, Desley, & 

W. Railw. 334 

Gayle. v. Cahawba R. 176 

Gebhait v. Junction Railw. Co. 175 
General Exchange Bank, in re 126 
Gerhard v. Bates 154 

Getty v. Hudson River R:»iiw. 337 

Gibbons v. O^den 340 

Gibbs v. Trustees of Liverpool 

Docks 634 

Gibson v. East India Co. 430 

v. Pacific Railw. 545 

Giesy v. Cincinnati, Wil. & Zanesv. 

Railw. 268, 279 

Gilbert v. Cooper 8 

v. Havermeyer 363 

Giles v. Hutt 178 

v. Taff Vale Railw. 537 



Gillet v. Moody 183 

Gillett v. Western Railw. 420 

Gillenwater v. Mad. & Ind. Railw. 551 
v. Miss. & A. Railw. 255 
Gillis v. Penn. Railw. 104, 105 

Gilman v. Eastern Railw. 557 

v. Hall 432 

Gilpin v. Howell 121 

Gillshannon v. Stony Brook Railw. 547, 

556 
Gittings v. Mayhew 13 

Glover v. London & Northwestern 

Railw. 537 

v. North Staffordshire 

Railw. 250, 310, 389 

v. Powell 341 

Goddard v. Hodges 15 

v. Pratt 12 

Goff v. Great Northern Railw. 541 
Gold Mining Co., ex parte 611 

Gold v. Vermont Central Railw. 294 
Gooday v. Colchester & Stour 

Valley Railw. Co. 18, 32, 46 

Goodman v. Pocock 613 

Goodrich v. Eastern Railw. Co. 343 

v. Reynolds » 196 

Goodtitle v. Kibbe 247 

Goodwin v. Glazer 695 

v. Union Screw Co. 601 

Gorman v. Board of Police 691 

v. Pacific Railw. 490, 493 

Goshen Turnpike Co. v. Hurtin 176 

Gould v. Hudson River Railw. 248, 

321, 336, 355 

Governor & Company of Copper 

Miners v. Fox 625, 626, 628 

Governor & Company of Plate 

Manufacturers v. Meredith 317 

Grady, ex parte 157 

Graff v. City of Baltimore 301 

v. Pittsburg & Steubenville 

Railw. 125, 195 

Graham, ex parte 75 

v. Birkenhead, &c. Railw. 81 
v. Columbus & Ind. 

Railw. 381 

Grand Gulf Railw. & Bank v. 

State 703 

Grand J. & Depot Co. v. County 

Commissioners 334 

Grand Junction Railw. v. White 505 
Grannahan v. Hannibal & St. Jo- 
seph Railw. 464 
Gratz v. Redd 176 
Gravenstine's Appeal 81 
Gray v. Coffin 162 
v. Hook 606 
v. Liverpool & Bury Railw. 49, 
234, 250 



lwii 



TABLE OF CASES. 



(ir.i\ ;-. Monongahela Navigation 

Co. 208 

r. Portland Hank 70 

Grayble v. York & Gettysburg 

Turnpike ' ". 201 

• . Turnpike ( !o. 177 

r. Lynchb. cv Salem Turn- 
pike < o. 73 
Greal Falls & Conway Railw. v. 
Copp 191 

it Luxemburg Railw. v. Mag- 
na] 609 

■ North of England, Clarence 
A. Hartlepool Junction Railw. v. 
( lii-. nee Railw. 393 

Great North of England Railw. v. 

Biddulph 9, 159 

Great Northern Railw., ex parte 383 
r. Eastern Counties 

Railw. 616, 617 

t\ Harrison 457 

v. Kennedy 178 

v. S. Yorks. Railw. 467 
(lieat Western Railw. v. Uacon 500 
v. Birmingham & Ox- 
ford June. Railw. 41, 
621 
v. Decatur 319 

v. Geddis 501 

v. Coodman 111 

v. Helm 500 

r. .Metropolitan Co. 155 
r. Morthland 501 

r. Oxford, Worcester, 
& Wolverhampton 
Railw. 652 

o. Reg. 674, 67.5 

v. Rushout 90, 620 

r. Thompson 506 

Greathed v. S. W. & Dorchester 

Railw. 8 

Gre< ii v. African Ep. Meth. Soc. 692 

v. Boodyj 265 

v. .Miller 91 

v. Morris &Es'x Railw. 282,296 

V. Murray 141 

v. Seymour 76 

o. Winter 146 

iway v. Adams 145 

Greene o. 1 tennis 3 

Greenville and Columbia R. v. 

Cathcart 177 

'. I ioleman 209, 212 
v. Nunnamaker 2s:i 
v. Partlow 277, 278 
v. Smith 176 

r. Woodsidea 201 

away v. Mead 696 

: P. Wilton Railw. 286, 348 



Gregg v. Gregg 
Gregory v. Patchett 
Grippen v. N. Y. Cent. Railw 
Grissell v. Biistowe 
( Irizewood v. Blane 
Groux & C. Co. v. Cooper 
(iue.st v. Homfray 
Guest v. W. B. & L. Railw. 
Gunn v. London & 
Ass. Co. 



H. 



519 

649 

569, 577 

133, 137 

128 

68 

241 

169 

Lancashire 

18, 611 



H. B. Coal Co. v. Teague 
H. & P. Plank-Road Co. v. 



180 
Bryan 
201,221 
Habersham v. Savannah, &c. Canal 

Co. 675 

Hackett v. Boston, Cone. & Mont. 

Railw. 292 

Haddon v. Avers 610 

Hagar v. Brainerd 363 

Hager v. Reed 142 

Hagerstown Turnpike Co. v. 

Creeger 3 

Haight v. City of Keokuk 323 

Haines v. Taylor 352 

Haldeman v. Penn. Railw. 271 

Hale v. Union Mutual Fire Ins. 

Co. 533 

Hall v. Chaffee 242 

v. Norfolk Estuary Co. 122, 141 
v. Pickering 539 

v. Power 101, 102 

v. Railw. Cos. 478 

v. Selma & Tenn. Railw. 201 

v. U. S. Insurance Co. 125, 195 
v. Vt. & Mass. Railw. 44, 598, 599 
Halloran v. N. Y. & Harlem 

Railw. 486 

Halstead v. Mayor, &c., of N. Y. 249 
Hamden v. Northamp. Co. 562, 563 
Hambro v. Hull & London Fire 

Ins. Co. 591 

Hamilton v. Annapolis & Elk 

Ridge Railw. 271,297 
v. Newcastle & Dan- 
ville Railw. 597 
v. New Y r ork & Harlem 

Railw. 318 

v. Smith 10 

Hamilton Plank-Road v. Rice 209, 215 

Hammersmith Railw. v. Brand 356, 

475 

Hammon v. Southeastern Railw. 475 

Hanna v. Cin. & F. W. Railw. 210 

Hannibal & St. Joseph Railw. v. 

Hattie Higgins 558 






TABLE OP CASES. 



lxxiii 



Hannibal & St. Joseph Railw. v. 

Kenney 493 

Hannibal & St. Joseph Railw. Co. 

v. Rowland 294 

Hannuic v. Gohlner 127, 138 

Hanover Railw. v. Coyle 569 

Harlboroiiijh v. Shardlow 301 

Harbv v. E. & W. I. Docks & B. 

J. Railw. 416 

Hard, Adin'r, v. Vt. & Canada 

Railw. 548, 556 

Harding v. Goodlett 235 

v. The Met. Railw. 376 

Hare v. London & N. W. Railw. 131, 

642 
v. Waring 138 

Hargreaves v. Lancaster & Preston 

J. Railw. 45 

v. Parsons 120 

Harlaem Canal Co. v. Seixas 177 

Harper v. Ind. & St. D. Railw. 544 
Harrington v. Du Chastel 606 

Harris, ex parte 131 

v. Roof 607 

v. Stevens 104 

Harrisburg v. Crangle 298 

Harrison's case 169 

Harrison, Adm. v. Central Rail- 
way 545 
Harrison v. Berkley 482 
v. Heatliorn 11 
v. Lexington & Ohio 
Railw. 236 
Hart v. Mayor of Albany 249 
v. The Western Railw. 478, 483 
Hartford & N. H. Railw. v. Boor- 
man 168, 198 
v. Croswell 207 
v. Kennedy 176 
v. N. Y. & N. H. 

Railw. 637 

Hartly v. Harm an 615 

Harty v. Central Railw. 567, 569 

Harvard Branch Railw. v. Rand 293 
Harvey v. Lackawana & Bloomsb. 

Railw. • 281, 360 

v. Lloyd 288, 379 

v. Thomas 385 

Haslett's Executors v. Wother- 

spoon 17 

Hastings v. Amherst & Belcher- 
town Railw. 704 
Haswell v. Vermont Central 

Railw. 383 

Hatch v. Cin. & Ind. Railw. 276 

v. Vermont Central Railw. 250, 

281, 310, 317, 345, 356 

Hattersley v. Shelburne (Earl) 51, 

648 



Havens v. Erie Railw. 569 

Hawkes v. Eastern Counties Railw. 28, 
35, 37, 39 
Hawkins, ex parte 392 

v. Maltby 143 

Hawley v. Baltimore & Ohio 

Railw. 544, 555 

Hawthorne v. Newcastle-upon- 

^yne & N. Shields Railw. 442 

Hay v. Cohoes Company 303, 533 

Hayden v. Cabot 562 

v. Noyes 96 

Hayes v. Shackford 260 

v. Western Railw. 544, 547 

Hayne v. Beauchamp 72, 119 

Haynes v. Barton 364 

v. East Tenn. & Ga. 

Railw. 547 

v. Palmer 198 

. v. Thomas 321 

Hays v. Meller 581 

Hayward v. Mayor of New York 270 

Hazen v. Boston & Maine Railw. 260, 

269, 539 
Healey v. Story 595 

Heane v. Rogers 12 

Heart v. State Bank 121, 126 

Heaston v. Cincinnati & F. W. R. 73, 
74, 159, 160 
Heathcote v. North Staffordshire 

Railw. 46, 675 

Hedges v. Metropolitan Railw. 374 
HefFner v. Commonwealth 680 

Helm v. Swiggett 681, 690 

Hemingway v. Fernandes 2 

Hendee v. Pinkerton 604, 631 

Henderson v. Australian Royal Mail 

Steam Nav. Co. 626 
v. Mayor of New Or- 
leans 297 
v. Railw. 173, 652 
Henderson & Nashville Railw. v. 

Leavell 185 

Hennessey v. Farrell 429 

Henry v. Dubuque & Pacific Railw. 

269, 281, 290, 300, 505 
v. Pacific Railw. 508 

v. Pittsburg & Alleghany 

Bridge Co. 310, 317 

v. Rut. & Bur. Railw. 599 

v. Vermilion Railw. 171, 183, 

200, 219 

v. Vermont Central Railw. 312 

Hentz v. Long Island Railw. 318 

Herbein v. The Railroad 292 

Herkimer M. & H. Co. v. Small 176 

Herrick v. Vermont Central Railw. 

432, 436, 443, 449 
Herrimz v. Wil. & R. Railw. 573 



lxxiv 



TABLE OF CASES. 



Benej 9. Merrimac Mutual Fire 

Insurance 291 

Hertford v, Boore 241 

II stei p. Memphis & Charleston 

lw. 213 

Hetheringl Hayden 266 

11 irett v. Swift, el ais. 54 I 

Hewitt v. 1' 128 

>n o. I. mdon & S. W. Railw. 370 
Heyl o. V. W. & B. Railw. 243 

II: ird '•. New York and Erie 

lw. ion, 111 

Hibblewhite o. M'Morine l- ; 7, 128, 

134, 138 
Hibernia Turnpike Co. v. Hender- 
son 200 
II jv. B. & L. Railw. 569 
Hifkok r. Plattsburgh 249 
Hick> v. Launceston 74 
Higgins r. Livingstone 597 
<■. \Y. &c. Railw. Ill 
Highland Turnpike Co. v. McKean 74, 
118, 200, 201 
Hightower v. Thornton 176, 183 
Higley v. Lancaster & Y. Railw. 373 
Hilcoat r. Archbishops of Canter- 
bury & York 362 
1 X ill r. Greal X. Railw. 373 
v. Manchester Waterworks 

603 

v. Mo awk & II. Railw. 271, 280 

r. Port. & Rochester Railw. 578 

v. South Staffordshire Railw. 625 

r. Western Vermont Railw. 266 

Hill.- r. Parish 64 

Billiard v. Goold 98, 112, 114, 584 

• Richardson 529 

o. Giraud 120 

Hitchcock v. Danbury & Norwalk 

Railw. 412 

>'■ Giddings 154 

Hoagland o. Bell 170 

v. ('in. ^ F. AY. Railw. 175 

Hoari 86, 149, 647 

Hobbitl o. London & X. W. Railw. 528 

Hocbster <•. De Latour 433 

Rut. .V Bur. Railw. 599 

Bodgkinson o.National Live Stock 

Ins. Co. 610 

'-. Davies 140 

11 . .- o. Zanesville Canal Co. 337 

mb o. X. 11. I). B. Co. 91 

Bolden v. Rut. & Bur. Railw. 510, 

512 

Hole o. Barlow 352 

S ttin^bonne & Sheerness 

Railw. 531 

11 ■ v '. Leonard's Shore- 

ditch 635 



Hollister v. Union Co. 311 

Bolmes, ex parte 86, 695 

v, Gilliland 74 

v. Higgins 15 

Homan v. Stanley 531 

Homersham v. Wolverhampton 

Waterworks 432, 625 

Honner v. Illinois Central Railw. 544, 

Hooker v. N. H. & N. Y. Railw. 311 
v. N. H. & Northampton 

Co. 305, 344 

v. Utica & Minden Turn- 
pike 268 
Hop & Malt Company, in re 151 
Hopkins v. Prescott 606 
Horn v. Atlantic & St. Lawrence 

Railw. 488, 509 

Hornaday v. Ind. & 111. Cent. R. R. 214 
Horner's Estate, in re 234 

Hornstein v. Atlantic & G. Western 

Railw. 278 

Horton v. Westminster Improve- 
ment Comm. 603 
Hortsman v. Lexington & Cov. 

Railw. 235 

Hosking v. Phillips 383 

Hotchkiss v. Auburn & Rochester 

Railw. 286 

Houldsworth v. Evans 157, 588, 590 

Housatonic Railw. v. Waterburv 489 

Howard v. Gage 671, 691 

v. Wilmington & Susque- 

hannah Railw. 428 

Howden v. Simpson 25, 26 

Howe v. Derrel 704 

v. Starkweather 121 

Hubbard v. Chappel 69 

v. Russell 346 

Hubbersty v. Manch., Sheff. & 

Lincolnsh. Railw. 133 

Hubgh v. N. O. & C. Railw. 551 

Huddersfield Canal Co. v. Buckley 

178, 195, 197 
Hudson v. Carman 73, 92 

Hudson & Delaware Canal Co. v. 

N. Y. & Erie Railw. 274 

Hudson River Railw. v. Outwater 299, 

385 
Hueston v. Eaton & H. Railw. 351 
Hughes v. Chester & Holyhead 

Railw. 420 

v. Parker 44 

v. Providence & Worces- 
ter Railw. 316, 418 
Hull Co. v. Wellesley 17, 180 
Humble v. Langston 124, 133, 134, 
138, 144, 146, 147, 148, 149 
v. Mitchell 120, 142 



TABLE OF CASES. 



lxxv 



Humfrey v. Dale 139 

Hunt v. Adams 135 

v. Gunn 17 

v. Test 607 

Hurd v. Rut. & Bur. Railw. 507 

Hutchins, Adm'r v. State Bank 121 
Hutchinson v. Manchester, Bury, & 

Rossendale Railw. 385 
v. York & Newcastle 

Railw. 529, 544, 555 
Hutton v. London & S. W. Railw. 

234, 388 
Huyett v. Philadelphia & Read. 

Railw. 305, 476 

Hyam, ex parte 169 

Hyams v. Webster 261 

Hyatt v. Whipple 74 



I. 



111. Cent. Railw. v. Buckner 570 

v. Dickerson 517 

v. Downey 537 

v. Goodwin 500 

v. Jewell 544 

v. Kanouse 509 

v. Middlesmith 506 

v. Middlesworth 489 
v. Phelps 500, 517 

v. Phillips 548 

v. Reedy 520, 580 

v. Sutton 98, 112 

v. Swearngen 501, 

514, 517 
v. United States 247 
v. Whalen 521 

v. Williams 518 

Trunk Railw. v. 

411 

Illinois & Michigan Canal v. Chica- 
go & R. I. Railw. 260 
Illinois River Railw. v. Beers 207 
o. Casey 79 
v. Zimmer 79 
Illinois & Wisconsin Railw. u. Van 

Horn 290, 292 

Imlay v. Union Branch Railw. 320 

Imperial Gas Light & Coke Co. v. 

Broadbent 351 

Imperial Mercantile Credit Asso- 
ciation, in re 
Ind., &c. Railw. v. Elliott 
Indianapolis Railw. v. Adkins 
v. Gapen 
v. Klein 
v. Love 
Sparr 



Illinois Grand 
Cook 



82 
521 
517 
512 
548, 555 
548, 555 
498 
v. Williams 498 



Ind. 


Central Railw. v. Hunter 278 


280 




v. Leamon 


515 




v. Moore 517 


521 




v. Oakes 


286, 
350 


Ind. 


& Cincin. Railw. v. Caldwell, 


486, 
508 


Indiana, &c. Railw. v. Fisher 


512 


Ind. 


& Cin. Railw. v. Guard 


517 




v. Jewett 


92 




v. Kerch eval 


512 




v. Kinney 488 


519 




v. McKinney 


517 




v. Meek 511 


524 




v. Oestel 


516 




v. Snelling 


521 




v. Sparr 


498 




v. Townsend 


511 




v. Wharton 


499 




v. Williams 


498 




v. Wright 


516 


Ind. 


& Madison Railw. v. Solo- 





mon 

Ind., Pittsb., & Cleve. Railw. v. 
Truitt 

Indiana & Ebensburg Turnpike 
Co. v. Phillips 

Inge v. Birmingham W. & S. V. 
Railw. Co. 

Ingersoll v. Stockbridge & Pitts- 
field Railw. 

Inglis v. Great Northern Railw. 

Ins. Co. v. Smith 

v. Woodruff" 
Irish Peat Co. v. Phillips 
Irvine v. Turnpike Co. 207, 210, 
Irvine v. Swann 

v. Walker 
Isaacs v. Third Av. Railw. 
Isbell v. N. Y. & N. H. Railw. 

523, 
Isham v. Ben. Iron Co. 



633 

516 

208 

143 

618 
178, 
600 
118 
479 
17 
273 
194 
194 
533 
521, 
572 
121 



Jackson v. Cocker 122, 144, 145 

v. Lamphire 253 

v. North Wales Railw. 451 
v. People 696 

v. Rutland & Burlington 

Railw. 267, 487, 519 

v. Second Av. Railw. 533 

Jacob v. Louisville 279 

Jacobs v. Peterborough & Shirley 
Railw. 240 

Jacques v. Chambers 144, 161, 162, 163 



1 \ \ si 



■['AISLE OF CASES. 



till" 


156 


.l.uii.-. River & Kanawha Co. o. 






iTs 


i p, Kennedy 


1 1 


i Ra h Vpplegate 


511 


r. Dougherty 


51 1 


( oleman 


IK) 


Jenkins 1 oion Turnpike < '". 


21 ii i 


.Kiii. 


661 


r. Broughton 


224 


i-. Great Western Railw. 


115 


Jepherson p. Hunt 


864 


Jetter N ••■ S & BL Railw. 


632 


r. Stead 


■1 1 5 


Joel r. Morrison 


536 


Johns d. Johns 


121 


Johnson, ex parti 


585 


v. Andei son 


315 


r. A. & St. L. Railw. 


306 


p. Bank of United States 






L35 


. i oncord Railw. 


L09 


r. Hudson River Railw. 


567 


r. McKissack 


099 


r. Shrewsbury & B. 




Railw. 


G17 


r. Wabash & M. A'. 




Railw. 


217 


m o. S. W. R. R. Bank 


72 


Stoi k l>b sonnt ( o. <\ Brown 




611, 


612 


. &c. Railw. d. Barrows 


697 


,v N . 1 Railw. v. Jones 


489 


I '.ml 


635 


r. Festiniog Railw. 


181 


/•. Mersej Hoard 


635 


v. Portsmouth & Concord 




Railw. 


460 


1 <>lle<re 


437 


•' sad, &c. Railw. 


681 


.' & 1 )ow p. Chamberlain 


461 


pbs '■. Pebrer 


1 t5 


Jo} p. Jackson & Michigan Plank- 






77 


.1 . ■ - Hull Dock 1 362, 


698 


iv. \ e n JTork & New Haven 




Railw. 


420 


tailw. v. Reeve 218 


604 


Justice, & . i . Hunt 


696 


K. 




K. R. & R. Railw. d. Marsh 


411 


. Buffalo Commercial 






156 


■ Johnson 


80 


e) r. London B. & S. C. 




Iw. 


564 


1 Louisville 


280 



Keech v. Bait. & Wash. Railw. 74, 

498 
Keegan o. Great Western Railw. 544 
Keith v. Cheshire Railw. 509, 510 



Kellogg v. Chi. & N. W. Railw. 

v. Krauser 
Kelly v. Mayor of New York 
Kemp r. London & Br. Railw. 
Kerns v. O'Reilley 
Kennard v. Burton 
Kenna) de r. Pacific Railw. 
Kennebec & Portland Railw. v. 
Kendall 
r. Waters 
Kennedy v. Colton 

v. Panama Mail Co. 
Kennett Xav. Co. v. Withington 



477 
293 
529 
375 
437 
571 
569 

177 
172 
218 
226 

350 
311 



Kenn stt's Petition 

Kenosha, Rockford, & Rock Island 

Railw. v. Marsh 210 

Kent v. N. Y. Central Railw. 464, 

615 
Kentucky, Louisville, &c. Railw. 

r Milton 
Keppell v. Bailey 
Kerr, matter of 
Kerridge v. Hesse 
Kerwliacker v. C. C. & C. Railw 



Kerwin, ex parte 

Kesee v. Chi. & N. W. Railw. 

Kidwell v. Bait. & Ohio Railw 



Kidwelly Canal Co. v. Raby 
Kimball v. Cocheco Railw. 

v. Kennebec & Portland 
Railw. 
Kimber v. Barber 
Kimble v. White Water Valley 

(anal 
King v. Boston & Worcester Railw. 



484 

2 

275 

11 

508, 

572 

135 

477, 

483 

. 436, 

437, 438 

9, 215 

363 



295 
609 

349 

544 
v. Brecknock & Aberga- 
venny Canal Navigation 659 
v. Bristol Dock Co. 358, 677 

v. (hipping Norton 120 

v. Commissioners under Lon- 
don Dock Acts 392 
v. Commissioners of Man- 
chester 375 
v. Commissioners of Thames 

& Lsis 357 

v. Coopers of Newcastle-upon- 
Tyne 661 
v. Dr. Gower 679 
v. Elliott 71, 118, 203 
v. Gray's Inn 690 



TABLE OF CASES. 



lxxvii 



King v. Great Marlow 91 

v. Hungerford Market Co. 375 
v. Inhab. of Pennegoes 696 

V. Justices of the City of York 678 
v. Justices of West Riding of 

Yorkshire 678 

v. Langhorn 83, 89 

v. Leeds & Selby Railw. 358 

v. London Dock Co. 357 

v. Nottingham Old Water- 
works 685 
v. Northleach & Whitney 

Roads 659 

v. Pagham 317 

v. Pasmore 76 

v. Pease 475 

v. Pedley 529 

v. Proprietors of Bir. Canal 670 

v. Round 684 

v. Theodorick 83 

v. Whitaker 91 

v. Wilts & Berks Canal Nav. 659 

v. Winwick 91 

v. Witham Nav. Co. 392 

v. Wycombe Railw. 370, 374 

Kipp v. Finger 661 

Kirk v. Bell 589 

v. Guardians of Bromley 

Union " 432 

Kish v. Venezuela Railw. 592 

Klein v. Alton & Sangamon Railw. 

176, 201 

Kline v. Cen. Pacific Railw. 114 

Knapp v. L. C. & Dover Railw. 373 

v. McAuley 257 

Knight v. Abert 487 

v. Barber 120 

v. Carrolton Railw. 410 

v. Fox 528 

v. Toledo & Wabash Railw. 517 

Knorr v. Germantown Railw. 349 

Knox Co. v. Aspinwall 660, 677 

Koch v. Dauphin 268 

Kramer v. Cleve. & Pittsb. Railw. 290 

Kyle v. Auburn & Roch. Railw. 306, 

503 



L. 



L'Amoreux v. Gould 216 

Lacharme v. Quartz Rock Mari- 
posa Gold Mining Co. 689 
Lackland v. North Missouri Railw. 325 
Lafayette & Ind. Railw. v. Shriner 

488, 490, 511, 519 
Lafayette Plank-Road Co. v. New 

Albany, &c. Railw. 305, 309, 359 
Laird v. Birkenhead Railw. 242 

Lake v. Butler 415 



Lake v. Duke of Argyll 16 

Lake Erie, tvc. Railw. v. Eckler 464 
Lake Ontario, A. & N. Y. Railw. 

v. Mason 159, 204 

Lamb v. Lynd 679 

v. North London Railw. 411 
Lamert v. Heath 139 

Lamprell v. Billericay Union 625, 626, 
627, 628, 629 
Lancashire & Yorkshire v. EastL. 

Railw. 640 

Lancashire & Y. Railw. v. Evans 357, 

388 
Lancaster & Carlisle Railw. v. 

Mary port & Carlisle Railw. 334 

Lancaster Canal Co. v. Parnaby 631 
Lance's Appeal 246 

Land Credit Co. of Ireland v. Lord 

Fermoy 613 

Lane, ex parte 157, 600 

Langham v. Great Northern Railw. 

384, 388 
Langley v. Boston & Maine R. 620 

Langlois v. Buffalo & Rochester 

Railw. 511, 547 

Langton v. Waite 86 

Lantis, in re 699 

Lathrop's Charity 364 

Lauderbrun v. Duffy 305 

Laugher v. Pointer 528, 529 

Lawrence v. Great N. Railw. 305, 346, 

357 
v. Knowles 138 

Lawton v. Fitchburg Railw. 505 

Leach v. Fobes 142, 143 

Lead Mining Co. v. Merry weather 611 
Leame v. Bray 537 

Leavitt v. Towle 315 

Lebanon v. Olcott 350 

Lee v. Milner 392, 669, 692 

Leech v. Caldwell 437 

Leeds &T. Railw. v. Fearnley 204, 205 
Lefever v. Lefever 151 

Legg v. Belfast & Bellamy Railw. 364 
Lehey v. Hudson River Railw. 578 
Lehigh Valley Railw. v. Lazarus 307 
v. Trone 305, 342 
Leigh v. Hind 414 

Lemmex v. Vermont Cent. Railw. 306 
Leominster Canal Co. v. Shrews- 
bury & Hereford Railw. 622 
Leonardsville Bank v. Willard 74 
Lesher v. Wabash Nav. Co. 259, 263 
Levering v. Railway Co. 256 
Leviston v. Junction Railw. 350 
Lewey's Island Railw. v. Bolton 179 
Lewis v. Billing 8 
v. N. Y. Central Railw. 469 
v. Railw. 363 



lxxviii 



TABLE OF CASES. 



-. i: >b< rtaon 

3 nith 
r. \\ lini. & Manchester Rail- 
way 

i 
I gton & < >hio Railw. v. Apple- 

r. < Irmsby 
• ■ & West 



119 
15 

346 
260 

818 

241 



Rail*, v. < handler 



288 



3i 12 

701 
691 
595 
641 

298 



( iambridge 

L76, 179, 189, 

200 

iples 179 

Lidfield r. Old Colony Railw. 567 

: a & K. Bank r. Richardson 208 

Lincoln V. Saratoga & Schenecta 

<lv Railw. 

Lind r. [sle of Wight Ferry 373, 674, 

675 
Lindsay V. The Commissioners 
Lindsey v. Att'j < len. 

r. Luckett 
Lindns r. Melrose 
Linfield v. Old Colony Railw. 

r. Lobley 
Link' v. Newport, A. & H. Railw. 

260, 408 

Little Miami Railw. v. Collett 279 

v. Naylor 281,410 

v. Stevens 548, 555 

v. Wetmore 536, 

537 

Littleton Manufacturing Co. v. 

Parker 189 

Livennore p. Jamaica 280, 290 

Livingston v. Lynch 207 

v. Mayor of Xew York 315 
LlanneUy Railw. & D. Co. v. Lon- 
don & X. W. Railw. 456 
Lloyd v. Mayor of New York :>:'<>'> 
i ' . Venables 163 
I o. Kekule 142 
»e No. 1 d. Lodge No. 1 80 
'i '•. ( ionrtown 200 
Londesborough, ex parte 14 
1.. .v I'.. Railw. /•. Doak 473, 475 
London & Bir. Railw. v. Grand 
• I inction Canal ( !o. 351. 393 
V. Winter ' 630 
: >n& Blackwall Railw. r. Board 

of Works 296 

'' ■ '• 358 

Mion Railw. v. Fair- 
clough 127, 135, 178 

r. Wilson 199 

I'-. & S. C. Railw., in re 364 
V. L.& S. W. & Ports- 
mouth Railw. 617 
London Dock Co. v. Knebell 42 
v. Sinnott 630 



London Grand J. Railw. v. Freeman 168, 

194 
v. Graham 8, 168, 194 

London Insurance v. London & 

Westminster Insurance Co. 68 

London & N.W. Railw. v. Ackrovd 239 
v. Bradley 356, 388 

/ . McMichael 192 

v. Skerton 425 

v. Smith 388, 389 

London & S. W. Railw., ex parte 

Stevens 383 

v. Southeastern Railw. 617 
Londonderry & Coleraine Railw., 

in re 159 

Long Island Railw., matter of 88, 99, 
168, 507, 703 
Lord v. Wormwood 519 

Lord Bailiffs, &c. v. Trinity House 483 
Lord Belhaven's case 588 

Lord Fitz Hardinge v. G. & B. 

Canal Co. 292 

Lord James Stuart v. London & 

Northwestern Railw. 29, 38, 40, 41 
Lord Petre v. Eastern Counties 

Railw. 28, 49 

Lord Shrewsbury v. North Staf- 
fordshire Railw. 18 
Lorymer v. Smith 128 
Louisville Railw. v. Chappell 302 
Louisville, Cincinnati, & Charles- 
ton Railw. v. Letson 78 
Lou. & Frankfort Railw. v. Ballard 497, 

523 
v. Milton 489, 506 

Louisville & Nashville Branch 
Turnpike Co. v. Nashville & 
Kentucky Turnpike Co. 410 

Louisville & Nashville Railw. v. 

Collins 552 

v. Felbern 556 

v. Thompson 235, 278 

Louisville, &c. Railw. v. State 679 

Lovering v. Railw. 271 

Low ». Conn. & Pass. Railw. 44, 52 

v. Galena & Chicago Union 

Railw. 261, 696 

Lowlier, in re, v. Mayor of New 

York 608 

Lowe v. E. & K. Railw. 218 

v. London & N. W. Railw. 458, 

626 

Lowell v. Boston & Lowell Railw. 529, 

539, 562 
Lowry v. Muldrow 143 

Ludlow v. New York & Harlem 

Railw. 237 

Lund, ex parte 169 

Lund v. Midland Railw. 252 



TABLE OP CASES. 



lxxix 



Lunt v. London & N. W. Railw. 577 
Lycett v. Staff. & Uttexeter Railw. 376 
Lycoming County v. Gamble 468 

Lyman v. Boston & Worcester 

Railw. 476 

v. Norwich University 575 
Lyndsay v. Conn. & Pass. Rivers 

Railw. 494 

Lyon v. Jerome 259, 297 



M. 



M. & C. Railw. v. Blakeney 486 

v. Orr 486 

M. & M. Railw. v. Hodge 597 

M. & M. Savings Co. v. O. F. Hall 

Ass. 600 

Macedon Plank-Road v. Laphani 209, 

216 
MacGregor v. Dover & Deal Railw. 30, 
34, 45, 209 
Mackey v. New York Central 

Railw. 569 

Maclaren v. Stainton 163 

Macon v. Macon & Western Railw. 254 
Macon & Western Railw. v. Davis 492, 

567 
v. McConnell 360 

Maddick v. Marshall 16 

Maddox v. Graham 686 

Madison & I. Railw. v. Bacon 544, 555 
v. Kane 508 

Mahon v. Utica & Sch. Railw. 314 

Maiden & Melrose Railw. v. 

Charlestown 419 

Maltby v. N. W. Va. Railw. 179 

Manchester & Lawrence Railw. v. 

Fisk 467 

Manchester & Leeds Railw. v. 

Reginam 425 

Manchester, Sh. & Lincolnshire 

Railw. v. Great Northern Railw. 267 

o. Wallis 487, 519 

v. Wood 480 

Mangles v. Grand Collier Dock Co. 168, 

171, 200 
Manley v. St. Helen's Canal & 

Railw. Co. 560 

Mann v. Cooke 163, 176, 219 

v. Currie 168, 176, 195 

v. Great S. & W. Railw. 282, 

348, 508 

o. Pentz 172, 176, 182, 198 

Manning v. Commissioners under 

W. I. Dock Act 392 
v. Eastern Counties Railw. 

392 
Manser v. N. & E. Railw. 351 



Mansfield & Sandusky Railw. v. 

Veeder 436 

March v. C. & P. Railw. 345 

Marine Bank of Chicago v. Ogden 430 
Markham v. Brown 102 

Markwell, ex parte 15 

Marlborough Man. Co. v. Smith 125, 

584 
Marquis of Salisbury v. Great 

Northern Railw. 322, 373 

Marriage v. Eastern Counties 

Railw. &c. 371 

Marsh v. Eastern Railw. 642 

v. N. Y. & Erie Railw. 489 

Marshall v. Baltimore & Ohio 

Railw. 606 

v. Burton 698 

v. Queensborough 604 

v. Stewart 549 

Martin, ex parte 297 

v. Board of Police 691 

v. Lon., Ch.. & Dover 

Railw. 364 

Mason v. Brooklyn & Newtown 

Railw. 412 

v. Kennebec & Portland 

Railw. 305, 349 

v. London, Chatham, & 

Dover Railw. 368 

v. Railway 286 

v . Stokes Bay Pier & Railw. 

Co. 674 

Mass. Iron Co. v. Hooper 126 

Master's case 169 

Masterton ». Mayor of Brooklyn 433 

Maudslay, ex parte 15 

Maund v. Monmouthshire Canal 

Co. 535 

Maunsell v. M. Great Western 

(Ireland) Railw. 51, 647 

Maxted v. Paine 138, 141 

Mayberry v. Concord Railw. 520 

Mayo Co., »» re 696,699 

Mayor v. Randolph 317 

Mayor and Burgesses of Lynne 

Regis 67 

Mayor & Commonaltv of London 

& Met. R. Co. v. Galloway ' 254 
Mayor, &c. of City of New York 

v. Second Avenue Railw. 238 

Mayor, &c. of Pittsburg v. Penn. 

Railw. 271 

Mayor, &c. of Savannah v. State 693 
Mayor of Lichfield v. Simpson 351 
Mayor of Ludlow v. Charlton 430, 625, 

627, 628 

Mayor of Lynn v. Denton 228 

Mayor of New York v. Bailey 529 

v. Furze 346 



lxxx 



TABLE OF CASES. 



Mayor of Norwich o. Norfolk 

lw. 87, 

M | Southampton v. Greaves 

\ i , & Harlem Railw. 
M \ lister r Ind. & ( !in. Railw. 
M v i . i 1 . ■ p. [rish Lodine < !o. 
\l \m!.i\ r. Western Vermont 

Railw. 300, 

M< ill p. Byram Manuf. Co. 

( bamberlain 
McClasky p. Grand Rapids & Ind. 

Railw. 
McCluer p. Manchester & Law- 

rence Railw. 
\| < lure v. V. W. & B. Railw. 
Mi ' luakej <•. < Iromwell 
■ •11 p. ( laldwell 
M,( tool p. • ralena & Chicago Union 

Railw. 

;n ick v. Terre Haute & 

Richmond Railw. 
M i ortnick p. Lafayette 
Mil ii', i-. Cal. & Pacific Railw. 

p. Harnett Co. 664, 

M.i Iready p. Railw. Co. 
McCulloch r. Maryland 
McCullough v. Annapolis & Elk 

Ridge R. 
McDaniels p. Flower Brook Man. 

Co. 85 

McDougall D.Jersey Imperial Ho 

ti 1 I o. 71, 

McDowell p. X. Y. Central Railw. 
McElroj p. Nashua & Lowell 

Railw. 
McEwen p. Woods 
McFarland p. Orange & Newark 

I Imi -i--< ' ir Railw. 
M'< ratrick p. Wason 
McGinity p. Mayor of New York 
M 1 1 ■ ■■■ in p. Remington 
McGregor p. The Manager of 

Deal A: I » >ver Railw. 
Mi I [eran p. Melvin 
Mclntire p. State 

Mcintosh p. Great Western Railw. 
p. Mid. ( onirics Railw. 
McKinley p. Ohio, &c. Railw. 
M< Laughlan r. Charlotte & S. C. 
Railw. 317, 

'-. D. & M. Railw. 75, 
M'Laughlin p. Pryor 
M Mahan '•. Morrison 
McMahon p. < Cincinnati Railw. 
McManus p. < larmicbael 

' • Cr 533, 

McMasterc p. ' Commonwealth 
McM chael p. London & X. W. 

Rai I w . 



644 
228 
563 
L86 
628 

463 
64 
199 

175 

619 
108 
464 

697 

523 

349 

299 
488 
677 
476 
62 

91 



85, 86 



154 
513 

632 
139 

413 
550 

634 
143 

645 
697 
278 
452 
445 
516 

319 
223 
538 
210 
280 
342 
534 
280 

205 



McMillan V. Mavsville & Lexing- 
ton Railw. 177, 185 
v. Railroad Co. 544 
v. Saratoga & Wash. 

Railw. 511, 544, 551 
v. Scott 146 

McRae v. Russell 201 

McRee P. Wilmington & Raleigh 

Railw. 274 

Meacham v. Fitchburg Railw. 277,286, 

379 
Mead v. Keeler 74, 602 

Meason's Estate 120 

Meikel v. German Savings Fund 

Society, &C. - 69 

Mellen v. Western Railw. 345 

Mellors v. Shaw 544, 555 

Memphis & Charleston Railw. v. 

Payne 300 

Memphis & Charlotte Railw. v. 

Bibb 496 

Memphis Freight Co. v. Memphis 246 
Memphis Railw. v. Wilcox 446 

Mendon v. County Comrn. 696 

Mercer v. McWilliams 258, 299 

v. Whall 283 

Mercer County v. Pittsburgh & 

Erie Railw. 461 

Merrihew v. Milwaukie & Mis- 
sissippi Railw. 112 
Merrill v. Ithaca & Owego Railw. 462 
Merritt v. Northern Railw. 235 
Mersey Docks v. Gibbs 575 
Mersey Docks & Harbor Board v. 

Penhallow 635 

Met. Railw. v. Woodhouse 373, 674 
Metcalfe v. Hetherington 634, 635 

Methodist Episcopal Church v. 

Jaques 146 

Mexican & South American Com- 
pany, in re 169 
Meyer v. North Missouri Railw. 498 
Mich. Southern & Northern Ind. 

Railw. v. Fisher 490, 493 

Michigan, &c. Railw. v. Shannon 512 
Mieklethwait v. Winter 281 

Middlesex Turnpike Co. v. Lock 207 
v. Swan 175, 207 

». Walker 207 

Middletown Bank v. Magill 125 

Midland Counties Railw. v. Oswin 234, 

392 
Midland G. W. Railw. v. Gordon 7, 

9, 168 
Midland Railw. v. Daykin 487 

Miers v. Z. & M. T. Co. 183 

Mifflin p. Ilanisburg, Portsmouth, 

M. & L. Railw. 317 

Milburn v. City of Cedar Rapids 323 



TABLE OP CASES. 



lxxxi 



Miles v. Bough 160, 600 

Milhau v. Sharp 250, 318 

Mill-Dam Co. v. Dane 209 

Miller v. Auburn & Syracuse 

Railw. 235, 314 

v. Ewer 63, 64 

v. Illinois Central Railw. & 

Schuyler 145 

v. Pittsburg & Connellsville 

Railw. 188, 220 

v. Second Jefferson Build- 
ing Association 198 
Milligan v. Wedge 528 
Milner v. Field 455 
Milnes v. Gerry 240, 454 
Milnor v. Georgia Railw. & Bank- 
ing Co. 437 
v. New Jersey Railw. 276 
v. Railway Companies 337 
Milwaukie & Miss. Railw. v. Eble, 280, 
297, 505, 508 



Minis v. Macon & W. Railw 

Miners' Bank v. United States 

Minhinnah v. Haines 

Minor v. Mechanics 1 Bank of Alex- 
andria 

Minot v. Curtis 

Mississipjii Central Railway v. Mil- 
ler 

Miss. & Mo. Railw. v. Byington 

Miss. & Tenn. Railw. v. Devaney 
v. Harris 

Miss., O. & R. Railw. v 



379 

59 

677 

70 
66 



501 
272 
410 
119 

Cross 411, 
701, 704 
537 
139 
594 
201, 207 
474 
591 

Thomas 546 



Mitchell v. Crassweller 
v. Newhall 
v. Rockland 
v. Rome Railw. 

Mitchil v. Alestree 

Mixer's case 

Mobile & Ohio Railw. v. 

Mohawk & Hudson Railw., matter 
of 89 

Mohawk Bridge Co. v. Utica & 
Sch. Railw. 274 

Mold v. Wheatcroft 243, 367 

Mollett v. Robinson 137 

Monchet v. Great Western Rail- 
way 388 

Money v. Macleod 606 

Moneypenny v. Hartland 11 

Monkland & Kir. Railw. v. Dixon 394 

Monmouthshire Canal Co. v. Har- 
ford 3 

Monongahela Navigation Co. v. 
Coons 248, 250, 310 

Montgomery & West Point Railw. 
v. Vainer 290 

Mony penny v. Monypenny 42 



Moody v. Corbett 395 

Moore v. Fitchburg Railw. 541 

Moore v. Great Southern & West- 
ern Railw. 354 
v. Hudson River Railw. 459, 
460 
v. New Albany & Salem 

Railw. 211 

Moorhead v. Little Miami Railw. 253, 

410 

Morgan v. Birnie 438 

v. King 343 

v. Met. Railw. 376 

v. New York & Albany 

Railw. 183 

v. Vale of Neath Railw. 545 

Morris Canal & Banking Co. v. 

Ryerson 359 

v. Townsend 94 

Morris & Essex Railw. v. Blair 334 

v. Central Railw. 411, 464 

v. Newark 311, 318 

Morrison v. Davis 482 

v. Steam Nav. Co. 573 

Morse, Petitioner 282, 662, 680 

v. Auburn & Syr. Railw. 538 

v. Rut. & Bur. Railw. 519 

Morss v. Boston & Maine Railw. 507 

Mortimer v. McCallan 128 

v. South Wales Railw. 391 

Morton v. Barrett 146 

Moshier v. Utica & Sch. Railw. 495 

Mount Washington Road Co., 

matter of 280 

Mowatt, ex parte 14 

v. Londesborough 14 

Mozley v. Alston 93, 620 

Mullins v. People 696 

Mumma v. Potomac Co. 182 

Munger v. Tonawanda Railw. 268, 

271, 520 
Munn v. Barnum 138 

Munns v. Isle of Wight Railw. 301 

Munt v. Shrewsbury & Chester 

Railw. 208, 209 

March v. Concord Railw. 618, 632 

Murdoch's Appeal 679 

Murphy v. City of Chicago 239, 564 

v. Deane 569 

Murray v. Currie 528 

v. De Rottenham 146 

v. Railroad Co. 418, 492, 581 

v. South Car. Railw. 555 

v. South Sea Railw. 544 

Mutual Savings Bank v. Meriden 

Agency Co. 604 

Myers v. Myers 146 

v. Perigal 120 



/ 



l\X\li 



TABLE OF CASES. 



Napier, ez parti 679 

Narragansett Bank v. Atlantic 
Silk ■ 228 

689 
Nashville Railw. v. Cowardin 263, 

111 
v. Dickerson 278 

Nashville & Ch. Railw. v. Peacock 511 
Nason '. Woonsocket Union liailw. 

307 

Nathan v. Whitlock 182 

Natusch r. Irving 207, 208 

o. Pittsburgh & Connellsville 

Railw. 256 

X. all r. Hill 703 

Needham v. S. F. & S. J. Railw. 489 
Nellia v. New York Central Railw. 468 
r. Baton 604 

o. Vt. <V Canada Railw. 618 
Nesbitt r. L. C. & C. Railw. 433, 437 
River Nav. Co. v. Commis- 
sioners of Newbern 221 
Neville v. Wilkinson 20,48 
Ne\ ins t>. 1 Lenderson 16 
Nevitt v. Bank of Port Gibson 183 
New Albany & C. Railw. v. Ilig- 

man 312 

,-. Buff 312 

New Albany & Salem Railw. v. 

Connelly 350 

v. Grooms 663 

V. .Maiden 514 

v. Pickens 177 

Albany, &c Railw. v. McNa- 

mara 488 

Ubany Railw. v. O'Daily 325 

v. Pace 514 

v. Tilton 514 

N. B. & Canada L. Co. v. Mug- 

gerid 131,592 

l'x-dford Turnpike Co. v. 
Adams 174 

Newbury v. Conn. & Pass. Rivers 
Railw. 562 

iryport Bridge Co. v. Story 175 
\ i '. ( lolt'a Patent Fire Arms 
Co. 63 

& R. Railw. v. P. & 
.. Railw. 273 

astle, &c. Turnpike Co. v. 
North Staffordshire Railw. 424 

N. Hampshire Central Railw. v. 
Johnson 177,189 

Ji rsey Railw. v. Suydam 283 
London v. Brainard 253 

in-, Jackson, &c. Railw. 
v. Harris 78, 79 



N. O. & C. Railw. v. Second Mu- 

nicipalitv (if New Orleans 410 

New < Means & O. Railw. v. Lea 229 
Newport Mech. Co. v. Starbird 67 
New River Co. v. Johnson 354 

Newry & Enniskillen Railw. v. 

Coombe 205 

v. Edmunds 159, 170 

Newry, W. & It. Railw. v. Moss 169. 

Newton v. Belcher 12 

v. Liddiard 12 

New York Central Railw. in re 271 

v. Marvin 295 

New York City & Erie Railw. v. 

Patrick 196 

N. Y. & Erie Railw. v. Skinner 492, 506, 

507, 520 

v. Young 263 

New York Exchange Co. v. De Wolf 173 

New Y. & H. Railw. in re 262 

v. Forty-second Street 

& G. F. S. Railw. 563 
New York & Md. Line Railw. v. 

Winans 618 

N. Y. & N. H. Railw. v. Ketchum 599 
Niagara Falls & Lake Ontario 

Railw. v. Hotchkiss 253 

Nicol, ex parte 153 

Nicholson v. Erie Railw. 569 

v. New York & New 

Haven R. 283, 316, 319 
Nicklin v. Williams 576 

Nicoll v. N. Y. & Erie Railw. 269, 270 
Nixon v. Brownlow 206 

v. Taff Vale Railw. 432, 442 
Norris v. Androscoggin Railw. 496 
v. Cooper 10 

v. Irish Land Co. 161 

v. Vermont Central Railw. 235, 
426 
Northam, B. & Roads Co. v. Lon- 
don & Southampton Railw. 417 
North American Colonial Associa- 
tion of Ireland v. Bentley 159 
North British Railw. v. Tod 404, 672 
North Carolina Railw. v. Leach 172, 

205, 213 

North Eastern Rail. v. Elliott, 238, 313 

v. Payne 411 

v. Sineath 506, 508 

North Mo. Railw. v. Gott 252, 295 

v. Lackland 252 

v. Winkler 186 

North Penn. Railw. v. Rehman 264, 

518 
North Shields Quay Co. v. David- 
son 172 
North Staffordshire Railw. v. Dale 419 
v. Landor 378 



TABLE OF CASES. 



lxxxiii 



North Staffordshire Raihv. v. Wood 380 

North W. Raihv. v. MeMichael 204 

Northern Raihv. v. Concord & 

Claremont Raihv. 246 

v. Miller 176, 210 

v. Page 109 

Northern Cent. Raihv. v. Canton Co. 

236 
Northern Ind. Railw. v. Martin 512 
Northumberland v. At. & St. Law. 

Raihv. 570 

Northwestern Railw. v. Martin 442 
Norton v. Valentine 346 

Norwich & Lowestoft Navigation 

Co. v. Theobald 119, 189 

Norwich & Worcester Railw. v. 

Cahill 430 

v. Killingley 419 

Nowell v. Andover & R. Raihv. 596 
Noyes v. Rutland & Burlington 

Railw. 532, 629 

v. Smith 551, 555, 556 

v. Spalding 124, 128 

Nulbrown v. Thornton 144 

Nutter v. Lexington & West Cam- 
bridge Railw. 188 



0. 



Bait. 

572, 



O'Brien v. Phil., Wih, & 

Railw. 
O'Connor v. Pittsburgh 

v. Spaight 
O'Donald v. E. Ind. & CI. Railw. 
O'Donnell v. Alleghany V. Railw. 
O'Harra v. Lexington Railw. 
O'Neal v. King 
Oakes v. Oakes 

Ogdensburgh, Rome & Clay Railw. 
v. Frost 71, 

Ogdensburg Railw. v. Wolley 
Ogle v. Graham 
Ohio, &c. Railw. v. Ridge 
Ohio & Miss. Railw. v. Dunbar 
v. Irvin 

v. Ind. & Cin. R. 617, 
v. Jones 
v. Meisenheimer 
v. Quier 
v. Shanefelt 
v. Taylor 
Ohio & Pennsylvania Railw. v. 

Wallace 
Old Colony Railw. v. Evans 
Old Colony & F. R. Railw. v. 

County of Plymouth 
Oldtown & Lincoln Railw. v. Vea- 
zie 



575 
317 
442 
68 
551 
297 
190 
163 

176 
188 
135 
58 
618 
499 
649 
518 
518 
512 
477 
500 

282 
143 

420 

190 



Oriental I. Steam Co. v. Briggs 

Ormond v. Holland 546, 

Ornamental Pyrographic Wood- 
work Co. v. Brown 

Orono v. Wedgeworth 

Orpen, ex parte 

Orr v. Bank of United States 
v. Bigelow 

v. Gl. A. & M. J. Railw. 
v. Glasgow, A. & M. J. 
Raihv. 

Osborn v. Bank of U. States 62, 

Oswego Falls Bridge Co. v. Fish 

Others v. The Plank-Road Com- 
panies 

Ottawa v. Chicago, &c. R. 

Ottoman Co. v. Farley 

Overend Gurney & Co. v. Giff 

Overmyer v. Williams 

Overton v. Freeman 

Owen v. Purdy 

v. Van Uster 

Owings v. Speed 

Oxford, Worcester, & Wolver- 
hampton Railw. v. South Staf- 
fordshire Railw. 



75, 
131 
555 

71 
74 
126 
111 
128 
180 

598 
208 
253 

337 

697 
612 
596 
267 
528 
77 
596 
228 



267 



P. 

P. & K. Railw. v. Dunn 177 

Pacific Railw. v. Chrystal 279 

v. Hughes 211 

v. Renshaw 210 

v. Seely 644 

Pack v. Mayor of New York 529 

Page v. Heineberg 265 

Paige v. Smith 637 

Paine v. Hutchinson 146 

Palmer v. Hungerford Market, 

matter of 361 

Palmer v. Lawrence 176 

v. Woodbury 701 

Co. v. Ferrill 280 

Pardoe v. Price 687 

Parish v. Pai'ish 143 

Parker v. Adams 567 

v. Boston & Maine Railw. 286, 

288, 307, 399, 562 

v. Bristol & Exeter Railw. 466 

v. Cutter Milldam Co. 335 

v. Great Western Railw. 466 

V. Perkins 240 

v. Rensselaer & Saratoga 

Railw. ' 618 

v. Smith 701 

v. Thomas 186, 187 

Parkes, ex parte 693 



lxxxiv 



TABLE OF CASES. 



Parke V\ ■ stern Railw. 439 

ton 278 

elee v. O Syracuse 

Iw. 
Parnab] p. Lancaster ( 'anal Co. 



379 

631, 
634 
597 
259 
336 
.",11 



Railw. 
251, 



558 
602 
(598 
528 
189 
586 
406 
341 
479 



1 

I ' 

Pat. & New. Railw. p. Stevens 
Gas Light ( 'u. p. Brady 
p. Northern Centra] Railw. 308 
1 ; ScN.W. Railw. 458 

Paulmi Railw. 

Popham 
:•. p. Buenfcillo 
Rowland 
Peake p. Wabash Railw. 
ML & I. & P. & I 
p. Wycombe Railw 
v p. i lalais Railw. 
.-. North Staffordshire Railw 
Pell p. Northampton & Banbury 

Railw. 374, 384 

Pendl Railw. p. Shires 116 

Railw. r . I lummer 177, 

189, 190 

v. White 92, 117, 188, 189, 

594 

. Kennebec Railw. v. 

172, 190 
I I anal ( !o. v. Bentley 569 

Railw. I?. The Commonwealth 468 
p. 1 taquesne Borough 424 
v. Hi 294, 295 

v. Keillor 
p. Kerr 

v. McClure 294 

p. Porter 255 

p.Riley 294 

sylvania, State of, p. Wheel- 
ing Bridg 337,343 
359, 699 
I Albany & Vt. Railw. 674 
Auditor of Public Ac- 



nts 
p. Batchelor 
p. B( i 
oton 
rd of Del 
ard of Health 



ry] 
illins 



659 

84, *5 
661 
436 
696 
696, 698, 
699 
99 
337 
Ii7! I 
679 



' ia C. P. 

mmissioners of Hudson 661 

»i N. York 679, 691 

rett 661 

'• i . I -l-idge of Columbia 294 



People v. Hatch 
p. Haws 
r. Hayden 

p. Head 

v. Hester 
v. Hilliard 



679 
6"j8, 679 

299 
657, 691 

696 

695 



v. J. & M. Plank-Road Co. 468, 
705 
v. Jillson 99 

v. Kerr 276, 322 

v. Mayor of Brooklyn 246, 
279, 280 
v. Mead 677 

v. Michigan Southern Rail- 
way _ 300 
v. New York & Central 

Railw. 573 

v. N. Y. & Harlem Railw. 239, 
327 
v. Pacific Mail Steam S. 

Co. 689 

v. Peabody 699 

v. Rensselaer & Saratoga 

Railw. ' 337 

v. Ridgely 701 

v. River Raisin & L. Erie 

Railw. 703 

v. Romert 659 

v. Scannell 703 

v. Superv. of West Ches- 
ter 693 
v. Third Avenue Railw. 326 
v. Thompson 691, 703 
v. Throop 228, 661 
v. Troy House Co. 71 
v. Trustees of Geneva Col- 
lege 64 
v. Van Alstyne 696 
v. Vanderbilt 344 
v. Wheeler 696 
v. White • 268, 270 
v. Wood 695 
Peoria & Oquawka Railw. v. Elt- 

ing 178, 211 

Perkins v. Eastern Railw. & The 

Boston & Maine Railw. 487, 519 
Perkins v. Hart 614 

Perley v. Eastern Railw. 483 

Perrine v. Ches. & Del. Canal 

Co. 253 

Perry v. Marsh 551 

P. Simpson. &c. Co. 594 

Perth Amboy Steamboat Co. v. 

Parker 73 

Peru Railw. v. Hasketl . 511 

Peters v. St. Louis & Iron M. 

Railw. 464, 615 

Pettibone v. La Crosse & Milwau- 
kie Railw. 352 



TABLE OF CASES. 



lxxxv 



Pfeifer v. Sheboygan & Fond du 

Lac Railw. 
Phelps v. Lyle 
Phene v. Gillan 
Philadelphia Railw. v. Trimble 
Phil., Germantuwn, & N. Railw. 
v. Wilt. Ill, 487, 534, 

Phil. & Erie Railw. v. Atlantic & 

Gt. W. Railw. 
Philadelphia & Reading Railw. v. 
City of Philadelphia 
v. Derby 

v. Yeiser 299, 

Philadelphia & Trenton Railw 

310, 
Philad. & West Chester Railw. v. 
Hickman 201, 

Philadelphia, Wilmington, & Balti- 
more Railw. v. Cowell 

v. Howard 442, 
v. Kerr 

v. Quigley 540, 
v. Trimble 
Phillips v. Veazie 
Phoenix Life Assurance Co. 
Pickard v. Smith 
Pickering v. Ilfracombe Railw. 

v. Stephenson 
Pier v. Finel 

Pierce v. Wore. & Nash. Railw. 
Piggott v. Eastern Counties Railw. 

Pinkerton v. Manchester & Law- 
rence Railw. 158, 

Pinkett v. Wright 

Piscataqua Ferry Co. v. Jones 

176, 187, 

Pitts. & H. W. Rail. v. Dunn 

Pittsburgh v. Scott 

Pittsburgh & Connellsville Railw. 
v. Clark 125, 

v. Stewart 

Pittsburg, Ft. W. & C. Railw. 
v. Devinney 
v. Evans 
v. Gilleland . 278, 

Pittsburg & Steubenville Railw. 
v. Hall 

Pittsfield & North Adams Railw.. 
v. Foster 



286, 
Plank-Road v. Buff. & P. Railw. 



v. Payne 
Planche v. Colburn 
Plant v. Long Island Railw. 



433, 
315, 



Planters 1 & Merchants' Bank v. 

Leavens 
Plate Glass Ins. Co. v. Sunley 



353 
93 

146 

287 

536 

653 

276 
536 

305 

250, 

314 

219 

224 
630 
578 
595 
505 
562 
170 
635 
184 
612 
108 
479 
473, 
474 

166 
164 
119, 
201 
569 
300 

166 

220 

545 
571 
310 

288 

296 
268, 
298 
176 
614 
311, 
317 

121 

198 



Plum v. Morris Canal & Banking 

Co. and the City of Newark 317 

Plymouth Railw. v. Colwell 266, 412 
Pochelu v. Kemper 69 

Pollard v. Hagan 247 

Poler v. New York Central Railw. 

494, 509 
Pollock v. Stables 139 

Polly v. S. & W. Railw. 258 

Pomeroy v. Chi. & Milw. Railw. 324 
Pontchartrain Railw. v. Lafayette 

& Pont. Railw. 412 

Poole v. Middleton 131 

Pope v. Great Eastern Railw. 376 

Porchcr v. Gardner 35 

Port of London Assurance Com- 
pany's case 88 
Porter v. Androscoggin & Ken. R. 630 
. v. Buckfield Branch Railw. 435 
v. County Commissioners 286 
Portland, Saco, & Portsmouth 

Railw. v. Graham 179, 200 

Pott v. Flather 142 

Potts v. Thames Haven Dock & 

Railw. Co. 42 

Pottstown. Gas Co. v. Murphy 304 

Poulton v. London & S. W. Railw. 541 
Powell v. Han. & St. Jos. Railw. 498 
Powers v. Bears 294, 300, 351 

Powles v. Page 584 

Poynder v. Great N. Railw. 258, 

383, 385 
Pratt v. Atlantic & St. Lawrence 

Railw. 479 

Prendergast v. Turton 226 

Presbrey v. O. C. & N. Railw. 307, 348 
Preston v. Dub. & Pacific Radw. 265 
v. Eastern Counties Railw. 346 
v. Grand Collier Dock Co. 171 
v. Liverpool & M. Rail. 19, 50 
v. Liverpool, M. & New- 
castle-upon-Tyne J. R. 

37, 41 

v. Norfolk Railw. 346 

Price v. Denb. R. & C. Railw. 143 

v. Grand Rapids & I. R. Co. 175 

v. N. J. Railw. 489 

v. Powell 581 

v. Price 120 

Prichard v. La Crosse & Mil. Railw. 493 

Priestly v. Foulds 424 

v. Fowler 544, 549, 554 

v. Manchester & Leeds 

Railw. 351, 394 

Proprietors of Locks & Canals v. 

Nashua & Lowell Railw. 237, 287, 

308, 359 

Proprietors of Quincy Canal v. 

Newcomb 316 



1 x \ x \ i 



TABLE OF CASES. 



Protzman v. Ind. \ Cin. Railw. 250, 

■. 822 
ence Bank r. Billings & 
Pittraan 63, 258 

>sl \ Fellows of Eton < lolli 
r. ( Ireal Western Railw. 15 

Pryse p. < 'ambrian Railw. 2 l"> 

Pulsford r. Richards 224 

Pulling p. London, Chatham, & 

Dover Railw. 370 

Pumpelly v. Green Bay Co. 249, 250 
Putney r. < lape Town Railw. 488 

Q. 

Quarman p. Burnett 528, 529 

n r. Birmingham & Glouces- 
ter Railw. 533 
p. Birmingham >A: Oxford 

.1. Railw. 372 

p. Bloyzard 7":; 

p. Bristol & Exeter Railw. 659 
p. ( lambrian Railw. 357 

p. Commissioners of Woods 

& 1 ■ 
r. 1 Hxon 696 

-■■. Eastern Counties Railw. 2 19, 
250, 659, 671 
p. I li of England 

Railw. 
v. Lane. & Yorkshire II. 665 
v. Lofthome 703 

p. Lon. & G. Rail. 3G9 

p. London & S. W. Railw. 370 
p. L. & Southampton Railw. 362 
p. Man. & Leeds Railw. 660 
p. Met. & D. Railw. 398 

p. North Union R. 357, 660 
r. Norwich & Brandon 

Railw. 

p. Stone 376 

r. fork N. Midland R. 673, 685 

Quicke, ex parte 373, 674 

Quimby r. Vermont Central R. 504, 

506, 575, 579, 580 

Quiner v. Marblehead [ns. Co. 124 



R. 



R. p. Comm. of Dean Enclosure 658 

of York 660 

B - 1 i 658 

Severn & Wye Railw. 

R. p. Tower 689 
D. B. Railw. p. Del. & R. 

Railw. 33] 



R. & (J. Railw. v. 1 1 tvis 



58, 302 



Radcliffo. Alavor of Brooklyn 310, 

321, 346 

Raiford p. M. Cent. Railw. 486 

Railroad, ea parte 316 

v. Boyer ^288 

v. Davis 268 

p, Johnson 293 

v. Norton 574 

p. Roderigues 172, 178, 215 
v. Skinner 491, 506 

Railsback p. Liberty & Abington 

Turnpike Co. 73, 210 

Railstone p. York, Newcastle, & 

B. Railw. 387 

Railw. Co. p. Barron 632 

v. Burlier 288 

v. Gilson 278, 283 

p. Graham 178 

v. Howard 604 

p. Hummed 360 

v. Lagarde 279 

p. Washington 306 

p. Whitton's Adm. 570 

Ramsden v. Boston & Albany 

Railw. 533 

v. Dyson 235 

v. Manchester, S. J. & 

A. Railw. 296, 314, 369 

Ranch v. Lloyd & Hill 574 

Randleson p. Murray 529 

Rami p. Townshend 393 

p. White Mountain Railw. 142 

Randall r. Cheshire Turnpike Co. 634 

Randle p. Williams 699 

Rangeley p. Midland R. 261 

Ranger p. Great Western Railw. 407, 

427, 436, 439, 442, 447 

Ranken p. E. & W. I. & B. J. 

Railw. 383 

Ranson v. Stonington Savings 

Bank 688 

Raphael p. Thames Valley R. 243, 244 
Rapson p. ( ubitt 528 

Rathbone v. Tioga Nav. Co. 235, 265, 

430 
Rayner, ex parte 130 

Reaveley, ex parte 205 

•Redmond v. Dickerson 605 

Reed p. Hanover Br. Railw. 296 

Reedie v. London & N. W. Railw. ;">-_:*, 

529 
Reese & Fisher v. Bank of Com- 
merce 126 
Reese River Silver Mining Co v. 

Smith 225 

Reg. p. Abrahams 690 

v. Ambergate & C. R. Co. 375, 

673, 683 

p. Baldwin 684 



TABLE OF CASES. 



lxxxvii 



Reg. v. Bell 697 

v. Bingham 693 

v. Bir. & Glouc. Railw. 425, 677, 
682, 683 
v. Bir. & Oxford Railw. 663 

v. Blackwall Railw. 693 

v. Brighton & 8. C. Railw. 662 
v. Bristol Dock Co. 676, 694 
v. Bristol & Exeter Co. 687, 697, 

698 
v. Burslem Board of Health 664 
v. Caledonia Railw. 407, 672, 

676, 685 
v. Chester 660 
v. Comm. of Norfolk 621 
v. Comm. of Woods & For- 
ests 676 

v. Comm. for the So. Holland 

Drainage 377 

v. Cottle 372 

v. Dean & Chapter, of Ches- 
ter 679 
v. Dean & Chapter of 

Rochester 680 

v. Deptford Improvement Co. 685 
v. Derbyshire & S. W. Railw. 660 
v. Dundalk & Enniskillen 

Railw. 675, 682 

v. E. Anglian Railw. 662 

v. E. Lancashire Railw. 660 

v. E. & W. I. Docks & B. J. 

R. 416, 417, 685 

v. Eastern Counties R. 312, 355, 

357,391,425,660,662,673, 

677, 683 
v. Ely 424 
v. Fall 662 
v. Fisher 358 
v. Frere 107 
v. Gamble & Bird 695 
v. General Cemetery Co. 132, 157 
v. Great W. Railw. 660, 673, 682 
v. Green 662 
v. Grimshaw 90 
v. Hammond 697 
v. Hampton 702 
v. Heart of Oak Benefit So. 691 
v. Hopkins 66 L 
v. Hull & Selby Railw. 686 
v. Jones 660 
v. Justices of Middlesex 662 
v. Justices of Warwickshire 660 
v. L. & C. Railw. 690 
v. Lane. & Preston Railw. 699 
v. Lane. & York Railw. 673, 682, 

683, 692 
v. Ledgard et als. M. of 

Boole 660 

v. L. & L. Canal Co. 692 



Res:. 



Liv. Man. & Newcastle- 
upon-Tyne R. Co. 156, 693 
London & Bir. Railw. 425, 
677 
London & Blackwall Railw. 662 
L. & Greenw. R. Bo. 368 

Londonderry & Col. Railw. 

Co. 159 

Lon. & Northwestern R. 389, 
682, 692, 697 
Lund it' 96 

Mane. & Leeds R. Co. 377, 
677, 694, 695, 700 
Mariquita Mining Co. 229 

Mavor of Bridgenorth 662 
Mayor of Cambridge 662, 683 
Major of Chester 680 

Mavor of Dartmouth 662 

Mayor of Poole 684 

Mayor & Assrs. of Roches- 
ter 680 
Mayor of Staniford 687 
Mayor of York 683 
Met. Comm. of Sewers 389 
Met. Board of Works 354 
Mid. Counties & Sh. Junc- 
tion Railw. 157, 690 
Musson 335 
Newcastle-upon-Tyne 677 
N. Midland Railw. 358, 687 
Norwich & Boston Railw. 658, 
660 
v. Pavn 684 
v. Pickles 660 
v. Port of Southampton 658, 684 
v. Registrar 66 
v. Revnolds 699 
v. Rigby 425 
v. Rochdale & Hal. & S. R. 693 
v. Russell 423, 424 
v. Saddlers' Co. 96, 229, 684 
v. Saffron-Walden Railw. 414 
v. St. Catherine's Dock 686 
v. St. Margaret's, Leicester 684 
v. St. Olaves 
v. St. Pancras 
v. St. Saviour 
v. St. Peter's College 
v. Sharpe 
v. Sheffield A. & M. Railw. 

698, 699 
v. Sheriff of Middlesex 368 

v. Sheriff of Warwickshire 678 
v. Southeastern Railw. 359, 418 
v. South Holland Drainage 700 
v. South Wales Railw. 
v. Thames & Issis Com. 
v. Townsend 
v. Train 



698 
683 
662 
662 
425 
697, 



267 
662 

693 
422 



lxxxviii 



i \i;le OF CASES. 



Reg. p. Trustees of Balby & Work 
Bop Turnpike 

p. trustees of Luton Roads 

r. Trustees ol Swansea Har- 
bor 

r. United Kingdom Tele- 
graph < '". 

r. Victoria Park Co. 181, 



687 
676 

:;77 

422 

686, 

095 
261 
682 
692 
124 



r. Waterford & L. Railw. 

r. YV. Midland R. 

r. \\ ilson 

r. \\ ing 

v. Woreesfo rshire & Staf- 

ford Railw. 690 

o. York, N. & B. R. 682 

: . 5 ork & N..M. Railw. 375, 503, 

675, 683, 685 

Reitenbaugh p. Chester Valley 

Railw. 255, 280, 281, 282 

si laer iV Sar. Railw., matter 
of 506, 508 

Rensselaer & W. PL Rd. Co. v. 

Barton 
Renthrop p. Bang 
Renwick v. N. York Cen. Railw 
Reuter p. Electric Telegraph Co 

e p. Boston Copper Co. 
Rex p. Allgood 
r. Amery 

p. Archbishop of C. 
p. Bagsbaw 
p. Hank of England 
p. Barker 

r. Bishop of Chester 
r. Bishop of Ely 
p. Bishop nf London 
p. I '■ ■ 
r. ( lambridge 



178 

268 

571 

629 

79, 207 

689 

76 

657, 679 

:;77 

679, 688 

657,671 

658 

679, 690 

658 

690, 702 

690 

p. Churchwardens of Taunton 660 

P. (lark.- 705 

ii St. Aldwins 91 

in. of C. Enclosure 692 

p. < iommissioners of Nene 

Outfall 358 

v. Doncaster 84 

iversham 83 

p. Fell 697 

p. Guardians of Thame 660 

o. Hertford 690 

p. 1 1 ghmore 702 

p. Ho tman of Newcastle-upon- 

Tj ne 689 

r. Hungerford Market 361, 687 
v. Inhabitants of Kent 42 1 

p. Inhabitants of Lindsay 424 
r. Justices of Kent 698 

ticea of W. 1!. of York, 
in matter of Railw. 697 



Rex r. fCerrison 12 i 

v. Kingston 660 

p. Kirke 662 

p. Lincoln's inn 690 

v. Liverpool & .Manchester 

Railw. 361 

v. London Assurance Co. 689 

v. Marquis of Stafford 687 

p.Martin 73 

v. May 83 

v. Mayor of Colchester 690 

v. Mayor of Liverpool 377 

p. M'Kay 702 

v. Medley 539 

v. Merchant Tailors' Co. 689 

v. Montacute 660 

v. Morris 425 

v. M.itt 137 

v. Mousley 702 

v. Nottingham Old Water 

Works 393, 679 

v. Quae Bank Com. 683 

v. St. Catherine's Hall 690 

v. Saunders 697 

v. Severn & Wye Railw. 3, 694 
v. Shelley 689 

v. Sir William Lowther 702 

v. Stainforth & Keadby Ca- 
nal ( 'o. 692 
v. Tappenden 661 
V. Thatcher 690 
v. Tregony 690 
v. Truro 703 
v. Trustees of Norwich Roads 377 
v. Trustees of Swansea Har- 
bor 685 
v. Turkey Co. 690 
v. Tyrrell 705 
v. Vice-Ch. of Cambridge 76 
v. Wallis 705 
v. Williams 690, 702 
v. Worcester Canal Co. 156, 161 
v. Wright 422, 424 
Rexford v. Knight 270, 280, 299 
Reynolds v. Dunkirk & State Line 

Railw. 242 

Rice v. Courtis 167 

v. Dublin & Wicklow Railw. 415 

v. Turnpike Co. 279 

Rich v. Basterfield 529 

Richards v. Sacramento Valley 

Railw. " 508 

v. Scarborough Public 

Market Co. 409 

Richardson, ex parte 17 

v. Merrill 162 

v. N. Y. Cent. Railw. 570 
v. Hailw. Co. 223 

t;. Southeastern Railw. 387 



TABLE OF CASES. 



lxxxix 



Richardson v. Vermont Central 

Railw. 310, :U7 

Richmond v. N. London R. :!71 

Richmond & Petersburg Railw. v. 

Mrs. Jones 491 

Richmond v. Sacramento Valley 

Railw. 499 

Richmond Railw. v. Louisa Railw. 273 
Richer v. Fairbanks 436 

Rickett v. Met. Railw. Co. 354, 357, 

360 
Ricketts v. E. &W. I. Docks & B. 
i J. Railw. 487, 519 

Ridley v. Plymouth Banking Co. 585, 

601 
Rioter's case 658 

Ripley v. Sampson 175 

River Dunn Nav. Co. v. N. Mid- 
land Railw. 208 
Robbins, ex parte 686 
v. Milwaukee & Horicon 

Railw. 279, 363 

v. The Bury Improvement 

Commissioners 437 

Roberts v. Button 595, 596 

v. Great Western Railw. 512 

v. Ohio & Mobile Railw. 193 

v. Price 89 

v. Read 575 

v. Smith 550 

Robertson v. Knapp 289 

Robinson v. Chartered Bank 125 

v. Nesbitt 184 

v. New York & Erie 

Railw. • 312 

v. Supervisors 696 

Robson, in re 697 

Rochester & Syracuse Railw. v. 

Budlong 278, 288, 292, 294 

Roch. White Lead Co. v. Roch- 
ester 346 
Roe v. Birkenhead, Lancashire, & 

Cheshire Junction Railw. 110 

Rogers, ex parte 78,661 

v. Bradshaw 273, 297, 298, 315 

v. Huntingdon Bank 125 

v. Kennebec & Portland 

Railw. 311, 335 

v. Newburyport Railw. 511, 523 

Romaine v. Kinshimer 697 

Roman v. Fry 119, 125 

Rood v. New York & Erie Railw. 476 

Rose v. Truax 607 

Rosenthal v. Madison PL Rd. Co. 66 

Rosevelt v. Brown 148, 168 

Ross v. Adams 363 

v. Boston & Worcester Railw. 480 

v. Elizabethtown & Somer- 

ville Railw. 285, 288, 296 



Ross v. Lafayette & Ind. Railw. 192 
v. Madison 536 

Rouch v. Great Western Railw. 442 
Rounds v. Mumford :!17 

Rowe v. Shilson 425 

Roxbury v. Boston &Prov. Railw. 242, 

243 
Royal British Bank, in re 153, 224, 

591, 592 
v. Turquand 602, 
603 
Royal Exchange Insurance ( !o. v. 

Moore 1 36 

Rubottom v. McClure 299 

Ruck v. Williams 635 

Rundlc v. Delaware &Raritan Ca- 
nal Co. 58 
Runyan v. Lessee of Coster 63 
Russell v. Hudson River Railw. 548 
Rust v. Low 267, 518 
Rut. & Bur. Railw. v. Procter 586 
Ryan v. Cumberland Valley Railw. 544, 

555 
v. New Y. Central Railw. 482 
Ryder v. Alton & Sangamon Railw. 

176, 194 



s. 



S. F. &c. & S. Railw. v. Caldwell 278 
S. T. & A. Railw. in re 360 

Sabin v. Bank of Woodstock 166 

v. Vermont Central Railw. 303, 
404 
Sacramento Railw. v. Moffatt 363, 504 
Sadd v. Maldon, W. & Br. Railw. 376, 

408 
Saflfbrd v. B. & M. Railw. 483 

Sagory v. Dubois 176 

St. George v. Reddington 400 

St. James' Club, in re 15 

St. John v. Eastern Railw. 541 

v. St. John 48 

St. Louis, Alton & Terre Haute 

Railw. v. South 114 

St. Louis & C Railw. v. Dalby 114 
St. Louis C. Ct. v. Sparks 691 

St. Luke's Church v. Slack 691 

St. Mary's Church in the City of 

Philadelphia 66,78 

St. Thomas Hospital v. Charing 

Cross Railw. 370 

Salem v. Eastern Railw. 623 

Salem Mill-Dam Co. v. Ropes 17, 118, 

175, 189 
Salem & So. Danvers Railw. v. 

County Comm. 700 

Salomons v. Laine 33, 585, 588 



xc 



TABLE OF CASES. 



Samp !; iwdoinhana Steam- 

Mill • ss 

Lewis '• ll) 

- ol - s ' ■ Neot - ; 
Union 62; 

Sand< »utb & Wash- 

tail w . ( " 

- indera 1 59, 160 

Sir-, in o. Franklin [ns. Co. 124, 125, 

126, 156 
v. Webster 91 

- r r. B. & Mi. PI. Railw. 278 

lers, ex pa 157 

S in r. I Make Railw. 18 

Savings Bank v. Davis 84 

Northfield 562 

r. But. & Bur. Railw. 618, 
632 
Saxbv v. M. S., &c. Railw. 345 

s r. Blane 133, 168 

Sayre v. Louisville Union Benevo- 
lent Association 95 
o. North W. Turnpike Co. 60 
Scadding v. Lorant 85 
rs o. Bait. & Wash. Railw. 486, 

603 

Schmidt v. M. & St. Paul Railw. 515 

School 1 ;<>anl v. People 695 

iol Directors of Bedford 

i; ii ough r . A: d< rson 689 

er '•. Northern L. Railw. 271 

meier v. St. Paul cc i'. 

Iw. 281 

I i . Thoburn 278 

Schwartz v. Hudson K. Railw. 578 

\\ei-v 454, 155 

l lark Till 

r. < orp • ation of Liverpool 437 

r. Eagle Fire Co. 87 

/•. Lord Ebury 12 

v. London Dock Co. 46 1 

v. Morgan 660 

•akely 51 

<■. W. &R. Railw. 486, 494 

- ttiafa Northeastern Railw. v. 

v m 39, 51, 645, 674 

518, 550, 555 

Soci- 

Inatter of 183 

le v. Lackawanna Railw. 309 

v. Boston & Maine R. 5; 

1 nnell 152 

& Tenn. K. v. Tipton 72, 176, 

201, 215 

or of < !olumbus 608 

!•■ p. London & Birmingham 

Railw. 263 

i B .ii"-. v. A iburn & Roch. 

Iw. 310,315,318 



Senior v. Met. Railw. 360 

Serandat t>. Suisse 531 

Sen-ell r. Derbyshire, Staff. & 

Wor. J. Railw. 
Sewall v. Boston Water Power 

Sewell V. Lancaster Bank 
Seymour V. Maddux 
v. Sturgess 
Sbamokin Valley Railw. v. Liver- 
more 
Sband v. 1 Lenderson 
Sharp r. Great Western Railw. 
Sharrod v. London &N. W. Railw. 

486, 536 
Shattuck v. Stoneham B. Railw. 289 
Schauck V. Northern Central R. 545 
Shaw v. Boston & Worcester 

568, 576 

142, 143, 144 

142 



598 
165 
117 
546, . r ,;-,a 
175 



266 
351 

457 



Railw. 
v. Fisher 

v. Holland 

v. Perkins 660 

v. Rowley 133 

v. Spencer 165 

Shears v Jacobs 500 

sin ild v. Troy & Boston Railw. 1U9 

Sheffield, A. & M. Railw. v. 

Woodcock • 8, 11, 92, 127, 194 
Sheldon r. Hudson River Railw. 476 
Shepherd v. Buffalo, N. Y. & Erie 

Railw. 492 

Shepardson v. M. & B. Railw. 300 

Sherman v. Mayor of New York 438 
v. New York Central 

Railw. 
v. Roch. & Sy. Railw 



63 
536, 
544 

v. Vermont Central Railw. 431 
Shipley v. Mechanics' Bank 679 

Shirley v. Ferrers 20, 48 

Shoemaker v. Goshen Turnpike 

Co. 221 

Shoenbergcr v. Mulhollan 288, 379 
Shortridge v. Bosanquet 123 

Shrewsbury & Birmingham Railw. 

v. London & Northwestern R. 37," 
017, 621, 630, 041, 645 
v. London & N. W. & Shrop- 
shire Union Railw. 017 
Shrunk v. Schuylkill Nav. Co. 248, 317 
Shurtz v. S. &T. Railw. 71, 72 
Sigfried v. Levan 135 
Silk Manuf. Co. v. Campbell 700 
Sills v. Brown 581 
Simpson v. Dcnison 465, 610, 642 
v. Lancaster & Carlisle 

Railw. 376 

v. Lord Howden 25, 37 

v. Scottish U. Fire & Life 

Ins. Co. 658 



TABLE OP CASES. 



XCl 



Simpson v. So. Staff. Waterworks 

Co. 251 

v. Westminster Palace 

Hotel Co. 610 

Sims v. Commercial Railw. 'M. r > 

Sinclair v. Pearson 536 

Sixth Avenue Railw. v. Kerr 326 

Skerratt v. North Staffordshire 

Railw. 503 

Skip v. Eastern Counties Railw. 544, 

547, ;>:>;> 
Slater, ex parte 169 

v. Emerson 429 

Slaymaker v. Gettysburg Bank 121 

Sleath v. Wilson " 536 

Small v. Herkimer M. & H. Co. 177 
Smart v. Guardians of the Poor 

of Westham Union 626 
v. Railway 300 

Smith & Co. in re 130 

Smith v. Allison 411 

v. Birmingham Gas Com- 
pany 537 
v. Boston 316, 678 
v. Boston & M. Railw. 272 
w. Commonwealth 661 
v. Crooker 135 
v. Eastern Railw. 488 
v. Erb 660 
v. Great Eastern Railw. 542 
v. Helmer 300 
o. Hull Glass Co. 602 
v. Ind. & 111. Railw. 192 
v. Law 85 
v. London & St. Katherine's 

D. Co. 634 

v. London & S. W. Railw. 483 
v. Maryland 337 

v. McAdams 800 

v. New York & Harlem 

Railw. 546, 632 

v. Pelah 474 

v. Reese River Silver Min- 
ing Co. 151 
Smyth, ex parte 702 
v. Darley 89 
Snodgrass v. Gavit , 455 
Snow v. Housatonic Railw. 545 
Snowden v. Davis 466 
Snyder ». Penn. Railw. 305 
Society of Practical Knowledge v. 

Abbott 119 

Solomons v. Lang 155 

Somerset Canal Company v. Har- 

court 366 

Somerville & E. Railw. v. Doughty 278, 

283 
Som. & Ken. Railw. v. Gushing 191 
Soper v. Buffalo & Roch. Kailw. 584 



South Bay Meadow Dam Co. v. 

Gray 117, 177, 211 

South Carolina Railw., ex parte 410 

v. Blake 261, 

366, 410 

Southeastern Railw. v. Brngden 442 

v. European & Am. Tel. Co. 

421, 536 
v. Queen 417 

South Essex Gas Light & Coke 

Co. in re 610 

Southampton Bridge & I. Co. V. 

Local Board of Health 635 

Southmayd v. Russ 125 

South Staffordshire Railw. v. Burn- 
side 169 
v. Hall 388 
S. Wales R. Co. v. Richards 697, 699 
in re Richards 503 
South Wales Railw., ex parte 383 
Southwestern Kailw. v. Coward 387 
Southwick v. Estes 533 
South worth v. Old C. Railw. 569 
South Yorkshire & Goole Railw. 

in re 660 

South Yorkshire & River Dun Co. 

v. Great Northern Railw. 617, 646 
South Yorkshire Railw. v. Great 

Northern Railw. 617 

Spackman, ex parte 157, 588 

v. Evans 590 

vi, Lattimore 17 

Sparks v. Liverpool Waterworks 226 
Sparling v. Parker 120 

Sparrow v. Evansville & Craw- 

fordsville Railw. 213 
v. Oxford, &c. Railw. 251, 
368, 369, 374 
Spartanburgh & Union Railw. v. 

De Graffenreid 213 

Spear & Carlton v. Newell 614 

Spear v. Crawford 176 

v. Richardson 292 

Spering v. Smith 612 

Spooner v. McConnell 337 

Spottiswoods's case 16 

Sjiringfield v. Conn. River Railw. 253, 
260, 273, 315 
Spry v. Emperor 466 

Squire v. Campbell 404 

Stacey v. Vt. Central Railw. 256, 801 
Stahl v. Berger 135 

Stainbank v. Fernley 150 

Stamps v. Bir., Wolv., & Stour 

Valley Railw. 376, 383 

Standish v. Mayor of Liverpool 382 
Stanhope's Case 588 

Stanley v. Chester & Birkenhead 

Railw. 27 



mi 



TABLE OP CASES. 



St inli v r. Stanley 1 18 

S . -.in 215 

Staple i i. London, V>- & So. 
ilw. 

600 
Starr p. Child 

I ire [ns. Co. 648 

A. P. Hunton & others 708 
p.Ashley 691,702 

v. B. \ 0. Railw. 251 

. ( loncord, & Mon- 
treal Railw. 94, 263, 651, 
691 
o. Bank of Louisiana _ N ~ 

■ idford Village 705 

, . Brown 701, 702 

o. < lamp 108 

r & Evesham 660 

( Commercial Bank of Man- 

ster 703 

Common < iouncil 691 

Comm. of Mansfield 41 1 

Concord ,\. M. Railw. 703 

( lounty Judge 677 

Davenport 677 

on 77,302 

Digby 278 

Directors of Bank 
Franklin Hank 121 

Garretson 302 

Goold 112 

am 
Great Works Mill & Man. 
Co. 537 

ford & X. Haven R. 675, 
676, 
Hastings 660 

Hessenkamp 326 

Holiday 679 

Hudson 699 

Jersey City 696 

uk 677 

Lynch 691, 693 

. McBride 7<>2 

. Merchants 1 Ins. Co. 702 

. Merry 702 

Miller 

-. Railw. 701 

Essex 1! lilw. 533 
Norwalk & Danbury Turn- 
pike < o. 

106, 
246, 



410 
rton 106, 108 

246, 27o 
114 
lis 1*. M. & Life 

702 
Thom] 109 

'I'm lor 85 

Turk 702 



State v. Vermont Central Railw. 535 
r. Wheeling Bridge < !o. 337 

v. Wilmington & Manch. 

Railw. 622 

State of Maryland r. Baltimore & 

Ohio Railw. 571 

Stearns c. <>lii Colony cSc Fall River 

Railw. 511 

Stears v. S. Essex Gas Light & 

Cuke Co. 611 

Stebbing v. The Met. Board of 

Works 250 

Steel v. Southeastern Railw. 332, 503, 

528 

604 

371 

47 

346, 530 

11 



Steele v. Harmer 

v. Midland Railw. 
v. North Met. Raih 
v. S. Eastern Rail. 
Steigenberger v. Carr 
Siein r. [nd., &c. As-ociation 
Steinweg v. Erie Railw. 
Stephens v. De Medina 
Stetson v. Faxon 
Stevens v. P. & N. Railw. 

v. Rutland & Burlington 

Railw. 
v. South Devon Railw. 

620, 652 

Stewart's Estate, in re 234. 

Stewart v. Anglo-California Gold 

Mining Co. 

v. ( auty 

v. Hamilton College 
v. Raymond Railw. 
Stikeman v. Dawson 
Stiles v. Western Railw. 
Stilphin v. Smith 
Stockbridge v. West Stockbridge 
Stockton & Darlington Railw. v. 

Brown 252, 408 

Stockton & Hartlepool Railw. v. 
Leeds & Thirsk & Clarence 
Railws. 
Stoddard v. Onondaga Annual Con- 
ference 
Stokes v. Grissell 

v. Lebanon & Sparta Turn- 
pike Co. 
Stone u. Cambridge 

v. Commercial Railw. 351, 368, 

375 

Stoneham Branch Railw. v. Gould 179, 

189 
Storey v. Ashton 536 

Stormfeltz v. Manor Turnpike Co. 253 
Straffon's Executors, <x parte 123 

Strang v. Beloit & M. Railw. 288, 

294 
Strasburg Railw. v. Eehternacht 42 



69 
475 
138 
316 
341 

207 

82, 



227 
139, 141 

301, 379 

205 

431 

98 

3 



46 

73 
415 

177 
260 



TABLE OF CASES. 



XC111 



Stratford & M. Railw. v. Stratton 189, 

192 
Straus v. Eagle Ins. Co. 196, 597 

Stray v. Russell 1 29 

Strong v. Ellsworth 12 

Strong, Petitioner, etc. 600 

Stubbs v. Lister 227 

Stubley v. London & X. W. Railw. 

577 
Stucke v. Milw. & Miss. Railw. 5< 18 
Sturges v. Knapp 609 

Sturtevant v. Milw., Wab., & B. 

Railw. . 351 

Sullivan v. Philadelphia & R. 

Railw. 507 

v. Tuck 143 

Simburv & Erie Railw. v. Hummel 307 

Susquehannah Canal Co. v. Wright 248 

Sutton v. Clark 317, 635 

v. Louisville 280 

v. Tatham 189 

Sutton Harbor Improvement Co. 

v. Hitchins 388 

Suydam v. Moore 487, 573 

Swan v. North British Australasian 

Co. 16 

Swansea Harbor Trustees, in re 399 
Swansea Vale Railw. v. Budd 229 

Swatara Railw. v. Brune 203 

Sweeney v. Old Colony & Newport 

Railw. 577 

Symonds v. City of Cincinnati 246, 

278 



Taff-Vale Railw. v. Nixon 442 

Taggart v. West Maryland Railw. 119, 

188 
Talmadge v. Rensselaer & Saratoga 

Railw. 489 

Tanner v. Tanner 163 

Tar River Nav. Co. v. Neal 176 

Tarbell v. Central Pacific Railw. 98 
Tarrant v. Webb 545, 555 

Tate v. Ohio & Miss. Railw. 321 

Tattersall v. Groote 454 

Taunton v. Royal Ins. Co. 648 

Taunton & South Boston Turnpike 

Co. v. Whiting 175 

Tawney v. Lynn & Ely Railw. Co. 

376 
Tavler v. Great Indian Peninsula 

Railw. 158 

Taylor v. Chichester & Midhurst 

Railw. _ 40, 51, 209 

v. City of St. Louis 317 

v. Clemson 249, 409 



Taylor v. County Commissioners 286 
v. Fletcher 196 

v. Gay 698 

v. Griswold 85 

v. Hughes 124 

v. Merchants' Fire Ins. Co. 216 
v. Railw. Co. 576 

r. Southeastern Railw. Co. 475 
v. Stray 140 

v. York & N. M. Railw., 

in re 378 

Tebbutt v. B. E. Railw. 533 

Tempest©. Kilner 120, J 42 

Tenney v. East Warren Lumber Co. 687 
Tenny v. Tuttle 581 

Terre Haute, &c. Railw. v. Smith 515 
Terry v. New York Central Railw. 488 
Tew v. Harris 398 

Thames Haven Dock & Railw. Co. 

v. Hall 88, 365 

v. Rose 88, 90, 93 

Thames Steamboat Co. v. Housa- 

tonic Railw. 537 

Thames Tunnel v. Sheldon 193 

Thayer v. St. Louis, Alton, &c. 

Railw. 516 

v. Vermont Central Railw. 432 

Thicknesse v. Lancaster Canal Co. 391, 

687 

Thigpen v. Miss. Central. Railw. 187 

Thomas v. Winchester 633 

Thompson, ex parte 660 

v. Charnock 454 

v. Grand Gulf Railw. Co. 

296, 301 
v. New Orleans & Car- 

rolton Railw. 530 

v. New York & H. 

Railw. 253 

v. Thompson 120 

v. West Somerset Railw. 321 

Thorne v. Taw Vale Railw. 3 

Thorpe v. Hughes 200 

v. Rut. & Bur. Railw. 58, 274 

Thurnell v. Balbirnie 454 

Tilleard, in re 51 

Tillet v. Cbaring-Cross Company 240, 

243 
Tillotson v. Hudson River Railw. 347 
Tilson o. Warwick Gas Light Co. 688 
Timmons v. Central Ohio Railw. 551 
Tinsman v. Belvidere Delaware 

Railw. 311 

Tippets v. Walker 12D 

Titcomb v. Fitchburg Railw. 425 

Tobin v. P. S. & P. Railw. 633 

Todd v. Taft 143 

Toledo Bank v. Bond 60, 253 

Toledo Railw. v. Wickery 486 






TABLE OF CASES. 



I ... :: lilw. r. Fowler 516 

Toledo, P.& W. Railw. r. Arnold 501 

r. Pinder 483 

,-. Rumbold 193 

Toledo & Wabash Railw. v. Daniels516 

I ledo d. 1 bomaa 515, 521 

., \V. & Western Railw. v. 

Harmon 579 

r. Rodrigues 542 

Tombs r. Rochester & Syracuse 

w. 510 

Tomlinson v. Man. & Birm. Railw. 251 
romlinson 120 

Tonawanda Railw. v. Munger 488, 520 
Tooke, '.'■ j 159 

1 r. London, Br. & So. 

1 si Railw. 633 

Torrington i>. Lowe 137 

Touehe v. Met. R W. Co. 45 

Tower v. Prov. & Wor. Railw. 521 
Prov. & I ' t i < ■ ; i Railw. 488 
Towle r. The State 679 

Towns v. Cheshire Railw. 486, 519 
Townsend v. Ash 120 

Townshend v. Susquehannah T. Co. 634 
Tracy v. Troy & Boston R. 493 

r. Fates 201 

Trask o. Hartford & New H. Rail. 482 
Tremain o. Cohoes Company 303 

Trenton Water Power Co. v. 

Chambers 284 

Troupe, in re 647 

Trow v. Vermont Central Railw. 491, 

572 

Troy >•. Cheshire Railw. 315, 350 

Troy >S: Boston Railw. v. Lee 278, 283 

v. Northern Turnpike Co. 283, 

288, 295, 310 

v. Potter 264 

r. Tibbitts 176, 202, 215, 216 

o. Warren 215 

Troy & ( rreenfield Railw. v. Newton 190 

Troy & Rutland Railw. v. Kerr 176, 

202, 617 
Troy T. Co. v. McChesney 176 

1 . . Loder 140 

Truate 695 

of Presbyt. Society of 
Waterloo P. Auburn & Roch. 
Railw. 58, 314 

Tuckahoe Canal Co. v. Tuckahoe 
Railw. 253 

Tucker r . S Lid Society 67 

Tunnej p. Midland Railw. Co. 552 
Tuohey v. G i W. Railw. 354 

Turner v. Sheffield & R. Railw. 303, 

351 

Turnpike Co. V. Hosmer 410 

r. Railw. Co. 177 



Turnpike Co. v. Wallace 
Turnpike Road v. Brosi 
Turquand v. Marshall 
Tyrrell r. Woolley 



U. 



59 
363 
596 
595 



Dnangst's Appeal 233 

Underbill v. New York & Harlem 

Railw. 494 

v. Saratoga & Wash. 

Railw. 237 

Underwood v. Bedford & Cam- 
bridge Railw. 369 
v. Hart ' 431 

Union Bank v. Knapp 228 

v. Laird 125 

Union Bank of Tennessee v. State 121 
Union Locks & Canal Co. v. Towne 206 
Uniontown v. Commonwealth 677 

U. S. v. Arredondo 253 

v. Harris 265, 270 

v. New Bedford Bridge Co. 337 
v. Railw. Bridge Co. 247, 343 
v. Robeson 455 

v. Vaughan 125 

United States Bank v. Dandridge 430 
Unity Ins. Co. v. Cram 74 

Unthank v. Henry County Turnp. 

Co. 179 

Upfill's case 15, 173 

Upton v. South Reading Branch 

Railw. 277, 289 

Utica & Schenectady Railw. v. 

Brinkerholf 185, 216 

Utica Bank v. Ilillard 228 

Utica Railw., matter of 278 



V. 



Vail v. Morris & Essex Railw. 285, 287, 

295 
536 
573 



Vanderbilt v. Richmond T. Co. 
Vardergrift v. Rediker 490, 520, 
Vanderkar v. Rensselaer & Sar. 

Railw. 504, 520 

Vanderwerker v. Vermont Central 

Railw. 432 

Vanegril't v. Railway 538 

Van Wickle v. C. & A. Railw. 698 

w. Railw. 256, 285, 294 
Varick v. Edwards 145 

Varillat v. N. O. & Car. Railw. 576 
Varrick v. Smith 246 

Vaughn v. Co. of Gunmakers 669 

Vaughan v. Taff-Vale Railw. 475 



TABLE OF CASES. 



xcv 



Vauxliall Bridge case 48 

Yauxhall Bridge Co. v. Earl of 

Spencer 19, 24 

Vawter v. Ohio & Miss. Railw. Co. 206 

Veazie v. Mayo 239, 323 

v. Penobscot Railw. 324, 419 

Vermont Central Railw. v. Baxter 259, 

263, 618 

v. Burlington 411 

v. Clayes 215 

v. Hills 237 

Vermont & Canada Railw. v. Vt. 

Central- Railw. 251 

Vermont & Mass. Railw. v. Fitch- 
burg Railw. 636 
Vicksburg & Jackson Railw. v. 

Patton 490 

Vicksburg, Shreveport, & Texas 

Railw. v. McKean 168, 186, 200, 203 
Victory v. Fitzpatrick 350 

Vilas v. Milw. & Miss. Railw. 239, 352 
Vinal o. Dorchester 562 

Violet v. Simpson 575 

Visebe.r v. Hudson River Railw. 385 
Von Schmidt v. Huntington 80 

Vose v. Grant 182 



w. 

W. & L. Railw. v. Kearney 425 

W. N. W. Co. v. Hawksford 17 

W. & P. Railw. Co. v. Washington 294 
W. & R. Railw. v. Stauffer 477 

W. W. V. Railw. v. Quick 486 

Wadhams v. Lackawanna & Blooms. 

Railw. Co. . 300 

Wainwright v. Ramsden 362 

Waitman, ex parte 162 

Wakefield v. Conn. & Pass. Rivers 

Railw. 568 

Waldo v. Chicago, St. Paul, & 

Fond du Lac Railw. 250 
V. Martin 606 

Waldron v. Portland S. & P. 

Railw. 488 

v. Rensselaer & Sar. 

Railw. 487 

Walker's case 125, 162, 611 

Walker v. Bartlett 134. 146, 148 

v. Boiling 550 

v. Boston & Maine Railw. 248, 

283, 286, 339 

v. Devereaux 72, 171 

v. Eastern Counties Railw. 239 

v. Great Western Railw. 542 

v. London & BI. R. 375, 677 

v. Milne 120 

v. Mobile & Ohio Railw. 187 



Walker V. Old Colony & Newport 

Railw. 278, 307 

V. South Eastern Railw. 

Co. Ill 

v. Ware Railw. 257 

Wallingford Manufacturing Co. v. 

Fox 12 

Walstab v. Spottiswoode 14 

Walter v. Belding 661 

Wanless v. The North Eastern R. 578 

Wansbeck Railw. in re 427 

Warburton v. Great Western R. 557 

Ward v. Griswoldville Manuf. Co. 176 

it. Londesborough 14 

v. Lowndes 664, 677, 682 

v. Southeastern Railw. 130 

Ware v. Grand Junction Water 

Works 80, 207 

v. Regents' Canal Co. 306, 358, 

398 

Waring w. Manch., Sheffield, & L. 

Railw. 442 

Warner v. Callender '211 

v. Erie Railw. 545 

v. Mower 84 

v. N. Y. Cent. R. 578 

Warren v. Fitchburg Railw. 569 

v. State 324 

Warren Railw. Co. v. State 419 

Warring v. Williams 135 

Wash. & Bait. T. Road Co. v. 

State 706 

Waterbury v. Hartford, Prov. & F. 

Railw. 680 

Waterford, Wexford, & W. Railw. 
v. Dalbiac 189 

v. Pidcock 198 

Waterman v. Conn. & Pass. River 

Railw. 312, 359 

Water Power Co. v. Chambers 236, 

242 
Waterman v. Trov & Greenfield 

Railw. 220 

Waters v. Moss 499 

v. Quimby 541 

Watkins v. Great Northern Railw. 260, 

349, 351 
Watson v. N. Y. Cent. Railw. 286 
v. Reid 241 

Watts v. Porter 184 

v. Salter 14, 15 

v. Watts 146 

Webb v. Direct London & Ports- 
mouth Railw. 28, 29,37, 
40, 41, 42 
v. Man. & Leeds Railw. 251, 
259, 376, 581 
v. P. & K. Railw. 569 

Webber v. Eastern Railw. 290 



XCV1 



TABLE OP TASKS. 



Erie & Mad River 
lw. 220 

Penn. Railw. 5 15 

ecb 56 l 

Weld i & Southwestern 

■.. Co. 11, 873, 413 
Lailw. i?. Berrie 180 

120 
. [Iowell 519 

a. a.- Ken. Railw. < 
Wesli jpaper Association, 

S. & W. Dire 595 

. II. L. V. & T. II. Railw. 631 
\\ . I -;.r Railw. v. Miles 1 15 

West Cornwall R. v. Mowatt 168 

1 'M Railw. v. London & 
N. W. Railw. 637 

West Philadelphia Canal Co. v. 
[lines 195, 197 

River Bridget*. Dix 272. 273, 
275, 276 
Western Maryland Railw. v. Ow- 
ings 351 

em Penn. Railw. ( !ompany v. 

Hill 356 

□ Railw. v. Babcock 241 

m p. Bennett 430 

o. Poster 268 

Wesi 130 

lomon 137 

ry 318 

We} nit v. N. V. & Harlem Railw. 550 

Whaalan v. M. R. & Lake Erie 

Railw. 548, 555 

Wheeler v. Roch. & Sv. Railw. 268, 

16, 505 

Wheelo I. v. Moulton 13, 121 

r. Young & Pratt 259 

Whipple v. Walpole 291 

Whiteomb v. Vermont Central 

Railw. 234, 311 

White's <'ase 669 

. & Prov. Railw. 350 

r. Brown 479 

barlotte & S. C. Railw. 277 

v. Concord Railw. 292, 506 

o. Fitchburg Rail. 

■ incy 425 

p. S Shore Railw. 307 

v. Vt. & Mass. Railw. 135 

White Mountain Railw. v. East- 
man 91, 172. 177, 190 
White Ri . p. Vt. Cent. 

lw. 272, 27:5, 315 

Mitheastern Railw. 

0, 595 
Whitehouse v. Androscoggin 

Railw. 303, 304 
r. Fellows C;J5 



Whiteman v. Wilm. & Susq. 

Railw. 534 

White River Bank 691 

Whitfield v. Zellnor 428 

Whitman v. Boston & Maine 

Railw. 235, 239, 280, 287 

Whitney v. At. & St. L. Railw 509 
Whittaker v. Boston & Maine 

Railw. 570 

Whittier v. Ken. & Portland R. 311 
Whitmarsh Township v. PhiLGer. 

& N. Railw. Co. 678 

Whitwell v. Warner 17, 583, 594 

\\ iggett v. Fox cf al. 550, 556 

Wiggin v. Free-Will Baptist So- 

ciety 83 

Wight v. Shelby Railw. 172, 199, 202 
Wigmore v. Jay 544, 555 

Wilcox v. Rome & Watertown R. 569 
Wiley & Moor 135 

Wilkins v. Roebuck 591 

Wilkinson v. Anglo-California Gold 

Co. .„ 156 

v. Lloyd 122, 127, 141 

Willard v. Newbury 561 

Willcocks, ex parte 86, 91 

Willey v. Southeastern Railw. 383 

Williams v. Androscoggin & Ken- 
nebec Railw. 429 
v. Archer 124 
v. Bank of Michigan 61 
v. Chester & Holvhead 

Railw. 430 

v. Great Western Railw. 99 
v. Hartford & New Ha- 
ven Railw. 255 
V. Jones 531, 686 
v. Judge of County Ct. 695 
v. Michigan Central R. 488, 
490, 520 
v. Natural Bridge Co. 316 
v. New Albany A: Salem 

Railw. 511 

v. New York Central 

Railw. 240, 315, 316, 
318, 321, 507 
v. Pigott 16 

v. St. George's Harbor 

Co. 13, 46 

v. South Wales Railw. 376 

v. Wilcox 423 

Willing v. Baltimore Railw. 294 

Wills v. Bridge 132, 134 

v. Murray 84, 90 

Willyard v. Hamilton 299 

Wilmington & Manchester Railw. 

v. Saunders 76 

Wilmington & Raleigh Railw. v. 
Robeson 185 



TABLE OP CASES. 



XCV11 



Wilt. & Read. Railw. v. Stauffer 278 
Wilmot v. Corporation of Coven- 
try 604 
Wilson v. iEtna Insurance Co. 454 
v. Anderson 3 
v. Blackbird Creek Marsh 



Co. 

v. Cunningham 
v. Goodman 
v. Keating 
v. Merry 
v. Miers 
v. Railw. Co. 



337, 340 
3, 575 
597 
170 
547 
596 
492 



v. West Hartlepool Har- 
bor & Railw. Co. 593, 630 



Win 



v. Wilson 

o. York & Md. Railw. 
& St. Peters R. v. Denman 



93 

438 
279, 
282 
280 



v. Waldron 
Winch v. Birkenhead, L. & C. 

Railw. 620 

Winter v. Muscogee Railw. 207, 209 
Winterbottoin v. Wright 632 

Witmer v. Schlatter 17 

Witter v. Miss. O. & R. Railw. Co. 411 
Wolfe v. Covington & Lexington 

Railw. 311, 315 

Wolverhampton N. W. Co. v. 



Hawksfor 

Wonder v. Bait. & Ohio Railw. 
Wood v. Auburn & Roch. Railw. 

v. C. & C. Railw. 

v. Duke of Argyll 

v. Dummer 

v. Epsom & L. Railw. 

v. McCann 

v. North Staffordshire R. 

v. Stourbridge Railw. Co. 

v. Vermont Central Railw 
Woodfin v. Insurance Co. 
Woodfolk v. Nashv. & C. Railw. 



173 
556 
590 
118 

11 
182 
375 
607 
425 
360 
461 

99 

279, 

280 

531 

657, 697 

135 



Woodman v. Joiner 
Woodstock v. Gallup 
Woolley v. Constant 

' v. North London Railw. 229 
Woolson v. Northern Railw. 519 

Wootton's Estate 363 

Worcester & Nashua Railw. v. 

Hiiuls 189 

Worcester Turnpike v. Willard 175 



Works v. Junction Railw. 343 

Wormwell v. Hailstone 687 

Worrall v. Judson 148 

Worsley v. South Devon Railw. 373 

Wright v. Coster 317 

v. Fawcett 660 

v. Gossett 512 

v. Ind. &c. Railw. 521 

v. N. Y. Central Railw. 545, 

555, 556 

v. Petrie 183 

v. Scott 341 

v. Warren 162 

v. Wilcox 533 

Wyatt v. Great Western R. Co. 565 

Wycombe Railw. v. Donnington 

Hospital 242 

Wyman v. Lexington & West 

Cambridge Railw. 289, 

398 

v. Pen. & Ken. Railw. 514 

Wynn v. Allard 572 

v. Shropshire Union Railw. 

& Canal 652 

Wynne v. Price 144, 148 

Wynstanley v. Lee 352 

Wyrley Nav. v. Bradley 313 



Yarborough v. Bank of England 533 

Yates v. Milwaukie 337 

Yeizer, case of 307 

York & Cumberland R. v. Pratt 189 

York & N. Midland R. v. Milner 685 

v. Reg. 664, 

674 

Young v. Harrison 299 

v. N. Y. Central Railw. 528 

v. Yarmouth 562 



z. 



Zabriskie v. C. C. & C. Railw. 74, 
84, 584, 590 
v. Jersey City & Bergen 

Railw. Co. 325 

Zack v. Penn. Railw. 283 

Zimmerman v. Union Canal Co. 248, 

299, 317 



ANALYTICAL INDEX OF APPENDIX OF LATER CASES, 

REPORTED WHILE THE WORK WAS IN PRESS. 



CORPORATIONS. 

PAGE 

of shares on stock exchange, custom, usage 709 

bene of atock 709 

Misapplication of joint stock 710 



EMINENT DOMAIN. 

Constructive power to take private property 710 

Compensation 711 

Designation of route of railway 711 

Surveys of the line and notice to land-owner 711 

Taking land by railway company 711 

Lands injuriously affected 711 

Riparian owners 712 

Railway station 712 

Railway crossing highway 712 

Right of way by dedication 713 

Land damages do not pass to grantee 713 

Right to take land tor national use 713 



fires 713 

FENCES 713 

INJURY TO FELLOW-SERVANTS 715 

contracts ultra vires. 

Between railways as to future legislation 715 

To issue preferred stock 715 

Money obtained from contract ultra vires '.'.'. 716 

CONSTRUCTION. 

1 1 stance, how measured 71g 

............ 716 

COMMON CARRIERS. 

sibUity for acts of servants 71« 

Baggage, what is 717 



ANALYTICAL INDEX OF LATER CASES. XC1X 

"When carrier's responsibility attaches 717 

Damages for non-delivery in time 717 

Stoppage in transitu. Consignor, consignee 717 

COMMON CARRIERS OF PASSENGERS. 

Regulations as to passengers 717 

Using unnecessary force in expelling from cars 718 

Leaving street cars 718 

Evidence ; declarations of servant ; res gestae 718 

MANDAMUS 718 



CONSTITUTIONAL QUESTIONS. 

SECTION V. 

Power of Congress to regulate traffic on Interstate Railways. From 
whence such poioer is derived. How illustrated. 

ORIGINAL PURPOSE OF THE PROVISION. 

The natural import and construction of the terms 720 

!Not restricted to the then existing modes of transportation 720 

Commerce embraces all the intercourse among nations or states ; the means 

and appliances of trade and communication, in all its parts and bearings ; 

passengers as well as commodities 721-723 

The railway traffic, extending beyond the limits of one state, must either be 

no part of the commerce of the country, or else be subject to the control 

of Congress. If not, it is not subject to any supervision 723 

CONSIDERATION OF THE DECISIONS. 

Review of the decisions of the national courts on the question. The regula- 
tion of commerce extends to all waters in fact navigable for boats of ten 
tons burden and upwards. Communicating with different states .... 723 

The exceptions from the powers of Congress to regulate commerce .... 724 

The control and regulation, by Congress, of interstate traffic upon railways 

seems a necessity 724 

It argues lameness in the government to suppose the contrary 725 

CONGRESSIONAL LEGISLATION. 

Comments upon the legislation of Congress and the opinions of federal judges 

directly upon the point 725 

Summary of the results, and the prospects for the future 727 



TABLE OF CASES OF APPENDIX OF CASES. 



PAGE 

Agassiz r. Li union Tramway 718 

Baird p. Pettil 715 

I lity Railw. r. Sewell 709 

Beckett p. Met. Railw. 712 

Bigelow r. \V. W. Railw. 711 

Bradley p. Ballard 716 

Bryant p. Rich 71/ 

Burt v. Merch. Ins. Co. 713 

Central Railw. p. Mayor of Macon 715 
Chicago & X. W. Railw. v. Jack- 

715 
Chusan, The 723 

City of Hannibal v. Hann. St. J. 

Railw. 710 

( !olcman v. X. Y. & N. II. Railw. 718 
Comings v. Hann. & Cent. Mo. 

Railw. 714 

Comstock P. De Moines V. Railw. 714 
Connelly p. Warren 717 

Cooley v. Board of Works 72-1 

( Irocker v. < Hd South Church 718 

Curtis v. Emery 712 



Dewey v. Chicago & N. W. Railw. 

Eaton v. B. C. & M. Railw. 
Ells v. Pacific Railw. 



Foster v. Davenport 



714 

711 
714 

724 



Genesee Chief v. EitzIIughes 724 

Gibbons p. Ogden 720, 721, 722, 723 

Giliiiau r. Philadelphia 724 

Gray V. Clinton Bridge 725 

Halderman v. Beckwith 724 

Hazlehursl O. Savannah Railw. 710 

Holden p. Rut. & i'». Railw. 714 

Unit p. Gas Light & Coke Co. 712 

Iluddleston v. Lowell Math. Shop 715 

Jark-on p. Ch. & X. W. Railw. 713 
Jeff. M. & Iinl. Railw. v. Park- 

hiirat 714 



PAGE 

Jolly v. T. II. Draw Bridge Co. 724 

Lemraon v. Chic. & North West. 
Railw. 714 

Maroney v. Old C. & N. Railw. 717 

Maxted v. Paine 709 

Mc( larthy v. Met. Bd. Works 712 

McFadden v. Johnson 713 

Merry v. Nickalls 709 

Mohrw. B. & A. Railw. 717 

Monflet v. Cole 716 

Murphy v. Deane 718 

New York & Boston Railw., ex 
parte 711 

Nichols v. Middlesex Railw. 718 

North London Railw. v. St. Ma- 
rys • 713 

Norton v. Wallkill V. Railw. 711 

Passaic Bridge, The 723, 724 

Pennsylvania v. Wheeling Bridge 

Co. 723 

Pickering v. Stephenson 710 

Pittsb., Ft. Wayne & Ch. Railw. v. 

Maurer 713 



Rennie v. Morris 
Rickett v. Met. Railw. 



709 
712 



Scott v. B. & N. O. Steamb. Co. 717 
Shipley v. Fifty Associates 716 

Silliman v. Hudson River Br. Co. 723 

Tinney v. Bost. & Alb. Railw. 715 

Tomlin v. Dubuque, &c. Railw. 712 
Trice v. Hann. & St. J. Railw. 714 

United States v. Railroad Br. Co. 

723, 724 

Watts v. Boston & Lowell Railw. 717 
Woodman v. Kilbourne Man. Co. 724 



Veazie v. Moor 



724 



THE LAW OF RAILWAYS. 



*CHAPTER I. 



INTRODUCTION. 



1. Origin of railways in England. 

2. First built upon one's own land, or by 

special license from the owner. 

3. Questions in regard to private railways. 



4. Railways in America, public grants. 

5. Use of steam power on railways. 

6. The franchise of a railway not necessarily 

corporate, nor unassignable. 



§ 1. 1. Although some of the Roman roads, like the Appian 
Way, were a somewhat near approach to the modern railway, 
being formed into a continuous plane surface, by means of blocks 
of stone fitted closely together, yet they were, in the principle of 
construction and operation, essentially different from railways. 
The idea of a distinct track, for the wheels of carriages, does not 
seem to have been reduced to practice until late in the seventeenth 
century. In 1676, some account is given of the transportation of 
coals near Newcastle, upon the river Tyne, upon a very imperfect 
railway, by means of rude carriages, whose wheels ran upon some 
kind of rails of timber. 1 About one hundred years afterwards, an 
iron railway is said to have been constructed and put in operation 
at the colliery near Sheffield. From this time they were put into 
very extensive use, for conveying coal, stone, and other like sub- 
stances, short distances, in order to. reach navigable waters, and 

1 Roger North's Life of Lord Keeper North, vol. 2, p. 281 ; Ency. Americana, 
Art. Railway, vol. 10, p. 478. And in all the mediaeval towns in Europe, we 
notice double granite flagging along the streets, for the wheels of carriages. 
And in the main street in Milan, and some other Italian towns, there are double 
tracks of this kind for carriages to pass in opposite directions. These granite 
blocks in the streets, for the wheels of carriages, are seen in Canterbury and in 
York. England ; and in most of the Italian cities. But they seem never to have 
suggested the idea of railways. 

VOL. I. 1 [*1] 



•J INTRODUCTION. CH. I. 

BOmetimes near the cities, where large quantities of stone were 
requisite for building purposes. 

These railways, built chiefly by the owners of coal-mines 
and stone-quarries, either upon their own land or by special 
license, called way-leave, upon the land of others, had become 
numerous long before the application of steam power to railway 
transportation. 

3. Some few questions in regard to the use of these railways, or 
tramways, at common law, have arisen in the English courts. 2 
But as no such railways exist in this country, it would scarcely be 
expected we should here more than allude to such cases. 3 

s Walford on Railways, 2; Hemingway ». Fernandes, 13 Simons, 228. This 
Beema to establish the rule, that a covenant to erect a railway across the 
land of another, and to use the same exclusively for a given transportation, is 
binding upon the assignees of the interest. But a mere covenant to use an 
adjoining railway, and pay a specified toll, does not run with the land then used 
by the covenanter, and from which he derives the material transported. Kep- 
pellr. Bailey, 2 My. & K. 517. 

' Walford, 3-10. The points chiefly discussed in the reported cases in refer- 
ence to private railways and railways at common law, are : — 

1. That these way-leaves, or reservations, by which one man has the right to 
build a railway upon the land of others, or in the rightful occupation of others, 
arc not to be limited to the kind of railway in use at the date of the reservation 
or grant, but will justify the building of a railway, suitable and convenient for 
the use tor which the reservation or grant is made, and with all such needful or 
useful improvements, as the progress and improvements of art and science will 
enable the grantee to avail himself of. Dand v. Kingscote, 2 Railw. C. 27 ; s. c. 
6 -M. & W. 171. Hence it was considered that such railways might, upon the 
general application of steam power to railways, adopt that as an improve- 
ment, coming fairly within the contemplated use of their grantor reservation, 
although wholly unknown at the date of their grant. Bishop v. North, 3 Railw. 
C. 459; s.c. 11 M. &W. 418. 

2. That this will not justify the grantee of a way-leave for a railway, for a 
special purpose, to erect one for general purposes of transporting merchandise 
and passengers. Dand v. Kingscote, 2 Railw. C. 27 ; s. c. 6 M. & W. 174. Far- 
row v. Vansittart, I Railw. C. 602; Durham & Sunderland Railw. et als. v. 
Walker, 3 Railw. < '. 36 ; s. c. 2 Q. B. 940. In this last case, which was a deci- 
sion ol the Exchequer Chamber, the way-leave Was retained by the landlord in 
leasing the land, and the court say, it is not an exception, for it is not parcel of 
the thing granted, and it is not a reservation, as it did not issue out of the thing 

ted, but it is an easement, newly created, by way of grant, from the lessee. 

And that it was to be presumed the deed was executed by both parties, lessor 

Bui it was held, that where, by a canal act (32 Geo. 3, c. 100, 

.. the i roprietore of coal-mines, within certain parishes, are empowered to 
make railways to convey coal over the land of others, by paying or tendering 

[•2] 



§ 1. INTRODUCTION. o 

* 4. All railways and other similar corporations in this country 
exist, or are presumed to have originally existed, by means 
of an express grant from the legislative power of the state or 
sovereignty. 4 

5. The first use of locomotive engines upon railways for pur- 
poses of general transportation does not date further back than 
October, 1829 ; and all the railways in this country, with one or 
two exceptions, have been built since that date. 5 

satisfaction, that this power was not limited to such persons as were the proprie- 
tors, at the date of the act, but extended to subsequent proprietors. Bishop v. 
North, 3 Railw. C. 459 ; s. c. 11 M. & W. 418. 

3. That if the railway was such an one as the company, at the time when it 
was made, might lawfully make, for the purposes for which, when made, they 
might lawfully use it, the plaintiff, as reversioner, had no ground of complaint, 
by reason of the intention of the company to use it for other purposes, for which 
they had no right to use it, until such intentions were actually carried into effect. 
Durham & Sunderland Railw. v. Walker, 3 Railw. C. 36; s. c. 2 Q. B. 940. 
But where other parties have acquired the right to use a railway originally 
erected by private enterprise and for private purposes, the English courts at an 
early day restrained the owners of the railway by mandamus from taking up 
their track, and required them to maintain it in proper condition for public use. 
Rex v. Severn & Wye Railw., 2 B. & Aid. 646. But see Thorne v. Taw Vale 
R., 13 Beavan, 10. 

4. That such way-leaves, for the erection and use of railways upon the land 
of others, may exist by exjiress contract; by presumption or prescription; from 
necessity, as accessory to other grants; and by acquiescence, short of the limit 
of prescription. Barnard v. Wallis, 2 Railw. C. 162; s. c. 1 Cr. & Ph. 85 ; Mon- 
mouthshire Canal Co. v. Harford, 1 C. M. & R. 614. These railways, at com- 
mon law and by contract, impose certain burdens upon the proprietors, as the 
payment of rent sometimes for the use of the land, tenant's damages, and the 
keeping their roads in repair, so as not to do damage to the occupiers of the 
adjoining lands. Wilson v. Anderson, 1 Car. & K. 544 ; Walford, supra. 

4 2 Kent, Comm. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. 
400 ; Hagerstown Turnpike Co. v. Creeger, 5 Har. & J. 122 ; Greene v. Dennis, 
6 Conn. 292, 302, Hosmer, Ch. J. ; Franklin Bridge Co. v. Wood, 14 Ga. 80. 
But from the case of Wilson v. Cunningham, 3 Calilbrnia, 241, it seems that the 
municipal authorities of San Francisco did assume to grant a private railway 
within the limits of the city. The court held the proprietor liable for the slight- 
est negligence in its use, whereby third parties were injured. Post, § 250. 

5 The celebrated trial of locomotive engines upon the Liverpool and Man- 
chester Railway, for the purpose of determining the relative advantage of 
stationary and locomotive power upon such roads, and which resulted in favor 
of the latter, was had in October, 1829. The Quincy Railway, for the trans- 
portation of granite solely, by horse power, was constructed about two years 
before this. But the Boston and Lowell Railway, one of the tirst railways in this 
country for general transportation of passengers and merchandise by tin' use of 

[*3] 



•4 INTRODUCTION. CH. I. 

* 6. There is nothing in the prerogative right of maintaining and 
operating a railway and taking tolls thereon which is necessarily 
of a corporate character, or which might not, with perfect pro- 
priety, belong to, or he exercised by, natural persons, or which in 
its nature may not he regarded as assignable. 6 

steam power and locomotive engines, was incorporated in June, 1830. And rail- 
ways tin - purposes of general traffic were constructed about the same date in most 
of the older Btates, and very soon throughout the country. 

8 Bennett, J., in Bank of Middlebury v. Edgerton, 30 Vt. 182. 
[*4] 



PAUT I. 

THE LAW OF PRELIMINARY ASSOCIATIONS. 



PART I. 

THE LAW OF PRELIMINARY ASSOCIATIONS. 



CHAPTER II. 



PUBLIC RAILWAYS AS CORPORATIONS. 



PRELIMINARY ASSOCIATIONS. 



SECTION I. 



Mode of instituting Raihvay Projects. 



1. Subscribers' associatio?is in England. 

2. Subscribers bound by subsequent charter. 

3. Issue and registry of scrip certificates. 

4. Original subscriber liable to unregistered 

purchaser. 

5. Holders of scrip entitled to registry. 

6. Preliminary associations not common in 

this country. 



7. Petitioners for incorporation file plans 

and surveys. 

8. Present English statutes. 

9. Preliminary Associations may be regis- 

tered. 
10. Not now held responsible as partners in 
England. 



§ 2. 1. The mode of instituting railway enterprises, in England, 
is more formal and essentially different, from that adopted in most 
of the American states. There the promoters usually associate 
under two provisional deeds, the one called a " Subscribers' Agree- 
ment," and the other a " Subscription, or Parliamentary Contract," 
which are expected only to serve as the basis of a temporary organ- 
ization till the charter is obtained. This is specifically and often 
in detail to some extent provided for, in the subscribers' agreement. 
A board of provisional directors is provided to carry forward the 
enterprise, whose powers are defined in the subscribers' agreement 
or deed of association, and whose acts will not bind the members 
unless strictly within the powers conferred by the deed. 

2. Under this form of association, the subscribers are bound by 
the act obtained, if within the powers conferred by the deed, even 
where it involves the purchase of canal, and other property by the 
company. 1 And courts of equity often interfere to restrain the 

1 Midland Great Western Railway v. Gordon, 16 M. & W. 804. 

[*5] 



8 PRELIMINARY ASSOCIATIONS. PAET I. 

provisional directors from exceeding their powers under the deed, 2 
*or misapplying the funds, or delaying payment of the dents of 
the association. 8 

3. The provisional directors usually issue scrip certificates, 
which pass from hand to hand hy delivery merely, and, after the 
charter is obtained, the scripholders are registered as shareholders 
in the company, and thereby become entitled to all the rights, and 
subject to all the liabilities of the shareholders. 4 

1. And if the original subscriber sell the scrip to one who omits 
t,. have his name registered as a shareholder, by reason of which 
the original subscriber canst; his name to be registered and sell the 
shares again, he will be held to account for the avails of the second 
sale, as a trustee for the first purchaser. 5 

5. But the company arc not obliged to accept of the holders of 
scrip as shareholders, in discharge of the original subscribers, it 
has been said, but may insist upon registering the original sub- 
scribers to the deed of association, to whose aid it may be presumed 
the promoters looked in undertaking the enterprise, which by their 
act of incorporation they are morally, and in some cases legally, 
bound to carry forward.'' But the English decisions, upon the 
whole, hardly seem to justify this proposition. The subscriber 

• .1 v. Cooper, I Railw. C. 396; s. c. 15 Sim. 343. All parties con- 
cerned must be made parties to the bill, even shareholders of whom it is alleged 
a rival company propose to purchase shares, to destroy the independency of one 
of the companies connected with the common enterprise. Greathed v. S. W. & 
Dorchester Railway, 1 Railw. ('. 213; s. c. 10 Jur. 343. 

J Lewis v. Billing, 4 Railw. C. 414; s. c. 10 Jur. 851. Bagshaw v. Eastern 
Union Railway, 6 Railw. C. 152; s. c. 7 Hare, 114; Bryson V.Warwick & 
Birmingham (anal Co., 23 Eng. L. & Eq. 91; s. c. 4 De G. Mae. & G. 
711. In tlii- last case, the railway company being only provisionally registered, 
expended £10,0 >0 in the purchase of the stock of the defendants. The railway 
finally failing to go into operation, in the process of winding up, one of the 
shareholders was allowed to institute proceedings in equity, on behalf of him- 
Belf and others, being shareholders, to compel defendants to refund the money, 
and the court held the contract ultra vires and compelled the defendants to refund 
the money received under it. 

!7, Birmingham, B. & Th. J. Railway v. Locke, 1 Q. B. 256; 
I Ion Grand J. Railway v. Graham, id. 271; s. c. 2 Q. B. 281; The Chelten- 
ham & G. \V. ['. Railway, v. Daniel, 2 Railw. C. 728; Sheffield & A. & M. 
Railway v. Woodcock, 2 Railw. C. 522; s. c. 7 M. & W. 574. 
Bilbrough, 19 Law J. 522; s. c. 8 Hare, 188. 

6 Hodges on Railways, 97. 

[*6] 



§ 2. MODE OF INSTITUTING RAILWAY PROJECTS. 9 

cannot abandon the obligation at will. 7 But if the scrip is trans- 
ferable, by delivery, it would be strange if the holder was not enti- 
tled * to be registered, as a shareholder, the same as the assignee of 
a fully registered share in the stock. And for the company, after 
having issued scrip certificates, in a form calculated to invite pur- 
chases, and when they were aware of the use constantly made of 
such scrip, to refuse to register the names of the holders, as share- 
holders and members of the company, would amount to little less 
than express fraud. Hence we conclude they have no right to 
decline accepting such scripholder, as a shareholder. 8 But where 
false scrip had been issued, beyond the amount allowed in the char- 
ter, and the full number of shares allowed by the charter already 
registered, it was held the company could not upon that ground 
refuse to register the shares of such as had purchased the genuine 
scrip. 9 But we shall have occasion to say more upon this subject 
elsewhere. 10 

6. By the laws of some of the states a given number of persons 
associating, in a prescribed form, for particular purposes, as relig- 
ious, manufacturing, and banking purposes, and often for any 
lawful purpose, are declared to be a corporation. In such cases 
no application to the legislature is required. But, generally, rail- 
ways in this country have obtained special acts of incorporation. 
There is, in most of the states, no provision for any preliminary 
association, and these enterprises are, for the most part, carried 
forward, by individuals, or partnerships, and questions arising, in 
regard to the binding force of the acts of the promoters, either 
upon, or towards the corporation, must depend upon the general 
principles of the law of contract. 11 

7. By the general law of some of the states the petitioners are 
required to furnish surveys of the proposed route, properly delin- 
eated upon charts, by competent engineers, with estimates, and 
other information requisite for the full understanding of the sub- 
ject. And these profiles and plans are required, where the peti- 

7 Kidwelly Canal Co. v. Raby, 2 Price, 93 ; Great North of Eng. Railway v. 
Biddulph, 2 Railw. C. 401 ; s. c. 7 M. & W. 243, where the question is raised, 
but not determined. 

8 Midland G. W. Railway v. Gordon, 5 Railw. C. 76 ; s. c. 16 M. & W. 804. 

9 Daly v. Thompson, 10 M. & W. 309. 

10 Post, §§ 39, 47. 

11 Angell & Ames on Corporations, §§ 86-94. 

[*7] 



10 PRELIMINARY ASSOCIATIONS. PART I. 

tion is granted, to lie deposited in some public office, for inspection 
and preservation. 12 

s . Since the publication of the second edition of this work, the 
mode of procedure in obtaining parliamentary powers for railways, 
* in England, lias been considerably changed. The former laws 
havo been repealed, and the whole consolidated into one statute, 13 
called -The Companies' Act, 1862," which applies to other com- 
panies as well as railways. 

9. The usual course now is for the preliminary association to 
ster itself as a preliminary company under the Act of 1862, 

for the purpose of obtaining a special Act of Parliament. This is 
effected by the promoters signing a memorandum of association, 
in which the powers of the company are specially limited to certain 
acts or purposes. 

10. If the association be not registered under the statute so as 
to constitute it a corporation with limited powers, there may be 
danger that the individual members, who are active in promoting 
the enterprise, may incur the responsibility of general partners. 14 
But in England, it seems now settled that the promoters of rail- 
ways are not, ordinarily, to be held responsible, as partners, for 
the acts of each other. 15 

'- Laws of Mass. 1833, ch. 176; 2 Railroad Laws & Ch. 616; id. 657; Laws 
of Mass. 18-18, ch. 140 ; Laws of Rhode Island, 1836 ; 2 Rail. Laws & Ch. 838 ; 
Laws of Conn. 1849, ch. 37 ; id. 1853; Rev. Statutes of Maine, ch. 81, § 1 ; 1 
Rail. Laws & Ch. 305. Similar provisions exist in many of the other states. 
But they are very general, and ordinarily the plans furnished are so imperfectly 
ma le as not to afford much protection to land-owners. And a compliance with 
these requirements not being, in any sense, indispensable to the validity of 
special acts, they are probably not very strenuously enforced by legislative com- 
mittees, especially in cases where opposition is not made to the new incorpora- 
tion, which is not very common unless the project interferes with some rival 
■work. 

13 25 & 26 Vict. c. 89. 

14 Hodges on Railways (ed. 1865), 2. 

: Hamilton v. Smith, 5 Jur. (N. S.) 32; post, § 4, n. 11; Norris v. Cooper, 
3 II. Lds. Cas. 161. Statute 27 & 28 Vict. c. 121, facilitates, in certain cases, 
the obtaining of powers for the construction of railways. The act may be cited 
as "The Railways Construction Facilities Act, 1864." The recital to the pre- 
amble enumerates the cases to which the act is to apply ; it recites that it is 
expedient to facilitate the making of branch and other lines of railway, and de- 
viations of existing railways, and of railways in course of construction, and also 
the execution of new works connected with, or for the purposes of, existing rail- 
ways; and that the object aforesaid would be promoted, if, where all land-owners 

[*8] 



§ 3. CONTRACTS OF PROMOTERS NOT BINDING UPON COMPANY. 11 

♦SECTION II. 

Contracts of the Promoters not binding at laxo upon the Company. 

1. In this country, promoters only bind them- \ 3. But by consenting to a decree in equity 



selves and associates. 
2. Contracts of promoters not enforceable by 
company. 



setting up the contract, the company 
will be held to have adopted it. 



§ 3. 1. The promoters of railways, in this country, where the 
law makes no provision for the preliminary association becoming 
a corporation, can only bind themselves and their associates, at 
most, by their contracts. 1 The promoters are in no sense identi- 

and other parties beneficially interested are consenting to the making of a rail- 
way, or the execution of a work, the persons desirous of making or executing 
the same were enabled to obtain power to do so, on complying with the con- 
ditions of the general Act of Parliament, without being obliged to procure a 
special act. The promoters having contracted for the purchase of all the lands 
required for the railway, they are empowered to apply for a certificate from the 
Board of Trade, in the same manner, and subject to the same incidents, as ob- 
taining a certificate under the Railways Companies' Powers Act. The lines and 
works of a railway are sufficiently shown on the plans deposited by a black line, 
with dotted lines on each side, to mark the limits of deviation. Weld v. London 
& Southwestern Railway Co., 9 Jur. (N. S.) 510; s. c. 11 W. R. 448; 32 
Beav. 340. Where the deposited plans and sections specify the span and height 
of a bridge by which a railway is to be carried over a turnpike road, the company 
will not, in the construction of the bridge, be allowed to deviate from the plans 
and sections. Attorney-General v. Tewkesbury & Great Malvern Railway 
Company, 1 De G. J. & Sm. 423; 9 Jur. (N. S.) 951; s. c. 8 L. T. (N. S.) 
682. 

1 Moneypenny v. Hartland, 1 C. & P. 352. Abbott, C. J., said: "Before 
an act passes for su-jh a work as this, the surveyor and other persons employed 
on it look to the committee, or body of adventurers, who first employ them." 
s. p. Kerridge v. Hesse, -9 C. & P. 200; Doubleday v. Muskett, 7 Bing. 110. 
And one who attends the meetings of such preliminary association, and takes 
part, will ordinarily be precluded from denying his liability as a partner. Har- 
rison v. Heathorn, 6 Man. & Gr. 81 ; Sheffield, Ash. & M. Railway v. Wood- 
cock, 7 M. & W. 574. If the defendants have suffered themselves to be held 
out as partners in the enterprise, and engaged in carrying it forward, and others 
have performed service for the association, upon their credit, they are liable. 
Wood v. The Duke of Argyll, 6 Man. & Gr. 928 ; Steigenberger v. Carr, 3 id. 
191. But express proof is required of authority from the partners, or of a 
necessity to draw bills, in the conduct of the business, to justify the directors in 
drawing bills on the credit of the association. Dickinson v. Valpy, 10 B. & C. 

[*9] 



12 PRELIMINARY ASSOCIATIONS. PART I. 

cal* with the corporation, nor do they represent them, in any rela- 
tion of agency, and their contracts could of course only bind the 
company, so far as they should be subsequently adopted by it, as 
their successors ; much in the same mode and to the same extent, 
and under the same restrictions and limitations, as the contracts 
of one partnership bind a succeeding partnership in the same 
house. 

2. But a contract by a joint-stock association, that each member 
shall pay all assessments made against him, cannot be enforced 
by a corporation subsequently created, and to which, in pursu- 
ance of the original articles of association, the funds and all the 
effects of the former company have been transferred. 2 Nor is the 

128. From the foregoing cases, and Bell v. Francis, 9 C. & P. 66, and some 
Others, it would seem, that the directors and managing committee are always 
liable for services rendered such associations, on their employment and credit, 
and that such other members of the association are liable also, as the terms of 
the association, or their own active agency in the employment of servants and 
its, fairly justify such employes in looking to, for compensation. It was 
held, in Scott v. Lord Ebury, Law Rep. 2 C. P. 255, that the promoters were 
responsible for money expended in obtaining the act of parliament, notwithstand- 
ing the incorporation and the assumption of these acts by the company. And 
one of the promoters cannot in equity compel others to contribute to expenses 
incurred by him, unless he is willing to have all the expenses brought into one 
account and adjusted together. Denton v. Macniel,. Law Rep. 2 Eq. 352 ; post, 
§ 4, n. 11. In regard to admissions made by provisional committee-men, and 
others, who have taken part in instituting railway projects, some allowance is 
made in the English courts, for probable mistakes and misapprehensions, by 
those not well acquainted with the liabilities of such persons. Newton v. Belcher, 
6 Kailw. C. 38; s. c. 12 Q. B. 921. And where others have not acted upon such 
admissions, the party has been allowed to show that they were made under mis- 
take, either of law, or fact, and if so, the party has been held not to have in- 
curred any additional liability thereby. Newton v. Liddiard, 6 Railw. C. 42; 
s. c. 12 <,>. B. 'JJ~>. The rule laid down by Bailey, J., in Heane v. Rogers, 9 

B. & C. 577, upon this subject, is here expressly recognized by Lord Denman, 

C. J. "The general doctrine laid down in Heane v. Rogers, that the party is at 
liberty to prove that his admissions were mistaken, or untrue, and is not estopped, 
or concluded by them, unless another person has been induced by them to alter 
his condition, is applicable to mistakes, in respect of legal liability, as well as in 

ei t of fact." And this estoppel, it was held in the principal case, only ex- 
tends to parties and priviefe, to the particular transaction in which the admission 
was mad'-, and thai third parties having no interest in it, either originally or by 
derivation, can claim no benefit from it. This is in accordance with the estab- 
lished principles of the law of evidence, at the present time. See the opinion of 
the court in Strong v. Ellsworth, 26 Vt. 366. 

- Wallingford Manufacturing Co. v. Fox, 12 Vt. 304; Goddard v. Pratt, 16 

[*10] 



4. 



SUBSCRIBERS TO PRELIMINARY ASSOCIATION. 



13 



act of * all the corporators even, the act of the corporation, unless 
done in the mode prescribed by the charter and general laws of 
the state. 3 Nor can an incorporated company sustain an action at 
law, upon a bond executed to a preliminary association, by the 
name of the individuals and their successors, as the governors of 
the Society of Musicians, for the faithful accounting of A. B., their 
collector, to them and their successors, governors, &c, the com- 
pany being subsequently incorporated. 4 

3. But the company, by consenting to a decree against them, 
upon a bill to enforce a contract with the promoters, by which 
they stipulated to withdraw opposition in parliament, upon condi- 
tion that the company, when it came into operation, should take 
the land of the opposers of the bill at a specified price, and pay all 
the costs and expenses of the opposition until the time of the com- 
promise, were held to have adopted the agreement, whether it 
would have been otherwise binding upon them or not. 5 



SECTION III. 



Subscribers to the Preliminary Association inter sese. 



1. Liability for acts of directors limited by 

terms of subscription. 

2. Association not binding until preliminaries 

are complied with. 

3. Contracts, how far controlled by oral rep- 

resentations of directors. 

4. Subscribers not excused from paying calls 

by contract of directors. 



5. Not liable for expenses, except by terms of 

agreement. 

6. Deeds of association generally make pro- 

vision for expenses. 

7. One ivho obtains shares, ivithout executing 

the deed, not bound to contribute, 
n. 11. No relation of general partnership 
subsists between subscribers. 



§ 4. 1. The project for a railway being set on foot by a pro- 
visional committee of directors or managers, the subscribers may 
insist iipon the terms' of subscription. The subscribers are not 
bound by any special undertaking of the directors, or any portion 



Pick. 412, where it is held, the original copartners are still liable, upon contracts 
made with third parties, ignorant of the dissolution by the effect of the incorpora- 
tion, the company having carried on business in the name of the partnership. 
8 Wheelock v. Moulton, 15 Vt. 519. 

4 Dance v. Girdler, 4 Bos. & P. 34. See Gittings v. Mayhew, G Md. 11". 

5 Williams v. St. George's Harbor Co., 2 De G. & J. 547; s. c. 4 Jur. (N. 
S.) 1066. 

[•11] 



1 4 PRELIMINARY ASSOCIATIONS. PART I. 

of them, beyond or aside of the powers conferred by the terms of 
the deed or contract of association. 1 

2. And the association is not binding, until the provisions by 
* which it is, by its own terms, to become complete, are complied 
with. \i' before that the scheme be abandoned, the provisional 
subscribers, or allottees, may recover back their deposits of the 
provisional committee, in an action for money had and received. 2 
So, too, if one is induced to accept of shares in the provisional 
company, by fraudulent representations, he may recover back the 
whole of his deposits. 3 

3. But if one actually become a subscriber, he is bound by the 
terms of subscription, without reference to prior oral representa- 
tions, and must bear a portion of the expense incurred, if the sub- 
scription so provide. 4 But if the directors, in such provisional 
company, in order to induce subscriptions, promise the subscriber, 
that in the event of no charter being obtained, he shall be repaid 
his entire deposit, this contract is binding upon them, and may be 
enforced by action, notwithstanding the subscriber's agreement 
authorized the directors to expend the money in the mode they 
did. 5 

4. But the contract of the directors will not excuse the sub- 
scriber from paying calls, if the terms of the subscriber's agree- 
ment require it. 6 The contract of the directors in such case, and 
the deed of association, are wholly independent of each other, and 
neither will control the other. 7 

5. But it has been held, that persons, by taking shares in a 
projected railway, do not bind themselves to pay any expense 
incurred, unless it is so provided in the preliminary contracts of 

1 Londesborough ex parte, 27 Eng. L. & Eq. 292 ; s. c. 4 De G. M. & G. 
411 ; Ea parte Mowatt, 1 Drewry, 247. 

- Walstab o. Spottiswoode, 4 Railway C. 321 ; s. c. 15 M. & W. 501. 

3 Jarrett v. Kennedy, 6 C. B. 319. 
W aits v. Salter, 10 C. B. 477. And if one subscribe the agreement and 
parliamentary contract, he will be liable, although he have not received the 
shares allotted to him or paid the deposits. Ex parte Bowen, 21 Eng. L. & Eq. 
422. 

' Mowatt v. Londesborough, 25 Eng. L. & Eq. 25, and 3 El. & Bl. 307; s. c. 
in error, 28 Eng. L. & Eq. 119, and 4 El. & Bl. 1 ; Ward v. Same, 22 Eng. L. 
& Eq. 402. 

8 Ex parte Mowatt, 1 Drewry, 247. 

3 Dover & Deal Railway, ex parte Mowatt, 19 Eng. L. & Eq. 127; s, c. 1 
Drew. _ 17. 

[•12] 



§ 4. SUBSCRIBERS TO PRELIMINARY ASSOCIATION. 15 

association, or the expense is incurred with their sanction and 
upon their credit. 8 And even where such shareholder consents to 
act on the provisional committee, it will not render him liable, as 
a contributory, to the expense of the company. 9 

* 6. But in general, the form of the deeds of association is such, 
that if one takes shares without reservation, he is to be regarded 
as a contributory to the expense, 10 and especially where he acts as 
one of the provisional committee, and also accepts shares allotted 
to him. 10 

7. But one who had obtained shares in a projected railway com- 
pany, but without executing the deed of settlement, or any deed 
referring to it, was held not liable to contribute to the expense 
incurred, in attempting to put the company in operation, 11 and 
especially if the acceptance of the shares was conditional, upon the 
full amount of the capital of the company being subscribed, which 
was never done. 11 

8 Maudslay ex parte, 1 Eng. L. & Eq. 61; s. c. 14 Jur. 1012. 

9 Carmichael ex parte, 1 Eng. L. & Eq. 66; s. c. 14 Jur. 1014; Clarke ex 
parte, id. 69 ; s. c. 20 L. J. (N. S.) ch. 14. 

10 Burton ex parte, 13 Eng. L. & Eq. 435 ; s. c. 16 Jur. 967 ; Markwell ex 
parte, 13 Eng. L. & Eq. 456 ; s. c. 5 De G. & S. 528 ; UpfilPs Case, 1 Eng. L. 
& Eq. 13 ; s. c. 14 Jur. 843 ; Watts v. Salter, 12 Eng. L. & Eq. 482. See also 
St. James's Club in re, 13 Eng. L. & Eq. 589; s. c. 10 C. B. 477, as to the 
effect of proof of the subscriber being present when a resolution is passed. 

11 The Galvanized Iron Co. v. Westoby, 14 Eng. L. &Eq. 386 ; S. C. 8 Exch. 
17. It was formerly considered that all persons engaged in obtaining a bill in 
parliament for building a railway, were partners in the undertaking, and for that 
reason a subscriber, who acted as their surveyor, could not maintain an action 
for work and labor, done by him in that character, against all or any one of the 
subscribers. Holmes v. Higgins, 1 B. & C. 74. See also Goddard v. Hodges, 
1 C. & M. 33. But it is now regarded as well settled, in all the courts in West- 
minster Hall, that there subsists between the subscribers to such an enterprise no 
relation of general partnership whatever, and no power to bind each other for 
expenses incurred in carrying forward the enterprise. Each binds himself only 
by his own acts and declarations, unless he acts by virtue of some authority con- 
ferred by the deeds of association. Parke, Baron, in Bright v. Hutton, 3 H. L. 
Cases, 341, 368. And an agreement, aside of the deed of association, that one 
of the promoters shall indemnify another, is held valid. Connop v. Levy, 5 
Railw. C. 124; s. c. 11 Q. B. 769. But a general indemnity against costs will 
only extend to costs in suits lawfully brought. Lewis v. Smith, 2 Shelford (Ben- 
nett's ed.), 1030. And in regard to liability, for expenses incurred in carrying 
forward railway projects, it often happens, that one who has been active may 
thereby make himself liable to tradesmen and others who have performed service 
in behalf of the enterprise, upon the expectation he would see them paid. In 

[*13] 



llj PRELIMINARY ASSOCIATIONS. PART I. 

♦SECTION IV. 
rUract8 of the Promoters adopted by the Company. 

1. Liability may b transferred with assent of i n. '■'>. Powers of provisional company to con- 
}. But not unless that i tract limited by statute. 

§ 5. 1. The company when fully incorporated may assume the 
liabilities of the preliminary association, incurred in obtaining 

Lake r. Duke of Argyll, G Q. B. 477, 479, Denman, C. J., said: " But when 
juts, .us meet to prepare the measures necessary for calling the society into exist- 
ence, attendance on such meeting, and concurrence in such measures, may be 
strong evidence, that any individual there present, and taking part in the pro- 
ceedings, held himself out as a paymaster to all who executed their orders; and 
though not liable as a member or shareholder, yet his declared intention to 
become the president, or a member, in whatever event, or to take a share under 
any conditions, may be material evidence to show that he authorized contracts 
with those whose services were required by what may be called the constituent 
body. 11 

But a charge to the jury, that before surveyors, in such case, could recover of 
the provisional committee, they r must be satisfied that defendants did, by them- 
selves or their agent, employ the plaintiff to do the work, or that, being informed 
of their having done it, on their credit, by the employment of some one not 
authorized, they consented to be held liable, was affirmed in the Exchequer 
( lumber. Nevins v. Henderson, 5 Railw. C. 684; Williams v. Pigott, 5 Railw. 
( . 544; s. c. 2 Exch. 201. See also Spottiswoode's Case, 39 Eng. L. & Eq. 
520. Since the publication of the second edition of this work, the English 
courts have made numerous decisions bearing upon the general subject discussed 
in this note. In Maddick v. Marshall, 10 Jur. (N. S.) 1201, the defendant was 
employed by the parties in interest to act as provisional director in connection 
with others, under the assurance from the solicitor of such parties, that they 
wen- safe and would incur no personal responsibility; and the directors there- 
upon appointed the principal party in interest secretary, and passed a resolu- 
tion to advertise, which resolution was signed by the defendant as director. The 
plaintiff, upon taking the order, was shown the resolution certified by the defend- 
ant as authority for the order. The court held this testimony for the jury to 
consider, tending to show a personal undertaking by defendant, and that they 
could not disturb a verdict against him. See also Swan v. The North British 

dasian I !o., 7 H. & X. 003; s. c. 8 Jur (N. S.) 940, as to what acts will 
cnatc an estoppel in such cases. Under the English statute, all the subscribers 
an- constituted directors until they designate who shall act in that capacity, and 
have authority to appoint one of their number to an office in the company. Eales 
V. The Cumberland Black Lead Mine Co., 6 II. & N. 481 ; s. c. 7 Jur. (N. S.) 
169. It seems to be considered essential, in order to fix the liability of a sub- 

[*14] 



§ 5. CONTRACTS OP PROMOTERS ADOPTED. 17 

the special act, or as is sometimes the case, where the association 
* make an assignment of their property. 1 But even an express 
provision in the charter, that the company shall he solely liable 
for the debts of the association, will not exonerate the association 
unless by the consent of the creditors. 2 But when the company 
assume the debts of the association, by the assent of their cred- 
itors, they will be relieved. 3 But where the plaintiff contracted 

seriber to the articles of association on that ground alone, that the subscription 
should be in his own handwriting, and not by procuration merely. Richardson 
ex parte, 4 Law. T. (N. S.) 589. The company are not bound to give notice of 
the allotment of shares in order to bind the subscriber to take them. It is his 
duty to take notice of the allotment, and to make payment of all future dues 
fixed by law, or the terms of the contract. Bloxam ex parte, 10 Jur. (N. S.) 
814 ; s. c. 33 Beav. 529. But in order to render the allottee liable to pay calls 
on shares, they should be specifically numbered and appropriated by number. 
Irish Peat Co. v. Phillips, 7 Jur. (N. S.) 413 ; s. c. affirmed 7 Jur. (N. S.) 1189, 
1 B. & S. 598. But semble he may be estopped to deny his membership. So, 
too, it was considered in this case, that in order to bind an associate to pay future 
calls, it was essential that he should have subscribed the deed of association. 
The provision of the English statute as to the period within which the register 
of shareholders shall be made and sealed is regarded as directory, so far as the 
liability of shareholders is concerned, and they will not be exonerated from re- 
sponsibility by a failure of the company to comply with the direction. W. N. W. 
Co. v. Hawksford, 11 C. B. (N. S.) 456; 8 Jur. (N. S.) 844 in Exchequer 
Chamber. The company, when fully incorporated, may sue in their own name 
upon calls made by the directors of the preliminary incorporation. Hull Co. v. 
Wellesley, 6 H. & N. 38. A registered shareholder in a company, which was 
afterwards incorporated with a new company, is entitled to be regarded as a 
shareholder in the new company, if the act of incorporation so provide, although 
he may not have exchanged his certificate for shares in the old company for those 
in the new company. Spackman v. Lattimore, 3 Giff. 16 ; s. c. 7 Jur. (N. S.) 
179. It was further decided in this case, that the subscribers could not charge 
their own subscriptions against the company as money advanced for their benefit. 
Where a subscriber has paid for the expenses of the promoters all that the terms 
of association required, he cannot be charged further, because he made the pay- 
ment without taxation. Croskey v. Bank of Wales, 4 Giff. 314. The property in 
shares vests in the subscriber upon the execution of the deed and complete regis- 
tration of the company, and the delivery of scrip certificates is not requisite 
to vesting the shares, but they are to be regarded merely as the indicia of prop- 
erty. Hunt v. Gunn, 3 F. & F. 223. 

1 Haslett's Ex'rs v. Wotherspoon, 1 Strob. Eq. 209; Salem Mill Dam Co. v. 
Ropes, 6 Pick. 23. 

2 Witmer v. Schlatter, 2 Rawle, 359. 

3 Whitwell v. Warner, 20 Vt. 425. But by the English statutes companies 
provisionally registered are not allowed to make any contract, not indispensable 
to carrying forward the project to full registration. And where the directors of 

2 [*15j 



18 PRELIMINARY ASSOCIATIONS. PART I. 

* with the promoters of a railway bill to bear the costs of obtaining 
it. and the bill passed with the usual clause that the costs of 
obtaining it should be borne by the .company, it was nevertheless 
held, that the contract would preclude the recovery of the costs of 
the corporation. 4 



SECTION V. 

//- ■ • //tracts of the Promoters may be adopted by the Company. 

( 'annot assume the benefit without the burden. 

§ 6. Wherever a third party enters into a contract with the 
promoters of a railway, which is intended to enure to the benefit 
of the company, and they take the benefit of the contract, they 
will be bound to perform it, upon the familiar principle that one 
who adopts the benefit of an act, which another volunteers to per- 
form in his name and on his behalf, is bound to take the burden 
with the benefit. 1 

such a company contracted for plans, sections, and books of reference, to the 
value of £3,000, it was held a violation of the statute and illegal, and that no 
recovery could be had upon it. Bull v. Chapman, 20 Eng. L. & Eq. 488 ; s. C. 
8 Exch. Ill; 7 & 8 Vict. c. 110. A contract made between the projector and 
the directors of a company provisionally registered, but not in terms made con- 
ditional on the completion of the company, is not binding upon the subsequently 
completely registered company, although ratified and confirmed by the deed of 
settlement. Gunn v. London and Lancashire Assurance Co., 12 C. B. (N. S.) 
694. The promoters of a railway company agreed with the tenant for life of set- 
tled estates to pay him £20,000 for obtaining his support to their scheme. This 
agreement was afterwards adopted by the provisional committee of a second 
company, which stood in place of the first. The second company's bill passed, 
and an indenture was made under the company's seal, by which, on the ground 
of doubts as to the absolute right of the tenant for life to the £20,000, the com- 
pany was to retain the sum and pay interest on it. Interest was paid for some 
years, but at length the company refused to make any further payment. Upon 
a bill by a subsequent tenant for life of the estates to have the company's liability 
declared, and obtain payment of the £20,000 for the benefit of the settled estate : 
Ibid, thai the contract was ultra vires, and could not be enforced. Held, also, 
that this was not within the meaning of the Companies' Clauses Consolidation 

\ ] ■ 65, as being in respect of "costs incurred in obtaining the special act, 
and incident thereto." Lord Shrewsbury v. North Staffordshire Railw. V. C. 

Kindersley ; L2 -Jur. (N. S.) 6;>. 

* Savm v. llylake Railway, Law Rep. 1 Exch. 9 ; s. c. Law Rep. 1 Eq. 593. 
1 Gooday v. The Colchester & Stour Valley Railway, 15 Eng. L. & Eq. 596 ; 

[*16] 



§ 7. CONTRACTS BETWEEN PROMOTERS AND OPPOSERS. 19 



♦SECTION VI. 

Contracts between the Promoters and Opposers of a Bill for the 
Charter of a Railway. 

1. English cases numerous. I 2-5. Lord Eldon's opinion, in case qfVaux- 

hall Bridge Co. 

§7. 1. The cases in the English books upon the subject of 
contracts between the promoters of railway projects in parliament 
and those who have counter interests, and who are ready to per- 
sist in opposition to such projects unless they can secure some 
compromise with the promoters, are considerably numerous, and 
involve a question of no inconsiderable importance. We shall 
therefore examine them somewhat in detail. 

2. One of the earliest cases upon this subject 1 was decided by 
the Lord Chancellor, Cottenham, upon full argument, and great 
consideration, as early as 1836. But as this case professes to 
rest mainly upon a leading opinion of Lord Chancellor Eldon? 
upon a somewhat analogous subject, it may not be improper here 
to give the substance of that decision. 

3. The application to parliament for the plaintiffs' company, if 
granted, it was conceded, would injuriously affect the tolls upon 
another bridge not far distant. The proprietors of this bridge 
were opposing the plaintiffs' grant before the parliamentary com- 
mittee, with a view to secure some indemnity against such loss, to 
be specially provided for by the plaintiffs' act, upon condition that 
the plaintiffs should open their bridge for the public travel. The 
promoters of the plaintiffs' grant and the proprietors of the rival 
bridge had come to an agreement in regard to the extent of the 
indemnity, and upon naming it to the committee, with a view to 
have it inserted in the act, one member of the committee objected 
to such course, as calculated to sanction improper influences upon 

s. c. 17 Beav. 132; Preston v. Liverpool & M. Railway, 7 Eng. L. & Eq. 124; 
8. c. 1 Sim. (N. S.) 586 ; Edwards v. Grand Junction Railway, 1 Mylne & Cr. 
650. The cases in support of this general proposition are very numerous, and 
will be more fully examined in the next section. 

1 Edwards v. The Grand Junction Railway, 1 Mylne &*Cr. 650. 

* Vauxhall Bridge Co. v. The Earl of Spencer, Jacob, 64 (1821). 

[*17] 



20 PRELIMINARY ASSOCIATIONS. PART I. 

public legislation. The promoters of the new bridge then pro- 
posed to the proprietors of the rival one to give them security for 
the proposed indemnity, by way of bond with surety which should 
quiet their opposition, and the bill pass. This was acceded to and 
the securities given, and the bill passed accordingly. The opinion 
*of Lord Eldon is an affirmance of the decision of the Vice-Chan- 
cellor, retaining the bill till the matter should be tried at law. 3 
But the intimations of the Chancellor indicate certainly that he 
regarded the contract as perfectly valid, and the bill was after- 
wards dismissed by consent. Lord Eldon said: "In the view I 
take of the case, it will not be an obstacle to the plaintiffs that 
they do not come with clean hands, for it is settled, that if a trans- 
action be objectionable, on grounds of public policy, the parties to 
it may be relieved ; the relief not being given for their sake, but 
for the sake of the public. Thus it is in the case of marriage brocage 
bonds. The principle was much discussed in the case of Neville 
v. Wilkinson, 4 where Mr. Neville being about to marry, inquiry 
was made by the lady's father to what extent he was indebted. 
Wilkinson, who was applied to at the desire of Neville, concealed 
a demand which he had against him ; after the marriage he 
attempted to recover it, and a bill was filed to restrain him. I 
remember arguing it with obstinacy, but Lord Thurloiv thought 
that, having made a misrepresentation, a court of equity must 
hold him to it, and that, although the plaintiff was a particeps 
crimlnis ; so it was held in the case of Shirley .v. Ferrers, 5 in the 
Exchequer. 

4. " It is argued that this was a fraud upon the legislature, 
but I think it would be going a great way to say so, for non 
constat, if it had been pushed to the extent of taking the opinion 
of the house, that it might not have passed the bill in its former 
shape. It cannot be said that the agreement is contrary to legis- 
lative policy, because one member of the committee makes an 
objection, which is not sanctioned or known by the house at large. 
Indeed, such things are constantly done, and with the knowledge 
of the house ; for they are in the habit of saying, with respect to 
these private acts, that though they will not of themselves pass 
them into laws, yet they will if the parties can agree ; and matters 

3 s. c. 2 ^lad. 356. * 1 Br. C. C. 543. 

" Cited 11 Vesey, 536. 

[•18] 



§ 7. CONTRACTS BETWEEN PROMOTERS AND OPPOSERS. 21 

sometimes are permitted to stand over to give an opportunity of 
coming to a settlement. 

5. " It is then said, that the money was to be paid ont of the 
funds of the Vauxhall Bridge Company, which by the act were 
devoted to other purposes. The proprietors of Battersea Bridge, 
however, say that they have nothing to do with the funds of the 
* company; that they have contracted with a number of inde- 
pendent persons, to whom they look for the payment of the bonds ; 
and if the obligors agree with the company to pay the bonds with 
their money, what have the obligees to do with that unless by ante- 
cedent contract ? They had no demand in law or equity against 
the company. If, then, the Vauxhall proprietors choose to sanc- 
tion what the legislature has not directed, namely, the indemnify- 
ing the persons who have become obligors in the bonds, that is one 
thing ; if they have not, then the individual officers who have paid 
the money over in discharge of the bonds ought not to have paid it, 
and may now be called on to pay it back ; as between them and 
the company, the money must be considered as being still in their 
hands. If the transaction is to be considered merely as between 
the obligors and the obligees, the latter not refusing the money 
from whatever hands it came, but not entangling themselves in any 
contracts between the obligors and the company, then the obligees 
would not be affected by those contracts. But if so, still the case 
depends upon the validity of the bonds ; for I think the Vauxhall 
Bridge Company may with propriety say, if the money was paid in 
consequence of an arrangement for the discharge of the bonds, and 
if the bonds were bad, that then it may be called back. When the 
cause was heard by the Vice-Chancellor, he did that which he was 
not bound to do ; for he certainly had jurisdiction, and might have 
decided upon the validity of the bonds. But he directed that to 
be tried at law, where all the objections may be raised upon the 
pleadings in the same manner as here ; and considering that in 
matters of this nature, both courts of law and equity have jurisdic- 
tion exercised upon the same principles, I do not see any occasion 

to vary the decree." 

[*19] 



PRELIMINARY ASSOCIATIONS. PARTI. 

SECTION VII. 
of the Promoter* enforced in Equity. 

1-3. Case of Edwards v. Grand Junction Raihcay. 

§ 8. 1. Edwards v. The Grand Junction Railway, 1 is an appli- 
cation to a court of equity to enforce such a contract against a 
railway company, whose charter was obtained by means of the 
quieting opposition in parliament, in conformity to the contract. 
* The trustees of a turnpike road were opposing in parliament the 
grant to the defendants, unless their rights were guarantied in 
such grant. The promoters of defendants' charter, and the trustees 
of the turnpike road, came to an agreement in regard to the proper 
indemnity to be inserted in the act, but to save delay it was secured 
by way of contract, on the part of the promoters, providing for a 
renewal of the covenants, on the part of the company, in a brief 
time specified, after it should go into operation. The controversy 
in the present case was with reference to the width of a bridge, by 
which the railway proposed to convey the turnpike road over their 
track. The contract stipulated that such viaducts should be of the 
same width as the road at that point, which was fifty feet. The 
charter only required them to be of the width of fifteen feet, and 
the company having declined to assume the contract of the promot- 
ers, were proceeding to build the bridges thirty feet wide only. 
The bill prayed an injunction, which was granted by the Vice- 
Chancellor, and confirmed by the Chancellor, who held that an 
agreement to withdraw or withhold opposition to a bill in parliament 
is not illegal ; and a court of equity will enforce a contract founded 
upon such a consideration ; and that an incorporated company will 
be bound by the agreement of its individual members, acting, 
before incorporation, on its behalf, if the company had received 
the full benefit of the consideration, for which the agreement stipu- 
lated, in its behalf. The opinion of the Lord Chancellor will best 
Bhow the grounds of the decision. "But then the railway com- 
pany contend that they, being now a corporation, are not bound 
by any thing which may have passed, or by any contract which 

1 1 My. & Cr. 650. 

[*20] 



§8. CONTRACTS ENFORCED IN EQUITY. 23 

may have been entered into by the projectors of the company 
before their actual incorporation. 

2. " If this proposition could be supported, it would be of ex- 
tensive consequence at this time, when so much property becomes 
every year subjected to the power of the many incorporated com- 
panies. The objection rests upon grounds purely technical, and 
those applicable only to actions at law. Jt is said that the company 
cannot be sued upon this contract, and that Moss entered into a 
contract, in his own name, to get the company, when incorporated, 
to enter into the proposed contract. It cannot be denied, however, 
that the act of Moss was the act of the projectors of the railway ; 
it is, therefore, the agreement of the parties who were seeking an 
act of incorporation, that, when incorporated, certain things should 
* be done by them. But the question is, not whether there be any 
binding contract at law, but whether this court will permit the 
company to use their powers under the act, in direct opposition to 
the arrangement made with the trustees prior to the act, upon the 
faith of which they were permitted to obtain such powers. If the 
company and the projectors cannot be identified, still, it is clear 
that the company have succeeded to, and are now in possession of, 
all that the projectors had before ; they are entitled to all their 
rights, and subject to all their liabilities. If any one had in- 
dividually projected such a scheme, and in prosecution of it had 
entered into arrangements, and then had sold and resigned all his 
interest in it to another, there would be no legal obligation between 
those who had dealt with the original projector and such purchaser ; 
but in this court it would be otherwise. So here as the company 
stand in the place of the projectors, they cannot repudiate any 
arrangements into which such projectors had entered. They can- 
not exercise the powers given by parliament to such projectors, in 
their corporate capacity, and at the same time refuse to comply 
with those terms, upon the faith of which all opposition to their 
obtaining such powers was withheld. The case of The East Lon- 
don Water Works Company v. Bailey, 2 was cited to prove that, 
save in certain excepted cases, the agent of a corporation must, 
in order to bind the corporation, be authorized by a power of 
attorney ; but it does not therefore follow that corporations are 
not to be affected by equities, whether created by contract or 
otherwise, affecting those to whose position they succeed, and 

2 -4 Bins- 283. 

[*21] 



24 PRELIMINARY ASSOCIATIONS. PARTI. 

affecting rights and property over which they claim to exercise 
control. What right have the company to meddle with the road at 
all? The powers under the act give them the right ; but before 
that right was so conferred, it had been agreed that the right 
should only be used in a particular manner. Can the company 
exercise the right without regard to such an agreement ? lam 
clearly of opinion that they cannot ; and having before expressed 
my opinion that the contract is sufficiently proved, it follows that the 
injunction granted by the Vice-Chancellor is in my opinion proper, 
and thai this motion to dissolve it must be refused with costs." 

3. * 4 The case of The Vauxhall Bridge Company v. Earl Spen- 
cer, 3 was cited for the trustees ; and it certainly is a strong 
authority in favor of their * claim ; Lord Mdon having in that 
case expressed an opinion, that the withdrawing opposition to a 
bill in parliament might be a good consideration for a contract, 
and having recognized the right of an incorporated company to 
connect itself with a contract made by the projectors of the com- 
pany, before the act of incorporation. On the other hand Dance v. 
Girdler, 4 was cited for the railway company ; but that was an attempt 
to make a surety liable beyond his contract ; and Sir James Mans- 
field, in his judgment in that case, relied much upon the want of iden- 
tity between the society with whom the contract was made and the 
corporation ; and the question there was as to a legal liability, not 
as to an equitable right. It was contended for the railway company 
that to enforce this equity would be unjust towards the share- 
holders of the company who had no notice of the arrangement. 
To this two obvious answers may be made : first, that the court can- 
not recognize any party interested in the corporation, but must 
look to the rights and liabilities of the corporation itself ; and, 
secondly, that there is nothing in the effect of the injunction incon- 
sistent with the provisions of the act ; for although the act provides 
that bridges shall not be less than fifteen feet in width, it does not 
provide that they shall not be made wider. The company might 
under this act clearly agree that this or any other bridge should 
be fifty feet wide." 

• 1 2 Mad. 356, Jac. 64 (4 Cond. Cha. Rep. 28). 
4 1 Bos. & Pull. N. R. 34. 
[*22J 



§ 9. CONTRACTS OP PROMOTERS BIND THE COMPANY. 25 

SECTION VIII. 

Contracts of the Promoters binding upon the Company at Law. 
1-3. Case of Howden v. Simpson. 

§9. 1. We have next in order of time the important case of 
Simpson v. Lord Howden, 1 before the Master of the Rolls, and the 
Lord Chancellor on appeal, where it is held, that equity will not 
interfere to decree the surrender of an illegal contract, where the 
illegality appears upon the face of the contract, the remedy at law 
being adequate. We have then the same case, at law, before the 
Queen's Bench, 2 and decided, on full argument, where it is held, 
that a contract to pay Lord Howden .£5,000, in consideration of 
* bis withdrawing opposition to a bill for incorporating " The York 
& North Midland Railway Company," he being a peer in par- 
liament, and owning estates in the vicinity of the proposed line, 
was illegal, being a fraud upon the legislature. This decision was 
subsequently reversed in the Exchequer Chamber. 3 The case be- 
ing the leading case upon the subject, at law certainly, may require 
a more extended statement. The agreement under seal, between 
the plaintiff and defendant (the case now standing, Howden v. 
Simpson), recited that a company had been formed for making a 
railway ; that defendants were proprietors ; that a bill had been 
introduced into parliament, according to which the line would pass 

1 1 Railway Cases, 326 (1837) ; 1 Keen, 583 ; 3 Mylne & Cr. 97. 

2 10 Ad. & Ellis, 793. 

3 The case was reversed mainly on the ground that the plea did not allege 
that the parties, at the. time of entering into the contract, intended to keep it 
secret from the legislature. 10 Ad. & Ellis, 793; 1 Railw. C. 347. But the 
Exchequer Chamber held, that the agreement on the face of it was valid, and that 
the plaintiff was not bound to communicate to the legislature the bargain he had 
made with the company, and that a member of the legislature could make any 
terms for the sale of his land, and compensation for injury to his comforts and 
property, which it is lawful for a private individual to make. The judgment of 
the Exchequer Chamber was affirmed in the House of Lords, on full argument, 
before the Chancellor, Lord Lyndhurst, Lord Brougham, and in the presence of 
the- two chief justices, and ten of the judges. 3 Railw. Cas. 294; s. c. 9 CI. & 
Fin. 61. But Lord Campbell adhered to his former opinion that the contract 
must have been held illegal, if it had appeared that it was an element in the con- 
tract that it should be kept secret, and not communicated to parliament. 

[*23] 



26 PRELIMINARY ASSOCIATIONS. PARTI. 

through plaintiff's estates and near his mansion, and that he was 
a dissentient, and opposed the passing of the bill ; that defendants 
had proposed that, if he would withdraw his opposition, and assent 
to the railway, they would endeavor to deviate the proposed line: 
and plaintiff agreed that, on condition of the stipulations in the 
agreement being performed, he did thereby withdraw his oppo- 
sition and give his assent; and defendants covenanted that in case 
the then hill should be passed in the then session, they would, in 
six months after it received the royal assent, pay plaintiff £5,000 
as compensation for the damage which his residence and estates 
would sustain from the railway passing according to the deviated 
line, exehisive of and without prejudice to further compensation to 
plaintiff, in the event of the deviated line not being ultimately 
adopted and without prejudice to such further compensation for 
any damage as in the agreement after mentioned. 

2. Plaintiff declared in debt, and averred that he withdrew his 
opposition to the bill, which passed into a law in the then session, 
* that six months had since elapsed, but that defendants had not 
paid the £5,000. 

3. Plea, that the railway, at the time of making the agreement, 
and according to the act, was intended to pass through the lands 
of divers individuals ; that the agreement was made privately and 
secretly by the parties thereto, without the consent or knowledge 
of the said individuals, and was concealed from them continually 
until the act was passed, and was not disclosed to, or known in 
parliament, and was concealed from the legislature during the 
passing of the act; and that plaintiff at the time of passing the 
act and still, was a peer of parliament. 



SECTION IX. 

What Contracts between the Promoters of Railways and Others will 
be enforced, either in Law or Equity, against the Contracting 
Parties <>r the Company. 

1. Contract to take land of opposing party. | 2. Contract prejudicial to the public. 

§ 10. 1. Since the decision of Howden v. Simpson, in the Ex- 
chequer Chamber, and the House of Lords (1842), the English 
[•24] 



§ 11. CONTRACTS OF PROMOTERS ENFORCED. 27 

courts seem to have acquiesced in the principles there established, 
until a very recent period. The validity of such a contract is 
recognized, in regard to the company purchasing the interest of 
the lessee of lands near the line of the proposed railway. 1 And 
where the promoters of one railway entered into an agreement with 
a land-owner on the proposed line to take his land at a specified 
price (20,0002.), by which he was induced to withdraw opposition ; 
and the promoters of a rival line, who proposed also to pass 
through the same land, had petitioned for a charter, and the merits 
of the two projects were, under the sanction of the committee of 
the House of Commons, referred to arbitration, and the solicitors 
of the two bills agreed, that the adopted line should take the en- 
gagements entered into with the land-owners, by the rejected line, 
it was held, that the second company prevailing, were bound, as a 
condition of entering upon the lands of plaintiff, to fulfil the terms 
of the agreement of the first company. 2 

* 2. And where one railway company was prohibited from open- 
ing their line for traffic, until they had built a branch railway, 
connecting their line with that of another company, it was held, 
that a court of equity was bound to enforce the prohibition, on 
motion of the other company, though the probable result would be, 
to cause inconvenience to the public, and not to benefit the other 
company. 3 



SECTION X. 
Courts of Equity will enforce Contracts with the Promoters. 

1. Bona fide contract not evading statute, i n. 3. Statement of English cases, 
valid. 

§ 11. 1. The English courts of equity do not hesitate to restrain 
railways from proceeding to take land under their compulsory 
powers, where the proprietor of the estates had surceased opposi- 
tion to the bill, by an arrangement with the projectors, by which 
they stipulated that the company should pay a certain sum, which 

1 Doo v. The London and Croydon Railway, 1 Railw. C. 257 ; s. c. 3 Jur. 258. 

2 Stanley v. The Chester and Birkenhead Railw., 1 Railw. C. 58 ; 9 Simons, 264. 
8 Cromford and High P. Railway v. Stockport, D. & W. Bridge Railway, 24 

Beav. 74; s. c. 29 Law Times, 245. 

[*25] 



28 PIIKLIMINARY ASSOCIATIONS. PARTI. 

it had declined to do. This was done notwithstanding the pro- 
prietor was a peer of parliament, and notwithstanding v the tender 
of an undertaking, on the part of the company, not to enter upon 
the land until the further order of the court, and notwithstanding 
the time, within which the company, by their charter, were author- 
ized to take land would have expired, before the hearing of the 
cause. 1 And although this case is questioned by some writers, 2 
the Learned Lord Chancellor St. Leonards said the cases establish 
the proposition, that a bona fide contract of this sort, not evad- 
ing- the act of parliament, but enabling the company to assist its 
views, and carry the act into effect, was valid, without reference to 
the reasonableness of the amount agreed to be paid. 3 

1 Lord Petre ». Eastern Counties Railway Co., 1 Railw. C. 462. 

1 Shelford, -100. 

3 Hawkes v. Eastern Counties Railway Co., 1 De G. M. & G. 737 ; s. c. 
15 Eng. L. & Eq. 358; s. c. before the Vice-Chancellor, 3 De G. & S. 314; 
8. c. 4 Eng. L. & Eq. 91, where it is considered that a railway company, 
having agreed to purchase an estate, although moved to do so for the quiet- 
ing of opposition to a bill before parliament to enable them to extend a branch 
in a certain direction, which was subsequently abandoned, were nevertheless 
bound to perforin their agreement with the owner of the estate. See also 
Shelford on Railways. 400. The case of Hawkes v. The Eastern Counties 
Railway < 'o. came before the Lord Chancellor, St. Leonards, on appeal from 
the Vice-Chancellor in 1852, where the whole subject of the legality and bind- 
ing character of this class of contracts is learnedly discussed, as well as the 
propriety of decreeing specific performances, and most of the cases elaborately 
and learnedly reviewed and compared. The conclusion to which that eminent 
judge- arrives is, that even in a case where the company were not able to carry 
their project into full effect, but had abandoned it, they were nevertheless bound 
specifically to perform contracts of this kind, and that it was no objection to 
decrcen,- specific performance, that it would involve the necessity of paying the 
price of the land out of the general funds of the company, which had been raised 
for provisional purposes merely, and with no view of ultimately purchasing land 
and building the road; and that the land could be of no use to the company 
under present circumstances. One can scarcely fail to perceive in this case, that 
a principle, perhaps sound and just under some circumstances, is here pushed 
quite to its extreme verge. Damages at law might have been the more proper 
disposition of all interests concerned. 

The opinion of the Lord Chancellor is a masterly exposition of the view which 
he adopts. After disposing of the preliminary questions he proceeds: " In the 
case ol Webb V. The Direct London and Portsmouth Railway, 1 De G. M. & G. 
52] : 8. C. 9 Eng. L. <V Eq. 2i'J, there was originally a decree for specific perform- 
ance, and alter 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 

[*25J 



§ 12. CONTRACTS ENFORCED IF RAILWAY ABANDONED. 29 

*SECTION XI. 

Such, Contracts enforced where the Hallway 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, that an absolute agree- 
ment made, by the promoters of a railway, to pay one a certain 

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 
depends upon this, that the company are not to pay unless they require the land ; 
that is, they are to pay when they take the land, which assumes that they are not to 
pay unless they do take the land, that may be considered a conditional contract. I 
have nothing to say to such cases ; but where, as in this case, it is an absolute and 
unqualified contract to take the land, I should certainly hold that no subsequent 
conduct on the part of the company could relieve them from the obligation they 
were bound by at the time they entered into it. The act of parliament having 
passed, this was as good a contract as a man ever entered into. I must look at it 
at the time when it was executed, at all events, at the time the act passed. It 
contemplated the act passing, and the act did pass exactly in the terms pointed out 
in the 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 rule of law in it. If, 
therefore, Webb v. The Direct London and Portsmouth Railway Company is 
considered to decide any thing adverse to the decision in this case, I should 
support the decision of .this case, as far as my authority went. With great 
deference to others, I should support this decision certainly at the expense of 
the contrary view, that is, contrary to the view taken on that appeal, if that were 
to be so ; but I apprehend it turned on the uncertainty of the contract. In 
Lord James Stuart 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 

[*26] 



30 PRELIMINARY ASSOCIATIONS. PARTI. 

* sum to quiet opposition, is valid, notwithstanding the contem- 
plated work is never carried forward, and the injury to the op- 

- w< re 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 
if thej 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 i- 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; s. c. 17 Jur. 21; s. c. 
L6 Eng. L. & Eq. 180; East Anglian Railway Company v. Eastern Counties 
Railway. LI C. B. 775 ; s. 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 beyond their powers ; and one cannot but lament 
to see great companies like these, with an attorney always at their command, 
with every means of consulting counsel daily if they think proper, and which 
they resort to sufficiently, and with enormous capital, entering into a contract, 
with a full knowledge of all their powers, and with legal advice constantly at 
command, turning round upon the party with whom they have contracted, and 
endeavoring to evade the contract upon the ground that the contract they entered 
into is beyond their powers and absolutely illegal on the face of it. One 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 <:roat 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 ben- 
efit, 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 con- 
duct I trust we shall not often see in courts of justice. 

'• Now, these eases 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 

irly 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 

[•27] 



§ 12. CONTRACTS ENFORCED IP RAILWAY ABANDONED. 31 

poser, * which the contract of quietus assumes, is never sus- 
tained. 1 But such a contract is certainly based upon a principle 

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 
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 tne 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 that party could not have 
sufficiently enforced a contract against any one else. Those are cases of great 
hardship ; but here I must look at this contract at the time the act of parliament 
was passed, and at the time it was entered into. Where, then, is there any want 
of mutuality? Could not the company, within an hour after 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. 



Bland v. Crowley, G Railw. C. 75(3 ; s. c. 6 Exch. 522. 

[*28] 



32 PRELIMINARY ASSOCIATIONS. PARTI. 

* of very questionable policy, and courts would more incline to 
give tin 1 contract, when consistent with the words used, such a 

modestly desire, in consequence of their own act, in breaking this agreement 
as they have dbne, and rejecting the line after they h:ul 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 oilier eases were cited, as showing I ought not to interfere to 
performance of the contract. Gage v. The Newmarket Railway Com- 
pany, 18 Q. B. 157 ; B. c. 21 Law J. Rep. (N. S.) Q. B. 398; s. c. 14 Eng. L. 
& Eq. - r »7, 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 
Bhould 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 into 
contracts solemnly under their seal, and then turn round, upon the parties and 
say they have exceeded their powers, and, consequently, will not perform their 
contract. Then in the other case of Gooday v. The Colchester and Stour 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 ease; 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. (.V 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- 
Bent 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 Beveral points are thus stated in the notes of the case: — 

\\ here an act creating a railway company, or giving new powers to an exist- 
[*2 ( J] 



§ 12. CONTRACTS ENFORCED IP RAILWAY ABANDONED. 33 

* construction, that it shall be the purchase of a pecuniary inter- 
est, or indemnification for a pecuniary loss, which are legitimate 

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. 

Under the first head, the following suggestions of Lord Chancellor Cranworth 
are of interest: " A railway company cannot devote any part of its funds to an 
object not within the scope of its original constitution, how beneficial soever 
that object might seem likely to prove. 

"Thus in Colman v. The Eastern Counties Railway Company, 10 Beav. 1; 
4 Railw. C. 513 ; Lord Langdale, at the instance of a shareholder, restrained the 
company and its directors from applying any part of their funds in assisting a 
company which had been formed for establishing a steam communication between 
Harwich and the northern ports of Europe. The directors of the railway com- 
pany thought that such an application of a part of their funds would be likely 
materially to promote the interests of their shareholders, by encouraging and in- 
creasing the traffic on their line. But Lord Langdale, though admitting that 
such an expenditure might very likely conduce to the interest of the railway 
company, yet restrained the directors by injunction from so applying any part 
of their funds, on the ground that they had no right to expend the money of the 
company on any project not directly within the terms of its incorporation. 

" In Salomons v. Laing, 12 Beav. 339, the same learned judge restrained the 
directors of the South Coast Railway Company from applying any part of 
the funds of that company in the purchase of shares of another company (the 
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 v. The Eastern Union Railway ( lompany, 2 

3 [*30] 



34 PRELIMINARY ASSOCIATIONS. PARTI. 

•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 

Mac. a (,. 389 ; B. C. 2 Hall & T. 201 ; 6 llailw. C. 152. There the legislature 
had authorized the defendants to raise, by way of additional shares, two sums of 
,000 and £100,000, the former for the purpose of enabling them to con- 
i 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 Mian- in these undertakings, or one of them, on which all calls had been 
paid, and be .-taicd 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 
instructing tin- 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 1"' decreed personally to make them good, and for an injunction to restrain 
am further similar application of any part of the said two sums of £200,000 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 lor which they were so raised. 

"In all these cases, the discussion was raised by shareholders calling In ques- 
tion the misapplication or intended misapplication of the corporate funds by the 
directors. But the doctrine has been acted on in the courts of common law to 
the extent of holding that a contract, even under the seal of a company, cannot 
in general be enforced, if its object is to cause the corporate property to be di- 
verted to purposes not within the scope of the act of incorporation. Thus, in the 
case of The East Anglian Railway Company v. The Eastern Counties Railway 
Company. 11 C. B. S03 ; 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 payment to the plain- 
tills 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; 
8. 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 v. The Official Manager of the Deal & Dover 
Railway ( lompany, 18 Q. B. (318 ; s. c. 16 Eng. L. & Eq. 180. It must, there- 
fore, be now considered as a well-settled doctrine, that a company, incorporated 
by art ot parliament lor a special purpose, cannot devote any part of its funds to 
unauthorized by the terms of its incorporation, however desirable such 
an application may appear to be. 

" 1 have referred to these cases, and there are others to the same effect, for 

[*31] 



§ 12. CONTRACTS ENFORCED IF RAILWAY ABANDONED. 35 

* are certainly not regarded ordinarily as the just basis of con- 
tracts. 2 

the purpose of showing how firmly the law on this subject is established, and of 
guarding myself against being supposed to throw any doubt upon it. But I do 
not think that the present case comes within the principle on which these 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 the 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 consid- 
ered 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 
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 straight cut from their new line to join the 
Ambergate, Nottingham, & Boston Railway, and for that purpose it would have 
been essential to them to possess the plaintiff's land, but they failed in their 
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 plaintiff's land. A small 
portion only of it, about an acre and a half, is within the line of deviation, and it 
was argued that a contract to purchase the whole (nearly six acres) was a con- 
tract ultra vires, inasmuch as the company could only purchase what was really 
necessary or proper for the construction of the line. But the answer to this 
argument appeai-ed to me satisfactory. The contract was not necessarily, and 
on the face of it, ultra vires. If the land in question was really wanted by the 
appellants for what are called extraordinary purposes, they were authorized to 



2 Gage v. Newmarket Railway Co., 18 Q. B. 457 ; s. c. 7 Railw. C. 168 ; s. 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 ; s. c. 3 De G. & S. 314 ; 7 Railw. Cases, 219 ; s. c. 4 Eng. L. & Eq. 91. 

[•82] 



PRELIMINARY ASSOCIATIONS. PARTI. 

• 2. Bui in many cases these provisional contracts have been 
enforced, notwithstanding the projected works have been aban- 

purchase it. Besides the line of deviation actually cuts the respondent's house 
in two, and in Buch circumstances the appellants had no right to take a part 
without taking the whole, it' the plaintiff required ihem to do so; and it is a 
reasonable inferen 'e thai 1 1 1 « - contract to purchase the whole was made, because, 
wanting what was within the limits of deviation, the directors knew that they 
could not stop short with what was within those limits. Be that, however, as it 
there was nothing to show the respondent that //is hind was not wanted for 
tl,, legiti • of the company, and in such a case it cannot be permitted 

irectors to allege that the contract was invalid as being beyond their 
powers : for, as argued at the bar, it could he no answer to an action for iron 
rails bargained and sold, thai 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.' 1 

In regard to the second point adverted to in the head-notes of this case, Lord 
obeli made some comments, which seem to us of very considerable weight as 
applicable to the general subject involved: "During the argument there was 
much discussion on the question how far such a company is bound by contracts 
entered into by the promoters of the act of parliament by which the company is 
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 doc- 
trine contended for by the respondent's counsel, that there is complete identity 
between the promoters of the act and the company, and that, as soon as the act 
ha- 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. If the company should adopt the contract and have the full benefit 
of it, 1 think the company would lie bound by it in equity, and therefore I 
approve of the decision in Bdwards v. Grand Junction Canal Company, 1 Myl. 
& I .. 650; 1 Etailw. C. 173; although the language of Lord Cottenham in that 
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 lie under the common seal of the com- 
pany. The appellants make an idle allegation that the seal was affixed without 
the sanction of a majority of the members of the company, but no fraud is im- 
puted to .Mr. Eawkes. 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 could have had no defence, though, if they could allege and prove that 
Mr- 'f' ■■•■ guilty of illegality in entering into it, the action would be 

barred. 

" But dismissing the charge that he was bargaining for the application of the 

funds of tli- 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 

I ■'" i 



§ 12. CONTRACTS ENFORCED IF RAILWAY ABANDONED. 37 

doned. 3 * But where the contract is a mere arrangement to pur- 
chase land at a specified price, for the purpose of building the 

the land through which the extended line is meant to pass, to be carried into 
effect if the solicited act of parliament be obtained. The shareholders of the 
company might if they pleased object to their funds being applied to defraying 
the expense of soliciting the bill, but if they remain quiet it may fairly be in- 
ferred that they all approve of the extension ; and when the bill to authorize the 
extension has received the royal assent, no shareholder can any longer complain. 
According to the manner in which such bills are usually framed, the extended 
line becomes part of the concern to be managed by the company for the profit 
of the body of shareholders, power being given to the company to increase the 
capital, or by some means to provide the money necessary to complete the ex- 
tended line. Since the case of Simpson v. Lord Howden, 9 CI. & Fin. 61, it is 
impossible to contend that an agreement by a land-owner to withdraw opposition 
to a bill for a railway intended to pass through his property is not a good and 
valuable consideration. I adhere to the doctrine laid down in a passage quoted 
from my judgment in the case of the Mayor of Norwich v. The Norfolk Railway 
Company, 4 Ell. & Bl. 397 ; s. 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 Justices 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, 



3 Shrewsbury & Birmingham Railway Co. v. London & Northwestern Rail- 
way Co., 3 Mac. & G. 70; s. c. 20 L. J. Ch. 90; s. c. 14 Jur. 921 ; 1 Eng. L. 
& Eq. 122; Hawkes v. Eastern Counties Railway Co., 3 De G. & S. 314; s. c. 
20 L. J. 243; s. c. 4 Eng. L. & Eq. 91 ; Preston v. Liverpool, Manchester, & 
Newcastle-upon-Tyne Junction Railway Co., 1 Simons (n. s.) 586 ; 7 Railway 
C. 1; 7 Eng. L. & Eq. 124. 

[*34] 



PRELIMINARY ASSOCIATIONS. PART I. 

* railway, and the quieting of opposition does not enter into the 

aideration, the company are not bound to pay over the money, 

* unless they enter upon some portion of the land, and under such 
circumstances an absolute covenant to pay the money, by the 
company, would be ultra vires and void. 4 

and Stuart o. The London & Northwestern Railway Company, 1 De G. Mac. & 
G. 721; s. c. 11 Eng. L. & Eq. 112. 

•• In the former of tlie.se eases (the particulars of which his lordship fully 
stated") tli" 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- 
clusioD 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 r. The Newmarket Railway Company, 18 Q. B. 457; s. c. 1-4 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 left 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 was evidently a case for compensation by action for damages 
not for relief by way of specif c performance. Indeed, I hardly know how a 
decree for specific performance cotdd have been there enforced, for no particular 
eight acres had been contracted for, and the company had no power to select 
eight acres, except for the purpose of making the railway, the power to make 
which had long since ceased. On these grounds the court refused to interfere, 
leaving the 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. Be 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." 

4 Gage v. The Newmarket Railway, 18 Q. B. 457 ; 8. c. 14 Eng. L. & Eq. 57. 
[*35, 36] 



§ 12. CONTRACTS ENFORCED IF RAILWAY ABANDONED. 39 

*In an important case 5 before the House of Lords, the doctrine 
of the former cases is assumed to have established the proposition, 

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, C. 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 f jr 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 
to sue for these two sums, or either of them. The £4,900 is declared to be the 
purchase-money for the land to be required and taken ; and the only time of 
payment mentioned is before the company enter on the land. Therefore, if no 
land is 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 payment 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- 
wav company are the covenanters ; and if the present action lies, the capital 



5 The Scottish Northeastern Railway v. Stewart, 5 Jur. (N. S.) 637 ; 3 Macq. 
H. Lds. Cas. 382. 

[*37] 



40 PRELIMINARY ASSOCIATIONS. PART I. 

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 
gum of '-' I 1,500 to one of the land-owners, as the sum to be paid 
•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 i" 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. 

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 Turner. 
Notwithstanding our high respect for that learned judge, we cannot concur in the 
reasons for his decision; and although it has not been expressly overturned, its 
authority was greatly shaken when it came before the Lords Justices of Appeal. 
We do not fed it necessary to give any opinion upon the case of Bland v. Crow- 
lev, in whirh the learned judges of the Court of P^xchequer 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. 1 " 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 c Philip, 2 NTQueen H. of Lds. 514; s. c, 28 Law Times, 345, 39 
. L. & Eq. 41: If an agreement of this kind is made in advance of the 
charter of the company and with reference to that being obtained it is to be 
viev. me as if made afterwards, and it may be enforced although part of 

the sum agreed to be paid was for the annoyance caused by the works, which 
would nol accrue if the road were not built, or the land not taken. Taylor v. 
Ch. & Mid. Railw., L. R. 4 Ho. Lds. 628. 

[*38] 



§13. 



PRACTICE IN DECREEING SPECIFIC PERFORMANCE. 



41 



SECTION XII. 



Practice of Courts of Equity in decreeing Specific Performance. 



1. Mutual arrangements protected in Chan- 

cery. 

2. But decisions are conflicting . In cases 



of doubtful 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 different 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 effect, 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 plaintiff 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. 1 

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. 2 The latter course would seem to be most consistent with 



1 Great Western Railway Co. v. The Birmingham & Oxford Junction Railw. 
Co. & others, 2 Phillips, Ch. Cases, 597. The remarks of Cottenham, Lord 
Chancellor, in this case, are very pointed, in defence of the practice, in the 
English courts of equity, of enforcing contracts, made by the projectors of rail- 
ways, against the company itself, after it comes into operation. 

2 Webb v. Direct London & Portsmouth Railw. Co., 1 De G., M. & G. 521 ; 
s. c. 9 Eng. L. & Eq. 249. When the same case was before the Vice-Chancellor, 
Turner, he seemed to regard the plaintiff as entitled to specific performance, but 
the Lords Justices, upon appeal, entertained no doubt that the party should be 
remitted to his rights in a court of law. See Preston v. Liverpool, Manchester, 
& Newcastle Junction Railw. Co., 1 Simmons (N. S.), 586; s. c. 7 Eng. L. 
& Eq. 124. The Court of Appeal, in a similar case, Lord J. Stuart v. London 
and Northwestern Railw. Co., 1 De G., M. & G. 721; s. c. 7 Railw. "C. 44; 
11 Eng. L. & Eq. 112, put their refusal to decree specific performance, upon the 

[*38] 



42 PRELIMINARY ASSOCIATIONS. PART I. 

* the ordinary proceedings of courts of equity, in applications for 
specific performance. 

grounds, that the party, if he had any right, could obtain complete redress at 
law, and that, alter the abandonment oi' the project, or material departures from 
it, it would be impossible for the railway to hold the land to any beneficial pur- 
. after paying the money, and that therefore the principle of mutuality 
wh illy 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 
Railw. Co., 1 De (',., M. & G. 521 ; s. c. 9 Eng. L. & Eq. 249, could be vindi- 
I. was the want of mutuality. But it would seem, that this whole class of 
s, where contracts have been made to take land, either at a given price per 
acre or for a gross sum, or to pay a sum of money for the damage to an estate 
in gross, by reason of a railway coming in a certain line, either across or near 
the premises of the obligee, should be regarded as conditional, unless the con- 
trary appeared, in express terms, or by the strongest implication. Any other 
view of these parliamentary contracts, as they are denominated, gives them very 
much the air of wagering policies or legislative gambling ! See also upon this 
subject, Potts v. The Thames Haven Dock & Railw. Co., 15 Jur. 1004; s. C. 7 
Eng. L. & Eq. 262, where it is held, that, in pursuing a claim for specific per- 
formance 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 pro- 
ceeding. 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 company, owing to their pecuniary embarrassment, but, 
after considerable discussion, it was agreed to give the company further time, 
and the claim was ordered to stand over. It has been held, where a private 
company leased land, with a clause of re-entry, and were subsequently incorpo- 
rated, with an express provision in their charter that all contracts made before 
the act of incorporation shall be binding upon the corporation, and they have the 
same rights as if these contracts were entered into with them, they might main- 
tain ejectment for the land. London Dock Co. v. Knebell, 2 M. & Rob. 66. 

The case of Strasburg Railw. Co. v. Echternacht, 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 
tioned, refused to take the stock, and it was held, that the promise was with- 
out consideration, and therefore not a contract, but a mere naked expression 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 some- 
times been given by courts of equity to oppose a bill in parliament, unless certain 
compromises between the projectors and landholders on the proposed line should 
be effected. Davis v. Combermere, 14 Sim. 402 ; s. c. 3 Railw. C. 506 ; Mony- 
penny v. Monypenny, 4 Railw. C. 226. 

It is said in one 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 

[*39] 



§ 14. SPECIFIC PERFORMANCE IN COURTS OF EQUITY. 43 

^SECTION XIII. 
Specific 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- 
parliament, are not illegal. See also Capper v. Tbe Earl of Lindsey, 3 House 
of Lords Cases, 293; s. c. 14 Eng. L. & Eq. 9. This ease 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 bill 
and to oppose a rival bill ; and they covenanted to pay him a certain sum of 
money in case their biil 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 agree- 
ment by notice. The deed then contained a covenant on the part of the project- 
ors, by which they agreed, if the two companies should be amalgamated, to pay 
a certain sum within three months after such amalgamation. The deed was dated 
16th March, 1816. 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 defend- 
ants 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 plaintiffs land. The Court of Exchequer held the plea to be 
a good answer to the action. This judgment was reversed in the Exchequer 
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 injury to the plaintiff's 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 

[*40] 



4 1 PRELIMINARY ASSOCIATIONS. PART I. 

tracts. ' for the arrangement of conflicting interests, in regard to 
such projected railways. And they have declined to interfere by 

purpose of the agreement, it must, we tliink, be regarded as the only just and 
nate view. The contract did not so much contemplate the taking of any 
portion of plaintiff's 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 
d( Pendants' lawful opposition to, or control of, the enterprise, in consequence of 
his pecuniary 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 casein New Hampshire, Loww. Conn. &Pass. Railroad Co., 45 N. H. 
370 : 8. C. 1 Redf. Am. Railw. Cases, 1, 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 organization, and after 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 ell, , t any binding contract or corporate act, the concurrence of at least a 
majority (.(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 largely upon the authority of Hall v. Vt. & Mass. 
Railroad ( !o., 28 Vt. 401. But we question whether the principle of compensation 
is not in fact carried in both cases to the utmost verge of good policy. In the 
case of Low v. The Railway Company, 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 
"\ ermont, the place of the plaintiff's residence, this promoter should have his, 
the plaintiff's best horse. Anil, 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 would 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 

[HI] 



§ 14. SPECIFIC PERFORMANCE IN COURTS OF EQUITY. 45 

* injunction, where no such contract had been definitely made, 1 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 the part of such 
incorporations, in carrying into effect any contracts on their part. 
For it is said by the English courts, having obtained advantages in 
consequence of the contracts and assurances of the agents em- 
ployed in the projects, it would tend to destroy all confidence in 
any such arrangement, if they were not enforced, which would be 
of evil example and tend to great practical inconvenience. But 
where the parties stand upon their legal rights, as secured in the 
act of incorporation, a court of equity will not interfere. 2 In a 
later case these * provisional contracts seem to be regarded as condi- 
tional, depending, ordinarily, for their obligation, as against the 
corporation, upon their having done any thing under their charter 

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 v. The Great North- 
ern 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 necessary arrangements, before making the decree absolute. 
But one railway company cannot bind itself to defray the expense of an appli- 
cation to parliament by another company, for the establishment of another line 
of railway, expected incidentally to benefit the first company. Such contract 
is beyond the ordinary scope of the powers of a railway company, and con- 
sequently 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 v. The Eastern Counties Railway 
Company, 11 C. B. 775 ; s. c. 7 Eng. L. & Eq. 505; McGregor v. The Deal & 
Dover Railway Company, 18 Q. B. 618; s. c. 16 id. 180; post, §§ 56, 137. 

1 Hargreaves v. Lancaster & Preston J. Railway Company, 1 Railw. Cas. 416. 

2 Aldred v. North Midland Railway Company, 1 Railw. Cas. 404 ; Provost 
and Fellows of Eton College v. Great Western Railway Company, 1 Railw. Cas. 
200. Where the plaintiff had incurred expense in bringing the scheme of a pro- 
posed railway before the public, and in consideration thereof the promoters had 
agreed that the company should pay him £2,000 at a certain point of its success, 
the contract was enforced notwithstanding the company never went into full oper- 
ation. Touche v. Met. R. W. Co., L. R. 6 Ch. App. 671, L. C. 

[*42, 43] 



I i PRELIMINARY ASSOCIATIONS. PART I. 

which flif agreement enabled them to do, so as thereby to have 
n c lived the benefits of it. 8 



SECTION XIV. 

C U of Equity may restrain a Party from Opposition or Peti- 
tion in Parliament. 

1. Such cases not common in practice. | 2. Such cases not readily recognized. 

vj L5. 1. It is held in the English courts of equity altogether 
competent 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. 1 But such cases are not com- 
mon in practice, * and dependent upon peculiar circumstances, 

3 Gooday v. Colchester & Stour Valley Railway Company, 17 Beav. 132; s. c. 
15 Eng. L. iV- 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 now 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 v. The St. George's 
Harbor ( lompany, 30 Law Times, 84 ; s. c. 2 De G. & J. 547, 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. 

1 The Stockton & Hartlepool Railway Company v. The Leeds & Thirsk and 
The Clarence Railway Companies, 2 Phillips, 666; s. c. 5 Railw. Cas. 691. 
In tlii< case the injunction was granted by the Vice-Chancellor, Skadwell, 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, then- fore, 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 
it 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 
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 i heir legal rights. 

[*44] 



§16. 



CONTRACTS AGAINST SOUND POLICY. 



47 



as where proceedings in parliament are in violation of express 
covenants, or for some other reason, in bad faith, and where dam- 
ages at law, are no adequate compensation. These cases are there- 
fore 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. 2 



SECTION XV. 

Contracts to withdraw opposition to Railway Projects, and to keep 
this secret, against sound policy and would seem to be illegal. 



1. Principle of foregoing decisions obscure. 

2. Not adopted in this country unless terms 

inserted in charter. 

3. Recent change of views in English courts. 

3-5. 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 qidet opposition not favored 

in this country. 
n. 5. 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 subject 
of specific performance of contracts with the promoters of railway 
projects being enforced in courts of equity against the company, 
is, to say the least of it, somewhat obscure. Regarded as illegal 
contracts, it does not seem very apparent how they can with much 
show of consistency, be specifically enforced in a court of equity. 
Ordinarily, such contracts are not the subject of an action for their 
enforcement, in any court. That there may be extreme cases, 
where one has gained an unconscionable advantage by enticing a 
* less-experienced person into participation in an illegal transac- 



2 Steele v. North Met. Railw. Law Rep., 2 Eq. 237. 



[*45] 



48 IMJKLIMINARY ASSOCIATIONS. PARTI. 

tion, 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, 1 does not seem to gain much support from 
the case cited by him. 2 

•J. It seems to us impossible to justify such contracts beyond the 
mere Bale of a definite pecuniary interest. And even that, it would 
Beem, should be secured by the insertion of definite provisions in 
the charter. We cannot find that any attempt has been made in 
this country, to enforce against a corporation a contract made with 
the promoters to quiet opposition in the legislature. That it is 
often charged, that such and similar contracts are made by the 
promoters of railway projects with the friends of rival projects, 
and other opposers, and with the members of the legislature even, 
and large sums of money 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 de- 
cency 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 existing 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 rea- 
sonable indemnity, as the price of withdrawing opposition, there 
can be, w r e apprehend, no question. But it seems to us, that the 
only proper mode of securing this indemnity is, by the insertion of 
special clauses in the charter of the new company. There can be 
no question in regard to the duty of courts of equity, in a proper 

1 Ante, § 7, Jacob, 64. 

• X'\ ille v. Wilkinson, 1 Brown (C. C), 543. The principle of this case, if we 
comprehend it, is a familiar one. It is that one who has represented to a creditor 
of his debtur, or to the father of the intended wife of his debtor, that his debt 
did nol 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 v. Ferrers, cited in St. John v. St. John, 11 
V< bi ■ . 536. 
[*45] 



§ 16. CONTRACTS AGAINST SOUND POLICY. 49 

case *for their interference, to enforce an indemnity secured by the 
act. 3 

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, 4 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 that 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 unsupported 
in principle, but these cases are distinguished from the present, 
by the nature of the contracts sought to be enforced, which were 
matters within the scope of the respective charters. The custom 
sometimes adopted by committees in parliament of omitting spe- 
cial clauses from acts of incorporation, on the agreement of the pro- 
moters 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 
inconveniences and inconsistencies which might be expected to 

3 Gray v. The Liverpool & Bury Railway, 9 Beav. 391 ; s. c. 4 Railw. C. 
235; ante, § 11. 

4 Before the House of Lords in June, 1856; s. c. 2 Macq. H. of L. 391; 
s. c. 39 Eng. L. & Eq. 28. 

vol., 4 [**6] 



50 PRELIMINARY ASSOCIATIONS. PART I. 

* 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 witli 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 purp'ose of 
quieting opposition, or securing favor and support, could not be 
enforced bere, even against the contracting parties, and much 
less against the company, or at all events that it ought not to be. 5 

5 And in the more recent cases upon this subject very little countenance is 
given to the doctrine of the earlier English cases, which held the contracts of the 
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 v. 
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, 
entered 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 t) 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 
tunnelling 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, in. 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 qucere, whether a company can be con- 
sidered as the successors or assignees of the projectors, so as to come into ex- 
istence subject to their contracts." See Ed. P. & Dundee Railw. v. Philip, 2 
Macq. H. of L. 514; s. c. 39 Eng. L. & Eq. 41. 

Tie r ire numerous English cases upon this point since the date of the sec- 
ond edition of this work. In Aldham v. Brown, 2 El. & El. 398, in Exchequer 
Chamber, the extent of the responsibility of a subscriber to the preliminary 
[*47] 



§ 16. CONTRACTS AGAINST SOUND POLICY. 51 

* 8. Iii an English case, decided in the Exchequer Chamber, 
reversing the decision of the Court of Exchequer, it was held, 

association 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 provisional 
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.) 510. But upon the ques- 
tion 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 Dartmouth 
& Torbay Railw. Co., in re, 9 Weekly Rep. 609, V. C. K. It is no objection 
that the requisite parliamentary deposit is made from borrowed funds. Scott v. 
Oakely, 10 Jur. (N. S.) 431, 618. 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. 
v. Stewart, 3 Maeq. H. L. Cas. 382. But where the company stipulate to do acts 
ultra 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 in- 
junction will be granted against carrying any portion of the agreement into effect. 
Hattersley v. Shelburne (Earl), 7 Law T. (N. S.) 650. Where six different lines 
of railway, forming one general scheme, were promoted by the same persons, but 
subsequently four of them abandoned, and an act obtained authorizing the con- 
struction of the other two, by which it was provided that the expenses, costs, and 
charges of obtaining and passing the act, and incidental and preparatory thereto, 
should be paid by the incorporated company ; 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. 

6 Taylor v. Chester & Midhurst Railw. Law Rep., 2 Exch. 356. Willes and 
Blackburn, JJ., dissenting. This judgment was reversed in the House of Lords, 
and judgment rendered for the plaintiff. Law Rep. 4 Ho. Lds. 628. But the 
doctrine of the Exchequer Chamber is more in conformity with the American 
cases than that of the House of Lords. Ante, § 12, n. 4. 

[*48] 



PRELIMINARY ASSOCIATIONS. PART I. 

thai a contract by the company to pay £2,000 to a land-owner, 
* 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 build- 
ing of the railway, and the funds of the company, being botli by 
the original and the new act appropriated to specific purposes, 
which did not include the consideration of this contract. 

9. There is an American case, 7 where it was held, that an 
indemnity secured by a railway company to an individual, to quiet 
opposition before the legislature, for the 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 what it otherwise would not have done. 

7 Low v. Conn. & Pass. Railw., 46 N. H. 284; 8. c. 45 id. 370, 1 Redf. Am. 
Lead. Railw. Cases, 1 : ante, § 13, n. 2. 



[*49] 



PART II. 

THE LAW OF CORPORATIONS. 



PART II. 



THE LAW OF CORPORATIONS. 



*CHAPTEk III. 



EAILWAYS AS CORPORATIONS. 



SECTION I. 



Origin and Different Classes of Corporations. 



1. The existence of corporations dates very 

early. 

2. The different hinds of corporations. Sole 

and aggregate. 

3. This work treats chiefly of aggregate 

joint-stock corporations. 

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 pri- 

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. 

10. Distinction between corporations and part- 

nerships. The latter defined. 

11. Further definition of the distinction be- 

tween corporations and partnerships. 



§ 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. 1 

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 



1 1 Kent, Comm. 524. 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, Comm. 268, note ; Dig. Rom. Civ. Law, 47, 22, 4. 

[*50] 



RAILWAYS AS CORPORATIONS. PART II. 

which the corporate body was devoted. Thus corporations, in the 
English law, are either sole or aggregate. By the former is under- 
atood 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, &c, 
in all which cases the single individual, maintaining for the time 
the particular official relation, constitutes the quasi corporation. 
Aggregate corporations are where the body consists of more than 
* 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 the mayor, aldermen, 
and common council of a city or other municipality. 2 

■">. The corporations with which we are chiefly concerned, and 
which will be mainly considered in the following work, are aggre- 
gate business corporations, with a joint-stock capital, such as 
banks, railways, manufacturing and other similar organizations. 

4. But, as almost all kinds of corporations have in some sense 
analogous powers and functions, it will not be practicable to dis- 
cuss the law applicable to one class without at the same time, to 
some extent, considering the law applicable to all other classes of 
corporations. It may be proper therefore to mention here, that 
aggregate corporations may be ecclesiastical or lay, i. e. their 
functions may have reference exclusively to religious matters, as a 
parish or church, whereby they are appropriately designated as 
ecclesiastical or religious bodies ; or they may have reference only 

* Co. Litt. 8 b, 250 a; 2 Kent, Comm. 273, 274. We have taken no time to 
discuss the nature or importance of sole corporations, since very few exist in the 
American states, and where any such do exist, it is so enacted by express statute, 
in order to secure perpetual succession and transmission of rights and duties, 
without encumbering the succession and transmission with those formalities which 
would always prove laborious and sometimes difficult; and by reason thereof, 
there would constantly arise embarrassing questions, which, by declaring the 
office a perpetual corporation, is wisely saved. In many of the cases already 
alluded to, and others which might be named, as to those individuals who sustain 
the official character of sole corporations, it is not deemed important that the 
Statute conferring such functions should declare them corporations, or to possess 
corporate rights and duties. All that is required is, that it should be provided 
that contracts made to them may be sued in the name of their official successors, 
or that in any other form such individual should be declared by his official name 
to have the power to contract for the benefit of himself and his successors, per- 
petuallv. 

[♦51] 



§ 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 57 

to secular matters, whereby they are more appropriately denomi- 
nated lay corporations. The distinction is, however, sometimes 
not easily determined, since the business and functions of a cor- 
poration may approach so nearly the one or the other as not in- 
appropriately to be classed among cither. Thus the English 
Universities of Oxford and Cambridge are now regarded as merely 
lay or civil corporations, although at one time they were, with 
propriety, classed among ecclesiastical corporations. 3 

* 5. Corporations, too, are divided into eleemosynary, or such as 
disburse only charity and subsist for that purpose only, — such as 
schools, colleges, and hospitals, — and those which are of a busi- 
ness or pecuniary character, called civil or political bodies, intrusted 
with certain rights or duties, and required to perform certain 
functions, more or less connected with the polity of the state or 
nation, — such as towns, counties, school districts, or railways, 
banks, and manufacturing, or merely business corporations. 

6. Corporations are either public or private. Public corpora- 
tions embrace all the municipal subdivisions of the state ; such as 
counties, towns, and cities, and school districts, and other similar 
organizations. Private corporations include all aggregate joint- 
stock, incorporated companies, whose capital stock is owned by 
private persons. But such joint-stock corporations as possess no 
shares not owned by the state or nation are also regarded as public 
corporations, the same as the municipalities of the state. The 
law in regard to railways was thus stated in the former edition of 
this work. 

7. Railways 4 in this country, although common carriers of 
freight and passengers, and in some sense regarded as public 
works, are ordinarily private corporations. 5 By private corpora- 
tions nothing more is implied, than that the stock is owned by 
private persons. 

» Angell & Ames, § 40'; 1 Bl. Comm. 471. 

4 There is no necessity for these public functions being confined to aggregate 
corporations, as is the universal practice in this country. The same franchises 
and immunities might be conferred upon any private person, at the election of 
the legislature, as was done by the legislature of New York upon Fulton and 
Livingston, in regard to steamboat navigation, which grant was held valid but for 
the United States Constitution. And whoever was the grantee, the same rights, 
duties, and liabilities would result from the grant, whether to a natural person or 
to a corporation. 

6 Ante, § 1, pi. 6. 

[•52] 



58 RAILWAYS AS CORPORATIONS. PART II. 

8. If the stock is owned exclusively by the state, the corpora- 
tion is a public one. And such public corporations are under the 
control of the legislature, the same as municipal corporations, and 
ordinarily acquire no such vested rights of property as are beyond 
the control of legislative authority. 6 The American cases going 
* to confirm this proposition, and to show that railways are private 
corporations, are numerous. 7 

" Dartmouth College p. Woodward, 4 Wheaton, 518, 568 ; 2 Kent, Comm. 
7th ed. (275) : 505 and notes. If the question were entirely new, it might be re- 
garded as admitting of some doubt, perhaps, how far the American states could 
with propriety undertake such extensive public works, whose benefit enures 
almost exclusively to private emolument and advantage. But the practice is now 
pretty firmly established. And there seems to be no proper tribunal to determine 
questions between the states and the citizens. Public opinion is the only 
practical arbiter in such cases. And that is so much under the control of inter- 
ested parties, ordinarily, that its admonitions are not likely to be much dreaded 
by those who exercise the state patronage. 

7 Donnaher v. State of Mississippi, 8 Smedes & M. 649, 661. By the court, in 
Trustees of the Presbyt. Society of Waterloo v. Auburn & Rochester Railw., 3 Hill, 
570; Dartmouth Coll. v. Woodward, 1 N. H. Ill, 116; Eustis v. Parker, 1 N. H. 
27;; : Dearborn v. Boston, C. & Montreal Ptailw. Co., 4 Foster, 179, 190; Ohio, 
&c. Railroad Co. v. Ridge, 5 Blackf. 78; Bonaparte v. Camden &AmbovR., 1 Bald- 
win's C. C 205, 222; Rundle v. Delaware & Raritan Canal Co., 1 Wallace, Jr. . 
275 : K. & G. R. v. Davis, 2 Dev. & Batt. 451 ; Thorpe ». R. &B. R., 27 Vt. 140; 
s.c. 1 Redf. Am. Railw. Cases, 587. This last case discusses at some length the 
right of legislative control over private corporations, whose functions are essen- 
tially pub ic, like th se of banks and railways. The importance of such control, 
with n reasonable limits and under proper restrictions, both to the public interest 
ami that of these corporations, will be obvious when we consider the magnitude of 
the intere ts committed to such corporations, and the vast amount of capital 
invest d in bu h enterprises. We make no account of the banking capital of the 
country, most of which is occupied in business more or less connected with rail- 
way traffic. But the capital and business of railways is almost incalculable. 

The length of railway in the United Kingdom of Great Britain and Ireland 
in 1857, was 8,635 miles, and the cost, in round numbers, £311,000,000 sterling, 
being more than one and one-half billion of dollars. The amount invested in 
this country was about half as much in 1851, and the number of miles in opera- 
nt' nly twice as great, and almost as much more then in progress, a large 
portion of which is now complete (1857). When it is considered that these 
private corporations, possessing such vast capital, have engrossed almost the 
entir.- travel and traffic of the country, and that their powers and functions come 
in daily contact with the material interests of almost every citizen of this great 
empire, the importance of their being subjected to a wise and just supervision 
can scarcely be over-estimated. This can only be permanently secured by wise 
and prudent legislation. And to be of much security to public interests, it must 
be by general acts, as it is in many of the states, and in England, since 1845. It 

[•53] 



§ 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 59 

* 9. It does not alter the character of a private corporation, 
that the state or the United States own a portion of the stock. 8 

is worthy of remark, we think, that while in the United States a large proportion 
of the capital invested in railways has proved hitherto wholly unproductive, and 
much of it has already proved a hopeless loss, and a very small proportion of the 
whole can be said to have been at all remunerative, in Great Britain the whole 
amount of their loan and preference stock, secured virtually by way of mortgage, 
has produced, upon an average, more than five per cent, and the ordinary stock 
has produced an average dividend of more than three per cent ; and in France 
railways have proved still more productive, making average dividends through- 
out the empire, for the year 1857, of nine per cent upon the whole investment, 
some as high as sixteen per cent, and one, the Lyons and Marseilles line, twenty- 
three per cent. It is difficult to account for the difference in results, without 
suspecting something wrong somewhere. Since the former edition of this work, 
• considerable advance has been made in railway enterprise throughout the world. 
Railways have become (1858) so nearly a military necessity, in order to enable 
any nation of considerable power and prominence in relative national position to 
maintain its due weight and importance, that very extensive, and in some in- 
stances vast, works of that kind have been accomplished, mainly upon that ground. 
The experience of the national government during the late civil war has removed 
all question of the right of that government to charter and construct, or aid in 
the construction of, extensive and independent lines throughout the country for 
military and mail purposes alone. It is stated that the present length of railway 
line in the United States is about 32,000 miles, at an average cost of $40,000 
per mile, equal to $1,280,000,000 in all, and there is every reason to believe the 
Atlantic and Pacific coasts will speedily be united by railway. The advance in 
Great Britain and Ireland has been very great since the first edition of this work, 
but probably not in the same proportion as here. 

The number of miles of railway now (1867) in operation in France is about 
8,000, at a cost of nearly $1,300,000,000, and producing, according to the late re- 
turns of the Minister of Public Works, a net income or dividend of nearly nine per 
cent. This is the same rate of income produced by the French railways in 1858, 
as stated above. The average income from railway investment in Great Britain 
and Ireland is probably not above half that sum ; and, in the United States, it is 
perhaps even below that. But our country is so immensely extensive, and easy 
and rapid intercommunication between all portions of the empire so much a state 
necessity, that it might naturally be expected that for a long time considerable 
portions of the line should remain unproductive in a pecuniary point of light. 
There have been great changes in the policy of railway construction and man- 
agement since this work first appeared, and mainly in the right direction. Reck- 
less and destructive railway management is now, we trust, becoming the rare 
exception in this country ; although there is still, no doubt, great room for im- 



8 Bank of the United States v. The Planters' Bank of Georgia, 9 Wheat. 904 ; 
Miners' Bank v. United States, 1 Greene (Iowa), 553; Turnpike Co. v. Wallace, 
8 Watts, 316 ; Bardstown & Lou. Railway v. Metcalfe, 4 Met. (Ky.) 199. 

[*54] 



GO B \ II. WAYS AS CORPORATIONS. PART II. 

• Bui a turnpike company or other corporation, managed exclu- 
sively by state officers, and at the expense and for the benefit of 
-■ ite at large, is a public corporation. 9 
LO. The legal distinction between a corporation and a copart- 
nership is marked and important. A mere partnership is the 
result of voluntary association between two or more persons, to 

provement. There is probably no other country in the world where it is so 
difficult to bring the employe's, and others connected in various relations with 
railway management, to understand and appreciate the indispensable importance 
of bringing every thing to the unbending control of a single will. This is not 
only indispensable for success, but equally for security. 

From authentic sources it now (18G9) appears that the extent of railway in 
operation in Europe is not less than 50,000 miles. Of this, Great Britain has 
1 1,000 miles, at a cost of £500,000,000 sterling; France has nearly 10,000 miles; 
Germany, including Austria, 13,000 miles; Spain, 3,000 miles; Sweden, 1,000 
miles; Belgium, 1,000 miles; Switzerland and Holland, each, less than 1,000 
miles; and Italy about 3,000 miles; and Eussia nearly 3,000 miles. There are 
also more than 3,000 miles of railway in British India; about that extent in the 
Canadas; and there is more than half the extent of railway line in the United 
States that there is in all the rest of the world; and -when the three lines of 
Pacific railway ^hall be completed, the extent will fall little short of equalling 
that of all the rest of the world. But a very large proportion of it is constructed 
with only a single track, and much of it is very imperfectly built, and has not 
pro\ed remunerative as a general rule. But it is the controlling interest of the 
country, far more important than any other pecuniary or political interest, both 
in peace and in war, and without which it is impossible to calculate what might 
have been the result of the late civil war. 

From the annual report of the English Board of Trade, 1871, in regard to 
British railways, it appears that there are 15,537 miles in the United Kingdom: 
viz. LI, 043 miles in England and Wales; 2,519 in Scotland; and 1,975 miles in 
Ireland. The capital stock of all these companies amounts to nearly £600,000,- 
000 sterling, or about 83,000,000,000. The gross income of these companies 
- three-fifths of that of Great Britain and Ireland. The gross earnings of 
1 • English companies exceed that of the income of some of the smaller 
or medium Mate- of Europe ; that of the London & Northwestern being £7,014,- 
703, almost exactly the same as the national income of Belgium. 

i tide in the American Railway Times (1872), it would seem 
that the United States have now in operation 48,860 miles of railway, and 27,505 
mdes more in process of building or already projected. Another account esti- 
mate- the length of railway in operation, January 1, 1871, at 53,399 miles; it 
may be safe now, to place it at 50,000 miles, in round numbers. Upon the same 
authority it i- estimated, thai there is in operation in Prussia an extent of rail- 
way of nearly 8, I English miles. 

e '•. North W. Turnpike Co., 10 Leigh, 454. But see Toledo Bank v. 
Bond, 1 Ohio (N. S.), 622, 657. Opinion of Storrs, J., in Bradley v. New Y. 
& New II. Kailw., 21 Conn. 294, 304, 305. 

[*o5] 



§ 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 61 

invest their capital and labor in the joint conduct of any business, 
mercantile or otherwise, either for a definite or indefinite time, 
according to the terms of the organic contract. This contract may 
be in writing or merely oral, and requires no legislative sanction 
to give it validity. 10 The result of such an association is to create 
a joint interest both in the capital and the business, unless there 
is some special stipulation as to the property remaining in those 
of the partners who furnish the capital. The several partners also 
become responsible for all the debts and legitimate contracts of the 
partnership; unless in special and limited partnerships, where, 
under certain conditions, the special partners are not liable for 
the partnership contracts beyond the amount of the capital invested 
by them. 11 

11. But the organization of a corporation is essentially different. 
The individual members or corporators are not responsible, except 
by special statute, and that is an anomaly, for any of the acts of 
the corporation. The corporators are, so to speak, merged in the 
abstract being created by the act of incorporation, and can do no 
act binding the corporation except in accordance with the organic 
law by which this artificial being is created. And the corporation 
receives its powers and functions solely from the act of incorpora- 
tion ; and this act must, in all cases, emanate, either directly or 
indirectly, from the legislative power of the state or nation, and 
cannot be created by any mere contract among the members, as 
in the case of copartnerships. These principles are so elementary 
and fundamental to the very existence of corporations as scarcely 
to require to be stated, much less to be fortified by authority. 12 

10 Story on Part. §§ 2, 3, and cases cited. 

11 Coope v. Eyre, 1 II. Bl. 37, 48, where Lord Loughborough, C. J., defines a 
partnership to be a sharing both in profit and loss, and says that limited partner- 
ships are not allowed in England, although upheld upon the continent. But the 
law is now otherwise by special statute both in England and America. But, 
independent of statute, all the partners are responsible for all the liabilities of the 
concern. Angell & Ames, § 41 et seq., and cases cited. 

12 Angell & Ames, § 591 et seq. And however extensive a joint-stock com- 
pany is, in point of members, it is responsible as a mere partnership, unless 
incorporated by act of the legislature or under some general statute. Williams 
. Bank of Michigan, 7 Wend. 539, 542. 

[*55] 



62 RAILWAYS AS CORPORATIONS. PART II. 



SECTION II. 



Mow Corporations are created. 



Corporations created by grant of the sov- 
iiij. This may be proved, by im- 
Hon or by presumption. 
The sovereignty may establish corporations 
by general act, or delegation or procura- 
tion. 
Different forms of defining a corpora- 



4. The corporate action of corporations re- 

stricted to state creating them. 

5. It may act by its directors and agents in 

other states. 
n. 10. But cannot properly transfer its entire 
busitiess to another state. 

6. A college located at one place cannot es- 



tion. tablish a branch at another. 

§ IT a. 1. Strictly speaking, corporations can only be created 
by the authority of the sovereignty, either state or national. 1 
Hence, the ordinary mode of creating joint-stock business corpora- 
tions is by charter, by way of legislative act of the several states. 
But as, in some cases, the record of such charters may not have 
been preserved, and, in other cases, the grant of corporate powers 
* may have been by way of implication rather than express legisla- 
tive act, the courts have allowed corporations to prove their cor- 
porate character and capacity, by evidence that such character and 
capacity is reasonably, or necessarily, implied from other legislative 
action ; 2 or else, that its existence is fairly to be presumed from 
the long continuance of its unquestioned exercise. 3 

2. The legislature may create corporations by general acts of 
incorporation, as they are called, whereby a given number of per- 
sons, by forming an association in a prescribed form, shall become 
possessed of corporate powers, for certain defined objects and pur- 
poses. This is common, in many of the states, as to ecclesiastical 
and charitable, or benevolent associations, and not unfrequently 

1 As the national sovereignty is limited to the subjects and powers enumerated 
in the Constitution, and such implied powers as are requisite to the successful 
exercise of those expressly granted ; and as no general power to create corpora- 
tions is expressly given, the construction of the court of last resort upon these 
questions, established at an early day, is, that Congress can charter only such 
corporations as are fairly to be esteemed necessary to the successful accomplish- 
ment of its delegated powers and functions. McCulloch v. Maryland, 4 Wheat. 
316; Osborn v. Bank of United States, 9 Wheat. 733. 

2 Conservators of the Tone v. Ash, 10 B. & Cr. 349. 

3 Dillingham v. Snow, 5 Mass. 547 ; 2 Kent, Comm. 277 ; 1 Bl. Comm. 473. 

[*56] 



§ 17 a. HOW CORPORATIONS ARE CREATED. 63 

as to banking, railway, and other business corporations. And 
although at one time questioned, it seems now conceded, that the 
sovereign authority may grant to any one the power to erect cor- 
porations to an indefinite extent, upon the maxim : Qui facit per 
alium facit per se. This power is given to the Chancellor of the 
University of Oxford, 4 and exists in many other forms. 

3. A corporation is defined by Lord Holt, C. J., 5 as an em 
civile, a corpus politicum, a persona politica, a collegium, an univer- 
sitas, a. jus hdbendi et agendi. A corporation is well defined, as to 
the general sense of the term, by Chief Justice Marshall? as " an 
artificial being, invisible, intangible, and existing only in contem- 
plation of law." It is, in fact, the mere creature or creation of 
the law. Endowed by its charter with the capacity of performing 
certain functions, and having no rights, and possessing no powers, 
except those conferred by the sovereignty by which it was created. 

4. It is upon this ground, that it has been declared, upon the 
most unquestionable basis, both of principle and authority, that a 
" corporation can have no legal existence out of the boundaries of 
the sovereignty by which it is created." 7 " It exists only in con- 
templation * of law, and by force of the law ; and where that law 
ceases to operate, and is no longer obligatory, the corporation can 
have no existence. It must dwell in the place of its creation, and 
cannot migrate to another sovereignty." And the same thing, 
substantially, is repeated in another case 8 by Mr. Justice Thomp- 
son. But a corporation may transact business in a foreign state or 
country, and may be there sued in relation to the same. 9 

5. There seems to be no question but the corporation may act, 
by its directors, agents, and servants, beyond the limits of the 

4 1 Bl. Coram. 474. 

5 Anonymous, 3 Salk. 102. 

6 Dart. College v. Woodward, 4 Wheat. 518. The same learned judge, in 
another place, Providence Bank v. Billings, 4 Pet. (U. S.) 514, thus comments 
upon the purposes of acts of incorporation : " The great object of an incorpora- 
tion is, to bestow the character and properties of individuality on a collective 
and changing body of men." 

7 Taney, C. J., in Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 588. 

8 Runyanv. Lessee of Coster, 14 Pet. (U. S.) 122, 131. The same doctrine is 
maintained in other American cases, Miller v. Ewer, 27 Me. 509 ; Farnuin v. 
Blackstone Canal Co. 1 Sumn. (C. C.) 46; Day v. Newark India Rubber Co., 1 
Blatchf. (C. C.) 628. 

9 Newby v. Colt's Patent Fire-Anns Co., L. R., 7 Q. B. 293. 



(J4 RAILWAYS AS CORPORATIONS. PART II. 

sovereignty by which it was created, 10 but its first meeting, and all 
its subsequent meetings, in order to bind absent and dissenting 
members, Bhould, it would seem, be held within the limits and 
jurisdiction of the sovereignty creating the corporation. 11 But 
in one case in New Jersey, Hilles v. Parrish, 12 the general rule 
is reaffirmed, that a corporation can hold no meeting and trans- 
act no corporate business, except within the state from which 
* they derive their charter. And it was h^'e further held, that a 
resolution of the directors, at a meeting held out of the state where 
the corporation was created, for the purpose of transferring stock 
to sonic of their own number, was wholly inoperative. But the 
court declined to enjoin those holding under such title from voting 
at the election of corporate officers, until all parties could be heard 
upon the question of title. 

6. But a college of learning, established in a particular place, 
has no power to establish a branch, for one of its departments or 
faculties, at a different place. It was accordingly held, that 
Geneva College, at Geneva, N. Y., could not establish a medical 
school in the city of New York. 15 

10 M' Call v, Byram Manuf. Co., 6 Conn. 428. It was held in this case, that 
the directors of a manufacturing corporation might legally hold a meeting, out 
of the state, for the purpose of making the appointment of secretary of the cor- 
poration, and the appointment would not be rendered invalid thereby, or by the 
fad thai the person appointed had his permanent residence without the state. 

" .Miller v. Ewer, 27 Me. 509. The law seems so entirely well settled, that 
corporations, created by one sovereignty, cannot so transfer their locality as 
lv to exist and act in their organic corporate capacity in another sover- 
eignty, that it appears very singular that such multitudes uf speculative joint- 
corporations, deriving their charters from the legislature of the state, should 
attempt to transfer their entire local action to another sovereignty and jurisdic- 
tion. For there is no principle better settled than that the locality of a business 
corporation is determined by that of its principal business office. And there are, 
unquestionably, hundreds of business corporations chartered by the legislature 
of one state h iving their principal and only business offices in other states. This 
is done doubtless by holding the stockholders' meetings in the states where the 
charter was obtained, and appointing a board of directors with full powers, and 
then carrying forward the business of the company through the agency of the 
board ol directors, with a by-law for filling vacancies in the board by the action 
of the directors themselves. But that seems scarcely less than an evasion. And 
although it may be held binding upon the members of the company so long as 
acquiesce d in by them, it might at any time be enjoined by proper proceedings in 
equity. 

12 1 McCarter, 380. 

People v. Trustees of Geneva College, 5 Wendell, 211. 
[*58J 



§17 b. 



THE CONSTITUTION OF CORPORATIONS. 



65 



SECTION III. 



The Constitution of Corporations, and mode of Proof. 



1. Definitions of the different sense of the 

term "constitution,'' us applied to cor- 
porations. 

2. How corporations may be composed or 

constituted. 
n. 1. The question illustrated more in detail. 

3. Distinction of legislative, electoral, and ad- 

ministrative assemblies not essential. 

4. Corporation can only act by its name. 

Subject discussed. 

5. Any deflation from the name allowed, if 

the substance and sense be preserved. 

6. Courts of equity will not restrain corpora- 

tions from applying for enlarged powi rs. 

7. Change of Constitution. Effect of change 

of name. 



8. Courts r,f equity will ■ njoin a ;/' u 

ration from assuming the name of one 
of establish/ 1! credit. 

9. Promissory note payable to . I. />.. tn us- 

urer of a corporation, may h sued in 
the name of A. /<'. Promissory note 
for subscription waives condition. 

10. Corporation may hi estopped to duty its 

existence. How described. 

11. How the existence and non-existence of 

corporations may be proved. 

12. Party to writtt n contract, payable to cor- 

poration, cannot deny corporate exist- 
ence. 

13. Proof of corporation in fact sufficient 

in all cases. 



§ 17 b. 1. The term " constitution," as applied to corporations, 
is susceptible of being used in very different senses. It may imply 
nothing more than the charter or formal grant of corporate organi- 
zation and powers by the sovereignty, or it may be applied to 
certain fundamental principles, declared by the corporators them- 
selves, as the unalterable basis of the organization of the body; 
or, if not wholly unalterable, not to be altered except by the 
* adoption and concurrence of certain formalities, not likely to 
occur, except in regard to changes of very obvious necessity ; or 
the term may be used to signify the constituent members, or dif- 
ferent bodies of which the corporation is composed. 

2. A corporation may be composed of natural persons, acting in 
their separate and individual capacity ; or it may be composed of 
different bodies of natural persons, acting in separate assemblies; 
or it may be composed of separate and distinct corporations. 1 



1 Joint-stock business corporations arc, for tbe most part, composed of natural 
persons. But as membership in such corporations grows out of the ownership 
of shares, it may exist in other corporations, who subscribe for or purchase 
shares ; or the shares may be in part owned by the sovereignty, either state or 
national. Bank of the United States v. The Planters' Bank of Georgia, 9 
Wheaton, 904 ; Bank of South Carolina v. Gibbs, 3 McCord, 377. But, as said 
vol. i. 5 [*59] 



RAILWAYS as CORPORATIONS. PART II. 

writers have distinguished the meetings or assemblies 
of aggregate corporations into three kinds, — legislative, electoral, 
and administrative. But this is a distinction with reference to 
the different offices or duties of the same assembly, or meeting, 
and is consequently of no practical importance to be maintained 
or discussed. 

I. A corporation must be constituted by some corporate name, 
and ran only acl by such name. 3 A corporation by prescription 
may have several names, but by charter it can have, it is said, 
bui one name for the same' purpose and at the same time. For, 
• although it may have a new charter by a new name, it thereby 
loses the old name. 4 

I,, Mi . ( Ihief Justice Marshall, in Bank of the United States v. The Planters 1 Bank, 
'.i \\ heat. 904. "As a member of a corporation, a government never exercises 
ivereignty. It acts merely as a corporator, and exercises no other power 
in tin- managemi nt of the affairs of the corporation than are expressly given 
by the incorporating act." 

A familiar instance of corporations, composed of different associations of 
natural persons, forming component parts of the corporation, will be found in 
the organization of municipalities, 1 Kyd. 36. So also the corporation may be 
composed of a defined number of persons of a particular class. As in the case 
of st. Mary's < Ihurch in the city of Philadelphia, 7 S. & R. 517. 

And a corporation is sometimes constituted of several subordinate corporations 
combined. As in the case of the Dean and Canons of the English Cathedrals, 
_' Burn's Eccl. Law, 'lit. Monasteries, 542. The same is also true of the cor- 
porations of the English Universities, which are composed of the subordinate 
corporations oi" tin- different Colleges and Halls. 1 Kyd. 36. Some English 
towns and cities are composed of several subordinate corporations. And a free- 
man of the city of London must tirst become a freeman of some of the Trades' 
incorporations. Angell & Ames, § 96. 
■-' 1 Kyd. 399; Angell & Ames, § 98. 

( lollege of Physicians v. Salmon, 3 Salk. 102. 
* Anonymous, 3 Salk. 102. But some writers have said that if the charter of 
a corporation allow them to act by different names for the. same purpose, there 
i- no good reason why they may not. 1 Kyd. 230. And in Minot v. Curtis, 7 
Mass. HI, it is said a parish may be known by several corporate names. The 
poinl is not important, since few corporations make any claim to an alias dictus, 
ami where that is claimed there will commonly be no difficulty in determining 
how far the claim <an be justified or maintained. There is no pretence of the 
icity 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. Keg. v. Registrar, 10 Q. B. 839. But the legislature 
may change the name of a corporation, and this will not affect its rights, its 
identitv being shown. Rosenthal v. Madison, P. R. Co., 10 Ind. 358. 

[*60] 



§ 17 b. THE CONSTITUTION OF CORPORATIONS. 67 

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 5 that in contracts by or to cor- 
porations, it is sufficient if the name be substantially preserved. 
It is not requisite ut idem nomen syllabis 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. 6 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. 7 

6. The constitutions and powers of all corporations must neces- 
sarily depend upon the law of the state where the same was cre- 
ated. 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- 
cipally * reside in England, and where the principal business is 
transacted in that country. 8 

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. 9 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 

5 Mayor and Burgesses of Lynne Regis, 10 Co. Rep. (11 Jac. I.) 122. 

6 Newport Mech. Co. v. Starbird, 10 N. H. 123. 

7 First Parish in Sutton v. Cole, 3 Pick. 232 ; Tucker v. Seamen's Aid Society, 
7 Met. 188 ; Attorney-General v. Corporation of Rye, 7 Taunt. 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 ; Redfield on 
Wills, Pt. 1, § 40, and cases cited. 

8 Bill v. Sierra Nevada L. W. Co., 1 De G., F. & J. 177 ; s. c. 6 Jur. (N. S.) 
184. 

9 Attorney-General v. Great N. Railw., 1 Drew. & Sm. 154. 

[•81] 



68 RAILWAYS AS CORPORATIONS. PART II. 

existing, it was held to save the remedy against a surety upon a 
bond for faithful service of an employe. 10 

i. An application was made in a somewhat recent case, 11 for an 
injunction against the defendant's adoption and use of the plain- 
tiff's name, or one bo 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 trade-marks, 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. 1 - 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. 13 

* 9. A promissory note payable to a person byname, adding 
treasurer, Arc, naming a railway corporation, must be regarded 
as payable to the person named and not to the corporation. 14 But 
such a note, given for a conditional subscription of stock, must 
be regarded as a waiver of the condition, ana, if executed some 
time after the date of the subscription, cannot be construed as part 
of the contract of subscription. 15 

10. A corporation, after having claimed and exercised corporate 
powers for a considerable time, will be estopped from denying its 

. & C. < !o. r. ( 'ooper, 8 C. B. (N. S.) 800. 
11 The London Insurance v. The London & Westminster Insurance Corpora- 
tion, <J Jut. (N. S.) 843. 

Story Eq. Jur. § '.)■'>] et seq., in the late edition of 1860. 
13 ( 'olonial Lite Ass. Co. v. Home & Col. Life Ass. Co., 33 Beav. 548 ; s. c. 
10 Jur. (X. S.) 967. 

" Chadsey v. McCreery, 27 111. 253. 

18 ODnnald v. E. Ind. & CI. Railw. Co., 14 Ind. 259. 

[*62] 



§ 17 b. THE CONSTITUTION OF CORPORATIONS. 69 

corporate existence. 16 It is said in some cases, that if the corpora- 
tion contracts by a style which is usual in creating corporations, 
and which discloses the names of no natural persons, that the 
corporate existence will be implied and need not be averred. 17 
But in general such a proposition would not be regarded as main- 
tainable in suits, either in favor or against a corporation ; it should 
be described as such in the declaration, with its location at its 
central place of doing business. 

11. It has been held, that where defendants, sued as a corpora- 
tion, rely upon the fact that the corporate -existence has ceased 
before the institution of the suit, it must be pleaded in abatement 
and not in bar of the action. But in general the want of corporate 
existence and power may be shown at any time before judgment, 
upon proper notice and special plea. 18 A party who has sued a 
corporation and recovered judgment against them by a particular 
name, is afterwards estopped from denying the corporate exist- 
ence. 19 But this seems not altogether in accordance with the 
requirement that estoppels be mutual, unless the judgment were 
between the same parties. Such an estoppel would therefore 
only operate as between the plaintiff in the former suit and the 
corporation. 

12. The cases are very numerous where it has been held that a 
* party who gives a written contract to a corporation by a particular 
name is estopped to deny the existence and name of such corpora- 
tion. 20 

13. And in all cases of the plea of nul tiel corporation, proof of 
a corporation in fact will be sufficient. 20 

16 Callender v. Painesville & H. R. R. Co., 11 Ohio (N. S.), 516 ; The Atlantic 
& Ohio R. R. v. Sullivant, 5 Ohio (N. S.), 276. See also Ashtabula & New 
L. R. R. Co. v. Smith, 15 Ohio (N. S.), 328. 

17 Stein v. Ind. &c., Association, 18 Ind. 237. 

18 Meikel v. The German Savings Fund Society, &c, 16 Ind. 181. 

19 Poehelu v. Kemper, 14 La. Ann. 308. 

20 Hubbard v. Chappel, 14 Ind. 601. 

[*63] 



70 



PROCEEDINGS UNDER THE CHARTER. 



PART II. 



^CHAPTER IV. 



PROCEEDINGS UNDER THE CHARTER. 



SECTION I. 



Organization of the Company. 



Conditions precedent must he performed. 
must nil be subscribed, ordinarily. 
1 '■ r-location of road, condition prece- 

i/t nt. 
Colorahli subscriptions binding at law. 
Conditions subsequent, how enforced. 
Stock distributed according to charter. 
Commissioners must all act. 



8. Defect of organization must be pleaded 

specially. 

9. Question cannot be raised collaterally. 

10. Records of company, evidence. 

11. Membership, how maintained. 

12. By subscription and transfer of shares. 

13. Ojfeis to take shares not enforced in 

equity, and may be withdrawn. 



§ 18. 1. To give the corporation organic life, the mode pointed 
out in the charter must ordinarily be strictly pursued. Conditions 
precedent must be fairly complied with. 1 Thus, where a given 
amount of capital stock is required to be subscribed or paid in be- 
fore the corporation goes into operation, this is to be regarded as 
an indispensable condition precedent. 2 But if the charter is in 
the alternative, so that the stock shall not be less than one sura or 
greater than another, the company may go into operation with the 
less amount of stock, and subsequently increase it to the larger. 2 

1 Angell & Ames on Cor. ch. 3, §§ 95-112 ; 2 Kent, Comm. 293 et seq. 

2 Post, § 51, and cases cited. Bend v. Susquehanna Bridge, 6 Har. & Johns. 
128 ; Gray v. Portland Bank, 3 Mass. 364 ; Minor v. The Mechanics' Bank of 
Alexandria, 1 Peters (U. S.), 46. Opinion of Story, J. And where a corpora- 
tion is formed, or attempted to be formed, under general statutes, the inchoate 
proceedings do not ripen into a corporation, until all the requirements of the 
statute, even the filing of the articles in the office of the Secretary of State, are 
complifd with. And until this is done, the subscription of any one to the articles 
is a mere proposition to take the number of shares specified, of the capital stock 
of the company thereafter to be formed, and not a binding promise to pay. The 
obligation is merely inchoate, and can never become of any force, unless the cor- 
poration goes into effect in the mode pointed out in the statute. And until that 
time, the subscriber may revoke the oiler, and if the articles are in his possession 
or control, erase his name. Burt v. Farrar, 24 Barb. 518. 

[*64] 



§18. ORGANIZATION OF THE COMPANY. 71 

* 2. And where business corporations are created with a definite 
capital, it is regarded as equivalent to an express condition that 
the whole stock shall be subscribed before the company can go into 
full operation ; and in the case of banks, it must be paid in specie 
in the absence of all provision to the contrary, before they can 
properly go into operation. 3 

3. In some cases it is a condition of the charter, or of the sub- 
scriptions to the stock, that the track of a railway shall touch 
certain points, or that it shall not approach within certain distances 
of other lines of travel. This class of conditions, so far as they 
can practically be denominated conditions precedent, must be 
strictly complied with, before the company can properly go into 
operation so as to make calls. 

4. But it has been held, that colorable subscriptions to stock, in 
order to comply with the requisites of the charter, are not to be re- 
garded as absolutely void. They are binding upon the subscribers 
themselves. And they are binding upon the other subscribers, 
unless upon their first discovery, they take steps to stay the further 
proceedings of the corporation, which may be done in a court of 
equity. If there has been unreasonable delay in opposing the 
action of the corporators, upon the faith of such subscriptions, or if 
matters have progressed so far before the discovery of the true 
character of the subscriptions, by the parties liable to be injuriously 
* affected by them, as to render it difficult to restore the parties 

8 King v. Elliott, 5 Sin. & Mar. 428 ; post, § 51. But a requirement in the 
charter of a railway company, that $1,000 per mile shall be subscribed, ami ten 
per cent paid thereon in good faith, does not require ten per cent to be paid by 
each subscriber, in order to the performance of the condition. It is a sufficient 
compliance with such requirement, if that proportion on the whole subscription 
be paid. Ogdensb., Rome, & Clay. R. v. Frost, 21 Barb. 541. But under the 
late English Statutes corporations are allowed to organize, and make calls to 
some extent, before all the capital is subscribed. Or. P. W. Co. v. Brown, 9 
Jur. (N. S.) 578 ; s. c. 2 H. & C. 63. But in America the rule that all the stock 
must be subscribed before the company can go into operation is strenuously 
adhered to. Shurtz v. The S. & T. Railw. Co., 9 Mich. 269. And upon gen- 
eral principles it seems not to be held indispensable in England that all the stock 
be subscribed, either to enable the corporation to go into operation, or even to 
borrow money on mortgage. McDougall v. The Jersey Imperial Hotel Co., 2 
H. & M. 528; 8. c. 10 Jur. (N. S.) 1043. But in America, the entire capital 
stock must be subscribed and paid in money, and it will not be sufficient to pay 
it in the equivalent for money, to the acceptance of the shareholders or directors, 
unless the charter or general laws of the State so provide. The People v. The 
Troy House Co., 44 Barb. 625. 

3 [*65,66] 



72 PROCEEDINGS UNDER THE CHARTER. PART II. 

to their former rights, the corporation will still be allowed to pro- 
ceed, notwithstanding the fraud upon the charter. 4 

5. Conditions subsequent in railway charters, by which is to be 
understood such acts as they arc required to perform after their 

mization, will ordinarily form the foundation of an action at 
law, in favor of the party injured ; or they may be specifically en- 
forced in courts of equity, in cases proper for their interference in 
that mode; or, if the charter expressly so provide, proceeding's by 
way of 8 8, to avoid the charter may be taken. 5 

6. Where a statute declares certain persons by name, and such 
other persons as shall hereafter become stockholders, a corpora- 
tion, the distribution of the stock, in the mode pointed out in the 
statute, is a condition precedent to the existence of the corpora - 
tion. 6 

7. Where the charter of a railway company appoints a certain 
number of commissioners, to receive subscriptions and distribute 
the stock, in such manner as they shall deem most conducive to 
the interests of the company, making no provision in regard to a 
quorum, all must be present to consult when they distribute the 
siock, although a majority may decide, this being a judicial act. 

Receiving subscriptions is a merely ministerial act and may be 
performed by a number less than a majority. 6 

4 Walker r.Devereaux, 1 Paige, 229 ; s. c. 1 Redf. Am. Railw. Cases, 29. The 
entire -round of chancery jurisdiction in regard to the conduct of commissioners 
or corporations in making colorable subscriptions of stock is lure, very fully dis- 
d by the learned Chancellor. And the conclusion arrived at seems the only 
practicable one, that colorable subscriptions or fraudulent distribution of stock 
will not defeat the legality of the organization of the corporation, unless the 
thing i arrested in limine. Johnston v. S. W. R. R. Bank, 3 Strob. Eq. 263; 
la & Tenn. U. v. Tipton. 5 Alabama, 787 ; Ilayne v. Beauchamp, 5 Sm. & M. 

515. The decision of the commissioners is conclusive upon the c pany and 

shan at law certainly. Crocker v. Crane, 21 Wendell, 211 ; s.c. lRedf. 

Am. Railw. Cases, 42. And where the charter, or act of association, names com- 

ike up subscriptions, they alone have jurisdiction of the matter, and 

Bubt iken up by volunteers are not binding upon the subscribers unless 

led h) the commissioners. Shurtz v. The S. & T. R. R. Co., 9 .Mich. 269. 

imm. 305, and notes. 

:ker v. Crane, 21 Wendell, 211; s. c. 2 Am. Railw. C. 484 ; s.c. 1 Redf. 

Am. Raih 12. Where the statute- nanus a large number of persons, and 

• '"' anj three of them, may act as commissioners, either the whole 

number or any three may acl at the election of the individuals. No particular 

form of words i required to create the grant of a corporation. The grant of 

[*67] 



§ 18. ORGANIZATION OF THE COMPANY. 73 

If the organization of a corporation is regular upon its face, and 
the legislature have recognized it as such subsequently to its having 
gone into operation, it becomes ipso facto a legal corporation. 7 

8. Questions in regard to the organization, or existence of the 
corporation, can only be raised ordinarily upon an express plea, 
either in abatement or in bar, denying its existence. 8 

9. But all the cases concur in the proposition, that the existence 
of the corporation, the legality of its charter, and the question of 
its forfeiture, cannot be inquired into, in any collateral proceeding, 
as in a suit between the compan}^ and its debtors, or others, against 
whom it has legal claims. 9 

10. The records of the corporation are prima facie, but not in- 
dispensable evidence, of its organization and subsequent proceed- 
ings. 10 But the authenticity of the books, as the records of the 

power to perform corporate acts implies the grant of corporate powers. Comm. 
v. West Chester Railw. Co., 3 Grant Cas. 200. 

7 Black River & Utiea Railw. v. Barnard, 31 Barb. 258. 

8 Boston Type and Stereotype Foundry v. Spooner, 5 Vt. 93, and cases 
cited; Railsback v. Liberty & Abington Tump. Co., 2 Carter. 656. But some 
cases seem to require such proof to establish the contract. Stoddard v. The 
Onondaga Annual Conference, 12 Barb. 573 ; Heaston v. Cincinnati & F. W. R., 
16 Ind. 275. A party who executes his promissory note to a company by its 
corporate name is estopped to deny its corporate existence. Fast l'aseagoula 
Hotel Co. r. West, 13 La. Ann. ,341. s. p. Black River Railw. v. Clarke, 25 
N. Y. 280. But in an action by a corporation upon a judgment, the defendant 
is estopped to plead that no such corporation exists, even if he propose to prove 
its dissolution after the date of the judgment. He should plead such matter 
specially. Perth Amboy Steamboat Co. v. Barker, 2 Phila. 67. But see Ander- 
son v. Kerns Draining Co., 14 Ind. 199. 

9 Duke v. Cahawba Nav. Co., 16 Alabama, 372; post, § 212, note 6. But 
in an action against a stockholder lor the debt of the company under the statute, 

-the existence and organization of the. company must be proved; and judg- 
ment against the company is not evidence against the stockholder. Hudson v. 
Carman, 20 Law Rep! 216; s. c. 41 Me. 84; C. P. & A. Railw. v. City of 
Erie, 27 Penn. St. 380. See also Eakright v. L. & N. I. Railw., 13 Ind. 404. 
The subscription to the stock of a corporation estops the subscriber to deny 
the corporate existence, nor can the subscriber plead in defence of such sub- 
scription that other subscribers, by means of secret fraudulent agreements, 
were promised shares upon terms different from those specified in the agreement, 
since such fraudulent arrangements are of no validity, and cannot avail the par- 
ties on whose behalf they are made. Anderson v. N. & R. Railw., 12 Ind. 876. 

10 Aug. & Am. §513; Grays v. Lynchb. & Salem T. Co., 1 Rand. 578; Bun- 
combe T. Co. v. McCarson, 1 Dev. & Bat. 306; 1 Greenl. Ev. § 493; Rex r. 
Martin, 2 Camp. 100; Hudson v. Carman, 20 Law Rep. 216; s. C. II Me. 84. 

1*01] 



74 PROCEEDINGS UNDER THE CHARTER. PART IT. 

'corporation, must be shown by the testimony of the proper 
officer entitled to their custody, or that of some other person cog- 
nizant of the fact. 11 

11. Questions sometimes arise as to what constitutes member- 
ship in a corporation. This has to be determined, in most aggre- 
gate corporations, by the just construction and fair import of the 
charter and by-laws of the body. The usage of the corporation 
and of other similar bodies will be of controlling force in deter- 
mining such questions. But the power of maintaining, in some 
mode, a supply of members of the body, is incident to all corpora- 
tions, as indispensable to its continued existence. 12 

All that a corporation is called upon to prove, to establish its existence in a 
litigation with individuals dealing with it, is its charter and user under it. This 
constitutes it a corporation de facto, and this is sufficient, in ordinary suits, 
between the corporation and its debtors. The validity of its corporate exist- 
ence can only be tested by proceedings in behalf of the people. Mead v. 
Heeler, 24 Barb. 20. Between the company and strangers, the records of 
the company will ordinarily be held conclusive against them in regard to such 
matters as it is their duty to perform, in the manner detailed in the records. 
Zabriskie ». C. C. & C. Railw., 10 Am. Railw. Times, No. 15 ; s. c. affirmed, 23 
How. 381; Ileaston v. Cincinnati, &c. Co., 16 Ind. 275. See upon the gen- 
eral question of proof and presumption of the organization of corporations, 
Leonaidsville Bank v. Willard, 25 X. Y. 574 ; Belfast and Angelica Plank 
Road Co. v. Chamberlain, 32 N". Y. 651 ; Buffalo & Allegany Railw. v. Cary, 
26 N. Y. 75. Where the statute under which an incorporation is formed in 
another state, required, that before the corporation should commence business 
it should cause its articles of association to be published in a prescribed form, it 
was held that it might be regarded as sufficiently incorporated for the bringing 
of an action without the publication ; and that the general reputation and 
notoriety of the fact that such corporation was doing business in that capacity, 
coupled with the fact that the contract sued upon was made payable to them, 
was sufficient evidence of the corporate existence. Holmes v. Gilliland, 41 
Barb. 568. See Unity Ins. Co. v. Cram, 43 N. H. 636, where the rule of con- 
struction is somewhat more strict. 

There seems to be no rule of practice better settled than that where the de- 
fendant, in a suit brought by a corporation, pleads the general issue, he thereby 
concedes the right of the plaintiff to sue in his corporate capacity. Orono v. 
Wedgeworth, 44 Me. 49. The members of a mutual insurance company can- 
not.dispute the corporate existence in a suit upon the premium notes in favor of 
a receiver appointed to wind up the concerns of the company. Hyatt v. Whip- 
ple, 37 Barb. 595. Misnomer of corporations must be plead in abatement, or it 
will be regarded as waived. Keech v. Bait. & Wash. Railw., 17 Md. 32. 

11 Highland Tump. Co. v. McKean, 10 Johns. 154. See Breedlove v. M., 
&c. Railw. Co., 12 Ind. 114. 

12 Hicks v. Launceston, 1 Roll. Ab. 513, 514 ; s. c. 8 East, 272, in n. See also 

[*68] 



§ 19. MODIFICATION AND ACCEPTANCE OF THE CHARTER. 75 

*12. But in joint-stock business corporations, like banks and 
railways, and other similar companies, membership is originally 
constituted by subscription to the shares in the capital stock ; and 
it is subsequently continued by the transfer of such shares, in con- 
formity with the charter and by-laws of the company, and no 
election by or assent on the part of the corporation is requisite, 
unless made so by the charter or by-laws. 

13. Serious questions often arise in regard to the allotment and 
acceptance of shares. Courts of equity have sometimes declined 
to interfere to carry into effect, specifically, contracts with the pro- 
moters to accept shares in the company when it should be fully 
organized. 13 But we apprehend the rule is generally otherwise, as 
we have stated elsewhere. 14 And one who has made the requisite 
deposit and also the formal application to the company for an 
allotment of shares, is still at liberty to withdraw the application 
at any time before it is accepted or any allotment made. 15 



SECTION II. 
Acceptance of Charter, or of Modification of it. 



1. New or altered charter must be formally 

accepted. 

2. Subscription for stock sometimes sufficient. 

3. Inoperative unless done as required. 



[>. }[ittter of presumption and inference. 

6. Organization or acceptance of charter may 

be shown by parol. 

7. Corporators assenting are bound. 



4. Assent to beneficial grant, presumed. \ 8. Charter subject to recall until accepted. 

§ 19. 1. It is requisite to the binding effect of every legislative 
charter (or modification of such charter) of a joint-stock company, 

2 Kent, Comm. 294. It is not competent for the defendant, in an action in favor 
of a corporation, to plead that the company lias committed acts working a for- 
feiture of its corporate franchises. That can only be determined by a suit on 
behalf of the public, brought expressly to try that question. Comm. v. Morris, 
1 Phil. 411; Coil v. Pittsburgh Female College, 40 Penn. St. 430; Dyer v. 
Walker & Howard, id. 157. Membership in the corporation is not affected by 
the certificate of shares containing a promise to pay interest till a certain time. 
McLaughlan v. D. & M. R. Co., 8 Mich. 100. 

13 Oriental I. St. Co. v. Briggs, 2 Johns. & II. 025 ; s. c. 4 L. Times (N. S.), 
578. But this case was affirmed by the Lord Chancellor, on the ground that 
there was no valid or complete contract. 5 L. Times (N. S.), 477. 

14 Post, § 34, pi. 0. 

15 Graham ex parte. 7 Jur. (N. S.) 981. 

[*69] 



76 PROCEEDINGS UNDER THE CHARTER. PART II. 

* tliat it should be accepted by the corporators. 1 This question 
more commonly arises, in regard to the modification of a charter, 
or the granting of a new charter, the company in either case, 
whether under the old or the new charter, going forward to all 
appearance much the same as before. In such case, it has usually 
been regarded as important to show some definite act of at least a 
majority of the corporation. 2 

2. The question of acceptance becomes of importance often, 
where a partnership, or some of its members, obtain an act of in- 
corporation. But ordinarily, in the first instance, the assent of 
the stockholders, or corporators, is sufficiently indicated by the 
mere subscription to the stock. 

3. Where a statute in relation to a corporation requires accept- 
ance, in a prescribed form, and that is not complied with, the cor- 
poration can derive no advantage from the act. 3 

4. It has been held, that grants beneficial to corporations may 
be presumed to have been accepted by them, the same as in the 
case of natural persons. 4 ■ 

5. And in the majority of instances, perhaps, the acceptance is 
rather to be inferred from the course of conduct of the company 
than from any express act. 5 

6. It may always be proved by oral testimony, as may also the 
organization of the company, ordinarily. 6 

7. In a case in Ohio, where an amendment of the charter 
of a bank was passed by the legislature giving the bank certain 
immunities and privileges, upon the assent of all the stockholders 
in writing, filed with the auditor of the state, to become personally 
responsible for the liabilities of the company in the manner pre- 

1 The King v. Pasmore, 3 T. R. 200, 240 ; Ellis v. Marshall, 2 Mass. 269. 
This was a charter to certain persons by name, for the purpose of making a street, 
and subjecting them to assessment for the expense, and it was held not to bind 
a person named in the act, unless he assented to it. 

2 Wilmot, J., in Rex v. Vice-Ch. of Cambridge, 3 Bur. 1647 ; Rex v. Amery, 
1 T. R. 57."; ; Falconer v. Campbell, 2 McLean (C. C), 195. 

3 (ire n r. Seymour, :i Sandf. Ch. 285. 

* Charles River Bridge v. Warren Bridge, 7 Pick. 344; by Parker, C. J., 
and Wilde, J. 

3 Hank of U. S. v. Dandridge, 12 Wheat. 64, opinion of Story, J., and cases 
f-itcd. 

lin v. Collins, 17 Maine, 440; Bank of Manchester v. Allen, 11 Vt. 302; 
Angcll & Ames. Corp. ^ 81-87 ; Dartmouth College v. Woodward, 4 Wheat. 
688 ; Wilmington & Manchester R. v. Saunders, 3 Jones, 126. 
[*70] 



§ 20. ORDINARY CORPORATE POWERS. 77 

scribed * in the act, it was held, that although all the stockholders 
did not subscribe the required written declaration, yet if the bank 
had enjoyed the benefits secured by the amendment, neither those 
stockholders who did subscribe it, or the bank itself, can deny 
the acceptance of the amendment, as against the claims of third 
persons. 7 

8. And where the constitution of the state is so altered as to 
prohibit the grant of special acts of incorporation, it was held, that 
such an act granted before the new constitution took effect, and 
which had not been accepted by the corporators, could not be 
accepted, thereafter ; as the grant of a charter to those who had 
not applied for it, until it was accepted, remained a mere offer, and 
might be withdrawn at the pleasure of the grantors. 8 But where 
any amendment of the charter of a corporation was fully accepted 
by the shareholders before the new constitution took effect, it can- 
not be affected by any of the provisions thereof ; and what shall 
amount to such acceptance is matter of fact, depending upon the 
construction of the facts proved. 9 



SECTION III. 

Ordinary powers — Control of majority. 



10. But will, if to convert canal into railway. 

11. Right to interfere lost by acquiescence. 

12. Acquiescence of one plaintiff, fatal. 

13. Railway a public trust. 

14. Suit maintained by rival interest. 

15. Courts of equity will not restrain the 

majority from winding up unless for 
fraud, ; \-r. 



1. Ordinary franchises of railways. 

2, 3. Majority control, unless restrained. 

4. Cannot change organic law. 

5. Except in the prescribed mode. 

6. Cannot accept amended charter. 

7. Or dissolve corporation. 

8. May obtain enlarged powers. 

9. Courts of equity will not restrain the use 

of their funds for that purpose. 

§ 20. 1. The ordinary powers of a railway company are the 
same as those pertaining to other joint-stock aggregate corpora- 

7 Owen v. Purdy, 12 Ohio (N. S.), 73. And a legislative permission to a 
plank road company to mortgage its corporate property is an amendment which 
may be accepted by the vote of the majority. And the same is true of all amend- 
ments calculated merely to facilitate the attainment of the existing objects and 
purposes of the corporation. Joy v. Jackson & Michigan Plank Road Co., 11 
Mich. 155. 

8 State v. Dawson, 16 Ind. 40. 

9 State v. Dawson 22 Ind. Rep. 272. 

[*71] 



78 PROCEEDINGS UNDER THE CHARTER. PART II. 

tions, unless restricted by the express provisions of their charter, 
* or by the general laws of the state. These are perpetual succes- 
sion, the power to contract, to sue and be sued by the corporate 
name, to hold land for the purposes of the incorporation, to have a 
common seal, and to make its own by-laws or statutes, not incon- 
sistent with the charter, or the laws of the state. 1 And it may be 
proper to say, that it is implied in the grant of all business cor- 
porations, that they possess the power to acquire and convey such 
property, both real and personal, as shall be found reasonably 
necessary and convenient, for carrying into successful operation 
the purposes of their incorporation. And when there is no limita- 
tion upon this power, in the act of incorporation, it can only be 
limited by writ of mandamus or injunction, out of chancery, at the 
suit of the attorney-general, or by some other proceeding on the 
part of the people. Until some such public interference, the title 
of the corporation will be good. 

2. The right of the ma ority of a joint-stock company, whether 
a copartnership or a corporation, to control the minority, is a con- 
sideration of vital importance, and will be more extensively dis- 
cussed hereafter. 2 

3. There can be no doubt the general principle of the right of 
the majority to control the minority, in all the operations of the 
company, within the legitimate range of its organic law, is 
implied, in the very fact of its creation, whether expressly con- 
ferred or not. 3 

4. And perhaps it is equally implied in the fundamental com- 

1 Walford, 69 ; 1 Black. Comra. 475, 476 ; 2 Kent, Coram. 277 ; where the 
power of amotion of members for just cause is added. 

! Post, §§ 56, 212. 

3 Louisville, Cincinnati, & Charleston Railw. v. Letson, 2 Howard (U. S.), 
497 ; s. c. 15 Curtis, Cond. 193. The very definition of a corporation, that it is 
an artificial being composed of different members, and existing and acting as an 
abstraction, and having its habitation where its functions are performed, presup- 
poses that it must act in conformity with its fundamental law, which is according 
to tin- combined results of its members, or the will of the majority. But this 
will cannot change its fundamental law without changing the identity of the arti- 
ficial being to which we apply the name of the corporation. See also St. Mary's 
Church, 7 S. & R. 517 ; New Orleans, Jackson, &c. Railway v. Harris, 27 Miss. 
517 : Ex parte Rogers, 7 Cowen, 526, which holds, that if the charter requires a 
certain number to be present, in order to the performance of a particular act, it 
is requisite that the number remain till the act is complete, and if one depart 
before, although wrongfully, it will defeat the proceedings. 
[*72] 



§ 20. ORDINARY CORPORATE POWERS. 79 

pact, that the majority have no power to change the organic law of 
* the association, except in conformity to some express provision 
therein contained. 

5. This principle lies at the foundation of all the political or- 
ganizations in this country, which, in theory certainly, are not 
liable to be changed by the will of the majority, except in the mode 
pointed out in the constitution of the state or sovereignty. And 
corporations are not subject to the ultimate right of revolution, 
which is claimed to exist in the state, and which may be exercised 
by the lav/ of force, which is a kind of necessity, to which all sub- 
mit, when there is no open way of escape. This could have no 
application to a commercial company, whose movements are as 
much under the control of the courts of justice as those of a 
natural person. 

6. And in this country it has been held, that the acceptance by 
the majority of a corporation of an amendatory act, does not bind 
the minority. 4 An amendment to the charter of a corporation to 
become binding, must either have been applied for in pursuance of 
a vote of the stockholders, or else have been accepted by such vote ; 
or it must have been acted under for such a length of time as to 
raise a reasonable presumption of knowledge in the shareholders 
and subsequent acquiescence. 5 

7. And a contract of a manufacturing corporation to employ the 
plaintiff, a stockholder, during the time for which the corporation 
is established, that being indefinite, is not released by a majority 
of the company voting to dissolve the corporation and wind up its 
concerns, discharging the plaintiff from his employment, and trans- 
ferring the property to trustees, to pay the debts and distribute the 
surplus among the stockholders, and giving notice to the executive 
department of the state, that they claimed no further interest in 
their act of incorporation. 6 

4 New Orleans, &c. Railroad v. Harris, 27 Miss. 517. But this rule will be 
understood with some limitations. If it be an amendment within the ordinary 
range of the original charter, giving increased facilities for the accomplishment 
of the same objects, it may be accepted by the majority, so as to bind the whole 
company. But if it be a fundamental alteration of the constitution of the com- 
pany, it must have either the express or implied assent of all the corporators, to 
make it binding. Post, pi. 8; § 56, pi. 3, 7. 

5 Illinois River Railw v. Zimmer, 20 111. 654 ; Same v. Casey, ib. 

6 Revere v. Boston Copper Co., 15 Pick. 351. This case, although put mainly 
upon the ground of plaintiff's rights being independent of the law of the asso- 

[*78] 



80 PROCEEDINGS UNDER THE CHARTER. PART II. 

* 8. But the English cases seem to suppose, that it is incident 
to every business corporation to obtain such extension and enlarge- 
ment of its corporate powers as the course of trade, and enterprise, 
and altered circumstances, shall render necessary or desirable, not 
altogether inconsistent with its original creation. 7 

9. Bence it was held that a court of equity will not, at the in- 
stance of a shareholder, restrain a joint-stock incorporated com- 
pany, whose acts of incorporation prescribe its constitution and 
objects, from applying, in its corporate capacity, to parliament, and 
from using its corporate seal and resources, to obtain the sanction 
of the legislature, to the remodelling of its constitution, or to a 
material extension and alteration of its objects and powers. 7 

10. Jn one case where the purpose of the company was to apply 
to parliament for leave to convert part of its canal into a railway, 
the Vice-Chancellor granted the injunction against applying any 
of its existing funds to the proposed object. 8 This is the more 
common view of the subject in this country, and to a great extent 
in England. 9 

ciation, yet incidentally involves the right of the majority of the corporators to 
change its constitutional law. See also Von Schmidt v. Huntington, 1 Cal. 55, 
and Kean v. Johnson, 1 Stockton, Ch. 401, where it is held, that where the 
charter is granted for a limited time, it must continue in operation till the term 
expires, unless, perhaps, in case of serious loss, or with the consent of all the cor- 
porators, and others having any legal interest in the question. The same rule 
was declared in Louisiana. Lodge No. I. v. Lodge No. I., 16 La. Ann. 53. 
And it was here considered, that a resolution passed by the majority of the 
members of a corporation donating all the property of the company to a new 
corporation of which the members voting are also members, and the delivery of 
the same to such corporation in pursuance of such resolution, is void. 

7 Ware v. Grand Junction Waterworks, 2 Russ. & My. 470; (13 Eng. Ch. 
Rep. 12*'.). Lord Brougham seems here to suppose, that the right of petition to 
parliament, for enlargement of powers, is an implied incident of all business cor- 
porations, by which the subscribers are bound, unless some express prohibition 
is inserted in their charter. But the more common implication in this country 
certainly is, that the original shareholders are not bound by any such alteration, 
unless such power exists, in terms, in the original charter, or it is merely auxili- 
ary to its existing powers. 

H (unliil ,. Manchester & Bolton Canal Co., 2 Russ. & My. 480, in note. 
But it is here stated, that a few days afterwards, one Maudsley filed a bill against 
the same company and for a similar object. The cause was heard on its merits, 
and the suit dismissed with costs. Any act beyond the scope of the constitution 
of the company requires the consent of all the members. Burmester v. Norris, 
6 Exch. 796 ; 8. c. 8 Eng. L. & Eq. 487. 

9 Post, §§ 56, 181, 212. 

[*74] 



§ 20. ORDINARY CORPORATE POWERS. 81 

11. But this right of the minority of the shareholders to inter- 
fere * by way of injunction, to restrain the majority from obtaining 
permission to alter the constitution of the corporation, may un- 
doubtedly be lost by acquiescence. 10 Thus where the share- 
holders knew of the purpose of the directors to apply the funds 
of the company to the construction of part only of the road, to the 
abandonment of the remainder, and remained passive for eighteen 
months, while the directors were applying large sums to the 
completion of this part only, the court refused to interfere by 
injunction. 10 

12. And if one of the shareholders, who has acquiesced in the 
diversion of the funds, be joined in the suit with others who have 
not, no relief can be afforded. 11 And there can be no doubt of the 
soundness of this principle, although the effect of its application 
may be to produce a fundamental alteration of the constitution of a 
corporation, and thus to enable them to do what they had no power 
before to do. But this is only applying to the case the principle of 
implied consent of all the shareholders, resulting from silence, 
which is all that is requisite in any case, to legalize the alteration 
of the charter of a private corporation. 

13. It is said in one case by an eminent equity judge, Vice- 
Chancellor Stuart : 12 " although generally speaking" " there can 
be no doubt of the soundness of the principle, that the directors 
and the majority of the company may be restrained from employing 
money, subscribed for one purpose, for another, however advan- 
tageous," " and although this is the law as to joint-stock com- 
panies, unincorporated and unconnected with public duties* or 
interests, it has not been applied to corporate companies for a pub- 
lic undertaking, involving public interests and public duties under 
the sanction of parliament. In such cases the court of chancery 

10 Graham v. Birkenhead, &c. Railway, 2 Mac. & G. 146 ; s. c. G Eng. L. & 
Eq. 132; Beman v. Rufford, 1 Sim. (N. S.) 550. Lord Cranwortk says, " This 
court will not allow any of the shareholders to say, that they are not interested 
in preventing the law of their company from being violated." Ffooks v. London 
& S. W. R., 1 Sm. & G. 142 ; s. c. 19 Eng. L. & Eq. 7. But one creditor of 
a corporation cannot, by injunction, restrain another creditor of the same grade 
from obtaining prior payment by virtue of an execution issued upon a prior 
judgment. Gravenstine's Appeal, 49 Penn. St. 310. 

11 Ffooks v. London & S. W. R., 1 Sm. & G. 142; s. c. 19 Eng. L. &Eq. 7, 
opinion of Stuart, V. C. and cases cited. 

12 Ffooks v. London & S. W. R. supra, 

vol. i. 6 [*75] 



82 PROCEEDINGS UNDER THE CHARTER. PART II. 

has * permitted the use of the corporate seal, and the moneys of the 
company, to obtain the sanction of parliament to purposes ma- 
terially altering the interests of the shareholders, according to the 
contract inter se. This was done in the case of Stevens v. South 
Devon Railway Company." 13 The learned judge therefore con- 
cludes, that although the principle first stated by him may apply 
to the case of public railway companies in general, " it must be 
taken to be subject to many qualifications, and requiring much 
caution and consideration" in its application. 

14. The same learned judge further adds, upon the important 
subject of such proceeding being taken by one in the interest of a 
rival company : " It has been suggested that this suit is constituted 
to serve the purposes of another set of shareholders. If it had 
been established that the real object of seeking this injunction had 
been to serve the interests of a rival company, I should have con- 
sidered that a circumstance of great importance in determining 
the rights of the plaintiffs to any relief. No doubt it has been held 
in several cases, that the mere fact that the plaintiffs are share- 
holders in a rival company is no reason for the court in a proper 
case refusing its aid to prevent the violation of contracts. But 
when the fact is established, that, under the pretence of serving 
the interest of one company, the shareholders in a rival company 
by purchasing shares for the purpose of litigation, can make this 
court the instrument of defeating or injuring the company into 
which they so intrude themselves, in order to raise questions and 
disputes on matters as to which all the other members of the com- 
pany may be agreed, I cannot consider that in such a case it is the 
province of this court ordinarily to interfere. In questions on the 
law of contracts, where there is a discretionary jurisdiction in this 
court, circumstances affecting the condition of the contracting 
parties, and the origin and situation of their rights in relation to 
the subject-matter of the contract, deserve great consideration. 

15. But in a later English case 14 it was determined by Vice- 
Chancellor Wood, that the court will not, upon the application of 
the minority of the members of a corporation, interfere with a 
resolution of the company voluntarily to wind up its concerns 
unless the resolution was obtained by fraud, or by overbearing 
conduct, or by improper influences. 

13 13 Beavan, 48; s. c. 12 Eng. L. & Eq. 229; s. c. 9 Hare, 313. 

14 lie The Imperial Mercantile Credit Association, 12 Jur. (N. S.) 739. 

[*7b] 



§21. 



MEETINGS OF COMPANY. 



83 



* SECTION IV. 



Meetings of Company. 



1. Meetings, special and general. 

2. Special, must be notified as required. 

3. Special and important matters, named in 

notice. 

4. Notice of general meetings need not name 

business. 

5. Adjourned meeting, still the same. 

6. Company acts by meetings, by directors, by 

agents. 

7. Courts presume meetings held at proper 

place. 



8. Every shareholder may vote, but not by 

proxy. 

9. General owner of shares entitled to vote 

and act as member. 

10. Trustees act as owners. 

11. If a corporation issue stock in the name 

of B. to secure a debt, which it owes to 
A., no one can vote upon the same. 

12. Shares held as collateral security cannot 

be changed. 



§21. 1. By the English statutes meetings of railway companies 
are distinguished as " ordinary " and " extraordinary." That dis- 
tinction, in this country, is expressed by the term general and 
special. Ordinary meetings are the annual and semi-annual meet- 
ings of the company, and such others as are held at stated times 
and for defined objects, according to the provisions of the charter 
and by-laws ; and extraordinary meetings are such as are held by 
special call of the directors, or other officer, whose duty it is made 
to call meetings of the company, in certain contingencies usually 
denned by the statutes. 1 

2. Notice of special meetings must be issued in conformity to 
the charter and statutes of the corporation, and, where no special 
provision exists, must be given personally to every member. 2 

3. Notice of special meetings should ordinarily specify the gen- 
eral purpose and object of the call. But it is said this is not 
indispensable, when it is for the transaction of ordinary business, 
and that giving security for the debt of a bank, by mortgage of 

1 8 & 9 Vict. c. 16, § 66. . 

2 Wiggin v. Freewill Baptist Society, 8 Met. 301. This view seems to be 
countenanced by Lord Kenyon, in Rex v. Faversham, 8 T. R. 352 ; Rex v. May, 
5 Burrow, 2681 ; The King v. Langhorn, 4 Ad. & El. 538. See, also, cases 
cited in the argument of this case. But all the cases agree, that if the members 
attend even without notice, it is sufficient. The King v. Theodorick, 8 East, 
543. A meeting may be general for most purposes, and also special for a par- 
ticular purpose ; Cutbill v. Kingdom, 1 Exch. 494. 

[*77] 



g 1 PROCEEDINGS UNDER THE CHARTER. PART II. 

its real estate, is oi' this character. 8 But where the business is 
unusual and important, as the election or amotion of an officer, 
tin' making of by-laws, or other matter affecting the vital interests 
and fundamental operations of the corporation, and on a day not 
* appointed for the transaction of business of this character, or of 
all business of the corporation, the notice must state the business, 
or the action upon it will be held illegal and void. 4 

I. But, as a general rule, it may be safely affirmed, perhaps, 
that in regard to general meetings of the company, which are for 
the transaction of all business, no notice of the particular business 
to be done is necessarj . And all the members of the corporation 
are presumed to have notice of their stated meetings and are bound 
by the proceedings at such meetings : but there is no presumption 
that they know what is done at such meetings, so as to affect them 
with notice of any thing done there contemplating future action 
at any other time than the stated meetings. 6 

5. The adjournment of a general meeting is not a special meet- 
ing, hut the mere continuance of the general meeting, and requires 
no notice of the business to he transacted. 5 But if the adjourned 
meeting be for the transaction of any other business than the mere 
completion of the unfinished business of the stated or special meet- 
ing, as the case may he ; and more especially where the business 
is of a character which could not have been legally transacted at 
the former meeting, it will not afford any warrant for its legality 
that it is done at an adjourned meeting from one legally consti- 

3 Savings Bank v. Davis, 8 Conn. 191. 

• Hex v. Doncaster, 2 Burr. 73S ; Angell & Ames, §§ 488-496. In the case 
of Zabriskie v. C. C. & C. Railw., before the District Court for the Northern 
District of Ohio, 10 Am. Railw. Times, No. 15; s. C. affirmed 23 How. (U. S.) 
3S1 ; this subject i> discussed by Mr. Justice McLean, and he concludes, that 
where the question to be determined by the company was the guaranty of the 
bonds of a connecting railway to a large amount, under the statute of the state, 
which reijuired the consent of a meeting of the shareholders, in which two-thirds 
of the capita] stock should be represented, it was indispensable that the call for 
the meeting should state the business to be transacted, and should be given long 
enough before the time of the meeting to enable the remotest shareholders in the 
country to obtain notice and be able to attend, or communicate with their agents, 
or proxies, and also to enable the resident agents of foreign shareholders to com- 
municate with the owners. This seems but a just and reasonable limitation upon 
the power of corporations, in regard to special meetings. 

Warner r. .Mower, 11 Vt. o$o; s. c. 1 Redf. Am. Railw. Cases, 78; Wills 
v. Murray, 4 Exch. 843. 

6 The People r. Batchelor, 22 N. Y. 128. 

[*78] 



§ 21. MEETINGS OP COMPANY. 85 

tuted originally. 7 But the publicity and general notoriety of a 
transaction may be sufficient * ground for presuming knowledge of 
the appointment of one to a corporate office, even to the extent of 
subjecting such corporator to a penalty for non-acceptance. 8 

6. By the English statutes, railways may act in either of three 
modes : First, By the general assembly of the shareholders, which, 
as between them and the directors and other agents of the com- 
pany, has supreme control of its affairs ; Second, By its directors ; 
Third, By its duly constituted agents. 9 The same general princi- 
ple is applicable in this country, and at common law. 

7. And where the by-laws require the meetings of the company 
to be held at a particular place, as the counting-house of the 
company, and the record, or evidence does not show that the 
meetings were held at a different place, it will be presumed they 
were held at the place designated. 10 

8. Every shareholder is, ordinarily, entitled to participate in the 
meetings of members of the corporation duly called, and to vote 
upon all his shares, according to the mode prescribed in the char- 
ter and by-laws of the company, and in conformity with the gen- 
eral laws of the state. But it seems not well settled whether a 
by-law of the corporation will be sufficient to entitle the members 
to vote by proxy, and whether some legislative sanction is not 
requisite to that effect. 11 But where the charter provided that 
" each person being present at an election shall be entitled to 
vote," it was held to mean actual presence, and votes by proxy 
were properly excluded. 12 

9. The question is sometimes made, where shares are held by 
creditors as collateral security for debts, which party, the debtor 
or the creditor, is entitled to represent the shares, so held, in the 
meetings of the company. Upon general principles the party who 

7 People v. Batchelor, 22 N". Y. 128; Scadding v. Lorant, 5 Eng. L. & Eq. 
16. See Smith v. Law, 21 N. Y. 296. 

8 City of London v. Vanacre, 5 Mod. 438. 

9 Walford on Railways, 70. 

10 McDaniels v. Flower Brook Man. Co., 22 Vt. 274. 

11 State v. Tudor, 5 Day, 329 ; where, in mere business corporations, it was 
considered that a by-law was sufficient to give the power to vote by proxy. But 
in Taylor v. Griswold, 2 Green, 222, the contrary opinion is maintained. See 
also, 2 Kent, Coram. 294. There seems no question that in public and elee- 
mosynary corporations the members must attend in person. 

12 Broom v. Coram. 2 Phill. 156. 

[*79] 



86 PROCEEDINGS UNDER THE CHARTER. PART II. 

pledges or mortgages, or in any other mode hypothecates, shares as 
security for a debt, is still to be regarded as the general owner, 
and entitled to all the privileges and subject to all the responsibili- 
ties of owner. 18 

10. Trustees, whether testamentary or executors, guardians, or 
others holding shares in joint-stock companies for the ultimate 
benefit of others, are generally entitled to act as members, and are 
responsible as such, without reference to the extent of their in- 
terest or the amount of the trust estates. 14 But in New York even 
this is denied where the cestui que trust is sui juris, and, as said, 
the latter is entitled to vote upon the shares and to act as member, 
by virtue of the interest vested in the trustee for his benefit. 15 

11. And in California, 16 where a certificate of shares was issued 
by a corporation in the name of B., in order to secure a debt of the 
corporation due to A., it was held that the same was illegally issued 
and that no one could vote upon it. B. could not, because he was 
a mere trustee for A., and, as between them, whatever interest was 
created vested beneficially in A. And A. could not vote upon the 
stocks because his property was not that of the general owner, but 
that of a pledgee. And the corporation could not vote upon its own 
stock. 

12. Where shares are passed as collateral security, it is incum- 
bent upon the holder to return the identical shares received by 
him, whenever the purposes of the pledge are answered. And if 
the shares have been sold, and others purchased by the transferee 
at a less price, the transferor will be entitled to the difference. 
But if the transferor have parted with the shares, before he is 
aware that they have been changed, he cannot maintain a bill to 
restore the shares originally transferred, since he will be bound to 
first restore those received by him. 17 

13 dimming v. Prescott, 2 Yo. & Coll. Eq. Exch. 488 ; Ex parte Willcocka, 7 
Cow. 402 ; Barker, Ex parte, 6 Wend. 509 ; McDaniels v. Flower Brook Man. 
Co., 22 Yt. 274. Tlie same is declared by statute in Massachusetts. Gen. Stat. 
c. 68, § L3. 

14 Hoare, Ex parte, 2 Johns. & Hem. 229; s. c. 8 Jur. (N. S.) 713; Fearne 
& Deane's Case, Law Rep. 1 Ch. App. 231. 

15 Holmes, Ex parte, 5 Cow. 426. See post, § 40, pi. 5, and cases cited. 

16 Brewster v. Hartley, 37 Cal. 15. 

17 Langton v. Waite, 17 W. R. 475. 

[*79] 



§22. 



ELECTION OP DIRECTORS. 



87 



* SECTION V. 



Election of Directors. 



1. Should be at general meeting, or upon spe- 

cial notice. 

2. Shareholders may restrain their authority. 



3. Company bound by act of directors, de 

facto. 

4. Act of officer de facto, binds third persons. 



§ 22. 1. The election of directors is regarded as more important 
to the interests of the company than most other business, inas- 
much as, when duly elected, they hold office for a considerable 
term, and have all the powers of the corporation in regard to the 
transaction of its ordinary business, unless specially restrained. 
They should, therefore, be elected at the regular meetings of the 
company, and even vacancies should not properly be filled at 
special meetings, unless special notice of that particular business 
had been given according to the laws of the company, which in- 
clude its charter and statutes, and the general laws of the state 
applicable to the subject. 

2. The shareholders may, in a proper assembly, pass statutes, 
general or special, which shall control the directors, as between 
them and the company. 1 Where the by-laws of the company 

1 But where the charter vests the control of the concerns of the company in 
a select board or body, the shareholders at large have no right to interfere with 
the doings of these, their charter agents. Commonwealth v. Trustees of St. 
Mary's Church, 6 Serg. & R. 508; Dana v. Bank of the United States, 5 Watts 
& Serg. 223, 247; Conro v. Port Henry Iron Co., 12 Barb. 27. And courts 
are always reluctant to interfere with the conduct of directors of a corporation, 
even at the instance of a majority of the shareholders, and ordinarily will not, 
when such directors have acted in good faith. State v. The Bank of Louisiana, 
6 La. 745. 

But in Scott v. Eagle Fire Co., 7 Paige, 198, it was held, that "the directors 
of a joint-stock corporation may be compelled to divide the actual surplus profits 
of the company among its stockholders from time to time, if they neglect or 
refuse to do so, without any reasonable cause. But if they abuse their power to 
make dividends of surplus profits, by dividing the unearned premiums received 
by them, without leaving a sufficient fund, exclusive of the capital stock, to sat- 
isfy the probable losses upon risks assumed by the company, it seems they will 
be personally liable to such creditors of the company, if, in consequence of ex- 
traordinary losses, the company should become insolvent so as to be unable to 
pay its debts. 

[*80] 



SS PROCEEDINGS UNDER THE CHARTER. PART II. 

require notice of the meeting for electing directors, but do not 
specify tin' time or mode of such notice, it must be given accord- 
inn * to the requirements of the general statutes of the state upon 
the subject. 2 

:'.. Bui the company cannot object that its directors, who have 
acted as such, were not elected at a meeting properly notified. 3 
Nor can the validity of the acts of the directors be collaterally 
called in question on the ground of irregularity in the notice of 
the meeting at which the}' were elected. 4 Where the charter 
fixes the number of directors, and vacancies occur, the act of 
the board is not thereby invalidated, provided a quorum still 
remains. 5 

4. An election of directors will not be set aside, because the 
inspectors of the election were not sworn as required by the 

2 Matter of Long Island Railroad, 19 Wend. 37 ; s. c. 2 Am. Railw. C. 453. 

3 Sampson v. Bowdoinham Steam Mill Co., 36 Maine, 78. Where persons 
have acted as directors of a railway company, the court will not summarily 
inquire into the validity of their appointment. Tindal, C. J., said: " If the 
shareholders allow parties to act as directors, it may be they have no right to 
turn round in a court of justice and say, that such parties were not properly 
elected." The Thames Haven Dock & Railw. Co. v. Hall, 5 Man. & Gr. 274- 
286. In one case, Port of London Assurance Company's case, 5 DeG., M. & G. 
165 : S. C. •">■"> Eng. L. & Eq. 178, one registered insurance company agreed to sell 
its business to another registered insurance company, and a deed of assignment 
was accordingly executed, whereby the latter company covenanted to indemnify 
the former against all claims. After the business had been carried on for some 
time by the purchasing company, that company failed, and both companies were 
wound up under the Winding-up Acts. On the official manager of the selling 
company tendering a proof against the purchasing company, in respect of claims 
satisfied by the selling company, one part of the deed of assignment was pro- 
duced having affixed to it the seal of the purchasing company, but another part, 
alleged to have been executed by the selling company, was not forthcoming. 

Held, fust, that after what had taken place, it was unnecessary to determine 
whether the selling company had executed the purchase-deed, or whether its 
din- tors hail exceeded their powers in making the sale. 

Secondly, that where a purchaser has enjoyed the subject-matter of a contract, 
every presumption must be made in ftivor of its validity. 

Thirdly; that if all the proceedings on the part of the directors of the 

purchasing company, with reference to the purchase, had not been in strict 

accordance with their own deed of settlement, still, if the contract with the other 

any was the means of the purchasing company coming into existence, they 

could cot acl in eontravention of that contract. 

' I Ihamberlain v. Painesville & Hudson Railw. Co., 15 Ohio (N. S.), 225. 

6 Walford on Railw. 71, 72 ; Thames Haven R. v. Rose, 4 M. & G. 552. 

[*81] 



23. 



MEETINGS OF DIRECTORS. 



89 



statute. This statute is merely directory, and, so far as third per- 
sons are * concerned, it is sufficient that the inspectors were 
elected and entered upon the duties of the office, and became 
officers de facto? 



SECTION VI. 



Meetings of Directors. 



1. All should be notified to attend. 

2. Adjourned meeting still the same. 

3. Board not required to be kept full. 

4. Usurpations tried by shareholders or courts. 

5. Usage will often excuse irregularities. 



6. Decisions of majority valid. 

n. 8. Records of proceedings, evidence. 

7. The action must be taken at a formal meet- 

ing. 



§ 23. 1. As a general rule, where corporate powers are vested 
in certain members, whether the whole body of the shareholders, 
the directors, or a committee, and the general laws of the state, 
the charter of the company, or the corporate statutes, contain no 
directions in regard to 'assembling the body, it is requisite to give 
due legal notice to each member. Accordingly, when by the rules 
of a friendly society the power of electing officers was vested in a 
committee of eleven, at a meeting of the committee, where ten of 
the members were present, the eleventh not having received 
notice, and the defendant was removed from the office of treasurer, 
and the plaintiff appointed in his stead by a majority of votes, it 
was held that the election was void, although the absent committee- 
man had, for a considerable period, absented himself from the 
meetings, and intimated an intention not to attend any more, and 
although the defendant himself had demanded a poll at the 
election, and was now objecting to its validity. 1 

6 Matter of Mohawk & Hudson River Railw., 19 Wend. 135; s. c. 2 Am. 
Railw. C. 460. 

1 Roberts v. Price, 4 C. B. 231. In the course of the argument, Cresswdl, J. 
referred to The King v. Langhorn, 4 Ad. & Ellis, 538, and in giving his opinion 
said: "This case seems to me directly applicable." In a case in the House 
of Lords, Smyth v. Darley, 2 II. L. Cases, 789, 803, it is said: "The election 
being by a definite body, on a day, of which, till summons, the elector's had no 
notice, they were all entitled to be specially summoned ; and if there were any 
omission to summon any of them, unless they all happened to be present, or 
unless those not summoned were beyond summoning distance, as, lor instance, 

[*82] 



90 PROCEEDINGS UNDER THE CHARTER. PART II. 

P.uf an adjourned general meeting of directors, which is 
provided for by the general regulations of the board, and is for the 
transaction of the general business of the company, requires no 
special notice of either time or place, or of the business to be 
transacted. 2 

•".. But where the charter of a railway provides that its business 
shall be carried on under the management of twelve directors, to 
be elected in a particular mode, pointed out, and that where 
vacancies shall occur it shall be lawful for the remaining directors 
to fill them, it was held that this provision did not require that the 
board should be always full ; but was merely directory, as to the 
mode of filling vacancies. 3 

4. Where it is complained that the existing board of directors 
have usurped their places in violation of the wishes of the ma- 
jority of the shareholders, the question should be referred to a 
meeting of such shareholders, 4 or it may be tried upon a quo war- 
ranto? 

5. But in practice, in this country, it is believed that most of 
the routine business of railway and other joint-stock commercial 
companies is transacted through the agency of sub-committees of 
the board of directors, and that, where the voice of the board is 
taken it is more commonly done without any formal assembly of 
the board. And long-established usage as to particular companies, 
in regard to the mode of conducting an election, has been held of 
binding force in regard to such company. 6 And the same course 
of reasoning might induce courts to sanction a practice, which had 
become universal from its great convenience, although not strictly 

abroad, there could not be a good electoral assembly ; and even an unani- 
mous election by those who did attend, would be void. 11 Post, § 211; Great 
Western R. v. Rushout, 5 De G. & S. 290; s. c. 10 Eng. L. & Eq. 72. 

- Ante, § 21. Wills v. Murray, 4 Exch. 843. But see Reg. v. Grimshaw, 10 
Q. B. 717. 

3 Thames Haven Dock and Railway Co. v. Rose, 4 Man. & Gr. 552 ; ante, 
§ 21 ; Wills r. .Murray, 4 Exch. 843. 

4 Post, § 211. 

5 Post, §166. 

,; Attorney-General v. Daw, cited 1 Vesey, Sen. 419. It would savor of bad 
faith to allow the business of the company to be transacted in a particular mode, 
and then to attempt to repudiate the acts of their agents, because the transac- 
tion proved disadvantageous, when they were in a condition to take the benefit 
of it if it proved successful. 
[*83] 



§ 23. MEETINGS OF DIRECTORS. 91 

in accordance with the principles of the decided cases upon analo- 
gous subjects, or the results of a priori reasoning. 

6. The decision of a majority of the board of directors is usually 
* regarded as binding upon the company ; and the assembling of a 
majority will be treated as a legal quorum for the transaction of 
business, unless the charter or by-laws contain some specific pro- 
vision upon the subject ; 7 and notice to the absent directors will 
be presumed unless the contrary appears. The general rule upon 
this subject is, that the act of a majority of a body of public officers 
is binding ; but that if they be of private appointment, all must act, 
and, in general, all must concur, unless there is some provision to 
accept the decision of a majority. In this respect, railway direc- 
tors certainly come under the former head. The proper distinction 
upon the general subject seems to be, that where the matter is of 
public concern, and of an executive or ministerial character, the 
act of the majority of the board will suffice, although the others 
are not consulted. But where the function is judicial, involving a 
determination of some definite question, the whole body must be 
assembled and act together. If the matter is of public concern, 
the decision of a majority will bind ; but in private concerns, as 
arbitrations, all must concur. 8 

7 Cram v. Bangor House, 3 Fairfield, 354 ; Sargent v. Webster, 13 Met. 497 ; 
2 Kent, Comm. 293 and notes ; The King v. Whitaker, 9 B. & C. 648 ; Com- 
monwealth v. Canal Commissioners, 9 Watts, 466 ; Ex parte Wilcocks, 7 Cowen, 
402 ; Field v. Field, 9 Wend. 394, 403, where it is held, that in regard to the 
body of the stockholders, any number who attend is a quorum for doing business, 
if the others be properly summoned. But as to the directors, it is requisite that 
a majority attend. 2 Kent, Comm. 293 ; Cahill v. Kalamazoo Ins. Co., 2 Doug. 
(Mich.) 124; Holcomb v. N. H. D. B. Co., 1 Stockton, Cb. 457. 

8 Green v. Miller, 6 Johns. 39 ; The King v. Great Marlow, 2 East, 'J H ; 
Battye v. Gresley, 8 East, 319 ; Rex v. Coin St. Aldwins, Burr. Settl. Cas. 136 ; 
The King v. Winwick, 8 T. R. 454. But it has never been held that the entire 
board of directors must assemble ; it is enough if all be summoned, and a 
majority attend. See note 7. Edgerly v. Emerson, 3 Foster, 555. If the 
doings of directors are not recorded, they may be proved by parol. lb. The 
president has a right to vote upon all questions to be determined by the presi- 
dent and directors. McCullough v. Annapolis & Elk Ridge R. 4 Gill, 58. 

The records of the clerk of a railway company, of the proceedings of the 
directors, in making calls, may be used as evidence by the company in suits for 
calls, against one who subscribed for shares, and was one of the grantees ol the 
charter and a director at the time of making such calls, and who had exercised 
the rights of a shareholder from the first. White Mountain R. v. Eastman, 34 
N. H. 124. As to the effect of the records of the doings of the corporation kept 

[*84] 



92 



PROCEEDINGS CfNDER THE CHARTER. 



PART II. 



But where the authority of a quorum of directors is required 
for the execution of a bond, it must be given at a formal meeting, 
wherea! the members of the quorum are all present at once. 9 



>i;ction VII. 



Qualification of Directors. 



• contractor and director, 
nicer and din 
by virtue of stock mort- 
: d. 



1. Bankruptcy or absence will not vacate 

office. 
5. Company compelled to Jill vacancies in 

board. 



\ 24. 1. By the Companies' Clauses Consolidation Act, 1 it is 
provided, that no person interested in any contract with the com- 
pany shall lie a director, and no director shall be capable of being 
interested in any contract with the company ; and if any director, 
subsequent to his election, shall be concerned in any such con- 
the office of director shall become vacant, and he shall cease 
as su.h. Under this statute it was held, that, if a director 
enters into a contract with the company, the contract is not thereby 
rendered void, but the office of director is vacated. 2 

■1. But it has been held, that being a member of a banking com- 
wlio were the bankers and treasurers of the railway, and 
win*, as such, received and gave receipts for calls, and paid checks 
drawn by the directors, will not disqualify one from acting as 
director, but that this clause only applied to such contracts 
re made with the company in the prosecution of its enter- 
prise. 3 

by their own officer, being evidence, but not indispensable evidence of such facts, 
when proved by third parties, see Hudson v. Carman, 41 Me. 84; Coffin v. Col- 
lin-. 17 M. 140; Penobscot Railw. v. White, 41 Me. 512. See, also, Ind. & 
Cin I:, v. Jewett, L6 [nd. 273. 

' D'Arcy v. Tamar, K. & C. Railw., 4 II. & C. 463; s. c. 12 Jur. (N. S.) 

1 8 & 9 Vict, c 16. 
Foster v. Oxford \V. & W. R., 13 C. B. 200; s. c. 14Eng. L. & Eq. 306. 
This case is discussed in a later case in the House of Lords. Aberdeen Railway 
ikie, 1 McQueen, 11. L. 161. 

ish. & Man. Railw. v. Woodcock, 7 M. & W. 574 ; s. c. 2 Railw. 
I . . 22. 

[*85] 



§ 24. QUALIFICATION OP DIRECTORS. 93 

3. Where the qualification of a director consisted in owning a 
certain number of the shares, the qualification is not lost by a 
mortgage of the shares. 4 

4. Neither the bankruptcy nor absence of a director, and volun- 
tarily * ceasing to act as such, will put an end to his character of 
director, unless it be so provided in the deed of settlement. 5 

5. If shareholders are dissatisfied with the board of directors not 
being full, that may be a ground of applying for a mandamus to 
compel the company to complete the number. 6 

4 Gumming v. Prescott, 2 Y. & Coll. Eq. Exch. 488. 

5 Phelps v. Lyle, 10 Ad. & Ellis, 113. But if one abscond from his creditors 
the office is thereby vacated. Wilson v. Wilson, 6 Scott, 540. 

6 Thames Haven Dock and Railway v. Rose, 3 Railw. C. 177 ; s. c. 4 Man. 
& Gr. 552. Maule, J. Mozley v. Alston, 1 Phillips, 790. By the Lord Chan- 
cellor. 

[*86] 



94 



PREROGATIVE FRANCHISES. 



PART II. 



♦CHAPTER V. 



l'UKROGATIVE FRANCHISES. 



- immunication in a 
■ ■ prerogative franchise. 



2. Such a grant confers powers pertaining 
exclusively to sovereignty, as taking tolls, 
and the right of eminent domain. 



8 J.">. 1. Railways possess also many extraordinary powers or 
franchises which partake more or less of the quality of sovereignty, 
and which it is not competent for the legislature even to delegate 
to ordinary corporations. These are sometimes called the preroga- 
tive franchises of the corporation. They exist in banks, which 
practically supply the currency of the country, or its representative, 
and railways, which have already engrossed the chief business of 
internal communication in this country, and almost throughout the 
civilized world. And both currency and internal communication 
between different portions of a state are exclusively the preroga- 
tives of sovereignty. 

2. In saying that it is not competent for the legislature to con- 
fer prerogative franchises upon all corporations, nothing more is 
intended than that these prerogative franchises do not appertain to 
all the operations of business, and must therefore of necessity be 
limited to those persons, whether natural or artificial, which are 
occupied in matters of a sovereign or prerogative character, and 
which thus render an equivalent for the franchises conferred. 1 
This subject will be discussed more in detail under the titles of 
Tolls and Eminent Domain. 

' State o. Boston, Concord, & Montreal R. Co., 25 Vt. 433,442,443; s. c. 
1 Redf. Leading Am. Railway Cases, 81. The right to build and use a railway, 
and take tolls or {area, in a franchise of the prerogative character, which no per- 
son can legally exercise without some special grant of the legislature. But it is 
competent lor the legislature to confer this franchise upon a foreign corporation, 
so as to eo&ble it to take land for the purpose of constructing a public improve- 
ment in the Btate. Morris 'anal and Banking Co. v. Townsend, 24 Barb. 658. 
what title Bhall be acquired by such foreign corporation, and whether the 
proposed amendment will be likely to prove beneficial to the citizens of the state, 
is a question solelv within the discretion of the legislature. lb. 

[•87] 



§26. 



POWER OF MAKING BY-LAWS OR STATUTES. 



95 



* CHAPTER VI. 



BY-LAWS AND STATUTES. 



SECTION I. 



Power of making By-Laws or Statutes. 



1. May control conduct of passengers. 

2. Must be reasonable and not against law. 

3. Power may be implied, where not express. 

4. Not required to be in any particular form 

unless by special provision. 

6. Model code of by-laws framed by board of 

trade in England. 

7. Company meiy demand higher fare if paid 



VI. 



Public statutes control by-laws. 

Cannot impose penalty. 

Cannot refuse to be responsible/or baggage. 

Statutes operate upon members from prom- 
ulgation ; upon others, from knowledge 
of the same. 

Regulations, for accommodation of pas- 
sengers, must yield to the right of others 
to be carried. 



§26. 1. It is incident to every corporation to enact by-laws or 
statutes for the control of its officers and agents, and to regulate 
the conduct of its business generally. And in the case of railways 
this includes the regulation of the conduct of passengers and 
others who are in any way connected with them in business, 
although not their agents. 

2.* This power is subject to some necessary limitations. Such 
by-laws must not infringe the charter of the company or the laws 
of the state, must not be unreasonable, and must be within the 
range of the general powers of the corporation. 1 And the ques- 
tion, whether reasonable or not, is to be determined by the jury 
under instructions from the court, being a mixed question of 
law and fact. 2 But in a case in New Jersey 3 it was decided 

1 Elwood v. Bullock, 6 Q. B. 383 ; Calder Navigation Co. v. Pilling, 14 M. & 
W. 76 ; Child v. Hudson Bay Co., 2 Peere Wins. 207 ; Angell & Ames, c. 10; 
2 Kent, Com. 296. Davis v. Meeting H. in Lowell, 8 Met. 331. In a case 
in Kentucky it is said the power of a corporation to make by-laws is limited 
by the nature of the corporation and the laws of the country. It can make no 
rule contrary to law, good morals, or public policy. Sayre v. Louisville Union 
Benevolent Association, 1 Duvall, 143. 

2 Day v. Owen, 5 Mich. 520. 

3 Ayres v. Morris & Essex Railw. Co., 5 Dutcher, 393. 

[*88] 



96 BY-LAWS AND STATUTES. PART II. 

* that the question whether the regulation of a corporation affecting 
third persons is reasonable is a question of fact; but the validity 
of a by-law of a corporation, which affects only its members, is a 
question of law to be determined by the court. The general powers 
of business corporations to enact by-laws was extensively and 
learnedly discussed in a somewhat recent case which passed 
through the Queen's Bench, the Exchequer Chamber, and was 
finally determined in the House of Lords. 4 The case turned 
mainly upon the reasonableness of the by-law, which excluded any 
person who had become bankrupt or notoriously insolvent from 
becoming one of the governing body of the company. The provi- 
sion of the by-law was held entirely reasonable; but that having 
admitted the party to the office, he could not be removed without 
formal proceeding upon notice and hearing. And where one part 
of a by-law is reasonable it may stand, although connected with 
another part which is not reasonable. 5 

3. By-laws in violation of common rights are void. 6 The power 
to make by-laws is usually given in express terms in the charter. 
Ajid where such power to make by-laws is given in the charter 
upon certain subjects to a limited extent, this has been regarded 
as an implied prohibition beyond the limits expressed, upon the 
familiar maxim, Expressum facit cessare taciturn.' 

4. By-laws, unless by the express provisions of the charter or 
general statutes of the state, are not, in this country, required to 
be enacted or promulgated in any particular form, but only to be 
enacted at some legal meeting of the corporation. But in England 
it is generally considered requisite that by-laws be made under the 
common seal of the corporation, and that in regard to railways, 
by-laws affecting those who are not officers or servants of the com- 
pany should have the approval of the Board of Trade or Railway 
Commissioners. 8 

5. By many of the special railway charters in England, and by 
the Companies' Clauses Consolidation Act of 1845, it is provided 

1 Reg. v. Saddlers 1 Company, 6 Jur. (N. S.) 1113; s. c. 7 id. 138; s. c. 9 
id. 1081 ; 8. c. 4B. & S. 1059; s. c. 10 Ho. Lds. Cas. 404. 

6 Reg. v. Lundie, « Jur. (N. S.) 640. 

■ Hayden v. Noyea, 5 Conn. 891; Adley v. The Whitstable Co., 17 Vesey, 
316 : < lark a ( ase, 5 Coke, 64. When the penalty of a by-law is imprisonment, 
id as againsl Magna < Iharta. But such power may be given by statute. 

7 ' liild v. Hudson B. Co., 2 Peere Wins. 207. 
' Walford, 249; Hodges, 552, 553. 

[•89] 



§ 26. POWER OF MAKING BY-LAWS OR STATUTES. 97 

* that railway companies may make by-laws under their common 
seal " for the purpose of regulating the conduct of the officers and 
servants of the company, and for the due management of the affairs 
of the company in all respects whatever." And they have power 
to enforce such by-laws, by penalty, and by imprisonment for the 
collection of such penalty. But a by-law requiring a passenger, 
not producing or delivering up his ticket, to pay fare from the place 
of the departure of the train, was held not to be a by-law, impos- 
ing a penalty, and therefore not justifying the imprisonment of 
such passenger. 9 

6. The statute requires a copy of such by-laws to be furnished 
every officer and servant of the company, liable to be affected 
thereby. The code of by-laws framed by the Board of Trade in 
England for the regulation of travel by railway, and generally 
adopted there, is certainly very judicious, and if some similar one 
could be adopted and enforced here, it would accomplish very 
much towards security, sobriety, and comfort, in railway travelling, 
and tend to exempt the companies from much annoyance and very 
often from loss. 10 

9 Chilton v. London & Croydon R., 16 M. & W. 212; s. c. 5 Railw. C. 4. 
Parke, B., says : " This is not the case of a penalty, but the mere demand of a 
fare. Any passenger who does not, at the end of his journey, produce his ticket, 
may have broken his contract with the company, and be liable to pay his full fare 
from the most remote terminus. But this is not a penalty or forfeiture, under 
section 163, giving a right to arrest for non-payment of a penalty or forfeiture." 
See also the opinion of Rolfe, B., from which it appears that the by-law was 
considered valid. 

10 Hodges, 453. "1. No passenger will be allowed to take his seat in or upon 
any of the company's carriages, or to travel therein upon the said railway, with- 
out having first booked his place and paid his fare. Each passenger booking 
his place will be furnished with a ticket,; which he is to show when required by 
the guard in charge of the train, and to deliver up before leaving the company's 
premises, upon demand, to the guard or other servant of the company duly au- 
thorized to collect tickets. Each passenger not producing or delivering up his 
ticket will be required to pay the fare from the place whence the train originally 
started. 

" 2. Passengers at the road stations will only be booked conditionally, that is 
to say, in case there should be room in the train for which they are booked ; in 
case there shall not be room for all the passengers booked, those booked for the 
longest distance shall have the preference ; and those booked for the same dis- 
tance shall have priority according to the order in which they are booked. 

"3. Every person attempting to defraud the company by riding in or upon 
any of the company's carriages, without having previously paid his fare, or by 
VOL. I. 7 [*90] 



98 BY-LAWS AND STATUTES. PART II. 

* 7. Iii a case in Vermont, it was held, that railway com- 
panies have the power to make and enforce all reasonable regula- 
tions in regard to the conduct of passengers, and to discriminate 
between fares paid in the cars and at the stations, and to remove 
all persona from their cars who persist in disregarding such regula- 
tions, in a reasonable manner and proper place, although between 
stations. 

8. But this maybe controlled as to existing railways even, by 
gnu r.il legislation of the state. And where a statute gave all 
railways tbe power to remove those who violated any of the by- 
laws or regulations of the company from their cars, at the regular 
stations, this was held to carry an implied prohibition from remov- 
ing such persons at other points. 11 And where one refuses to pay 

ridi :i <^ in or upon a carriage of a higher class than that for which he has booked 
his place, or by continuing his journey in or upon any of the company's carriages 
beyond the destination for which he has paid his fare, or by attempting in any 
other manner whatever to evade the payment of his fare, is hereby subjected to 
a penalty not exceeding forty shillings. 

" 4. Smoking is strictly prohibited both in and upon the carriages, and in the 
company's stations. Ever}' person smoking in a carriage is hereby subjected to 
a penalty not exceeding forty shillings ; and every person persisting in smoking 
in a carriage or station, after being warned to desist, shall, in addition to incur- 
ring a penalty not exceeding forty shillings, be immediately, or, if travelling, at 
the first opportunity, removed from the company's premises, and forfeit his fare. 

" 5. Any person found in the company's carriages or stations in a state of 
intoxication, or committing any nuisance, or otherwise wilfully interfering with 
the comfort of other passengers, and every person obstructing any of the com- 
pany's officers in the discharge of their duty, is hereby subjected to a penalty 
not exceeding forty shillings, and shall immediately, or, if travelling, at the first 
opportunity, be removed from the company's premises and forfeit his fare. 

•• 6. Any passenger cutting the linings, removing or defacing the number- 
plates, breaking the windows, or otherwise wilfully damaging or injuring any of 
the company's carriages, shall forfeit and pay a sum not exceeding £5 in addi- 
tion to the amount of damage done." 

" Note. — Persons wilfully obstructing the company's officers, in cases where 
person J Bafety is concerned, are liable, under the 3 & 4 Vict. c. 97, § 16, to 
be apprehended and fined £5, with two months 1 imprisonment in default of 
payment." 

" Stilphin r. Smith, 29 Vt. 160; Chicago, Burlington & Quiney R. v. Parks, 
1,s ''I. |l "- See a case in New Hampshire, in which it is held, railways may 
lawfully discriminate between fare paid in the cars and at the stations. Milliard 
r. Goold, .11 N. 11. 230, post, $ 28, n. 17; post, § 160. See also Chicago & 
Alien Railw. v. Roberts, 40111. 503; Illinois Central Railw. v. Sutton, 42 id. 
& X. W. Railw. v. Peacock, 48 id. 253 ; Tarbell v. Central Pacific 
Railw.. :;i CaL 616. 

[•91] 



§ 26. POWER OF MAKING BY-LAWS OR STATUTES. 99 

fare, and the train is stopped for the purpose of putting him off 
the train, at a dwelling-house, as by the statute of New York is 
* allowed, the right of the conductor is not affected by a subsequent 
offer to pay fare. 12 So, too, one may be ejected from the cars by 
the conductor for disorderly conduct, and in justification, it is com- 
petent to prove any improper conduct during the entire passage, 
and this cannot be controverted by general evidence of the good 
reputation of the person for sobriety. And one may be expelled, 
also, for refusing to surrender his ticket to the conductor on 
request, in conformity with the general regulations of the com- 
pany. 13 

9. But it has been held, that a general power to make by-laws 
for the regulation of the use of a canal, will not justify the pro- 
prietors in closing the navigation of the canal on Sundays, 14 nor 
in making by-laws, subjecting the shares to forfeiture for non-pay- 
ment of calls, unless that power is expressly given by the charter 
or by statute. 15 

10. And a by-law declaring that the company would not be 
responsible for a passenger's baggage, unless booked and the car- 
riage paid, is bad, as inconsistent with the general law, allowing 
railway passengers to carry a certain amount and kind of bag- 
gage. 16 

11. The members of a joint-stock company are affected by all 
binding statutes of the corporation from the time of their enact- 
ment, without any formal notice of their existence. And all per- 
sons legally affected by such statutes, rules, or by-laws of the 
corporation, must conform to their requirements from the time 
they become aware of their existence. 17 

12. Regulations as to the accommodation of passengers must 

12 People v. Jillson, 3 Parker, C. 234. 

13 People v. Caryl, -3 Parker, C. 326. 

14 Calder Nav. Co. v. Pilling, 14 M. & W. 76 ; s. c. 3 Railw. C. 735. But it 
is questionable whether this case is maintainable, in this country, upon any such 
grounds. 

15 Matter of Long Island Railw., 19 Wend. 37 ; s. c. 2 Am. Railw. C. 453. 

16 Williams v. Great Western Railway, 10 Exch. 15 ; s. c. 28 Eng. L. & Eq. 
439. But it seems somewhat questionable, whether the principle of this decision 
can ultimately be maintained. It seems to be no reasonable abridgment of the 
right of a passenger to carry a certain weight and kind of baggage, to require it 
to be booked and carriage paid. 

17 Woodfin v. Ins. Co., Jones' Law, 558. 

[*92] 



100 BY-LAWS AND STATUTES. PART II. 

yield to the rights of others to be carried, and the accommodation 
of passengers during the transit is subject to such general rules 
♦ and regulations as the company see fit to make, provided they are 
reasonable, and whether that be so is to be determined by the 
jury, under suitable instruction from the Court. But these rules 
and regulations must have for their object the accommodation of 
tin- passengers generally, and must be of a permanent nature, and 
not made for a particular emergency or occasion. 18 

- 1 1 [\ ,-. ( ►wen, 5 Mich. 520. We are aware it is the practice in America, in 
almost all modes of passenger transportation, to cram the carriages to the point 
of Buffocation almost, if passengers offer. But that is never attempted or al- 
lowed, in England, or upon the Continent. Whenever the seats in a carriage, or 
the accommodations in a boat, are all occupied, no more are allowed to enter the 
carriage or the boat. This sometimes results in putting a first-class passenger 
into a second-class carriage, and vice versa. But no man in Europe would ever 
be allowed to take passage in a railway carriage, without having a seat. It 
would be deemed the height of indiscretion, almost bordering on madness, to 
attempl to transport passengers by railway, in a standing position. And even 
in omnibuses no one can enter after the seats are filled. And in Paris a promi- 
gign, " Complet" is exposed, the moment the carriage is full. 

And it seems to us that a passenger-carrier who is supplied with sufficient ac- 
commodations for all who ordinarily offer, had better be excused from carrying 
any excess which might occasionally offer, than be compelled to carry them at 
the expense of the discomfort and suffering of all the other passengers. We 
think at leasi if railways took this ground, upon the score of safety merely, they 
would not fail to be sustained by the courts, unless the excited rush of all, to 
go by the first chance, is to override all other considerations, whether of safety or 
convenience. And we trust that public opinion here is more reasonable than to 
make any such demands. 

[*93] 



§27. 



BY-LAWS REGULATING STATIONS AND GROUNDS. 



101 



SECTION II. 



By-Laivs regulating the use of stations and grounds. 



1. May exclude persons without business. 

2. May regulate the. conduct of others. 

3. Superintendent may expel for violation of 

rules. 

4. Probable cause null justify. 

5. In civil suit must prove violation of rules. 

6. Regulation of stations and traffic by means 

of injunction. Equality of charges. 

7. Through trains will not be required unless 



reasonably necessary for public accom- 
modation. 

8. Mode of enforcing search warrants in 

freight stations. 

9. The right of railway companies to exclude 

persons having no business, from their 
stations. 
10. Company bound to maintain platforms 
about passenger stations in safe condi- 
tion. 



§27. 1. Questions have sometimes been made, in regard to the 
right of railway companies to exclude persons from their grounds 
who had no business to transact there, connected with the com- 
pany, * or to establish regulations or by-laws to govern the conduct 
of such persons as had occasion to come there, and to exclude 
others. But, upon the whole, there seems little ground to ques- 
tion the right. 1 

2. A railway corporation has authority to make and carry into 
effect reasonable regulations for the conduct of all persons using 
the railway, or resorting to its depots, without prescribing such 
regulations by formal by-laws ; and the superintendent of a rail- 
way station, appointed by the corporation, has the same authority, 
by delegation. 

3. Such superintendent may exclude from the stations and 
grounds persons who persist in violating the reasonable regulations 
prescribed for their conduct, and thereby annoy passengers, or 
interrupt the officers and servants of the company in the discharge 
of their duty. Thus, where the entrance of innkeepers and their 
servants into a railway station to solicit passengers to go to their 
houses, produces such effect, they may be excluded from coming 
within the station ; and if, after notice of a regulation to that 
effect, they attempt to violate it, and after notice to leave, refuse 

1 Barker v. Midland Railw., 18 C. B. 46 ; s. c. 36 Eng. L. & Eq. 253 : Com- 
monwealth v. Power, 7 Met. 596 ; s. c. 1 Am. Railw. C. 389 ; Hall v. Power, 
12 Met. 482. 

[*94] 



102 BY-LAWS AND STATUTES. PART II. 

i bo, they may l>e forcibly expelled by the servants of the 
. using no unnecessary force. 
\. And where an innkeeper had been accustomed to annoy pas- 
in this manner, and had been informed by the superintend- 
itioo that he must do so no more, but still continued 
. and afterwards obtained a ticket for a passage in the 
cars, with the // intention of entering the cars as a pas- 

ind went into the station on his way to the cars, and the 
irinteudent, believing he had entered for his usual purpose, 
ordered him to go out. and he did not exhibit his ticket, nor give 
notice of his real intention, but pushed forward towards the cars, 
and the superintendent, and his assistants removed him from the 
station, using no unnecessary furce, the removal was held justifi- 
able. 2 and not an indictable offence. 2 

.">. Hut the superintendent cannot remove a person from the 
station and grounds of the company, merely because such person, 
in the judgment of the superintendent, and without proof of the 
fact, violated the regulations of the company, or conducted himself 
* offensively towards the superintendent. 3 And it was said if such 

' < .mmonwealth r. Power. 7 Met. 596; Markham v. Brown, 8 X. II. 523. 

3 Hall r. Power. 12 s. c. 1 Am. Railw. C. 440. There is an ap- 

parent discrepancy in the manner of stating the point of the decision of this case, 
and that of The Commonwealth r. Power. 7 Met. 596, in regard to defendant 
bein<r justified, if he acted in good faith, upon probable cause, which does not 
seem to be warranted, by any recognized distinction, between a civil suit, for 
damages, and a public prosecution for assault and battery, but the court evi- 
dently intend no distinction in the cases. The law is well stated by Shaw, C. 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 manner 
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 corporation, 
both as owners and occupiers of real estate, and also as carriers of passengers, 
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 u.dng the railroad, or having occasion to resort to the depots, for any 
purpose : That this power was properly to be executed by a superintendent, 
3 his rules and regulations to the circumstances of the particular depot 
and' ;nd that it was not necessary that such regulations should be 

•vs of the corporation : That the opening of depots and plat- 
forms lor the sale of tickets, for the assembling of persons going to take pa^sa^e, 
or landing from the cars, amounts in law to a license to all persons, prima facie, 
to enter the depot, and that such entry is not a trespass ; but that it is a license 
conditional, subject to reasonable and useful regulations ; and, on non-compliance 

[•95] 



§ 27. BY-LAWS REGULATING STATIONS AND GROUNDS. 103 

person is removed for an alleged violation of the regulations of 
* the company, and it finally is shown that he did not in fact vio- 
late any of such regulations, he may recover damages of the 

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 notice 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 passen- 
gers 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 keep- 
ers 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 passengers, 
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 respec- 
tive and proper duties to the corporation, as passenger-carriers; then the pro- 
hibition 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 super- 
intendent and the persons employed by him ; and if they use no more forte than 
is necessary for that purpose, such use of force is not an assault and battery, but 
is justifiable : that as to the circumstances of the present case, if the superintend- 
ent 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 respec- 
tive houses as guests, and if this notice came to Hall, and he afterwards, and 
after special notice to him personally, had attempted to violate this prohibition, 
and solicit 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 or- 
dered him to leave the depot, without any inquiry as to the purposes of Hall, and 
Hall made no reply, but pressed forward and attempted to reach the platform, in 
spite of the efforts of Power; this was strong prima facie evidence that he was 
going there with intent to solicit passengers, in violation of the notice and revo- 
cation 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 inten- 
tion was to violate a subsisting reasonable regulation ; then he and his assistants 
were justified in forcibly removing him from the depot: That if Hall gave no 
notice of his having a ticket, of his intention and purpose to enter the cars as 
a passenger, and of his right to do so, and that Power had no notice of it, then 
Hall could not 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 Richmond, as a 
passenger; and that he was to be considered as standing on the same footing as 
if he had not possessed such ticket." 

[*96] 



104 BY-LAWS AND STATUTES. PART II. 

superintendent of the station by whose order he was removed, 
notwithstanding such superintendent acted in good faith. 3 And 
in such e isc it is nol competent to show that the plaintiff had 
been guilty of former violations of other regulations of the 
company. 8 

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 injunction 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. 4 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. 4 To constitute in- 
equality of charge, it must be for passing over the same line, or the 
same part of the line. 4 

* 7. To justify the courts in interfering to require the com- 
panies constituting a continuous line to run through trains, it 
must be shown that public convenience requires it, and that it can 
reasonably be done. 5 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. 5 

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 neces- 
sary that such warrant should be executed during the usual busi- 
ness bonis, or that the officer should consult the person who has 
charge of the station. 6 

9. The Supreme Court of Vermont 7 decided that prima facie 

' I iterham Railw. Co. v. London & Br. Railw. Co., 40 Eng. L. & Eq. 259; 
B. C. 1 C. H. (N. S.) 110. 

6 Barret c. Great Northern Railw., 1 C. B. (N. S.) 423. 
« An Iroscoggin Railw. Co. v. Richards, 41 Me. 233. 

7 Harris V. Stevens, 31 Vt. 79; Gillis v. Penn. Railw., 59 Penn. St. 129. 

[*<J7] 



§ 27. BY-LAWS REGULATING STATIONS AND GROUNDS. 105 

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 employes 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 employes 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 the 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 witli the purpose of taking pas- 
sage : it is enough that he entertains the purpose at the time he 
refuses to leave, and conducts himself in other respects in con- 
formity with the regulations of the company. 

10. As to such persons as have lawful business with the road 
and just occasion to come upon the platforms about passenger 
stations, including passengers and those who come to see them off 
or to receive them, as well as the employes of the company, there 
is a duty resting upon it, to maintain the structure in such 
strength as to support all who may thus have occasion to go 
upon it. 8 

8 Gillis v. Perm. Railw., 59 Perm. St. 129. 

[*97] 






BY-LAWS AND STATUTES. 



PART II. 



♦SECTION III. 



By-Laws or Rules as to Passengers. 



1. By-laws as statutes. 

2. .1 t, or regulations. 

\iring larger farts for shorter distances. 
■ tengt rs to go through in same 

train. 
n. 5. Discussion of cases in point. 

I ■■ ;• by company's servants. 

6. How far company responsible. 

"ini/ liable for act of servant. 
'aw must be published. 
<J. Excluding merchandise from passenger- 
trains. 



10. Discrimination between 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. 

14. The consent of the company to tariff of 

fares how presumed. 
1"). Discrimination on the ground of color. 
1G. Regulations and duties of street railways. 



§ 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. 1 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. 2 Thus 
a by-law, that each passenger, on booking his place, should be fur- 
nished with a ticket, to be delivered up before leaving the com- 
pany'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. 2 And that therefore the non-produc- 

1 Shaw, C. J., in Commonwealth v. Power, 7 Met. 596, 601. 

5 ChUton v. The London & Croydon Railw., 16 M. & W. 212; s. 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 plaintiff, or any one, except for some offence against the 
act. But all seemed to concur in the opinion that the passenger was bound to 
comply with the regulation, or submit to the alternative. State v. Overton, 4 
Zab. 435 ; Halt. & Ohio Railw. v. Blocher, 27 Md. 277. 

[•98] 



§ 28. BY-LAWS OR RULES AS TO PASSENGERS. 107 

tion of the ticket, with which a passenger had been furnished, and 
his refusal to pay fare from the place whence the train started, 
* did not justify his arrest, but only rendered him liable to pay fare 
from the place whence the train started. 

3. But in an English case, 3 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 40s., a passenger, desiring to go 
to Diss station, where the fare was 7s., procured a ticket for Nor- 
wich, a more distant station on the line, but where the fare was 
but 5s., in consequence of competition, and entered the carriage 
accordingly, and at Diss offered to surrender his ticket, but refused 
to pay the difference in fare ; he was prosecuted for the penalty, 
and a majority of the Court of Queen's Bench held he was not 
liable, on the ground that he had paid his fare before entering the 
carriage. Lord Campbell said, " I cautiously abstain from express- 
ing 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 

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. 5 * And where the ticket 

3 Reg. v. Frere, 4 El. & Bl. 598 ; s. c. 29 Eng. L. & Eq. 143. 

4 But the argument of Lord Campbell on this point does not seem altogether 
satisfactory. Whether the passenger had paid his fare depended upon the 
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, 
unless the by-law was void ; so that the validity of the by-law did seem to be 
necessarily involved in the decision. And the decision of the court, although 
not professing to do so, did virtually disregard it. For if the by-law was valid, 
Frere 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 intended destination. Any other construction looks 
like an evasion. 

5 Cheney v. Boston & Maine Railw., 11 Met. 121 ; see 2 Redf. Am. Railw. Cases, 
447. In this case the passenger, when he bought his ticket, did not know of the 
regulation, but was informed of it in the cars, and his money offered to be refunded, 
deducting what he had travelled; but he refused to make the arrangement, and 

[*99, 100] 



108 BY-LAWS AND STATUTES. PART II. 

waa marked " good only two days after date," it was held to he 
evidence of a contract to that effect between * the railway and the 

demanded his ticket, in exchange for the check which had been given him, 
marked "good for this trip only." He stopped by the way, and went on the 
Mine day in the next train ; and when he presented his check, it was refused, 
and tare demanded, which lie was obliged to pay. The court held the passenger 
coul, I not recover the money of the company, and that it made no difference 
whether the plaintiff was aware of the regulation or not, at tin* time he pur- 
chased bis ticket. He was hound to inform himself, or accept of the ticket, for 
what it entitled him to demand, by the rules of the company. 

i - Bubjecl is a »ood deal discussed in a 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, 
1 Zab. 184. The same rule applies to excursion tickets sold and marked "good 
fur cue passage on this day only.' 1 It cannot be, used on any other day, and if 
tie- holder refuse to pay his fare, he may be put off the train, and after being put 
off, he cannot claim to return by producing a regular ticket. State v. Campbell, 
.". Vroom, 309. In Pier v. Finel, 24 Barb, olf, 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 sub- 
Bequent 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 he no doubt such a regulation exists, upon many of the roads, in this coun- 
try, ami that such a ticket is understood, by the community generally, as enti- 
tling the holder only to a passage on that day, at most, if not in the very next 
train. It seems to be finally settled that no passenger who accepts a ticket, or 
cluck, marked "good for this day and train only," has any right to leave the 
train, at a way station, and demand a passage on any after train, and if he do so, 
and refuse to pay the fare for the remainder of the route, the conductor may law- 
fully put him off the train. See McClure v. Phil. Will. & Bait. Railw., 3-1 Md. 532. 
The ticket master at a way station has no authority to extend a conductor's check, 
lb. But the conductor may give a passenger leave to stop by the way, while 
riding on Buch a ticket, and by indorsing his check make it good for an after 
train. And where tickets for extended routes are issued in coupons, it is com- 
monly understood that the passenger may stop at the end of any of the separate 
coupons, and complete the passage at any after time within reasonable limits. 

[*101] 



§ 28. BY-LAWS OR RULES AS TO PASSENGERS. 109 

purchaser, and to be of no force after the expiration of the term. 6 
And where the regulations of the * company allow the conductors, 

And the same rule applies to season tickets, which the holder is by their 
terms required to present, when demanded. If the holder fail to present the 
ticket when demanded, he must pay fare or consent to be put oil' the train. 
Downs v. N. Y. & N. H. Railw., 36 Conn. 287. And it was here held to be no 
valid excuse for not presenting the ticket, that the holder had accidentally left it 
at home and therefore had it not in his power to present it. In the case of Die- 
trich v. Petin. Railw., in the Supreme Court of Pennsylvania, 29 Phila. Reports, 
212, it was decided that railway companies may make reasonable rules and 
regulations in regard to passenger transportation, and they are binding upon 
passengers whether known to them or not, it being their duty to inquire and 
learn them; and therefore that a drover's ticket, allowing the holder to ride 
between the points named in a continuous passage, without stopping at interme- 
diate places, must be so used or it is forfeited. This view seems exceedingly 
reasonable. 

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 v. Thompson, 20 N. H. 
250. In Hibbard v. New York & Erie Railway, 15 N. Y. 455, 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 not enough 
for the court to charge the jury that the passenger was bound to exhibit his ticket, 
when reasonably requested, but 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 



6 Boston & Lowell Railway Co. v. Proctor, 1 Allen, 267; Shedd v. 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 learn the regulations of the company. And the con- 
ductors having waived them is no evidence of their repeal unless known to the 
governing officers of the company. 

[*102] 



HO BY-LAWS AND STATUTES. PART II. 

liv making a memorandum on a ticket, to permit the passenger 
to Btay 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 Bubsequenl time, was justified in demanding fare, and putting 
the passenger off the train niton his refusal to pay. 7 

5, In one ease, 8 where the plaintiff, upon the information of the 
Btation-clerk that he might return at a given hour upon an excur- 
sion ticket, purchased such ticket and took the train named hy 
such clerk to return, hut the train did not pass through ; and at 
the place where it stopped the station-clerk demanded 2s. 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 
Btated 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 that they had 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. 

would not be liable if the conductor put a wrong construction upon the regula- 
tion, 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, ;i7id afterwards gives up his ticket to the conductor, he cannot, at an inter- 
mediate Btation, by virtue of the subsisting contract, leave his seat in that train, 
and subsequently claim a seat in another train. Cleveland, &c. Railw. v. Bar- 
tram, 11 Ohio (N. S.), 457. 

7 Beebe v. Ayres, 28 Barb. 275. 
l: ie V. Birkei head, Lancashire, and Cheshire Junction Railw., 7 Exch. 36; 
I.. vY Eq. 546 ; 8. 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 
passengers, if Buch 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 plaintift's 
t being, at the time, to solicit passengers to go by the rival line of stages; 
and tli-- jury having found that the contract was bona fide and reasonable, and not 
enti red 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 o. < oleman, 2 Sumner, 221. But a contract not to carry passengers 
ing by a particular line will not excuse the carrier from carrying such pas- 
senger. Bennet v. Dutton, 10 N. H. 481. 
[*102] 



§ 28. BY-LAWS OR RULES AS TO PASSENGERS. Ill 

6. And in a somewhat similar case, 9 in the Exchequer Chamber, 
* where the plaintiff below had been taken into custody by a rail- 
way inspector of the defendants, charged with having no ticket, 
refusing to pay fare, intoxication, and assaulting the inspector ; at 
the hearing before the magistrate, the solicitor of the company 
attended to conduct the proceedings ; and it was held that such 
attendance was no ratification by the company, it not appearing 
that the facts were known to the company. These cases afford 
more latitude for corporations to escape from liability for the acts 
of their agents and servants, while employed in the prosecution of 
their business, than is commonly allowed in this country. 10 

7. 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 ; u 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 12 having power by statute to 
make by-laws which were to be painted upon a board and hung 
up at the stations, and to be binding upon all parties, made, 
among others, a by-law that " first-class passengers shall be 
allowed one hundred and twelve pounds, and second-class passen- 
gers fifty-six pounds luggage each, and that the company will not 

9 The Eastern Counties Railway v. Broom, 6 Exch. 314 ; 2 Eng. L. & Eq. 
406 ; s. c. 6 Railw. C. 743. 

10 Post, § 225 and notes. See, also, post, §§ 169, 182. And in Coppin v. 
Braithwaite, 8 Jurist, 875, it is said to have been ruled by Rolfe, B., at Nisi 
Prius, that a carrier having received a pickpocket as a passenger on board his 
vessel, and taken his fare, he cannot put him on shore at any intermediate place, 
so long as he is guilty of no impropriety. 

11 Philadelphia G. & N. Railw. Co. v. Wilt, 4 Wharton, 143 ; s. c. 2 Am. 
Railw. C. 254; Orr v. Bank of U. States, 1 Ohio, 36 ; Foote v. City of Cincin- 
nati, 9 Ohio, 31. Per Gomstock and Brown, JJ., in Hibbard v. N. Y. & Erie 
Railw. Co., 15 N. Y. 455. The company is responsible for the act of their 
conductors for forcibly ejecting the plaintiff from the cars on the ground that he 
was drunk, which was not true. Higgins v. Watervliet, &c. Railw. Co., 46 N. Y. 23. 

12 Great Western R. v. Goodman, 11 Eng. L. & Eq. 546. In Edwards v. 
London & N. W. Railw. Co., L. R. 5 C. P. 445, it was held, that the head 
porter, having charge of the station in the absence of the station master, has no 
implied authority to give in charge to a peace officer, one whom he suspects of 
stealing the company's property, and if he give in charge one who is innocent 
the company will not be responsible. As to the authority of special constables, 
in the employ of railway companies, in making arrests and what will amount to 
probable cause, see Walker v. South Eastern Railw. Co., L. R. 5 C. P. 640. 

[*103] 



112 BY-LAWS AND STATUTES. PART II. 

be responsible for the care of the same unless booked and paid for 
accordingly." It did not appear that the plaintiff knew of the by- 
law, or that it had been posted up as required. The plaintiff 
became a passenger, and gave his luggage to the 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 stations, 
as required by the statute, or else brought it home to the knowl- 
edge of the plaintiff. 

9. A by-law excluding merchandise from the passenger-trains, 
and confining its transportation to the freight-trains, was held 
* reasonable. The company are not bound to carry a passenger 
dailv upon his paying fare, when his trunk or trunks contain mer- 
chandise, money, and other valuable matter known as " express 
matter." 13 

10. In a case 14 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 

13 Merrihew v. Milwaukie & Mississippi R., 5 Am. Law Reg. 364. 

11 (linker v. New London, Willimantic & Palmer Railw., 24 Conn. 249. 
The court were so nearly equally divided in the decision of this case, that it 
cannot be regarded as much authority, in itself. The leading propositions in the 
text were maintained, by the Chief Justice and one other judge, and dissented 
from by two other judges. 

The only point of doubt seems to be the duty of the company, in making such 
discrimination, to give reasonable opportunity to passengers to obtain tickets, at 
the lowest rate of fare, which seems just and 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 v. Goold, 34 N. II. 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. Larks, 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 v. Goold, 53 
Me. 279. And the passenger is bound by such by-law, whether he knew of it 
or not. lb.: Bee also Chicago & Alton Railw. v. Roberts, 40 111. 503 ; Illinois 
Central Railw. v. Sutton, 42 id. 438; Chicago & N. W. Railw. v. Peacock, 48 
111. 253; post, I 124, pi. 13. 

[*104] 



§ 28. "by-laws as to passengers. 113 

might lawfully put him out of the cars, using no unnecessary force. 
Upon the trial of an action for such expulsion, it was held, that 
the plaintiff was not entitled to recover upon proof, that he went 
to the ticket-office of the company a reasonable time before the 
train left, to procure a ticket ; that the office was closed, and so 
remained till the train departed, and that he so informed the con- 
ductor, before his expulsion from the cars. 

The following propositions are maintained in the opinion of the 
court : — 

1. That the defendants, as common carriers, were under no 
legal obligation to furnish tickets, or to carry passengers for less 
than the sum demanded, if the fare was paid in the cars. 

* 2. That the plaintiff's claim rested solely upon the assumption, 
that the defendants had undertaken to carry for the less sum, on 
certain conditions, which they had themselves defeated. 

3. That the regulation did not constitute a contract, but a mere 
proposal, which they might suspend, or withdraw at any time. 

4. That such proposal was withdrawn by closing the defendants' 
office, and the retirement of their agent therefrom. 

5. The proposition being withdrawn, the parties were in the 
same condition as before it was made; the defendants continuing 
common carriers were bound to carry the plaintiff for the usual 
fare paid in the cars and not otherwise. 

6. That the plaintiff, refusing to pay such fare, was properly 
removed from the cars. 

It was further held by all the judges that if the plaintiff was 
wrongfully removed from the 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 plaintiff was guilty of 
want of care as stated, he could not recover. 

The majority of the court also held, that if any of the defendants' 
employes which the conductor called to his aid, in putting and 
keeping the plaintiff off the cars, intentionally kicked the plaintiff 
in his face, without the knowledge or direction of the conductor, 
the defendants are not liable for the act, in trespass. 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 
VOL. i. 8 [*105] 



114 BY-LAWS AND STATUTES. PART II. 

regulation, however proper in itself, cannot legally be enforced by 
the company unless they have afforded every proper and reasona- 
ble facility to the passenger for procuring his ticket at the sta- 
tion. K ' 

•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 deter- 
mined by the jury, and cannot ordinarily be decided by the court, 
as matter of law. If there be an excess of force, or it be applied 
in an unreasonable and improper manner, the conductor is liable 
for such excess, to respond in damages to the party, and also to 
public prosecution, for a breach of the peace. 16 

12. The authority of the conductor of a railway train, or of any 
other servant of the company, to enforce their regulations, does 

15 St. Louis & C. Railw. v. Dalby, 19 111. 353; Chicago, B. & O. Railw. 
r. Parks, L8 111. 160. And in a late case, St. Louis, Alton, & Terre Haute 
Railroad r. South, 13 III. L76, it was decided that the foregoing cases are 
qoI 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 estab- 
lished time-tables for the departure of a train; but such companies are required 
in ke< p open their offic< s for the sale of such tickets as passengers are required 
bem to procure, for a reasonable time before the time so fixed for f he 
departure of such tram, and not up to the time of its actual departure. They 
are required to furnish a convenient and accessible place for the sale of passenger 
ticket-, am! 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 discriminate between fares paid in the cars, and at the stations, was 
dependent upon the fact that a reasonable opportunity had been afforded for pro- 
curing tickets at the lower rate. These doctrines seem to us reasonable and 
and we -hould be surprised to have them fail of general acceptance by the 
ts, The same rule is maintained in Du Laurans v. Pacific Railw., 15 Minn. 
19. And it was here said that what is giving passengers a reasonable opportu- 
nity to procure tickets before entering the cars must be left to the jury. 

' Milliard r. Could, 34 X. H. 230; State v. Ross, 2 Dutcher, 224. In this 
lasl case the principal evidence of excess was, that the conductor kicked a pas- 
si uger who, in a Male of intoxication, persisted in attempting to get upon the 
train, and the court held the conviction proper. So, too, where the conductor 
put one off the train while in motion, whereby he lost a leg, he having jumped 
upon the cars to steal a ride, the act of the conductor was held to bind the com- 
pany. Kline v. Central Pacific Railw., 37 Cal. 400. 

[*106] 



§ 28. BY-LAWS AS TO PASSENGERS. 115 

not depend upon the formal mode of his appointment, but upon 
the fact of his being employed at the time in the particular office. 16 

13. In an English case, 17 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. 

14. A * tariff of fares or freight must have the sanction of the 
corporation to become of binding obligation. But if established 
by the president and the business of the company transacted with 
reference to them, without objection, the consent of the company 
will be presumed. 18 

15. 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. 18 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. 

16. A regulation of a street-railway company requiring passen- 
gers to enter and leave the cars by the rear platform is highly just 
and reasonable ; and a passenger who suffers injury from the need- 

17 Jennings v. Great Western Railw. Co., 12 Jur. (N. S.) 331. 

18 Westchester Railw. v. Miles, 55 Penn. St. 209. 

[*107] 



116 BT-LAWS AND STATUTES. PART II. 

less violation of such regulation has no claim for compensation 
against the company, even when the driver was in fault. 19 And 
the permission of the driver will not excuse the passenger in the 
violation of a known rule of the company. 19 Such company owes 
its passengers the highest degree of care, hut only ordinary care to 
the general public. 20 

19 Bait. Citj Passenger Railw. v. Wilkinson, 30 Md. 224. 
M Pendleton Street Railw. v. Shires, 18 Ohio (N. S.), 255. See C. C. & C. 
Railw. v. Terry, 8 id. 570.- 

[*107] 



§ 29. CAPITAL STOCK — LIMITATIONS. 117 



CHAPTER VII. 

CAPITAL STOCK. 

SECTION I. 

Limitations. 

1. General rights of shareholders. I 3. Cannot mortgage, unless on special license 

2. Capital stock not the limit of property. of the legislature. 

§ 29. 1. All joint-stock companies are allowed to raise a 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 enterprise. 1 

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 sufficient 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, 
* ordinarily, by a strict and fatal necessity, and by permission of 
the legislature, as is generally considered. 3 

1 Walford on Railways, 252; Penobscot Railw. v. White, -II Me. 512. 

2 Barry v. Merchants 1 Exchange Co., 1 Sandford's Ch. 280; South Bay 
Meadow-Dam Co. v. Gray, 30 Me. 547. 

* Post, §§ 148, 234, 235. 

[*108, 109] 



118 CAPITAL STOCK. PART II. 

SECTION II. 
Conditions precedent, which the. Public Authorities may enforce. 
d, must all be subscribed. | 2. Payments at time of subscription. 

$ 30. 1. If, by the charter, the stock of the company is divided 
into a certain number of shares, that number cannot be changed 
by act of the company. 1 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 
laid until that number be bona fide subscribed, and if it is at- 
tempted the company may be dissolved. 2 

l!. Ami 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. 3 

1 Salem Mill-Dam Co. r. Ropes, 6 Pick. 23. 

* Salem Mill-Dam Co. v. Ropes, 6 Pick. 23 ; Central Turnpike Co. v. Valen- 
tine, 10 Pick. 1 12. Where the capital stock consists of a given number of shares 
of given amount, no valid assessment for the general purposes of the enterpri.-e 
can he made until the whole number of shares is subscribed: and if any of the 
subscriptions lie made upon conditions precedent, it must be shown that such 
conditions have been waived or performed. 10 Pick. 142. But assessments to 
defray the expenses of the incorporation, organization, and preliminary examina- 
tion, similar to those under the provisional companies in England, have been 
allowed to !)<■ made before the stock of the company is all subscribed. 6 Pick. 
23. And in a suit upon subscriptions to stock in a corporation, where by the 
charter a given amount of stock is recpiired to be subscribed before the corpora- 
tion can go into operation, it is necessary to allege the latter fact, and the omis- 
sion will be ground of error, although the question is not raised at the trial. 
I'.x'r v. Lex, & Big S. Railw., 2 Met. (Ky.) 314. 
1 1 ghland Turnpike Co. v. M'Kean, 11 Johns. 98 ; 1 Caines's Cas. 85 ; Wood 
r. C & ( . Etailw., 32 Ga. 273. But see post, § 51, where it will appear, that 
although the public, or the other shareholders, may insist upon the payment, in 
••I lie' Bums required by the charter to lie paid at the time of subscription, 
this i- a condition which cannot be taken advantage, of by the subscriber, as be- 
tween himself ami the company, in an action for calls. And it has been held, 
that the Btock subscriptions to a railway, with banking privileges, cannot be paid 
in bills of the company, but must all be paid in specie. King v. Elliott, 5 Sm. & 
- The charter in this case required $20 paid in specie at the time of sub- 

[*109] 



§31. 



SHARES PERSONAL ESTATE. 



119 



Where * the charter of a railway company provided that the whole 
capital stock should be subscribed, before any of the powers and 
provisions 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 JEstate. 



1. Railway shares personal estate at common 

laiv. 

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 
* mortmain. 1 This has been repeatedly decided in regard to shares 

scription. Subscriptions in the name of infants, unless some one is responsible 
for payment of calls, are not a compliance -with the charter. Roman v. Fry, 5 
J. J. Marshall, 634. But if the corporation acquiesce in such subscriptions, they 
cannot afterwards object. Creed v. Lancaster Bank, 1 Ohio (N. S.), 1. See 
Beach v. Smith, 28 Barb. 254. See also East Pascagoula Hotel Co. v. West, 
13 La. Ann. 545 ; Piscataqua 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. 558; 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 
thousand 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. 563. 

* Norwich & 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 Beav. 559. 

1 Ashton v. Lord Longdale, 4 Eng. L. & Eq. 80. This case extends the same 

[*110, 111] 



[20 CAPITAL STOCK. PART II. 

of canal ami dock companies, and bonds secured by an assign- 
ment of the rates. 2 Such shares may be sold by parol where 
the ■ nil a.t is executory. 8 And it would seem that the same 
view would prevail ill the English courts, even where there is no 
Statutory declaration that the shares shall be deemed personal 

2. And the sale of foreign railway shares standing in the name 
of another person, and a guarantee that such person shall deliver, 
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. 4 Railway shares are 
nei i her an interest in land, nor goods, wares, and merchandise, 
within the statute of frauds. 5 

".. 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, 6 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. 8 This has often been decided in recent analogous cases. 

rule to ihc debentures of such companies. Neither is railway scrip within the 
Mortmain Act. Bui mortgages given by a railway company of the undertaking 
and tolls may 1>" within the act. So also shares in a bank secured by mortgages. 
• Perigal, 16 Simons. 533; The King v. Chipping Norton, 5 East, 239. 
- Sparling v. Parker, 9 Beav. 450; Thompson v. Thompson, 1 Coll. C. C. 
881 : Hilton v. Giraud, 1 De <;. & S. 183; Walker v. Milne, 11 Beav. 507. But 
Bee Tomlinson r. Tomlinson, 9 id. 459. 

; Bradley v. Holdsworth, .3 M. & W. 422; Bligh v. Brent, 2 Y. & Coll. 268, 
294. 1 his is an elaborate case establishing the proposition that the shares in a 
ition, whose works are real estate, are nevertheless personal estate, and 
this upon general principles of the common law. 
4 Hargreaves >■. Parsons, 13 M. & W. 501. 

mble v. Mitch 11, 2 Railw. C. 70; s. c. 11 Ad. & Ellis, 205. See also 
i' v. .Ml. re hi, 12 Simons, ISO: Tempest v. Kilner, 3 C. B. 219; Knight 
W. 66. 
6 Dryhutter v. Bartholomew, 2 Peere Wms. 127: Townsend v. Ash, 3 Atk. 
o. [ngrara, 2 Vesey, Jr. 652. 
lies v. Cowles, :.' Conn. 567. See also Cape Sable Company's case, 3 
Bland's Ch Binney's case, 2 id. 99; Price v. Price, <; Dana, 107; 

M< Wan-, 341 ; Copeland v. Copeland, 7 Bush, 349. 

W ilford, 251 : mh, i 31, aid cases cited in n >tes 1. 2, :), and 4; Tippets 

r. Walker, I Mis-. 595, 596, opinion of /'arsons, ('. J. Speaking of a turnpike 

: •' When the road is made, the corporation is entitled to 

demand and receive a toll of travellers for the use of it, in trust for the members 



§ 31. SHARES PERSONAL ESTATE. 121 

*The fee of land being in the corporation, vests no interests of the 
nature of real estate in the separate shareholders. 9 

of the corporation, in proportion to their respective shares. The property of 
every member is the right to receive a proportional part of the tolls, which is 
considered as personal estate." 

In Howe ». Starkweather, 17 Mass. 240, 243, Parker, C. J. says: "Shares 
in a turnpike or other incorporated company, are not chattels. They have more 
resemblance to choses in action, being merely evidence of property." 

In 1 Greenleaf's Cruise, 39, 40, the subject is very fully and fairly presented, 
and the following conclusion arrived at, in regard to the state of the law in the 
United States: " Latterly it has been thought that railway shares were more 
properly to be regarded as personal estate.' 1 

The same view is held in Bank of Waltham v. Waltham, 10 Met. 334 ; Hutch- 
ins' Adm'r v. The State Bank, 12 Met. 421 ; Denton v. Livingston, 9 Johns. 96, 
100 ; Planters' & Merchants' Bank v. Leavens, 4 Alabama, 753 ; Union Bank 
of Tennessee v. The State, 9 Yerger, 490 ; Brightwell v. Mallory, 10 id. 196 ; 
Heart v. State Bank, 2 Dev. Ch. Ill ; State v. Franklin Bank, 10 Ohio, 91, 97 ; 
Slaymaker v. Gettysburg Bank, 10 Penn. St. 373 ; Gilpen v. Howell, 5 Penn. St. 
41, 57 ; Johns v. Johns, 1 Ohio (N. S.), 350 ; Arnold v. Ruggles, 1 Rhode Island, 
165. 

A distinction has sometimes been attempted between the shares of a bank or 
manufacturing corporation, and a turnpike or railway, in regard to their partak- 
ing of the realty. But the slightest examination will satisfy us that there is no 
substantial ground for any such distinction. The one may be more intimately 
connected, in its existence or operation, with real estate, but both must have 
some connection, more or less intimate, and in both the shareholders have no 
title to the land, that residing altogether in the corporation, while the shares are 
merely a right to the ultimate profits of the company, and are as really and un- 
questionably choses in action as promissory notes, bills of exchange, or bonds 
and mortgages, of natural or corporate persons. Wheelock v. Moulton, 15 Vt. 
519 ; Isham v. Ben. Iron Co., 19 Vt. 230. See also Johns v. Johns, supra. 

9 Ackland v. Lewis, 1 K. & G. 334, Registration cases. 

[*112] 



l'J2 TRANSFER OF SHARES. PART II. 



♦CHAPTER VIII 

TRANSFER OF SHARES. 
SECTION I. 



Restrictions upon Transfer 

. /vr/' ons of charter to be ob 

7 



sent iL 

2. //' not made exclusive, held directory 

mere!//. 

3. / r nu$ual and inconvenu m restrictions void. 



4. Lien upon stock for the indebtedness of the 
owner is valid. 

5. But such li' n is not implied. 

6. Where transfer is wrongfully refused, ven- 

dee may recover value of the company. 



§ 32. 1. We cannot here attempt to show in detail all the inci- 
dents of the transfer of stock in railway companies. It is transfer- 
able much the same as other personal property, excepting only that 
any express provision of the charter upon that subject must be 
regarded as of paramount obligation. 1 

1 Strictly speaking, perhaps no shares in any joint enterprise are transferable 
so as to introduce the assignee into the association, as a member, unless it be 
joint-stock companies and corporations, formed in pursuance of legislative au- 
tlioiity. And in the case of legislative incorporations, the shares are transfer- 
able, only under the charter, and according to its terms. Duvergier v. Fellows, 
.') Bing. l'I*. li*, 7, opinion of Best, C. J. A mere partnership cannot be so 
constituted, a- to release the assignor of a share from all liability to third per- 
sons, and introduce the assignee at once, and completely, into his place. Blun- 
dell v. Winsor, 8 Simons, 601, opinion of Shadwell, V. C. ; Jackson v. Cocker, 
4 Beavan, •"•!». (13. 

In tli.' English courts it has been held, that where the charter of a corpora- 
tion or the deed of settlement required the assent of the directors to complete 
the title of the purchaser of shares, it was the duty of the seller to procure this 
in order to comply with his contract to convey. Wilkinson v. Lloyd, 7 
Q. II. l'7 : Bosanquel v. Shortridge, 1 Exch. 699. 

And all corporations may, in self-defence, require all calls made upon their 
stork to be paid, before they will substitute the name of the purchaser of shares 
upon their books, for the original subscriber, as after this substitution they have 
no longer any claim upon such subscriber, and it would be liable to defeat many 
public enterprises of moment, and after large expenditures have been incurred, 
if the subscribers could, at will, relieve themselves from all liability to pay calls, 
by transferrin- their .hares to irresponsible persons. Hall v. Norfolk Estuary 

[*113J 



§ 32. RESTRICTIONS UPON TRANSFER. 123 

* 2. In many cases, however, where the charter only provides a 
mode of transfer, and does not declare this mode exclusive of all 

Co., 7 Railw. Cas. 503 ; s. c. 8 Eng. L. & Eq. 351. But the assignee of a share 
may always insist upon becoming a member upon paying all calls. 

Questions of some difficulty often arise between shareholders and the company, 
in regard to an informal transfer having been confirmed by acquiescence. In 
Shortridge v. Bosanquet, 16 Beav. 84 ; s. c. 17 Eng. L. & Eq. 331, and in ex p arte 
Bagge, 13 Beav. 1G2 ; s. c. 4 Eng. L. & Eq. 72, it is held that if the entry of the 
transfer is made upon the books of the company, and especially where the com- 
pany liave dealt with the shareholder claiming under the transfer, they cannot 
treat the transaction as void, for any want of form in the transfer, though in a 
matter specially required by the charter and not immaterial, but which their own 
irregularities had rendered it impossible to observe. And where the secretary of 
a joint-stock company fraudulently transferred shares, and the proprietor of the 
shares treated the transaction as being valid against the transferee, but filed a 
bill against the company for damages, it was held he was not entitled to relief. 
Duncan v. Luntley. 2 McN. & Gord. 30 ; s. c. 2 Hall & Twells, 78. 

In ex parte StrafFon's Executors, 4 De G. & S. 256 ; s. c. 10 Eng. L. & Eq. 275, 
the Lord Chancellor, St. Leonards, thus characterizes these transactions, which, 
although informal in some respects, are constantly acquiesced in by both parties, 
until there comes some crisis in the affairs of the company, perhaps, or the trans- 
feree becomes insolvent. " There would be no safety for mankind in dealings 
of this kind, extensive as they are, with so much money embarked in them, if 
the courts had ever held, as they never have held, that every minute circumstance 
must be obeyed, which the directors themselves ought to have obeyed ; but if they 
disregard them, if the shareholders do not call them to account for doing so, if a 
course of action has been adopted in the particular company, without complaint, 
although they may have arrived at making a man a shareholder, by what I should 
call a short cut, instead of going through all the necessary formalities, they mav 
be perfectly good as between parties thus dealing with the directors, and the 
directors themseves, so as to bind them." 

And in Bargate v. Shortridge, 5 Ho. Lds. 297 ; s. c. 31 Eng. L. & Eq. 44, in 
the House of Lords, upon elaborate argument and great consideration, it seems 
to have been definitively settled in England, that where the deed of a joint-stock 
company required the certificate of consent of three directors to the transfer of 
the shares of the company, and in practice this had never been given, but, for 
ten years, transfers had continually been made upon the verbal assent of the 
managing director upon the spot, and about nine-tenths of the original shares 
had been transferred in this manner, and S. having transferred his shares in the 
same mode to T., and his name having been entered upon the books of the com- 
pany, they could not afterwards refuse to regard T. as a member. 

But in such case, where the directors afterwards cancelled the name of T. in 
their share register-book, on the ground that the consent of the directors was 
wanting, it was held that S. had ceased to be a member of the company, and 
was entitled to an injunction against a scire facias prayed out against him by a 
creditor of the company, as a shareholder. 

It was said by Lord St. Leonards, who delivered the leading opinion : " Where 

[*114] 



124 TRANSFER OF SHARES. PART II. 

•others, the provision has been regarded as merely directory, and 
not indispensable to the vesting of title in the assignee. And 
this has generally been so regarded, where the express provisions, 
in relation to the transfer of shares, exist only in the by-laws of 
the corporation. 

3. A ii.l any unusual restriction in the by-laws of a corporation 
upon the transfer of stock, as that it shall be made only upon the 
books of the corporation, in person, or by attorney, and with the 
consent of the president, or other officers of the corporation, has 
been regarded as void, as an unreasonable restraint upon trade, 2 

the directors of a company do acts in a matter in which they have no authority, 
such acts are altogether null and void. But where the acts are within their 
power and duty, and are either omitted or improperly done, and thereby third 
parties arc damaged, neither a court of law nor of equity will allow the company 
to take advantage of their neglect." 

This it seems to us, is a sound distinction, and one which will have an im- 
portant bearing upon the fraudulent over-issue of stock by the directors of a 
company whose capital is limited, and all issued and in the hands of bona fide 
owners. This is the same case in 4 Exch. 699. See also Taylor ». Hughes, 

2 Jones & La Touche, 24 ; Humble v. Langston, 7 M. & W. 517 ; S. C. 2 Railw. 
C. 533 ; Ex parte Cockburn, 4 De G. & Sin. 177 ; s. c. 1 Eng. L. & Eq. 139. 
But where the charter, or the general law, requires all debts of the owner to 
be paid the company before transfer of shares, the company are not bound to 
accept a transfer otherwise made. Reg. v. Wing, 33 Eng. L. & Eq. 80. 

2 Sargeant o. Franklin Ins. Co., 8 Pick. 90; Quiner,?;. Marblehead Ins Co., 
10 Mass. 470; Noyes v. Spalding, 27 Vt. 421; Bates v. New York Ins. Co., 

3 Johns. Cas. 238; Chouteau Spring Co. v. Harris, 20 Missouri, 382. In this 
last case the charter of the company provided that the stock might be "trans- 
ferred on the books of the company," and the company were authorized " to 
regulate the transfer of stock," by by-laws. And a provision in the charter 
authorized the company, in certain eases, to make assessments of stockholders 
beyond their shares of stock. It was held that no such assessment could be made 
on a party, alter he had ceased to be a member, by a transfer of his stock; 
that the power " to regulate the transfer" did not include the power to restrain 
transfers, or to prescribe to whom they might be made, but merely to prescribe 
the formalities to be observed in making them, and that the company could not 
prevent a part} from selling his stock, even to an insolvent person; that an 
assignment " upon the books of the company" was sufficient to effect a change 
of ownership, without taking out a new certificate in the name of the assignee; 
and that any transfer in writing was valid against the company, if, being notified, 
they refused to allow it to be made according to their by-laws. 

And in Dauchy V. Brown, •_' 1 Vt. 197, which was an action against stock- 
holders, upon the proper debt of the corporation, where the charter provided, 
that the persons and property of the corporators shall be holden to pay its debts, 
and that any execution, which should issue against the corporation, might be 

[*115] 



§ 32. RESTRICTIONS UPON TRANSFER. 125 

* unless as a provision to secure the indebtedness of shareholders. 
In such case it is sometimes said the assignee need only make his 
right known to the company, and require the transfer entered upon 
the books, and his title becomes perfected. 3 

4. But if the former owner was indebted to the corporation, and 
the charter required all such indebtedness to be liquidated, before 
transfer of stock, such indebtedness will remain a lien upon the 
stock, in the hands of the assignee. 4 And where the charter of 

levied upon the person or property of any individual thereof, it was held, that 
the stockholders were only liable, in default of the corporation, and that judg- 
ment should first be recovered against the corporation, and the statute remedy 
strictly pursued. See, also, in regard to the remedy against stockholders, who 
are by statute made personally liable, Southmayd v. Russ, 3 Conn. 52 ; Middle- 
town Bank v. Magill, 5 Conn. 28; Child v. Coffin, 17 Mass. 64; Roman v. Fry, 
5 J. J. Marshall, 634. And in an English case, Robinson v. Chartered Bank, 
Law Rep. 1 Eq. 32, where the charter required that no one should become a 
transferee of shares unless with the approval of the directors, it was held that the 
directors must use this power reasonably and would be controlled in equity. 
But where the charter of a corporation required all transfers to be executed by 
both parties and approved by the directors, and the transferror's name had been 
entered upon the registry upon his own execution merely, and the company was 
being wound up, the court refused an application to remove his name from the 
registry. Walker's case, Law Rep. 2 Eq. 554. 

3 Sargent v. Franklin Ins. Co., 8 Pick. 90; United States v. Vaughan, 3 
Binney, 394; Ellis v. Essex Bridge Co., 2 Pick. 243; Chester Glass Co. v. 
Dewey, 16 Mass. 94; Agricultural Bank v. Burr, 11 Shepley, 256; Same v. 
Wilson, id. 273. 

4 Union Bank v. Laird, 2 Wheat. 390; Bank of Utica v. Smalley, 2 Cow. 
770; Rogers v. Huntingdon Bank, 12 Serg. & R. 77 ; Downer v. Bank of Zanes- 
ville, Wright, 477 ; Farmers' Bank of Maryland v. Iglehart, 6 Gill, 50 ; Hall v. 
U. S. Insurance Co., 5 Gill, 484. See Angell & Ames, § 355 and note. In 
Marlborough M. Co. v. Smith, 2 Conn. 579, it was said the transfer of shares to 
constitute the assignee a stockholder must be in strict conformity to the charter 
and by-laws. And in the case of Pittsburg & Connellsville Railw. v. Clark, 29 
Penn. St. 146, C. J. Lewis goes into an elaborate review of the cases to show, 
that under the Pennsylvania statutes, which provide, that no transfer of shares 
shall be made while the holder remains indebted to the company, except by con- 
sent of the board of directors, and no transfer shall discharge any liabilities 
before incurred ; that both the stock and the holder remain liable for all calls due 
before the transfer, and that the original subscriber, who promised to pay fifty 
dollars on a share, is indebted to the company, before calls made, within the 
meaning of the statute ; and even where the transfer is made with the consent of 
the directors, will remain liable until all calls are paid, notwithstanding the 
statute subjects the transferee also to a like liability. The same principle was 
reaffirmed in Graff v. Pittsburg & Steubenville Railw., 31 Penn. St. 489. 

[*116] 



126 TRANSFER OF SHARES. PART II. 

*the company requires the payment of all sums due before regis- 
tering a transfer, this will embrace all calls made and which are 
payable at the date of the transfer. 5 

* "). A corporation has no implied lien upon stock for the liabili- 
of tin- stockholders to the company. 

*6. And when the company wrongfully refuse to record trans- 
fers of shares on their books, the vendee may recover the price of 
such shares, the company having caused them to be sold, as the 
property of the vendor. 6 

1 Open ex parte, Jur. (N. S.) 615. This question is elaborately discussed 
in a case in Maryland, with the following results: — 

Tlu- charter of a bank provided that its shares of stock shall be transferable 
u]H, n the books of the corporation only according to such rules as shall be estab- 
lished by the president and directors ; but all debts actually due and payable to 
the corporation 1<\ a stockholder, requesting a transfer, must be satisfied before 
such transfer .-hall be made, unless the president and directors shall direct to the 
contrary. 

Ibid, 1. That this lien on the stock is not waived by the form of a certificate 

for stock declaring that the stockholder " is entitled to shares of stock 

transferable only at said bank personally or by attorney on surrender of this cer- 
tified!. .'" 

L'. The assignee of a stockholder takes the equitable assignment subject to the 
rights of the bank against the stockholder, under its charter, of which he is bound 
to take notice. 

:;. This lien attaches to balances due the bank by the stockholder, for over- 
drafts on (hecks, but not to notes or bills on which the stockholder may be a 
party, as maker *or indoi'ser, and not due at the time the transfer is demanded. 

1. The words " debts actually due and payable," imply more than mere in- 
debtedness; the indebtedness contemplated is only a deb Hum solvent! urn in pre- 
. not in futuro. 

5. Where an assignee demands a transfer, but refuses to pay the debts then 
due the bank by the stockholder, and afterwards makes a second demand, when 
other notes of the stockholder had become due and payable, he cannot obtain a 
transfer without paying all the debts due at the time of the last demand. Reese 
& ! isher d. Bank of Commerce, L4 Md. 271. And such lien will be good against 
the money, for which the shares were sold, in the hands of the official liquidator, 
for the shareholder. In re General Exchange Bank, L. R. 6 Ch. App. 818. 

" Mass. 1 1 .,n Go. v. Hooper, 7 Cush. 183; Heart v. State Bank, 2 Dev. Ch. 
Ill; Sargent v. Franklin Ins. Co., 8 Pick. 90, and cases cited supra, note 2. 
But dividi nds due and unpaid may be said to he a fund, in the hands of the 
corporation, which they are not obliged to pay to the assignee of the stock, 
in. til their debts from the assignor are liquidated. Dividends are strictly due 
only to the assignor, and would not probably pass by a mere sale of the stock, 
- there were -wne special ground for giving the transfer of the stock that 
ion. 

[♦117-119] 



§33. 



CONTRACTS TO TRANSFER STOCK. 



127 



SECTION II. 



Contracts to transfer Stock. 



1. Transfer under English statutes. Regis- 

tered companies. 

2. Contracts to transfer stock valid, where 

bona fide. 

3. Vendor must have the stock, when due. 

n. 3. Vendor viust procure the consent of di- 
rectors, where requisite. 

4. Force of usages of stock-exchange. 

5. Company will reform their registry at its 

peril. 



6. 10. Company may compel one to accept 

shares on contract. 

7. Stock standing in joint names belongs to 

survivors. 

8. Mode and effect of correcting registry. 

9. If the company vary the contract, spe- 

cific performance will be denied. 

10. Closing contracts by offer and acceptance. 

11. Form of transfer. Two may join in one 

transfer. 



§ 33. 1. Questions often arise in regard to transfers of stock in 
incorporated companies, as to the quantity of interests conveyed, 
the title of the person making the conveyance, and many other in- 
cidents. The English statutes in regard to the registration of 
* railway companies are not intended to affect the property in the 
shares, 1 and a transfer is valid, although made before the registra- 
tion. 2 

2. It would seem, too, that a contract to transfer stock in rail- 
way companies, at a future time, which the party neither has, nor 
is about to have, but expects to purchase in the market, for the 
purpose of fulfilling his undertaking, is nevertheless a valid con- 
tract, and not illegal, or against the policy of the law, 3 and that 

1 The London & Brighton Railw. Co. v. Fairclough, 2 Railw. Cases, 544 ; 
s. c. 2 M. & G. 674. 

2 The Sheffield, Ashton-under-Lyne, & Manchester Railw. Co. v. Woodcock,- 
2 Railw. Cases, 522 ; s. c. 7 M. & W. 574. 

3 Hibblewhite v. MIMorine, 5 M. & W. 462. Mr. Walford, in his Treatise, 
256, and note, intimates that the law of France regards this class of contracts as 
illegal, and cites Hannuic v. Goldner, 11 M. & W. 849, in confirmation. But 
the case does not expressly decide the point. That was pleade.d, and the court 
held the plea bad, as amounting to the general issue, and the party had leave to 
amend. Perhaps it is chai'itable, both to the pleader and to the country, to sup- 
pose such is the law there, as Mr. Walford seems to have done. But where the 
deed of settlement requires the assent of the directors to a transfer of shares, 
and the vendor did not obtain it, and in the mean time the price of shares fell 
in the market, held the vendee might recover back his money. Wilkinson v. 
Lloyd, 7 Q. B. 27. But where the plaintiffs covenanted to subscribe for stock 

[*120] 



128 • TRANSFER OP SHARES. PART II. 

the intimation of Lord Tenterdi n, 4 that such contracts were illegal, 
;U1 ,1 qoI to be encouraged by the law or its ministers, is not to be 
irded, at this time, as sound law, however good sense, or good 
morality, it may seem to be. 

8, It is clearly not a stock-jobbing transaction within the Eng- 
lish statute. 6 But to the performance of such a contract it seems 
* to be requisite, that the seller should bona fide procure the stock, 
by the time appointed for the transfer. 

in a railway, and pay ten per cent thereon, and then transfer it to defendant, 
who agreed thereupon to pay the residue and save the plaintiffs harmless, and 
tlie plaintiffs subscribed for the stock and paid the ten per cent; but the by-laws 
of the company provided for the transfer of the stock on the books of the com- 
pany only alter the payment of thirty per cent of its amount, unless by the con- 
sent of the directors, which they refused to giv°, in this case, and the plaintiffs 
tendered the defendant an instrument whereby they assigned and transferred the 
stock and constituted him their attorney to transfer the same on the books of 
the company, which was refused as not being a compliance with the contract: It 
was held, in an action to recover damages for the breach of the contract, that the 
plaintiffs bad complied with their covenant, and might recover, not the difference 
between the value of the stock at the time of refusal, and the sum due upon the 
subscription, but the whole sum due and interest. See also Orr v. Bigelow, 14 
N . V 

* in Bryan V. Lewis, Ry. &M. ,'586, and in Lorymer v. Smith, 1 B. & C. 1. 

" Hewitt v. Price, 4 M. &. G. :555; Mortimer v. M'Callan, 6 M. & W. 58. 

« Hibblewhite v. M'Morine, 2 Railw. C. 51-66; s. c. 6 M. & W. 200. The 
comments of [sham, .).. in Nbyes v. Spaulding, 27 Vt. 420, 42!), may be regarded, 
perhaps, as giving the present state of the English law upon this subject. "Con- 
tracts for the sale of stock of this character on time are valid at common law, 
and can be enforced by action. The statute 7 Geo. 2, c. 8, made perpetual by 
10 Geo. 2, C. «. has rendered some contracts of that character illegal. They 
are rendered void so far as the public slocks of that country are concerned, when 
the seller had no stock at the time of making the contract, and none was ever 
nit. mlid to be transferred by the parties, but their intention was to pay the dif- 
ference merely that may exist between the market value of the stock at the time 
of the transfer, and the price agreed to be paid. Such contracts are rendered 
void by that .statute, and are treated as wagering contracts ; ' the seller virtually 
betting that the stock will fall, the buyer that it will rise.' Chitry on Bills, 112, 
note (w). It ha- been held, that railroad stock is not within the act. Hewitt v. 
Price, I M. & G. ■'>■'<■'>:, s. c. .". Railw. C. 175; Fisher v. Price, 11 Beav. 194. 
In the case of .Mortimer v. M'Callan, (J M. & W. 70, Lord Abinger observed, 
' that tli«' act was made for the purpose of preventing what is declared to be ille- 
gal trafficking in the funds by selling fictitious stock merely by way of (inferences ; 
but it never was intended to affect bona fide sales of stock.' Elsworth v. Cole, 
2 M. A: W. 81 ; 2 Knit, Comm. 168, note (b). In the case of Grizewood v. 
Blane, 20 Ei g. L. & Eq. 290, it was held, that a colorable contract for the sale 
of railroad shares, where no transfer is intended, but merely 'differences,'' 

[*121] 



.§33. CONTRACTS TO TRANSFER STOCK. 129 

4. The English reports, both in law and equity, and especially 
the more recent ones, abound in cases more or less affecting trans- 
fers of shares on the stock-exchange, and the practice and law 
governing transactions between brokers. These rules are allowed 
to have great weight in fixing the construction and effect of con- 
tracts made through the instrumentality of brokers. In the sale 
of shares in companies requiring the consent of the directors or of 
the company itself to the transfer, it is not understood, according 
to these rules, that the vendor or his broker undertakes to procure 
that consent, and if he does all that is requisite to effect a trans- 
fer of the equitable interest of the property, and there is no ob- 
struction to the vendee in obtaining the registration of such 
transfer, by taking the prescribed steps, the transfer will be re- 
garded as complete. 7 There have been somewhat recently two 
English decisions bearing upon the sale of shares upon the stock- 
exchange which seem to require an extended statement here. In 
Coles v. Bristowe 8 the question was heard in chancery. The 
custom of the stock-exchange seems to be that shares are bought 
and sold for the next settling day, when the jobber is either to take 
the liability on himself, or pass the names of transferees to whom 
no reasonable objection can be taken ; and on such names being 
accepted by the vendor, and the transfers made and the price paid 
by the transferees, the personal liability of the jobber to the ven- 
dor ceases. It was accordingly held, that, where the plaintiff in- 
structed his brokers to sell certain shares for him, and they 
disposed of them to the defendants for the next settling day, both 
plaintiff and defendants being familiar with the usages of the 
stock-exchange, and the transaction being confessedly subject 
thereto, and on the settling day the defendants passed the names 
of persons whom the plaintiff accepted, and executed transfers to 
them, and received the price of them, but the suspension and 
winding up of the- company between the sale and the settling day 

amounting to the rise or fall of the market, is gaming within the 8 & 9 Vict. ch. 
109, § 18; s. c. 11 Common Bench, 538." 

7 Stray v. Russell, 1 Ellis & Ellis, 888, 916; s. c. 5 Jur. (N. S.) 1295; s. c. 
affirmed in Exch. Chatnb. 2 Ellis & Ellis, 592. See also Field v. Lelean, G H. & 
N. 617, where a custom of the stock-exchange in regard to a particular class of 
shares, not to deliver them on contracts of sale until the payment of the price, 
was held binding. 

a 17 W. R. 105, before the full Court of Chancery Appeal, Lord Chancellor 
Cairns, and Lords Justices Wood and Selwin. 

9 [*121] 



130 TRANSFER OF SHARES. PART II. 

having rendered the registration of the transfers impossible, it was 
held that the defendants, who, up to the acceptance of the trans- 
ferers, and transferring the shares to them, were liable to indemnify 
the vendor in respect of his liability on the shares, became there- 
upon exonerated from all liability; and the transferees became 
liable to the same extent by accepting the transfer as if they had 
executed it on their part, but how far that liability will extend was not 
determined here. But it was here held that the vendor of shares 
on the stock-exchange cannot excuse himself from being bound by 
the usages of the exchange, so long as he continues to sell there by 
any private instructions to his broker. The same subject is very 
extensively discussed by Lord Chief-Justice Cockburn in delivering 
the opinion in Gressell v. Bristowe, 9 with the same general results ; 
so that it must now be regarded as settled in England that one 
who sells upon the stock-exchange through a broker, will be bound 
by the known usages of the place, and whether such usages are in 
fact known to the vendor or not will not probably be held essen- 
tial, so long as they are of general notoriety and understood both 
by his broker and that of the other party. The precise point of 
the decisions seems to be, that any usage of the stock-exchange 
which is uniform and reasonable will be understood to form one of 
the terms of sales made there, unless there is something to show 
that the parties understandingly waived or departed from it. And 
the fact that one of the parties gave special instructions to his 
broker, which were not communicated to the broker of the other 
party, will make no difference. 

* 5. Where the company assume to erase transfers from their 
books on the alleged ground that they are merely colorable, and 
made for the purpose of injuriously affecting the interest of the 
company or others, they assume the burden of showing such to be 
the facts ; and the transferees will be entitled to a mandamus to 
compel the company to restore their names to the registry as the 
proprietors. 10 

3 17 \\ . R. 128, before the Exchequer Chamber, on error from the Com- 
mon Pleas, L6 W. EL 428; 8. c. Law Rep. 3 C. P. 112; post, § 36, pi. 4, n. 4. 

Ward v. South Eastern Raihv., 2 Ellis & Ellis, 812; s. c. 6 Jur. (N. S.) 
890. The owner of shares, unless precluded by the charter of the company, may 
lawfully transfer them to any one who will accept the same, although it be done 
to escape the responsibility of membership. Weston's Case, lie Smith & Go., 
17 \Y. R. 62; Ex parte Rayner, id. 64. 

[*122] 



§ 33. CONTRACTS TO TRANSFER STOCK. 131 

6. It is competent for the company to maintain a bill in equity 
against one upon an agreement to accept shares, although no writ- 
ing has been signed by the defendant according to the statute re- 
quiring the acceptance to be in writing. The contract may be 
enforced, as an agreement to do what the statute requires, and the 
decree will settle the question whether the defendant or some other 
one is the lawful holder of the shares in question. 11 

7. Where stock is allowed to stand in the joint names of two 
persons, they will be regarded as joint tenants, unless something is 
shown to the contrary, and the company may treat the survivor as 
the owner of the whole. 12 

8. A court will not interfere to compel a joint-stock company to 
correct their registry by removing one name and inserting another 
while an action at law is pending in regard to the same matter. 13 
Where the registry is altered under a misapprehension as to the 
genuineness of a transfer it will not have the effect to transfer the 
shares. 14 Specific performance of a contract to sell shares will be 
decreed in equity, notwithstanding the constitution of the company 
provides that no shares shall be transferred except in such mode as 
the board shall approve, and the board refuse to give its consent 
to the transfer. 15 

9. If the company in their notice of allotment annex a condition 
which they have no power to do, it will be regarded as such a 
variation * of the contract that a court of equity will not interfere to 
decree specific performance of the original contract. As when the 
company in such notice require the allottee to sign the deed of set- 
tlement on pain of forfeiture of the shares, when the constitution 
of the company gave no such power. 16 

10. The learned judge, Lord Chancellor Westbury, here dis- 

11 N. B. & Canada L. Co. v. Muggeridge, 4 Drew. 686 ; Bog Lead Co. v. 
Montague, 10 C. B. (N. S.) 481 ; s. c. 8 Jur. (N. S.) 310. 

12 Garriek v. Taylor, 3 Law T. (N. S.) 460. And this will be so, notwith- 
standing, by the rules of the bank, there was to be no benefit of survivorship, it 
appearing to have been the purpose of the deceased to have her share go to the 
survivor. Garriek v. Taylor, 29 Beav. 79; 7 Jur. (N. S.) 116, affirmed by 
Lords Justices, 10 W. R. 49. 

13 Harris ex parte, 29 Law J. Exch. 364 ; s. c. 5 H. & N. 809. 

14 Hare v. London & N. W. Railw., 1 Johns. (Eng. Ch.) 722. 

15 Poole v. Middleton, 29 Beav. 646 ; s. c. 7 Jur. (N. S.) 1262. 

16 Oriental I. Steam Co. v. Briggs, 2 Johns. & H. 625 ; s. c. 8 Jur. (N. S.) 
201. 

[*123] 



132 



TRANSFER OF SHARES. 



PART II. 



sees the general questions involved, and concludes, that in gen- 
eral the cunt will specifically enforce a contract to accept of shares 
in a joint-stock company. His lordship explains much at length 
his own views of the true modus operandi in effecting contracts by 
means of written offers and acceptance, and concludes, very justly, 
we think, that one who attempts to enforce such a contract must 
show that the acceptance on his part was prompt, simple, and un- 
qualified : and that where new conditions are made in the accept- 
ance the contract will not be regarded as closed until assent is 
given by the other party, either expressly or by fair implication, to 
such conditions. 

11. The transfer of shares intended to be recorded on the books 
of the company should contain nothing but the transfer of the title. 
And where there are shares in different companies transferred 
between the same parties at the same time, it will be more con- 
venient to have a separate transfer for each company. 17 But as to 
the mere conveyance of title between the parties, one conveyance 
e Mifficient. And it is held even that two different owners may 
join in one conveyance to the same person. 18 



SECTION III. 



Intervening Calls, or Assessments. 



1. Vi ndor must pay calls, if that is requisite 
in pass title. 

, it is matter of construction, and 
i nee. 



n. 2. Calls paid by vendor 
transfer. 



after executing 



| 34. 1. It has been said, too, that the contractor to transfer 
stock must see to it that all calls are met, up to the time of the 
* transfer, as in general the charters of such companies, or their 
by-laws, prohibit the transfer of stock while calls remain unpaid. 1 

17 Lord Campbell, C. J., in Reg. v. General Cemetery Co., 6 E. & B. 415, 
419; Copeland V. North Eastern R. Co., id. 277. 

■ Wills©. Bridge, 4 Exch. 193. 

1 Walford, 266, 257. And under the English statute 8 Vict. ch. 16, § 16, 
providing that no transfer of shares shall be valid until he shall pay any call due 
upon such shares, or upon any other shares held by him, does not apply to the 
transfer of shares upon which no calls are due, notwithstanding the transferror 

[*124] 



§ 34. INTERVENING CALLS, OR ASSESSMENTS. 133 

But we have seen that this is a provision for the protection of 
the company, and in which they alone are interested, and which 
will not ordinarily avoid a sale, hetween other parties, otherwise 
valid. 

2. And it would seem that the question, upon which party the 
duty to pay future calls shall rest, is one of construction, in the 
absence of express stipulation ; at all events, one of intention. It 
may perhaps be safe to say that the sale of stock, in the present 
tense, ordinarily implies that it is free from incumbrance of any 
kind, unless there is some exception or qualification in the con- 
tract. And that may be the common presumption, in regard to 
contracts to deliver stock, in future. But in the latter case the 
presumption is not, by any means, of so conclusive a character as 
in the former, and sometimes, in such cases, it has been held not 
incumbent upon the seller to pay intervening calls. 2 

may hold shares not fully paid up. Hubbersty v. Mancb., Sbeff. & Lincolnsh. 
Railw., Law Rep. 2 Q. B. 59. 

2 Shaw o. Rowley, 16 M. & W. 810 ; s. g. 5 Railw. C. 47. In this case it was 
held no impediment to the seller's readiness to convey the shares, that he had not 
paid an intervening call, as he might do it at the moment of executing the trans- 
fer, and the court say the call was ultimately to be paid by the purchaser. 

In Humble v. Langston, 7 M. & W. 517 ; s. c. 2 Railw. C. 533, it is decided, 
that upon the sale and transfer of the shares, where the purchaser's name is not 
substituted on the register of the company, for that of the seller, but the stock 
still standing in his name, and he is thereby subjected to the payment of future 
calls, he cannot recover the money of the purchaser, because there is no implied 
contract to that effect, resulting from the transaction. This is certainly a most 
remarkable decision, and it is something of a task to be able to read the opinion 
of the court, by which this result is reached, with tolerable patience. The con- 
clusion is certainly not fortified either by reason or analogy. 

And in the Cheltenham & Great W. Union Railw. Co. v. Daniel, 2 Q. B. 281 ; 
S. c. 2 Railw. C. 728, it is decided, that the purchaser of shares may, by way of 
estoppel in pais, be made liable for calls, before his name is actually substituted 
for that of the seller upon the register of shares. If so, both parties are liable for 
the calls, and the seller, while his name remains upon the register, is the mere 
surety of the purchaser, as to future calls. And what is a more natural or neces- 
sary conclusion in the mind of any one having the common sense of justice, than 
to imply, that while the purchaser suffers the seller's name to remain upon the 
register, and liable to the payment of calls, through his neglect, he does impli- 
edly promise to indemnify him against all loss on that account ? See Burnett v. 
Lynch, 5 B. & C. 589. 

But the case of Humble v. Langston is reaffirmed in the subsequent case of 
Sayles v. Blane, 6 Railw. C. 79. These cases can only be accounted for, upon 
the principle of discouraging blank unregistered transfers, which have the effect 

[*124] 



134 



TRANSFER OF SHARES. 



PART II. 



♦SECTION IV. 



Transfer by Deed in Blank. 



ink transfer formerly held invalid in 

r< //' in America. 



4. Deed executed in blank and filled by pro- 
curation valid. 



. 1. Ordinarily the transfer of stock, or a contract to trans- 
tor, i-; not required to be in any particular form. All that is 
requisite, is, the same as in any other contract, the meeting of the 
minds of the parties. But in some cases the shares are, by the 
express requirements of the charter, made transferable only, by 
deed executed by both parties to the transfer. 

2. And in such case it was considered, that a deed executed by 
tin' seller, with a blank for the name of the transferee, was no com- 
pliance with the statute. 1 The opinion of the court seems to rest 
* upon the early cases, in which it is held that the party cannot 
effectually execute a deed, leaving such important blanks as the 
name of the grantee, or obligee, while it is considered that less im- 
portant ones, like the date, etc., may be supplied, after the execu- 

to evade the -tamp duties. Shelford, 108, and Report on Railw. 1839, No. 517, 
p. I. 

Since writing tin- above, the later case of Walker v. Bartlett, 18 C. B. 815 ; s. c. 
A: Eq. 368, has come to hand, where a blank transfer seems to be 
regarded as perfectly valid, and that the transfer in this mode does impose upon the 
vendee the duty of paying calls upon the shares, while they remain his property. 
i i_\ be allowed to say, that this result ©f the English decisions, upon this sub- 
ject, is not altogether without gratification, as the former decisions had so effectu- 
ally mystified the subject, that it seemed not improbable that the difficulty of 
comprehending them might very likely be ultimately found with ourselves, rather 
than at the door of the eminent jurists, who have so long clung to the now 
acknowledged inconsistency of Humble v. Langston, which pertinacity in error, 
il thing, is far more uncommon in Westminster Hall than with courts 
of Less experience. But it is probably on the ground of authority. Men of the 
learning and experience of the English judges, generally feel that they can afford 
to acknowledge their common share of human fallibility, without serious pre- 
judice, when the proper time coin s for doing so. 

1 Hibblewhite v. M'Morine, 2 Railw. C. 51 ; s. c. 6 M. & W. 200. It is con- 
Bidered thai two or more several owners of shares may join in one deed to convey 
their shares. Wills v. Bridge, 4 Exch. 193; Enthoven v. Hoyle, 13 C. B. 373; 
• I Eng. L. & Eq. 134. See ante, § 34, n. 2. 
[*125, 126] 



§ 35. TRANSFER BY DEED IN BLANK. 135 

tion, by permission of the party executing the same. This seems 
to have been the undoubted rule of the English law, from the 
authorities cited, in the last case. 

3. But it seems to be rather technical than substantial, and to 
found itself either in the policy of the stamp duties, or the supe- 
rior force and sacredness of contracts by deed, both of which have 
little importance in this country. And the prevailing current of 
American authority, and the practical instincts, and business 
experience and sense of our people, are undoubtedly otherwise. 

4. There is no good reason why one should not be as much 
bound by a deed executed in blank, and filled according to his 
directions, as by a blank acceptance or indorsement, of a bill, or 
note, and accordingly we find a large number of decisions of the 
American courts leading in that direction. 2 

2 Stahl v. Berger, 10 S. & R. 170 ; Sigfried v. Levan, 6 id. 308 ; Wiley v. 
Moor, 17 id. 438 ; Ogle v. Graham, 2 Penn. 132 ; Woolley v. Constant, 4 Johns. 
54, 60; ex parte Kerwin, 8 Cow. 118; Boardman v. Gore et al., 15 Mass. 331. 

And the following certainly incline in the same direction. Smith v. Crooker, 
5 Mass. 538, and the opinion of Parsons, C. J.; Hunt v. Adams, 6 id. 519; 
Warring v. Williams, 8 Pick. 326 ; Adams v. Frye, 3 Met. 103 ; Bank of Com- 
monwealth v. Curry, 2 Dana, 142; Bank v. McCbord, 4 id. 191; Johnson v. 
Bank of the United States, 2 B. Monroe, 310 ; Camden Bank v. Halls, 2 Green, 
583 ; Duncan v. Hodges, 4 M'Cord, 239. 

In the London & Brighton Railw. Co. v. Fairclough, 2 Man. & Gr. 674; s. c. 
2 Railw. C. 514, the deed of transfer where one name was first inserted, as trans- 
feree, and subsequent!}' that erased, and another inserted, and the deed re-exe- 
cuted, by the vendor, was held void, because it had not been restamped. Post, 
§§ 239, 241. 

An auctioneer, who sells shares at public auction without disclosing the name 
of his principal, makes himself personally responsible for the fulfilment of the 
contract of sale. Franklyn v. Lamond, 4 C. B. 637 ; Hodges on Railways, 119. 

But where one borrowed money, and deposited certificates of railway shares, 
with blank assignments upon them, as security, and the blanks were not filled up 
till the shareholder .became bankrupt, it was held that the depositary had a lien 
upon the shares, for money advanced by him, or paid on calls upon the shares. 
Dobson ex parte, 2 Mont. D. & De G. 685. And railway bouds issued with 
the name of the obligee blank, were held negotiable in that form, although not 
in terms negotiable ; and that any holder for value, before the blanks were filled, 
might maintain an action in his own name against the company. Chapin r. Ver- 
mont & Mass. Railw., 8 Gray, 575. See, also, White v. Vt. & Mass. Railw., 
21 How. (U. S.) 575. 

[*126] 



136 



TRANSFER OF SHARES. 



PART II. 



♦SECTION V. 



v >' spurious Shares. — Rules of Stock Exchange. 



bona fide, must refund 
money. 
a. 1. Discussion of the extent of implied 
warranty. 



'.',. No implied warranty in such case, which 
will entitle the vendee to special damage. 

4 ;j- n. 4. Rule of the stock-exchange, made 
after the sate, not binding upon parties. 
How far such rules bind parties. 



§ 36. 1. Where one employed a share-broker to sell in the mar- 
ket what purported to be scrip or certificates of shares in a pro- 
jected railway company, which subsequently proved to have been 
forged, and the broker paid the price at which he sold them to the 
defendant, but being called upon by the purchaser to make good 
the loss, repaid the money, and a further sum, according to a reso- 
lution of the committee of the stock-exchange, as to the value of 
genuine shares in the same railway company, which resolution was 
passed after the sale of the spurious shares; the defendant declin- 
ing to pay this further sum, the broker brought an action, claiming 
to recover, as upon a warranty, that the shares were genuine, with 
a count for money paid. 1 

1 Hodges, 4th ed. (1865). This writer thus defines the rule: "If a share- 
broker, directed to buy shares, buys what is ordinarily bought and sold in the 
stock-market as shares, he has fulfilled his commission, and cannot be made 
responsible for the fraud or misconduct of parties, who may have issued the 

pea without authority. There is no warranty or undertaking, on the part of 
the broker employed to buy shares or scrip, that the article which merely passes 
through his hands is any thing more than what it purports on its face to be, and 
what it is generally understood to be in the market. Addison on Cont. 5th ed. 
191. But if a broker sell stock-shares or debentures for an undisclosed principal, 
and sign the sold note, he is responsible for any loss sustained by the purchaser, 
through the fraud of the undisclosed principal, although the purchaser knew 
thai he waa dealing with a broker. Carr v. Royal Exchange Insurance Co., 5 
B. & S. G'iG; s. c. nam. Royal Exchange Insurance Co. v. Moore, 11 Weekly 
Rep. 592. 

We know of no good reason why the vendor of shares in a joint-stock com- 
pany Bhould not lie held responsible for the genuineness of the article the same 
a- any other vendor. It may not follow that either of the brokers of the con- 
tracting parties could be so held, since, in general, they act merely in a repre- 
sentative capacity. lint the ultimate vendor must be responsible upon an implied 
warranty to that extent . And as was held, in the last case cited, if the broker with- 
holds the name of his principal he thereby assumes that responsibility, personally. 

[*127] 



§36. SALE OP SPURIOUS SHARES. — RULES OP STOCK EXCHANGE. 137 

* 2. Upon the latter count the defendant paid into court the 
money received upon the original sale, with interest. 

3. It was held, the plaintiff could not recover upon the ground 
of the warranty, there being no promise, express or implied, that 
the certificates were genuine ; and that under the other count he 
could only recover the money paid defendant. 

4. It was also held, that the resolution of the committee of the 
stock-exchange, made after the transaction was completed, however 
it might bind the members of that body, could not affect the defend- 
ant. 2 There has been considerable discussion in the English courts, 
as we have seen, in regard to the binding effect of a rule of the 
stock-exchange, by which the purchasing broker of shares is held 
entitled at the settling day, in case of the purchase of shares, to 
bring forward a responsible party to whom the shares are to be trans- 
ferred, and thus exonerate himself from any further responsibility 
in the matter; the seller being bound to look to the party to whom 
the shares are thus transferred for indemnity against future calls, 
provided the company shall decline to register the transfer. The 
Court of Common Pleas, 3 Byles dissenting, held the custom not 
reasonable, and of no force. But this judgment was reversed in 
the Exchequer Chamber, 4 where the custom was held entirely rea- 

2 Westropp v. Solomon, 8 C. B. 345. We think it probable that the cases, 
in this country, would be regarded as favoring the view, that upon a sale of this 
kind there is an implied warranty that the article is what it purports to be, and, 
consequently, that the seller is liable to pay its value in the market at the time 
its spuriousness is discovered. But see cases collected post, § 235. It would 
seem that in England it is an indictable offence for persons to conspire to fab- 
ricate shares, in addition to the limited number of shares of which a company con- 
sists, in order to sell them as good shares, notwithstanding any imperfection in 
the original formation of the company. Rex v. Mott, 2 C. & P. 521 ; post, 
§ 37, n. 3. 

3 Grissell v. Bristowe, Law Rep. 3 C. P. 112. 

4 Same case, Law Rep. 4 C. P. 36. It seems from this case, and that of Tor- 
rington v. Lowe, Law Rep. 4 C. P. 26, that the seller has no remedy, after he 
accepts the purchaser, against any other party. But he is not obliged to accept 
him, unless he is ready to pay the price and is a responsible party. Kelly, C. B., 
in Exchequer Chamber, p. 51. But where the broker offers the name of a non- 
resident foreigner, the other party is not obliged to accept him as the purchaser ; 
and, on his refusal to do so, the broker will remain personally responsible to his 
customer, not having offered the name of a purchaser against whom no reason- 
able objection could be made. Allen v. Graves, L. R. 5 Q. B. 478. In the 
very recent case (1872) of Mollett v. Robinson, L. R. 7 C. P. 84; s. C. 20 W. 
R. 544, the effect of custom in regard to a particular trade, in a particular city, 

[*128] 



L38 



TRANSFER OF SHARES. 



PART II. 



Bonable and binding. The courts could scarcely pronounce so 
convenient and universal a custom to be unreasonable. ' 



SECTION VI. 



/,', adhtess to perform. — Custom and Usage. 



1. J ', ndor must be ready and offer to convey. 
2 I '■ < 'mis' be ready to pay price. 

"cal usage. 



4. The party taking the initiative must pre- 
pare the writings. 

n. 3. Oral evidence to explain memoranda of 
contract. 



£ 37. 1. The obligation resting upon the vendor of railway 
shares is to have, at the time specified in the contract for delivery, 
a good title to the requisite number of shares, and to manifest bis 
readiness to convey, which is usually done by tendering the proper 
conveyance. But this is not necessary. Any other mode of show- 
ing readiness is sufficient. 1 

2. The corresponding obligations upon the vendee are readiness 
to receive the proper conveyance, at the specified time and * place, 
and to pay the price, and it would seem to prepare a proper con- 
veyance, and tender the same for execution, upon having a -good 
title made out. 2 

in binding persons not resident at that place or shown to be cognizant of the cus- 
tom, is very extensively discussed, in the Exchequer Chamber, by six of the 
judges, who were equally divided on the point, and who therefore gave separate 
opinions. In Masted v. Paine, L. R., in Exchequer Chamber, 6 Exch. 132 ; s. c. 
& id. 203, the question of the effect of the seller having accepted such a pur- 
» chaser as tin; broker offers, although not responsible for indemnifying against 
future <alls, is extensively discussed, and all the cases carefully reviewed, by the 
different judges who gave opinions, and the conclusion reached, that, although 
the seller may not be bound to accept an irresponsible person as purchaser, still, 
il lie do accept such person, he cannot compel the broker to indemnify him 
insl loss. See also Coles v. Bristowe, L. R. 6 Eq. 149; 8. c. 4 Ch. App. 3; 
Bowring v. Shepherd, L. R.6 Q. B. 309; ante, § 33, pi. 4 and n. 

1 Bumble v. Langston, 7 M. & W. 517; s. c. 2 Railw. C. 533; Hannuic v. 
Goldner, 1 1 M. & W. 849; Hare v. Waring, 3 M. & W. 362; Hibblewhite v. 
fcTMorine, 2 Railw. C. 51. In Munn v. Barnum, 24 Barb. 283, it is held that 
men- readiness to transfer is sufficient in such cases, and that an actual transfer 
is never requisite, where the purchaser declines to pay the price. 

2 Lawrence v. Knowles, 5 Bing. (X. C.) 399; Stephens v. De Medina, 4 Ad. 
&E1. (X. S.) 122; Bowlby v. Bell, 4 Railw. C. 692. 

[*129] 



§ 37. READINESS TO PERFORM. — CUSTOM AND USAGE. 139 

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. 3 Hence any general known usage of those 

3 Stewart v. Cauty, 2 Raihv. C. 616 ; 8 M. & W. 160. And one who employs 
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 according to the 
custom of the Leeds stock-exchange. It was held the plaintiff might recover of 
defendant the difference, in an action for money paid. Pollock v. Stables, 5 
Railw. C. 352 ; s. 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 v. Wilkins, 7 C. B. 886. And 
it would seem the party is bound by such usage, though not cognizant of it. 
Parke and Eolfe, BB., in Bayliffe v. Butterworth, 1 Exch. 425; s. c. 5 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; 5 Railw. C. 335. 

And where the defendant gave the plaintiff, a broker on the stock-exchange, an 
order to purchase for him fifty shares in a foreign railway company, at a time when 
no shares of the company were in the market, or had in fact issued, but 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 v. Newhall, 15 M. & W. 308 ; s. c. 
4 Railw. C. 300. 

And where the broker bought scrip certificates, which were sold in the mar- 
ket, as " Kentish Coast Railway Scrip," and were signed by the secretary of the 
company, but which were afterwards repudiated by the directors, as having been 
issued by the secretary, without authority, in an action to recover back from the 
broker the price paid him by the plaintiff for the scrip, and his commissions, on 
the 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. 4 
Railw. C. 302 ; ante, § 36. 

The remarks of Lord Campbell, C. J., in the case of Humfrey v. Dale, 7 El. 

[*129] 



140 TRANSFER OF SHARES. PART II. 

•negotiating similar business, and which may be fairly presumed 
to have been known to the parties, or which ought to have been, 
and * any local custom, or usage of trade, which was in fact known 

& Bl> 266, 20 Law Rep. 227, in regard to the necessity of relaxing the rule of 
the admissibility of oral evidence to explain the import of commercial terms and 
memoranda in written contract- between merchants and business men, are cer- 
tainly worthy of his lordship's eminent reputation for wisdom and learning: — 

•• The only remaining question is, having stated a purchase for a third person 
..- principal, is there evidence on which they themselves can be made liable? 
Now neither collateral evidence, nor the evidence of a usage of trade, is receiv- 
able to prove any thing which contradicts the terms of a written contract; but 
subject to this condition both may be received for certain purposes. Here the 
plaintiff did not seek, by the evidence of usage, to contradict what the tenor of 
the note primarily imports; namely, that this was a contract which the defend- 
ants made as brokers. The evidence, indeed, is based on this. But the plaintiff 
seeks to show that, according to the usage of the trade, and as those concerned 
in the trade understand the words used, they imported something more ; namely, 
that if the buying broker did not disclose the name of his principal, it might 
become a contract with him, if the seller pleased. The principle on which evi- 
dence is admissible is, that the parties have not set down on paper the whole of 
their contract in all its terms, but those only which were necessary to be deter- 
mined in the particular case by specific agreement, and which of course might 
vary infinitely, leaving to implication and tacit understanding all those general 
and unvarying incidents which an uniform usage would annex, and according to 
which they must in reason be understood to contract, unless they expressly ex- 
clude them. To fall within the exception, therefore, of repugnancy, the incident 
must be such as, if expressed in the written contract, would make it insensible or 
inconsistent. Brown v. Byrne, 3 El. & Bl. 703. [After alluding to several cases, 
especially Trueman v. Loder, 11 Ad. & El. 589, in which case is found a dictum 
adverse to admissibility of this evidence, the learned judge continued :] We may 
refer to Eodson v. Davies, 2 Camp. 530, not as a legal decision opposed to 
Truman v. Loder, — for Lord Denman, in his judgment in the latter case, showed 
that it could not lie supposed to carry with it the weight of Lord Ellenborougli's 
decision, — but because both cases, we think, disclose how entirely the minds of 
lawyers are under a different bias from that which, in spite of them, will always 
influence the practice of traders which creates the usage of trade. Lawyers de- 
sire certainty, ami would have a written contract express all its terms, and desire 
that no parol evidence beyond it should be receivable; but merchants and tra- 
ders, with a multiplicity of contracts preparing on them, and meeting each other 
daily, desire to write little, and leave unwritten what they take for granted in 
every contract. It is the business of courts reasonably to shape these rules of 
evidence so as to make them suitable to the habits of mankind, and such as are 
not likely to exclude the actual facts of the dealings between parties, when they 
are to determine on the controversies which grow out of them. The rule to enter 
a nonsuit must be discharged." See Taylor v. Stray, 29 Law Times, 95; s. c. 
2 I .11. (N. S.) 175. 

[*130, 131] 



§ 37. EEADINESS TO PERFORM. — CUSTOM AND USAGE. 141 

to both parties, is regarded as if incorporated into the contract, the 
parties being presumed to have contracted with reference to it. 3 
But it may be questionable, perhaps, whether the custom in 
regard to sales of stock, in this country, would require the pur- 
chaser to be at the sole expense of preparing the proper con- 
veyance. 

4. It is safe, perhaps, to say, that the party tendering a convey- 
ance, or he who demands it, in practice, ordinarily causes the 
instrument, required to be executed, to be prepared in the one 
case and executed in the other. But less will often suffice, where 
the other party refuses to proceed. 4 

4 Walford, 262, note, where it is said, " It would seem, that if the vendor 
fails to make out a title, this dispenses with a tender of conveyance." But if 
stock is to be delivered on demand, it is necessary to show an actual request to 
deliver, in order to sustain an action for non-delivery. Green v. Murray, 6 Jur. 
728. Where the contract is to deliver stock in a reasonable time, or no time 
being specified, which the law regards as in a reasonable time, or on or before 
a day named, it is presumed each party is entitled to the whole time in which to 
perform. Stewart v. Cauty, 2 Railw. C. 616 ; s. c. 8 M. & W. 160. It seems 
that where the deed of settlement required the consent of the directors to the 
validity of the transfer of shares, it is incumbent upon the vendor to obtain such 
consent ; and where the transfer was duly made, executed, and delivered, and 
the money for the price paid, but the directors refused to give their assent, it was 
held the purchaser might recover back the money paid, and that the return of the 
transfer was collateral to the contract of purchase, and not a condition precedent 
to the plaintiff's right to recover. Wilkinson v. Lloyd, 7 Q. B. 27. 

And where the charter of the company or the statute, prohibits the transfer of 
the shares while calls remain due, it has been held that a deed of transfer made, 
while calls remained unpaid, was altogether null and void, so that the company 
may refuse to register such a transfer, although the calls have been subsequently 
paid. It is said it would be necessary to re-execute the deed, after the payment 
of the calls, before the company could be compelled to register it. Hodges, 121, 
122. But it has been said, that if a deed be delivered as an escrow in such case, 
to take effect when the calls are paid, it may be good. Patteson, J., in Hall v. 
Norfolk Estuary Co., 7. Railw. Cas. 503 ; s. c. 8 Eng. L. & Eq. 351. As to the 
binding effect of the usages of the stock-exchange, see Maxted v. Paine, 17 W. 
R. 886 ; ante, § 36, pi. 4, and n. 4. 

[*131] 



142 TRANSFER OP SHARES. PART II. 

♦SECTION VII. 

Damages. — Specific Performance. 

1. Damages, difference between contract price I 2. Equity will decree specific performance of 

and price at time of delm ry. contract for sale of shares. 

*§ 38. 1. The damages which either party is entitled to recover, 
is the difference between the contract price and the market price, 
at the time for delivery, or, in some cases, a reasonable time after, 
which is allowed either party for resale or repurchase. 1 

2. And a court of equity will decree a specific performance of 
a contract to transfer railway shares, but not for the transfer of 
stock in the funds, as any one may always obtain that in the 
market, but railway stock is not always obtainable. 2 This sub- 

1 Barned v. Hamilton, 2 Raihv. C. 624; Humble v. Mitchell, 11 Ad. & El. 
205; s. c. 2 Railw. C. 70; Shaw v. Holland, 15 M. & W. 136. But the pur- 
chaser is not entitled to recover any advance in the market price of such shares, 
after a reasonable time for repurchase. Tempest v. Kilner, 2 C. B. 300 ; s. c. 
3 C. B. 249. See also Pott v. Flather, 5 Railw. C. 85 ; Williams v. Archer, id. 
289 ; s. c. 5 C. B. 318. But a broker is not entitled to commissions unless he 
complete the sale, but may be entitled to reimbursement of actual expenses. 
Durkee v. Vermont Central Railway, 29 Vt. 127. In a case in the Com- 
mon Pleas, Lo e v. Kekule, 3 C. B. (X. S.) 128; s. c. 30 Law Times, 64, 
it was decided, in regard to the subject of damages for breach of contract, 
by delivery of an inferior article, that if the article was one that could be 
immediately sold in the market, the rule was, the difference between the market 
value of the article delivered and that contracted for. But where the article 
cannot be immediately resold, as where the resale is delayed by the defendant, 
the measure of damages is the difference between the value of the article con- 
tracted for, at the time and place of delivery, and the amount made by the 
resale, within a reasonable time of the delivery of the article. See also Rand 
r. White Mountain Railw., 40 N. H. 79. It is here said that such a contract 
creates no debt, attachable by process of foreign attachment, but is merely a 
claim for unliquidated damages. And see Hager v. Reed, 11 Ohio (N. S.), 626, 
where the general question of the enforcement of contracts to transfer stock is 
idered, and the effect of judgment for the price without an actual transfer 
or an order of court therefor. 

- Duncuft v. Albrecht, 12 Simons, 189; Shaw v. Fisher, 2 De G. & S. 11 ; 

s. c. 5 Railw. ('. 461. Leach v. Fobes, 11 Gray, 506. There has been the 

most controversy in the English courts of equity as bearing upon the question of 

decreeing specific performance of contracts to transfer shares in joint-stock 

[*132] 



§ 38. DAMAGES. — SPECIFIC PERFORMANCE. 143 

ject * has been largely discussed in the English Court of Chancery 
Appeal, 3 and the same rule declared, which is stated above. But 
in that case the plaintiff failed to obtain a decree, for the reason 
that he had already conveyed the stock to the defendant's vendee, 
in ignorance that the defendant was the real purchaser ; and the 
matter having lain by for a whole year, it now seemed impossible 
to say that the plaintiff had made, or could make, good title to the 
stock, which is always an insuperable barrier to a decree for spe- 
cific performance. A later case upon the subject in the English 
Court of Chancery Appeal holds, that an agreement to accept a 
transfer of railway shares, on which nothing had been paid, was 
not nudum pactum, but a contract which may be specifically en- 
forced in equity. Lord Chelmsford, chancellor, in delivering his 
judgment, quotes with approbation the words of the Vice-Chan- 
cellor of England, in Duncuft v. Albrecht. " There is not any kind 
of analogy," said that learned judge, " between a quantity of three 
per cent, or any other stock of that description, (which is always 
to be had by any person who choses to apply for it in the mar- 
ket,) and a certain number of railway shares of a particular de- 
scription, which railway shares are limited in number, and which 
are not always to be had in the market." We regard this as the 
latest authoritative declaration of the English equity courts upon 
the subject. 4 So it was held, that a court of equity will decree 
a specific performance against a railway company of a contract to 
take land and pay a stipulated price. 5 

companies, upon tbe point of the sufficiency of the proof. See Parish v. Parish, 
32 Beav. 207 ; Bermingham v. Sheridan, 33 Beav. 660 ; s. c. 10 Jur. (N. S.) 415. 

3 Shaw v. Fisher, 5 De G., M. & G. 596 ; Sullivan v. Tuck, 1 Md. Ch. Dec. 
59, id. 112; McGowin v. Remington, 12 Penn. St. 56. See, also, upon the 
subject of specific performance in courts of equity, Adams, Eq. (ed. 1859) 
77-91, and cases cited; Carpenter v. Ins. Co., 4 Sandf. Ch. 408; Lowry v. 
Muldrow, 8 Rich. Eq. 241. 

4 Cheale v. Kenward, 3 De G. & J. 27. There has been a similar decision 
by the Supreme Court of Massachusetts. Leach v. Fobes, 11 Gray, 506 ; s. p. 
Todd v. Taft, 7 Allen, 371. 

5 Inge v. Birmingham W. & S. V. Railway Co., 3 De G., M. & G. 658 ; s. c. 
23 Eng. L. & Eq. 601 ; post, § 213. So also in their favor, Old Colony Railw. 
v. Evans, 6 Gray, 25. And the fact that the price of shares has unexpectedly 
fallen in the market will not preclude a decree for specific performance. Hawk- 
ins v. Maltby, 17 W. R. 557 ; s. c. L. R. 4 Ch. Ap. 200 ; approving case be- 
tween same parties, 16 id. 209 ; overruling same case, 15 id. 1075 ; Price v. 
Denb., R. & C. Railw., 17 id. 572. 

[*133] 



144 TRANSFER OF SHARES. PART II. 



♦SECTION VIII. 



Specific Performance. 



mince decreed against the 
r< ndee. 
'2. This was denit <l in the early cases. 



3. Owner of original shares mag 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. 1 

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. 2 

1 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 ; 
1 Railw. C. 499, held, that where a testator, at the time of his death, was pos- 
sessed 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 testa- 
tor's estate was liable to pay the calls upon the shares, and a sum to pay the 
unpaid calls was ordered to be placed to a separate account, and laid out, and 
the income meanwhile paid to those entitled to the general residue. This case is 
decided upon the authority of Blount v. Hipkins, 7 Simons, 43, 51, which, it is 
here said, " as it regards both sets of shares, cannot be substantially distinguished 
from Jacques v. Chambers." See also Duncuft v. Albrecht, 12 Simons, 189. But, 
as before Baid, 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. 

1 Jackson v. Cocker, 2 Railw. C. 368 ; s. c. 4 Beavan, 59. 

[*134] 



§ 39. SPECIFIC PERFORMANCE. 145 

3. In the case of Jackson v. Cocker a query is started by the 
* Master of the Rolls, upon the authority of Josephs v. Pebrer, 8 
whether a contract by which the original subscribers of shares 
in a railway company 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, 4 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. 5 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. 6 

3 3 B. & C. 639. 4 6 Geo. 1, c. 18. 

5 Columbine v. Chichester, 2 Phillips, C. C. 27. 

6 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 lor $7,500 to be repaid with interest on demand, 
or received in payment of ten dollars on a share of stock, to be issued to them 
or their assigns, when the directors shall authorize the issue of more stock, this 
only gave the holder of such receipt an option to take the shares or the money, 
and that he could not claim to be a holder of stock, or to have any right thereto, 
until he had given notice of his election to take stock. And where the holder 
of this receipt had assigned it as collateral security to the plaintiff, with an 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 the 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 understood as notice to 
the company, or to him as president, it could not affect the company ; and that 

10 [*135] 



14G 



TRANSFER OF SHARES. 



PART II. 



♦SECTION IX. 



Trustee entitled to Indemnity against future Calls. 



1 / entitled to indemnity, on general 

principles. 

sh courts liisit<i(<d in regard to rail- 
inn/ s 

3, 4. ( 'ast s r< vu wed. 

£,. .!/■' tgagees liable, as stockholders, for the 
d> bts of the company. 



6. The ostensible owner must respond to all 

responsibilities. 

7. Executors responsible personally. 

8. The mortgagor is entitled to redeem on re- 

storing the shares as stipulated in his 
deed. 



§ 10. 1. It seems to be regarded as the general rule of chancery 
law. that the trustee of property is entitled to indemnity, for ex- 
penses bona fide incurred, in the management and preservation of 
the trust-fund, or estate, either out. of the property, or as a personal 
duty from the cestui que trust, in most cases. 1 

■1. We apprehend there is no good reason why this principle 
should not receive a general application to the case of shares in a 
railway company, held as security for a debt, by way of mortgage 
or pledge. And it would seem, that no serious question could ever 
have arisen upon the subject, but for the strange inconsistencies 
into which the English courts and judges have been led, by at- 
tempting, for so long a period, to maintain the doctrine laid down 
in Humble v. Langston, 2 but which is now effectually overruled, 
in the tribunal of last resort. 3 

3. But we shall refer briefly to the decisions, upon this point, in 
regard to railway shares and stock, in other similar companies. 
It was held, by Wigram, Vice-Chancellor, 4 that where there was 

the surrender of the receipt with certain indorsements, showing plaintiff's interest, 
alter the resolution to issue the stock, fixing the mode of distribution, could not 
bind them to allot shares to the plaintiff upon the 300 shares. 

1 Murray v. De Rottenham, 6 Johns. Ch. 52, 67; Green v. Winter, 1 Johns. 
Ch. 27; Watts v. Watts, 2 M'Cord, Ch. 82; Myers v. Myers, 2 M'Cord, Ch. 
264; McMillan v. Scott, 1 Monroe. 151; Morton v. Barrett, 22 Maine, 257; 
Draper v. Gordon, 4 Sandf. Ch. 210; Egbert v. Brooks, 3 Harring. 110; 
Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 450; Story on Bailments, 
§§ 306, 306 a, 357, • 

^ 7 M. & W. 517. 

3 Walker v. Bartlett, 18 C. B. 845; s. c. 36 Eng. L. & Eq. 368. See also 
Paine o. Hutchinson, Law Rep. 3 Eq. 257. 

* Phene v. Gillan, 5 Hare, 1. In this case, it was held, that where the mort- 

[*136] 



§ 40. INDEMNITY AGAINST FUTURE CALLS. 147 

*a contract for retransfer, claimed by the mortgagor, or found, in 
express terms, in the contract of pledge, or mortgage, or inferable 
from circumstances, this was sufficient ground for implying a 
contract, by the mortgagor, to indemnify the mortgagee, against 
liability to the creditors of the company, for debts incurred, while 
his name remained upon the register of shares, as owner, and a 
decree was made accordingly. 

4. The same learned judge, in the same case, considered, that 
where the mortgage was made simply as an absolute transfer, 
subject to redemption, and nothing had passed, binding the mort- 
gagor to take a retransfer of the shares, the mortgagor was not 
bound to indemnify the mortgagee against debts incurred after the 
transfer made in the mortgage, and before the mortgage debt was 
paid off. But it is here maintained, that the mortgagee has not in 
such case any right, at law, against the mortgagor, as to payments, 
which he has been compelled, to make, while he remained the 
ostensible owner of the shares, even where a contract for retrans- 
fer is shown. But an English writer upon this subject 5 seems 
to incline to the opinion that, in such case, an action of trespass 
on the case might be maintained against the purchaser of shares 
who fails to cause his name to be registered as owner, or to in- 
demnify the seller against liabilities after the sale. And the same 
principle will apply to the mortgagee, after the debt is paid. But 
all these refinements must now, we think, be regarded as effectu- 
ally abrogated, by the virtual abandonment, by the English courts, 
of the rule laid down in Humble v. Langston, and the recognition 
of the contrary doctrine. 

5. It has been held, in this country, that, where B. being in- 
debted, transferred shares to his creditors, as security, with the 
power of sale, and upon condition that the shares should be re- 
turned or accounted for, whenever the debt should be paid, the 
debt being paid off, and an informal power of retransfer given the 
mortgagor, and subsequently a more formal one, the mortgagees 
were to be regarded as stockholders, until the actual retransfer of 

gagor is entitled to claim a retransfer of shares, standing on the register of shares, 
in the name of the mortgagee, the debt being paid off, he is entitled to take pro- 
ceedings to compel such retransfer on the books of the company, in the name of 
the mortgagee, giving the proper indemnity for costs. And either the company 
or the directors, who have prevented the shares from being transferred, are 
proper parties to the bill, and, it would seem, necessary parties. 
6 Hodges, 122. 

[*137J 



14S TRANSFER OF SHARES. PART II. 

the Bhares, and as such liable to the creditors of the company, 
under the charter. 1 As the case of Humble v. Langston is not in 
puis overruled, although it is in principle we think, we here in- 
sert the substance of the opinion of the court in Walker v. Bart- 
let i. as showing the present state of the English law on the 
Bubj 

6 Adderly v. Storm & Bailey, 6 Hill, 624. Bronson, J., argues the liability 
of the in to the creditor- of the company, while their names remained 
on the books ol the company, as absolute shareholders, on the ground that "they 
might receive dividends, vote at elections, and enjoy all the rights pertaining to 
the ownership <>f the property, and with the privileges they must take the bur- 
den* of a stockholder." A query is here started whether a retransfer to the mort- 
gagor of tin' shares, upon the payment of the debt, might not release the 
mortgagee. " The assignment, as between the parties to it, would have passed 
the 1 gal interest in the stock." But are the creditors of the company bound to 
look beyond the register of share.*? Rosevelt v. Brown, 11 N. Y. 148; Wor- 
rall o. Judson, 5 Barb. 210; Stanley v. Stanley, 13 Shepley, 191. In Adderly 

orm, supra, it is intimated, that a fraudulent transfer of stock by a solvent 
own< r i" an insolvent party, for the purpose of avoiding liability to the creditors 
of the company, might not avail the party, even at law. 

7 •• The case of Wynne v. Price, 3 De G. & S. 310, shows that in equity the 
plaintiff would be entitled, under the circumstances of the present case, to in- 
demnity: but it was contended for the defendant, that, however the case might 
be in equity, there was no contract for indemnity to be implied by law; and the 

of Humble v. Langston, 7 M. & W. ol7, was relied upon as a direct author- 
ity against the plaintiff upon this point ; and the Court of Common Pleas, in the 
judgment appealed against, considered that it was bound by that decision, though 
it was intimated that but for that express decision their own judgment might have 
been. different. It must be admitted that, in principle., no substantial difference 
■ ■an be taken between that case and the present, except this, that in Humbler. 
Langston, the plaintiff claimed to be indemnified by the defendant against all 
future calls, even though made after the defendant had himself transferred the 
- to other persons; and the Court of Exchequer, at the end of the judg- 
ment, observes, that if there were any analogy in principle between the case of 
ett v. Lynch, and that before the court, the defendant's implied promise 
I only be to indemnify against such calls as should be made while he was 
beneficially interested, whereas the plaintiff Humble claimed an indemnity 
ills mad.; after the defendant had parted with his interest. This, no 
a very important distinction; and though the Court of Exchequer ex- 
1"' "■- an "pinion that there was no contract of indemnity at all, it adverts to 
between a claim to indemnify during the time the defendant is 
d, and a claim to be indemnified after he has ceased to be 
The i ircumstances ol the present case are, therefore, distinguishable 
in Humble v. Langston, and it consequently is not so direct an author- 
ir . v :l plaintiff's claim in the present case, as at first sight it might 

ir to be. 

[*18 



§ 40. INDEMNITY AGAINST FUTURE CALLS. 1-19 

*6. It seems most unquestionable that a trustee may be made 
liable for assessments or calls upon the shares standing in his 
name, beyond the amount of the trust property. 8 And the trans- 
feree of shares, having taken upon himself the position and attitude 
of owner, cannot be allowed to excuse himself from responsibility 
by pleading irregularity in transfers, and it makes no difference in 
this respect whether he hold as trustee or beneficially. 

" It seems to us, therefore, that the circumstances of this case bring it directly 
within the principle upon which Burnett v. Lynch was decided. In the present 
case, the defendant entered into no express agreement to pay calls or indemnify, 
but he accepted the only transfer the plaintiff could give, and which invested him 
with full power to become the registered owner of the shares when he pleased. 
That transfer expressed that the transferee took them subject to the same rules 
as those under which the plaintiff held them, one of which was, that the registered 
owner should pay the calls. It could hardly have been the intention of the par- 
ties, that if the defendant, for his own benefit, omitted to make a perfect transfer, 
by registration in the company's books, the plaintiff should still continue to pay 
the calls; and if that was not the intention, was it not understood between them 
that the defendant should save the plaintiff harmless from any calls made during 
the time when he was virtually owner of the shares? 

" In Burnett v. Lynch, a lease had been granted to Burnett, in which he cov- 
enanted to pay the rent and repair the premises ; his executors assigned the lease 
to Lynch, subject to the performance of the covenant, but without any express 
covenant or contract by him that he would pay the rent or perform the covenant. 
The executors were called upon by the landlord, and obliged to pay damages for 
not repairing, according to the covenant, during the time Lynch was assignee ; 
the executors brought an action on the case against Lynch, founded on a breach 
of duty in not repairing. In giving judgment for the plaintiffs, Abbott, C. J., 
says, ' It is true, the defendant entered into no express covenant or contract 
that he would pay the rent or perform the covenants ; but he accepted the as- 
signment subject to the performance of the covenants ; and we are to consider 
whether any action will lie against him. If we should hold that no action will lie 
against him, the consequence will follow, that a man having taken an estate from 
another, subject to the payment of rent and performance of covenants, and hav- 
ing thereby induced an undertaking in the other that he would pay the rent and 
perform the covenants; will be allowed to cast that burden upon the other person. 
Reason and common sense show that that never could be intended.' He then goes 
on to say, that though an action on the case would lie, there might also be an 
action of assumpsit. 

" With the distinction of circumstances to which we have already adverted 
between this case and that of Humble v. Langston, we think that the principle 
upon which the case of Burnett v. Lynch was decided, is directly applicable to 
the present case, and that the plaintiff is entitled to make the rule absolute to set 
aside the nonsuit, and enter a verdict upon the first count of the declaration, and 
so much of the pleas as may be applicable to that count." 

8 Hoare ex parte, 2 Johns. & Hem. 229 ; s. c. 8 Jur. (N. S.) 713. 

[*139] 



L50 



Ti; kNSFER OF SHARKS. 



PART II. 



7. Thus where reserved shares were offered to the shareholders 
and the executory of such as arc deceased, in proportion to the 
original shares, it was held that executors who accept shares must 
•be placed upon the list of contributories in their own right, and 
not in their representative capacity. 9 

8. Where the owner of shares in the public stocks, or in joint- 
stork ctuiip anies, sells the same to raise money, and loans the money 
upon mortgage of real property, with conditions for having the 
Bharea replaced, at a given time, which is not done, but the mort- 
gage continued, the court will allow the redemption of the mortgage 
upon retransfer of the shares stipulated at the price on the day of 
the decree, although the funds had fallen. 10 



SECTION X. 



Fraudulent Practices to raise the Price of Shares. 



! ' Is of i quity will vacate sales so pro- 

'_'. Necessary parties. Extent of redress. 
'.',. 4. Dtvidi rids declared wh n none are earned 

will vacate sales, and subject directors to 

iridictrm nt. 
5. Equity will not interfere where vendor 

mird bona fide, unless the shares were 

valueless. 



6. Managers of company liable in tort to party 

injured. 
7 Sf n. 10. Purchasing shares in another 

company considered. 
8. Bona fide purchaser of shares fraudulently 

issued acquires same riyhls as other 

shareholders. 



§41. 1. All fraudulent practices, either of the shareholders, or 
directors, resorted to for the purpose of raising the price of shares 
in the market, where sales have been induced in faith of the truth 
of such representations, will be relieved against in a court of 
equity. 1 As where the directors of a joint-stock company, in order 

' Fearnside & Dean's Case, Law Rep. 1 Ch. App. 231. 

10 Blyth v. Carpenter, 12 Jur. (N. S.) 898; s. c. L. R., 2 Eq. 501. 

1 Stainbank o. Fernley, '.) Simons, 556. And in a more recent case, the 
plaintiff, a director in a bank, who had been such from its organization, who 
usually attended the meetings, and was actually present and took part in the 
proceedings of tin- board of directors when the last dividend was declared, hav- 
ing purchased from the cashier of the institution twenty sliares of the capital 
stock, brought an action to have such contract rescinded, and to recover back 
the money paid, on the ground of false representations and concealments by the 
cashier as to the value of the stock and the condition of the bank at the time of 
[*140] 



§ 41. PRACTICES TO RAISE THE PRICE OP STOCK. 151 

* to sell their shares to advantage, represented in their reports, and 
by their agents, that the affairs of the company were in a very 
prosperous state, and declared large dividends, at a time when the 
affairs of the company were greatly embarrassed. 

2. A person who had been induced, by these means, to purchase 
shares of one of the directors, filed a bill against that director, 
praying to be paid his purchase-money and offering to rctransfer 
the shares ; a demurrer for want of equity, and. because all the other 

the purchase: Held, that the plaintiff was not estopped from setting up his actual 
ignorance of the condition of the bank at the time of the sale. 

That although the purchaser was a director of the bank, having the means of 
knowledge, he was not in the particular transaction chargeable with notice of the 
condition of the bank. 

That if he was actually ignorant of its condition, the fraudulent vendor would 
be equally responsible to him for the deceit as to any stranger to the institution. 

That it was not a case in which the plaintiff was legally bound to know the 
truth or falsity of the vendor's representations. 

Held, also, that the evidence in such action plainly showing that at the time 
of the alleged sale and transfer of the stock, on the 29th August, 1857, the bank 
was, by the application of all the ordinary tests, sound, solvent, and prosperous, 
and the stock worth all that the defendant had represented it to be, the plaintiff 
could not be allowed to show the contrary by introducing in evidence what 
purported to be a certified copy of proceedings had in November, 1857, on the 
petition of certain stockholders for the re-establishment of the bank. Lefever v. 
Lefever, 30 N. Y. 27. 

In the case of Smith v. The Reese River Silver M. Co., Law Rep. 2 Eq. 
264; s. c. 12 Jur. (N. S.) 616 (April, 1866), where a person was induced 
to take shares in a company on the faith of a statement in the prospectus, as to 
the nature of the property contracted to be purchased, which statement the pro- 
moters had no ground for believing to be true, and which turned out to he untrue, 
Sir W. Page Wood, V. C, held, he was entitled to an injunction restraining the 
company from enforcing calls against him, notwithstanding the articles of associ- 
ation to which the prospectus referred would have informed the purchaser that 
the statement in the prospectus was not justified. The learned judge said : " He 
is not bound to call at the office for the mere purpose of ascertaining whether the 
representations are- false or not. He was entitled to rely upon the representa- 
tions made to him as being true to the knowledge of the directors." 

But the party who claims to be injured by such fraudulent practices of direc- 
tors and other agents of corporations must bring his action for relief at the earliest 
practicable opportunity after having learned the probable fact of such fraudulent 
practices. Clarke v. Dickson, 1 EL, Bl. & El. 148; s. c. 5 Jur. (N. S.) 1029; 
Hop & Malt Co. in re, Law Rep. 1 Eq. 483. One who purchases upon the facts 
stated in a prospectus must be held to have notice of facts stated in other docu- 
ments expressly referred to unless there is special grounds for presuming the 
contrary. lb. See also Briggs ex parte, 12 Jur. (N. S.) 322; s. c. L. R. 1 
Eq. 483. 

[*141] 



[52 TRANSFER OP SHARES. PART II. 

partners in the transaction ought to have been made parties, was 
overruled. Bui where a bill was filed against the public officer of 
a joint-stock bank, charging a similar fraud, through the fraudu- 
lent representations of the directors, in their reports, as to the 
prosperous state of the company's affairs, and that the plaintiff 
had thereby been induced to purchase five hundred shares in the 
hank, and praying that the sale might be declared void as between 
him and the company, and that they might be decreed to repay 
the purchase-money, it was held, that as the litigation was between 
one member of the partnership and the other members, the public 
* officer was improperly made a party, as representing the company, 
and a demurrer was allowed. 2 But in a case before the Court 
of Chancery Appeal, it was decided that the directors of a railway 
company are in the position of trustees, and if the purchaser has 
not by his own conduct affected his rights, the company cannot, as 
against him, retain money acquired from a fraudulent sale of their 
property to him, through the false representations of their direc- 
tors. But the court held that the plaintiff was not entitled to a 
decree against the directors, but was entitled to a decree 
against the company for his money and interest. 8 And it seems 
to be settled, by the decision of the House of Lords, that in 
England and in Scotland, for any fraudulent act done by the di- 
rectors, without the range of the powers of the company, whereby 
third persons suffer damage, they are personally liable to an action: 
but for all such acts within the power of the body of the share- 
holders to sanction, although the directors might not have been 
justified in what they were doing, there could be no right of ac- 
tion. 4 And a director cannot screen himself from responsibility 
for any imposition which is brought upon others by means of the 
circulation of a prospectus through his instrumentality, upon the 
ground that the document is capable of a construction by which it 

- I Ion o. Connell, 10 Simons, 58. It was further held, in this ease (10 
Simons, 79) that it is not competent for the party in such case to file a bill against 
the company and some of the directors, praying, that if lie is not entitled to relief 
agail ipany, he may have it against the directors, and that such a bill 

is demurrable, <>n the ground that the prayer for relief should be absolute, for 
relief against the directors, in order to maintain the bill against them. But it is 
not necessary to make all the parties to a fraud defendants in a bill for relief. 

3 Conybeare v. New Brunswick & Canada Railw. & Land Co., 1 De G., F. 
& J. 578 3. C, 6 Jur. (X. S.) 518. 

* Davidson v. Tulloch, 3 McQu. Ho. Lds. 783; s. c. Jur. (N. S.) 543. 
[*142] 



§41. PRACTICES TO RAISE THE PRICE OF STOCK. 153 

may be regarded as true. It is for the jury to say whether that is 
the natural sense. 5 And it is not necessary that there should have 
been any direct communication between the plaintiff and defend- 
ant in order to subject the defendant to an action for false repre- 
sentation. If the defendant authorized the circulation of the 
prospectus before the public, containing false representations, by 
* which the plaintiff was misled, it is the same as if the defendant 
had made such representations to him personally. 5 And the fact 
that other inducements were also held out to plaintiff by other 
parties by which he was partially influenced, will not excuse the 
defendant. 5 But the representation of an officer of the company 
as to the effect of deeds, which it forms no part of his duty to 
expound, will not release the party executing the deed from his 
liability. 6 

3. The declaring of dividends by the directors, where none 
have been earned, if done by them for the purpose of fictitiously 
enhancing the price of shares, for their own benefit, is regarded 
as such a fraud as will relieve a party who has purchased shares 
in faith of such facts, at prices greatly beyond their value, 7 and 
the transfer of the shares will be set aside. 

4. In this case," Lords Campbell and Brougham concurred in 
saying: " Dividends are supposed to be paid out of profits only, 
and where directors order a dividend to be paid, when no such 
profits have been made, without expressly saying so, a gross 
fraud is practised, and the directors are not only civilly liable to 
those whom they have deceived and injured, but are guilty of 
conspiracy, for which they are liable to be prosecuted and pun- 
ished." 

5. Where both parties labored under the same delusion in re- 
gard to the value of stock, relief could not be granted, of course, 
on the ground of fraud in the sale, and a court of equity will not 
ordinarily interfere to set aside a sale on the ground of mutual 
misapprehension as to the state and condition of the subject-mat- 
ter, unless in extreme cases, as where that is sold as valuable 

5 Clarke v. Dickson, 6 C. B. (N. S.) 453; s. c. 5 Jar. (N. S.) 1029. See 
also Nicol ex parte, in re Royal British Bank, 3 De G., F. & J. 387 ; s. c. 5 
Jur. (N. S.) 205. 

6 Athenanim Life Ins. Co. in re Sheffield, 5 Jur. (N. S.) 216; s. c. John- 
son, Eng. Ch. 451. 

7 Burnes v. Pennell, 2 House of Lords' Cases, 197. 

[*14G] 



154 TRANSFER OF SHARES. PART II. 

which is wholly valueless, or does not exist. 8 To constitute a 
fraud in Buch cases, it is requisite, ordinarily, that the parties 
should have been upon unequal looting in regard to their means 
of access to the knowledge of* the true state of the company's 
funds and property, and that the party gaining the advantage in 
the bargain should, in some way, participate in giving curreney 
to the false estimate of its condition, beyond the mere fact of repeat- 
ing * the report of the directors, where both parties have equal 
means of judging of its correctness. 

(J. It seems to be regarded as settled law, that in case of such 
false representations to raise the price of stocks, and damage 
thereby sustained, the suffering party may maintain an action of 
tort against the party making the false representation, although 
it were not made directly to such injured party, there being no 
necessity for any privity between the parties to support an action 
of tort for a false representation. But where the action is ex 
contractu or quasi ex contractu, some privity is indispensable to 
the maintainance of the action. 9 

7. It has recently been decided that a bona fide sale and trans- 
fer of property of one company to another, in consideration of 
shares in the one company being transferred to the other, is not 
such a return of capital as would be in contravention of the Eng- 
lish statute, which is in confirmation of the general rule of law, 
prohibiting the conversion by corporations of capital into income, 
and thus virtually reducing the stock of the company below the 
requirements of the charter; and on the other hand giving the 
shares of the company a false value in the market by reason of 
fictitious dividends. 10 

8 1 Story's Eq. Jur. § 142 ; Hitchcock v. Giddings, 4 Price, 135, 141 ; 2 Kent, 

( 'innlii. 46 . 

■ Gerhard v. Bates, 2 El. & Bl. 47C ; s. c. 20 Eng. L. & Eq. 129. In tliis case 
the defendant was one of the promoters and managing directors of a joint-stock 
company, and, in offering the shares for sale, had guaranteed a certain semi- 
annual dividend to all who should purchase, but without any other communication 
witli the plaintiff personally, but the plaintiff purchased upon the faith of such 

eral guaranty or representation; and it was held that he could not maintain 
an action upon tin- guaranty, but that he might recover in tort, as for a fraudulent 
representation. Post, §§ 234, 240. 

diffC. & C.Co. in re Norton, 11 W. Rep. 1007. See also MeDougall v. 
!) Imp. H. Co., 2 B. &M. 528; s. c. 10 Jur. (N. S.) 1043. This point of 

[•144] 



42. 



LIABILITY OP COMPANY FOR NOT REGISTERING. 



155 



* 8. But the bona fide purchaser of shares fraudulently issued 
acquires the same right as other shareholders, unless he buys 
after the company is in the process of liquidation ; and even in 
that case he may come in for his equal proportion of the assets, by 
proving that he bought of one who was a bona fide holder before 
the company was subjected to the process of being wound up. 11 
But it was held that a bona fide sale of shares in a company, en- 
tered into after the presentation of the petition, but before the 
first advertisement for winding up the company, both vendor and 
purchaser being ignorant that such a petition was pending, was 
held sufficient to have passed the title. But the rule was reversed. 12 



SECTION XI. 



Liability of Company for not registering Transfers. 



1. The company liable to action. 

2. May be. compelled to record transfers by 

mandamus. 

3. But not compellable to record mortgages of 

shai'es. 



4. Grounds of denying mandamus. 

5. Bill in equity most appropriate remedy. 

6. Rule of damages. 

7. A fraudulent cancellation of an unregis- 

tered transfer will not affect the title. 



§ 42. 1. It seems to be settled in England, that an action will 
lie against a joint-stock company, who neglect or refuse, upon proper 
request, to register shares and deliver new certificates, after 
the deed of transfer has been sent to the secretary. Damages 

one company taking shares in another company is discussed, to some extent, in 
the Court of Chancery Appeal in the case of Great Western Railw. Co. v. 
Metropolitan Co., 9 Jur. (N. S.) .562. There can be no doubt, as a general 
rule, this will not be allowed, unless by the express sanction of legislative per- 
mission. And it was here considered, that such an express sanction will not be con- 
strued to extend to additional shares, issued by the same company, and expressly 
required to be allotted to the existing shareholders. Vice-Chancellor Wood, when 
the case was before him, cited the case of Solomons v. Lang, 12 Beav. 377, as 
establishing the right of the defendant in the suit, to raise the question of the plain- 
tiff's right to take these additional shares, beyond the amount which the special 
legislative permission authorized. The case of the Attorney-General v. The Great 
Northern Railw. Co., 1 Drew. & Sm. 154 ; s. c. 6 Jur. (N. S.) 1006, is also cited 
by the learned judge as analogous to the case then before him. 

11 Barnard v. Bagshaw, 1 H. & M. 09. 

12 Emmerson's Case, Law Rep. 2 Eq. 231 ; s. c. reversed on Appeal, Law 
Rep. 1 Ch. App. 433. 

[*145] 



156 TRANSFER OF SFIARES. TAUT II. 

may be recovered, it seems, by reason of such refusal of the com- 
pany, whereby the party Is deprived of the right to attend and vote 
at the meetings of the company, and especially where calls are 
made upon the shares, and in consequence of non-payment the 
shares are declared forfeited and sold. 1 

There can be no question probably in this country, that 
where the company refuse on reasonable request, to make the 
proper entry upon their books of the transfer of shares, whereby the 
owner is liable to be deprived of any legal right, or pecuniary 
advantage, the company may be compelled to do their duty, in 
the premises, by writ of mandamus. 

3. Bui it has been held, that the company are not bound to reg- 
ister trust-deeds or mortgages, and especially such as contain other 
property, or the stock of other companies. The mandamus was 
refused in such a case, in the Queen's Bench, so late as May, 1856, 
and upon the ground, as stated by Lord Campbell, C. J., that " if 
the company were bound to register this deed, they must become 
the custodians of it, and must incur great responsibility as to its 
safe custody, and that therefore convenience requires that they 

; Bodges on Railways, 123; Catchpole v. Ambergate Railw. Co., 1 Ellis & 
Black, 111; 16 Eng. L. & Eq. 163. See also Wilkinson v. Anglo-California 
Gold ( !o. 18 Q. B. 728; s. c. 12 Eng. L. & Eq. 444. In regard to the right to 
sustain a writ of mandamus in ngland, to compel such transfer, upon the books 
of the company, sec Rex v. Worcester Canal Co., 1 M. & R. 529; Regina v. 
I. rerpool, Manchester, & Newcastle-upon-Tyne Railw. Co., 11 Eng. L. & Eq. 
408: Sargent v. Franklin Insurance Co., 8 Pick. 90. So also an action on the 
will lie for not transferring stock. The rule of damages, where the stock 
has been sold, as the property of the vendor, is the value of the shares at the time 
of the, refusal, 8 Pick. 90, or it has sometimes been held, the highest value, 
between the time of refusal and the commencement of the action. Kartright v. 
Buffalo ( lommercial Bank, 20 Wend. 91 ; s. c. 22 Wend. 348. And some cases 
e.\t. nd it even to the time of trial. But see ante, §§ 36, 38. 

W here stuck in a railway is purchased and registered in the name of a married 
woman, out of her earnings, she and her husband may sue jointly for dividends, 
a " ' if »he sue alone, it is only ground of abatement. Dalton v. Midland Railw. 
! C. B. 474; s. c. 20 Eng. L. & Eq. 273. 

mot be transferred so as to pass the title after the dissolution of the 
corporation, the shareholders being then only entitled to a share in the assets. 
James v. Wood: nil', 2 Denio, 574. 

Where a company have registered a transfer, which is alleged to he a forgery, 
and are threatened with a suit from both the tr. nsferror and transferee, the 
court will not grant an interpleader. Dalton v. Midland Railw. Co. 12 C. B. 
13 C. B. 474; 22 Eng. L. & Eq. 452. 
[*146] 



§ 42. LIABILITY OF COMPANY FOR NOT REGISTERING. 157 

should only bo bound to register mere transfers, passing the legal 
title, and showing who is the legal owner of the shares." 2 

4. But a mandamus to compel the registry of the transfer of 
shares in a railway company to an infant, 3 was denied. And the 
* court of equity declined to interfere to compel the registry of the 
transfer of shares when the company are denied the opportunity of 
inspecting the certificates by their directors. 4 

5. The more effectual, and at present the more usual, remedy 
against corporations for refusing to allow the transfer of stock upon 
their books into the name of the real owner is by bill in equity. 
And in one case, 5 where the party whose stock had been allowed by 
the bank to be transferred into the names of those who had pur- 
chased it under forged powers of attorney sought .redress by an 
action at law, the court said, " We cannot do justice to this plain- 
tiff unless we hold that the stocks are still his," and therefore de- 

2 Regina v. General Cemetery Co., 6 El. & Bl. 415; s. c. 36 Eng. L. & 
Eq. 126. 

3 Reg. v. Mid. Counties & Sh. Junction Raihv. Co., 15 Ir. Com. Law, 514, 
525; s. c. 9 Law T. (N. S.) 151. But the practice of compelling the registry of 
transfers, by mandamus, seems well established, even where they are not of a 
character to induce the most favorable consideration, as where it was a transfer to 
a pauper to enable the transferror to get rid of liability, it being intended to be 
out and out, with no secret trust for the transferror. lb. The transfer of shares 
for special purposes is so frequent, and the motives and occasions are so various, 
that it could not be expected to give an abstract of all the cases. As a general 
rule, one who understandingly consents to have shares transferred into his name 
upon the public registry of shares, must be content to assume all the responsi- 
bility towards the public and the other shareholders not conusant of the special 
contract, which any other shareholder would incur. But as between the com- 
pany and the purchaser there may be .• pecial grounds of relief. Coleman ex 
parte, 1 De 6., J. & Sm. 495; Grady ex parte, id. 488; Barrett ex parte, 10 
Jur. (N. S.) 711 ; Saunders e parte, id. 246 ; s. c. 4 Giff. 179. 

Any transaction of this kind will not be disturbed, after considerable lapse of 
time. Spackinan ex'parte, 1 De G., J. & Sm. 504- ; s. c. 10 Jur. (N. S.) 911 ; 
Lane ex parte, id. 25 ; Spackinan ex parte, reversed, 11 Jur. (N. S.) 207. In 
Houldsworth v. Evans, L. R, 3 IIo. Lds. 263, it is distinctly declared, as the 
settled doctrine of the English courts, that any arrangement between the com- 
pany and the shareholders, although irregularly entered into, as between the 
directors and the shareholders, will nevertheless bind the i ody of the share- 
holders, unless they take active steps to have it set aside within some short 
and reasonable time after it becomes known to them. Post, § 135, pi. 6, and note. 

4 East Wh. M. M. Co. in re, 3;! Beav. 119. 

5 Davis v. Bank of England, 2 Bing. 303; post, § 241. 

[*147] 



158 TRANSFER OP SHARES. PART II. 

nied the action for the value of the stocks, but allowed a recovery 
for the dividends which had been declared after the transfer. 

6. And there is the same difficulty in compensating the purchaser 
of stocks, where a transfer on the books has been denied in an 
action at law. In some cases this has been attempted to be done 
by allowing the party to recover the highest market price of the 
stock between the refusal to transfer and the trial. But the only 
rule at all analogous to settled principles seems to be that the 
corporation shall pay the value of the stock at the date of their 
refusal to transfer it, as that is the time when the corporation 
became in default, and when by said default the stock, as between 
the parties, became theirs. 6 The question of the effect of forged 
and fraudulent transfers is very ably discussed by the Court of 
Chancery Appeal in Tayler v. Great Indian Peninsular Railway. 7 

7. In a somewhat recent case, 8 one A. authorized a stock-broker to 
purchase for him some shares in a company, and paid the pur- 
chase-money, and the shares were duly transferred to him, by writ- 
ten instrument, but his name was not registered. Afterwards the 
stock-broker, on a false pretence, prevailed on A. to cancel his 
signature to the instrument of transfer, and to sign a deed of transfer 
to him, the broker ; A. believing, on the representation of the broker, 
that he was executing a fresh transfer to himself in the place of that 
which had been cancelled. The broker transferred them to an in- 
nocent holder as security for £5,000, money lent a short time be- 
fore. Held, on a bill filed by A., that the original transfer to him 
must have its effect ; and that the shares were thereby vested in 
him, and still remained, notwithstanding the cancellation and sub- 
s' •<|iient transactions. 

6 Pinkerton v. M. & L. Railw., 1 Am. Law Reg. (N. S.) 96 ; s. c. 42 N. H. 
424. 

7 5 Jur. (X. S.) 1087 ; s. c. 4 De G. & J. 559. See post, §§ 46, 241. And 
Building A f -Mxiation v. Sendemeyer, 50 Penn. St. 67. 

■ Donaldson v. Gillot, 12 Jur. (N. S.) 969; s. c. L. R. 3 Eq. 274. 
[*147] 



§43. 



WHEN CALLS BECOME PERFECTED. 



159 



♦SECTION XII. 



When Calls become Perfected. 



1. Calls are made when the sum is assessed, 

notice may be given afterwards. 

2, 3. Directors the proper authority to make 

calls. 



4. The manner of giving notice and of 
proof 



§43. 1. The English statute of 1845, called the Companies' 
Clauses Consolidation Act, requires all calls to be paid before any 
valid transfer can be made. Under this statute,, and similar pro- 
visions in special charters, it has often been made a question, when 
a call may be said to be made. It seems to be considered that the 
word call in this connection, may refer to the resolution of the 
directors, by which a certain sum is required to be paid to the com- 
pany, by the shareholders, 1 or secondly to the notice to the share- 
holders of the assessment, and the time and place at which they 
will be required to make payment, and the amount to be paid. 
But it seems finally to be settled, that the company are not obliged 
to regard any transfer, made after the resolution of the directors, 
making the assessment, which need not specify the time of pay- 
ment, but that may be determined by a subsequent act of the 
board. 2 

1 Ex parte Tooke, In re The Londonderry and Coleraine Railw. Co., 6 Railw. 
C. 1 (1819) ; North American Colonial Association of Ireland v. Bentley, 19 
L. J. (Q. B.) 427; 15 Jur. 187. 

A resolution of the board of directors requiring the stockholders to pay an 
instalment of ten per cent every thirty days, on all cash subscriptions, until the 
whole is paid, and that due notice thereof be gi\en, is admissible evidence of 
calls for the whole subscription. It was here considered that the words " month," 
and " thirty days," used in different portions of the act, must be considered of 
the same import. Heaston v. Cincinnati & C. R. R., 1G Ind. 275; Sands v. 
Sanders, 26 N. Y. 239. 

2 Great North of England Railw. Co. v. Biddulph, 2 Railw. C. 401 ; s. c. 
7 M. & W. 243; Newry and Enniskillen Railw. Co. v. Edmunds. 5 Railw. C. 
275; s. c. 2 Exch. 118, 122. Parke,. B., in the Ambergate, &c, and Eastern 
Junction Railw. Co. v. Mitchell, G Railw. C. 235; s. c. 4 Exch. 510; Regina v. 
Londonderry & Coleraine Railw. Co., 13 Q. B. 998. 

Unless there is something in the subscription, or the charter and by-laws of 
the company requiring notice of calls, or making the subscription payable upon 
calls, it is said in Lake Ontario, A. & N. Y. v. Mason, 1G N. Y. 451, that it is 

[*148] 



100 TRANSFER OF SHARES. TART II. 

•j. Ii seems the directors, and not the company, are the proper 
parties to make calls, under the English statutes. 

3. This semis to have been decided upon the general ground of 
the authority of the directors. 8 

1. The question of what shall amount to a good call, and how 
the Bame may l>e shown in court, is considerably examined in Miles 
v. Bough. 4 It is here decided, that no person could be sued lor 
non-payment of a call till he had received due notice thereof, 
although the statute did not require notice in express terms; that 
an order to pay the money at a given broker's was a good call ; 
that in the declaration it was sufficient to allege that the calls were 
made and the defendant duly notified, without further specification 
of particulars ; and that the jury may infer sufficient notice from 
the fact of an express promise to pay, notwithstanding it appeared 
hat a defective notice had been sent, unless it appeared that was 
the only notice given, when the case must be decided upon the 
sufficiency of the notice in fact given. 

not indispensable that notice of calls should be given the subscribers before suit. 
But this seems contrary to the general course of decision upon the point, and 
soniewhal at variance with the idea of a call, or assessment upon subscriptions to 
stock. And such seems to lie the general understanding of the rule in the 
American courts. But these questions will depend very much upon the special 
provisions of the statutes, in the different states, by which the matter is controlled, 
and somewhat upon the special terms of the contract of subscription. Heaston 
v. Cincinnati & ('. R. R. 1G Ind. 275. Thus, in the present case it was held the 
pal railway law of Indiana did require notice and a personal demand before 
proceeding to forfeit the stock, but not before suit to recover instalments ; that as 
to calls the statute required the subscribers to take notice of the action of the direc- 
tors. It is further said, that where the articles of association or the preliminary 
articles of subscription, or both combined, contain an undertaking to pay the amount 
subscribed on certain terms and conditions, an action will lie to enforce the stipu- 
lations upon proof of the subscription and the performance of the conditions. 
' Am tf. & I!. & Eastern Junction Railw. Co. v. Mitchell, 4 Exch. 

Ch. B. "The next objection is, that the directors made these 
calls; lint they were competent to do so, as they may do all things, except such 
as are !■> In- dune by the shareholders at a general meeting; and there is nothing 
in the act which makes it ne< essary that the company should make calls at a 
general meeting." 

. B. "The director- may exercise all the powers of the company ex- 
cept those which are to be exercised by the company at their general meeting, 
and the power of making calls is not such a power as is required to be so 
exerci 

1 :; Q. B. 845. Defective notice by publication is not aided by personal notice 
of a shorter tune. .Sands v. Sanders, 26 N. Y. 239. 
[*14'.»J 



§ 44. TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 161 

♦SECTION XIII. 
Transfer by Death, Insolvency, or Marriage. 



5. Stock in trust goes to new trustees. 

6. Assignees of insolvents not liable for the 

debts of the company, 

7. Effect of marriage of feme sole. 



1. Mandamus lies to compel the registry of 
successor. 

3. In case of death, personal representative 

liable for calls. 

4. Notice requisite to perfect the title of mort- 

gagee. 

§ 44. 1. The title to shares in a railway is liable to transfer by 
the death, bankruptcy, or insolvency of the proprietor, or by mar- 
riage of the female owner of such shares. In such case the Eng- 
lish statute requires a declaration of the change of ownership, to 
be filed with the secretary of the company, and the name of the 
new owner is thereupon required to be entered upon the register 
of shareholders. A mandamus will lie to compel the clerk to make 
the proper entry in such case. 1 

2. These incidents are so much controlled by local laws, in dif- 
ferent jurisdictions, that it would scarcely comport with our object 
to state more than the general principles affecting them. In most 
of the United States all property (especially personal estate as 
railway shares), in the first instance, upon the decease of the pro- 
prietor, vests in his personal representative, in trust, first for the 
payment of debts, and afterwards for legatees, or in default of 
them, the heirs of such proprietor. 

3. And so far as regards voting upon such shares, the title of 
the executor or administrator will ordinarily be sufficient. Before 
the name of the executor or administrator is entered upon the 
books of the company, as a shareholder, the estate only could be 
held liable for calls probably, and perhaps the same rule of liability 
would obtain after that. 2 But in general where shares in a joint- 

1 Rex v. Worcester Canal Company, 1 M. & R. 529. 

? Fyler v. Fyler, 2 Railw. C. 873; s. c. 3 Beav. 550; Jacques v. Chambers, 
2 Coll. (C. C.) 435 ; s. C. 4 Railw. C. 499. But the administrator or other personal 
representative of a deceased shareholder, may, under the recent English statute, 
the Common-law Procedure, maintain an action against the company for refusal 
to register his name, as successor, to the title to the shares, and after having re- 
covered damages, he is entitled to a mandamus to compel the company to register 
his name. He is also entitled to the prerogative writ of mandamus in such cases 
at common law. Norris v. The Irish Land Co., 8 El. & Bl. 512 ; s. c. 30 Law 
Times, 132. 

11 [*150] 



162 TRANSFER OF SHARES. PART II. 

stock * company are bequeathed specifically, the legatee takes them 
subject to all future calls. 3 But where the payment of future calls 
is indispensable to bring the shares into the state in which the 
testator regarded them in his will, such calls should be paid by 
the estate. 4 

4. In case of death or insolvency, the title of a mortgagee first 
notified to the company, will commonly have priority. 5 Notice to 
the company is necessary to perfect the title of a mortgagee, in case 
of bankruptcy or insolvency. 6 

5. As to the title of the bankrupt, all shares standing upon the 
register of the company in his name will be regarded as under his 
control, order, and disposition, and will, under the English statutes, 
go to the assignees. 7 But stock in any incorporated company 
standing in the name of the bankrupt as trustee, is to be trans- 
ferred by the assignee to the name of new trustees, and a court of 
chancery will so order. 8 

6. The assignees of an insolvent estate, a portion of whose assets 
consists of shares in a manufacturing corporation, are not liable 
under special statutes, making shareholders liable for the debts of 
the corporation. That is a provision of positive law, and is to be 
construed strictly. 9 

7. The marriage of a feme sole, being the owner of shares, will 
have the effect to transfer them into the control of the husband, 
the same as any other personal estate, unless where it is provided 
otherwise by statute, or the husband chooses to leave them still 
under the control of the wife. 10 

3 Blount v. Ilipkins, 7 Sim. 43, 51 ; Jacques v. Chambers, 2 Coll. 435 ; Clive 
V. I live. Kay, 600; Wright v. Warren, 4 De G. & Sm. 367; Adams v. Ferick, 
26 Beav. 384. 

4 Armstrong v. Burnet, 20 Beav. 384. 

1 dimming p. Prescott, 2 Yo. & Coll. Eq. Exch. 488. 

* lint wln-re all parties are partners, notice will sometimes be implied. Ex 
parte Waitman, 2 Mont. & Ayr. 364; Duncan v. Chamberlayne, 11 Simons, 
L28; Ettj v. Bridges, 2 Yo. & Coll. 486. 

7 Bhelford, L18-121. 

H Ex parte Walker, 10 Law J. Bank. 3. 

9 Gray v. Coffin, 9 < lush. 192. 

10 Schouhr Dom. Bel. Ill ei seq. and cases cited; Richardson v. Merrill, 32 
Vt. 27 and cases cited. 

[*151] 



§45. 



LEGATEES OF SHARES. 



163 



SECTION XIV. 



Legatees of Shares. 



1. Entitled to election, interest, and new 

shares, but not to bonds. 

2. Shares owned at date of will pass, although 

converted into consolidated stock. 



3. - Consolidated stock subsequently acquired 
will not pass. 



§ 45. 1. Legatees of railway shares have the election out of 
which class of shares their legacy shall be paid, when there is more 
* than one class of the same description found in the will. And 
they are entitled to the income of the shares, after the death of the 
testator, and to receive any advantage, by way of new shares result- 
ing from the ownership of the shares. 1 But a specific legatee of 
shares is not entitled to a bonus on such shares, declared after the 
decease of the testator, but arising out of moneys due the com- 
pany from the testator, and which claim was compromised by his 
executors, but such bonus belongs to the general fund of personal 
estate. 2 And such legatee must bear the calls which are made 
after the testator's death, unless there is something in the will to 
show a different intent. 3 

2. A bequest of the testator's railway shares, of which he 
should be possessed, at his decease, was held to pass such rail- 
way shares specifically named in the will as the testator had at 
the date of his will, although subsequently converted into con- 
solidated stock of the same company, by a resolution of the 
company. 

3. But that other consolidated stock of the same company owned 
by testator at his decease, did not pass under the will, the same 
having been purchased after the execution of his will. 4 

1 Jacques v. Chambers, 2 Coll. (C. C.) 435 ; 8. c. 4 Railw. C. 205 ; Tanner v. 
Tanner, 5 Railw. C. 184; s. c. 11 Beav. 69. And it is held in this last case, 
that upon a bequest of railway shares and all right, title, and interest therein, 
money paid beyond the calls will pass to the legatee. 

2 Maclaren v. Stainton, 27 Beav. 460 ; s. c. 6 Jur. (N. S.) 360 ; Loch v. Ven- 
ables, 27 Beav. 598 ; s. c. 6 Jur. (N. S.) 238. 

3 Day v. Day, 1 Drew. & Sm. 261 ; s. c. 6 Jur. (N. S.) 365. 

4 Oakes v. Oakes, 9 Hare, 666. 

[*152] 



164 



TRANSFER OF SHARES. 



PART II. 



SECTION XV. 



Shares in Trust. 



■ y may safely deal with regis- 
ten </ owner. 

quity will protect the rights q/"cestuis 
que trust. 



\ ,y a. '1. I >iscnssion of the rights of cestuis 
que trust in stock certificates. 



8 16. 1. By the English statute, railway companies are not 
bound to see to the execution of trusts in the disbursement of 
their dividends, but are at liberty to treat the person in whose 
* name the shares are registered as the absolute owner. It would 
seem that in the case of the bankruptcy of a shareholder in a joint- 
stock company, a court of equity will sometimes protect trust 
funds, although registered in the name of the bankrupt, both from 
the claim of the assignee and the company, who have made ad- 
vances to the nominal owner, upon the faith of his being the true 
owner, but without any pledge of the stock. 1 

2. In general, in this country, it is believed railway companies 
will be protected in dealing bona fide with the person in whose 
name shares are registered on the books of the company, as the 
absolute owner, notwithstanding any knowledge they may have of 
the equitable interest of third parties. 

3. But there can be no question, a court of equity will always 
protect the interest of a cestui que trust, when it can be done with- 
out the violation of prior or superior equities, which have bona fide 
attached. 

1 Pinkett V. Wright, 2 Hare, 120. This is a very elaborate opinion of the 
learned Vice-Chancellor Wigram, upon the subject of protecting the interest of 
cesiii- the tock of a banking company, standing in the name of a 

trustee who had become bankrupt. The trustee was also the proprietor of shares 
in his own ri^'lit. all standing in his name, without any tiling on the books of the 
comp iisb which were trust funds. It was held that the trustee 

most be presumed to have pledged such stock as belonged to himself and not 
tbat ol bit que ti-ust, and that shares which stood in the name of the 

truste at the time of the bankruptcy, and thenceforward remained in his name, 
might fairly be presumed to be identical with those in which the trust funds were 
invested, the number of shares being the same. Notice to he company is indis- 
in equitable mortgage of railway shares. Ex parte Boulton 
v. Bkelehley, 29 Law Tim s, 71 ; s. c 1 De G. & J. 173. 

[•153] 



§ 46 a. TRANSFER EXEMPT FROM CREDITORS. 165 

4. It was recently held after careful examination of the author- 
ities, 2 that the holder, of stock, as trustee, has prima facie no 
right to pledge it as security for his private deht, and one who 
accepts the pledge under such circumstances, acquires no rights 
against the cestui que trust. And the word " trustee " in the cer- 
tificate, in connection with the name of the holder, is notice to all 
persons to whom the certificate may be delivered, sufficient to put 
the party on inquiry, as to the nature of the holder's title, and the 
character and extent of the trust. 



* SECTION XVI. 

The extent of Transfer requisite to exempt from claim of 

Creditors. 

1. How transfer of stock perfected as to i 3,4. In some of the states no record required. 

creditors. 

2. Reasonable time allowed to record transfer. 



n. 3. Question further considered. 



§ 46 a. 1. The question of what constitutes a valid transfer of 
shares in a joint-stock corporation, so as to exempt them from 
attachment and levy by creditors of the transferror, is consider- 

2 Shaw v. Spencer, 8 Am. Law Reg. (N. S.) 299 ; s. c. 100 Mass. 382. The de- 
cision here falls short, probably, of what the authorities will justify, if the case had 
required it. But the usages of the Stock Exchange, whereby trustees are enabled 
to defraud their cestuis que trust, for the benefit of speculators, receives a moder- 
ate but very just rebuke. 1. By declaring that certificates of stock in blank are 
not to be regarded as negotiable instruments, cutting off all equities of bona fide 
parties in interest, s. P. Sewall v. Boston Water Power, i Allen, 272. 2. By 
declaring that no usage or custom of brokers, or course of business, can avail to 
defeat, or qualify, the established rules of law, recognized in courts of equity. 
The following significant intimation of the court is worthy of repetition : "The 
circumstance that stock certificates, issued in the name of one as trustee, and by 
him transferred in blank, are constantly bought and sold in the market without 
inquiry, is likewise unavailing. A usage to disregard one's legal duty, to be 
ignorant of a ride of law, and to act as if it did not exist, can have no standing 
in the courts.'''' We should be rejoiced to persuade ourselves, that we had reached 
a point where the dishonest practices of trade could no longer receive counte- 
nance by the courts, either directly or indirectly. We regard this case as falling 
far short of the truth, but as it is all which the case required, it is gratifying to 
believe the courts are moving in the right direction, and may ultimately be able 
to convince men who shut their eyes to exclude the light, that they need not feel 

[*154] 



166 TRANSFER OF SHARES. PART II. 

ably discussed in a case in New Hampshire by a judge of large 
experience, and the result reached, that upon a pledge of stock in 
a railway corporation in New Hampshire, there should be such de- 
livery as the nature of the thing is capable of, and to be good 
:ist a subsequent attaching creditor the pledgee must be 
clothed with all the usual muniments and indicia of ownership ; 
that by the laws of New Hampshire, a record of the ownership of 
shares must be kept, by domestic corporations, within the state, 
and by officers resident there; and that on the transfer of stock 
the delivery will not be complete, as to creditors, until an entry is 
made upon such stock-record, or it be sent to the office for that 
purpose, and the omission thus to perfect the delivery will be 
prima facie, and if unexplained * conclusive evidence of a secret 
trust, and therefore, as matter of law, fraudulent and void as to 
creditors. 1 

2. But in the case last cited it is said that when 2 the transfer 
is made at a distance from the office and the old certificate surren- 
dered and a new one given by a transfer agent residing in a neigh- 
boring state, proof that the proper evidence of such transfer was 
sent by the earliest mail to the keeper of the stock record to be 
duly entered, although not received until an attachment had inter- 
vened, would be a sufficient explanation of the want of delivery 
and the transfer would be good against the creditor. Any unrea- 
sonable delay in perfecting the record title to such shares leaves 
them liable to the claims of creditors. 

3. But where the charter of the company or the general laws of 
the state contain any specific restriction or requirement in regard 
to the transfer of shares, it must be complied with or the title will 
not pass. 2 

4. In a case in New Jersey, 8 it seems to be considered that 

surprise, to find their blind booty turning to ashes in their grasp; and the in- 
terests "1 the widow and the fatherless finally regarded as of more value, in the 
publir esteem, than the accumulation of gain, by indirection and evasion, intended 
to defraud them of their last penny. 

1 Pinkerton v. Manchester & Lawrence Railw., 1 Am. Law Keg. (N. S.) 9G ; 
8. c. 42 X. II. 424. 

* Fisher v. Eases Bank, 5 Gray, 373; Sabin v. Bank of Woodstock, 21 Vt. 
362 : Pittsburgh & Connellsville R. Co. v. Clarke, 29 Penn. St. 146. 

3 Broadway Bank v. McElrath, 2 Beasley, 24. We think it proper to say, 
that there is considerable difference in the decisions of the different states as to 
the point of time from which the transfer of equitable titles is to be reckoned, as 

[•155] 



§46 a. TRANSFER EXEMPT FROM CREDITORS. 167 

nothing more is required to make an effectual transfer of stock in 
a bank, even as against creditors, than an assignment of the certif- 
icates and a delivery to the assignee, and that this will be regarded as 
effectual against an attaching creditor without notice, even where 
the charter of the company declares the stock personal estate, and 
provides that " it shall be transferable upon the books of the cor- 
poration," and also, " that books of transfer of stock shall be kept, 
and shall be evidence of the ownership of said stock in all elections 
and other matters submitted to the decision of the stockholders." 

between purchasers for value and creditors. It is generally considered that the 
transfer takes effect from the date of notice to the trustee, who holds the legal 
title, subject to all equities, and these do not attach ordinarily until after notice 
brought home to the trustee. Some of the states regard the equitable rights of 
the purchaser as dating from the period of the actual purchase, provided notice 
to the trustee be given within reasonable time' after. We have discussed the 
question and the cases, to some extent, in Rice v. Courtis, 32 Vt. 460 ; s. c. 1 
Redf. Am. Railw. Cases, 111 ; 1 Story Eq. Jur. 400 b. 

[•155] 



L68 



ASSESSMENTS OR CALLS. 



PART II. 



CHAPTER IX. 



ASSESSMENTS OR CALLS. 



SECTION I. 



Party liable for Calls. 



1. The party upon the register liable for calls. 
'J /. krupts /' main liable for mils. 
3. Cestuis que trust not liable for calls in 
law or equity. 



Trustee compelled to pay for shares. 
One on registry may show his name im- 
properly placed there. 



§ 47. 1. It seems to be settled law that the registered owner of 
railway shares is liable for all calls thereon, so long as his name 
remains upon the register. 1 The effect of the transfer of railway 
scrip is only to convey an equitable interest in the shares, with the 
right to have the shares formally assigned to him, and his name 
entered upon the register as a shareholder. 1 

2. In case of bankruptcy, the bankrupt remains liable for all 
calls unless the names of the assignees are registered on the books 



1 Midland Great Western Railw. Co. v. Gordon, 5 Railw. C. 76 ; s. c. 16 M. 
& W. 804; Mangles v. Grand Collier Dock Co., 10 Sim. 519: s. c. 2 Railw. C. 
359 ; Sayles v. Blane, 14 Q. B. 205 ; s. c. 6 Railw. C. 79 ; West Cornwall R. v. 
Mowatt, 1") Q. B. 521. In this case it was said, even if the transaction by which 
the title to the stock and the registry of defendant's name were made, were 
illegal, it could not avail him in an action for calls. See post, § 236; Long 
Island R. Co., 19 Wend. 37; Mann v. Currie, 2 Barb. 294; Hartford & N. H. 
It. r. Boorman, 12 Conn. 530; Mann v. Cooke, 20 Conn. 178; Rosevelt v. 
Brown, 11 N. Y. 148. The registry-book of shareholders is prima facie evi- 
dence of the liability to calls, of those whose names appear upon it, although 
irregularly kept. Birmingham R. v. Locke, 1 Q. B. 256 ; London Grand J. R. 
v. Freeman, 2 M. & (',. 606; Same v. Graham, 1 Q. B. 271; Aylesbury R. v. 
Thomson, 2 Railw. C. 668. This last case holds that the purchaser of shares 
is only liable for calls made after bis name is upon the register. The company 
may, by its charter, and probably by a by-law, provide that the original sub- 
scriber shall be holden for all calls, or until a certain amount is paid in. Vicks- 
burg, Shreveport, iV Texas Railw. v. McKeen, 14 La. Ann. 724. 

[♦156] 



§47 PARTY LIABLE FOR CALLS. 169 

of the company, as this is not regarded as a debt payable in future, 
and which may be proved under the commission. 2 

* 3. The trustee of shares, whose name appears upon the books o 
the company, is alone liable for calls, and the company have no 
remedy in equity even for calls against the cestui que trust. 21 But if 
a shareholder when the company is in extremis makes a colorable 
transfer to an irresponsible person, it has been held it will not 
relieve him from liability to contribute. 4 But in the absence of 
fraud or mala fides, the cestui que trust cannot be subjected to a call 
although lie may be compelled to indemnify his trustee. 5 And it 
seems finally to be settled in the English Court of Chancery, that 
a shareholder may transfer his shares in an abortive company, 
where such shares pass by delivery, to an insolvent person, for the 
purpose of getting rid of liability to contribute to its responsibilities, 
provided the transaction be a real one, and not a false or hollow 
contrivance. 6 But where the transaction exhibits no motive except 
escape from the liability of the company, and especially where it 
transpires after the company is publicly declared insolvent, it was 
held it will be regarded as merely colorable and not valid. 7 But 
where the holder of shares threatened to put the company into in- 

2 South Staffordshire R. v. Burnside, 2 Eng. L. & Eq. 418; 8. c. 5 Exch. 
129; 6 Railw. C. 611. 

3 The Newry, W. & R. R. v. JMoss, 4 Eng. L. & Eq. 34 ; s. c. 14 Beav. 64. 
But where, in winding up the affairs of a company, the name of one of the mem- 
bers, who had obtained his certificate since the expenses were incurred, was 
placed among the eontributories, it was held he was not liable. Chappie's case, 
17 Eng. L. & Eq. 516; s. c. 5 De G. & S. 400. Where shares were pledged 
at a bank as security for a loan, and the name of the bank, or of the chairman 
and manager of the bank, was entered on the register of shareholders simply as 
holders of the shares, which had been represented as fully paid-up shares, at the 
time of pledge, it was held that they were not liable for calls. Guest v. W. B. 
& L. Railw., Law R. 4 C. P. 9. 

4 Lund ex parte, 27 Beav. 465 ; Hyam ex parte, 6 Jur. (N. S.) 181 ; s. c. 1 
De G. F. & J. 75. See also De Pass's case, 4 De G. & J. 5 14 ; Chinnock ex 
parte, 1 Johns. (Eng. Ch). 714; post, § 242. 

5 Electric Tel. Co. v. Bunn, 6 Jur. (N. S.) 1223. 

6 Mexican & South Am. Co. in re, 2 De G. F. & J. 302; Slater ex parte, 12 
Jur. (N. S.) 242. All that seems to be required is that the transfer be absolute, 
or " out and out." Bush's case, L. R. 6 Ch. App. 246. And even the fact that 
the transferror guaranteed the transferee against future calls will not defeat the 
effect of the transfer. Harrison's case, id. 286. Even the most suspicious, cir- 
cumstances will not defeat the transfer. Master's case, 7 id. 292, which is the 
latest decision. 7 Electric Tel. Co. in re, 30 Beav. 143. 

[*157] 



170 



ASSESSMENTS OR CALLS. 



PART II. 



solvency unless the directors would find some one to purchase his ■ 
shares and give him an indemnity, which was done twelve months 
before the company became insolvent, it was held to he a valid 
transfer. 8 Trustees under a will are properly made contributories. 9 

I. The trustee into whose name the cestui que trust had caused 
shares to be transferred by deed, reciting that the price of the same 
bad been paid to the vendor, who executed the deed, may never- 
theless be compelled to make good such price to the vendor, if it 
* wen 1 not in fact paid, although he accepted the transfer in the 
belief that it had been paid. 10 

5. Notwithstanding the defendant's name appear upon the 
register of shares, be will be permitted, in a suit for calls, to 
bIiow that it was illegally placed there, and without his authority. 
But a purchaser of shares, or even an original subscriber, cannot 
be sued for calls, under the English statute, until his name is 
placed on the registry. 11 But one's name appearing upon the 
books of the company as a shareholder is prima facie evidence of 
the fact, in an action against such person to enforce against him 
the personal responsibility of a stockholder for the debts of the 
company. 1 '- And in such an action the judgment against the 
corporation is prima facie evidence of its indebtedness as against 
the stockholder. 12 



SECTION II. 



Colorable /Subscriptions. 



1. Col", iptions valid. 

2 Directo smaybt compelled to register them. 
:ir, to vary the written subscrip- 
tion inadmi 



4. Register evidence although not made in the 

time prescribed. 

5. Confidential subscriptions void. 

6. Shares cannot be issued to secure debts of 

company. 



^ 4 s 1. Equity will not restrain a railway company from en- 
forcing calls, by action at law, upon the ground that one of the 

9 Phoenix Life Assurance Co., 7 Law T. (N. S.) 267. 

» Drummond ex parte, 2 Gif. 189; s. c. 6 Jur. (X. S.) 908. 

10 Wilson v. Keating, 27 Beav. 121. 

11 Eodges on Railways, 101, 4th ed. ; Newry & Inniskillen Railw. v. Edmunds, 
2 Exch. lis. 

15 Hoagland v. Bell, 36 Barb. 57. 

[*158] 



§ 48. COLORABLE SUBSCRIPTIONS. 171 

conditions of the charter, requiring a certain amount of subscrip- 
tions of stock before the incorporation took effect, had not been 
complied with, but that a fraud upon the provision had been prac- 
tised by means of colorable subscriptions. The Court of Chancery 
regards colorable subscriptions, made in the course of getting a bill 
through the House of Lords (to comply with one of the standing 
rules of that house, requiring three-fourths of the requisite outlay 
to be subscribed before the bill passes), to be binding upon the 
directors and managers, who make the same, and that they are in 
fact valid and binding subscriptions, although such subscriptions 
were made with the purpose of being subsequently cancelled, and 
* had never been registered upon the books of the company, or any 
calls made upon them. 

2. It is within the proper range of the powers of a court of 
equity to compel the directors to register such shares, and enforce 
the payment of calls upon them. 1 

1 Preston v. Grand Collier Dock Co., 11 Sim. 327; s. c. 2 Railw. C. 335; 
Mangles v. The Same, 10 Sim. 519. The principle of these cases is very dis- 
tinctly recognized in the case of Blodgett v. Morrill, 20 Vt. 509 ; s. c. 1 Redf. 
Am. Railw. Cases, 138, and it lies at the foundation of all fair dealing, that one 
is bound by his own representations, upon which he had purposely induced others 
to act, although at the time he did not intend to be himself bound by them, but 
expected, through favor, to be relieved from their performance. See also Henry 
v. Vermillion R. Co., 17 Ohio, 187. But if one obtain shares in a distribution 
by commissioners by fraud, he may be compelled, in equity, to surrender them 
to other subscribers, to whom they would have been awarded but for such fraud. 
Walker v. Devereaux, 4 Paige, 229 ; s. c. 1 Redf. Am. Railw. Cases, 29. 

A subscription to the stock of a railway made in the common form upon the 
books of the company, the subscriber at the time of subscription taking the fol- 
lowing writing, signed by the clerk of the company, by order of the direc- 
tors : — 

" In consideration that Ebenezer E will subscribe, for thirty shares in the 

White Mountains Railway, said company agree to release him from twenty-five of 
said shares, or such portion of said twenty-five shares, as he may within one year 
elect to withdraw from his subscription, and if he has been assessed, and has paid 
any thing on said shares, that he elects to be released from, that these payments 
shall be allowed him, on the shares that he retains, and that the treasurer shall 
regulate his stock accounts and assessments accordingly," is a valid subscription 
for the thirty shares, it having been understood, at the time of making the sub- 
scription, between the subscriber and the directors, that tbe same was to be held 
out to the public, as a bona fide subscription for the thirty shares, and no dis- 
closure made of the writing given to the subscriber. 

It was held that the agreement to release the subscriber was a fraud upon 

[*159] 



172 ASSKSSMENTS OR CALLS. PART II. 

In one rase- where this subject came under discussion in 
equity, where the provisional directors, in the process of carrying 
a bill through parliament, proposed to the contractor that he 
should have the contract for the company's works provided he 
would accept payment partly in shares, the number to be settled 
by the company's engineer; but contracted for him to sign for 
a sufficient number of shares to make up the amount required 
by the standing orders of parliament, which was 630 of <£10 
each, which he accordingly subscribed and the bill passed ; * but 
when the contract was closed he was to take but 300 shares, the 
scheme being abandoned before the works were commenced, it was 
held that (he arrangement made by the directors with the con- 
tractor was ultra vires, and if not a fraud upon the orders of 
parliament ii was void as against such subscribers as were not 
privy to it; and that the circumstance of the contractor having 
subscribed the deed last but one, and the last subscriber being 
privy to the arrangement, did not alter the rights of those sub- 
Bcribers who were not privy to it; and that the contractor was 
liable, as a contributory, for the entire number of shares for which 
be signed the deed. 

•".. Oral evidence is inadmissible to vary the terms of a sub- 
scription to the stock of a railway unless it tend to show fraud or 
mistake. 8 But where the subscriber is really misled, and induced 

other subscribers, and void, and the subscription may be enforced. White 
Mountains Railw. v. Eastman, 34 N. H. 124; Downie v. White, 12 Wis. 176. 
> Conn. & Pass. Rivers R. v. Bailey, 24 Vt. 465; Mann v. Pentz, 2 
Sand. ( !h. 257 : Penobscot & Kennebec R. v. Dunn, 31) Maine, 601. 

2 North Slii.l Is Quay Co. v. Davidson, 4 Kay & J. 688. 

3 Wighl r. Shelby Railw., 16 B. Mon. 5; Blodgett v. Morrill, 20 Vt, 509; 
s.c. 1 Redf. Am. Railw. Cases, 138; Kennebec & Portland R. v. Waters, 34 
Maine, 369. Rut mere mistake, or misapprehension of the facts, by the sub- 
scriber, is no ground of relief unless it amount to fraud and imposition, brought 
about by some agent of the company. Hence when one subscribed for shares 

lilway, under the mistaken belief that he might forfeit his stock at will, 
and 1m- do further liable, he was held liable, notwithstanding this belief was the 

i assurances made by the person taking the subscription at the time of its 
being made, that such were the terms of subscription secured by the charter, 
Sl "''» •'< g founded in mistake, and not wilfully false. Railroad 

Company v. Roderigues, L0 Rich. (S. C.) 278; N. C. Railw. v. Leach, 4 Jones 
Law, 340. It is here -aid. that one of the commissioners, in taking subscriptions 
t0 ''"' -' "' : nl a railway company, has no right to give any assurances as to 
the line of location which will be adopted. And if the location is different from 

[*160] 



§48. COLORABLE SUBSCRIPTIONS. 173 

to subscribe for stock, upon the representation of a state of facts 
in regard to the time of completing the road, or its location, made 
by those who take up the subscription, and in good faith, and upon 
proper inquiry, and the exercise of reasonable discretion, believed 
by the subscriber, and which constitutes the prevailing motive and 
consideration for the subscription, and which proves false, it would 
seem that the contract of subscription should be held void, both in 
law and equity. 4 

4. When the statute requires the registry of shares to be made 
* within a limited time, such requirement is regarded as merely 
directory, and the registry, although not made within the pre- 
scribed time, will still be competent evidence, and to the same 
extent as if made within the time required. 5 

5. Subscriptions made under an agreement that they are not to 
be binding unless a specified sum is subscribed, are not valid to 
bind other subscribers, as it is essential that there should be no 
conditions as to the liability of any of the subscribers not applicable 
to all. Confidential subscriptions in such case made for the purpose 
of making up the required sum are a fraud upon the other sub- 
scribers ; and should not be treated as valid subscriptions., Where 
by deducting such confidential subscriptions the required sum is 
not subscribed, the contract of subscription does not become opera- 
tive, so as to bind the subscribers. Parol evidence is admissible 
to show that certain of the subscriptions were confidential in char- 
acter and therefore fraudulent. 6 

6. Where the corporation was indebted for borrowed money, and 
issued stock to a 'third person in trust for the security of the debt, 
on condition to be retransferred to the company upon payment 
of the debt, it was held the shares were illegally issued. 7 

that provided in the charter of the company, the party may lose the right to object 
to paying his subscriptions on that ground, unless he resort to mandamus or in- 
junction, at the" earliest convenient time. Booker ex parte, 18 Ark. 338; Brown- 
lee v. Ohio, Ind. & 111. Railw., 18 Ind. 68. 

4 Henderson v. Railway Company, 17 Texas, 560. 

3 Wolverhampton N. W. Co. v. Hawksford, 7 C. B. (N. S.) 795; 6 Jur. 
(N. S.) 632. Affirmed in Exch. Chamber, 10 W. Rep. 153; 11 C. B. (N. S.) 
456; 8 Jur. (N. S.) 844. 

6 New York Exchange Co. v. De Wolf, 31 N. Y. 273. But see ante, n. 1 . 

7 Brewster v. Hartley, 37 Cal. 15 ; ante, § 20, pi. 11. 

[*161] 



171 



ASSESSMENTS OR CALLS. 



PART II. 



SECTION III. 



Mode of enforcing Payment. 



I S scription t» indefinite stock, raises no 
implied promise to pay the amount as- 
S( BSl d. 

2. If shares are definite, subscription implies 
a promis< to pay assessments. Bight of 
forfeitun a cumulative remedy. 

Ii. Whether issuing new stock will bar a suit 
- r, quaere. 

4. It would st i m not. 

5. I 'nit the requirements of the charter and 

</. m ral laws of the state, must be strict- 



ly pursued 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 declared 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- 
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. The assessments might be extended 
indefinitely, according to the necessities of the company. In such 
cases, where the only remedy given, by the deed of subscription, 
the charter and by-laws, or the general laws of the state, was a 
forfeiture of the shares, the courts generally held, that the sub- 
seriber was not liable to an action in personam for the amount 
of calls. 1 And this seems to us altogether reasonable and just. 

1 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. 188; Bangor House Proprietary ». Hinckley, 3 Fairfield, 385, 
388; Franklin Glass ( o. v. Alexander, 2 New Hamp. 380. But where there 
was an express promise to pay assessments, or facts from whieh such an under- 

[*162J 



§ 49. MODE OF ENFORCING PAYMENT. 175 

* For if a subscription to an indefinite stock created a personal 
obligation to pay all assessments made by the company upon such 
stock, it would be equivalent to a personal liability of the 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 

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 

taking 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 
Turnpike 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 questioned. Worcester Turnpike v. Willard, 5 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 case in the N. Y. Court of Appeals, where the facts being pecu- 
liar, 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 
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. 
2 Post, § 50. 

[*163] 



L76 AS8E8SMENT8 OR CALLS. PART II. 

the >li;uvs. This ma)' now be regarded as settled, both in this 
country and in England, and that the power given the company 
to forfeit and sell Hie shares, in cases where the shareholders fail 
to pay calls, is not an exclusive but a cumulative remedy, unless 
barter or general laws of the state, provide that no other 
remedy Bhall be resorted to by the company/ 



3 



Bartford & New Haven Railway Co. v. Kennedy, 12 Conn. 499. In this 
case it was held, that, from the relation of stockholder and company thus created, 
a promise was implied to pay instalments; that the clause authorizing a sale of 
the stock was merely cumulative; and that, whether the company resorted to it 
or not, the personal remedy against the stockholder remained the same. The 
same points are confirmed by the same court, in Mann v. Cooke, 20 Conn. 178. 
And in Danbury Railw. Co. v. Wilson, 22 Conn. 435, the defendant was held 
liable for calls upon a subscription to the stock of a company whose charter had 
expired, and been revived by the active agency of defendant. See also Dayton 
o. B irst, 31 N. V. -i;i."i ; Fiscataqua Ferry Co. v. Jones, 39 N. H. 491. 

All the cases, with slight exceptions, hold, that where the subscription is of 
such a character as to give a personal remedy against the subscriber, in the ab- 
sence of all other specific redress, the mere fact that the company have the power 
to forfeit the shares for non-payment of calls, will not defeat the right to enforce 
the payment of calls by action. Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; 
Dutchess Cotton Manufacturing Co. v. Davis, 14 Johns. 238; Troy T. Co. v. 
McChesney, 21 Wend. 29 ; Northern R. v. Miller, 10 Barb. 260; Plank-Road 
Co. v. Payne, 17 Barb. 567. In this last case it was held to be matter of inten- 
tion and construction, whether the remedies were concurrent and cumulative, or 
in the alternative. And in Troy & Boston R. v. Tibbitts, 18 Barb. 297, it is 
said to be well settled, that the obligation of actual payment is created, by a 
subscription to a capital stock, unless plainly excluded by the terms of the sub- 
scription, and that the forfeiture is a cumulative remedy. Ogdensburg & C. 
Railw. v. Frost, 21 Barb. 541. See also Herkimer M. & H. Co. v. Small, 21 
Wend. 273; s. c. 2 Hill, 127; Sagory v. Dubois, 3 Sandf. Ch. 466; Mann ». 
Currie, 2 Barb. 294; .Mann v. Pentz, 2 Sandf. Ch. 257; Ward v.. Griswoldville 
Manuf. Co., 16 Conn. -V.);;; Lexington & Wet Cambridge R. i?. Chandler, 13 
311 : Klein v. Alton & Sangamon R., 13 Illinois, 514; Ryder v. Same, id. 
516 Cahawba R., 8 Ala. 586 ; Beene v. Cahawba & M. R., 3 id. 660; 

V. Crawford, 14 Wend. 20; Palmer v. Lawrence, 3 Sandf. Sup. Ct. 161, 
where /'" . ■)., iys the law must now be considered as settled, " that the obli- 
gation of actual payment is created in all cases, by a subscription to a capital 
stock, unless the terms of subscription are such as plainly to exclude it." Flys- 
ville r. O'Kisco, 5 Miller, 152; Greenville & Columbia R. v. Smith, 6 Rich. 91 ; 
( lharlotte & S. ' '. R. R. Co. v. Blakely, 3 Strob. 245; Banet v. Alton & Sanga- 
mon I!., 13 Illinois, 504, 514; Hightower v. Thornton, 8 Georgia, 486 ; Freeman 
r. Winchester, 10 Sm. & M. 577; Tar River Nav. Co. v. Neal, 3 Hawks, 520; 
/. r. Redd, 4 B. Mon. 178; Selma R. v. Tipton, 5 Ala. 7i->7 ; Troy & R. R. 
r. Kerr, 17 Barb. 581, Where the statute gives an election to the company 
either to forfeit the shares for non-payment of calls, or to sue and collect the 
[*1G3J 



§ 49. MODE OF ENFORCING PAYMENT. 177 

* 3. The question in the English cases seems to be whether, 
after the forfeiture of the shares, and a confirmation of the same 

amount of the shareholder, it was held that no notice of such election was neces- 
sary to be given before suit brought. New Albany & Salem R. v. Pickens, 5 
Ind. 247. The terms of the charter must be pursued where they provide specifi- 
cally for the redress for non-payment of calls ; as if the shareholder is made 
liable only for deficiency after forfeiture and sale of the stock. Grays v. Turnpike 
Co., 4 Rand. 578; Essex Bridge Co. v. Tuttle, 2 Vt. 393. But some of the 
American cases seem to hold, that a corporation has no power to enforce the 
payment of calls, against a subscriber for stock, unless upon an express promise, 
or some express statutory power, and that a subscription for the stock is not 
equivalent to an express promise to pay calls thereon to the amount of the shares . 
Kennebec & Portland R. v. Kendall, 31 Maine, 470. But this class of cases is 
not numerous, and is, we think, unsound. See also Allen v. Montgomery R., 
11 Ala. 437. It has been held, that after the forfeiture is declared, the company 
cannot longer hold the subscriber liable. Small v. Herkimer M. & H. Co., 2 
Comst. 330. So if the company omit to exercise their power of forfeiture, as 
the successive defaults occur, until all the calls are made, it thereby loses its 
remedy by sale. Stokes v. The Lebanon & Sparta Turnpike Co., 6 Humph. 
241. See also Harlaem Canal Co. v. Seixas, 2 Hall, 504; Delaware Canal Co. 
v. Sansom, 1 Binney, 70. 

The fact that the commissioners have by the charter an option to reject sub- 
scriptions for stock, does not make them less binding, unless they are so rejected. 
Connecticut & Passumpsic R. R. v. Bailey, 24 Vt. 465. An agreement made at 
the time of subscription inconsistent with its terms, and resting in oral evidence 
merely, cannot be received to defeat the subscription. lb. In a case in 
Kentucky this subject is very elaborately discussed by the counsel, and, as it 
seems to us, very wisely and very justly disposed of by the court. McMillan 
v. Maysville & Lexington Railw. Co., 15 B. Monroe, 218. It was there held, 
that subscriptions to the stock of a railway company, like other contracts, should 
receive such construction as will carry into effect the probable intention of the 
parties. That the stock subscribed was to be the means by which the road should 
be constructed, and hence, that a subscription for stock, on condition that the 
road should be so "located and constructed as to make the town of Carlisle a 
point," imposed upon the subscribers the duty to pay, upon the location of the 
road in that place, and that the construction of the road was not a condition pre- 
cedent to the right to recover for calls on the stock. See also New Hampshire 
Central R. v. Johnson, 10 Foster, 390 ; South Bay Meadow Dam Co. v. Gray, 
30 Maine, 547 ; Greenville & Columbia R. v. Cathcai t, 4 Rich. 89 ; Danbury & 
Norwalk R. v. Wilson, 22 Conn. 435. An agreement to take and fill shares in 
a railway company, is an agreement to pay the assessments legally made. Ban- 
gor Bridge Co. v. McMahon, 10 Maine, 478; Buckfield Br. R. v. Irish, 39 id. 
44; P. & K. R. v. Dunn, id. 587; Penobscot R. v. Dummer, 40 Maine, 172; 
White Mountains Railw. v. Eastman, 34 N. H. 124. So, too, an agreement to 
take shares before the act of incorporation is obtained, creates an implied duty 
to pay calls duly made thereon. Buffalo & N. Y. City Railw. v. Dudley, 
14 N. Y. 336. The general subject is discussed somewhat at large in this case, 
vol. i. 12 [*164J 



17s ASSESSMENTS OR CALLS. PART II. 

* by the company, and the issuing of new stock in lieu of the for- 
feited Bhares, the subscriber is still liable for any deficiency. The 
cases all regard him as liable, under the English statutes, to a 
personal action, until the confirmation of the forfeiture of his stock. 4 

1. But in the House of Lords, 6 it seems to have *been settled, 
upon gre it consideration, that where the charter or general statutes 
give ilh' right to forfeit the shares, or to collect the amount of the 
shareholder, and the forfeiture, sale, and cancellation of the shares, 
do nut produce the requisite amount, the company may issue new 
Bhares for the deficiency, and at the same time maintain an action 
for it. aga dsI the former owner. 

5. It seems to be well settled, that to entitle the company to sue 
for calls, the provisions of their charter, and of the general laws 
of the state, must be strictly pursued. And if the shares have 
been forfeited and sold without pursuing all the requirements, pro- 
vided in such case, no action will lie to recover the balance of the 

and the results arrived at confirm tlie doctrines laid down in the text. Rensse- 
laer & W. PI. Rd. Co. v. Barton, 1G X. Y. \bl . The same rule is mentioned in 
Fry's Ex'rs '•. Lex. & Big S. Railw., 2 Met. (Ky.) 314, where the question of 
the extent "f implied obligation assumed by subscription to the capital stock 
of a corporation is very fully and fairly illustrated. 

4 Greal Northern R. r. Kennedy, I Exch. 417. So the allottees of shares in 
a projected railway company are made liable lor a proportionate share of the 
expense. Uptiirs case, 1 Sim. (X. S.) 395; s. c. 1 Eng. L. & Eq. 13; The Di- 
rect S ■ .'.-bury & Leicester Railw. Co., in re, 1 Sim. (N. S.) 281 ; s. c. 7 id. 28 ; 
London & lb R. v. Fairclough, 2 M. & G. 674; Edinburgh L. & N. H. R. v. 
Bebblewhite, 6 M. & W. 709; s. c. 2 Railw. C. 237; Birmingham, Bristol & 
Tii. .1. K. v. Locke, 1 Q. B. 256; s. c. 2 Railw. C. 867; RailwayCo. v. Graham, 
1 Ad. cV Ellis (X. S.), 271 ; Iluddersfield Canal Co. v. Buckley", 7 T. R. 36. It 
lias been held, that a shareholder cannot absolve himself from calls by paying 
the directors a sum of money for his discharge, even though the money be 
accepted, and tie shares transferred. Bennett ex parte, 18 Beav. 339; s. c. 5 
. M. &G. 284. See also § 4, ante. 

I ;lis» Great Northern R., IMcQu. H.L. 1112; 8. c. 16 Eng. L.&Eq. 55. 
Seealso Peoria & OquawkaR. v. Elting, 17 111. 120; Cross v. .Mill Co., 17111.54. 
But v. he;.- t'i" deed of settlement gave the right to forfeit the shares at once, 
or to enforce the payment, if they should think fit, it was held, that a judgment 
for the amount due is a bar to any subsequent forfeiture. Giles ». Hutt, 3 Exch. 
18. And where the charter of the company provided, that the shares of a 
delinquent shareholder " shall be liable to forfeiture, and the company may 
ne forfeited and vested in the company," it was held the option, in 
declaring I feiture, was in the company, and not in the shareholders. 

Railway Company v. Rodrigues, 10 Rich. (S. C.) 278. 

[*165, 166] 



§ 49. MODE OP ENFORCING PAYMENT. 179 

subscription. 6 And if the shares be sold for the non-payment of 
several assessments, one of which is illegal, the corporation cannot 
recover the remainder of the subscription. 7 But where the by- 
laws of the company prescribe a specific mode of notice to the 
delinquent, through the mail, of the time and place of sale, this is 
not to be regarded as exclusive, but other notice which reaches the 
party in time will be sufficient. 8 

But in another case 9 the law in regard to proceedings in forfeit- 
ure * of shares is held very strictly. It is here considered that 
notice must be given in the precise time and in the exact form re- 
quired by statute, and that the sale must in all respects correspond 
precisely with the requirements of the provisions of the law. The 
rule is carried so far here that posting notice in a public place was 
held no sufficient compliance with the law requiring it to be in a 
"conspicuous" place; and it was here considered that subscrip- 
tions to preferred stock could not be reckoned to make up the 
requisite amount of capital to enable the corporation to go into 
operation. 

6. But notice that shares in a railway corporation will be sold 
for non-payment of assessments on a day fixed, and by an auc- 
tioneer named, who is and has long been an auctioneer in the 
place at which the notice bears date, is insufficient if it do not 
name" the place of sale. 10 

7. The validity of calls cannot be called in question upon the 

6 Portland, Saco, & Portsmouth Railw. v. Graham, 11 Met. 1. 

7 Stoneham Branch R. Co. v. Gould, 2 Gray, 277. 

8 Lexington & West Cambridge Railw. v. Chandler, 13 Met. 311. And where 
the charter required notice of the instalment three weeks prior to the same 
becoming due, it was held prima facie evidence of compliance by producing the 
publication, and oral evidence of its being repeated the requisite number of 
times, without producing all the papers. Unthank v. Henry County Tump. 
Co., 6 Porter (Ind.), 125. And in a later case, Anderson v. The Ohio & Miss. 
Railway Co., 14 Ind. 169, where the charter limited the amount of calls to ten 
per cent per annum upon subscriptions to stock, and ten per cent had been 
paid, a call was held sufficient without specifying the place of payment or the 
percentage to be paid, only five remaining within the power of the directors to 
call for, and the notice fixing the time and place of payment. 

9 Lewey's Island Railw. v. Bolton, 4S Me. 451. The rules of law as to 
what is requisite to constitute a valid subscription to a stock in a railway com- 
pany and to justify calls, are much considered in the recent case of Maltby v. 
N. W. Va. Railw., 16 Md. 422. 

10 Lexington & West Cambridge Railway v. Staples, 5 Gray, 520. 

[*167J 



180 ASSESSMENTS OR CALLS. PART II. 

ground that the directors making the same are acting in the inter- 
est and for the benefit of a rival company, and have in consequence 
unnecessarily retarded the construction of the company's works. 11 
But the directors must be duly appointed. 12 

B. And the proceedings in making the calls must have been 
substantially in conformity with the charter and by-laws of the 
company and the general laws of the state at the time of making 
the same. Any subsequent ratification by the directors of an in- 
formal call will only give it effect from the date of the ratifica- 
tion. 12 

9. A subscriber who has executed the deed of settlement, pur- 
chased shares and received dividends upon the same, is not at 
liberty to object to their validity upon the ground that the company 
were by the deed of settlement authorized to issue shares for XI 00, 
and these were issued as half shares at £50 ; this acquiescence 
estops him from doing so. 14 

10. It seems that unless the constitution of the corporation or 
the general laws of the state contain a provision justifying a for- 
feiture * of shares, it is not competent for the majority of the share- 
holders by prospective resolution to establish a regulation whereby 
the shares shall be forfeited upon failure to comply with the re- 
quirements of such resolution. 15 

11. It is no valid reason for making more calls than are justified 
by the constitution and laws affecting the question, that some of 
the calls were not regularly made and were therefore void, and 
were not paid by the defendant. It should appear that such irreg- 
ular calls had been declared void, otherwise the directors may have 
secured most of the money demanded by them. 16 

11 Orr v. Gl. A. & M. J. Railw., 3 McQu. Ho. Lds. 799 ; s. c. 6 Jur. (N. S.) 
877. 

» II. B. Coal Co. v. Teague, 5 H. & N. 151 ; s. c. 6 Jur. (N. S.) 275. 

13 Cornwall G. C. M. Co. v. Bennett, 5 H. & N. 423; s. c. 6 Jur. (N. S.) 
jlo California G. M. Co. v. Lewis, 6 H. & N. 174; s. c. 6 Jur. (N. S.) 
1376. 

11 Hull Flax & Cotton Co. v. Wellesley, 6H.&N. 38. 

15 Barton's case, 4 De G. & J. 46. 

16 Welland Railw. v. Berrie, 6H.&N. 416. 

[*168] 



§50. 



CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. 



181 



SECTION IV. 



Creditors may compel Payment of Subscriptions. 



1. Company compelled to collect of subscribers 
by mandamus. 

2-4. Amount due from subscribers, a trust- 
fund for the benefit of creditors. 

5. If a state oivn the stock it will be the same. 

6, 7. A diversion of the funds from creditors 

is a violation of contract on the part of 
the company, and a state law authorizing 
it invalid. 



8, 9. The general doctrine above stated found 
in many American cases. 

10. Judgment creditors may bring bill in 

equity. 

11. Promoters of railways liable as partners, 

for expenses of procuring charter. 

12. Railway company may assign calls before 

due, in security for bona fide debt. No 
notice required to perfect assignment 
against attachments or judgment liens. 



§ 50. 1. By the present English statute, the creditors of a com- 
pany may recover their judgment debts, against shareholders, who 
have not paid the full amount of their shares to the extent of the 
deficiency. 1 Before this statute, it was considered that a writ of 
mandamus would lie, to compel the company to make and enforce 
calls against delinquents. 2 

2. In this country this question has arisen, not unfrequently, in 
* the case of insolvent companies, no such provision existing in 
most of the states as that of the English statute just referred to. 

3. This subject is very extensively examined, and considered by 
the national tribunal of last resort, in a case of much importance 
and delicacy, 3 and the following results arrived at: — 

4. On the dissolution of a corporation, its effects are a trust- 
fund, for the payment of its creditors who may follow them, into 
the hands of any one, not a bona fide creditor, or purchaser without 
notice ; and a state law, which deprives creditors of this right, and 
appropriates the property to other uses, impairs the obligation of 
their contracts and is invalid. 

1 8 & 9 Vict, c. 16, §§ 36, 37. 

2 Walford, 277; Hodges, 106, n. («) ; Reg. v. Victoria Park Co., 1 Q. B. 
288, where the opinion of the court very clearly intimates, that the writ of man- 
damus will lie, to compel the company to enforce the payment of calls, where it 
appears that judgments against the company remain unsatisfied for want of 
assets. But, under the circumstances of this case, it was not deemed requisite 
to issue the writ. 

3 Curran v. State of Arkansas, 15 How. (U. S.) 304. 

[*109] 



182 ASSESSMENTS OR CALLS. PART II. 

5. The fact that a state is the sole owner of the stock in a 
banking corporation, does not affect the rights of the creditors. 

6. The capital stock of a company is a fund set apart by its 
charter for the payment of its debts, which amounts to a contract, 
with those who shall become its creditors, that the fund shall 
not be withdrawn and appropriated to the use of the owner, or 
owners, of the capital stock. 

7. A law which deprives creditors of a corporation of all legal 
remedy against its property, impairs the obligation of its contracts, 
and is invalid. 

8. These propositions, with the exception of the constitutional 
question, in regard to the impairing of an assumed or implied 
contract with the creditors of the corporation, are all fully sus- 
tained by numerous decisions of the highest authority in this 
country. 

9. Thus in a case before Mr. Justice Story, in the Circuit 
Court, 4 it was held that the capital stock of a corporation is a 
trust-fund, for the payment of its debts, and being so, it may, upon 
general principles of equity law, be followed into other hands, so 
long as it can be traced, unless the holder show a paramount 
title. 5 And in cases where the capital stock or assets of a corpo- 
ration have been distributed to the stockholders without providing 
for the payment of its debts, a court of equity will allow the cred- 
itors to sustain a bill against the shareholders, to compel contri- 
bution to the payment of the debts of the company, to the extent 
of funds obtained by them, whether directly from the company, or 
* through some substitution of useless securities for those .which 
were good. 6 

4 Wood V. Dummer, 3 Mason, 308. 

" A.lair v. Shaw, 1 Sch. & L. 243, 261. See Dayton v. Borst, 31 N. Y. 435. 

8 Nathan v. Whitlock, 9 Paige, 152; s. c. 3 Edward's Ch. 215. But it has 
been held, that the distribution of the capital stock among the shareholders, 
before the debts of the company are paid, and leaving no funds for that purpose, 
will not render the shareholders liable to an action of tort, at the suit of the 
creditors of the company, there being no such privity as will lay the foundation 
of an action at law, even in states where no court of chancery existed. Vose v. 
Grant. 15 Mass. 505. In equity the suit may be in the name of the receiver, 
Nathan v. Whitlock, 9 Paige, 152, or in the name of a creditor, suing on behalf 
of himself and others, standing in the same relation. Mann v Pentz, 3 Comst. 
415, 422. And all the shareholders, who have not paid their subscriptions, should 
be made parties to the bill, and compelled to contribute proportionally. lb. 

The same principle is recognized in numerous other cases. Mumma v. The 

[*170] 



§ 50. CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. 183 

10. Where a corporation have abandoned all proceedings under 
their charter, from insolvency, and still owe debts, the subscrip- 
tions to the capital stock not being all paid, a judgment creditor 
may proceed, in equity, against the delinquent share-owners, there 
being no longer any mode by which calls upon the stock may be 
enforced, under the provisions of the charter, or by action at law, 
in favor of the company. 7 

11. It is held under the English statutes, in regard to fully 
registered companies, which never go into full operation, but have 
to be closed under the winding-up acts, that a shareholder, who 
has paid up the full amount of his shares, is still liable to pay the 
necessary calls, to defray the expenses of winding up the company, 
* the subscribers to such joint-stock companies, under the statute, 
being held liable to the same extent as partners. 8 

12. The company may assign, as security for a debt due from 
them, an existing unpaid call upon shares not yet due, and if the 
assignment contains a power of sale, that will not invalidate the 
assignment, since if held void, a court of equity will expunge it, 
or restrain its exercise, and it cannot have any effect to avoid the 
assignment until acted upon ; and a shareholder from whom such 
call is due will be affected with notice of the assignment, if pre- 

Potomac Co., 8 Pet. (U. S.) 281 ; Wright e. Petrie, 1 Sm. & M. Ch. 282, 319 ; 
Nevitt v. Bank of Port Gibson, 6 Sm. & M. 513; Hightower v. Thornton, 8 
Georgia, 486 ; Fort Edward, &e. Plank Road Co. v. Payne, 17 Barb. 567 ; Gillet 
v. Moody, 3 Comst. 479. This case is where the bank, of which the plaintiff was 
receiver, had transferred specie funds to defendant, in exchange for his own 
stock in the bank. The transaction was held illegal, and the defendant was 
compelled to refund, for the benefit of the creditors of the bank. And where 
the subscriber to a bank, which became insolvent, assigned all his interest in the 
bank, it was held not to exonerate him from liability to assessments upon his 
subscription, to pay debts due from the bank, although contracted subsequent to 
the assignment. Dayton v. Borst, 7 Bosw. 115. See also Morgan v. New York 
& Albany R., 10 Paige, 290. 

7 Henry v. The Vermillion & Ashland Railw., 17 Ohio, 187. See also Miers 
v. Z. & M. T. Co., 11 Ohio, 273; s. c. 13 Ohio, 197. And where the com- 
pany retains its organization and officers, it may be compelled, by writ of man- 
damus, to enforce calls against the shareholders, to the extent of their liability, 
as well as to perform other duties. Commonwealth v. Mayor of Lancaster, 5 
Watts, 152. 

8 Matter of the Sea, Fire, and Life Assurance Society, 3 De G., M. & G. 459 ; 
8. c. 23 Eng. L. & Eq. 422. The form of proceeding and the extent of 
responsibility is extensively considered, as to delinquent subscribers to an 

nsolvent corporation, in Adler v. Milw. Patent Brick Co., 13 Wis. 57. 

[*171] 



184 



ASSESSMENTS OR CALLS. 



PART II. 



Biding at the meeting when it was made, although having no 
further knowledge in regard to it. 9 But it was doubted if any 
notiee were required to perfect an assignment in security of a 
bona fide debt, against a subsequent judgment or attachment lien. 
And in a later case, 10 it was decided that no notice is required in 
such case, and that Watts v. Porter, 11 where the majority of 
Queen's Bench held such notice indispensable, was no longer law. 



SECTION V. 



Conditions precedent to making Calls. 



1. Conditions precedent must be performed 

before calls. 

2. But collateral, or subsequent conditions not. 

3. Definite capital must all be subscribed be- 

fore calls. 

4. It is the same where defined by the com- 

pany, as in the charter. 
6. Conditional subscriptions not to be reck- 
oned. 



6. Legislature cannot repeal conditions prece- 

dent. 

7. Limit of assessments cannot be exceeded for 

any purpose. 

8. Where charter fails to limit stock, corpo- 

ration may. 

9. Alteration in charter reducing amount of 

stock. 



§ 51. 1. Conditions precedent must be complied with, before any 
binding calls can be made. Any thing, which, by the express pro- 
visions of the charter, or the general laws of the state, is made a 
condition to be performed on the part of the company, or its 
* agents, before and as the foundation of the right to makecalls, 
upon the subscriptions to the stock ; or where the thing is re- 
quired to be done, before calls shall be made, and is an important 
element in the consideration of the agreement to take stock in the 
company, it should ordinarily be regarded as a condition prece- 
dent. 

2. But where the matter to be done is rather incidental to the 
main design, and only affects the enterprise collaterally, it will 
commonly be regarded as merely directory to the company, or at 
most as a concurrent or subsequent condition, to be enforced by 

9 Pickering v. Ilfracombe Railw. Law Rep., 3 C. P. 235. 

10 Robinson i\ Xisbitt, id. 264. 

11 3 El. & B. 743. 
[*172] 



§ 51. CONDITIONS PRECEDENT TO MAKING CALLS. 185 

independent proceedings, and in the performance of which time is 
not indispensable. 1 

1 Carlisle v. Cahawba & Marion Railway Co., 4 Ala. 70; ante, § 18; Banet 
v. Alton & Sangamon Railway Co., 13 111. 504; Utica & Schenectady Railway 
Co. v. Brinkerhoff, 21 Wend. 139. This last case is an action upon a special 
undertaking to pay land damages, on condition the company would locate their 
road so as to terminate at a particular place, which the company alleged they 
had done, and defendant was held not liable, for want of mutuality, the com- 
pany not being bound by the contract. Cooke v. Oxley, 3 T. R. 653. But it 
admits of some question, we think, whether the case of 21 Wend. 131), comes 
fairly within the principle upon which it was decided. The case of Cooke v. 
Oxley, which has been sometimes questioned, is an obvious case of want of con- 
sideration on the part of defendant, it being a mere naked refusal of goods, for 
a fixed time, the plaintiff in the mean time having an election, to take tliera 
or not. This class of cases is numerous and sound, resting upon the mere want 
of consideration. Burnet v. M. Bisco, 4 Johns. 235. But where such an option 
is given upon consideration, or as a standing offer, and in the mean time the 
other party proceeds to perform the contract on his part, it is as binding in this 
form as in any other. And it was so held, in the case of the Cumberland Valley 
Railway Co. v. Baab, 9 Watts, 458. In this case the inhabitants of one portion 
of Harrisburg made a subscription to induce the company to cross the river at a 
particular point, and to build their depot upon a particular street, which being 
done, the subscribers were held liable to pay their subscriptions to the company, 
and, as we think, upon the most obvious and satisfactory grounds. 

In Henderson & Nashville Railway Co. v. Leavell, 16 B. Monr. 358, it was 
held, that a subscription to the stock of a railway, conditioned that the road 
should pass through a certain town, and the money subscribed should be ex- 
pended in a certain county, was a valid subscription. The Court, Stimpson, J., 
say : " The stock in this case is not conditional, although the defendant has, in 
the act of subscribing for it, brought the company under certain obligations to 
him, in relation to if, with which they are bound to comply. Such stipulations 
are not incompatible with sound policy, or with any of the provisions of the 
charter. They do not render the subscription void, but operate, as it was 
intended they should, for the benefit of the stockholder. But even if the sub- 
scription had been made, upon the express condition that the money should not 
be paid until certain acts were done by the company, when these acts were done, 
the stock would then be unconditional, and the subscribers would then be 
compelled to pay it, as was held in McMillan ». Maysville & Lexington Railway 
Co., 15 B. Monr. 218." If a subscription for stock be conditioned, that the 
subscriber may withdraw his subscription, at his election, if the whole stock is 
not taken, at a given time, and the defendant pay part of his subscription after 
that date, he is liable for the balance, unless he show the failure of the condi- 
tion, and his own election, in a reasonable time after, to withdraw. Wilming- 
ton & Raleigh Railway Co. v. Robeson, 5 Iredell, 391. On a subscription to 
stock in a railway upon condition the road should "pass" on a certain route 
through a certain county, it is not a condition precedent to the right to demand 
payment, that the road should be actually constructed upon that line ; it is suffi- 

[»172] 



L86 ASSESSMENTS OR CALLS. PART II. 

•And where tlie company voted to issue six hundred additional 
Bhares and to allow each stockholder to take one new share for 

cient if the road be permanently located there. North Missouri R. Co. v. 
Winkler, 29 Mo. 818; A. & N. L. Railw. Co. v. Smith, 15 Ohio (N. S.), 328. 
Iso Vicksburg, Shreveport, and Texas Railw. v. McKean, 12 La. Ann. 038. 
There is a case in Vermont, Conn. & Pass. Railw. Co. v. Baxter, 32 Vt. 805, 
where the court seem to hold, that, where the subscription defined the route 
of the proposed railway, the representations of the agent who carried about the 
paper, that the written words really defined one particular route, and not another, 
the subscribers themselves being equally conusant of the facts with the agent, 
was binding upon the company, and would preclude them from recovering calls 
upon such subscription, provided the road were not in fact located upon the 
particular route indicated by the agent, although in fact so located as to comply 
with the conditions of the written subscription, and although the agent in express- 
ing the opinion he did, acted in perfect good faith. The case is not one of suffi- 
cient importance to require much discussion, but it may be well to bear in mind, 
what seems to have escaped the apprehension of the court for the moment, that 
the point ruled as stated in the marginal note and in the opinion of the court, 
seems to lie adopting the oral representations of the agent, made at the time of 
the subscription, as part of the written contract of subscription. The charge 
of the court below puts the case upon the ground, that the subscriber is bound by 
the legal construction of his written subscription, and that he cannot escape such 
responsibility by showing that those who acted on behalf of the company main- 
tained a different opinion, unless that was done fraudulently, with a view to 
di ceive the defendant. We understood that to be the law at the time, and we 
cannot fairly say that we understand it differently now. 

In ( lhamberlain v. Painesville & Hudson R. Co., 15 Ohio (N. S.), 225, it was 
decided that where a subscription was made for a given number of shares of 
stock in a railway company, payable at such times, and in such instalments, as 
the directors may prescribe, provided the road is " permanently located" on a 
given route, and that a " freight house and depot be built" at a point named : — 
1. Thar on the permanent location of the road in accordance with the terms 
proposi d, the subscription became absolute. 2. That the provision in relation 
to the erection of the buildings must be regarded as a stipulation merely, and 
its performance could not be reasonably considered a condition precedent to the 
righl to collect the amount of the subscription. 3. The giving by a subscriber, 
of his note for the balance of his subscription, and taking, therefor, from the 
company, a receipt, stipulating, that when paid, the amount of the note should 
be applied on bis stock, was prima facie a waiver of conditions precedent. But 
this i- denie 1 in a later case, Parker v. Thomas, 19 Ind. 213. 

And in McAllister v. The Ind. & Cin. Railw. Co., 15 Ind. 11, a question 
similar to the one stated in Conn. & l'a-s. Railw. Co. v. Baxter, supra, arose 
and received a fir more just and reasonable determination. The plaintiff made 
an unconditional subscription to the stock of the plaintiff's company, and paid 
the amount and took and retained his certificate without, offering to surrender 
the smie. But at the time of the subscription the company promised that a 
branch of their line should come to M-ilford, the place of the plaintiff's residence, 

[*178j 



§51. CONDITIONS PRECEDENT TO MAKING CALLS. 187 

* every two held by him, if he subscribed for the same, paid a cer- 
tain sum and gave his note for the balance, before a day named ; 

which had not been done. The suit was brought to recover the money paid. 
Held, that the parol promise to construct the branch to Milford, could not be 
proven as part of the written contract of subscription ; and hence the money paid 
could, not be recovered on the ground of a breach of contract. 2. A recovery 
could not be had on the ground of fraud : the parol promise and representation 
being, under the circumstances, no more than the expression of an existing in- 
tention to make the branch. 3. Under the circumstances the company was not 
liable to repay the money. 

See also Andi-ews v. Ohio & Miss. Railw. Co., 14 Ind. 169; Eakright v. L. 
& N. Ind. Railw., 13 Ind. 404, where the question of controlling written sub- 
scriptions by oral declarations of those who solicit them, as to the probable route 
of the road, is further discussed and placed upon the true ground, that such rep- 
resentations can have no effect, unless upon the ground of fraud. See also 
Parker v. Thomas, 19 Ind. 213; Cunningham v. E. & K. Railw. Co., 2 Head, 
23; Brownlee v. O., Ind. & 111. Railw., 18 Ind. G8. 

There are some cases which go the length of saying that as the directors of a 
railway company have no power to give any binding assurance as to the route 
which shall be finally adopted, it being their duty to place it where, in their 
ultimate judgment, the public good requires,- it is the folly of any subscriber to 
rely upon any such representation, and that even where it could be shown that 
such representations were fraudulently made, to induce subscriptions, and had 
the purposed effect, the subscriptions could not be avoided on that ground. 
Ellison v. Mobile & Ohio Railw., 36 Miss. 572; Walker v. Same, 34 id. 245. 

See also Piscataqua Ferry Co. v. Jones, 39 N. H. 491. The verbal promise 
of the agent who takes up subscriptions for a railway, that the time of payment 
shall be delayed beyond the time named in the charter, and which induces the 
subscriptions, is not binding upon the company. Thigpen v. Miss. Central 
Railw., 32 Miss. 347. 

One subscribed, in 1853, for twenty shares of the stock of the P. & C. R. R. 
Co., on the express condition that the company "should locate and construct 
their railway along the i - oute contemplated by the Meyer's Mill Plank Road Co., 
for their road," paid one instalment, part of the second, but delayed the payment 
of the residue, as the calls were made, until the company, before the road was 
constructed along the route mentioned, suspended operations, alter which pay- 
ment was refused on the ground that though the road had been located by the 
company, they had not constructed it, according to the condition in the subscrip- 
tion. In an action brought by the company, it was Held, 1. That the promise 
of subscription being precedent to that of construction, upon the part of the 
company, the defendant could not insist upon performance by the railroad com- 
pany, while he refused performance on his part, and that the road having been 
located as stipulated, and completed so far as the means of the company would 
allow, it was a compliance with the condition, and the company were entitled to 
recover. 2. That the condition in the contract of subscription was not a condi- 
tion precedent, and did not require the completion of the road before payment 
could be required, but only that when located and constructed it should occupy 

[*174] 



188 ASSESSMENTS OR CALLS. PART II. 

* it was hold there was no implied condition that the whole six 
hundred shares should be issued, and the failure to do so was no 
•ground lor allowing an action to be maintained for the money 
paid, or any defence to the notes given for the balance. 2 

3. It is an essential condition to making calls, in those com- 
panies where the number of shares and the amount of capital is 

the route designated, the undertaking being on the part of the subscriber, to 
pay, as calls should be made by the directors, and on the part of the company 
to locate as stipulated, and construct as fast as their means would allow. 
3. That the suspension of operations made by the directors long after the pay- 
ments upon defendant's stock had been due, was not a defence in an action 
brought against him for the unpaid balance thereon. Miller v. Pittsburg & 
Connellsville Railw., 40 Penn. St. 237. 

It was held in one case that where the charter required subscriptions by 
responsible persons of a certain proportion of the estimated cost of the work 
before entering upon the construction, it was not necessary for the company 
to show compliance with this requirement in order to enforce calls. Nor does the 
right to make calls depend upon the extent or nature of the indebtedness of the 
company ; nor can a subscriber defend against calls by showing that a portion 
of the requisite amount of subscriptions to bind the defendant were made by 
persons of no actual or reputed pecuniary responsibility, unless he also show 
that they were not made or taken in good faith. Penobscot Railw. v. White, 
41 Me. 512. And the. bad faith cannot be shown by the declarations of the 
subscribers, made long after making such subscriptions. lb. And where the 
charter of a corporation requires that one thousand shares shall be subscribed 
before the organization of the company, the decision of the majority of the sub- 
scribers that this condition has been complied with, and the actual organization 
of the company in pursuance of the decision, are binding upon the minority. lb. 
This will not preclude the minority from defending on the ground that the pro- 
ceedings of the majority were in bad faith. See also Taggart v. West Maryland 
Railw., 24 Md. 503. And where the subscriber gives the company his note for 
tin' sum required to lie paid at the time of subscription, and subsequently pays the 
same, his subscription is binding, and makes him a member of the company, and 
he cannot escape the responsibility of his position on account of any previous 
irregularity. Ogdensburg Railw. v. Wolley, 38 N. Y. 118. Subscribers can- 
not defend against calls, on the ground that subscriptions were taken for two 
sections of the road without distinguishing how much was to be applied on each ; 
or on the ground that the construction of the road was begun before twenty per 
centum of each subscription was paid, according to the requirements of the 
charter; or that by a subsequent statute the amount of capital stock required to 
build the road bad been reduced below the requirements of the charter; or that 
interest had been paid on subscriptions according to the recommendation of the 
terms of subscription; or that the charter of the company had been amended 
by extending the time for completing the road. Agricultural Branch Railw. v. 
Wine-luster, 13 Allen, 29, 

* N itter o. Lexington & W r est Cambridge Railw., 6 Gray, 85. 

[*175, 176] 



§ 51. CONDITIONS PRECEDENT TO MAKING CALLS. 189 

fixed, that the whole stock shall be subscribed before any calls can 
lawfully be made. 3 And if calls are made before the requisite 
stock is subscribed, although the subscription is completed before 
action brought, no recovery can be had. 4 But it has been held, 
that the general provision in the charter of a railway act, that so 
soon as 1,500,OOOZ. shall have been subscribed, it shall be lawful 
for the company to put in force all the powers of the act, author- 
izing the construction of the railway, and of the acts therein 
recited, being the general railway acts, did not require such sub- 
scription to be made before making calls, but only before exercis- 
ing compulsory powers of taking land. 5 

*4. And where the charter provides that the members might 
divide the capital stock into as many shares as they might think 
proper, and by a written agreement the subscribers fixed the cap- 
ital stock at 850,000, divided into 500 shares of $100 each, and 
only one hundred and thirty-eight shares had been subscribed, it 
was held no assessment for the general purposes of the corporation 
could be made. 6 

3 Stoneham Branch Railway Co. v. Gould, 2 Gray, 277 ; Salem Mill-Dam Co. 
v. Ropes, 6 Pick. 23 ; s. c. 9 Pick. 187 ; s. c. 1 Redf. Am. Railw. Cases, 89 ; Cabot 
& West Springfield Bridge Co. v. Chapin, 6 Cush. 50 ; Worcester & Nashua Rail- 
way Co. v. Hinds, 8 Cush. 110; Lexington & West Cambridge Railway Co. v. 
Chandler, 13 Met. 311; N. Hampshirj Central Railway Co. v. Johnson, 10 
Foster, 390. 

But a subscriber for shares in a railway company is liable for calls, although 
by a subsequent amendment of the charter of the company the capital stock is 
limited to four thousand shares, and that number has not been subscribed, there 
being no such condition, either in the charter of the company or the terms of sub- 
scription, at the time of subscribing. York & Cumberland Railway v. Pratt, 40 
Maine, 447. But the number of shares required by the charter must be sub- 
scribed, as stated in the text. Penobscot Railway v. Dummer, 40 Maine, 172. 
The records of the company are evidence of such fact. lb. Same v. White, 
20 Law Rep. 689 ; s. c. 41 Maine, 512 ; Peake v. Wabash Railw., 18 111. 88. 

4 Norwich & Lowestoft Navigation Co. v. Theobold, 1 Moody & M. 151 ; 
Stratford & M. Railway Co. v. Stratton, 2 B. & Ad. 518. And see Atlantic 
Cotton Mills v. Abbott, 9 Cush. 423, where a condition in a subscription for 
stock, that the capital stock of the company should not be less than $1,500,000, 
was held a condition precedent to making calls. 

B Waterford, Wexford, & W. Railway Co. v. Dalbiac, 6 Railw. C. 753; s. c. 
4 Eng. L. & Eq. 455. But the American cases will not justify such a construc- 
tion. It would here be held a condition precedent to the right to make calls, or 
even to maintain a corporate existence, probably. 

6 Littleton Manufacturing Co. v. Parker, 14 N. Hamp. 543; Contoocook 
Valley Railway Co. v. Barker, 32 N. Hamp. 363. 

Where the condition of a bond given for the amount of a railway subscription 

[*177] 



190 ASSESSMENTS OR CALLS. PART II. 

.".. And where the charter of a railway company requires their 
Btock to consist of not less than a given number of shares, assess- 
ments cannot be made before the required number is taken. And 
in such case conditional subscriptions are not to be reckoned, even 
where the condition is acceded to by the company, if the sub- 
scriber still repudiates the subscription, on the ground that the 
condition is not fully performed by the contract drawn up in form. 
And the plea of the general issue, is no such admission of the 
existence of the company, as to preclude subscribers from con- 
testing the amount of subscriptions, to enable the company to 
make calls." 

*6. And where the chatter originally required 11,000 shares to 
be the minimum, and when less than 10,000 were subscribed, the 

was, that the same should be paid when the road was " completed" to a certain 
village, it was held that the condition was performed when the road was made 
to the suburbs of the village, in such a manner, as to allow daily trains on it, 
carrying all the freight and passengers that offer, although some portion of the 
work was only temporary. O'Neal v. King, 3 Jones, 517 ; Chapman v. Mad 
River & Lake Erie Railway Co., 6 Ohio (N. S.), 119. 

7 Oldtown & Lincoln Railw. Co. v. Veazie, 39 Maine, 571. Any condition 
the subscriber sees fit to annex to his subscription must be complied with before 
the subscriber is liable to assessments. Penobscot & Kennebec Railw. Co. v. 
Dunn, 39 Maine, 587. 

A condition, that not more than five dollars on a share shall be assessed at 
one time, is not violated by two or more assessments being made at one time, if 
only five dollars is required to be paid at one time. lb. Penobscot Railw. v. 
Dummer, 10 Maine, 172. And the same principle already stated, that where the 
conditions of a subscription required seventy-five per cent of the estimated cost 
of any section of the road to be subscribed, by responsible persons, before its 
ructi m should be commenced, if the subscriptions were obtained in good 
faith, assessments will be valid, although some of the subscriptions to make up 
the amount, prove worthless, is here also maintained. lb. 

And where the (barter of the company requires that the capital stock be not 
li 38 than l\w hundred, nor more than ten thousand .-hares, of $100 each, and 
authorizes the directors to assess upon five hundred shares, as soon as subscribed, 
and from time to time to enlarge the capital to the maximum amount named in 
the charter, all the shares to be equally assessed, it is not necessary for the com- 
pany to define their capital, within the prescribed limits, before making calls. 
White Mountains Railw. v. Eastman, 34 N. II. 121. 

• ' is doubtful if the directors of a railway have power to release subscribers to 
Btock, but at all events, where the release is optional with the subscriber, he must 
make his i lei tion to be released, and in a reasonable time. Penobscot & Ken. 
Railw. v. Dunn, 39 .Maine, 587. See also Troy & Greenfield Railw. v. Newton, 
- i. a . 6. 

[*178] 



§ 51. CONDITIONS PRECEDENT TO MAKING CALLS. 191 

company was organized, and the subscriptions accepted, and 
assessments made, and afterwards, by an act of the legislature, 
accepted by the corporation, the minimum was reduced to 8,000 
shares, in an action to recover assessments, made on defendant's 
shares, before and after such alteration of the charter, it was held : 

1. That the minimum was a condition precedent, to be fulfilled 
by the corporation, before the subscribers were liable to assess- 
ments. 

2. That the alteration of the charter will not affect prior sub- 
scribers. 

3. Nor will the defendant be estopped from relying upon this 
condition, by having acted as a shareholder and officer in the cor- 
poration, and contributed towards the expenses of the company. 

4. That corporators, by any acts or declarations, cannot relieve 
the corporation from its obligation, to possess the capital stock 
required by its charter. 8 

7. Where the charter of a railway company provided for assess- 
ments by the directors of the company upon the shares of the 
stock", as they might deem expedient and necessary in the execu- 
tion and progress of the work, provided " that no assessment shall 
be laid upon any share in said corporation of a greater amount 
than one hundred dollars in the whole, . . . and if a greater 
amount of money shall be necessary to complete said road it shall 
be raised by creating new shares," it was held that the charter 
limited the amount of all the assessments to one hundred dollars 
on a share, and that assessments beyond that sum, made for the 
purpose of paying the debts of the company, were illegal. 8 

* 8. Where the charter of a railway company fails to fix the 
number of shares of the capital stock, it must be presumed to have 
been the purpose of the legislature that the corporation should 
limit the number. And this must be done before any valid as- 
sessments can be made. In such case, if the number fixed exceed 
the number subscribed, the company may change the number; 
but the assessments must be made upon the whole number, and 
if an assessment be made before the number ultimately fixed is 
subscribed, it will be irregular and void. A subscriber who has 
paid one assessment is not thereby precluded from insisting upon 
this irregularity in defence to others. 9 

8 Great Falls & Conway R. Co. v. Copp, 38 N. H. 124. 

9 Som. & Ken. R. Co. v. Cushing, 45 Me. 524. 

[*179] 



192 ASSESSMENTS OR CALLS. PART II. 

9. Where the charter of a railway company as originally granted 
limited the amount of stock at a point which the subscription 
never readied, but by a subsequent alteration of the charter the 
amount of the capital stock was reduced, and after the subscrip- 
tions reached that amount the company was duly organized, it was 
held that the alteration in the charter did not release prior sub- 
scribers. 10 But this seems questionable. 11 



SECTION VI. 

Calls may be made payable by Instalments. 

§ 52. It was at one time considered that calls made payable by 
instalments were invalid. 1 But it seems now to be settled that 
such mode of making calls, where the directors of the company 
have an unlimited discretion, as to the time and mode of requiring 
payments of the subscriptions, is unobjectionable. 2 But where 
the subscription contains a provision, that payment shall be 
made, at such times and places as should thereafter be directed 
by the directors, and shall be applied to the construction of the 
road, it was held, that the subscription did not become payable, 
until the directors, at a regular meeting, had fixed the time * and 
place of payment. 3 But it is further held, in this case, that it is 
not necessary to give notice to the subscribers of the time and 
place of payment. 3 This point in the decision seems not altogether 
in accordance with the usual practice in such cases, or the general 
course of decision in regard to calls, which upon general principles 
must be notified to subscribers before an action can be maintained. 
But where the subscription is made payable in instalments of ten 
per cent every sixty days as the work progresses, it is not impor- 
tant that any formal call or demand be made for the successive 
payments. 4 

10 Bedford Railw. Co. v. Bowser, 48 Perm. St. 29. 
" Ante pi. 6 n. 8. 

1 Ambergate, N. & Boston & E. J. R. v. Coultbard, 5 Exch. 459; Stratford 
& M. It. v. Stratton, 2 B. & Ad. 518. 

2 London & N. W. R. v. M'Michael, 6 Exch. 273; Ambergate R. v. Nor- 
eliffe, 6 Exch. 629; s. c. 4 Eng. L. & Eq. 461 ; Birkenhead, L. & Ch. R. v. 
Webster, 6 Exch. 277 ; s. c. 6 Railw. C. 498. 

3 Ross v. Lafayette & Ind. Railw., 6 Porter (Ind.), 297. 

4 Breedlove v. M & F. Railw., 12 Ind. 114 ; Smith v. Ind. & 111. Railw., id. 61. 

[*180] 



§53. 



PARTY LIABLE FOR CALLS. 



193 



Where the charter gives the corporation power to collect sub- 
scriptions to the capital stock by such instalments as the president 
and directors shall deem proper, they may make contracts with 
subscribers for the payment of subscriptions in any reasonable in- 
stalments, as to time and place, and if such condition were ultra 
vires, it would render the whole contract void, and not the con- 
dition merely. 5 



SECTION VII. 

Party liable for Calls. 



1. Subscribers liable to calls. 

2. G. ]Yhat constitutes subscription to a cajti- 

tal stock. 

3. How a purchaser of stock becomes liable to 

the company. 

4. One may so conduct as to estop him from 

denying his liability. 

5. The register of the company evidence of 

membership. 

6. Subscriptions must be made in conformity 

to charter. 

7. Transferee liable for calls. Subscriber 

also in some cases. 



8. Original books of subscription primary 

evidence. 

9. If lost secondary evidence admissible. 

10. What acts will constitute one a share- 

holder. 

11. May take and negotiate or enforce notes 

for subscriptions. 

12. But note fraudulently obtained not en- 

forceable. 

13. Subscriptions as executor distinct con- 

tracts from those in private capacity. 



§ 53. 1. All the original subscribers to the stock in a railway 
company are usually made liable to calls, by the charter of the 
company, or by general statute. 

2. Some question has arisen in the English courts, as to what 
is necessary to constitute one a subscriber. In an early case l 
* upon this subject, it was held, that the word " subscriber," in the 
act of parliament constituting the company, applied only to those 
who had stipulated that they would make payment, and not to all 
those who had advanced money ; and that one, who was named in 
the recital of the act, as one of the original proprietors, and who 
had paid a deposit on eight shares, but who had not signed any 
contracts, was not a subscriber within the meaning of the act, and 
not liable to be sued by the directors for calls on the remainder of 
such shares. 

5 Roberts v. Ohio & Mobile Railw., 32 Mississippi, 373. 
1 Thames Tunnel Company v. Sheldon, 6 B. & C. 341. 

13 [*181] 



194 ASSESSMENTS OR CALLS. PART II. 

3. This is the generally received opinion upon that subject, in 
tins country. In one case, 2 a plea to an action to recover calls on 
stock subscribed, that another person had agreed to take the stock, 
and thai the commissioners had counted this stock to such other 
person, is insufficient. The signature of the first subscriber should 
have been erased, and that of the other substituted, or something 
done to hold the latter liable. A subscriber for stock cannot sub- 
rogate another person to his obligation, without a substitution of 
his name upon the books of the company, or some other equivalent 
act recognized by the charter and by-laws of the company. 

4. But the principal difficulty, in regard to liability for calls, 
arises, where there have been transfers, and the name of the trans- 
feree not entered upon the books of the, company. For whenever 
the name of the vendee of shares is transferred to the register of 
shareholders, the cases all agree that the vendor is exonerated, 
(unless there is some express provision of law, by which the liabil- 
ity of the original subscriber still continues,) and the vendee 
becomes liable for future calls. 3 And the vendee having made 
such representation to the company, as to induce them to enter his 
name upon the register of shares, is estopped to deny the validity 
of the transfer. 4 And even where the party has represented him- 
self to the company as the owner of shares, and sent in scrip cer- 
tificates, which had been purchased by him, claiming to be registered 
as a proprietor, in respect thereof, and had received from the com- 
pany receipts therefor, with a notice that they would be exchanged 
* for sealed certificates on demand, he was held estopped to deny 
his liability for calls, although his name had not been entered upon 
the register of shareholders, or any memorial of transfer entered, 
as required by the act. 5 And where one has paid calls on shares, 
or attended meetings of the company, as the proprietor of shares, 
he is estopped to deny such membership. 6 

2 Ryder v. Alton & Sangamon It., 13 111. 51G. 

3 Sheffield & A^hton-under-Lyne & Man. R. v. Woodcock, 2 Railw. C. 522; 
s. c. 7 M. & W. 574 ; London & Grand J. R. v. Freeman, 2 Railw. C. 468; s. c. 
iJ M. & <;. 606; post, §54. 

4 Sheffield, Ash. & M. R. v. Woodcock, supra; London & Grand J. R. v. 
Freeman, supra. 

• ( beltenbam & Great Western Union R. v. Daniel, 2 Q. B. 281, and Same 
v. Medina. 2 Railw. < '. 728. And this being matter of estoppel in pais, may be 
used in evidence, in answer to the defence, without being pleaded. 

6 London & Grand J. R. v. Graham, 2 Railw. C. 870; s. c. 1 Q. B. 271. 

[*182] 



§ 53. PARTY LIABLE FOR CALLS. 195 

5. The holders of scrip certificates are properly entered as pro- 
prietors of shares before the passing of the act, although they have 
neither signed the parliamentary contract, nor been original sub- 
scribers ; and the register-book of shareholders, which is required 
by the statute to be kept in a prescribed form by the company, 
though irregularly kept, is prima facie evidence who are proprie- 
tors. 7 

6. The subscription for stock to be valid, must be made in con- 
formity with the act. So that where it was required to be made 
in such form as to bind the subscriber and his heirs, it was deemed 
requisite to be made under seal. 8 But such a provision is of no 
force in this country, simple contracts being of the same force as 
against heirs as specialties. 

7. If by the act of incorporation the shares are made assignable 
without restriction, and no express provision exists in regard to 
the party liable for calls, it would seem to follow, upon the general 
principles of the law of contract, that the proprietor of the share, 
for the time being, is liable for calls. And where certain formali- 
ties are requisite in the transfer of shares, and these have been 
complied with on the part of the transferee, or waived by the com- 
pany at his request, his liability to calls then attaches. 9 The liabil- 
ity of the original subscriber often continues, at the election of the 
* company, after that against the vendee attaches, but when the com- 
pany consent to accept the name of the transferee, that of the sub- 
scriber, or former proprietor, ceases. 10 

8. It seems to be regarded as settled law, that the best evidence 
of an original subscription to the capital stock of a railway company 
is the production of the original subscription book, or the book of 
records of the company on which the subscriptions were made. 11 

7 Birmingham, Boston & Th. J. R. v. Locke, 2 Railw. C. 867 ; s. c. 1 Q. B. 
256. - 

8 Croinford & High Peak R. v. Lacey, 3 Y. & Jer. 80. See ante, § 18, n. 2. 

9 Huddersfield Canal Co. v. Buckley, 7 T. R. 36 ; Aylesbury R. v. Mount, 5 
Scott, New R. 127 ; West Philadelphia Canal Co. v. Innes, 3 Whart. 198 ; Mann 
v. Currie, 2 Barb. Sup. Ct. 294; Hall v. U. S. Insurance Co., 5 Gill, 484; Bend 
v. Susquehannah Bridge Co., 6 Har. & J. 128; Angell & Ames, ch. 15, § 534. 

10 Post, § 54. 

11 Graff v. Pittsburgh & Steubenville Railw. Co., 31 Penn. St. 489. These 
subscriptions are, in fact, sometimes made upon different books, and then 
brought together upon one book, for the purpose of permanent preservation. 
But it would seem there should be evidence of the original subscription. 

[*183] 



196 ASSESSMENTS OR CALLS. PART II. 

9. But where the books are shown not to be in the proper place 
of deposit and custody, and no trace can be found of their present 
existence elsewhere, secondary evidence is admissible. And the 
court decide the question of loss, as a preliminary one to. the admis- 
sion of the secondary evidence. 11 

10. One who accepts a subscription made by another on his 
behalf, and pays the calls made thereon and receives a certificate of 
ownership, is responsible as a shareholder ; and it makes no differ- 
ence that his name does not appear upon the transfer books or the 
alphabetical list of stockholders as a transferee of stock. And one 
may become a shareholder without receiving a certificate of 
stock. 12 

11. It seems clear that railway companies may accept promis. 
sory notes in payment of subscriptions, and either negotiate or 
enforce them by suit. 13 The questions of pleading and evidence 
which may be raised in suits upon such notes are extensively dis- 
cussed in the case last cited. 

12. And where the subscription to railway stock is dependent 
upon the condition that no calls shall be made until work should 
be begun upon a particular section of the road, and the subscriber 
was induced to execute his note for the amount upon the rep- 
resentation of the agents of the company that work had been 
so commenced, when in fact it had not, the note cannot be en- 
forced. 14 

* 13. Subscriptions in the capacity of executor are to be regarded 
as distinct contracts from those in the personal capacity of the 
subscriber, so that the pendency of a suit for one will not abate or 
render vexatious a subsequent suit for the other. 15 

12 Burrr. Wilcox, 6 Bosw. 198. 

13 Goodrich v. Reynolds, 31 111. 490. See also Straus v. Eagle Ins. Co., 5 ' 
Ohio (N.S.), 59. 

14 Taylor v. Fletcher, 15 Ind. 80. 

15 New York City & Erie Railw. v. Patrick, 39 N. Y. 256. 
[*184] 



§54. 



RELEASE PROM LIABILITY FOR CALLS. 



197 



SECTION VIII. 



Release from liability for Calls. 



1, 2. Where the transfer of shares, without 
registry, will relieve the proprietor from 
calls. 

8. Where shares are forfeited, by express con- 
dition, subscriber no longer liable for calls. 



4. Dues cannot be enforced which accrue upon 
shares afier they were agreed to be can- 
celled. 



§ 54. 1. One may relieve himself of his liability for calls, by 
the transfer of his shares, and the substitution of the name of his 
assignee for his own upon the books of the company. But until 
this change upon the books of the company is made, they are at 
liberty to hold the original subscriber liable, if they so elect. 1 
But where the act of incorporation of a joint-stock company de- 
clared the shares should be vested in subscribers, their executors 
and assigns, with power to the subscribers to assign their shares, 
and a committee, to be appointed under the act, were authorized 
to make calls upon the proprietors of shares, it was held, that an 
original subscriber, who had transferred his shares, was no longer 
liable to calls. 2 

2. But this case is determined upon the express provisions of 
the charter of the company. The general rule, in England, at pres- 
ent, under their consolidated acts, is undoubtedly as stated above. 
And we see no good reason why it should not equally apply in this 
country. It would seem to be the only mode of securing the ulti- 
mate payment of calls. But some of the cases seem to assume, that 
the mere transfer of the shares in the market *does exonerate 
the subscriber from the payment of future calls. But this depends 
chiefly upon the provisions of particular charters, and the general 
laws of the state applicable to the subject. 3 

1 Ante, § 47, and cases there cited. In Everhart v. West Chester and Phila- 
delphia Railw., 28 Penn. St. 339, it is said that a transfer of stock, made for the 
purpose of exonerating a subscriber, without the consent of the company, is not 
a valid defence to an action against him for the purchase-money of the shares 
subscribed. Ante, § 32. 

2 Huddersfield Canal Company v. Buckley, 7 T. R. 3G, 42. 

3 In West Philadelphia Canal Co. v. Innes, 3 Whart. 198, it was held, that 
where the proprietor of shares of the plaintiff's stock transferred them upon the 

[*185] 



198 ASSESSMENTS OR CALLS. PART II. 

3. Where shares are allotted to one upon the express condition 
to be forfeited if a certain deposit is not paid in a certain time, and 
nothing more is done by the allottee, he is not liable for calls, 
although the company have entered his name upon the register of 
shares as a shareholder. 4 

4. Where the corporation resolve to release subscribers and to 
cancel their stock upon making certain payments, which are made ' 
and the stock cancelled, the company cannot enforce any dues on 
such shares which subsequently accrue, 5 since the former arrange- 
ment amounted to an accord and satisfaction of all claim on the 
part of the company. But if the company thereby materially 
lessened the remedy of creditors, they might possibly interfere. 

books of the company, after calls were made, but before they fell due, that the 
transferee was liable for such calls, although he had never received certificates, 
or given notice of the acceptance of the transfer. And it was held to make no 
difference, that the transfer was from an original subscriber, witliout considera- 
tion, and that the holder is nevertheless liable for unpaid calls. Mann v. Pentz, 
2 Sandf. Ch. 258; Hartford & New H. R. v. Boorman, 12 Conn. 530; Ayles- 
bury R. v. Mount, 5 Scott, New R. 127. 

• Waterford, Wexford, Wicklow & D. R. v. Pidcock, 18 Eng. L. & Eq. 517 ; 
8. c. 17 Jur. 26 ; s. c. 22 Law J. Rep. (N. S.) Exch. 146 ; s. c. 8 Exch. 279. 
Where the company accept a conveyance of shares to themselves, it will exoner- 
ate the owner from calls. But a sale to another company of all the effects of the 
company, will not release the shareholders from calls already made. Plate Glass 
Insurance Co. v. Sunley, 8 El. & Bl. 47. 

5 Miller v. Second Jefferson Building Association, 50 Penn. St. 32. And 
where the company accept another in the place of the original subscriber, the 
latter is wholly released. Haynes v. Palmer, 13 La. Ann. 240. 

[*185] 



55. 



DEFENCES TO ACTIONS FOR CALLS. 



199 



♦SECTION IX. 



Defences to actions for Calls. 



1. Informality in organization of company 

insufficient. 

2. Slight acquiescence estops the party in some 

cases. 

3. 4. Default in first payment insufficient. 

5. Company and subscriber may ivaive that 
condition. 



6. Contract for stock, to be paid in other 

stock. 

7, 8. Infancy. Statute of limitations and 

bankruptcy. 
9. One commissioner can give no valid as- 
surance as to the route. 
10. What representations matters of opinion. 



§ 55. 1. It is certainly not competent for a subscriber, when 
sued for calls, to go, in his defence, into every minute deviation 
from the express requirements of the charter, in the organization 
and proceedings of the company. Any member of the association, 
who intends to hold the company to the observance of those mat- 
ters which are merely formal, should be watchful, and interpose 
an effectual barrier to their further progress, at the earliest oppor- 
tunity, by mandamus, or injunction out of chancery, or other ap- 
propriate mode. 1 In cases of this kind often, where vast expense 
has been incurred, and important interests are at stake, courts 
will incline to conclude a member of the association, by the 
briefest acquiescence in any such immaterial irregularity, and 
often, in regard to those, which, if urged in season, might have 
been regarded as of more serious moment. In one case, 1 Tindal, 
C. J., says, in regard to the offer of a plea, that the money sued 
for, being the amount of a call, was intended for other purposes 
than those warranted by the act, " It seems to me it was never in- 
tended, nor ought it to be allowed, that so general a question as 
that should be litigated, in the question, whether a call is due 

1 The London & Brighton Railw. Co. v. Wilson, 6 Bing. N. C. 135. This 
case decides, that a plea, that the company had made deviations in their line, and 
that the money sued for was needed only in regard to such deviations, could not 
be entertained or regarded as a proper inquiry in an action for calls upon shares ; 
and so also of a plea, that fewer shares had been allotted than the act required. 
Walford, 279; Wight v. Shelby Railway, 16 B. Monr. 5. Nor can a share- 
holder defend against a suit to enforce his personal liability for the debts of the 
corporation, on the ground of defects in the organization of the company ; espe- 
cially where he has acted as a member, and his name so appeared, when the debt 
was contracted. Eaton v. Aspinwall, 19 N. Y. 119. 

[*186] 



200 ASSESSMENTS OR CALLS. PART II. 

from an individual subscriber." And it was held no sufficient 
ground of enjoining the directors from making calls, that the 
proceedings had been such as to amount to an abandonment of 
the enterprise, as it was possible that there were still legal obliga- 
tions * to answer. 2 And where the directors were authorized to 
limit the number of shares, but could not proceed with the road 
until two hundred and fifty shares were subscribed, and after that 
number were taken they resolved to close the books, it was held 
that this vote was equivalent to a vote fixing the number of shares, 
and that the company might therefore proceed to make and en- 
force calls, under the statute, and to collect the deficiency remain- 
ing, after the sale of forfeited stock. 3 

2. But where the statute prescribes the terms on which shares 
may be sold, it must be strictly followed, or the sale will be void, 
as where the prescribed notice is not given. 4 And it would seem, 
that the courts are reluctant to admit defences to actions for calls, 
upon the ground of informality in the proceedings of the com- 
pany, or even of alleged fraud, where there has been any consid- 
erable acquiescence on the part of the shareholder. 5 

3. It seems to have been held, in some cases, that a subscriber 
for stock may defend against an action for calls, upon the ground 
that he did not pay the amount required by the charter to be paid 
down at the time of subscription. 6 

4. But it is questionable how far one can be allowed to plead his 
own non-performance of a condition in discharge of his undertak- 
ing. And a different view seems to have obtained to some extent. 7 
It has been held the stockholder cannot object, that he has not 
complied with the charter, after having voted at the election of 
officers, or otherwise acted as a shareholder. 8 And so also where 

2 Logan v. Courtown, 5 Eng. L. & Eq. 171. 

3 Lexington & West Cambridge R. v. Chandler, 13 Met. 311. 
* Portland, Saco, & Portsmouth R. v. Graham, 11 Met. 1. 

5 Walford, 278, 279 ; Cromford & High P. R. v. Lacey, 3 Y. & Jer. 80 ; 
Mangles v. Grand Collier Doek Co., 10 Sim. 519 ; s. c. 2 Railw. C. 359 ; Thorpe 
r. Hughes, 3 Mylne & Cr. 742. 

6 Highland Turnp. Co. v. MeKean, 11 Johns. 98; Jenkins v. Union Turnp. 
Co., 1 ( laines's Cas. in Error, 86 ; Hibernia Turnpike Co. v. Henderson, 8 S. & 
II. 219 ; Charlotte & C. R. v. Blakely, 3 Strob. 245. 

: Henry v. The Vermilion R., 17 Ohio, 187. A similar rule is recognized in 
Louisiana, in the case of Vicks. S. & Texas Railw. v. MeKean, 12 La. Ann. 038. 
8 Clark v. Monongahela Nav. Co., 10 Watts, 36L Nor can a subscriber, 
[*187] 



§ 55. DEFENCES TO ACTIONS FOR CALLS. 201 

* the subscription is made, while defendant held the books of the 
company and acted as commissioner. 9 And payment before the 
books are closed, has been held sufficient to bind the subscriber. 10 
So also if the sum have been collected by suit. 11 And a prom- 
issory note has been held good payment, where the charter re- 
quired cash on the first instalment, at the time of subscription. 12 
And, by parity of reason, if the subscription binds the subscriber 
to pay for the stock taken, in conformity to the requisitions of the 
charter, which is the more generally received notion upon the sub- 
ject at present, we do not well comprehend why the subscription 
itself may not be regarded as effectual, to create the subscriber a 
stockholder, and as much a compliance with the condition to pay, 
as giving a promissory note. In either case, the company obtain 

after having transferred his stock to another, thus treating it as a valid security, 
object, in the trial of a suit against him on the original subscription, that the 
same was originally invalid, by reason of the non-payment of the sums requisite 
to give it validity, at the time of making the subscription. Everhart v. West 
Chester & Ph. Railw., 28 Penn. St. 339. 

And where commissioners were appointed, by an act of the legislature, and 
were authorized to receive subscriptions for the purpose of constructing a rail- 
way, no subscription to be valid unless five dollars was paid upon each share 
at the time of subscribing ; the act providing that when a certain number of 
shares shall have been so subscribed, and the same certified under the oath of the 
commissioners to the governor, he should issue letters-patent, incorporating 
the subscribers, and such as should thereafter subscribe, and this was done, and 
the company duly organized, it was held : 

That the act imposed no restriction upon the corporation after it was organ- 
ized, in regard to the payment of the five dollars at the time of subscription. 
That the condition, that subscriptions should not be valid till a certain amount 
was subscribed, was one which the parties had a right to annex to the contract 
of subscription, and as such, was valid, and the subscriptions could not be en- 
forced till the condition was performed. Philadelphia & West Chester Railw. 
v. Hickman, 28 Penn. St. 318. See also Black River & Utica Railw. Co. v. 
Clarke, 25 JSf. Y. 208; H. & P. Plank Road Co. v. Bryan, 6 Jones Law, 82; 
Piscataqua Ferry Co. v. Jones, 39 N. H. 491. 

9 Highland Turnp. Co. v. McKean, 11 Johns. 98; Grayble v. The York & 
Gettysburg Turnp. Co., 10 Serg. & Rawle, 269. So also if one act as a stock- 
holder in the organization of the company. Greenville & Columbia Railw. v. 
Woodsides, 5 Rich. 145. 

10 Klein v. Alton & Sangamon Railw., 13 111. 514. 

11 Hall v. Selma & Ten. Railw., 6 Alabama, 741. 

12 McRae v. Russell, 12 Ired. 224; Selma & Ten. Railw. v. Tipton, 5 Ala- 
bama, 787; Tracy v. Yates, 18 Barb. 152; Greenville & Columbia Railw. v. 
Woodsides, 5 Rich. 145 ; Mitchell v. Rome Railw., 17 Georgia, 574. 

[*188] 



202 ASSESSMENTS OR CALLS. PART II. 

but a right of action for the money, and if the party can be 
allowed to urge bis own default in defence, it is perhaps no com- 
pliance with the charter. But upon the ground that, so far as the 
subscriber is concerned, the company may waive this condition, 
upon what is equivalent to payment, it ought also to be equally 
1k1<1. that when * the subscriber has obtained such a waiver, for 
his own case, he shall be estopped to deny, that it was so far a 
compliance with the charter as to render the contract binding. 

5. And, upon the other hand, the company having consented to 
accept the subscriber's promise, instead of money, for the first in- 
stalment, cannot defeat his right to be regarded as a stockholder, 
on account of his not complying with a condition which they have 
expressly waived. It would seem, that under these circumstances, 
the immediate parties to the contract could not obtain any advan- 
tage over each other, by reason of the waiver, of strict performance 
of such condition, by mutual consent. But the objection must 
come properly from some other quarter, either the public, or the 
other shareholders. And possibly the cases decided upon this sub- 
ject do not justify any such relaxation, even between the parties to 
the immediate contract of subscription. Upon general principles, 
applicable to the subject, as educed from the law of contracts, we 
see no objection to the waiver of such a condition on behalf of the 
company. And if there be any objection upon other grounds, it is 
not for the benefit of the subscriber. 13 

13 It has been held that the misstatement of the length of the road, in the 
articles of association, if there be no fraud ; or the lease, or sale, of the fran- 
chises of the corporation to another company, which is void ; or the neglect to 
make the whole road, even without legislative sanction, will not exonerate a sub- 
scriber from paying calls. Troy & Rutland Railw. v. Kerr, 17 Barb. 581. But 
where a preliminary subscription is required, it must be absolute and not depend- 
ent upon conditions. Troy & Boston Railway v. Tibbits, 18 Barb. 297. But a 
condition that provides for interest, by way of dividends, to paying subscribers, 
until the full completion of the road, at the expense of subscribers who do not 
pay, or one that imposes a limitation upon the directors in calling in stock, is 
void as being against good policy. lb. 

In a case in Kentucky, Wight v. Selby Railw., 16 B. Monr. 5, it was held, 
that a subscription to stock, in a railway, is not rendered invalid by reason of 
the subscriber's failure to pay a small sum required by the charter to be paid 
upon each share when he subscribed. Simpson, J., " It was their duty to 
pay it, at the time the stock was subscribed, but they should not be allowed 
to take advantage of their own wrong, and release themselves from their whole 
obligation, by a failure to perforin part of it." This seems to us a sound view of 

[*189] 



§ 55. DEFENCES TO ACTIONS FOR CALLS. 203 

*6. An agreement to take stock and pay in the stock of a canal 
company, and an offer of the canal stock, will not make the party 
liable to pay money. 14 

the subject, and the only one which is consistent with the general principles of 
the law of contract, as applicable to the question. 

In a more recent case, S. subscribed for $500 of stock in a railway com- 
pany upon the understanding that the first ten per cent required by law to be 
paid in cash upon subscribing should be paid by his services in securing subscrip- 
tions and right of way. He subsequently presented an account against the com- 
pany for services, from which it appeared, that at the date of the subscription 
the company was indebted to him in an amount greater than the cash payment 
required, in which account he applied and credited $50 for ten per cent upon his 
subscription, and $50 for the first call made thereon. The account was allowed 
by the company, and the balance paid by S. Held, that this was a sufficient 
compliance with the statute in respect to the payment of the first ten per cent, 
and made the subscription obligatory upon S. Beach v. Smith. 30 N. Y. 116. 
See also Vicksburg, Sh. and Texas R. Co. v. McKean, 12 La. Ann. 638. 

In this case it is further held, to be no valid defence to a subscription to the 
stock of a railway, that it was delivered as an escrow to one of the commission- 
ers appointed to receive subscriptions. It should have been delivered to a third 
person, to become effectual as an escrow. Such subscribers are presumed to 
know the conditions of the charter under which the subscription is taken, and 
that if they desire to make their subscriptions conditional, it must be so expressed 
in the written terms of subscription, and that it is not competent to deliver a 
written contract, as an escrow, to the party himself. For, to admit oral evidence 
of such a condition, in the delivery of a written contract to the party benefited 
thereby, is a practical abandonment of the rule of evidence, that such testimony 
is incompetent to control a written contract. 

It has been held, that it is not competent for the commissioners to accept the 
check of a subscriber in payment of the amount required by the charter to be 
paid at the time of subscription, but that specie or its equivalent, must be 
demanded. Crocker v. Crane, 21 Wend. 211 ; s. c. 2 Am. Railw. C. 484; s. c. 
1 Redf. Am. Railw. Cases, 42. But this is at variance with the general course of 
decision, unless in regard to banks, where the charter expressly requires the 
payment to be in specie. King v. Elliott, 5 Sm. & M. 428. 

And where the charter of a railway company was made to depend upon the 
condition of the company expending $50,000 in two years, and completing the 
road in four years from the date of the grant, and the company having failed in 
the first part of the condition, but having obtained subscriptions to their stock to 
a large amount, and the defendant being one of the subscribers, the company 
having organized, and chosen directors, the defendant being one of them, the 
legislature revived and renewed the charter, and extended the time for the 
performance of such condition; and subsequently to this, a meeting of the stock- 
holders was called by the commissioners, in which the defendant took part, 



14 Swatara Railw. v. Brune, 6 Gill, 41. 

[*190] 



204 ASSESSMENTS OR CALLS. PART II. 

[nfancy is a good defence, if the person l>c an infant at the 
time of suit brought, or if he repudiate the subscription within a 
reasonable time after coming of full age. 15 By the general pro- 
visions of tlic English statute, all persons may become shareholders, 
there being no exception, in terms, in favor of infants; and if one 
be registered while an infant, and suffer his name to remain on the 
registry after he becomes of full age, he is liable for calls, whether 
made while he was an infant, or afterwards. 10 It seems to be 

additional directors being appointed, and at a meeting of the directors, the defend- 
ant being present, a call was made upon the subscriptions, it was held that this 
amounted to an acceptance of the renewal of the charter, and was such a recog- 
nition of tlie former organization of the company, as to amount to a sufficient 
organization under the new charter, and the defendant was held to be estopped 
by his conduct from denying the regularity of these proceedings, and to be lia- 
ble to pay calls on his stock. Danbury & Norwalk Railw. v. Wilson, 22 Conn- 
435. 

Where the general railway law, under which a company is organized, requires 
a payment often per cent upon each subscription before the filing of the articles 
of association with the secretary of state, it is sufficient, if the cash payments, by 
whomsoever made, amount in the aggregate to ten per cent upon $1,000 for 
ca<h mile of the road proposed to be constructed. Lake Ontario, A. & New 
York Railw. r. 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, § 
51, n. 1. 

15 North W. Railw. v. McMichael, 5 Exch. 114; Birkenhead Railw. v. Pit- 
cher, 5 Exch. 121; s. C..6 Railw. C. 622. The party should also deny having 
derived any advantage from the shares, or offer to restore them. N. W. Railw. 
v. McMichael, 5 Exch. 114; Leeds & T. Railw. v. Fearnley, 4 Exch. 26; Dub- 
lin & W. Railw. v. Black, 16 Eng. L. & Eq. 556; s. c. 8 Exch. 181. See also 
Deposit & G. Life Assur. Co. v. Ayscough, 6 E. & B. 761. 

16 Cork & Bandon Railw. v. Cazenove, 10 Q. B. 935. But it would seem 
that infants arc nut comprehended, by the general terms of the English statute. 
Birkenhead, &c. Railway v. Pilcher, supra. 

It has been said that an infant shareholder, or subscriber, in a railway com- 
pany, is in the same situation as in regard to real estate, or any other valuable 
property, which he may have purchased and received a conveyance of. If, upon 
coming of age, he disclaim the contract, and restore the thing, with all advan- 
tages arising from it, his liability is terminated, and he cannot be made liable for 
calls. Parke, B., in Birkenhead & C. Railw. v. Pilcher, 6 Railw. C. 625. The 
infant is not regarded as merely assuming an executory undertaking, which is 
void on the face of it, but in the nature of a purchaser of what is presumed to be 
valuable to him. 

W then fore, there is nothing but the simple fact of infancy pleaded to an 

[*191J 



§ 55. DEFENCES TO ACTIONS FOR CALLS. 205 

* 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. 17 

8. Bankruptcy is a good defence for calls made after the cer- 
tificate of bankruptcy issues, but to meet liabilities incurred 
before. 18 

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. 19 

10. And where the subscription is made upon condition of the 
road going in a particular route, the plaintiff may show that the 

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 v. London & N. Railw., 5 Exch. 855 ; s. c. 6 
Railw. C. 618 ; Birkenhead & C. Railw. v. Pilcher, 5 Exch. 121 ; s. 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 judg- 
ment 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. v. Fearnley, 5 Railw. C. 614; 
S. 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 ; s. c. 5 Railw. C. 633. 

Where shares were sold to an infant, and were duly transferred to him, on 
the declaration of the vendor that he was of full age, and the father of such infant, 
by a deed reciting that he had purchased on behalf of the son, and covenanting 
that he, on coining 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 Reav- 
eley, 1 De G & S. 550. See also Stikeman v. Dawson, 4 Railw. C. 585 ; s. c. 1 
De G. & S. 90. 

17 Cork & B. Railw. v. Goode, 13 C. B. 618; s. c. 24 Eng. L. & Eq. 245. 

18 Chappie's Case, 17 Eng. L. & Eq. 516 ; s. c. 5 De G. & S. 400. 

19 North Carolina Railw. v. Leach, 4 Jones Law, 340. 

[*192] 



206 



ASSESSMENTS OR CALLS. 



PART II. 



defendant owned land upon that route. And any representations 
of the agents taking the subscriptions, as to the ultimate value of 
the stock, will l»e regarded as matters of opinion merely upon 
which the subscriber had no right to rely. 20 



^SECTION X. 



Fundamental alteration of Charter. 



1 . Will < • as< the subscribers to stock. 

•_' /,' 'I way company cannot purchase sleam- 
boais. 

'■), 7. Majority may bind company to altera- 
tions, not fundamental. 

4. Directors cannot use the funds for purposes 

ganization. 

5. 9. But whert the legislature or the directors 

mah l< <!'il alterations in the charter, or 
the location of the road, it will not re- 
l as, subscribers. 

6. Bui 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 
perform' d. 

10. Express conditions must be performed. 

11. How far alterations may be made without 

releasing subscribers. 

12. // may be done where such power is re- 
served in the charter. 

13. 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. 



§ 5G. 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. 1 " Every owner of shares expects, and 
stipulates, with the other owners, as a corporate body, to pay them 
his proportion of the expenses, which a majority may please to 
incur, in the prosecution of the particular objects of the corporation. 
To make a valid change in this special contract, as in any other, 
the consent of both parties is indispensable." 

20 Vawter v. < >hio & Miss. R. Co., 14 Ind. 174. 

1 Union ! ks & (anal Co. v. Towne, 1 N. Hamp. 44. But where the origi- 
nal charter or preliminary contract provides for modifications, the subscribers 
are still bound by all such as come fairly within the power. Cork & Youghal 
Railway v. Patterson, 18 C. B. 414; s. c. 37 Eng. L. & Eq. 398 ; post, § 254, 
n. 6 ; Nixon v. Brownlow, 30 Law Times, 74; s. c. 3 H. & 1ST. 686. 

[*193] 



§ 56. FUNDAMENTAL ALTERATION OP CHARTER. 207 

2. Iii an important case 2 where it appeared that after calls fell 
* due, but before suit brought, the company, being incorporated for 
the purpose of building a railway, procured an additional special 
act, by which they were authorized to purchase steamboats : it was 
held, that a subscriber, not having assented to the alteration, was 
absolved from his obligation to pay calls. 

3. In a very elaborate opinion of Bennett, Chancellor, 3 upon this 
subject, the following propositions are established : — 

2 Hartford & New Haven Railw. v. Croswell, 5 Hill, 383. In Winter v. 
Muscogee Railw., 11 Ga. 438, the charter was so altered as to allow the road to 
stop short of its original terminus and pass in a different route, and subscribers 
to the stock were held thereby released, unless they assented to the alteration. 
But where one gave his note for the first instalment, and his stock was forfeited, 
for non-payment of calls, he is not relieved from payment of his note by a mate- 
rial alteration of the charter. Mitchell v. Rome Railw., 17 Ga. 574. But any 
modification of the charter which affects merely the detail of proceedings in 
making and enforcing calls will not release subscribers to the stock, when such 
modification has been accepted by the corporation. Illinois River Railw. Co. v. 
Beers. 27 Illinois, 185. 

3 Stevens v. Rutland & Burlington Railw., 29 Vt. 545. The opinion at length 
is a valuable commentary upon this important subject. In this opinion the learned 
chancellor maintains, — 

1. That by the implied contract, among the proprietors of all joint-stock 
undertakings, there is a tacit inhibition against applying the funds, for any pur- 
pose beside the general scope of the original enterprise, and that this applies to 
corporations equally with commercial partnerships. Natusch v. Irving, Gow on 
Part. App. 5G7. And that courts of equity will restrain a corporation from thus 
misapplying its funds by injunction. Ware v. Grand Junction Water Co., 2 
Russell & Mylne, 461. And that this will be done upon the application of those 
shareholders who dissent. And in some instances will restrain the company 
from applying to the legislature for an enlargement of their powers. Cunliff v. 
Manchester & Bolton Canal Co., 13 Eng. Cond. Ch. 131; 8. c. 2 Russell & 
My. 470, 475 ; Livingston v. Lynch, 4 Johns. Ch. 573. 

2. That if the proposed alteration is only auxiliary to the main design of the 
original organization, it will not be enjoined ; but if it be fundamental, it will 
be. That a variation in the course of a turnpike road has been regarded as a 
fundamental alteration in the charter, Middlesex Turnpike Co. v. Lock, 8 Mass. 

268, and, as such, to exonerate subscribers to the stock of the original company. 
[But Irvine v. The Turnpike Co., 2 Penn. 46G, holds it will not have that effect.] 
And that in such cases it will make no difference, that the subscriber was a di- 
rector in the company, and joined in the petition to the legislature for the altera- 
tion. Same v. Swan, 10 Mass. 384; Same v. Walker, 10 Mass. 390. 

The learned chancellor regarded the case of Revere v. The Boston Copper Co., 
which was cited by the counsel for the defendants, as making rather against his 
purpose. 15 Pick. 351, 363. The case of Hartford & New Haven Railw. v. 
Croswell, 5 Hill, 383, 385, is relied upon, as having defined a fundamental alter- 
am] 



208 ASSESSMENTS OR CALLS. PART II. 

*1. That a majority of a joint-stock company cannot use the 
oinl property except within the legitimate scope of their charter, 
* and if they attempt to do so equity will restrain them. 2. The 
shareholders are hound by such modifications of the charter as are 
not fundamental, but merely auxiliary to the main design. 3. If 
a majority of a railway company obtain an alteration of their char- 

ation of the charter of a corporation, in the language of C. J. Nelson, to be 
one " by which a new and different business is superadded to that originally 
contemplated." 

S. No one can be made a member of a joint-stock corporation without his 
consent. Ellis v. Marshall, 2 Mass. 269. Nor can he be compelled to remain a 
member of such company after its fundamental organization is altered by act of 
the legislature. But an act of the legislature allowing a navigation company to 
raise their dam above the point of the original charter limit, is in furtherance of 
the original grain, and will not exonerate the subscribers. Gray v. Monongahela 
Navigation Co., 2 Watts & Serg. 156. And an alteration in the number of 
votes, to be cast by stockholders, if it impair the obligation of the contract 
resulting from the grant, is void, and so cannot release the subscribers. Osborn 
v. Bank of United States, 9 Wheat. 788. But any statute which has the force to 
effect an alt. ration in the structure of the corporation, will release subscribers. 
Indiana & Ebensburg Tump. Co. v. Phillips, 2 Penn. 184. 

[. That statutes extending the term of a corporation, for closing up its busi- 
ness, on petition of the directors, have no proper bearing upon the question. 
Lincoln & K. Bank v. Richardson, 1 Greenl. 79; Foster v. The Essex Bank, 16 
Mass. 2 15. 

5. That it is no fatal objection to the application that it is made at the insti- 
gation of a rival enterprise. Colman v. Eastern Counties Railw., 10 Beav. 1. 
[But sec ante, § 20.] 

6. That an existing railway company will be restrained in equity from apply- 
ing its present funds to extend their line, or improve the navigation of a river 
connected with their line, or for obtaining an act of the legislature, authorizing 
them to do so. Munt v. Shrewsbury & Chester Railw., 13 Beav. 1 ; 8. c. 3 Eng. 
L. & Eq. Ill; Colman v. Eastern Co.'s Railw., 10 Beav. 1. 

7. That members of an existing company cannot be compelled to surrender 
their interest to the company, or to others, and retire, in order to enable them 
to change the character of the enterprise. Lord Eldon, Chancellor, in Natusch 
r. [rving, s/i/na. 

8. In favor of the importance and necessity of having this constant supervision 
exercised over joint-stock companies, in order to keep them within the range of 
their legitimate functions, the learned chancellor thus concludes: — 

" U here it is clearly shown that a corporation is about to exceed its powers, 
and to apply their funds or credit to some object beyond their authority, it would, 
if the purpose of the corporation was carried out, constitute a breach of trust; a 
court of equity cannot refuse to give relief by injunction. Agar v. The Regent's 
(anil Co., Cooper's Eq. 77; The River Dun Navigation Co. v. North Midland 
Railw. Co., 1 Railw. C. lo:j, 15-4; post, § 211. 
[*195, 196] 



§ 56. FUNDAMENTAL ALTERATION OP CHARTER. 209 

ter, which is fundamental, as to enable them to build an extension 
of their road, any shareholder who has not assented to the act, 
may restrain the company, by injunction, from applying the funds 
of the original organization to the extension. 

4. In a case before the Master of the Rolls, 4 it was held *that 
directors have no right to enter into or to pledge the funds of the 
company in support of any project not pointed out by their act, 
although such project may tend to increase the traffic upon the 
railway, and may be assented to by the majority of the shareholders, 
and the object of such project may not be against public policy. 
And that acquiescence by shareholders in a project for ever so long 
time, affords no presumption of its legality. And in a case in 
this country it is held, that the subscriber having acted as director 
of the corporation, and as such having participated in the proceed- 
ings to effect the alteration, will not make him liable for calls, upon 
his original subscription. 5 

5. But it is no defence to an action for calls, that the directors 
have altered the location of the road, if by the charter they had the 
discretion to do so. 6 And if the charter contain a provision that 
the legislature may alter or amend the same, the exercise of this 
power will not absolve the shareholders from their liability to pay 

4 Colman v. Eastern Counties Railw., 10 Beav. 1; s. c. 4 Railw. C. 513. 
See also Munt v. Shrewsbury & Chester Railw., 13 Beav. 1 ; s. c. 3 Eng. L. & 
Eq. 144; East Anglian Railw. v. Eastern Counties Railw., 11 C. B. 775; s. c. 
7 Eng. L. & Eq. 505 ; MacGregor v. Deal & Dover Railw., 18 Q. B. 618 ; s. c. 
16 Eng. L. & Eq. 180 ; Danbury & Norwalk Railw. v. Wilson, 22 Conn. 435 ; 
Mill-Dam Co. v. Dane, 30 Maine, 347 ; post, § 232 ; Winter v. Muscogee Railw., 
11 Ga. 438; Hamilton Plank Road v. Rice, 7 Barb. 157; Commonwealth v. 
Cullen, 1 Harris, 133 ; 3 Woodbury & Minot, 105. But the House of Lords held 
in Taylor v. C. & M. Railw., L. R. 4 Ho. Lds. 628, where an existing railway 
was empowered by act of parliament to enter on a new undertaking and to add 
the new undertaking to the old, and to treat the capital intended to be raised for 
the new undertaking as capital added to the old, that the company is thereby 
authorized (should it be unable successfully to raise the new capital, which is a 
matter not to be assumed) to apply to the new undertaking funds previously 
applicable to the old ; sed quaere ? 

5 Macedon Plank Road Co. v. Lapham, 18 Barb. 312. But see Greenville & 
Columbia Railw. v. Coleman, 5 Rich. 118. 

6 Colvin v. The Turnpike Co., 2 Carter, 511 ; id. 656. 

Nor is it a defence to an action for calls, that the name of the company, or the 
length and termini of the road, have been materially altered. Del. & Atlantic 
Railw. v. Lick, 3 Zab. 321. 

vol. i. 14 [*197J 



210 ASSESSMENTS OR CALLS. PART II. 

calls." Ami all subscriptions to stocks, and all contracts for the 
* purchase of stock, to be delivered at a future day, must be under- 
stood to be made subject to the exercise of all the legal powers of 
the directors and of the legislature, and an illegal exercise of power 
by either will, it has sometimes been said, bind no one, and should 
exonerate no one from his just obligations. 8 

6. But where subscriptions are made upon the express con- 
dition that the road shall go in a particular place, the perform- 
ance of such condition is commonly regarded as indispensable 
to the liability of the subscribers, the same as in other contracts. 9 

7 Northern Railw. v. Miller, 10 Barb. 260; Pacific Railw. v. Renshaw, 18 
Missouri, 210. And* where a subscription is made to the capital stock of a rail- 
way, while an act of the legislature exists, allowing the consolidation of such com- 
pany with another, the fact that such consolidation is subsequently made affords 
no ground for avoiding the subscription. Bish v. Johnson, 21 Ind. 29[). And 
if, from the articles of association of the company, it is obvious that consolida- 
tion with another company was one of the leading purposes of the incorporation, 
the fact of such consolidation, after the date of a subscription, will be no defence 
against its enforcement, even when the statute authorizing the consolidation is 
subsequent to the date of the subscription. Hanna v. Cin. & F. W. Railw., 20 
Ind. 30. The consolidation of two corporations does not effect the dissolution 
of either, so as to work the abatement of pending actions. Baltimore & Susq. 
Railw. v. Musselman, 2 Grant Cas. 348. But see McMahan v. Morrison, 16 Ind. 
172, contra. For many purposes the liabilities of the original companies remain, 
as before the consolidation. Central Railw. Co. v. Bunn, 3 Stockt. Ch. 336. It 
is here decided, that where the original company and a new company formed by 
the mortgagees after sale of the road bear the same name and have the same 
president, a suit to enforce a claim contracted before the sale, served upon the 
president, cannot go to judgment against the new company, nor will a court of 
equity allow a general judgment, at law, to be taken. The plaintiff must elect 
to take judgment, in terms, against the original company. This seems to be a 
very judicious course, but one for which courts of equity will afford no precedent. 
The order should have been made, most obviously, in the court of law. 

8 Irvin v. Turnpike Co., 2 Penn. 466 ; Conn. & Pas. Rivers Railw. v. Bailey, 
24 Vt. 479; Faulkner v. Ilebard, 26 Vt. 452 ; s. c. 2 Redf. Am. Railw. Cases, 

Fry's Exr. v. Lex. & Big S. Railw., 2 Met. (Ivy.) 314. 
; ' See cases under notes 2 & 3, supra; and also Railsback v. Liberty & 
Abington Turnp. Co., 2 Carter (Ind.), 656. And in Kenosha, Rockford, and 
Rock Island R. Co. v. Marsh, 17 Wis. 13, it was held, that where the legisla- 
ture had the general power to repeal or alter acts of incorporation, and accord- 
ingly allowed an existing company, chartered to carry a railway over a given 
line, and whose subscriptions had been taken with that view, to change their 
route very essentially , the subscribers were thereby released from their obliga- 
tion to pay calls. 

[*198] 



§ 56. FUNDAMENTAL ALTERATION OP CHARTER. 211 

But an alteration in the line of the road, which does not affect 
the interest of the subscriber, will not absolve him from his sub- 
scription. 10 And when the subscription was made upon condition 
that the road be located upon a given line, and providing that such 
location should be sufficiently evinced by an order of the board of 
directors accepting such subscription upon the condition named, it 
was held sufficient to bind the subscriber, that the road had been 
in fact located and built upon the line designated, and that this 
was known to him, although there had been no formal action of 
the board accepting the subscription. 11 

7. And an alteration in the charter, which consists only of an 
increase of the corporate powers, or of a different organization of 
the corporate body, leaving it with lawful power to execute, what 
* may be regarded as substantially the original object of its crea- 
tion, will not exonerate subscribers to the stock of the company. 12 
So too where the general laws of the state provide that all acts 
of incorporation may be altered, amended, or repealed by the 
legislature, it is no defence to a subscription for stock, that 
subsequently the legislature increased the liability of the stock- 
holders. 13 

8. And notwithstanding much apparent conflict in the cases 
upon this subject, it will be found to be the general result of the 
best considered cases, that the alteration, either in the charter of 

10 Banet v. Alton & Sangamon Railw., 13 111. 504; Danbury & Norwalk 
Railw. v. Wilson, 22 Conn. 435. 

11 Moore v. New Albany & Salem Railw. Co., 15 Ind. 78; Warner v. Callen- 
der, 20 Ohio (N.S.), 190. 

12 Pacific Railw. v. Hughs, 22 Missouri, 291 ; Peoria & Oquawka Railw. v. 
Elting, 17 111. 429. In Everhart v. West Chester and Philadelphia Railw., 
28 Penn. St. 339, the subscribers for stock were held not released by such a 
change in the charter of the company as empowered them to issue preferred stock, 
to enable them to raise the means of making and equipping the road in the man- 
ner originally contemplated. It was considered that such an amendment of the 
charter was merely ancillary to the main design, and might be accepted by a 
majority of the stockholders and thus become binding upon all ; that it is im- 
plied in every subscription for the stock in a railway company, that they may 
resort to the ordinary and legal means for accomplishing the object proposed by 
the charter. It is here said, that an alteration of the charter, which superadds an 
entirely new enterprise, will release subscriptions to the stock. See also Fry's 
Exr. v. Lex. & Big S. Railw., 2 Met. (Ky.) 314. 

13 South Bay Meadow Dam Co. v. Gray, 30 Maine, 547 ; Buffalo & New Y. 
City Railw. v. Dudley, 14 N. Y. 336. But see ante, n. 9. 

[*199] 



212 ASSESSMENTS OR CALLS. PART II. 

Ilir company, or the line of the road, to exonerate the subscriber 
for Btock, must be one which removes the prevailing motive for 
the subscription, or else materially and fundamentally alters the 
responsibilities and duties of the company, and in a manner not 
provided for, or contemplated, either in the charter itself or the 
general laws of the state. 14 

* 9. Where a town or city stipulate with a railway company for 
adequate consideration to terminate their route, at a point bene- 
ficial to such town or city, this will not preclude the company from 
forming connections with other routes, by land or water, at the 
same point. 15 

10. And where the plaintiff made it a condition of his subscrip- 
tion to the capital stock of a railway, that it should pass through 
some portion of the counties of Monroe and Ontario, and the road 

14 But in tbe Greenville & Columbia Railvv. v. Coleman, 5 Rich. 118, where 
the charter gave the stockholders the right to designate the route they preferred, 
and if any stockholder was dissatisfied with the route selected, the right to with- 
draw his subscription, "provided, at the time of subscribing, he designated the 
route he desires to be selected," and one subscribed without designating the 
route he preferred, under an assurance from one, who was soliciting subscrip- 
tions, that he might pay $5 on $100, and be free from liability as to the residue, 
it was held, that he was liable, as a stockholder, without the right to withdraw. 
But some of the American cases do not seem to recognize any alteration in the 
route of the road, even one which renders it practically a different enterprise, as 
a defence to subscriptions for stock. Central Plank Road Co. v. Clemens, 16 
Mo. 359. But in Champion v. Memphis & Charleston R. Co., 35 Miss. 692, it 
was decided, that when the route on which a railroad is to be located/ is pre- 
scribed by its charter, a subsequent material deviation from the route therein 
prescribed will release the stockholders who had previously subscribed, and who 
did not consent to the deviation. 

It is not every deviation in the location of a railroad from the route prescribed 
in the charter which will release non-assenting stockholders, and it is impracti- 
cable to lav down any general rule to serve as a guide in determining the ques- 
tion of the materiality of the deviation. Each case must be determined by its 
own particular circumstances; and hence, where a stockholder resists the collec- 
tion of his subscription for stock, upon the ground of a deviation from the route 
prescribed by the charter, he ought to set out in his plea such deviation clearly 
and distinctly, so that its materiality can be determined. A plea by a stock- 
holder in a railway company, setting up a deviation from the route prescribed by 
the charter as a defence to a suit, to enforce his subscription for stock, which 
describes the deviation as follows : " That said road was not constructed in accord- 
ance witli the requirements of the charter," is bad for uncertainty. 

16 Baltimore & Ohio llailw. r. Wheeling, 13 Grattan, 40. 
[*200] 



§ 56. FUNDAMENTAL ALTERATION OP CHARTER. 213 

was so located as not to touch either of those counties, it was held, 
that he was released from his subscription. 16 

16 Buffalo, Corning & N. Y. Railw. v. Pottle, 23 Barb. 21. And where a 
party, who was not a stockholder, executed a promissory note to a railway com- 
pany, promising to pay them $200, in consideration that they would locate their 
depot in block 91, in Indianapolis, to be paid when the company should com- 
mence the construction of their depot, and the line of the company's road ex- 
tended from Terre Haute, through Indianapolis, to Richmond, a distance of 
150 miles, at the date of the note, but by subsequent act of the legislature, was 
divided, at Indianapolis, and the portion between Indianapolis and Richmond, 
being about one-half, was given to another company, which built their depot in 
another portion of Indianapolis, the former company only constructing a freight 
depot, on block 94, it was Held, that by the alteration of the charter of the 
Terre Haute and Richmond Railway Company, and the acceptance thereof by 
the company, the company became substantially a different corporation, and were 
unable to perforin the condition upon which the note was to become payable, and 
that the circumstance, that the depot located on block 94 was of some advantage 
to the plaintiff in error, was of no importance. 

But an amalgamation of two railway companies, effected subsequent to the 
date of a subscription to the stock of one of them, but which had been authorized 
by an act of the legislature prior to that time, will not release the subscription. 
And it is of no importance, that the consolidation took place without the 
knowledge of the subscriber. Sparrow v. Evansville & Crawfordsville Railway, 
7 Porter (Ind.), 369. 

The subscription of stock to an amalgamated company is a sufficient consent 
to the amalgamation. And such consent by the stockholders seems to be re- 
garded as requisite to the power of the legislature to amalgamate existing rail- 
way companies. Fisher v. Evansville & Crawfordsville Railway, 7 Porter (Ind.), 
407. Where one of the stockholders of a railway company agreed with the com- 
pany to subscribe and take a given number of shares in the capital stock, if the 
company would adopt a particular route, there being two under consideration, 
and the company in consequence adopted that route, it was held that the party 
was bound by his contract to take and pay for the number of shares he had thus 
agreed to subscribe. Spartanburgh & Union Railw. v. De Graffenreid, 12 Rich. 
675. But where in such a case, by a subsequent amendment of the charter, the 
route in consideration of which the subscription was made was abandoned, and 
another adopted, the subscriptions were held to be thereby avoided. Hester v. 
Memphis & Charleston Railw., 32 Miss. 378. But one who makes an absolute 
subscription to a railway, cannot avoid it by proving a parol condition upon 
which it was made, not complied with, unless he show that fraud also existed in 
the contract. North Carolina Railw. v. Leach, 4 Jones Law, 310. This case is 
referred to ante, § 55, pi. 9, and one important point of the decision there given. 
It was also here held that if the party have any remedy in such case by mandamus 
or injunction, where the directors locate the road differently liom the require- 
ments of the charter, and omit to report to it at once, he is bound by such acqui- 
escence. 

[*200] 



214 ASSESSMENTS OR CALLS. PART II. 

* 11. Where the articles of incorporation of a railway company 
restrict calls upon subscriptions to twenty per cent in one year, 
and ten per cent at one time, and also provide that said articles 
may at any time be changed by the unanimous consent of the 
board of directors, it is competent for the board to so change the 
mode of making calls, as to require them to be made not exceed- 
ing five per cent a month, and such change in the articles as to 
the mode of making calls will be binding upon previous subscrip- 
tions. 17 

12. And in a somewhat recent case 18 it was held, where the 
Legislature had reserved, in the charter of a corporation, the power 
to modify or repeal the same, that members of the corporation hold 
their shares subject to such liability as may attach in consequence 
* of the extension or renewal of the charter, although obtained with- 
out their consent. 

13. And it was also here considered, that the estate of an in- 
testate shareholder succeeded to the personal responsibility of the 
deceased in the corporation, and this will render the administrator 
liable for the debts of the corporation contracted after the decease 
of the intestate, to the same extent the deceased would have been 
if still living ; and that the stockholder or his personal representa- 
tive can only relieve himself from responsibility by a bona fide and 
absolute sale of the stock. 

14. A railway company do not release money-subscriptions by 
accepting large land subscriptions at a subsequent date. 19 

15. And a railway corporation, chartered in one state to con- 
struct and operate a road within that state, cannot emigrate into 
another state, even where that state had given legislative permis- 
sion to act therein. And after having transferred its business 
office into another state, where it performed all its corporate func- 
tions, it is not competent for it to make valid calls in such other 
state upon subscriptions taken in the place of its creation. 20 

17 Burlington & Mo. River Railw. v. White, 5 Clarke, 409. 

,h Bailey v. Hollister, 26 N. Y. 112. But it is here suggested, that after the 
charter of a corporation has expired, there is no power to revive it, by any 
agen.y less than the consent of all the corporators. 

18 Horoaday r. Ind. & 111. Central Railw., 9 Ind. 263. 

2 ' Aspinwall v. Ohio & Mississippi Railw. Co., 20 Ind. 492. 
[*201, 202] 



§ 57. 



SUBSCRIPTIONS BEFORE DATE OF CHARTER. 



215 



SECTION XT. 



Subscriptions before date of Charter. 



1. Subscriptions before, date of charter good. 

2. Subscriptions upon condition not performed, 
n. 4. When the condition is performed. 

3. Subscription by a stranger to induce com- 

pany to build station. 

4. Subscription on condition, an offer merely. 



5. Conditional subscription takes effect upon 

performance of the condition. 

6. How far commissioners may annex con- 

ditions to subscription. 

7. Such conditions void, if fraudulent as to 

company. 



§ 57. 1. It has been held that one who subscribes before the act 
of incorporation is obtained, and, by parity of reason, before the 
organization of the company, although after the act of incorpora- 
tion, is holden to the corporation, to pay the amount of his sub- 
scription. And a suit is sustainable, in their name, upon any 
securities given in the name of the association, or of the commis- 
sioners for organizing the company, and equally upon the sub- 
scription * itself in the name of the corporation. 1 And it is not 
competent for one, who is a subscriber to such an enterprise, to 
withdraw his name while the act of incorporation is going through 
the legislature. 2 

2. But an informal subscription, which is never carried through 
the steps necessary to constitute the subscribers members of the 

1 Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93 ; Selma & Term. Railw. Co. 
v. Tipton, 5 Alabama, 786 ; Vermont Central Railw. Co. v. Clayes, 21 Vt. 30 ; 
Delaware & Atlantic Railw. v. Irick, 3 Zab. 321. In the last case, the very point 
ruled, is, whether the company were proper plaintiffs, in an action to enforce 
calls against one who signed the commissioners 1 paper for shares before the or- 
ganization. Held, the commissioners were to be regarded as agents of the com- 
pany. See also Troy & Boston Railw. v. Tibbits, 18 Barb. 297 ; Stanton v. 
Wilson, 2 Hill, 153; Troy & Boston Railw. v. Warren, 18 Barb. 310; Hamilton 
Plank Road Co. v. Rice, 7 Barb. 157 ; Stewart v. Hamilton College, 2 Denio, 
417 ; Danbury & N. Railw. v. Wilson, 22 Conn. 435. So also a subscription to 
the capital stock of a railway, made on the solicitation of one who was not a 
commissioner, but who felt an interest in the road, and volunteered to take up 
subscriptions to its stock, was held valid in one case. Railway Company v. 
Rodrigues, 10 Rich. (S. C.) 278. An agreement to take a certain number of 
shares of the stock of a railway company made by signing a paper with others, 
in advance of obtaining the act, is equivalent to a subscription for shares after 
the act is obtained. Burke v. Lechmere, L. R. 6 Q. B. 297. 

2 Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93; Brownlee v. Ohio, Ind. & 
111. Railw. Co., 18 Ind. 68. 

[*203] 



21(3 ASSESSMENTS OR CALLS. PART II. 

company, lias been held inoperative, as no compliance with the 
act. 8 And a subscription, upon condition that the road is built 
through certain specified localities, the company at the time not 
lining to build the road through those places, will not, it has 
been held, make the subscriber liable to an action for calls, even 
if the condition be ultimately performed by the company. 4 But 

1 Troy & Boston Railw. r. Tibbits, 18 Barb. 298. 

4 Macedon & Bristol Plank R. v. Lapham, 18 Barb. 313. In this case it 
seems to have been decided that such a subscription is not good, as a subscrip- 
tion for stuck, not upon the ground mainly that it was conditional and so against 
publif policy, or from want of mutuality, but upon the ground of an extension of 
the road and an increase of the capital stock. But see also Utica & Sch. Railw. 
v. Brinckerhoff, 21 Wend. 139, where such a decision is made. But the current 
of authority, both English and American, is almost exclusively in a counter 
direction. It is impossible, upon any fair ground of construction, to consider 
such a subscription, where the road is located in a given line, in faith, and in 
fulfilment of the condition, as a mere offer, unaccepted. It is a proffer, a propo- 
sal, accepted, and as much binding as any other possible consideration. But if 
it were to be regarded as a mere offer, standing open, upon every principle of 
reason and law, when accepted, according to its terms, it is binding as a contract 
and no longer revocable, and the only case of much weight, which ever attempted 
to maintain the opposite view, that of Cooke v. Oxley, 3 T. R. 653, has been 
regarded as overruled upon that point for many years. See L'Amoreux v. 
Gould, 3 Selden, 349 ; Conn. & Passumpsic Rivers Railw. v. Bailey, 24 Vt. 478. 
Mr. Benjamin, in his book on Sales, pp. 47-50, attempts to uphold the case of 
Cooke v. Oxley, on the ground that it has been constantly misunderstood by the 
American courts and text-writers. That may be so. But we fail to perceive 
any sensible ground upon which that case can be upheld to the full extent. If a 
continuing offer is made without consideration, no doubt it may be withdrawn at 
any time before it is accepted ; and after the withdrawal is made known to the 
other party he is no longer afc liberty to act, upon it. But until that event, or the 
expiration of the offer by lapse of time, he is at liberty to accept it; and if he do 
so, a valid contract is thereby created between the parties, upon the basis of the 
offer. This view is placed upon very satisfactory grounds by Mr. Justice Nelson, 
in Taylor v. Merchants 1 Fire Ins. Co., 9 How. (U. S.), 390. There is, unques- 
tionably, this difference between a standing offer made upon consideration and one 
made gratuitously ; that in the former case it cannot be withdrawn, and in the latter 
it may lie. But even in the case of a gratuitous offer, the withdrawal does not 
become effective until notice of such withdrawal reaches the adverse party. If 
the latter, before such notice, do that, which by the terms of the offer amounts 
to unconditional acceptance, the contract is complete, and both parties irrevoca- 
bly bound by it. 

In the case of Boston & Maine Railw. v. Bartlett, 3 Cush. 224, the subject is 
very justly illustrated by Mr. Justice Fletcher: " In the present case, though the 
writing Bigned by the defendants was but an offer, and an offer which might be 
revoked, vet, while it remained in force and unrevoked, it was a continuing offer 

[*203] 



§ 57. SUBSCRIPTIONS BEFORE DATE OF CHARTER. 217 

*one might perhaps raise some question, whether, upon general 
principles, such a subscription ought not to be binding, as a 
* standing offer accepted and acted upon by the company, which is 
sufficient consideration for the promise. 5 

during the time limited for acceptance; and, during the whole of that time, it 
was an offer every instant, but as soon as it was accepted it ceased to be an offer 
merely, and then ripened into a contract. The counsel for the defendants is 
most surely in the right, in saying that the writing when made was without con- 
sideration, and did not, therefore, form a contract. It was then but an offer to 
contract ; and the parties making the offer most undoubtedly might have with- 
drawn it at any time before acceptance. 

" But when the offer was accepted, the minds of the parties met, and the con- 
tract was complete. There was then the meeting of the minds of the parties, 
which constitutes and is the definition of a contract. The acceptance by the 
plaintiffs constituted a sufficient legal consideration for the engagement on the 
part of the defendants. There was then nothing wanting in order to perfect a 
t valid contract on the part of the defendants. It was precisely as if the parties 
had met at the time of the acceptance, and the offer had then been made and 
accepted, and the bargain completed at once. 

" A different doctrine, however, prevails in France, and Scotland, and Hol- 
land. It is there held, that whenever an offer is made, granting to a party a 
certain time within which he is to be entitled to decide whether he will accept 
it or not, the party making such offer is not at liberty to withdraw it before the 
lapse of the appointed time. There are certainly very strong reasons in support 
of this doctrine. Highly respectable authors regard it as inconsistent with the 
plain principles of equity, that a person who has been induced to rely on such an 
engagement should have no remedy in case of disappointment. But, whether 
wisely and equitably or not, the common law unyieldingly insists upon a consid- 
eration, or a paper with a seal attached. 

" The authorities, both English and American, in support of this view of the 
subject, are very numerous and decisive ; but it is not deemed to be needful or 
expedient to refer particularly to them, as they are collected and commented on 
in several reports as well as in the text-books. The case of Cooke v. Oxley, 3 
T. R. 653, in which a different doctrine was held, has occasioned considerable 
discussion, and, in one or two instances, has probably influenced the decision. 
That case has been supposed to be inaccurately reported, and that in fact there 
was in that case no acceptance. But, however that may be, if the case has not 
been directly overruled, it has certainly in later cases been entirely disregarded, 
and cannot now be considered as of any authority. 

" As, therefore, in the present case, the bill sets out a proposal in writing, 
and an acceptance and an offer to perform, on the part of the plaintiffs, within 
the time limited, and while the offer was in full force, all which is admitted by 
the demurrer, so that a valid contract in writing is shown to exist, the demurrer 
must be overruled." 

6 See this subject more fully discussed in §§ 51, 55, ante. See, also, Johnson 
v. Wabash & M. V. Railw., 16 Ind. 389. 

[*204, 205] 



218 ASSESSMENTS OR CALLS. PART II. 

3. And even where a mere stranger subscribes to a railway 
company, with others, in order to induce the company to build a 
Station-house and improve the roads to it, and to aid the company 
in such work . and the company perform the condition on their 
part, the subscription is upon sufficient consideration, and may be 
en forced against the subscribers. 6 

I. And a subscription to the stock of a railway company, con- 
ditioned to be void unless the company would accept the convey- 
ance of a specific tract of land at a given price, is a mere offer to 
invest the land in shares, and until accepted by the company is of 
no validity. 7 

5. A subscription upon the performance of a condition becomes 
absolute upon such performance. The subscription takes effect 
from that time ; the first instalment required to be paid at the time 
of subscription then becomes due and payable, and the subscriber 
liable to assessment for the remainder. 8 

6. There is another case 9 wherein propositions are declared 
which seem at variance with the general rule, that subscriptions 
dependent upon conditions are not effectual until such conditions 
are complied with. It was here held, that commissioners ap- 
pointed to receive subscriptions to the stock of a projected railway 
company are so far limited in their authority that they have no 
power to attach conditions to subscriptions received by them, and 
where they do so the act is not binding upon the company, and 
that after the organization of the corporation, the directors have 
no power to assume the subscriptions upon the conditions named, 
i. e. that the company assume the payment of the subscriptions 
and release the subscribers. 

7. But we apprehend that if this decision is maintainable upon 
* recognized rules of law, it must be because the whole scheme of 
such a subscription evidences a covert fraud upon the contem- 
plated corporation, and that the act of the directors is but one step 
in fulfilment of the scheme, as the case shows the action of the 
first board of directors was immediately repealed upon the coming 
in of a new board, and the court held it competent to show what 

s Kennedy v. Colton, 28 Barb. 59. 
7 Junction Railway Company v. Reeve, 15 Ind. 236. 
5 Ashtabula & New L. Railw. v. Smith, 15 Ohio (N. S.), 328. 
Bedford Railw. Co. v. Bowser, 48 Penn. St. 29. See, also, Lowe v. E. & 
K. Railw., 1 Head, 659. 

[*206] 



58. 



SUBSCRIPTION UPON SPECIAL TERMS. 



219 



took place at the time of passing the first resolutions with a view 
to establish the fraudulent purpose. 



SECTION XII. 



Subscription upon Special Terms. 



1. Subscriptions not payable in money. 

2. Subscriptions at a discount, not binding, 
n. 2. Contracts to release subscriptions not 

binding. 

3. 4. Subscriptions before and after organiza- 

tion. Preside?it may accept conditional 
subscriptions. 

5. Recent case in Alabama. 

6. True rule to be deduced from all the cases. 



7. Important case on par values. 

8. Difficulty of maintaining them. 

9. Sad effects of opposite course on com- 

mercial fair dealing. 

10. Can a corporation stipulate to pay in- 

terest on stocks ? 

11. Such a certificate of stock is not thereby 

rendered inoperative for legitimate pur- 
poses. 



§ 58. 1. It is well settled, that a railway, or other joint-stock 
company, cannot receive subscriptions to their stock, payable at 
less sums, or in other commodities, than that which is demanded 
of other subscribers. Hence subscriptions, payable in store-pay, 
or otherwise than in money, will be held a fraud upon the other 
subscribers, and payment enforced in money. 1 

2. So too in a case where subscriptions to stock of such a com- 
pany * are, by the agents of the company, agreed to be received at 
a discount, below the par value of the shares, it will be regarded 
as a fraud upon the other shareholders, and not binding upon the 
company. 2 

1 Henry v. Vermilion & Ashland Railw. Co., 17 Ohio, 187. But in one 
case, Philadelphia & West Chester Railw. v. Hickman, 28 Penn. St. 318, it 
is said the company may compromise subscriptions for stock, which are doubtful, 
upon receiving part payment ; or may receive payment in labor or materials, or 
in damages which the company is liable to pay, or in any other liability of the 
corporation. The certificates of stock in this case were issued to the contractors, 
in part payment of work done by them upon the road ; to others, in part pay- 
ment for a locomotive, for sleepers, for land-damages, and for cars. We do not 
understand how there can be any valid objection to receiving payment for sub- 
scriptions to the capital stock of a railway company in this mode, if the shares, 
so disposed of, are intended to be reckoned at their fair cash value, at the time 
of the contract being entered into. It is certain, contracts of this kind have been 
very generally recognized by the courts as valid, and no fraud upon the other 
subscribers. 

2 Mann v. Cooke, 20 Conn. 178. In this case the defendant subscribed for 

[*207] 



220 ASSESSMENTS OR CALLS. PART II. 

* 3. In a case in Pennsylvania, 3 it is said that subscriptions 
made to the capital stock of a corporation before its organization, 

fortv shares in the capital stock of a railway company, upon condition that all 
future calls should be paid, as required, or the shares should become the prop- 
erty of the company. He thereupon received certificates of ownership of the 
forty shares, the special terms of his subscription not being known to the other 
Bubsci ibers. 

Si niie time afterwards, the company being largely indebted, and insolvent, and 
the greater part of the instalments on its stock being unpaid, the president made 
an arrangement with defendant that he should immediately pay the instalments 
on twenty shares of his stock, in full, and he was thereupon to be discharged from 
all liability on the other twenty shares. Defendant complied with these terms, 
and the money paid went for the benefit of the company. 

The plaintiff was appointed receiver of the effects of the company, and brought 
this bill in equity to obtain payment of the balance due upon the other twenty 
shares, and it was held : — 

1. That the subscription for the stock was in legal effect the same as an ordi- 
nary subscription for stock, without condition. 

2. That the arrangement made with the president of the company was void, 
as a fraud upon stockholders and creditors. 

3. That the company, being created for public purposes, could not receive 
subscriptions under a private arrangement at less than the par value of the stock, 
as this would deprive the company of so much of its available means, and thus 
operate as a fraud upon all parties interested. 

But where one paid for stock in a railway company, under a secret agreement 
with the commissioner of contracts that he might receive land of the company 
at a future day, and pay in the stock certificate, and the company declined to 
ratify the contract, it was held the subscriber was released from his portion of 
the contract, and might recover the money he paid for the stock of the com- 
pany. Weeden v. Lake Erie & Mad River Railway, 1-4 Ohio, 563. But in the 
case of the Cincinnati, Indiana, & Chicago Railw. v. Clarkson, 7 Ind. 595, it 
seems to be considered, that the company are bound by a contract to compen- 
sate a solicitor of subscriptions to the capital stock, payable in land, but no ques- 
tion is made in regard to the validity of the subscriptions. The solicitors were 
ordered by the directors to accept such subscriptions, and were to have two per 
cent on all which were accepted by the company, and the contract was held 
binding upon the company. An agreement by a railway company, that a sub- 
scriber for stock may pay the full amount, or any part of his subscription, and 
receive "interest thereon until the road goes into operation" does not oblige 
the company to pay interest before the road goes into operation. Waterman v. 
Troy & Greenfield Railway, 8 Gray, 433. See, also, Buffalo & N. Y. City Railw. 
v. Dudley, 1-4 N. Y. 336 ; ante, § 54, pi. 4. An agreement to pay interest upon 
stock " as soon as paid," means fully paid. Miller v. Pittsburg & Connellsville 
Railw., 40 Penn. St. 237. 

3 Pittsburg & Connellsville Railw. v. Stewart, 41 Penn. St. 54. The question 
of the presumptive effect of the conduct of a subscriber after the organization of 
the company, in attending and taking part in the meetings of the company 
[*208] 



§ 58. SUBSCRIPTION UPON SPECIAL TERMS. 221 

must always be payable in money only. But after the organiza- 
tion, the company may stipulate with the subscriber for pay- 
ment in any other mode, and can only enforce the contract 
according to its terms ; and the act of the president of the com- 
pany in accepting conditional subscriptions is binding upon the 
company. 

4. It is also held in the same case, 3 that the fact the subscriber 
makes part payment in money before call, will not estop him from 
setting up the special contract in defence of an after call. 

5. But in a somewhat recent case in Alabama, 4 it was held that 
a subscription to the capital stock of a railway company in ex- 
press terms made payable in work, in grading the line, to be 
taken at the public or private letting and performed to the accept- 
ance of the company's engineer, could not be enforced against the 
subscriber until he had had reasonable opportunity to perform the 
contract in the manner specified by its terms. But if after that, 
the defendant failed on his part to perform it, he was liable to pay 
the amount in money. It is here said that the subscriber must 
take notice of the published lettings of the work. 

6. The cases may seem conflicting upon this point ; but the 
true principle seems to be, that the corporation can only enforce 
the contract of subscription according to its terms, and of this the 
subscriber cannot complain, or resist successfully the enforcement 
of his subscription in that mode. But so far as the creditors of the 
eompanj^ are interested in the matter, they may hold the directors 
responsible for having received the amount of the capital stock in 
money. And as to the duty of the directors, they cannot, in 
strictness and fairness, receive subscriptions payable in any thing 
but money ; nor can they launch the company until the whole 
capital stock is subscribed in money. And any fraud or evasion 
in this particular will render the directors responsible for the debts 
of the .company, as in equity and fair dealing it should. 

* 7. There is a very sensible case 5 in North Carolina bearing 

upon the proper construction of any special contract with the company, is here 
considerably discussed. 

4 Eppes v. M. G. & T. Railw., 35 Alabama, 33; H. & P. Plank R. Co. v. 
Bryan, 6 Jones Law, 82. 

5 Neuse River Nav. Co. v. Commissioners of Newbern, 7 Jones Law, 275. 
But in Shoemaker v. Goshen Turnpike Co., 14 Ohio (N. S.), 5G9, from the mere 
permission in the statute to submit the question of subscription to the voters of a 
township, the court implied the power to issue bonds in payment of such sub- 

[*209] 



222 ASSESSMENTS OR CALLS. PART II. 

upon this question. The legislature had authorized the town of 
Newborn to take stock in a company for improving the navigation 
of the river Neuse, by which the business of the town was ex- 
pected to be advanced. The town was, by the act, authorized to 
pay for the stock subscribed by them with their bonds, to be is- 
Bued and sold on certain terms, but the amount of bonds issued 
was restricted to the amount of the stock subscribed, and it was 
held, that as the corporation could not, except by legislative sanc- 
tion, accept anything but money in payment of stock, and could 
not issue stock at any rate below par, the bonds could not be 
sold below par ; and that to a mandamus to compel the town to 
pay for stock thus subscribed, it must be regarded as a sufficient 
return, that the authorities of the municipality had prepared and 
executed the bonds, and had offered the same for sale by public 
advertisement, and had diligently endeavored otherwise to effect a 
sale of the same on the terms prescribed by the statute, and had 
not been able to sell the same. 

8. This case unquestionably puts these perplexing inquiries 
upon the true basis ; that is of fair dealing or no dealing at all. 
But we apprehend that railway contractors and builders would 
regard it as placing the matter in a very impracticable light. 
And we are not prepared to say how far the courts will feel justi- 
fied in departing from the strict letter of the law in these particu- 
lars, out of deference to the speculative tendencies of the age. 

9. It is certain that corporate stocks, from the first, are now 
always more or less a matter of speculation in the market ; and 
the same is true of all municipal bonds issued in aid of enter- 
prises affecting the interests of such corporations. And, in fact, 
no one ever dreams of demanding strictly par values, in dealing 
either with the bonds or the stock, and we do not suppose it can 
now ever be brought back to the strictly par basis. There is, too, 
another great embarrassment in the way of return to par values. 
We have, in fact, no par basis to which to return. Until a specie 
• basis is reached, every thing is at the mercy of speculators and 
monopolists. This is, no doubt, a very melancholy state of affairs 
to have a great commercial country in. But so long as commer- 
cial men endure it, and the government submits to it, we do not 
see how the courts can remedy it. But it is certainly refreshing 

scription in the usual negotiable form, and to negotiate them to the company at 
par, in payment for the stock subscribed. 
[*210] 



§ 58. SUBSCRIPTION UPON SPECIAL TERMS. 223 

to see courts struggling to resist in every way in their power such 
a fearful tide of evil. In our humble judgment, unless some 
mode of escape is found, speculation and monopoly will eat out 
all honesty and fair dealing in all commercial transactions, and 
the country will in its commerce become a band of legalized 
plunderers upon each other. The monopoly in flour and grain 
and some of the other staples of the country is scarcely less than 
that, at the present time. 

10. There seems to be some question whether a corporation 
can stipulate to pay interest upon its stock certificates from the 
first without regard to the earnings of the company. It is certain 
such a stipulation is at variance with the ordinary duties of corpor- 
ations, and will not therefore come within the range of the implied 
authority of the directors of the company. But in one case, 6 it 
seems to have been considered, that the stockholders might so 
ratify such a stipulation as to render it binding upon the company. 
But we should very seriously question if any such authority is im- 
plied from the general grant of corporate power for ordinary busi- 
ness purposes, like that of railways. It would seem to require a 
special delegation of authority by the legislature, and in that form 
it is nothing else but a device for borrowing money, in advance of 
launching the corporation upon its legitimate functions. 

11. The case last cited 6 decided that such a stipulation, super- 
added to a certificate of stock, will not defeat its original effect of 
making the holder a member of the corporation ; and that if certi- 
ficates of stock be so issued by the directors, it will be regarded as 
a sufficient ratification of them by the corporation that at a stock- 
holders' meeting a majority voted to pay such interest in the bonds 
of the company ; but the holders are not thereby compellable to ac- 
cept payment in that mode, unless they assented to the vote. 

6 McLaughlin v. Detroit & Milw. Railw., 8 Mich. 100. It seems scarcely 
allowable to treat the vote of the majority as a ratification of an act of the direc- 
tors beneficial to the minority, and at the same time not binding upon the minority 
except by their own consent. Richardson v. Railw. Co., 44 Vt. 613, where the 
question is very extensively examined and placed upon the most plausible ground, 
that such a condition in the subscription may be binding upon the company, 
whenever its surplus earnings will enable them to meet the payment, which 
amounts to nothing more than a guaranty of a dividend to that amount. 

[*210] 



224 



ASSESSMENTS OR CALLS. 



PART II. 



♦SECTION XIII. 



/v / nil '«/>(,■ Relief from Subscriptions obtained by Fraud. 



1 . - stantial misrepresentations in obtaining 

subscriptions will avoid them. 

2. But for circumstantial misconduct of the 

din dors, in the matter, they alone are 
liable. 



Party purchasing must make reasonable 
examination of papers referred to on all 
doubtful points. Bui no relief will be 
granted, where there is no fraud, or in- 
tentional misrepresentation. 

Directors cannot make profit for themselves. 



$ 59. 1. The directors of a railway company, who make repre- 
sentations on behalf of the company to induce persons to sub- 
scribe for the stock, so far represent the company in the transaction, 
that if they induce such subscription by a substantial fraud, the 
contract will be set aside in a court of equity. 1 The proper inquiry 
in such case is, " Whether the prospectus, so issued, contains such 
representations, or such suppression of existing facts, as, if the 
real truth had been stated, it is reasonable to believe the plaintiff 
would not have entered into the contract ; that is, that he would 
not have taken the shares allotted to him, and those which he pur- 
chased." 2 

1 Sir John Eomilly, M. R., in Pulsford v. Richards, 17 Beav. 87; 8. c. 19 
Eng. L. & Eq. 387, 392. The prospectus issued in such cases is to be regarded 
as a representation. And where one is induced to take shares in a joint-stock 
company, through the false and fraudulent representations of the directors, he is 
not liable to calls for the purpose of paying the expenses of the company. The 
Royal British Bank, Brockwall's case, 29 Law Times, 375; s. c. 4 Drew. 205. 
And where one of the directors of a company put the name of an extensive 
stockholder in the company, who resided in a foreign country, to a new sub- 
scription for forty additional shares, without consultation with such person, upon 
the belief that he would ratify the act, and upon being informed of such act, he 
made no objection for the period of nearly seven years, during which time the 
company had applied the dividends upon his stock in payment of such subscrip- 
tion, having no intimation of any dissent upon his part, it was he d the subscrip- 
tion thereby became binding, and that the party could not recover such dividends 
of the company. Philadelphia, Wilmington, & Baltimore Railw. v. Cowell, 28 
Penn. St. 329. 

- Pulsford v. Richards, 17 Beav. 87; s. c. 19 Eng. L. & Eq. 392; Jennings 
v. Broughton, 17 Beav. 234; s. c. 19 Eng. L. & Eq. 420. One, to entitle him- 
self to be relieved from bis subscription, must show that he acted upon the false 
representations of the directors in a matter of fact material to the value of the 
enterprise, and not upon the mere speculation of the directors, or upon his own 

[*211] 



§ 59. SUBSCRIPTIONS OBTAINED BY FRAUD. 225 

* 2. Bat the omission to state in a prospectus the number of 
shares taken by the directors, or other persons, in their interest, 
is no such fraud as will enable a subscriber to avoid his subscrip- 
tion. 2 The fact that the directors of the company had entered into a 
contract with one, as general superintendent of construction, for 
four per centum upon the expenditure ; and that this was an ex- 
orbitant compensation, and was, in fact, intended to compensate 
such person for his services, in obtaining the charter, and that this is 
not stated in the prospectus, is no such suppression as will exon- 
erate subscribers for stock. " There was not the suppression of a 
fact, that affected the intrinsic value of the undertaking. That 
value depended upon the line of the projected railway, the popu- 
lation, the commercial wealth, the traffic of the places through 
which it passed, the difficulties of the construction, and the cost of 
the land required. Extravagance in the formation of a line of 
railway is a question of liability of the individual directors to the 
shareholders, but not a ground for annulling the contract be- 
tween them." 2 

3. There can be no question one will be affected with notice of 
all facts discoverable by examination of papers referred to in a 
prospectus for the sale of shares, provided such papers are accessi- 
ble to him, unless the facts stated in the prospectus are so specific 
as to divert interest from all further inquiry. It was accordingly 
held that where the contract of subscription bound the subscriber 
to the terms of the articles of association, an examination of which 
would have disclosed the facts upon which the party claimed to 
be relieved from his subscription, but that trusting to the state- 
ments contained in the prospectus, he did not look further, 
this neglect or omission was no answer to his claim for relief. 3 
But the party is not entitled to relief by reason of the repre- 
sentation of any fact, made in good faith, and upon reason- 
exaggerated expectations of the prospective success and value of the undertaking. 
See, also, upon this general subject, the remarks of the Master of the Rolls, p. 
427. In the case of Reese River Silver Mining Co. v. Smith, 17 W. R. 1042, 
s. c. LawRfp. 4 H. L. 64, Lord Cairns is reported to have said, " If persons 
take upon themselves to make assertions, as to which they are ignorant whether 
they are true or untrue, they become, in a civil point of view, as responsible as 
ff they had asserted that which they knew to be untrue ; " provided it prove to 
be so, his lordship intended to imply, of course. 

3 Central Railw. v. Kisch, Law Rep. 2 H. L. 99. 

vol.i. • 15 [*212] 



226 



ASSESSMENTS OR CALLS. 



PART II. 



able grounds of probability, but which proves unfounded upon 
grounds equally unknown to both parties. 4 

4. But the learned judge in one case 2 suggests, with great pro- 
priety, that if the directors have made contracts, in the course of 
the performance of their duties, from which advantage is expected 
to * arise to themselves, or to others, for their benefit, mediately or 
immediately, they may, in a court of equity, be made to stand in 
the plaoe of trustees to the shareholders. 5 



SECTION XIY. 



Forfeiture of Shares. — Relief in Equity. 



1. Requirements of charter and statutes must 

be strictly pursued. 

2. If not, equity will set aside the forfeiture. 

3. Must credit the stock at full market value. 



4. Provisions of English statutes. 

5. Evidence must be express, that all requisite 

steps were pursued. 



§ 60. 1. The company, in enforcing the payment of calls by 
forfeiture of the stock, must strictly pursue the mode pointed 
out in their charter and the general laws of the state. This is a 
rule of universal application to the subject of forfeitures, and one 
which the courts will rigidly enforce, and more especially where 
the forfeiture is one of the prescribed remedies, given to the 
party, and against which equity does not relieve, when fairly 
exercised. 1 

2. But as the company, in such case, ordinarily stand in both 
relations of vendor and vendee, their conduct, in regard to fair- 
ness, will be rigidly scrutinized, and the forfeiture set aside in 
courts of equity, upon evidence of slight departure from perfect 
fairness. 



4 Kennedy v. Panama Mail Co., Law Rep. 2 Q. B. 580. 

5 Post, § 140. 

1 Sparks v. Liverpool Water- Works, 13 Vesey, 428 ; Prendergast v. Turton, 
1 Younge & Coll. (N. R.) 98, 110-112. This case is put mainly upon the ground 
of delay and acquiescence, but there is little doubt it would have been maintained, 
upon the general ground stated in the text. See Edinburgh, Leith, & N. H. Railw. 
v. Hibblewhite, 6 .M. & \V. 707 ; s. c. 2 Railw. C. 237. But where the deed of 
settlement 01 a joint-stock company provides for a forfeiture of the shares with- 
out notice to the subscriber, the forfeiture determines the title without notice. 

[*213] 



§60 a. 



RIGHT TO INSPECT BOOKS OF COMPANY. 



227 



3. Henco where the company declared the stock cancelled, and 
credited the value at a less sum than the actual market price at 
the time, but more than it would probably have sold for if that 
number of shares had been thrown at once into the market, the 
court set aside the forfeiture, on the ground that the company 
were bound to allow the highest market price which could be 
* obtained, without speculating on what might be the effect of 
throwing a large number of shares into the market. 2 

4. By the English statute the company are not allowed to 
forfeit a larger number of shares than will produce the defi- 
ciency required. 3 And upon payment to the company of the 
amount of arrears of calls, interest, and expenses, before such 
forfeited shares are sold by them, the shares revert to the former 
owner. 3 

5. The evidence of the company having pursued the require- 
ments of their act, in declaring the forfeiture, must be express 
and not conjectural. 4 



SECTION XV. 

Right of Corporators and Others to inspect Boohs of Company. 



1. May inspect and take minutes from books. 

2. Discussion of the extent to which such 

books are evidence. 

3. For what purposes such books are impor- 

tant as evidence. 



4. This will not embrace the books of pro- 

ceedings of directors. 

5. Party claiming to be shareholder may in- 

spect register. 

6. Allowed when suit or proceedings pending. 

7. Party may have aid in the inspection. 



§ 60 a. 1. It seems to be conceded as a well-settled rule of 
law, that the shareholders or corporators in a joint-stock corpora- 
tion are entitled, as matter of right, to inspect and take minutes 
from the books of the company at all reasonable times, 1 as they 
are the best evidence of the facts there registered, and equally the 

Stewart v. Anglo-California Gold Mining Co., 18 Q. B. 736; s. c. 14 Eng. L. 
& Eq. 51. 

2 Stubbs v. Lister, 1 Y. & Coll. (C. C.) 81. 

3 8 & 9 Vict. c. 16, §§ 34, 35. 

4 Cockerell v. Van Diemen's Land Co., 18 C. B. 454 ; s. c. 36 Eng. L. & Eq. 
405. 

1 Angell & Ames on Corp. § 681. 

[*214] 



228 ASSESSMENTS OR CALLS. PART II. 

property of all the proprietors. 2 And the board of directors of 
the company have no power to exclude any member from the 
exercise of this right, even upon the ground that he is unfriendly 
to the interests of the company. 3 

•J. But it seems to be now settled that strangers cannot obtain 
the inspection of such books, even by application to the court, 
their contents being regarded as private memoranda, in no sense 
possessing any public character, 4 notwithstanding a contrary 
♦practice obtained 5 for a time. It may sometimes have been as- 
Bumed, that the books of private corporations possessed a higher 
quality of evidence than is the fact. We do not apprehend that 
they are in any sense indispensable primary evidence of the facts 
there recorded. As a general thing, as to the organization of the 
company and the choice of officers, all that is requisite will be to 
prove, de facto, the .organization of the company and the exercise 
of such offices by the persons named. Where it is requisite that 
an authority be given by the majority vote of the company, it may 
most conveniently be shown by the record, and perhaps in .such a 
case - the records of the corporation may fairly be considered the 
best proof of the facts, if in the power of the party, as if the cor- 
poration itself were called to prove such vote. But any party not 
entitled to the custody of the papers can only prove their contents, 
unless the corporation is the opposing party, in which case he 
may give notice to produce the books, and, in default, may prove 
the contents by secondary evidence. It has been decided that the 
clerk of the company cannot be compelled to produce the books on 
a subpoena duces tecum!' 

3. It has been held that a bank depositor has the right, under 
proper circumstances and in a reasonable manner, to inspect the 
books of the bank. 7 In practice it is not one time in ten where 
the record books of a corporation are ever referred to in court, 
unless to fix a date or the precise form of a vote upon which a 
power is made to depend. But the registry of shareholders may 

1 Owinga v. Speed, 5 Wheaton, 420, 424. 

3 People D.Throop, 12 Wend. 183; Cotheal v. Brower, 1 Seld. 5G2. 

4 Mayor of Southampton v. Greaves, 8 T. R. 590. 

5 Mayor of Lynn v. Denton, 1 T. R. 689, and cases cited. 

6 I'tiea Bank v. llillard, 5 Cow. 419; Narragansett Bank v. Atlantic Silk 
Co., 3 Met. 282. 

7 Union Bank i\ Knapp, 3 Pick. 96. 

[*215] 



§ 60 a. RIGHT TO INSPECT BOOKS OF COMPANY. 229 

be properly regarded as the primary evidence of membership, but 
by no means indispensable or conclusive. 8 

4. Where the deed of settlement under which a corporation is 
registered contained a provision " that the books wherein the 
proceedings of the company are recorded shall be kept at the 
principal office of the company, and shall be open to the inspection 
of the shareholders," it was held that the clause gave shareholders 
power only to inspect the books of minutes of proceedings of 
the general meetings, and not of the minutes of the proceedings 
of the directors. 9 

* 5. In a somewhat recent English case 10 it was held, that a 
party whose claim to be a shareholder is disputed by the company 
may, in an action brought against the company, inspect any en- 
tries in the register which relate to the matter in dispute. 

6. And in a still more recent case, where one of the members 
of the corporation was in controversy with the company in regard 
to his right to act as one of the governing body, which right de- 
pended upon an inspection of the records of the company in order 
to determine its usages, the court granted permission to inspect 
the books. 11 But it is here said this will not be done unless there 
is a suit or some proceedings pending. 

7. And in the inspection of all documents, by order of the 
Court of Chancery, the party in whose favor the order is made 
has the right to have such aid in the inspection, either by coun- 
sel, interpreters, or experts, as will make the inspection available 
to him. 12 

8 We refer to what we have before said upon the subject. Ante, § 18, pi. 10- 
13; § 23, n. 8. 

9 Reg. v. Mariquita Mining Co., 1 El. & El. 289. 

10 Foster v. The Bank of England, 8 Q. B. 689. 

11 Reg. v.. Saddlers' Co., 10 \V. R. 87. At Chambers, Grompion, J. 

11 Swansea Vale Railw. Co. v. Budd, Law Rep. 2 Eq. 274 ; s. c. 12 Jur. (N. 
S.) 561. As to the effect of the certificate of the clerk of a corporation under 
its seal, see New Orleans & O. R. Co. v. Lea, 12 La. Ann. 388. A passenger 
who has brought suit against a railway company for injury sustained on its line 
has the right to inspect the record of accidents kept by the company, on the 
report of the conductor, in obedience to the statute. Woolley v. North London 
Railw., 17 W. R. 650 ; s. c. id. 797, L. R. 4 C. P. 602. 

[*216J 



PART III. 

THE LAW OF RIGHT OF WAY, EMINENT 
DOMAIN, ETC. 



PART III. 

THE LAW OF RIGHT OF WAY, EMINENT 
DOMAIN, ETC. 



^CHAPTER X. 



RIGHT OP WAY BY GRANT. 



SECTION I. 



Obtaining Lands by excess Consent. 



9. 
10. 

11. 



Leave granted by English statute. 
Persons under disability. 
n. 2. Money to take the place of the land. 
Consent to pass railway. 
Duty of railway in all cases. 
License to build railway. Extent of du- 
ration. 

Company bound by conditions in deed. 
Parol license good till revoked. 
Sale of road no abandonment. 
Deed conveys incident; not explainable. 
One cannot derogate from compulsory 
grant. 



12. But this does not apply to accidental in- 

cidents. 

13. Case in New York Court of Appeals 

somewhat at variance with the preced- 
ing cases. 

14. A municipal corporation may be bound 

by implied contract in the qrant of 
land so as not to be at liberty to recede 
from it. 

15. A mere agreement to sell, although in 

writing, will not justify the company in 
entering upon the land, or defeat pro- 
ceedings under the statute to recover 
damages for taking the land. 



§61. 1. The English statute 1 enables railway companies to 
purchase, by contract with the owners, " all estates or interests 
(in any lands) of what kind soever," if the same, or the right of 
way over them, be requisite for their purposes. 

1 8 & 9 Vict. c. 18, § 6. And companies have the right, upon general prin- 
ciples, in this country, to acquire the right of way by contract with the land- 
owners. But such concessions by natural persons to public companies will 
receive a reasonably strict construction, so as to secure the rights of land-owners. 
Unangst's Appeal, 55 Penn. St. 128. 

[*217] 



234 BIGHT OF WAY BY GRANT. PART III. 

•J. Ami by another section of the same statute such companies 
are empowered to purchase such lands of persons legally inca- 
pacitated to convey the litle, under other circumstances, as guar- 
dians of infants, committees of lunatics, trustees of charitable or 
Other uses, tenants in tail, or for life, married women, seised in 
their own right, or entitled to dower, executors or administrators, 
and all parties, entitled, for the time being, to the receipt of the 
rents ami profits. 2 

* :'». The valuation in this latter class of cases is to be made by 
disinterested persons, and the price paid into the bank for the 
benefit of the parties interested. 

1. And where a railway act provided, in terms, that nothing 
therein should authorize the company to do any damage or preju- 
dice to the lands, estate, or property of any corporation or person 
whatsoever, without the consent in writing of the owner and oc- 
cupier, it was held they could not pass the line of another railway 
without their consent, although the withholding of such consent 
should frustrate the purpose of the grant. 3 

5. In this country most of the railway charters contain a power 
to the company to acquire lands, by agreement with the owner. 
In such case it has been held the rights of the company are the 
same as where they take their land under their compulsory 
powers. 4 And they are bound to the same care in constructing 
their road. 4 

2 Ilutton v. The London & South W. Railw., 7 Hare, 264. Some suggestions 
are here made by Vice-Chancellor Wigram, in regard to the time within which it 
is requisite to make compensation in the several modes of taking lands. The 
principal question decided is, that in regard to lands, injuriously affected by 
railway works upon other lands, it is not requisite to make compensation in ad- 
vance. Hut where lands are purchased from persons under disability, the course 
of devolution of the property is not thereby changed, but the money paid in 
compensation is to take the place of the land, and to be treated as real estate. 
Midland Counties Railw. v. Oswin, 1 Coll. (C. C.) 74; s. c. 3 Railw. C. 497; 
Ex parte Flamank, 1 Simons (N. S.), 260; In re Horner's Estate, 5 De G. & 
• s - 183; -. i . 13 Eng. L. & Eq. 531; In re Stewart's Estate, 1 Sm. & G. 32; 
8. c. 13 Eng. I.. & Eq. 533. 

' ( larence Railw. v. Great North of England Railw., 4 Q. B. 45; Gray v. 
The Liverpool & Bury Railw. 9 Beav. 391; s. c. 4 Railw. C. 235. 

4 Whitcomb v. Vermont Central Railw., 25 Vt. 49, 69. This right to acquire 

lands, by contract with the owners, is, by implication, if not expressly limited to 

the necessities of the company, we presume, the same as taking lands in invitum, 

and cannot be extended to any private use. But if the owner of the land con- 

[*218] 



§61. OBTAINING LANDS BY EXPRESS CONSENT. 235 

6. And where the railway have the power to take five rods, 
through the whole course of their line, and a land-owner deeds 
them the full right to locate, construct, and repair, and for ever 
maintain and use their road over his land, if, in laying the drains 
or ditches through the land, it becomes necessary to go beyond 
the limits of the five rods, in order to guard against the effect of 
a stream to be passed, the company may lawfully do so under the 
grant. 5 

* 7. In case of a deed to a railway company of land, on which 
to construct their road, the assent of the company will be pre- 
sumed, and they are bound by the conditions of the grant, as that 
the road shall be so constructed as not to interfere with buildings 
on the land. 6 

8. An oral permission to take and use land for a railway is 
a bar to the recovery of damages for such use, until the permis- 
sion is revoked. 7 In one case before the House of Lords, 8 a 

sent to the use, the constitutional objection is removed, and the right to hold the 
land is a question between the company and the public, probably. Dunn v. City 
of Charleston, Harper, 189; Harding v. Goodlett, 3 Yerg. 41; 11 Wend. 149; 
Embury v. Conner, 3 Comstock, 516. 

5 Babcock v. The Western Railw., 9 Met. 553 ; s. c. 1 Redf. Am. Railw. Cases, 
191. But a conti-act with the owner of land, for leave to build the road through 
his land, and staking out the track through the land, is no such occupation as will 
be notice of the right of the company against a subsequent mortgagee. Merritt 
v. Northern Railw., 12 Barb. 605. But the payment by the company of the price 
of the land, and changing their route in faith of the title, might give them an 
equity superior to that of a subsequent mortgagee. lb The deed of one tenant 
in common is a good release of his claim for damages, although it convey no right 
as against his co-tenant. Draper v. Williams, 2 Mich. 536. But an agreement 
to sell land to a railway company, and a tender of the price by the company, 
creates no title in them. Whitman v. Boston & Maine Railw., 3 Allen, 133. 

6 Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74. And the rights 
and duties of the company, in such case, are precisely the same as if the land had 
been condemned, by proceedings in invitum, under the statute. Norris v. Vt. 
Central Railw., 28 Vt. 99. Such grant carries the incidents necessary to its 
enjoyment. And if it becomes necessary, in constructing the road, to make a 
deep cut, that may be done, and the company are not bound to protect the banks 
of the excavation by a wall. Hortsman v. Lexington & Cov. Railw., 18 B. Mon. 
218. See also Louisville & Nash. R. v. Thompson, 18 B. Mon. 735. 

7 Miller v. Auburn & Syracuse Railw., 6 Hill, 61. It seems to have been 
made a question whether the company, after the revocation of such license, could 



8 Ramsden v. Dyson, Law Rep. 1 Ho. Lds. 123; s. c. 12 Jur. (N. S.) 506. 

[*219] 



236 RIGHT OF WAY BY GRANT. PART III. 

very important, and as it seems to us reasonable and just quali- 
fication L8 annexed to the familiar doctrine of implied assent to 
the appropriation of land to a permanent use by the owner stand- 
ing by and not objecting. It is here ruled, "If a stranger builds 
upon the land of A., supposing it to be his own, and A. remains 
wilfully passive, equity will not allow him to profit by the mistake ; 
but if the stranger knows that the land upon which he is building 
belongs to A., then A. may assert his legal rights and take the 
' benefit of the expenditure. And a tenant building upon his land- 
lord's land, in the absence of such special circumstances, acquires 
no right against him at the expiration of the tenancy. But a 
mere license to build works connected with a railway, the dam- 
ages to be settled with a person named, or " on equitable terms 
hereafter," does not amount to any definite agreement. 9 

9. Where land is conveyed, for the use of a railway, upon con- 
dition that it shall revert to the owner upon the abandonment of 
the road, and the road was sold, under a mortgage, to the state, 
and by the state and by new companies chartered for that purpose 
completed, it was held, that the grantor was not entitled to hold 
the land. 10 

be allowed to remove the fixtures of their road from the land, such as rails, spikes, 
&c. But it was held they might, as trade fixtures. Northern Central Railw. 
f. ( lanton Co., 30 Md. 347. And such license, when executed, by the construc- 
tion of the work, is not allowed to be revoked. The only relief the party is 
entitled to is compensation for his land. Water Power v. Chambers, 1 Stock. 
Ch. 471. And it was held in a somewhat recent English case, Corby v. Hill, 4 
C. B. ( X. S.) 556; s. c. 31 Law Times, 181, that where the owner of land had 
given oral permission to one for a private way, he could not obstruct, or give 
permission to others to obstruct, such way ; and that where a third person, by 
permission of the land-owner, placed building materials in the way, whereby an 
injury accrued to the person having the way, he might sue for such injury. 

9 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58. But a writing 
whereby the owner of land along the line of a contemplated gravel road gave the 
road-company the right to enter upon his landflfcnywhere within a mile of the 
contemplated road and dig and remove gravel, as much as they might require, 
was beld not a mere license, but a grant irrecoverable. Bracken v. Ruskville 
Gravel Road ( '..., l'7 Ind. 346. 

10 Harrison r. Lexington & Ohio Railw., 9 B. Mon. 470. So, too, if land is 
conveyed on condition that an embankment (water-tight) over a brook crossing 
the land shall be erected by the grantors, and that the embankment, or dam, with 
the floodgates or sluices therein, might be used for hydraulic purposes by the 
grantors, their heirs, and assigns, the grantees not to be liable to the grantors 
for any damage they might sustain by a break in such dam, unless the same 

[*220j 



§ 61. OBTAINING LANDS BY EXPRESS CONSENT. 237 

10. Where land was conveyed to a railway company, for the 
purpose of constructing their road, on which was a tenement, and 
to this water was conveyed by an aqueduct from another portion 
of the land of the defendant, and the price of the land was fixed 
by the commissioners, the defendant at the time claiming the right 
to withdraw the water, and this not being objected to by the presi- 
dent and engineer of the company, who were present at the * time, 
it was held, that the deed containing no exception in regard to the 
water, the company acquired the right to its use, in the manner it 
had been before used, and the defendant was liable to an action for 
diverting it, 11 and the intention of the parties could not be deter- 
mined by extraneous evidence. 

11. So, also, the principle that a grantor, knowing the purpose 
for which his deed is accepted, cannot derogate from his own 
grant, applies to the case of a compulsory conveyance, under legis- 
lative authority, and the act is sufficient notice to the grantor of 
the purposes of the conveyance. But this rule wiU not apply to 
any accidental state of facts, existing at the time of the grant, as 
the support resulting from an excavation being filled with water at 
the time, so as to entitle the grantee to insist upon its continu- 
ance. 

12. And accordingly, where a railway took the land above a 
mine for the support of the abutments of a bridge, the mine hav- 
ing been abandoned for forty years and full of water, it was held 

should happen through the gross neglect or wilful misfeasance of the grantees, 
but that the grantees should repair the dam forthwith, it was held to be a condi- 
tion subsequent, the failure to perform which would give the grantors, or their 
heirs, a right of re-entry at their election. But it was further said, that the con- 
veyance of the estate by the grantees defeated the condition, and that the assignee 
had no remedy upon it. Underbill v. Saratoga & Wash. Eailw., 20 Barb. 455. 
And such conditions may be waived by the party in whose favor they are made, 
as in a grant of land for a railway track, the road to be completed by a day 
named, or the deed to be void, which was not done ; but the grantor continued 
to treat the company as having*the right to use the land for the purposes of the 
grant, and it was held a waiver of the condition. Ludlow v. New York & Har- 
lem Railw., 12 Barb. 440. The mere permission by a railway company, that 
some of their warehouses or engine-houses shall be used by private dealers for 
warehousing purposes on payment of rent, will not operate as a forfeiture of 
the rights of the company in favor of the owner of the fee, but will entitle him to 
maintain a writ of entry against the company for the establishment of his right 
therein, and to recover mesne profits during such misappropriation of the land. 
Proprietors of Locks & Canals v. Nashua & Lowell Railw., 104 Mass. 1. 
11 Vermont Central Railw. v. Hills, 23 Vt. 681. • 

[*221] 



238 RIGHT OF WAY BY GRANT. PART III. 

they could not insist upon having the water remain in the pit, as 
a support to t ho earth, but that they were entitled to be protected 
from damage likely to result from working the mine. 12 

L3. It a railway have power to take land by consent of the 
owner, an oral consent is sufficient. 13 And if the company take 
land and put it to their use without the consent of the owner, or 
any other proceeding under their powers, it is a trespass, but can 
only be sued for by the person then owning the land, and not by his 
grantee. 18 But this case was reversed upon error, and it was de- 
cided, somewhat at variance with the present English rule, that 
such a license, coupled with an interest, was still revocable at the 
option of the licensor. But the final conclusion of the court of 
error, that " consent," in such an act, meant the effectual consent 
of the law expressed with due formality, seems altogether the more 
reasonable ground upon which to place the case. 

14. The New York Court of Appeals 14 held that municipal cor- 
porations, as to their rights and powers over lands owned by the 
corporation, were to be viewed the same as any other owner * of 
land, and that their acts and resolutions in regard to the use of 
such land by others were not to be regarded as either of a legisla- 
tive or governmental character ; and that although such corpora- 
tions have no power as a party to make contracts which shall 
control or embarrass their legislative powers and duties, yet, as 
these legislative duties, or powers, only extend to regulations of 
police and internal government, and not to the mere imposition of 
a sum of money for revenue purposes, consequently an ordinance 
imposing a license duty upon city cars, for revenue purposes only, 
is not an ordinance for police and internal government, and the 
imposition of an annual tax upon a city passenger railway, in 
derogation of its rights, as defined by a specific agreement between 
the city and the railway company, for purposes of revenue merely, 
is unlawful and void. 15 

18 North Eastern Railw. Co. v. Elliott, 1 Johns. & H. 145 ; s. c. G Jur. (N. S.) 
817. 

13 Central Railw. Co. v. Hitfield, 5 Dutcher, 206; s. c. in error, id. 571. 

M Mayor, &c of the City of New York v. The Second Avenue Railw., 32 
X. "> . 261 ; s. c. 3-1 Barb. 4-1, where the case was similarly ruled. 

Che terms of this contract appear more fully where the case is reported in 
Barbour. [I prescribed the regulations to which the company should be liable, 
requiring no further license, and reserving no power to require one thereafter. 
This was hi Id to preclude the city authority from making the imposition de- 



§62. 



SPECIFIC PERFORMANCE IN EQUITY. 



239 



15. Proof of a written agreement to sell land to a railway com- 
pany at a given price, within a limited time, and a tender of the 
same within the time, and a refusal to accept, will not justify 
the company in locating their road upon the land, or defeat 
proceedings under the statute to recover damages for such 
location. 16 



♦SECTION II. 



Specific Performance in Equity. 



1. Contracts before and after date of charter. 

2. Contracts where all the terms not defined. 

3. Contracts for land umpire to fix price. 

4. Where mandamus also lies. 

6. Contracts not signed by company. 

6. Where terms are uncertain. 

7. Contracts giving the company an option. 

8. Contracts not understood by both parties. 

9. Order in regard to construction of high- 

ways may be enforced at the suit of the 
municipality. 



10. The courts sometimes decline to decree 

specific performance on the ground of 
public convenience. 

11. No decree of specific performance when 

contract vague and uncertain, and for 
other reasons. 

12. Courts of equity will not in the final 

decree make the price a charge on the 
land, unless so declared at first. 



§ 62. 1. There can be no doubt courts of equity will decree 
specific performance of contracts for land, made by consent of the 
owners, as well after the act of parliament as before. 1 

2. If the agreement contains provisions for farm-crossings, 

manded. It would seem, the case might have been decided, in conformity with 
the dissenting opinion of Mr. Justice Ingraham, in the court below, without any 
great violence to principle. See also Branson v. Philadelphia, 47 Penn. St. 329 ; 
Veazie v. Mayo, 45 Me. 560; People v. New York & Harlem R. Co., 45 Barb. 
73 ; Vilas v. Mil. & Miss. R. Co., 15 Wis. 233. A grant of land to the use of 
a highway seems to be regarded as giving the municipal authorities the same 
rights in regard to its use as where the land is condemned for that purpose. 
Murphy v. The City of Chicago, 29 111. 279. The grant to a railway company of 
a right to build a tunnel will not preclude the owner of the land from digging 
minerals under the tunnel, in conformity with the general railway acts. London 
& N. W. Railw. Co. v. Ackroyd, 8 Jur. (N. S.) 911. 

16 Whitman v. Boston & Maine Railw., 3 Allen, 133. This written contract 
might be evidence of the value of the land, or an admission by the owner, and 
as such might probably be used in the proceedings under the statute for estimat- 
ing damages. 

1 Ante, § 13, el seq. ; Walker v. The Eastern Counties Railw. Co., 5 Railw. 
C. 469 ; s. c. 6 Hare, 594. 

[*223] 



240 RIGHT OF WAY BY GRANT. PART III. 

fences, and cattle-guards, cither express or implied, the master 
will In 1 directed to make the proper inquiry, and any decree for 
specific performance should provide minutely for all such inci- 
dents.' 2 But, upon general principles, if the agreement provide 
that the price of land is to he fixed by an arbitrator or umpire, it 
has generally been held that a suit for specific performance is not 
maintainable. 8 

3. But if the arbitrator have acted and fixed the price, 4 and by 
parity of reason, if the umpire is named, and ready to act, there 
being no power of revocation, a court of equity may decree spe- 
cific performance. Hence in the case above, 1 the Vice-Chancellor 
held, that, as the contract was to take the land on the terms pre- 
scribed in the act of parliament, the court had the means of 
* applying those terms, so as to get at the price, and might there- 
fore require the party to put them in motion, and then, in its dis- 
cretion, decree specific performance. 

4. And the consideration, that possibly the party might proceed 
by mandamus, will not deprive him of this remedy in equity, un- 
less the aict specially provides the remedy by mandamus. 5 

5. But if the company take a bond of a land-owner, to convey 
so much land as they shall require, and subsequently appropriate 
the land, but decline accepting a deed and paying the price, equity 
will not decree specific performance of the contract, the bond not 
being signed by the company. 6 But in such a case specific 
performance will be decreed against the party signing the bond 
upon refusal." 

6. A contract to sell a railway company " the land they take " 
from a specified lot of land, at twenty cents a foot, " for each and 
every foot so taken by said company," imports a taking by the 
company, under their compulsory powers, and will not be specifi- 
cally enforced until so taken by the company. And if the terms 

2 Sanderson v. Coekermouth & Washington Railw. Co., 19 Law Jour. Ch. 
503; 11 Beavan, 497. 

3 unities v. Gerry, 14 Vesey, 400. But in this case the umpire was not 
agreed upon, ami the court held they could not appoint one. But the Master of 
the Rolls held that an agreement to sell, at a fair valuation, may be executed. 
See Tilh t v. Charing Cross Company, 26 Beav. 419; s. c. 5 Jur. (N. S.) 994. 

4 Brown r. Bellows, 4 Tick. 179. 

6 Hodges on Railways, 189. 

8 Jacobs v. Peterborough & Shirley Railw., 8 Cush. 223. 

7 Parker v. Perkins, 8 Cush. 318. 

[*224] 



§ 62. SPECIFIC PERFORMANCE IN EQUITY. 241 

of a contract are doubtful, a court of equity will not decree specific 
performance. 8 

7. Where one contracts with a railway company, under seal, to 
permit them to construct their road over his land, in either one 
of two routes, and to convey the land after the road shall be 
definitively located, with a condition that the deed shall be void, 
when the road shall cease, or be discontinued, if the company 
take the land and build their road upon it, specific performance 
will be decreed, although the company did not expressly bind 
themselves to take the land, or pay for it. And where the com- 
pany had been in the use of the land for their road three or four 
years, it was held no such unreasonable delay as to bar the relief 
* sought. The party cannot excuse himself by showing, that, from 
his own notions, or the representations of the company, or of 
third persons, he was induced to believe that a different route 
would have been adopted by the company, or that there was an 
inadequacy in the price stipulated, unless it be so gross as to 
amount to presumptive evidence of fraud or mistake. 9 

8. But it is a good defence, in such case, that the party was 
led into a mistake, without any gross laches on his part, by an 
uncertainty or obscurity in the descriptive part of the agreement, 
so that it applied to a different subject-matter from that which he 
understood at the time, or that the bargain was hard, unequal, 
or oppressive, and would operate in a manner different from that 
which was in the contemplation of the parties when it was executed. 

8 Boston & Maine Railw. v. Babcock, 3 Cush. 228 ; s. c. 1 Am. Railw. C. 561. 
But under a contract with a railway company, giving them all the land they 
desired, not exceeding four poles in width, upon which to construct their road, 
" provided said road shaU not run farther north of my southwest corner than ten 
feet, and not farther south of my northeast corner than 140 feet," it was held 
the company had a right to 66 feet through the whole land, and were only re- 
stricted in relation to the distance the road went from the corners named. 
Lexington & Ohio Railw. v. Ormsby, 7 Dana, 276. 

9 Western Railw. v. Babcock, 6 Met. 316 ; s. c. 1 Am. Railw. C. 365. The 
delivery of a deed to the agent of a corporation, in such case, is sufficient. And 
where the party, in disregard of his contract, had obtained an assessment of 
damages for the land, under the statute, his liability upon the contract is, to the 
difference between the appraisal and the stipulated price in the contract. Un- 
reasonable delay is ordinarily a bar to specific performance in a court of equity. 
Guest v. Homfray, 5 Vesey, 818 ; Hertford v. Boore, Aston v. Same, 5 Vesey, 
719; Watson v. Reid, 1 Russ. & My. 236; 2 Story's Eq. Jur. §§ 771, 777, and 
cases cited. 

vol. i. 16 [*225] 



242 RIGHT OF WAY BY GRANT. PART III. 

But in such case the burden of proof is upon the defendant, to 
show mistake or misrepresentation. 9 In an English case 10 before 
the Courl of Chancery Appeal, after elaborate argument, the Lord 
Justice Knight Bruce, an equity judge of the most extended learn- 
in-- and experience, thus Btates the rule upon this point. This 
courl will not enforce specific performance of a contract, where 
the defendant proves that he understood it in a sense different 
from the plaintiff, even although the plaintiff's construction may be 
the plain meaning of the contract. 

9. Where the county commissioners made order in regard to 
the mode of construction of a railway, in crossing a highway, it 
was held, that the mayor and aldermen of a city, or the select- 
man of a town, are the only proper parties to a bill for specific 
performance, and that the land-owners, over which the railway 
j, are not to be joined in the bill. 11 But where the * order 

" Wycombe Railw. Co. t>. Donnington Hospital, Law Rep. 1 Ch. App. 268; 
8. c. 12 Jur. (X. S.) 347. 

" Brainard r. Conn. River Railw., 7 Cush. 506. In Roxbury v. Boston & 

l'r.'V. K.iil-.v., 6 Cush. 424, it was also held the commissioners must make such 

order specific, and not in the alternative, and that laches, in regard to such order, 

will not defeat the claim for a decree for specific performance, where public 

-entially concerned. 

And courts of equity have held a parol license to erect public works, and the 
work- erected in faith of it, irrevocable, and the company entitled to hold the 
land upon making compensation, and have virtually decreed specific perform- 
ance. Water Power Co. v. Chamber. 1 Stockton, Ch. 471. See also Hall v. 
Chaffee, 13 Vt. 150; Boston & Maine Railw. v. Bartlett, 3 Cush. 224. But it 
was held that an action for the price of land will not lie upon a parol contract of 
sale, where there had been no conveyance of the land, although the company had 
taken possession and paid part of the price. Reynolds v. Dunkirk & State Line 
Railw., 17 Barb. 612. This is undoubtedly according to the generally recognized 
rule upon the subject, in those states where the Statute of Frauds is in force. 

In the ease of Laird r. Birkenhead Railw., 6 Jur. (X. S.) 140; s. C. 1 Johns. 
(Eng. Ch.) 500, the question of an estoppel in fact becoming so fixed upon 
a railway company by acquiescence as to be enforced by a court of equity, is 
discussed by Viee-( 'hancellor Wood, and placed upon higher and sounder 
ground ins to us, than in most of the earlier cases. The leading facts 

were, that the plaintiff, by agreement with the company, without writing, had 
built a tunnel through their land, in order to facilitate access to his own business, 
and had Ulid raill upon the work, and had been in the use of the same for two 
years, paying tolls a-; agreed between the parties. The company now claimed 
that the plaintiff was merely a tenant at will, and subject to their absolute dicta- 
tion as to tin- right to use and the terms upon which he could use the works and 

[*226] 



§ 62. SPECIFIC PERFORMANCE IN EQUITY. 243 

required the highway to be so. raised as to pass over the rail- 
way, at a place named, but without defining the height to which 
it should be raised, the grade, the nature of the structure, or the 
time within which it should be made, it was held too indefinite to 
justify a decree for specific performance. 12 

* 10. The Master of the Rolls, Lord Momilly, in Raphael v. The 
Thames Valley Railway, 13 held, that in deciding whether specific 
performance should be enforced against a railway company, the 
court must have regard to the interests of the public, and there- 
fore, where a bridge had not been constructed in conformity with 
an agreement with a land-owner, but the injury to the land-owner 
was small, and the railway had since been opened for traffic, and 
the relief, if granted, would have necessitated an interference with 
the traffic, the court refused to compel specific performance. 

11. And it has been more recently declared by the English courts 
of equity, that where a contract is vague and so uncertain that 
no compensation could be awarded, a decree for specific per- 
formance could not be made. 14 So also the court will not interfere 
after considerable lapse of time and when the company are not 
possessed of funds for completing the purchase. 15 So refusal to 

gave notice in writing of the immediate and absolute termination of the contract, 
and in pursuance of such notice removed the rails and permanently erected a 
board across the passage. 

The learned judge overruled the demurrer, and said "it must be inferred, from 
the nature of the transaction, and after all this expense, that it was not to be 
determined by three months' notice. . . . The necessary inference is, that it is 
to be the right of user, as long as the plaintiff is the owner of the yard, and it 
would be a most unreasonable proposition to say that the company should have 
the power of determining it at three months' notice. ... I consider that a 
contract had been made out upon the face of the bill," and it was further con- 
sidered, that, aside from the actual use, a court of equity would have decreed 
specific performance upon reasonable terms ; but after the use for a considerable 
term on the basis of an unsigned memorandum, the court will regard that as evi- 
dence of the ultimate agreement of the parties. 8. p. Mold v. Wheatcroft, 27 
Beav. 510. But the railway companies of a sovereignty so far represent or par- 
take of the prerogative character, that any acquiescence on their part in a use of 
their lands inconsistent with the permanent rights of the public, will be construed 
as merely temporary, and will create no permanent rights in the party exercising 
such use. Heyl v. P. W. & B. Railw., 51 Penn. St. 469. 

18 City of Roxbury v. Boston & Providence Railw., 2 Gray, 460. 

13 Law Rep. 2 Eq. 37 ; s. c. 12 Jur. (N. S.) 656. 

14 Tillett v. Charing Cross Co., 26 Beav. 419 ; s. c. 5 Jur. (N. S.) 994. 
is p rvse j,, Combrian Railw., Law Rep. 2 Eq. 444. 

[*227] 



244 RIGHT OF WAY BY GRANT. PART III. 

decree specific performance may be based upon the public safety 
and convenieni 

L2. A:,i a Court of Equity will not make the amount to be paid 
for land a charge upon the land, under leave to apply for further 
directions, where it was not made so by the original decree. 17 

18 Raphael v. Thames Valley Railw., Law Rep. 2 Eq. 444. 
17 Attorney-General v. S. & S. Railw., Law Rep. 1 Eq. 636. 

[*227] 



§63. 



GENERAL PRINCIPLES. 



245 



*CHAPTER XI. 



EMINENT DOMAIN. 



SECTION I. 



General Principles. 



1. Definition of the right. 

2. Intercommunication. 

3. Necessary attribute of sovereignty. 

4. Antiquity of its recognition. 

5. Limitations upon its exercise. 



6. Resides principally in the states. 

7. Duty of making compensation. 

8. Navigable ivaters. 

9. 10, 11. Its exercise in rivers, above tide- 

water. 



§ 63. 1. This title is very little, found in the English books, 
and scarcely in the English dictionaries. But with us, it has 
been adopted from the writers on national and civil law, upon the 
continent of Europe, 1 and is perhaps better understood than 
almost any other form of expression, for the same idea. It is 
defined to be that dominium eminens, or superior right, which of 
necessity resides in the sovereign power, in all governments, to 
apply private property to public use, in those great public emer- 
gencies which can reasonably be met in no other way. 

2. It is a distinct right from that of public domain, which is 
the 1 land belonging to the sovereign. This is a superior right 
which the sovereign possesses in all property of the citizen or 
subject, whether real or personal, and whether the title were 
originally derived from the sovereign or not. One of the chief 
occasions for the exercise of this right is, in creating the necessary 
facilities for intercommunication, which in this country is now 
very generally known by the name of Internal Improvement. 
This extends to the construction of highways (of which turn- 
pikes and railways are, in some respects, but different modes of 
construction and maintenance), canals, ferries, wharves, basins, 
and some others. 2 

1 Vattel, B. 1, ch. 20, § 244; Code Napoleon, B. 2, tit. 2, 545; 1 Black. 
Coram. 139; Gardners. Newburgh, 2 Johns. Ch. 162; 2 Dallas, 310. 

a 3 Kent, Comm. 339 et seq. and notes; Beekman v. Saratoga & Sch. Railw., 
3 Paige, 45, 73 ; 12 Pick. 407 ; 23 id. 327 ; 3 Selden, 314. This right, as some 

[*228] 



246 EMINENT DOMAIN. PART III. 

... This is a right in the sovereignty, which seems indispen- 
sable to the maintenance of civil government, and which seems to 

of the above cases show, extends to numerous matters not named in the text. 
It would be "lit of place here to enter into the discussion of the general subject. 
Tin' indispensable prerequisites to the exercise of the right will appear, as tar as 
they apply to the subject of this work, in the following sections. 

That railways are but improved highways, and are of such public use as to 
justify the exercise of the right of eminent domain, by the sovereign, in their 
construction, is now almost universally conceded. Williams v. N. Y. Central 
Railw., L8 Barb. 222, 246; State v. Rives, 5 Ired. 297; Northern Railw. v. 
Concord & Claremont Railw., 7 Foster, 183; Bloodgood v. M. & H. Railw., 18 
Wend. 9; 8. c. 14 Wendell, 51 ; s. c. 1 Redf. Am. Railw. Cases, 209; 1 Bald. 
C. C. Reports, 205. See also 3 Paige, 73 ; 3 Seld. 314. A freight company has 
been regarded as not of such public interest as to justify taking land by the 
right of eminent domain. This was for loading and unloading freight. Memphis 
Freight Co. v. Memphis, 4 Cold. 419. But this case is perhaps questionable. A 
railway for the purpose of transporting freight is as much a public use as if it em- 
braced passenger transportation. And a freight company of more limited extent 
might be said to be in aid of the company carrying greater distances. The mar- 
ginal railways in cities for the purpose of connecting the different lines of traffic, 
are as much public companies and entitled to exercise the sovereign right of 
eminent domain, as any other railway. But no railway company can take land 
for other than public uses, as for the deposit of dirt, &c, not connected with the 
efficient use of their right of way. Lance's Appeal, 55 Penn. St. 16. 

It seems to be well settled, that the legislature have no power to take the 
property of the citizens for any but a public use ; but that a railway is such use. 
Bradley v. N. Y. & N. H. Railw., 21 Conn. 294; Symonds v. The City of Cin- 
cinnati, 14 Ohio, 147; Embury v. Conner, 3 Comst. 511. 

But this is a power essentially different from that of taxation, in regard to 
which there is no constitutional restriction, and no guaranty for its just exercise, 
except in the discretion of the legislature. The People v. Mayor of Brooklyn, 
4 Comst. 419; Cincinnati, W. & Z. Railway v. Clinton Co. Comm., 1 Ohio (N. 
S.), 77. 

The legislature must decide, in the first instance, when the right of eminent 
domain may be exercised, but this is subject to the revision of the courts, so far 
as the uses to which the property is applied, are concerned. 2 Kent, Comm. 340. 

But as to the particular instance, the decision of the legislature, and of the 
commissioners appointed to exercise the power, is ordinarily final and not revis- 
able in the courts of law. Varrick v. Smith, 5 Paige, 137 ; Armington v. Bar- 
net, 15 Vt. 745. 

And the legislature may restrain the owners of property, in regard to its use, 
when in their opinion the public good requires it, unless with compensation to 
those injured, as this is not the exercise of the' right of eminent domain. Com- 
monwealth v. Tewksbury, 11 Met. 55; Coatesr. Mayor of New York, 7 Cowen, 
I lark v. Mayor of Syracuse, 13 Barb. 32. 

The following case recognizes the general right stated in the text. Donnaher 
v. The State, 8 Sm. & M. 649. 
[*229] 



§ 63. GENERAL PRINCIPLES. 247 

* be rather a necessary attribute of the sovereign power in a state, 
than any reserved right in the grant of property to the subject or 
citizen. 

4. It seems to have been accurately denned, and distinctly 
recognized, in the Roman empire, in the days of Augustus, and his 
immediate successors, although, from considerations of policy and 
personal influence and esteem, they did not always choose to exer- 
cise the right, to demolish the dwellings of the inhabitants, either 
in the construction of public roads or aqueducts, or ornamental 
columns, but to purchase the right of way. 

5. But in the states of Europe and in the written Constitution 
of the United States, and in those of most of the American states, 
an express limitation of the exercise of the right makes it depend- 
ent upon compensation to the owner. 3 But this provision in the 
United States Constitution is intended only as a limitation upon 
the exercise of that power, by the government of the United 
States. 3 

6. And it would seem, that notwithstanding this right of sov- 
ereignty may reside in the United States, as the paramount sov- 
ereign, so far as the territories are concerned, in reference to 
internal communication, by highways and railways, and notwith- 
standing the ownership of the soil of a portion of the lands, by the 
United States, in many of the states, as well as territories, still, 
when any of the territories are admitted into the Union, as inde- 
pendent states, the general rights of eminent domain are vested 
exclusively in the state sovereignty. 4 

7. The duty to make compensation for property, taken for pub- 
lic use, is regarded, by the most enlightened jurists, as founded in 

3 Barron v. Baltimore, 7 Peters (U. S.), 243; Fox v. The State of Ohio, 
5 How. (U. S.), 410, 434, 435. 

4 Pollard v. Hagan, 3 How. (U. S.) 212 ; Goodtitle v. Kibbe, 9 How. 471; Doe 
v. Beebe, 13 How. 25; United States v. Railw. Bridge Co., 6 McLean, 517. In 
the Court of Claims, in the case of The Illinois Central Railway v. United 
States, 20 Law Rep. 630, it was held, that the abandonment of a military 
reserve, which had become useless for military purposes, causes it to fall back 
into the general mass of public lands, and that a state, by virtue of its right of 
eminent domain, may authorize the construction of railways through land owned 
but not occupied by the United States. And the United States being in pos- 
session of land owned by the plaintiffs, and which was necessary to carry out the 
objects of their charter, it was held, that a payment made by the plaintiffs, to 
obtain possession thereof, was made under duress, and might be recovered back. 

[*230] 



248 EMINENT DOMAIN. PART III. 

the fundamental principles of natural right and justice, and as 
* lying at the basis of all wise and just government, independent 
of all written constitutions or positive law. 5 

B. Bui the public have a right, by the legislature, through the 
proper functionaries, to regulate the use of navigahle waters, and 
the erect inn of a bridge, with or without a draw, by the authority 
of the Legislature, is the regulation of a public right and not the 
deprivation of a private right, which can be made the ground of an 
action, even where private loss is thereby produced, nor is it the 
taking of private property for public use which will entitle the 
owner to compensation. 6 

9. And where a ford-way was destroyed, by the erection of a 
dam across a river, in the construction of a canal, or other public 
work, under legislative grant, the river being a public highway, 
although not strictly navigable, in the common-law sense ; (which 
only included such rivers as were affected by tide-water,) it was 
held the owner of the ford-way could recover no compensation 
from the state, or their grantees, the act being but a reasonable 
exercise of the right to improve the navigation of the stream, as a 
public highway. 7 

10. Neither can the owner of a fishery, which sustains damage 
or destruction by the building of a dam to improve the navigation 
of a river above tide-water, under grant from the state, sustain an 
action against the grantees. 8 So also in regard to the loss of the 
use of a spring, by deepening the channel of such a stream, by 
legislative grant. 9 

11. Nor is the owner of a dam, erected by legislative grant 
upon a navigable river, and which was afterwards cut off by a 
canal, granted by the same authority, entitled .to recover damages. 10 

nicer, C. J., in Bradshaw v. Rodgers, 20 Johns. 103; 2 Kent, Comm. 
339, and note, and cses cited from the leading continental jurists. 

'■ Davidson v. Boston & Maine Railw., 3 Cush. 91; Gould v. Hudson River 
Railw., 12 Barb. 616; s. c. 2 Selden, 522. Nor have the state any such right 
in flats, where the tide ebbs and flows, as to require a railway company to pay 
them damages for the right of passage. Walker v. Boston & Maine Railw., 3 
Cush. 1 ; s. c. 1 Am. Railw. C. 462. 

7 Zimmerman v. Union Canal Co., 1 Watts & S. 346. 

B Shrunk r. Schuylkill Navigation Co., 14 Serg. & Rawle, 71. 

9 Commonwealth v. Ritcher, 1 Penn. 467. 

16 Susquehannah Canal Co. v. Wright, 9 Watts & Serg. 9; Monongahela Nav- 
igation Co. v. Coons, 6 id. 101. 

[*231] 



§64. 



TAKING LANDS IN INVITUM. 



249 



♦SECTION II. 



Talcing Lands in invitum. 



1. Legi shit ire grant requisite. 

2. Compensation must be made. 

3. Consequential damages. 

4. Extent of such liability. 

5. These grants strictly construed. 

6. Limitation of the power to take lands. 



7. Interference of courts of equity. 

8. Rule of construction in American courts. 

9. Strict, but reasonable construction. 

10. Rights acquired by company. 

11. Limited by the grant. 

12. Decision of the House of Lords. 



§64. 1. In England railways can take lands by compulsion, 
only in conformity to the terms of their charters, and the general 
laws defining their powers. 1 And in this country a railway com- 
pany or other corporation must show, not only the express warrant 
of the legislature 2 (which it must for all its acts) for taking the 
land of others for their own uses, but also that the legislature, in 
giving such warrant, conformed to the constitutions of the states, 
in most of which it is expressly required that compensation should 
be made for all lands taken. And upon this subject, the circum- 
spection of the English courts, in requiring damage and loss to the 
land-owners to be fairly met, is shown very fully by the language 
of Lord Denman, C. J., in The Queen v. The Eastern Counties 
Railway. 3 

• 

1 Taylor v. Clemson, 2 Q. B. 978; s. c. 3 Railw. C. 65. Tindal, C. J., here 
said, " This authority to take land, if exercised adversely, and not by consent, is 
undoubtedly an authority to be carried into effect, by means unknown to the com- 
mon law." And in Barnard v. Wallis, 2 Railw. C. 177, the Master of the Rolls 
declares, tbat aside from the provisions of the act of parliament, the owner of 
one rod of land may insist upon his own terms, to the utter overthrow of the most 
important public work. " The price of his consent must be determined by him- 
self." All kinds of property and estate are subject to this right of eminent 
domain, and a dwelling-house, so long regarded as the inviolable sanctuary of 
the owner or occupant, forms no exception. Wells v. Som. & Ken. Railw. Co., 
47 Me. 345. The right of compensation for property taken by virtue of the right 
of eminent domain is regarded as a fundamental principle of the common law 6*f 
England and of the other European nations. Pumpelly v. Green Bay Co., 13 Wall. 
166. 

2 Hickok v. Plattsburgh, 15 Barb. 435 ; 4 Barb. 127 ; Halstead v. Mayor, 
&c, of New York, 3 Comst. 430; Hart v. Mayor of Albany, 9 Wend. 571, 588; 
2 Denio, 110; Dunham v. Trustees of Rochester, 5 Cowen, 462. 

3 2 Q. B. 347 ; s. c. 2 Railw. C. 736, 752. It has been repeatedly decided that 
the corporate authorities of a city have no power to confer upon any person, 

[*232] 



260 EMINENT DOMAIN. PART III. 

• •_. •• We think it not unfit to premise, that when such largo 
powers are intrusted to a company to carry their works into exe- 
cution. \s iili«»iit the consent of the owners and occupiers of the 
land, it is reasonable and just that any injury to property which 
can be shown to arise from the prosecution of those works should 
be fairly compensated for to the party sustaining it." 

3. In the English statute, too, railway companies are made lia- 
ble to pay damage to the owner of all lands " injuriously affected" 
by any of their works. Such a provision does not exist in many 
of the American states, and consequently no liability is imposed 
for merely consequential damages to lands, no part of which is 
taken. 4 

4. Under the English statute, giving damage where lands are 
" injuriously affected," railways have been held liable for all acts, 
which, if done without legislative grant, would constitute a 
nuisance, and by which a particular party incurs special dam- 
age. 5 

5. These grants, being in derogation of common right, are to 
receive a reasonably strict and guarded construction. 6 The Mas- 
natural or corporate, the franchise of operating a railway. Such a grant for an 
indefinite period is void as a perpetuity. Such powers are held by the city for the 
publii 1" aefit, and cannot be abrogated or delegated. And such a grant is not an 
act of municipal legislation merely, but a contract which, if valid, it could not 
revoke or limit, and which is consequently void as a perpetuity. Milhau v. 
Sharp, 27 X. Y. 611 ; j^st, § 76. 

* Hatch v. Vermont Central Railw., 25 Vt. 49; Philadelphia & Trenton 
Kailw., 6 Whart. 25; Monongahela Nav. Co. v. Coon, 6 Watts & Serg. 101. 
See also Protzman v. Ind. & Cin. Railw., 9 Ind. 467 ; Evansville & Crawfords- 
villc Kailw. v. Dick, id. 433. But the full extent of the doctrine in the text 
seen^ to be questioned or doubted in Pumpelly v. Green Bay Co., 13 Wall. 166. 

& Queen v. Eastern Co.'s Railw., 2 Q. B. 347 ; Glover r. North Staffordshire 
Kailw., 16 Q. B. 912; s. c. 5 Eng. L. & Eq. 335. The English rule of com- 
pensation seems to be to estimate what the land-owner will lose rather than what 
the company will gain. Stebbing r. The Met. lid. of Works, L. R. 6 Q. B. 37. 
ay o. Liverpool & Bury Railw., 9 Beav. 391 ; s. c. 4 Railw. C. 235-240. 
II. ace under a general grant of power to take laud for the track of a railway, 
with sidings and branches to the towns along the line, the company have no 
power t<> take land for a temporary track during the period of constructing the 
main line. ( urri< r v. Marietta & Cin. Railw. Co., 1 1 Ohio (N. S.), 228. Nor 
can a railway company, under their general powers, take lands at a distance 
from their line not intended to be used in its construction. Waldo v. Chicago, 
St Paul, & Fond du Lac Kailw. < !o., 1 1 Wis. 575. Nor can a railway company 
land compulsorily for the purpose of erecting a manufactory of railway cars, 
or dwellings to be rented to the employes of the company. But they may take 

[*233] 



§ 64. TAKING LANDS IN INVITUM. 251 

ter * of the Rolls, in this last case, says, " In these cases it is always 
to be borne in mind, that the acts of parliament are acts of sover- 
eign and imperial power, operating in the most harsh shape in 
which that power can be applied in civil matters, — solicited, as 
they are, by individuals, for the purpose of private speculation and 
individual benefit." And in another case 7 the rule of construc- 
tion is thus laid down : — 

6. " These powers extend no further than expressly stated in 
the act, except where they are necessarily and properly acquired 
for the purposes which the act has sanctioned." This last cate- 
gory, as here observed, is often a most perplexing one, in regard 
to its true extent and just limits. And doubtful grants are to be 
construed most favorably towards those who seek to defend their 
property from invasion. 8 And a railway, having an option between 
different routes, can only take lands on that route which they 
ultimately adopt ; and if they contract for land upon the other 
routes, cannot be compelled to take it. 9 The time for exercise of 
these compulsory powers, by the English statutes, is limited to 
three years, 10 except for improvements necessary for the public 
safety, in conformity with the certificate of the Board of Trade. 

land for the purpose of storing wood and lumber used on the road, or brought 
there for transportation upon it. And when land is taken for a legitimate pur- 
pose, the decision of the locating officers of the company is conclusive as to the 
extent required for that purpose, unless the quantity so taken is clearly beyond 
any just necessity. Vt. & Canada R. v. Vt. Cent. R., 34 Vt. 2. 

7 Colman v. The Eastern Counties Railw., 10 Beav. 1 ; s. c. 4 Railw. C. 513, 
524; State v. B. & O. Railw., 6 Gill, 3G3 ; Simpson v. So. Staff. Waterworks 
Co., 11 Jur. (N. S.) 453. And in a case in Kentucky, the rule is thus stated: 
The rules of construction which apply to charters delegating sovereign power 
to corporations do not depend upon the question whether the corporation 
is a private or a public one, but on the character of the powers conferred, and 
the purposes of the organization. The power of a railway, or other private cor- 
poration, to take private property for its use, being a delegation of sovereign 
power must be construed as it would be if delegated to a municipal corporation. 
And the powers of private and public corporations, with respect to their property, 
are governed by the same principles, and, in the absence of express provisions of 
law, depend upon the purposes for which the corporation was formed. Bardstown 
& Lou. R. R. Co. v. Metcalfe, 4 Met. (Ky.) 199. 

8 Sparrow v. Oxford, W. & W. Railw., 9 Hare, 436 ; s. c. 12 Eng. L. & Eq. 
249 ; Shelford on Railways, 233. 

9 Tomlinson v. Man. & Birm. Railw., 2 Railw. C. 104; Webb v. Man. & 
Leeds Railw., 1 Railw. C. 576. 

10 Such a limitation is held obligatory wherever it exists. Peavey v. Calais 
Railw., 30 Maine, 498 ; s. c. 1 Am. Railw. C. 147. 

[*234] 



EMINENT DOMAIN. PART III. 

It was decided by the House of Lords, reversing the judgment 
of the Lords Justices, but affirming that of the Vice-Chancellor, 
that where the legislature authorizes a railway company to take, 
for their purposes, any lands described in their act, it constitutes 
* them tin 1 Bole judges as to whether they will or will not take those 
lands, provided that they take them bona fide with the purpose of 
using them fur the purposes authorized by the legislature, and not 
I'm- any sinister or collateral purpose. 11 And that a court of equity 
cannot interfere, even upon the decision of an engineer, to curtail 
the power of'the company, in regard to the quantity of land sought 
obtained by it, so long as it acts in good faith. But in a 
later ease '- it was said that the House of Lords, in the case of 
Stockton & Co. v. Brown, did not decide that the company, by its 
engineer, had an unlimited discretion to take any land which the 
engineer would make affidavit the company required for use in the 
construction of their works, without stating what works; but that 
it must appear to what use they proposed to put the lands, and if 
that came fairly within the range of their powers, the company 
could not be controlled in the bona fide exercise of its discretion as 
to the mode of constructing their works, w 7 ithin the powers con- 
fided to them by the legislature. The company will not be re- 
strained from taking land for the purpose of depositing waste 
upon, although not confident of requiring it for any other purpose 
connected with the construction. 13 

7. Asa general rule in the English courts of equity, if the con- 
struction of a railway charter be doubtful, they will remit the 
party to a court of law to settle the right, in the mean time so ex- 
ercising the power of granting temporary injunctions as will best 
conduce to the preservation of the ultimate interests of all parties. 14 

8. Similar rules of construction have prevailed in the courts of 
this country. The language of C. J. Taney, in the leading case 
upon this subject, in the national tribunal of last resort, is very 

" Stockton & Darlington Railw. Co. v. Brown, 6 Jur. (N. S.) 1168; s. c. 9 
II ■ '• C. 246; North Missouri Railw. v. Lackland, 25 Mo. 515; Same v. Gott, 
id. 540. 

- 1 lower v. London Br. & S. Coast Railw. Co., 2 Drew. & Sm. 330; s. c. 
11 Jnr (N. S.) W6. 

ia Lund r. Midland Railw. Co., 34 L. J. Cb. 276. 

» Clarence Railw. p. Great North of England, C. & H. J. Railw., 2 Railw. 
But the practice of courts of equity, in this respect, is by no means 
uniform. Si e post, chap. xxix. 

[•235] 



§ 64. TAKING LANDS IN INVITUM. 253 

explicit " It would present a singular spectacle, if, while the 
courts of England are restraining within the strictest limits the 
spirit of monopoly and exclusive privilege in nature of monopoly, 
and confining corporations to the privileges plainly given to them 
in their charter, the courts of this country should be found enlarg- 
ing * these privileges by implication." 15 And in commenting upon 
the former decisions of that court, upon this subject, the same 
learned judge here says, "The principle is recognized, that in 
grants by the public nothing passes by implication." 10 And other 
cases are here referred to in the same court, in support of the same 
view. 17 

9. But it is not to be inferred that the courts in this country, or 
in England, intend to disregard the general scope and purpose of 
the grant, or reasonable implications, resulting from attending 
circumstances. But if doubts still remain, they are to be solved 
against the powers claimed. 18 

10. But where the right of the company to appropriate the 
land is perfected under the statute, they may enter upon it with- 
out any process for that purpose, and the resistance of the owner 
is unlawful, and he may be restrained by injunction, but that is 
unnecessary. The statute is a warrant to the company. 19 

15 Charles River Bridge v. Warren Bridge, 11 Pet. 420. 

16 U. S. v. Arredondo, 6 Pet. 691, 738. 

17 Jackson v. Lamphire, 3 Pet. 280; Beaty v. Knowler, 4 Pet. 152, 168; 
Providence Bank v. Billings & Pittman, 4 Pet. 514. And that court not only 
adheres to the same view still, but may have carried it, in some instances, to the 
extreme of excluding all implied powers. See also, upon this subject, Common- 
wealth v: Erie & Northeast Railw., 27 Penn. St. 339 ; and Bradley v. New York 
& New Haven Railw., 21 Conn. 294. 

18 Perrine v. Ches. & Del. Canal Co., 9 How. 172; Enfield Toll-Bridge v. 
Hartford & N. H. Railw., 17 Conn. 454; Springfield v. Conn. River Railw., 4 
Cush. 63; 30 Maine, 498; 9 Met. 553; 1 Zab. 442; 3 Zab. 510; 21 Penn. St. 
9 ; 15 111. 20. The following cases will be found to confirm the general views of 
the text: Tuckahoe Canal Co. v. Tuckahoe Railw., 11 Leigh, 42; Greenleaf's 
Cruise, vol. 2, 67, 68; Thompson v. N. Y. & H. Railw., 3 Sandf. Ch. 625; 
Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547; Moorhead v. Little Miami 
Railw., 17 Ohio, 340; Stormfeltz v. Manor Turnpike Co., 13 Penn. St. 555; 
Toledo Bank v. Bond, 1 Ohio (N. S.), 636; Cincinnati Coll. v. State, 17 Ohio, 
110 ; Cam. & Aniboy R. v. Briggs, 2 Zab. 623 ; Carr v. Georgia Railw. & Bank- 
ing Co., 1 Kelly, 524; 7 Ga. 221; New London v. Brainard, 22 Conn. 552; 
Bradley v. N. Y. & N. H. Railw., 21 Conn. 294 ; 9 Ga. 475 ; Barrett v. Stockton 
& D. Railw., 2 M. & G. 134. 

,9 Niagara Falls & Lake Ontario Railw. v. Hotchkiss, 16 Barb. 270. 

[*236] 



25 1 EMINENT DOMAIN. PART III. 

1 1 . Bui a grant to a railway to carry passengers and merchan- 
i, A. to M.. does not authorize them to transport merchan- 
Mii their depot in the city of M. about the city, or to other 
points, For the accommodation of customers. 20 

I_. There lias been considerable discussion in the English 
•courts, within the last few years, in regard to many recent 
statutes there, for the improvement of markets and streets in the 
metropolis or districts adjoining, through the agency of the 
municipal corporations. And while the courts there, and espe- 
cially the House of Lords, in one case, 21 adhere strenuously to the 
former rule, in regard to private corporations, that they can only 
take lands compulsorily, for the needful purposes of the works 
which they are authorized by the legislature to construct; on the 
other hand, they hold that it is competent and proper under parlia- 
mentary powers granted for that purpose, to allow municipal cor- 
porations to reimburse the expense of any improvements which 
they are authorized to carry forward, in their streets and squares 
or markets, by taking the lands adjoining such improvements, at 
the price of their value before such improvements, and selling them 
at the advanced prices caused by such improvements. And it was 
held that the municipality having, before the act passed, contracted 
for the sale of such of the lands so to be taken as they should not 
require for the purpose of the public improvement, did not dis- 
qualify them from exercising the discretion reposed in them by the 
act. as to how much land they would take. This rule of law in 

. 1 to the proper mode of reimbursing the expense of great 
public improvements is not very different from that which has been 
extensively in use in America under the name of betterment acts, 
whereby the expense is assessed upon the adjoining property- 
owners, upon some scheme of equalization, presumptively appor- 
tioning the loss and benefit equitably. 22 

5 M i n r. Macon & W.-stern Railw., 7 Ga. 221. 

n Galloway v. The Mayor & Commonalty of London and the Metropolitan 
Railw. Co., et vice versa, 12 Jur. (N. S.) 747. (1866.) s. c. Law Rep. 1 H. 

" Post, § 235, and cases cited in n. 22, 23. 

[*237] 



§65. 



CONDITIONS PRECEDENT. 



255 



SECTION III. 



Conditions Precedent. 



1. Conditions precedent must be complied with. 

2. That must be alleged in petition. 

3. When title vests in company. 

4. Filing the location in the land office is no- 

tice to subsequent purchasers. 

5. After damages are assessed and confirmed 



by the court the owner is entitled to exe- 
cution. 

6. If the company use the land. 

7. Subscriptions payable in land without com- 

pensation, a court of equity will enforce 
payment. 



§65. 1. It has been held that a railway company must comply 
with all the conditions in its charter, or the general laws of the 
* state, requisite to enable it to go forward in its construction, before 
it acquires any right to take land by compulsion. In England one 
of these conditions in the general law is, that stock, to the amount 
of the estimated cost of the entire work, shall be subscribed. And 
where the charter, or the general laws of the state gave the right 
to take land for the road-way only upon the legislature having 
approved of the route and termini of the line, it was held the com- 
pany could not proceed to condemn lands for that purpose until 
this approval was made. 1 

2. And where the act of the legislature, under which a railway 
was empowered to take lands, required the company to apply to 
the owner, and endeavor to agree with him as to the compensa- 
tion, unless the owner be absent or legally incapacitated, they have 
no right to petition for viewers until that is done. 2 The petition 
should allege the fact that they cannot agree with the owner. 2 

The right of such companies to take land is held in some states 
to depend upon the legal sufficiency and validity of the certificate 
and public record of organization ; and it was held the company 

1 Gillinwater v. The Mississippi & A. Railw. Co., 13 111. 1. 

* Reitenbaugh v. Chester Valley Railw., 21 Perm. St. 100. But where the 
company have the right to lay their road, not exceeding six rods in width, and 
have fixed the centre line of the same, they may apply for the appointment of 
appraisers, and determine the width of the road, any time before the appraisal. 
Williams v. Hartford & New Haven Railw., 13 Conn. 110. But slight, if indeed 
any, evidence of this failure to agree with the land-owner is required, where the 
claimant appears and makes no objection on that ground. Doughty v. Somerville 
& Eastern Railw., 1 Zab. 442. And the petition maybe amended where this 
averment is omitted. Pennsylvania Railw. v. Porter, 29 Penn. St. 165. 

[*238] 



EMINENT DOMAIN. PART IB. 

must show these prerequisites to be strictly in conformity with the 
requirements of the law. 3 

.".. Where the charter of a railway company provides that the 
title of land condemned for the use of the company shall vest in 
the company, upon the payment of the amount of the valuation, 
no title vesta until such payment. 4 In a late case, 5 the law upon 
* this subject is thus summed up : Where the charter of the com- 
pany provides, that after the appraisal of land, for their use, " upon 
lyment of the same" or deposit, (as the case may be,) the 
company shall be deemed to be seized and possessed of all such 
lands, " they must pay or deposit the money before any such right 
accrues." — " The payment or deposit of the money awarded is a 
condition precedent to the right of the company to enter upon the 
land for the purposes of construction ; and without compliance with 
it they may be enjoined by a court of equity, or prosecuted in tres- 
pass at law, for so doing. The right of the land-owner to the 
damages awarded is a correlative right to that of the company to 
the land. If the company has no vested right to the land, the 
land-owner has none to the price to be paid." 

1. And where the charter contained the usual power to take 
land, it was held, that after laying out their road and filing the 
location in the land-office, the company had acquired a right of 
entry, which subsequent purchasers were bound to respect. 6 

5. And where the road has been laid and the damages assessed, 
andj confirmed by the court, the owner of the land is entitled to 
execution, although the company have not taken possession of the 
land, and may desire to change the route. 7 

6. But where the railway enter into the possession of the land, 
and construct their road without having paid the whole of the 
damages assessed therefor, a court of equity will enforce the pay- 

Railw. v. Sullivant, 5 Ohio (N. S.), 276. 

1 Baltimore & Susquehanna Railw. v. Nesbit, 10 How. (IT. S.) 395. See 

' mpton v. Susquehanna Railw., 3 Bland, 386, 391 ; Van Wicfcle v. Railw., 

icy r. Vermont Central Railw., 27 Vt. 39 ; Levering v. Railw. 

' I. And upon payment of the compensation assessed 

missioners, and taking possession afterward, the title of the company is 

linst the party to the proceedings. Bath River Navigation Co. 

r. Wii is, 2 Eta Iw. C. 7. 

ntral Railw., 27 Vt. 39. 
• Davii v. E. T. & Ga. Railw.. 1 Sneed, 9-4. 

onnelsville Railw., 31 Penn. St. 19. 

[*2i 



§ 65. CONDITIONS PRECEDENT. 257 

ment by an order for such payment within a time named, and in 
default will restrain the company by injunction from using the 
land until the price is paid. 8 In one case it was held, that where 
the railway is surveyed and located and the land-owner consents 
to the company entering and building their road before the 
damages are ascertained, under an agreement that this shall be 
done thereafter, and the road is thereupon constructed, the title 
to the land passes, and the owner retains no lien thereon for his 
damages, but must look for payment to the party contracting. 9 
But in an English case, 10 it was held that the owner of lands 
* taken possession of by a railway company, either under statutory 
power or by agreement, has a lien thereon for the purchase-money 
and also for the damages to the adjoining land, if not the subject 
of a special agreement, inconsistent with the continuance of such 
lien. Of this lien he is not deprived by a deposit and bond under 
the statute, or by accepting a deposit, less than the whole amount 
due him, and a court of equity will enforce this lien, although the 
railway has been opened for public use. 

7. And where a subscription of land is made to a railway com- 
pany, upon some condition precedent to be performed by the 
company, such condition is waived by conveying the land and 
accepting certificates of stock. But if such conveyance is induced 
by false representations, the company may be compelled to per- 
form it, or by tendering a return of the certificates the entire con- 
veyance may be set aside, even after the company have conveyed 
the land to others connusant of the facts at the time of such con- 
veyance. 8 

8 Cozens v. Bognor Railw., Law Rep. 1 Ch. App. 594; s. c. 12 Jur. (N. S.) 
738. 

9 Knapp v. McAuley, 39 Vt. 275. But in this state the vendor's lien upon real 
estate for the price is expressly repealed by act of the legislature. 

10 Walker v. Ware, &c. Railw., Law Rep. 1 Eq. 195. 



17 [*240] 



258 



EMINENT DOMAIN. 



PART III, 



SEC T ION IV. 



Prelim inary Surveys. 



1. .1/ without compt nsation. 

!S< r. 

;;. / irAal purposes company may enter 

amis. 



4. Company liable for materials. 
6. /.'/',■/</ to /"/' materials. 
6, 7. Location of survey. 



§ 66. 1. It is settled that the legislature may authorize railway 
companies to enter upon lands for the purpose of preliminary 
surveys, without making compensation therefor, doing as little 
damage as possible, and selecting such season of the year as 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. 1 

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, 
• 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 tempo- 
ral y purposes should specify the particular purpose for which the 
lands are required. 2 By the English statute, 3 the company may 
make a temporary entry upon land for the following purposes: — 

1st. For the purpose of taking earth, or soil, by side cuttings. 
2d. For the purpose of depositing spoil. 

3d. For the purpose of obtaining materials for the construction 
or repair of the railway. 

Smith, oi Maine, 247; Polly v. S. & W. Railw. Co., 9 Barb. 

449; Bloodg I v. Mohawk &H. Railw. Co., 14 Wend. 51; s. c. 18 Wend. 9; 

B. 0. 1 Redf. Am. Railw. Cases, 209; Mercer v. McWilliams, Wright (Ohio), 
L32. But in Borne states the party is made liable by statute for damages for tem- 
porary occupation. 

1 Poynder o. The Great N. Railw. Co., 16 Sim. 3; s. c. 5 Railw. C. 196. 
i 9 Vict. ch. 20, § 32. 

[•241] 



§ 66. PRELIMINARY SURVEYS. 259 

4th. For the purpose of forming roads to, from, or by the side of 
the railway. 4 

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, 5 that the damages need not be appraised till after the mate- 
rials were taken : That the commissioners had authority to assess 
damages for every act which the company might lawfully do under 
their charter : that the company had the right to take such materi- 
als, in invitum, and to use other land, without their survey, for 
* 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. 

5. 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. 5 
And in a somewhat recent case, 6 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. 

4 In Webb v. The Manchester & Leeds Railw. Co., 4 Myl. & Cr. 116 ; s. 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. 1 ' 

5 Vermont Central Railw. v. Baxter, 22 Vt. 365. See also Bliss v. Hosmer, 
15 Ohio, 44; Lyon v. Jerome, 15 Wendell, 569; Wheelock v. Young & Pratt, 
4 Wendell, 647. Also Lesher v. The Wabash Nav. Co., 14 Illinois, 85. See 
post, § 68. 

6 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 

[*242] 



EMINENT DOMAIN. PART III. 

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 - i upon." 

7. And the onua is upon the company to justify by showing that 
the land is covered by the authorized location. 7 The location filed 
by the company is conclusive evidence of the land taken and can- 
nut be inn trolled 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. 7 



♦SECTION V. 

temporary Possession of Public and Private Ways. 

railway company may take possession 3. Party excavating highway in building 

of public or private ways, in building sewer and having restored it, no further 

their works. Responsibility. responsible. 
2. /.' the statutes, unless special 

dun, 



§67. 1. Under the English statute, 1 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 
ial 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. 2 

red, not for the purpose of constructing any portion of tbe works upon it, 
but to Bupply earth or other material to be used upon other land. Bentinck v. 
■ lary < o., 8 De Gr., M. & G. 714. 
r JI ■'• '■ ' ' he Boston & Maine Railw., 2 Gray, 574; Stone v. Cambridge, 6 
; H . Shackford, 3 N. H. 10; Lewiston v. County Commissioners, 

: Little r. Newport, A. & II. Railw., 12 C. B. 752; s. c. 14 Eng. 
Springfield v. Conn. River Railw., 4 Cush. 63, 69, 70. 
■ 9 Vict. c. 20, § 30. 
una r. Great Northern Railw. Co., 16 Q. B. 961; s. c. 6 Eng. L. & 
[•243] 



§68. 



LAND FOR ORDINARY AND EXTRAORDINARY USES. 



261 



3. A party who excavates a public highway for the purpose of 
constructing a sewer, by contract with the public authorities, aiui 
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. 3 



*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. 



3. So also of companies connecting at state 
lines. 



§ 68. 1. By the English statutes, railway companies may not 
only purchase land for the purpose of the track, but also for all 
such extraordinary uses as will conduce to the successful prosecu- 
tion of their business. 1 This includes the site of stations, yards, 

Eq. 179. But in Rangeley v. Midland Railw., Law Rep. 3 Ch. App. 306, it is said 
the company have no power under the statute to divert a public foot-path, so as 
to place it upon land of which it had not acquired the title. 

3 Hyams v. Webster, Law Rep. 2 Q. B. 264. 

1 8 & 9 Vict. ch. 20, § 45. This section is only operative to enable the com- 
pany to take lands for extraordinary purposes, beyond the line of deviation, by 
consent of the owners. But it is held that the justices have no jurisdiction, 
under the Railway Clauses Consolidation Act, to determine when accommodation 
works are necessary, but only what works are necessary, assuming that some such 
works are to be made. Reg. v. Waterford & L. Railw., 2 Irish Law (n. s.), 580. 
See post, § 93 et seq. In the case of Chicago, Burlington, & Quincy Railw. v. 
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 necessary for the convenient use of 
the same, will authorize them to take land, compulsorily, for workshops. And this 
power is not exhausted by the apparent completion of the road ; but if an in- 
crease 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 
fur (.Tecting a paint-shop and lumber and timber sheds for the use of the com- 
pany. Low v. Galena & Chicago Union Railw., 18 111. 324. And the company 
may take all lands requisite for stations, for the storing and keeping of cars and 

[*244] 



EMINENT DOMAIN. PART III. 

wharves, places for the accommodation of passengers, and the de- 
I ol 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 cannoi acquire the fee of land for the mere purpose of ex- 
cavating soil in order to construct an embankment. 2 And it has 

1 n decided thai a railway company cannot take land for any 

subsidiary purpose, even where the direct act of the company 
comes within the powers granted them. 3 As where they proposed 
* 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. 4 But this will 
not allow the company to build a branch road on a different route 
from that embraced in its charter. 4 

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 

necessarily implied, as indispensable to the accomplishment 
of the general purposes of the corporation, and the design of the 
lative grant. 

\nd the same implied power is to be extended to a railway 
corporation, in a neighboring state, with which, by express statute, 

engines, t'nr the receipt and delivery of freight, and for its safe storage. And it 
is no answer to this claim that there are other lands suitable for those uses which 
npany might purchase, or that the company already have a limited interest 
in the I.umI- proposed to be taken. In re N. Y. & H. Railw., 46 N. Y. 546. 

Midsussex Railw., 1 Gif. 151; s. c. affirmed, 3 De G. & J 

: 1 1 Id v. Salisbury & Y. Railw., 1 Gif. 158; s. c. on appeal, 5 Jur. (N S ) 
7-_'. 

1 B 0. & M. Railw. Co. V. Smith, 47 Me. 35. A grant to cross a highway 
will not justify running parallel to and upon it. lb. 

[•245] 



§ 68. LAND FOR ORDINARY AND EXTRAORDINARY USES. 263 

railways of the state where the lands lie have the right to unite at 
the line of the state, 5 or to extend their road into this state. 6 
* 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. 7 

5 State v. Boston, Concord, & Montreal Railw. Co., 25 Vt. 433; s. c. 1 Redf. 
Am. Railw. Cases, 84. In this case a railway company in New Hampshire had 
constructed their road to the line of Vermont (where, by statute of the legislature 
of Vermont, two other roads were chartered, with permission to unite with any 
New Hampshire road), and had there purchased some fifteen acres of land, 
adjoining the terminus of their road, which is of course the "westernmost" 
bank of Connecticut River, their bridge being all in New Hampshire except the 
western abutment, which of necessity must rest upon Vermont soil. The com- 
pany bad no express grant from the legislature of Vermont. A controversy aris- 
ing between this New Hampshire road and the Vermont roads at this point, in 
regard to the terms of junction, a quo warranto was prosecuted on behalf of the 
state, to determine the right of the New Hampshire railway to purchase and 
hold lands in the state of Vermont. 

It was attempted to maintain, on the part of the 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 
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. 
348.- In the Supreme Court of New Hampshire, 20 Law Rep. 646, Crosby v. 
Hanover, it was held that the franchise of a toll-bridge across Connecticut 
River might be taken for a free highway, upon compensation being made to the 
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, s. c. 36 N. H. 404. 

6 New York & Erie Railw. v. Young, 33 Penn. St. 175. 

7 Semple v. The London & Birmingham Railw., 9 Sim. 209; s. c. 1 Railw. 
C. 480 ; Vt. Central Railw. v. Baxter, 22 Vt. 365 ; ante, § 66 ; Lesher v. Wabash 
Nav. Co., 14 111. 85. 

[*246] 



264 



EMINENT DOMAIN. 



PART III. 



S 1 - 1 T I I » N VI I. 



Title acquired by Company. 



pony have only right of way. 

nothing from soU except for con- 

'■•in. 
■ I in fa -simpL to company. 

what Uses may taki land. 

■,'lu-ay, extent of. 
licting rights in different companies. 
7, 8 /■ • " the American states. 
9 /. ht to us> streets of a city. 



10. Lava not the same in all the states. 

1 1. Rule in Mussachusi tts. 

12, 18. Land reverts to the owner. 

14. True rule stated. 

15. Conditions must be performed. 

16. Further assurance of title. 

17. Condemnation cannot be impeached. 

is. Where public acrjuire fee, it will never 
r, vert to grantor. 



§ 69. 1. Questions have sometimes arisen, in regard to the pre- 
tle acquired by a railway company in lands purchased by them, 
where the conveyance is a fee-simple. It is certain, in this coun- 
try, upon general principles, that a railway company, by virtue of 
their* compulsory powers, in taking lands, could acquire no absolute 
fee-simple, but only the right to use the land for their purposes. 
And it is wry questionable whether a railway, in such case, is en- 
titled to the herbage growing upon the land, or to cultivate the 
same, or to dig for stone, or minerals, in the land, beyond what is 
- i iv for their purposes in construction. 

2. In England, the statutes 1 give all such minerals to the for- 

i 9 Vict. c. 20, § 17. In Conn. & Pass. Railw. Co. v. Holton, 32 Vt. 
18, it was decided, that the land-owner, after liis land was legally appropriated 
for the track of a railway, lias no right to enter upon or use such land for any 
purpose which in the least degree endangers or embarrasses its use for any pur- 
■ :• which the railway has appropriated it. And consequently the owner 
could not enter upon the land with teams to remove turf therefrom, the effect 
of which entry would be to enhance the danger of cattle getting upon the track, 
and to in' pease the dusl by the passage of the cars after the sward is removed from 
the Bides of the track. And the land-owner has no rij^ht to cross the track of 
the company at any other point than that established by the taking of the land; 
nor can he build a farm-crossing, unless established by law. And a railway 
company may maintain trespass for all unlawful entries and acts upon the land 
appropriated to their use when such :nts interfere with their exclusive possession. 
B. P. in N- Penn. R. v. ELi ■hman, 5 Am. Law Reg. (N. S.) 49. And in Troy 
and Boston Railw. v. Potter, 42 Vt. 265, it was decided that the owner of the 

ind condemned for the use of a railway has no right to enter upon the 
land while in the use of the railway, and take therefrom the herbage and other 
products of the soil. 

[•247] 



§ 69. TITLE ACQUIRED BY COMPANY. 265 

mer owner of the land, except such as are necessary in con- 
struction, unless the same shall have been expressly purchased. 
And in this country, no doubt, the same construction would be 
adopted, in regard to all lands taken by compulsory proceeding. 2 
* 3. But it admits of some question, we think, what is the 
precise effect of a deed, in fee-simple, to a railway company. It 
would seem, upon general principles, that the grantor should be 
estopped from claiming any interest in the land, after the execu- 
tion of his deed. But it seems to be agreed, in all the books, that, 
to the efficacy of a deed of land, it is requisite that the grantee be 
capable of taking the estate. And if the grantee be an alien, or a 
corporation incapable of holding such estate, the deed is inopera- 
tive. Hence, in some of the cases, it seems to be a just inference 
from the reasoning of the court, that a railway, by a deed in fee- 
simple, acquires only a right of way, 3 that being all which such 
corporation is capable of taking. 

2 Baker v. Johnson, 2 Hill (N. Y.), 342. It was held here, that a con- 
tractor to build a canal, who stipulated with the commissioners to find all the 
materials necessary to the performance of the work, with stipulations in the con- 
tract that he might use all the earth obtained by excavation, might also use the 
stone obtained by excavating the bed of the canal across plaintiff's land, and 
that trover will not lie for such use. Timber standing on land taken for a rail- 
way belongs to the owner of the land, except so far as necessary for the con- 
struction and repair of the road. Preston v. Dub. & Pacific Railw. Co., 11 Iowa, 
15. Earth and minerals above the grade of the road may be used by the com- 
pany, but those below belong to the owner of the land. Evans v. Haefner, 29 
Mo. 1-41. 

The condemnation of land for the construction of a railway justifies the entry 
and necessary excavation of the soil by the company and its servants. Green 
v. Boody, 21 Ind. 10. But stone excavated in the construction, and which is 
not used upon any portion of the line, belongs to the owner of the land. 
Chapin v. Sullivan Railw. Co., 39 N. H. 561. But it seems from this, and 
from the general practice in the construction of railways, that earth or any other 
material which is excavated upon one portion of the line may be used upon any 
other portion, if required. 

3 Uean v. Sullivan Railw., 2 Foster, 316 ; United States v. Harris, 1 Sumner, 
21. It is held in some cases, that a grant to a railway, before its incorporation, 
is valid, not being the conveyance of a fee, and, to its operation and effect, not 
requiring the existence of a grantee, at the time of the conveyance. Rathbone 
v. Tioga Navigation Co., 2 Watts & Serg. -47. But it seems now to be con- 
sidered that railway companies may acquire the absolute fee in land by purchase 
and deed in fee-simple, and the title will remain in the company after it has 
changed the location of its road, and ceased to use it for corporate purposes. 
Page v. Heineberg, 40 Vt. 81. 

[*248] 



266 EMINENT DOMAIN. PART III. 

I. It has been held in some of the states, that the lands of a 
railway company are subject to sale upon execution against them, 
or may be assigned by them. 4 So, too, they may purchase and 

' Arthur r. Commercial & Railroad Hank, 9 Smedes & Marshall, 394. But 
this right to levy upon the lands of a railway company only extends to such 
lands, however acquired, as are not required to the full exercise and enjoyment 
of the corporate franchise. Plymouth Railw. Co. v. Colwell, 39 Penn. St. 337. 
And a canal basin is not Buch a legitimate incident of a railway franchise as to 
be protected from levy, where there is no authorized canal connection. lb. 
And town lots held by a railway company are not to be regarded as an incident 
of the franchise, so as to pass by a mortgage of the road "with its corporate 
privileges and appurtenances," unless directly appurtenant to the road and indis- 
jsary to the exercise of its franchises. Shamokin Valley Railw. v. 
Livermore, 17 Penn. St. 465. It has been held, that railway bonds were liable 
to lew on execution, but that seems questionable. Hetherington et al. v. Hay- 
den. 11 fowa, 335. 

In a case in Vermont, Hill v. Western Vermont Railw. Co., 32 Vt. 68. the 
company, before the road was laid out or surveyed, procured a bond from 
B. to sell them such lands owned by him as should be required for their road. 
Their charter provided that the directors might cause such surveys of the road 
to be made as they deemed necessary, and fix the line of the same, and that the 
company might enter upon and take possession of such lands as were necessary 
f>r the construction of their road and requisite accommodations. The survey of 
the road, made by order of the directors, designated certain land belonging to 
depot grounds; and the company paid him for and took the same, but 
never received any conveyance thereof from him. The plaintiff, having recov- 
ered a judgment against the company, levied his execution upon a portion 
of this land, and brought ejectment against the company to recover possession 
thereof. The referee, to whom the case was referred, found that a part of the 
land embraced in the levy was never necessary to the company for radway 
purposes, and would not become so prospectively. Held, that by B.'s contract 
■with the company he was not bound to convey to them any greater quantity of, 
or estate in, his land than they required for depot accommodations; that under 
their charter the company could not acquire anymore land, or any greater estate 
therein, for the purposes of a road-bed or stations, than was really requisite 
for sncli uses; that the estate so requisite was not one in fee-simple, but 
merely an easement, and was, therefore, not subject to be levied upon by the 
creditors of the company; that when taken for such purposes, the rule was 
the same, whether the land was taken compulsorily by condemnation and the 
award of commissioners, as to its extent and price, or under the agreement of 
tin- parties as to one or both of these particulars; that under their charter the 
directors had power to lay out their road and stations as they saw fit; and that, 
so long as they acted in good faith and not recklessly, their decision as to 
the quantity of land required for depot accommodations would be regarded as 
conclusive. 

[*248] 



§ 69. TITLE ACQUIRED BY COMPANY. 267 

* hold land for the procurement of materials, or for the economical 
construction of the road. 5 In an English case, 6 it was held that 
the railway could not use land, thus conveyed, for any other pur- 
pose than that expressed in the acts of parliament, by virtue of 
which the company exercised their functions. 

5. It has been held that, where one railway has power in their 
act to cross another railway, there being no express permission in 
the act for one company to take land, or for the other company to 
sell, that the first company could not be compelled, by mandamus, 
to purchase any of the land upon which the other road was con- 
structed, their only claim being one for damages. 7 So, also, the 
right to make a junction with a pre-existing railway, does not im- 
ply the power to take the title to any of the lands of such railway, 
unless that is indispensable to effect the junction, but only to enter 
upon such lands, by way of easement, for the purpose of effecting 
the junction. 8 

6. But where the legislature confer the power upon two railway 

* companies to purchase compulsorily the same piece of land, and 
one company has taken the land and constructed their road upon 
it, equity will enjoin the other company from proceeding to take it 
compulsorily for their use, until the conflicting rights of the com- 
panies are determined by a trial at law. 9 

7. The general course of decisions in this country coincides with 
the English common-law rule, in regard to the title acquired by the 
public, by the exercise of the right of eminent domain, that is, that 
no more of the title is divested from the former owner than what is 
necessary for the public use. 10 The owner may still maintain tres- 
pass, for any injury to the freehold by a stranger. 10 

8. And in regard to railways, in particular, it has been repeat- 
edly decided in the different states, that they take only an ease- 

5 Overmyer v. Williams, 15 Ohio, 26. 

6 Bostoek v. The North Staffordshire Railw., 3 Sm. & Gif. 283. 

7 Reg. v. South Wales Railw., 13 Q. B. 988; s. c. 6 Railw. C. 489. 

8 Oxford, Worcester, & Wolverhampton Railw. v. South Staffordshire Railw., 

1 Drew. 255 ; s. c. 19 Eng. L. & Eq. 131. 

9 Manchester, S. & L. Railw. v. The Great N. Railw., 9 Hare, 284; s. c. 12 
Eng. L. & Eq. 216. 

10 Dovaston v. Payne, 2 H. Bl. 527; Rust v. Low, 6 Mass. 90; Jackson v. 
Rutland & Burlington Railw., 25 Vt. 151 ; s. c. 1 Redf. Am. Railw. Cases, 362 ; 

2 RohVs Ab. 566, pi. 1. 

[*249, 250] 



EMINENT DOMAIN. PART III. 

men1 in land condemned for their use. 11 In an important case 12 
in the Supreme Court of the United States, involving questions of 
title in regard to the streets in the city of Pittsburgh, Mr. Justice 
.1/ Lean thus sums up the general doctrine: — 

" By the common law, the fee in the soil remains in the original 
owner where a public road is established over it; but the use of 
the n»;ul is in the public. The owner parts with this use only ; for 
' if the road shall be vacated by the public he resumes the exclu- 
sive possession of the ground; and while it is used as a highway 
he is entitled to the timber and grass which may grow upon the 
surface, and to all minerals which may be found below it. He 
may bring an action of trespass against any one who obstructs the 
road." 

'.'. But a query is expressed here, as in many other cases, 
whether this rule applies to the streets and thoroughfares of 
cities. In a case in one of the British provinces on this continent, 
Nova Scotia, it is said to have been held, by a divided court, after 
long debate and deliberation, that the title to land, covered by a 
highway or street, vested absolutely in the crown, and that the 
owner had no reversionary interest. 13 

10. Some of the American cases seem to intimate a different 
rule from that which generally prevails in reference to highways, 
in r< gard to the title acquired by railway companies. 14 But in 

" Railroad r. Davis, 2 Dev. & Bat. 457; Dean v. Sullivan Railw., 2 Foster, 
316 : I'l ink Road v. Hull'. A: P. Railw., 20 Barb. 644; Weston v. Foster, 7 Met. 
2'.'7. In a case in Ohio, where the subject seems to have been examined with 
cure- anil ^tudy, it is laid down, as the result of the law upon the subject, 
tliit only such interest as will answer the public wants can be taken; and it can 
be beld only so long as it is used by the public, and cannot be diverted to any 
other purpose. Giesy v. < iincinnati, Wil. & Zanesv. Railw., 4 Ohio (X. S.), 308. 
Hooker ». Qtica & Minden Tump. Co., 12 Wend. 371; People v. White, 
11 Barb. 26 ; Blake o. Rich, 34 N. H. 282. The title of the land-owner is thus 
defined in tins last case. The exclusive right of property in the land, in the 
ige upon its surface, and in the minerals below it, remains un- 
changed, subject always to the right of the company to construct and operate 
their road, in any loyally authorized mode. 

" Barclay©. Howell's Lessee, 6 Pet. (U. S.) 498. Cases to establish the general 
principle here announced might be multiplied to any extent. They will be found 
extensively collected in 3 Kent, Comm. 432, and notes. By the civil law, it is 
said, the soil of public highways is in the public, and the law of Louisiana is the 
vim.-. Renthorp r. Bang, 1 Martin, 97. 

13 Kurh r Dauphin, .James, 159. 

4 Wheeler i\ Rochester & Syra. Railw., 12 Barb. 227 ; Hunger v. Tonawanda 

[•251] 



§ 69. TITLE ACQUIRED BY COMPANY. 269 

one case 15 it was held, that the municipal authority of a city have 
no power to grant permission to a railway company to take or in- 
jure the property of a citizen ; but the companies have an implied 
authority to make such side-tracks and continuations at the ter- 
mini of their road as may be reasonable and necessary for the 
transaction of their business and the accommodation of the public, 
and may take private property for these purposes. The right to 
*use and enjoy the street is an appurtenance to the adjoining land, 
and an injury to the appurtenance is an injury to the whole prop- 
erty ; and as for such an injury the statute prescribes no remedy, 
the land-owner must resort to his common-law remedy. 

11. But in a case in Massachusetts, 16 the title seems to us 

Railw., 4 Comst. 349; Coster v. New Jersey Railw., 3 Zab. 227. The New 
York Court of Appeals, quite recently, upon elaborate examination, came to the 
conclusion, that a deed to a railway company, granting land to it and its succes- 
sors, conveys an estate in fee. Nicoll v. New York & Erie Railw., 12 N. Y. 
121. But see Henry v. Dubuque & Pacific Railw., 2 Clarke (Iowa), 288. In 
De Varaigne v. Fox, 2 Blatchf. C. C. 95, it was held, that where the statute 
conferred the right to take the fee of land, and it was taken upon compensation 
accordingly, the court will not construe the grant as a conditional fee or usufruct, 
leaving a possible reverter to the original proprietor, but will regard the entire 
property as vested in the grantee for ever, and that if any right accrues to the 
former owner in consequence of the change of the destination of the property, 
after the continuance of the use for twenty-six years, it is an equitable and not a 
legal right. 

15 Protzman v. Ind. & Cin. Railw., 9 Ind. 467. What shall be a reasonable 
extension of the track of a railway in a city beyond the depot is here discussed. 
It seems to be more a question of fact than of law. Evansville, &c. Railw. v. 
Dick, id. 433. 

16 Hazen v. B. & M. Railw., 2 Gray, 574. But the company have no right to 
do any act upon the land except what is conducive to the use of the land for the 
purposes of their grant, of which they are the judge. Brainard v. Clapp, 10 
Cush. 6. In this case, Shaw, C. J., thus defines the title of the railway, in lands 
taken for their use : " The railroad company are authorized to do all acts, within 
the five rods, which by law constitute their limits, in taking away or leaving 
gravel, trees, stones, and other objects, which in their judgment may be neces- 
sary and proper to the grading and levelling of the road, in adjusting and adapt- 
ing it to other roads, bridges, buildings, and the like, so as to render it most 
conducive to the public uses which the railway is intended to accomplish. What- 
ever acts, therefore, are requisite to the safety of passengers on the railway, to 
the agents, servants, and persons employed by the company, and to the safe 
passage of travellers, on and across highways and roads connected with it, and 
which can be done within the limits of the five rods, the company have a right 
under their act of incorporation to do. This is embraced in the idea of taking 
land for public use." See Chicago & Miss. Railw. v. Patchin, 16 111. 198. 

[*252] 



270 EMINENT DOMAIN. PART III. 

to be explicitly and fully stated, and the only ground of distinction 
between railways and common highways, as to the title of the land 
taken, y.tv intelligibly pointed out. The court here say, "The 
right acquired by the corporation, although technically an ease- 
ment, yet requires for its enjoyment a use of the land permanent 
in its nature ami practically exclusive." 

L2. Hence, it seems to be admitted that, even in cases where 
the statute provides for the taking of the fee, upon the discontinu- 
ance of the public use, the land reverts to the former owner. 17 
But where a special act authorizes a municipal corporation to hold 
tlif fee of the soil for the site of an almshouse, it was held that the 
original owner and his representatives could claim no exclusive 
interest therein, or any reversionary title thereto, after the removal 
of the almshouse to another site. 18 

* 13. In some of the cases in this country, it has been held, that 
it is only the residuum of title remaining in the corporation, at 
the time a railway is discontinued, that reverts to the former 
owner of the land, and that, in the mean time, the company may 
wholly defeat the reversion, by a conveyance in fee-simple; and 
this remarkable proposition is distinctly announced in one case, 19 
— l * Corporations have a fee-simple for purposes of alienation, 
but they bave only a determinable fee for purposes of enjoyment." 

14. If it were said that corporations, created for special pur- 
poses of intercommunication, like railways and canals, and in- 
ed with the sovereign prerogative of eminent domain for these 
purposes only, had no interest, or estate, in lands whatever, except 
for the mere purpose of carrying on the functions with which they 
were invested by the state, and could neither use nor convey the 
lands, to be used for any other purpose whatever, it would seem 
far more in accordance with established principles and generally 
received notions upon the subject. In the same case it is said, 

pie r. White, 11 Barb. 2G ; United States v. Harris, 1 Sumner, 21. 
But by the repeal of a charter the lands do not revert to the former owner, but 
the franchises of the corporation are resumed by the state, and the railway re- 
mains public property, subject to the management and control of the state. Erie 
& Northeast Railw. v. Casey, 26 Penn. St. 287. But see Rexford v. Knight, 
infra. 

■ Bayward r. Mayor of New York, 3 Seld. 314. So also in regard to lands 
appropriated to the use of the state canals. Rexford v. Knight, 11 X. Y. 308. 

Nicol v. New York & Erie Railw., 12 Barbour, 460. See State v. Rives, 
5 Ired. 297. 

[*253] 



§ 69. TITLE ACQUIRED BY COMPANY. 271 

a grant to a corporation, created only for a term of years, purport- 
ing to convey a fee, will not be construed to convey only a term for 
years. 

15. In all these cases where the title of the company depends 
upon conditions, they must be strictly performed and strictly 
construed. 20 

16. But where, by the law of the state, railways, upon discov- 
ery that the title they are acquiring may prove defective, have 
the right to take new proceedings, it was held, that the discov- 
ery of a mortgage upon lands will justify the abandonment of 
pending process, and instituting procedure under the section 
which allows them to extinguish incumbrances, on that por- 
tion required for their road. 21 And the appraisal of land sub- 
ject to an easement in the grantor, is irregular, and no title 
passes. 22 

17. After land is condemned for the use of a railway, the adju- 
dication * can no more be impeached by any collateral proceeding, 
or by evidence, than the judgment of any other court of exclusive 
jurisdiction. 23 And it was held, under the Pennsylvania statute, 24 
that after the award of land damages, and payment of the money, 
the company become the owners of the land, notwithstanding the 
pendency of a certiorari to remove the case into the Supreme 
Court. 25 

18. Where the Commonwealth of Pennsylvania, in the construc- 
tion of her public works, acquired the fee-simple of land taken 
therefor, either by purchase or the right of eminent domain, and 
the land was devoted to the use of a highway, a cessation of that 
use does not revest the title in the former owner. 26 

20 Bangor & Piscataqua Railw. v. Harris, 8 Shepley, 533 ; Lovering v. Railw., 
8 Watts & Serg. 459; Munger v. Tonawanda Railw., 4 Comst. 349; Carr v. 
Georgia Railw. & Banking Co., 1 Kelly, 524. 

21 New York Central Railw. in re, 20 Barbour, 419. 

22 Hill v. Mohawk & H. Railw., 3 Seld. 152. 

23 Hamilton v. Annapolis & Elk Ridge Railw., 1 Md. Cb. 107. 

24 Stat, of 1829, § 15. 

25 Sehuler v. Northern L. Railw., 3 Whar. 555 ; ante, § 65 ; post, § 73. 

26 Haldeman v. Penn. R. Co., 50 Penn. St. 425. See also as to proceedings 
under Lateral Railroad Acts of Pennsylvania, Brown v. Peterson, 40 Penn. St. 
373; Boyd v. Negley, id. 377; Mayor, &c. of Pittsburgh v. Penn. R. Co., 48 
id. 355. It seems scarcely necessary to state that the final judgment of condem- 
nation and the payment of the award vests in the company the absolute right to 
use the land embraced in the judgment for all their legitimate purposes. Dodge 

[*254] 



EMINENT DOMAIN. 



PART III. 



♦SECTION VIII. 



Corporate Franchises condemned. 



1 Road franchisi may betaken. 

,-' '.. uuidi . 

franchise may be taken, 
led. 
n rtitvtional restrictions. 
6. Not well di 

7 M ■ . in ti ruts. 

v / • slative discretion. 

9. //• jhways and railways compared. 



10. Extent of eminent domain. 

11. Exclusiveness of the grant, a subordinate 

franchise. 

12. Legislature cannot create a franchise, 

above the reach of eminent domain. 

13. Legislature may apply streets in city to 

any public use. 

14. Rule of compensation, in such cases, to 

the owner of the fee, converting canal 
into railway. 



i; 70. 1. The franchise of a turnpike, or bridge, or other similar 
corporation may be taken for a free road, or for a railway, which, 
as we have said, is an improved highway. 1 And it will make no 
difference that the franchise is situate partly within the limits of 
different states as in the case of a bridge across a river which 
forms the divisional line between different states. But the pro- 
- in one state can only take what lies within its limits. 2 

2. But compensation, either for the entire franchise, which is 
the more common course, and ordinarily the only just mode of 



r. Hums, 6 Wis. 514; Burns v. Milw. & Miss. Railw. Co., 9 Wis. 450. And 
the acceptance of the value of the land by the land-owner, however the amount 
may have been ascertained, is an acquiescence in the taking, as much as if he 
had conveyed the land by deed. lb. The party cannot accept the amount of 
an award of damages, and also appeal therefrom. Miss. & Mo. Railw. Co. v. 
Byington, II [owa, 572. But where by mutual submission the land-owner and 
railwaj company referred the amount of damages to be paid by the company to 
arbitrators, who awarded the amount to be paid for the title conveyed simul- 
taneously, which the company offered to do on their part, but the land-owner 
declined to perform on his part, or to give any encouragement of ever doing, 
but many years after brought an action against the company for not performing 
the award, it was held he could not.recover. Smith v. Boston & Maine Railw., 
en, 262. 
1 Armington p Barnet, 15 Vt. 745; West River Bridge v. Dix, 6 How. (U. 
L6 Vt. 446; White River Turnpike Co. v. Vermont Central 
Railw., 21 Vt. 594; Boston Water Power Co. v. Boston & Worcester Railw., 
2 I Pick. 360; Central Bridge Corporation v. City of Lowell, 4 Gray, 474. 
isby v. Hanover, :3G N. II. 404. 

[*255] 



§ 70. CORPOEATE FRANCHISES CONDEMNED. 273 

procedure, or for the special injury, must be made. 3 But it is no 
objection to the validity of an act of the legislature, allowing a 
railway to carry its track across the land of a mill-dam company, 
incorporated by the legislature, that it contains no express provi- 
sion for compensation to such mill-dam company. This is implied, 
as in other cases, where land is taken. 4 And the same implica- 
tion has been held to extend to the case of a subsequent grant of 
a railway which materially depreciated the use and value of a prior 
grant of a bridge. 5 But it is the more commonly received opinion, 
that a subsequent grant, which only incidentally * operates injuri- 
ously to an earlier one, does not require compensation to be made 
for such injury, unless expressly so provided. 6 

3. So also may the franchise of one railway be taken for the 
construction of another railway. 7 

4. In one case the law upon this subject is thus stated, by 
Shaw, C. J. : " The court are of opinion, that it is competent for 
the legislature, under the right of eminent domain, to grant 
authority to a railway corporation, to take a highway longitudinally 
in the construction of their road. The power of eminent domain 
is a high prerogative of sovereignty, founded upon public exigency, 
according to the maxim, Salus reipublicce lex supi-ema est, to which 
all minor considerations must yield, and which can only be limited 
by such exigency. The grant of land for one public use must 
yield to that of another more urgent." 8 

5. The great question of the inviolability of corporate franchises, 
which we shall have occasion to discuss more at large hereafter, 9 
is, no doubt, to a certain extent, involved here. For, upon gen- 

3 West River Bridge v. Dix, 6 How. (U. S.), 507 ; Boston Water Power Co. 
». Boston & Worcester Railw., 22 Pick. 360. But see 11 Leigh, 42. 

4 Boston Water Power Co. v. Boston & Worcester Railw., supra. 

5 Enfield Toll-Bridge Co. v. The Hartford & New H. Railw., 17 Conn. 454; 
s. C. 17 Conn. 40. 

6 White River Turnpike Co. v. Vermont Central Railw., 21 Vt. 594. 

7 Grier, J., in Richmond Railw. v. Louisa Railw., 13 How. (U. S.), 81, 82; 
8. c. 2 Redf. Am. Railw. Cases, 600 ; Newcastle & R. Railw. v. P. & Jnd. Railw., 
3 Ind. 464. 

8 Springfield v. Conn. River Railw., 4 Cush. 63 ; s. c. 1 Redf. Am. Railw. Cases, 
299. See also, upon the general subject, Chesapeake & Ohio Canal Co. v. Balti- 
more and Ohio Railw., 4 Gill & Johns. 1 ; Forward v. Hampshire & Hampden 
Canal Co., 22 Pick. 462, where the prior company is held bound by acquiescence 
in the transfer of its franchises to another company. Irvin v. Turnpike Co., 2 
Penn. 466 ; Rogers v. Bradshaw, 20 Johns. 735 ; Backus v. Lebanon, 1 1 N. H. 19. 

9 Post, § 231. 

vol. i. 18 [*2.06] 



274 EMINENT DOMAIN. PART III. 

oral principles of legislative authority, there could be no question 
that a corporation, which is the mere creature of the legislature, 
might be, at once and unconditionally, extinguished, by repeal of 
the charter. This is confessedly within the power of the legisla- 
tive authority of the British parliament; and the legislative 
authority of the parliament of Great Britain is no more extensive 
than that of the legislatures of the American states, aside from 
restrictions contained in the constitutions of the United States 
and of the several states. 10 

6. The only limitation upon this power over private corpora- 
tions, in most of the states, perhaps in all, is found in that pro- 
vision of the United States Constitution which prohibits the 
Legislatures of the several states from passing any law impairing 
the * obligation of contracts. And the proper limits of this 
restriction, in regard to corporations, is not altogether well 
defined, in the different opinions of the several judges of the 
Bupreme national tribunal upon this subject; nor is there any 
thing approaching unanimity among them. 

7. But it may perhaps be regarded as settled, for the time at 
least, that where exclusive privileges are conferred upon private 
corporations, by express words, or necessary implication, the grant 
is irrevocable and inviolable. But that the grant of any privilege 
or franchise carries no implied exclusion, of similar privileges 
and franchises being conferred upon other persons, natural or cor- 
porate. 11 

8. The legislature may in all instances determine when and 
where the public necessities require additional facilities, of a 
similar or analogous character, where the former grant is not 
exclusive. 11 

'•'. And in some cases of exclusive and perpetual grants, for 
common highways or bridges, it has been held, that this did not 
preclude the legislature from granting railways and railway bridges 
within the limits of the former grant. 12 In the case just referred 

I • trtmouth ( lollege v. Woodward, 4 Wheat. 518. 

River Bridge v. Warren Bridge, 11 Pet. 420; Thorpe v. Rut. & 
Bur. Railw., 27 Vt. 140; 8. c. 2 Redf. Am. Railw. Cases, 587 ; Boston & Lowell 
Railw. >■. Salem & Lowell Railw., 2 Cray, 1; Mohawk Bridge Co. v. Utica & 
Bch. Railw., 6 Paige, 554 ; Hudson & Delaware Canal Co. v. New York & Erie 
Railw., '.' T 

Ree r. Wilmington & Raleigh Railw., 2 Jones Law, 186. But see 
Enfield Bridge I ... c. Hartfurd & New II. Railw., 17 Conn. 40, 454. 

[•257] 



§ 70. CORPORATE FRANCHISES CONDEMNED. 275 

to, 12 the court held, that a perpetual grant of a toll-bridge across 
the Cape Fear River, which in terms subjected all persons to a 
penalty for transporting persons or property across that river in 
any other manner, within six miles of the plaintiff's bridge, would 
not subject the defendant's company to the penalty for carrying 
persons and property across the river, upon their road, by means 
of a bridge erected within the six miles ; that the grant was in- 
tended to be exclusive only as to all modes of travel and trans- 
portation then known, but not to exclude all improvements thereon, 
in all future time. 13 

10. But the exclusive character of a corporate grant will not 
preclude the power to take the franchise, upon making compensa- 
tion, * under the right of eminent domain, the stipulation in the 
charter, that the grant shall be exclusive of all others, being sub- 
ject to the same law as other property, whether in possession or 
action ; all which is confessedly subject to the exercise of the right 
of eminent domain, by the sovereign. 14 

11. It has sometimes been characterized, as a refinement or an 
invention, to identify the covenant, in the charter of a private cor- 
poration, that the grant shall be exclusive of all others, with the 
charter itself, and thus subject it to the law of eminent domain. 
But it seems to us entirely a sound view, in all cases where the 
whole franchise of the corporation is proposed to be taken, and 
that the charge of refinement is rather to be laid at the door 
of such as attempt to raise a distinction between the exclusive- 
ness of the grant and the grant itself, in order to preserve the in- 
violability of the former, which is the lesser and subordinate 
franchise, when the latter, and paramount, and vital franchise 
of a corporation is confessedly subject to the law of eminent 
domain. 15 

13 But this distinction is certainly not attempted to be maintained in the 
majority of the cases upon this subject, either in England or in this country. 
Post, § 231 et seq. 

14 Enfield Toll Bridge Co. v. Hartford & New Haven Railw., 17 Conn. 40 
and 454. This doctrine has been so repeatedly asserted in all the courts of the 
country, that it seems scarcely requisite to multiply references. And the right 
to take the franchise of another corporation, by parity of reason, carries the 
right to impair another franchise to any extent, upon making indemnity. Matter 
of Kerr, 42 Barb. 119. 

15 West River Bridge Co. v. Dix, 16 Vt. 446; s. c. 6 How. (U. S.), 507, 
539, Opinion of Woodbury, J. : who argues that it is difficult to comprehend why 

[*258J 



EMINENT DOMAIN. PART III. 

L2. li is intimated in West, River Bridge Company v. Dix, by 

try, J., that if the charter of the corporation contained an 

ezpresB stipulation againsl the exercise of the right of eminent 

domain upon the corporation, this might secure the franchise. 

But this is certainly not the prevailing opinion. 10 

The fee of the streets of a city, where it has been acquired 
by the municipality under the right of eminent domain, becomes 
• a public trust for general public purposes, and is under the un- 
qualified control of the legislature, and any legislative appropria- 
tion of it to public use is not to be regarded as the appropriation 
of private property, so as to require compensation to the city or 
municipality to render it constitutional. 17 The mere possibility * of 
reverter to the original owner, or his heirs or grantees, is not 
led in such cases as any appreciable interest requiring to be 
compensated. 17 

14. Courts seem sometimes to have entertained doubts if it is 
competent for a railway company to appropriate the franchise of a 
canul company along the same line so as to supersede the canal by 
its own works. 18 But we apprehend there can be little doubt on 
that point; and the case last cited holds, that if this is attempted 
and acquiesced in by the canal company, it is not competent for the 
owner of the fee in the land to claim a reverter of the title by rea- 
son of the want of power in the railway company. The most the 
owner of the fee could claim in such case is to recover compensa- 

ness of the grant to a private corporation should, upon principle, be 
any more inviolable by legislative authority than any other part of the corporate 
franchise. It is only as property that it is valuable, or that it is protected at all. 
Ami all property is, in cases of proper necessity, subject to the law of eminent 
domain. It i.s very questionable whether this law should be held to extend to 
portions of public works which may always be obtained in the market, and 
■ , by consequence, there is no practical necessity. 
" In regard to the right of eminent domain, it seems now to be conceded, 
that do legislature, upon any consideration or pretence whatever, can deprive a 
future legislature of its exercise, in the absolute annihilation of corporate fran- 
apon jusl and adequate compensation. In Backus v. Lebanon, 11 N. 
Hamp. 19, Parker, C. J., gave a very able exposition of the question. See also, 
.in- effect, the opinion of Mr. Justice Grier, of the United States Circuit 
Court, in Milnor r. The New J. Railw., 6 Law Reg. 6, 7 ; and Crosby v. Hano- 
B 646; s. c. 36 N. H. 404. 
I pie « . Kerr, 27 N. Y. 188. See also Philadelphia & Reading Railw. v. 
of Philadelphia, 47 Penn. St. 325. 
Hatch <■. < in. ,v Ind. Railw., 18 Ohio (N. S.), 92. 
[*259-261] 



§71. 



COMPENSATION. 



MODE OF ESTIMATING. 



277 



tion for any additional land taken, and for any additional burden 
imposed upon the land appropriated to the canal, as well as for 
any additional damage to the adjoining lands of the same owner. 18 



SECTION IX. 



Compensation. — Mode of Estimating. 



1. General inquiry simple. 

2. Remote damage and benefits not to be con- 

sidered. 

3. General rule of estimating compensation. 

4. Prospective damages assessed. 

5. In some states value " in money " is re- 

quired. 

6. 7. Damage and benefits cannot be consid- 

ered in such cases. 

8. Rule of the English statute. 

9. Farm accommodations. 

10- Benefits and damage, if required, must 
be stated. 



n. 13. Course of the trial in estimating land 
damages. 

11. Items of damages not indispensable to be 

stated. 

12. In contracts for land statutory privileges 

must be stated to be secured. 

13. Questions of doubt referred to experts. 

14. Special provisions as to crossing streets 

only permissive. 

15. In an award of farm accommodations, 

time of the essence of the award. 



§ 71. 1. The inquiry in regard to what compensation shall be 
made, for land taken for public works would, on the face of it, 
seem to be a very simple one. One would naturally suppose the 
value of the land taken or the damage sustained, to be the fair 
measure of compensation, and that there could be no serious diffi- 
culty in ascertaining the amount. 

2. But in consequence of numerous ingenious speculations in 
regard to possible advantages and disadvantages arising from the 
public works, for which lands are taken, the whole subject has 
become, in this country especially, involved in more or less uncer- 
tainty. All the cases seem to concur in excluding mere general 
and public benefit, in which the owner of land shares in common 
with the rest of the inhabitants of the vicinity, from being taken 
into consideration in estimating compensation. 

3. It has been said, the appraisers are not to go into conjectural 
and speculative estimations of consequential damages, 1 but con- 

' Meachamu.Fitchburg Railw., 4Cush. 291; 8. c. 1 Redf. Am. Railw. Cases, 276. 
Upton v. South Reading Branch Railw. Co., 8 Cush. 600 ; Albany N. Railw. Co. 
v. Lansing, 16 Barb. 68; Canandaigua & N. Railw. v. Payne, 16 Barb. 273; Green- 
ville & C. Railw. Co. v. Partlow, 5 Rich. 428 ; White v. Charlotte & S. C. Railw. 

[*261] 



•27^ EMINENT DOMAIN. PART III. 

fine * themselves to estimating the value of the land taken to the 
owner. This is most readily and fairly ascertained, by determin- 
ing the value of the whole land, without the railway, and of the 
portion remaining after the railway is built. The difference is the 
true compensation to which the party is entitled. 2 

I. Bui the appraisers are to assess all the damages, present and 
pective, to which the party will ever be entitled, by the prudent 
construction and operation of the road. 3 

Co., 6 Rich. 17 ; A. & S. Railw. Co. v. Carpenter, 14 111. 190; Symonds v. The 
City of ( lincinnati, 14 Ohio, 147; Brown v. Cincinnati, id. 541 ; Mclntire v. State, 
5 Blackf. 884; Stale v. Digby, 5 Blackf. 543; James River & Kanawha Co. 
r. Turner, 9 Leigh, 313 : Schuylkill Co. v. Thoburn, 7 Serg. & R. 411. A jury 
may take into the account, in estimating the dan.ages, the effect the construction 
of the railway will have in diminishing deposits of sediment, which had been 
made by a river, in higli water flowing upon the land and greatly enriching it. 
>rd Railw. v. Greeley, 28 N. H. 237. And the deterioration of the adja- 
cent parts of the same land (but which are not taken), either for agriculture, or 
sale for building lots ; by risk from fire, care of family and stock, inconvenience 
caused by embankments, excavations, and obstructions to the free use of build- 
ings, is to be taken into the account, in estimating damages. Somerville & E. 
Railw. v. Doughty, 2 Zab. 495. The increase or decrease in the price of the 
remaining land, and the expense of fencing, are to be taken into the account, in 
-sing compensation. Greenville & Columbia Railw. v. Partlow, 5 Rich. 428. 
The value of the land taken, considering its relation to the land from which it is 
severed, is to be given, and such further sum as the incidental injury to the land 
not taken, from the construction of the road, exceeds the incidental benefits. 
Nashville Railw. v. Dickerson, 17 B. Monr. 173, 180. Louisville & Nash. Railw. 
r. Thompson, 18 id. 735. 

2 Troy & Boston Railw. v. Lee, 13 Barb. 169, 171; Matter of F. Street, 17 
U '• ad. 649 ; Canal Co. v. Archer, 9 Gill & J. 480; Parks v. City of Boston, 15 
Pick. 198; Somerville Railw. v. Doughty, 2 Zab. 495; Hornstein v. Atlantic & 

o Railw., .",1 Perm. St. 87; S. F., &c, & S. Railw. v. Caldwell, 31 
Cal. 367. See also Wil. & Read. Railw. v. StaufFer, 60 Penn. St. 374; Pitts- 
burg, It. W. & < !. Railw. v. Gilleland, 56 Penn. St. 445 ; Walker v. Old Colony 
& Newport Railw., 103 Mass. 10; and Arnold v. Hudson River Railw., 49 Barb. 
108, a- to damage to land not taken. See also Matter of Utiea Railw., 56 Barb. 
156. But no account is to be taken, in estimating land damages, of the benefit 
the railway may have been to other property of the plaintiff, disconnected with 
that taken. Railw. v. Gilson, 8 Watts, 243; but see Columbus, P. & I. Railw. 

3 mpson, 4 Am. Law Reg. 696; s. c. 5 Ohio (N. S.), 251; Rochester & Sy. 
Railw. r. Budlong, 6 How. Pr. 467; Sater v. B. & Mt. PL Railw., 1 Clarke, 

I he value of the land, at the time of trial, or at any time subsequent to 
the construction of the work, cannot be referred to in determining the benefits 
d upon that portion of the land not taken. Ind. Central R. v. Hunter, 
8 Ind. 74. 

3 Dearborn v. Boston, Concord, & Montreal Railw. Co., 24 N. H. 179. Clark 

[*262] 



§71. COMPENSATION. — MODE OP ESTIMATING. 279 

* 5. Some of the state constitutions in terms provide, that com- 
pensation for private property, taken for public use, shall be made 
" in money," and many eminent jurists have strenuously main- 
tained that compensation, to the extent of the value of the land 
taken, must always be made in money, and that no deduction can 
be made on account of any advantage which is likely to accrue to 
other property of the owner, by reason of the public work for 
which the property is taken. 4 Such accidental advantages to the 
portion of land not taken as drainage by means of cuts in the soil 
from grading the railway cannot be taken into account. 5 

6. In a case in Vermont the court held, that taking land 
for a public highway is not appropriating it to public use, within 
the meaning of the constitution of that state, which requires com- 
pensation in such cases to be made " in money," but that this pro- 
vision only applies, where the fee of the land is taken ; and that 
where an easement only is taken for the purpose of a highway, 
and the remaining land is worth more than the whole was before 

v. Vt. & Canada Railw., 28 Vt. 103. The expense of fencing is to be included 
in the estimate of land damages. Winona & St. Peter Railw. Co. v. Denman, 
10 Minn. 267. The matter of estimating land damages to the owner of a farm, 
a portion of which is taken for the construction of a railway, is discussed very 
much in detail, and with a very considerate regard to the equitable interests of 
all parties, in the case of Robbins v. Milw. & Hor. Railw. Co., 6 Wis. 636. 
Damages done to mill property in lessening the advantages of the water-power, 
present and prospective, should be taken into the account in estimating land 
damages. Dorian v. E. Br. & Waynesburg Railw. Co., 46 Penn. St. 520. 

4 2 Kent, Comm. 7th ed. 394, and note; Jacob v. The City of Louisville, 9 
Dana, 114; The People v. The Mayor of Brooklyn, 6 Barb. (S. C.) 209. But 
this last case was subsequently reversed in the Court of Appeals. 4 Comst. 419 ; 
Rice v. Turnpike Co., 7 Dana, 81 ; Woodfolk v. N. & C. Railw., 2 Swan, 422. 
In this case it was said, benefits to the remaining land may be set off against 
injury, but the party cannot be compelled to apply such benefits towards the 
price, of his land. Railways. Lagarde, 10 La. Ann. 150. Under such a pro- 
vision in the constitution of Ohio, it was held, that in assessing damages, the 
jury had no right to take into consideration the fact, that the value of the land 
had been increased by the proposal or construction of the work. Giesy v. Cin., 
Wil. & Zanesv. Railw., 4 Ohio (N. S.), 308. General benefits resulting from 
the erection of a railway, to all who own property in the vicinity, are not to be 
taken into the account, in estimating land damages; and it was doubted if special 
benefits, accruing to the remainder of the land, could be so taken into account. 
Little Miami Railw. v. Collett, 6 Ohio (N. S.), 182. Pacific Railw. v. Chrystal, 
25 Mo. 544. 

6 Evansville & C. Railw. v. Fitzpatrick, 10 Ind. 120 ; Same v. Cochran, id. 
560. 

[*263] 



EMINENT DOMAIN. PART III. 

the laying out of the road, the party is entitled to no compen- 
sation. 6 

•7. Thia is certainly not in conformity with the general course 
of decision upon this subject. It is the only case, probably, where 
an attempt is made to escape from such a constitutional provision, 
in this manner. Some will doubtless regard it as too refined to 
sound. And if it is true, as is sometimes claimed, that the 
legislature had no right to resume the fee of land for highways 

6 Livermore v. Jamaica, 23 Vt. 361. This case has been questioned. 1 Ben- 
nett's Shelford on Railways, 441. And the opposite view maintained in Bem- 
felly v. Green Bay Co., 13 Wall. 166. See also Reitenbaugh v. Chester Valley 
Railw., 21 Penn. St. 100. Contra, McMahon v. Cincinnati Railw., 5 Ind. 413; 
3 id. 543. Benefits arising to the owner of the land "by the construction of the 
read" held not to have reference to the whole work, but to that particular por- 
tion which runs through the party's land. Milwaukee & Mis. R. v. Eble, 4 
Chand. 72. An act which provides for setting off the advantages to other land 
against the value of the land taken, is not, on that account, unconstitutional. 
McMastera v. Commonwealth, 3 Watts, 292. But it has very often been held, 
that such accidental advantages, especially where they are not peculiar to the 
particular laud-owner, cannot be set off against the specific value of the land 
taken. State v. Miller, 3 Zab. 383 ; Woodfolk v. Nash. & Ch. Railw., 2 Swan, 
422; Hill v. M. & II. Railw., 5 Denio, 206; Keasy v. Louisville, 4 Dana, 154; 
. Louisville, 5 Dana, 28; People v. Mayor of B., 6 Barb. 209. But 
many cases hold the contrary. People v. Mayor of Brooklyn, 4 Coinst. 419, 
where 8. C. 6 Barb. 209, is reversed; Rexford v. Knight, 15 Barb. 627. But 
where profits are to be taken into the account, the title to have them considered 
obtains at the time the servitude is located. Palmer Co. v. Ferrill, 17 Pick. 58. 
• fits by increase of business and population, markets, schools, stores, and 
other like improvements, cannot be considered, in estimating damages, for flow- 
ing land, by a mill-dam. lb. 

In a case in Xew Hampshire, petition of the Mount Washington Road Com- 
pany. 35 X. II. 134, it was decided, that in assessing damages for land taken for 
a turnpike, or free highway, compensation is to be given for the actual value of 
the land taken, without regard to any speculative advantages or disadvantages to 
the owner from the making of the highway. See Cushman v. Smith, 34 Maine, 
1' 17. But in Indiana Central Railw. v. Hunter, 8 Ind. 74, the same rule is 
adopted, as in the case first cited in this note. And in Whitman v. Boston & 
Maine Railw., 7 Allen, 313, it was decided, that in estimating the damages to 
land by reason of the location of a railway across it, and the filling up of a canal 
in which the owner of the lot had a privilege, if the value of the lot is so en- 
hanced, that what remained was worth more than the whole lot was before, the 
owner has no claim for damages. S. P. in the s. C, 3 Allen, 133. But the 
benefits to be deducted from the value of land taken must accrue to the remain- 
ing land, and not to all land in the same vicinity. Winona & St. Peter Railw. 
v. Waldron, 11 Minn. 515. 

[*264] 



§71. COMPENSATION. — MODE OF ESTIMATING. 281 

and railways, such a constitutional provision, with such a construc- 
tion, would have little application to the taking of land for such 
uses. 7 

* 8. The English statute provides, that, in estimating compen- 
sation for land damages " regard shall be had, not only to the land 
taken, but also to damage, by reason of severance from other lands 
or otherwise injuriously affecting such lands." There are, too, in 
the English statute, provisions for compensation to sundry sub- 
ordinate interests in lands, as to lessees for years, and to tenants 
from year to year. And also in regard to mines. The company 
are not entitled to mines or minerals under lands, except such 
parts as shall be necessary to use in the construction of the road, 
unless expressly purchased. It has been held that stone got from 
quarries are minerals, 8 and that mines are quarries, or places where 
any thing is dug. 9 By the English statute, the company may re- 
move or displace gas or water pipes, making compensation to all 
parties injured. 

7 Hatch v. Vermont Central Railway Co., 25 Vt. 49 ; s. c. 1 Redf. Am. Railw. 
Cases, 285; Reitenbangh v. Chester Valley Railw., 21 Penn. St. 100. Contra, 
Little Miami Railw. v. Naylor, 2 Ohio (N. S.), 235. And in a case in Mississippi, 
Brown v. Beatty, 34 Miss. 227, where the constitution required "compensation 
first to be made " for land taken, it was held the provision secured to the owner the 
right to receive the cash value in money, and, in addition, full indemnity for all 
damages by means of severance, and that no enhanced value of the portion of land 

- not taken could be taken into the account. See also Branson v. Philadelphia, 47 
s VPenn. St. 329. Henry v. Dubuque & Pacific Railw. Co., 10 Iowa, 540. It is said 
in one case, what is very nearly a truism, that corporate existence and the right 
of eminent domain can only be derived from legislative grant, and that both must 
be shown to justify taking lands compulsorily, and also compliance with all condi- 
tions of the grant. Atkinson v. Marietta & Cin. Railw. Co., 15 Ohio (N. S.), 
21. Post, § 76. The dedication of land to the use of a street willnot authorize 
the legislature to appropriate it to the use of a railway track without compensation 
to the owner, and, if this is attempted, it may be restrained by injunction. Schur- 
meier v. St. Paul & P. Railw., 10 Minn. 82. 

8 Micklethwait v. Winter, 6 Exch. 644 ; s. c. 5 Eng. L. & Eq. 526. 

9 Hodges on Railways, 238, note (y). The more common mode of estimating 
land damages unquestionably is, to give the company the specific benefit caused 
to land, a portion of which is taken, in the enhancing the value of the same, and 
only to allow the land-owner such a sum as will leave him as well off in regard 
to the particular land as if the works had not been built, or his land taken. This 
is done by giving the land-owner a sum equal to the difference between what the 
whole land would have sold for before the road was built, and what the remain- 
der will sell for after the construction. Harvey v. Lack. & Bloomsburg. Railw., 
47 Penn. St. 428. But this rule will, in many cases, prove entirely inadequate 

[*265] 



EMINENT DOMAIN. PART III. 

9. And where commissioners appraise the damages upon the 
basis of the railway making and maintaining- certain works for the 
accommodation of the land-owner, as a culvert and waste-way, etc., 
it was held this portion of the award was not void ; but if acquiesced 
in by the company, and the land taken, and compensation made 
* upon that basis, they thereby became bound by its provisions. 10 
J>ut where it was referred to arbitration to estimate the damages 
caused to the plaintiff, and the company by the express terms of 
its charter was bound to make suitable crossings for the accomoda- 
tion of land-owners through whose land the right of way was 
taken, and the land-owner told the agents of the company, at the 
hearing before the arbitrators, that he should require a crossing to 
be provided for his convenience ; and the agents claimed that the 
arbitrators had nothing to do with this matter, and that claim was 
acquiesced in by the arbitrators and the parties, and the award 
only embraced the damage to the land, and subsequently the land- 
owner was induced to convey to the company the right of way, 
without annexing a condition binding the company to maintain a 
crossing for his accommodation ; upon the assurance of the coun- 
sel of the company that such deed would not affect his right to 
claim a crossing, it was held, upon a bill to reform the deed and to 
establish his right to the crossing, that he was entitled to the relief 
sought, and an injunction was granted accordingly. 11 But where 
a private way crossed the line of railway obliquely, and the award 
of land damages only indicated the point at which the company 
were to supply a crossing, it was held a sufficient compliance with 
the obligation of the company to give a crossing at right angles, 
although this did not connect with the termini of the road or afford 
any access to it. 12 

10. In some of the states in this country, the advantages and 
disadvantages of taking land for a railway are required to be 
stated in the report of appraisal, and the omission to make such 
specific statement was held a fatal omission. 13 So, too, where 

and unsatisfactory, and where it has been adopted it may be regarded as only 
extending to other cases of a very similar character. Win. & St. Peter's Railw. 
'•• Denm in, L0 Minn. 267. 

1 M :•-", Petitioner, IS Pick. 443. 

" Green v. Morris & Essex Railw. Co., 1 Beasley, 165. 

*-' Mann v. Great S. & W. Railw. Co., 9 Ir. Com. L. Rep. 105. 

13 Ohio & Pennsylvania Railw. v. Wallace, 14 Penn. St. 245 ; Reitenbaugh v. 
[*266] 



§ 71. COMPENSATION. — MODE OP ESTIMATING. 283 

* additional expense of fencing is allowed in improved land, the 
report must specify that fact. 14 

11. But in general there is no discrimination made in the report 

Chester Valley Railw., 21 Perm. St. 100; R. R. Co. v. Gilson, 8 Watts, 243; 
Zack v. Perm. Railw. Co., 25 Perm. St. 394. But it has been held, in some cases, 
where the advantages resulting to the land-owner were to be taken into the 
account, that the value of the land need not be stated separately from the 
damage, in an award of arbitrators, but only the amount of the whole injury. 
At all events, such amendments will be allowed, as to cure such defects. Greenville 
& Columbia Railw. v. Nunnamaker, 4 Rich. 107. Questions have sometimes 
been made, in regard to which party, in proceedings of this character, is entitled 
to go forward, in the proofs and argument. Upon principle, and in analogy 
to similar proceedings upon other subjects, we think there can be little doubt 
this right is with the land-owner, in the proceedings before the jury and the 
commissioners or arbitrators, where he is to all intents actor. But after having 
obtained an award, it has been more usual, in practice, to allow the excepting 
party to go forward. 1 Greenleaf 1 s Ev. §§ 76, 77 ; Connecticut River Railw. v. 
Clapp, 1 Cush. 559; s. c. 1 Am. Railw. C. 450; Mercer v. Whall, 5 Q. B. 447. 
But see Albany N. Railw. Co. v. Lansing, 16 Barb. 68, where the court say, 
"The commissioners have the right and power to exercise their own discretion 
in reference to the order that they take in appraising the land. They may view 
the land first and hear the proofs and allegations afterwards, or vice versa. So 
whether one party or the other should first be heard, is for them to determine- 
Having decided that the railway corporation might open and close the hearing, 
the defendant was concluded by their decision, as also would their decision have 
been conclusive on the company had the same privilege been awarded to the 
owner of the land." But where the error in the exercise of this discretion does 
manifest wrong, at nisi jn-ius, the verdict will be set aside for this reason alone 
in the full bench. 1 Greenleaf 's Ev. 104, and note, § 76. 

Awards of land damages have been set aside for excessive damages. Som- 
erville & Easton Railw. v. Doughty, 2 Zab. 495. But this subject was some- 
what considered in Troy & Boston Railw. v. Lee, 13 Barb. 169; Same v. 
Northern Turnpike Co., 16 Barb. 100; and it was held that such award should 
not be set aside, unless it appeared that the commissioners erred in the principles 
by which their judgment should be guided, or were clearly mistaken in the appli- 
cation of correct principles. This is putting them much upon the same ground 
as awards in other cases. And in Walker v. Boston & Maine Railw., 3 Cush. 1, 
it was held, that the Common Pleas, to whom the verdict of a sheriff's jury is to 
be returned, and who may set the same aside, for any good cause, were justified 
in doing so, for irregularity in impanelling the jury ; or in the conduct of the 
jury; or in the instructions given the jury by the sheriff; or for facts affecting 
the purity, honesty, or impartiality of the verdict, such as tampering with the 
jury or other misconduct of the party ; or any irregularity or misconduct of 
the jurors. But in a court of error the verdict can only be set aside for error 
appearing of record. But see § 72, post; Nicholson v. New York & New Haven 
Railw., 22 Conn. 74. 

14 New Jersey Railw. v. Suidam, 2 Harrison, 25. 

[*267] 



284 EMINENT DOMAIN. PART III. 

estimating damages for taking land for public works, between the 
value of the land appropriated and the incidental injury from 
■■• and otherwise; and, unless specially required by the 
charter of the company or some other legislative act, such discrim- 
ination does not seem indispensable to the validity of the report, 
but would unquestionably, in the majority of cases, tend to render 
the report more satisfactory. 15 

* 12. In contracts between railway companies and land-owners, 
in regard to farm accommodations, if the company desire to retain 
any special distinction conferred by statute, they must incorporate 
the statute, either in terms or by reference, into the contract. 
Otherwise the company will be held strictly to the terms of the 
contract as applied to the subject-matter. 16 

13. Where there is any controversy in regard to the mode of 
crossing highways and turnpikes by railway companies, the court 
will refer the matter to men of experience and skill in such ques- 
tions. 17 

14. A permission in a railway charter to cross a street or high- 
way by a level crossing, by making a bridge over the street for the 
accommodation of foot passengers, is not peremptory upon the 
company. They may still be permitted to cross the street other- 
wise than on a level, on their undertaking to abide by any order the 
court might make as to damages. 18 

15. Where land is sold to a railway company upon condition of 
furnishing such farm accommodations as the land-owner should 
notify to the company within one month, time is regarded as of 
the essence of the condition, and if notice is not given within 
the time limited the court will neither order the company to make 
such accommodations as are demanded, or even such as are 
proper. 19 

14 Trenton Water Power Co. v. Chambers, 2 Beasley, 199. 

,G Clarke v. M. Sh. & J,. Railw. Co., 1 Johns. & H. 631. 

,T Atty.-Genl. v. Dorset Railw. Co., 3 Law T. (N. S.) 608. 

! ~ 1 >over Harbor v. L. C. & Dover Railw. Co., 7 Jur. (N. S.) 453. 

ondon, Chatham, & Dover Railw. Co., 3 De G., J. & S. 24; 
s. c. 11 Jur. (X. S.) 520; s. c. 9 id. 148, where the Vice-Chancellor decided 
other? 



72. 



MODE OF PROCEDURE. 



285 



* SECTION X. 



Mode of Procedure. 



9. 
10. 

11. 
12. 
13. 

14. 



Legislature may prescribe. 
Must be upon proper notice. 
Formal exceptions indeed by appearance. 
Unless exception is upon record. 
Proper parties, those in interest. 
Title may he examined. 
Plaintiffs must show joint interest. 
Jury may find facts and refer title to the 

court. 
Land must be described in verdict. 
Distinct finding on each claim. 
Different interests. 
What evidence competent. 
Proof of value of land. 
Opinion of ivitnesses. 



15. Testimony of experts. 

16. Matters incapable of description. 

17. Costs. 

18. Expenses. 

19. Commissioners' fees. 

20. Appellant failing must pay costs. 

21. Competency of jurors. 

22. Power of couft to revise proceedings. 

23. Debt will not he on conditional report. 

24. Excessive damages ground of setting aside 

verdict. 
Note. Other matters of practice. 

25. No effort to agree required in order to give 

jurisdiction. 

26. Interest on value from time of taking. 



§ 72. 1. It seems to be universally admitted, that where the 
organic law of the state does not prescribe the mode of procedure, 
in estimating land damages, for the use of a railway company, 
or other public work, it is competent for the legislature to pre- 
scribe the mode, and that the mode, so prescribed, must be strictly 
followed. 1 

2. Thus, it has been held, that notice in writing to the owner 
of the land to be taken, its situation and quantity, must be given. 2 
But the form of the notice, or whether signed by the company or 
by the commissioners, is not important. 3 And it is requisite, not 
only that proper notice should be given, but that it should appear 
upon the face of the proceedings that the particular notice re- 
quired by the statute was given. 4 But in general, we apprehend, 
if it appears upon the proceedings that notice was given to the 

1 Bonaparte v. C. & A. Railw., Bald. C. C. R. 205 ; Bloodgood v. M. & H. 
Railw., 14 Wend. 51 ; s. c. 18 id. 9 ; s. c. 1 Redf. Am. Railw. Cases, 209. 

2 Vail v. Morris & Essex Railw., 1 Zab. 189. But the notice to appoint com- 
missioners need not describe the land, it is held in other cases. Doughty v. 
Somerville & Easton Railw., id. 442. 

3 Ross v. Elizabethtown & Somerville Railw., Spencer, 230. 

4 Van Wickle v. Railw. Co., 2 Green, 162. See also Bennet v. Railw., id. 
145. 

[*269] 



EMINENT DOMAIN. PART III. 

Land-owner, it might, upon general principles, be presumed it was 
the notice required. 

Bui merely formal exceptions to the mode of procedure, 
and the competency of the triers, in such cases, must be taken at 
rliest opportunity, where there is an appearance, or they will 
be regarded as waived. 6 

4. Ami after appeal, it should appear by the record that merely 
formal exceptions were made in the proceedings below, and over- 
ruled, or they cannot be revised. 5 So, too, where the party, ex- 
cepting to proceedings before commissioners, applies for a jury to 

- vssment of damages, it will be regarded as a waiver 
of the exceptions. 5 He should have applied for a certiorari, if he 
intended to revise the case upon his exceptions. 5 

5. in regard to the proper parties to such proceedings, almost 
infinite variety of questions will arise. The only general rule 
which can be laid down, perhaps, is, that those having an in- 
terest in the question, may become parties plaintiff, or be made 
parties defendant, according to the character and quality of the 
inter 

6. h\ the English courts, it has been held, that these summary 
tribunals for estimating land damages are not to inquire into the 
title of the claimants. 7 But in some cases, in this country, it has 
been held, that the claimant's title to the land is a proper subject 

& Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; s. c. 1 Am. Railw. 
: Walker v. Boston & Maine Railw., 3 Cush. 1 ; Pittsfield & North Adams 
Railw. v. Foster, 1 Cush. 480 ; Field v. Vermont & Massachusetts Railw., 4 Cush. 
160 : Taj lor v. < lounty Commissioners, 13 Met. 449 ; Porter v. County Commis- 
sioners, id. 47'J ; Meacham v. Fitchburg Railw., 4 Cush. 291 ; s. C. 1 Redf. Am. 
Railw. Cases, 276; Davis v. Charles River Branch Railw., 11 Cush. 506. 

6 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; Ashby v. Eastern 
Railw., 5 Met. 368; Greenwood v. Wilton Railw., 3 Foster, 261; Parker v. 
Boston & .Maine Railw., 3 Cush. 107; Mason v. Railw., 31 Me. 215; A. & St. 
I.. Railw. Co. v. Cumberland Co. Comm., 51 .Me. 36. And it seems to be re- 
garded as indispensable that parties under disability should be properly repre- 
sented in the proceedings the same as in other suits. Hotchkiss v. Auburn & 
Rochester Railw., 36 Barb. 600. But where a demand and tender of the value 
ol hind taken, together with other legal damages, are required before instituting 
compulsory proceedings, the requirement cannot apply to the case of an infant, 

i igbts will be saved till of full age. Indiana Central Railw. Co. v. Oakes, 
20 Ind. 'J. Judgment creditors not necessary parties. Watson v. New Y. 
d Railw.. 47 X. Y. 157. 

7 /' 

-'""J 



§ 72. MODE OF PROCEDURE. 287 

of inquiry, before the jury, in estimating damages. 8 And where 
the commissioners refuse to allow the petitioner damages, on 
* account of his not being the owner of the land, this is such a 
final decision as may be revised by a jury, and the Supreme Court 
will allow a mandamus, if that is denied. 9 

7. Parties who join must show a joint interest in the land, but 
this need not always be shown by deed. Oral evidence is some- 
times admissible, where one owns the fee, and others have a joint 
interest, in consequence of erections, and the jury may properly 
pass upon the title, as matter of fact. 10 

8. But the jury are not bound to decide upon conflicting titles, 
but may report the facts, without determining the owner. 11 And 
it has been held that the jury are not bound to find a special ver- 
dict, in regard to the title of the claimant, or where there are con- 
flicting claims, but may do so with propriety. 12 

9. The jury should describe the land with intelligible boun- 
daries. 13 

8 Directors, &c. v. Railw., 7 Watts & Serg. 236. Allyn v. Prov. W. &. B. 
Railw., 4 Rhode Is. 457. 

9 Carpenter v. County Commissioners of Bristol, 21 Pick. 258. The trustee, 
and not the cestui que trust, is the proper party to such proceeding. Davis v. 
Charles River Branch Railw., 11 Cush. 506. The title of the petitioner may be 
inquired into, either on the return of the petition or of the report. Church v. 
Northern Central Railw. Co., 45 Penn. St. 339. The mode of proceeding on 
certiorari, and in other writs, is here discussed. 

10 Ashby v. Eastern Railw., 5 Met. 368. So also where the land belonged to 
a partnership, and was not needed for the payment of partnership debts, one of 
the partners having deceased, it was held the title remained in the partners as 
tenants in common, and that proceedings to recover damages by reason of laying 
a railway upon it, were properly taken in their joint names. Whitman v. Boston 
& Maine Railw., 3 Allen, 133. 

11 Matter of Anthony Street, 19 Wend. 678. So, too, where one owns the 
fee, and another has a bond for a deed, the condition of which is not yet per- 
formed, they may join. Proprietors of Locks and Canals v. Nashua & Lowell 
Railw., 10 Cush. 385. 

12 Davidson v. Boston & Maine Railw., 3 Cush. 91 ; 1 Am. Railw. C. 534. 
The sheriff is bound to give the jury definite instructions, in regard to the effect 
of a conveyance. lb. 

13 Vail v. Morris & Essex Railw., 1 Zab. 189. But see Philadelphia Railroad 
V. Trimble, 4 Whart. 47. The jury are not to include in their estimate the ex- 
pense of farm accommodations, which it is the duty of the railway to furnish. lb. 
But if this be done, and the party have judgment on the verdict, he is bound to 
make the erections. Curtis v. Vermont Central Railw., 23 Vt. 613. One tenant 
in common cannot proceed in his own name to have the damages done, by a rail- 

[*271] 



EMINENT DOMAIN. PART III. 

- LO. Where the claim for damages consists of several items, it 
is more conducive to a final disposition of the case to state the 
finding upon each item. In such case any objectionable item 
m;iv be remitted or deducted without the necessity of a rehear- 

II. Bui where the petition alleges several distinct causes of 
damage, and a general verdict is rendered, if one or more of the 
3 is insufficient, it will not be presumed the jury gave any 
damages, on such insufficient claims, in the absence of any instruc- 
by the sheriff in relation to them. 15 But it is not necessary 
to apportion the damages to several joint-owners, and a tenant 
for life may lake proceedings to obtain damages done to his estate 
by the construction of a railway, without joining the remainder- 



man 



10 



12. The character of the proof admitted to enable the triers to 
learn the value of land is so various, that it is not easy to fix any 
undeviating rule upon the subject. It seems to have been the in- 
tention of the courts to allow only strictly legal evidence to be 
red, such as would be admissible in the trial of similar ques- 
tions before a jury in ordinary cases. 17 

It has been allowed to show what price the company had 
paid by voluntary purchase for land adjoining, but in the same 
i was held not competent to inquire of adjoining land-own- 
way, to the common land, assessed even where he has authority from his co-tenant 
to do so. Railw. r. Bucher, 7 AVatts, 33. 

But if the petition be signed by the lessee and the agent of the owner of 
this is a. sufficient representation of the interest. Harvey v. Lioyd, 3 
Penn. St. 331. See also Shoenberger v. Mulhollan, 8 Penn. St. 134. See also 
Cleveland & Toledo Railw. v. Prentice, 13 Ohio (N. S.), 373; Strang v. Beloit 
& M. Railw. Co., 16 Wis. 035. It is here said that the description, by way of 
an approximating diagram, may be sufficient without an actual survey. 

14 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58; s. c. 1 Am. 

1 . ."-08. 
]i Parker B( ton & .Maine Railw., 3 Cush. 107. 

road v. Boyer, 13 Penn. St. 497 ; Directors of Poor v. Railw., 7 Watts 
286; Pittsburgh & Steuben Railw. v. Hall, 25 Penn. St. 336. In one 
ud to be the duty of the commissioners to assess damages to joint 
s v. Elizabethtown & Somerville Railw., Spencer, 230. 
Ii v. Nashville & X. W. Railw. Co., 2 Head, 171. 
oy & Boston Railw. v. Northern Turnpike Co., 16 Barb. 100; Johnson, 
J., in Rochester & Syracuse Railw. v. Budlong, 6 How. Pr. 467; Lincoln v. 
Sarafc aectady Railw., 23 Wend. 425, 432. 

[*272] 



§ 72. MODE OF PROCEDURE. 289 

ers, who were farmers, and had occasionally bought and sold 
land, what was the value of their own laud adjoining. 18 Nor is 
* it competent to show for what price one had contracted to buy 
land adjoining. 19 Nor can the claimant prove, what the com- 
pany have offered him for the land ; 20 nor what the company 
have been compelled to pay for land adjoining, which was taken 
compulsorily. 21 

18 Wyman v. Lexington & West Cambridge Kailw., 13 Met. 316. But in 
Robertson v. Knapp, 35 N. Y. 91, it was held, that farmers and residents of the 
immediate neighborhood are competent to fix the price of land in their vicinity ; 
one who bad been a farmer, but had changed Lis occupation to that of a mechanic, 
was nevertheless held a competent witness to testify to the value of land in the 
neighborhood. And in Shattuck v. Stoneham Branch Railw., 6 Allen, 115, it 
was held, that in such proceedings the land-owner, being a competent witness, 
may testify to his opinion of the amount of damage which he has sustained, and 
may prove recent sales of other lands in the vicinity, similarly situated, and 
about the same time ; but he cannot give evidence of the opinions of others, as 
to the value of other lands in the vicinity. But it is rather matter of discretion 
with the court, whether sales of other lands were sufficiently recent, or the land 
sufficiently like that in question, to afford aid to the jury. And on such hearing 
the company may prove that they have located a passenger station, since the 
hearing began, near the petitioner's land over which the railway passed. 

19 Chapin v. Boston & Providence Railw., 6 Gush. 422. 
80 Upton v. South Reading Railw., 8 Cush. 600. 

21 White v. Fitchburg Railw., 4 Cush. 440. Only such damages as are pecu- 
liar to the owner of the land taken, and not those which are common to all land 
in the vicinity, can be considered. Freedle v. North Carolina Railw., 4 Jones 
Law, 89. It has been held that the benefits resulting to the land-owner from 
the construction of the road are to be deducted, in estimating damages for land 
taken for a railway ; and that consequently a statute providing for such deduc- 
tion is not thereby rendered unconstitutional. C. P. & Ind. Railw. v. Simpson, 
5 Ohio (N. S.), 251. But as the constitution of this state expressly required that 
compensation to the land-owner should be made in all cases when land is taken 
for public use in money, it seems scarcely consistent to say that the benefits to 
the land-owner can in all cases be deducted, since in some cases the benefits to 
the particular piece of land, a portion of' which is taken, might more than com- 
pensate for that Avhich is taken, thus leaving nothing to be compensated " in 
money." The force of this embarrassment was felt by the court in a highway 
case in Vermont, where the constitution requires, that " whenever private prop- 
erty is taken for public use, the owner ought to receive an equivalent in money." 
.The court escaped from the embarrassment here by a device, which some might 
possibly regard as more ingenious than ingenuous, by saying, that as the consti- 
tution only applied to property " taken for public use," this could not reach cases 
where only an easement in property was taken. The court might, with almost 
equal propriety, have said, that the provision of the constitution "ought to re- 
ceive," being in the optative mood, did not imply an imperative duty, as few per- 
vol. i. 19 [*273] 



EMINENT DOMAIN. PART III. 

• 1 I. And it has been held that witnesses cannot be allowed to 
their opinion of the value of the land or materials taken. 22 
This inquiry leads to the discussion of the general question, of 
whai matters may l)e proved, by the opinion of witnesses who are 
Dot possessed of any peculiar knowledge, skill, or experience upon 
the subject. 

15. And it must be admitted the cases are not altogether recon- 
cilable upon the subject. Experts are admitted to express their 
opinions, not only upon their own observation, but upon testimony 
given in court, by other witnesses, and where the testimony is 
conflicting, upon a hypothetical state of facts. 23 The testimony of 
such witnesses is intended to serve a double purpose, that of 
instruction to the jury upon the general question involved, and 
elucidation of the particular question to be considered by them. 2 3 
The resort to the assistance and instruction of persons skilled 
in particular departments of art or science is constantly adverted 
to, as of great advantage in enabling the triers to properly corn- 
sons expect to obtain by process of law all which they "ought to receive." 
Livennore v. Jamaica, 23 Vt. 361, Redjidd, J. dissenting, sub silentio. Ante, 
§ 71, pi. 6. See also C. & P. Railw. v. Ball, 5 Ohio (N. S.), 568; Kramer v. 
Clev. & Pittsb. Railw., id. 140. 

Montgomery & West Point Railway v. Varner, 19 Ala. 185; Concord 
Railway r. Greely, 23 N. H. 237; Buffum v. New York & Boston Railway, 
4 U. 1. 221; Cleve. & Pittsb. Railway v. Ball, 5 Ohio (N. S.), 568. But the 
witness may give an opinion as to the value of the whole land, both before and 
after the location of the road. lb. And so also in Illinois & Wisconsin Rail- 
way v. Van Horn, 18 111. 257. See also Dorian v. E. Br. & Way. Railw. Co., 
46 I 1 ' mi. St. 520. In a case in Pennsylvania (East Penn. Railway Co. v. 
Hiester, 40 Penn. St. 53), it is said that the only proper test of the value of 
land bo taken is the opinion of witnesses as to the value of the land taken, in 
view of its location and productiveness, its market value, or the general selling 
jin e of land in the neighborhood. And this seems to us exceedingly sensible 
and tree from refinement or conceit. See also Same v. Hottenstine, 47 Penn. 
St. 28. 

rreenleaf Ev. § 440. Thus the testimony of persons employed in making 
insurance of buildings against fire, may, in actions against railways for conse- 
ntial damages to buildings, by the near approach of the track, express their 
opinion of the effect thereby produced upon the rent, or the rate of insurance 
ich buildings. Webber v. Eastern Railw., 2 Met. 147. See also Henry v. 
ique & Pacific Railw., 2 Clarke, 288. And in the case of Brown v. Provi- 
dence, W arren, & Bristol Railw., 5 Gray, 35, it was held, that the company 
could not Bbow that liquors were sold, or to be sold, upon land, as a part of the 
indui en ent to pay so high a rent, or that it was "contemplated" having a station 
near the point ; such testimony being too indefinite and remote. 

[•274] 



§ 72. MODE OF PROCEDURE. 291 

prehend those subjects out of the range of their general knowledge, 
* or the particular studies of judges, or jurors, in some of the best- 
considered English cases, within the last few years. 24 But the 
testimony of scientific witnesses will not establish facts in con- 
flict with the axiomatic principles of science and philosophy, or 
those which contradict the evidence of the senses, or of con- 
sciousness. 24 

16. But there is certainly a very considerable number of sub- 
jects, in regard to which the jury are supposed to be well instructed, 
and altogether capable of forming correct opinions, and in regard 
to which the testimony of experts is not competent, or not requi- 
site, but which it is more or less difficult for the witnesses to 
describe accurately, so as to place them fully before the minds of 
the jury, as they exist in the minds of the witnesses. Among 
these are inquiries in regard to the extent of one's property, sol- 
vency, health, affection, or antipathy, character, sanity, and some 
others. In such cases the witnesses' knowledge is chiefly matter 
of opinion, and it is impossible to enumerate each particular fact. 
Of this character seem to us to be questions in regard to the 
quality and value of property. One may enumerate some of the 
leading facts upon which such an opinion is based ; but after all, 
the testimony,' as to facts, is excessively meagre, without the 
opinion of the witness, either upon the very subject of inquiry, or 
some one as near it as can be supposed. Hence in those courts 
where the opinion of witnesses, in regard to the value of property, 
real or personal, is not admitted, it leads to sundry shifts and 
evasions, in the course of the examination of witnesses upon that 
subject, which, while it is not a little embarrassing in itself, at the 
same time illustrates the inconsistency, not to say absurdity, of 
the rule. 25 

84 Broadbent v. Imperial Gas Co., 7 De G., M. & G. 486, 4C6, opinion of Lord 
Chancellor Cranworth. 

25 Opinion of the court in Concord Railw. v. Greely, 23 N. H. 237. " A wit- 
ness may state what was the cost of property of a particular description at a 
given place, in order to ascertain the value of property of a similar description. 
Whipple v. Walpole, 10 N. H. 130. But evidence of the price for which the 
corporation offered to sell a tract adjoining Greely's, and how much they refused 
to take for it, is certainly of doubtful competency. We have held at this 
term, in the case of Ilersey v. The Merrimack County Mutual Fire Insurance 
Company, in Merrimack county, that what the owner of a piece of real estate 
said he would sell the same for, was competent evidence against him, as tending 

[*275] 



292 EMINENT DOMAIN. PART III. 

•IT. In regard to costs, in such proceedings, the more general 
ra le i- D01 to allow them, unless specifically given by statute. 26 

.. its value. But thai was a statement in regard'to the value of the land 
while the evidence admitted here was going one step further; it was a 
Btatemenl in regard to other lands; and it is quite questionable whether it could 
bave any legitimate tendency to prove the value of Greely's land. 

•• ( )n questions of science, skill, or trade, or others of a like kind, experts may 
not onh testify to tacts, but are permitted to state their opinions. 1 Greenl. Ev. 

5 UO. But upon subjects of general knowledge, which are understood by men 
in general, and which a jury are presumed to be familiar with, witnesses must 

as to facts alone, and the jury must form their opinions. In such cases, 
the testimony of witnesses, as experts merely, is not admissible." 

It an inquiry arose in regard to the value of a cargo of flour, it would cer- 
tainly sound Btrange to hear witnesses testify what precisely similar flour is 
worth, and at the same time be gravely told, that they were studiously to avoid 

iing any opinion of the value of this very flour, which they had seen and 
examined, and in regard to which the whole testimony was received. Yet such 
i-, from necessity, the course resorted to, under the rule. The more general 
course is, we think, to receive the opinion of witnesses, acquainted with the 
property and the state of the market, as to the value of the particular property 
in question. White V. Concord Railw., 10 Foster, 188. But in New Hamp- 
shire, in a late case, it is held that the opinion of witnesses, in regard to apparent 
health, i- comp