six tracks of the defendant company, was struck by some cars which had been shunted down the grade, and were running by their own momentum. It appeared that deceased was well acquainted with defendant's custom of running cars down this track, which was a switch. The accident happened about noon of a clear day, and the deceased might have seen and avoided the cars by looking up the track on which they were running, and which was the first track to be crossed by him. He appears to have been watching some cars which were leaving the crossing on the third and fourth tracks. Held, contributory negligence, and defendant was entitled to a nonsuit. Oct. 4, 1887. Woodward v. New York, L. E. & W. R. Co. Opinion by Finch, J. Ruger, C. J., and Danforth and Andrews, JJ., dissent.

PARENT AND CHILD-NEGLECTED CHILD-COMMITMENT-COMPLAINT NOTICE HABEAS CORPUS - RE

TURN TO WRIT― TRAVERSE — DEMURRER.—(1) The charge in a complaint that a child fourteen years old was found, on a certain date, "improperly exposed and neglected, and wandering in the public park, without any proper guardianship," is not sufficient to bring the case within Penal Code N. Y., § 291, subd. 2, which provides that a child is subject to summary jurisdiction who is found "not having any home or other place of abode or proper guardianship, or who has been abandoned or improperly exposed or neglected by its parents, or other person or persons having it in charge, or being in a state of want and suffering." (2) A charge in a complaint "that the said child was found in the company of Mary Ryan, who is a reputed prostitute," is sufficient to sustain a commitment under Penal Code N. Y., § 291, subd. 4, relating to a child found "frequenting or being in the company of thieves or prostitutes." (3) Penal Code N. Y., § 291, as amended by Laws 1868, ch. 31, requires that when a child is committed to an institution under the Code, if it shall appear "that the parent, guardian or custodian of such child was present at the examination before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient, no further notice " shall be necessary. It is not sufficient compliance with the above requirement that the mother was present at the examination, the statute contemplating that notice must be given to the father. (4) Where a return to a writ of habeas corpus and certiorari recites that the commitment proceeded upon proof by competent and satisfactory evidence of the charge made, without setting out the evidence, a traverse to the return, which does not deny these facts, but alleged that the person confined had done no act warranting the conviction, is insufficient, and an admission by demurrer of the facts alleged in the traverse furnishes no grounds for the discharge of the person confined. Oct. 4, 1887. People, ex rel. Van Riper, v. New York Catholic Protectory. Opinion by Andrews, J.

RECEIVER-CORPORATION-JUDGMENT AGAINT-REVERSAL AND NEW TRIAL-EFFECT ON ASSETS OF RECEIVER-ESTOPPEL BY JUDGMENT.-(1) After reversal on error of a judgment against a corporation, which meantime has been dissolved and a receiver appointed, the judgment obtained in a new trial, to which the receiver was no party, is void as against the assets in his hands. (2) Intervention by the receiver of a dissolved corporation, on hearing of a writ of error from a judgment obtained against the corporation before dissolution, for the purpose of protecting his interest in assets given as indemnity to the sureties, on the bond in error, does not estop him to defend a claim against the assets in his hands, based on a judgment rendered after remand in a new trial on

the merits, to which he was no party. Oct. 4, 1887. People v. Knickerbocker Life Ins. Co. Opinion by Danforth, J.

VENDOR AND VENDEE-ACTION TO RECOVER EARNEST MONEY-FAILURE OF TITLE-LIABILITY FOR DECEDENT'S DEBTS-SPECIFIC PERFORMANCE-EVIDENCE -OPINION OF ATTORNEYS-SET-OFF AND COUNTERCLAIM-ACTION GROWING OUT OF CONTRACT DECLARED ON.—(1) The bare possibility that title to real estate may be affected by debts of a deceased person, who owned the property at the time of his death, is not sufficient reason to refuse to accept the title, it appearing that the estate had been regularly probated, a balance of $10,000 of personal estate left by the deceased, and that nearly three years had elapsed since the appointment of the administrator. (2) Where the purchaser of real estate resists specific performance of the contract upon the ground that the title is unmarketable, it is not error to exclude evidence to the effect that attorneys regarded the title insecure. The question is one for the court to answer. (3) In an action to recover earnest money paid on a contract of purchase of land, because of the possible liability of the land to be sold for the deceased vendor's debts in course of administration, a counter-claim by the executor of the deceased vendor for specific performance of the contract is properly within Code N. Y., §§ 501, 502, allowing counter-claims based on a contract set forth in the complaint. Oct. 4, 1887. Mosher v. Cochrane. Opinion by Danforth, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

INSURANCE-LIMITATION OF ACTION-CONDITION OF POLICY.-A policy of fire insurance limited the time for the commencement of actions thereunder to six months next succeeding the day upon which the loss should occur, and gave to the company sixty days after the receipt of sufficient and satisfactory proof in which to pay the loss. Held, that the former condition was valid, and that the latter provision did not operate to extend the time beyond the six months. The proposition is that the sixty days during which the company is entitled to delay the payment of the loss incurred by the fire should be eliminated from the six months. Had such been the intention of the parties, how easy it would have been so to have expressed that intention. But there is nothing in the policy, which is clear and unambiguous in all its terms, to indicate any such intention. It is within the experience of all men who have investigated the subject, that insurances are unfortunately but too often the precursors of fire. Hence the sixty days were obviously stipulated for by the company for its own benefit, convenience, and protection, so as to enablo it to investigate the circumstances attending the fire by which the loss is alleged to have occurred, and thereby satisfactorily to ascertain its liability and to determine upon its course; whether, if there be no foul play, to rebuild or replace the destroyed property, or make good the loss in money; and possibly to provide the means of satisfying the demand of the insured, if it be honest, or if not, to enable it to resist the claim. The privilege of postponing for sixty days the payment of the loss could not have been intended merely to abridge the period of limitation. In Insurance Co. v. Aiken, Va. L. J. 1886, p. 714, it was not contended that such was the intention; no such defense was offered. In fact if such position had been tenable, there was no necessity for controversy as to the nice question of a few days, on which that case turned, the question there being as to the effect of the agreed extension of

this very limitation. The case then turned, to some extent at least, on the concessum, as it were, that the period that barred the action was six months next succeeding the occurrence of the fire, unless the provision was waived by the express agreement to suspend its operation. Only seven days remained of the six months next succeeding the day upon which the loss was alleged to have taken place. In this state of affairs it was agreed that said "provision be waived for thirty days." There the question was whether or not the thirty days were to be exclusive or inclusive of the seven days. This court held that the provision was by the express agreement waived for thirty days exclusive of the seven days; and this barely brought the time of bringing the action in that case within the provision as influenced by the waiver. Hence the obvious bearing of that decision is in favor of the position of the plaintiff in error here, that the period of limitation began on the 25th of June, 1884, the day on which the loss is alleged to have taken place. The cases cited as authority for the position assumed by the counsel for the defendant in error are not appropriate to this case; the language of the provisions in the policies passed upon in those cases being different from the language of the provisions in the policy here under consideration. Besides the decisions of the courts of several of the States sustain the construction contended for by counsel for the plaintiff in error, and which the plain language of this policy obviously demands. In the case of Johnson v. Insurance Co., 91 Ill. 92, the Supreme Court of that State decided, that "where a policy of fire insurance provides that no action shall be maintainable thereon until an award fixing the amount of the claim, nor unless commenced within twelve months next after the loss should occur, the action must be brought within twelve months from the occurrence of the fire, and the time does not continue until twelve months after the award." In Chambers v. Insurance Co., 51 Conn. 17, a case in which a fire insurance policy provided that losses should be paid in sixty days from receipt of proofs, and that no suit should be maintainable unless brought within twelve months after the loss occurred, it is held "the twelve months must be reckoned from the day of the fire." See also Tasker v. Insurance Co., 58 N. H. 469. There can then be no hesitation in holding that the court below erred in sustaining the demurrer to the first special plea of the defendant below, the plaintiff in error here, and holding that the plaintiff's action was not barred when brought. Va. Sup. Ct., Sept. 1887. Virginia Fire & Marine Ins. Co. v. Wells. Opinion by Richardson, J. Hinton, J., dissents.

JUDGMENT-RES ADJUDICATA-VALIDITY OF RAILROAD BONDS.-Resident property owners and tax payers filed a bill in equity against a town and a railroad company to enjoin the town from making a donation of bonds to the company. The Supreme Court held that the town had power to issue the bonds, and dismissed the bill. The town and railroad compromised the litigation by the town issuing a lesser number of bonds, and paying the costs of the action. Held, that a suit by other property owners and tax payers of the town, although not nominally parties to the first action, could not be maintained against the town and the holders of the bonds to cancel the bonds issued in pursuance of the compromise. The law upon the subject is thus stated in Freeman on Judgments (3d ed.), § 178: "A judgment against a county, or its legal representatives, in a matter of general interest to all its citizens, is binding upon the latter, though they are not parties to the suit. A judgment for a sum of money rendered against a county imposes an obligation against the citizens which they are

compelled to discharge. Every tax payer is a real, though not a nominal, party to such judgment. If for the purpose of providing for its payment the officers of the county levied and endeavored to collect the tax. none of the citizens can, by instituting proceedings to prevent the levy or enforcement of the tax, dispute the validity of the judgment, nor re-litigate any of the questions which were or which could have been litigated in the original action against the county." The views of the text-writer are sustained by the following authorities: Clark v. Wolf, 29 Iowa, 197; Tredway v. Railway Co., 39 id. 663; State v. Rainey, 74 Mo. 229; Commissioners v. Hinchman, 31 Kans. 729. Ill. Sup. Ct., Sept. 26, 1887. Harmon v. Auditor of Public Accounts. Opinion by Magruder, J.

NEGOTIABLE INSTRUMENT - BONA FIDE PURCHASER EQUITIES FUTURE CONSIDERATION. Of course, there is no need to cite authorities in support of the proposition "that the bona fide holder of a promissory note for value acquired before maturity is not affected by equities between the original parties." The principle is elementary; but as peculiarly applicable to the instant case, and touching the rule where the consideration relates to something in the future, is the case of Sadler v. White, 14 La. Ann. 17, from

which we quote: "Plaintiff received the note before maturity, and before a failure of the consideration. Even if it were known to him taking it that the consideration was future and contingent, and that there might be offsets against it, this would not make him liable to the equities between defendants and payee." It cannot affect the negotiability of a note that its consideration is to be hereafter realized, or that from some contingency it may never be enjoyed. Any one having sufficient confidence in another to give his written obligation for something to be gained or enjoyed hereafter is at liberty to do so, and the maker cannot censure any future holder for having purchased it, and for seeking to recover it; for it was on the faith of the maker in the payee that he would execute his promises, and allow no obstacles to defeat it, that he executed the note, and gave currency to it. However sensitive we may be to cases of individual hardship- and that of the defendant is particularly one, if the allegations of her answer are true-to swerve from this established rule touching the consideration of promissory notes would be greatly to impair, if not wholly destroy, their negotiability; for in nearly all cases of the purchase of a note, the buyer knows there might be equities between the original parties to the same. La. Sup. Ct. July 5, 1887. State Nat. Bank v. Cason. Opinion by Todd, J.

TRANSFER AFTER MATURITY-DEMAND.

B., the payee of a negotiable promissory note overdue, transferred it by indorsement to W. for a valuable consideration, on the 30th of July, 1883. The makers were, to the knowledge of the parties, insolvent at the time of the transfer, and had made an assignment for the benefit of their creditors; and it was known that by reason of certain litigation between the general and certain secured creditors, the note would not be paid immediately from the funds in the hands of the assignee. All the parties resided in the same city, and nothing was said at the time of the indorsement as to whether the note should be presented to the makers for payment or not. Upon the determination of the litigation in favor of the secured creditors, the note was, on the 21st of November, 1883, presented to the makers for payment, and immediate notice of non-payment given the indorser. Held (1), that there is nothing in the facts of the transaction from which an inference can be drawn that presentment for payment had been waived by the indorser; (2) that the note was not presented to the

makers for payment within a reasonable time; and (3) that the indorser was discharged. The legal effect of indorsing an overdue promissory note, negotiable in form, is generally held to be the equivalent of an inland bill of exchange, drawn by the indorser on the maker of the note, payable to the indorsee at sight or on demand; and by its analogy in this regard, the duty of the indorsee of such a note, if he would hold the indorser, is generally determined. Patterson v. Todd, 18 Penn. St. 426. As the duty of the holder of such a bill is to present it for payment in a reasonable time, a like duty devolves upon the indorser of such a note. Thus it is said in Tyler v. Young, 30 Penn. St. 144: "The indorsement of a note, due or not due, always expresses a conditional as opposed to an absolute obligation. The indorsement of a note, overdue, has been invested by the modern decisions with a very distinct character. Leidy v. Tammany, 9 Watts, 353. It is a bill of exchange drawn upon the party primarily liable, payable at sight. In this theory, the necessity of demand and notice is an essential element. | Not notice on a given day, as in the case of a matur. ing note-possible in that case, but impossible in the other, for the day appointed by the former maker and the new acceptor has passed-but notice after the holder has had reasonable time to make the demand on the maker, and has employed that time with diligence." As to what is a reasonable time has been regarded as a question of some difficulty. Dan. Neg. Inst., § 606. But in a case like this the only reasonable rule that can be adopted is to require due diligence in presenting the note to the maker for payment. It is said in one case (Aldis v. Johnson, 1 Vt. 136), **if the indorsement be made after the note falls due, the demand of payment must be made as if the note fell due the day of the indorsement." But the general and better rule is the one just stated. Tyler v.Young, supra; Berry v. Robinson, 9 Johns. 121; McKinney v. Crawford, 8 Serg. & R. 351; 1 Pars. Notes & B. 381, and notes; Dan. Neg. Inst., §§ 605, 611, 996; Light v. Kingsbury, 50 Mo. 331. Where a thing is required to be done, and may be done presently, a reasonable time in which to do it necessarily excludes any delay that in the exercise of reasonable diligence could have been avoided; so that a reasonable time in which to fix the liability of the indorser of an overdue promissory note should be such as, in the circumstances, will enable the holder, in the exercise of due diligence, to present it for payment; and any delay that may by the exercise of such diligence be avoided, should be treated as negligence, and deprive the holder of the right to look to the indorser. Where the facts are in dispute it is, as in similar controversies, a question for the jury to determine, whether the note was presented in a reasonable time to the maker for payment, so as to bind the indorser; but where they are ascertained, it is a question for the court, and cannot properly be submitted to the jury as a question of fact. Walker v. Stetson, 14 Ohio St. 89; 1 Pars. Notes & B. 339; Dan. Neg. Inst., § 612. Whether the presentment of a note due on demand has been delayed for such a period as, by becoming dishonored, to be open to defenses of the maker against the original holder, is not the same as the question whether it has been presented in due time to bind an indorser. When such an instrument has been transferred by indorsement, it would, in the opinion of a modern author, become, "by the very act of indorsement, a draft by the indorser upon the maker; and the indorsee holding it should regard it, as it is in fact, a demand through him for the amount due the indorser. And it should therefore be presented immediately, subject only to such qualifications as apply to bills payable at sight" (Dan. Neg. Inst., § 610); and still more is this true as to a bill

payable on demand (id., § 605), the analogue, as before shown, of the indorsement of a promissory note after maturity. We are therefore clearly of the opinion that the note was not presented for payment to the makers in the requisite time to charge the defendant below as an indorser of it. As between the holder of negotiable paper and the prior parties thereto, it is now well settled that the insolvency or bankruptcy of the maker or acceptor will constitute no excuse for want of demand. And the rule is the same whether the payor becomes insolvent between the time of indorsing the note and its maturity, or is insolvent before and at the time of the indorsement, and his insolvency is known to the indorser when he puts his name upon the note. 1 Pars. Notes & B. 446. "The reason," says the author, "is to be found in the stringency of the rule requiring demand, coupled with the fact that it is possible that the note may still be paid by the assistance of friends or otherwise." The same author, in his work on Contracts, vol. 1, p. 270 (5th ed.), note c, observes: "The fact that at the time of the indorsement the indorser had reason to believe, that the maker would not pay, does not dispense with the necessity of due notice to him of the maker's default:" citing Denny v. Palmer, 5 Ired. 610; Oliver v. Munday, 3 N. J. Law, 982; Allwood v. Haseldon, 2 Bailey, 457-the latter being a case where the note was indorsed after maturity. See also Gray v. Bell, 2 Rich. 67; 2 Dan. Neg. Inst., §§ 1171, 1172, and cases cited. Hudson v. Wolcott, 39 Ohio St. 618, and Kyle v. Green, 14 Ohio, 490, distinguished. Ohio Sup. Ct., Oct. 4, 1887. Bassenhorst v. Wilby. Opinion by Minshall, J.

RAILROAD-NEGLIGENCE-TRESPASSER ON TRACK.While passing along the defendant's track, which was laid in a public street, plaintiff's foot was caught between the rail and a plank inside the track, and while thus fastened he was run over by one of defendant's trains. The evidence showed that both in the construction of the track where the injury occurred, and in running the train which injured plaintiff, the defendant was negligent, and the plaintiff was free from negligence. Held, that plaintiff was not a trespasser in walking upon defendant's track, and that defendant was liable for the injuries sustained. If the place where the lad caught his foot between the rail and the plank was the roadway of the company to the exclusion of the rights of the public, then there can be no recovery, even though the way was so unsafe that no citizen could walk along it without injury coming upon him. If the way was the exclusive roadway of the company, on which the public had no right of passage, then the company would not be liable to one who walked along it, unless the injury inflicted upon him was the result of willful or intentional misconduct. But if it was a street which the public had a right to use, then, although it may have been occupied by the track of the company, the person who walks upon it is not a trespasser. It is true that circumstances may make him guilty of contributory negligence that will defeat a recovery, but the mere fact that he walks upon the highway does not make him a trespasser, although the railroad company has its track laid in the highway. A trespasser has no right to exact care from a railroad company, but one who is not a trespasser has a right to exact a reasonable degree of care if he is not himself in fault. It is not necessarily inferable, because both the railroad company and the public have rights in a street or highway that one who enters on the track in the street is a trespasser; nor indeed can it be inferred from that fact alone that he is guilty of negligence. If the way retained its character as a public one, it was not a wrong on the part of the citizen to carefully pass over it, even though it be conceded, that so far as respects

servants.

the running of trains, the rights of the company are paramount. Although the rights of the company are paramount, still a right of action may exist in favor of one who is injured by the negligence of the company's It may be true, and probably is true, that the railroad company has the superior right. Railroad Co. v. Butler, 103 Ind. 31. It cannot however be inferred from this that the citizen has no right to use the track for passage. He does have that right, but it is perhaps subordinate to the right of the company. The cases relied upon by appellant's counsel certainly do not sustain the doctrine that the paramount right of the company absolves it from duty to those who walk along the way upon which its tracks are laid. Barker v. Railroad Co., 4 Daly, 274; Zimmerman v. Railroad, 71 Mo. 478; Railroad Co. v. Hart, 87 Ill,[529; Wilbrand v. Railroad Co., 3 Bosw. 314; Railroad Co. v. Jersey, 20 N. J. Eq. 61; Adolph v. Park Co., 65 N. Y. 554; Railway Co. v. Bert, 69 Ill. 388; Smedis v. Railroad Co., 88 N. Y. 13; Frick v. Railway Co., 75 Mo. 599; Harlan v. Railway Co., 65 id. 22; Stillson v. Railroad Co., 67 id. 671; Bell v. Railroad Co., 72 id. 50. Many of the cases go much further than the cases we have cited, for they hold that if the place has been used as a highway for a long period of time, and this use is with the knowledge and permission of the railroad company, it is its duty to treat it as a highway, and to take precautions to prevent injury to those who travel over it. Barry v. Railroad, 92 N. Y. 289; Byrne v. Railroad Co., 10 N. E. Rep. 639; Harriman v. Railroad Co., 12 id. 451; Railroad Co. v. Hedges, 105 Ind. 398; Railroad Co. v. Snyder, 18 Ohio St. 399; Graves v. Thomas, 95 Ind. 361; 48 Am. Rep. 727. The doctrine of these cases is in harmony with the rule that has long prevailed, and has been again and again enforced, and that is that where the railroad company licenses the public to make a general use of its track it cannot treat a citizen who walks upon it as a trespasser. Of the great number of cases asserting this principle we cite only a few. Davis v. Railway Co., 58 Wis. 646; Murphy v. Railroad Co., 38 Iowa, 539; Bennett v. Railroad Co., 102 U. S. 577; Kay v. Railroad Co., 65 Penn. St. 269; Campbell v. Boyd, 88 N. C. 129; 43 Am. Rep. 740; Railway Co. v. Pointer, ǝ Kan. 620. Ind. Sup. Ct., Oct. 12, 1887. Louisville, N. A. & C. Ry. Co. v. Phillips. Opinion by Elliott, J.

LIABILITY OF LESSOR FOR NEGLIGENCE.-A horse-railroad company, which by its charter, is made liable for all injuries to persons and property caused by negligence or mismanagement in the operation of its railroad, cannot escape liability by leasing its road, where neither the statute incorporating the company, nor the act of the Legislature sanctioning such lease, indicate by their terms that it was to be absolved from liability by such a course; and this is so, although the lessee assumes all liability, and agrees to defend all suits brought against the original company, and pay all judgments entered against it. The general rule is familiar that neither a steam nor a street railway corporation can make a valid transfer, either by way of absolute deed, mortgage or lease of its franchise, or of its railroad and the bulk of its property, or relieve itself of the burdens imposed upon it by law or by its charter, without the consent of the State. Com. v. Smith, 10 Allen, 448; Richardson v. Sibley, 11 id. 65: Bank v. Railroad, 13 id. 105; Railroad v. Railroad, 115 Mass. 347; Davis v. Railroad, 131 id. 271; Railroad v. Brown, 17 Wall. 445, 450; Bower v. Railroad, 42 Iowa, 546. In Quested v. Railroad, 127 Mass. 204, a street railway company had leased its railroad and franchise, under legislative authority to do so, it being expressly provided by statute however that such lease should not exempt said company from any duties or liabilities to which it would otherwise be subject.

There is no similar express provision in any statute affecting the present case, but on the other hand, we find nothing indicating an intent that the defendant, by means of a lease, should be able to escape from its liabilities and responsibilities to the public. The provisions of the lease, including those which are incorporated by reference, define the duties and obligations of the contracting parties as between themselves, and appear to be sufficient effectually to bind the lessee to indemnify the lessor against loss. But it is nowhere stated that the lessor should be exonerated from responsibility, nor was it possible for the parties to make a contract which should have that effect. The sanction of the Legislature was given to the contract as made by the parties, but added nothing by way of exemption from the primary responsibility of the lessor. The lease did not purport to transfer the lessor's franchise, or the whole of its property. The lessor was not going out of business entirely, but only leased a portion of its road, with provisions for restoration of the leased property at the end of the term, and for re-entry. It was under a positive duty and obligation to the public; and the consent of the Legislature to the making of the lease did not imply a discharge from the duty and obligation. Indeed there is a certain implication that the parties did not contemplate any such discharge arising from the stipulation for indemnity "during said term;" that is, during the whole term of the lease. Where a corporation seeks to escape from the burdens imposed upon it by the Legislature, clear evidence of a legislative assent to such exoneration should be found. We do not overlook the decisions in Mahoney v. Railroad, 63 Me. 68, and in March v. Railroad, 29 N. H. 1, 35, which certainly are rather to the effect that the lessees alone are responsible, under circumstances not much unlike those in the present case. But we do not find that the lessees were substituted for the defendants in any such sense as to relieve the latter from liability; and the result is that there must be a new trial. Mass. Sup. Jud. Ct., Sept. 24, 1887. Breslin v. Somerville Horse R. Co. Opinion by C. Allen, J.

torts

LIABILITY FOR NEGLIGENCE SURRENDER

ING ROAD TO TRUSTEE. - A railroad company, chartered under the laws of Virginia, cannot by the voluntary surrender of the possession, control and operation of its road, by deed of trust, to trustees of its own selection, shift the responsibilities imposed upon it by law, nor relieve itself from liability for wrongs or injuries subsequently done to persons or to property in the negligent operation of its road. The decisions are numerous in which railroad companies have been held exempt from liability for injuries, or breaches of contract, growing out of the operation of their road in the hands of mortgage trustees; but the cases were those in which the power to mortgage was conferred by charter, and where the possession of the trustees was adverse to the company, and the result of proceedings in invitum, cases arising in those States where special statutes existed authorizing and regulating the surrender and transfer of a company's road and franchises to trustees for the benefit of creditors. In an elaborate note by the editor of the American Decisions (vol. 75, p. 548), on "railroad corporation's power to transfer its franchises and property," where the authorities on the subject are collected and compared, the cases of Hall v. Railroad, 21 Law Rep. 138 (quoted and relied on in brief of counsel for defendant in error), and of Railroad v. Metcalfe, 4 Metc. (Ky.) 200, (also cited for defendant in error) are specially noticed as conflicting with other decisions upon the subject, and preference is given to the other decisions as expressing the correct view of the law. In the case of Coe v. Railroad Co., 10 Ohio

St. 375 (also quoted by the defendant in error), the court held that the company could mortgage its franchise to take toll, and to maintain the railway, because of distinct legislative authority so to mortgage the franchise. The question in this case under review is whether, in this State, where there is no statutory provision authorizing or regulating the transfer and surrender of its road, the company, defendant, can escape liability for a proved injury by showing a previous voluntary surrender to mortgage trustees, and indefinitely substitute those trustees for the company in the exercise of their corporate rights and franchises, and the discharge of their charter obligations to the public, so as to exonerate the company from liability for injuries inflicted in the operation of the road upon the persons or property of the public. To affirm this question would be to place the public at the mercy of collusive arrangements by which the ends of justice would all be defeated, and would conflict with every principle and analogy of the law of Virginia. A railroad company in Virginia is a quasi public corporation, which, whatever in may do, cannot by its own voluntary contract or collusion, surrender its functions and responsibilities to agents or trustees of its own selection, living it may be (and as in this case is the fact, by the record), outside the limits of the State, beyond the reach of its tribunals and its process, with no one in the State to respond to the demands for the wrongs and injuries done to its citizens, howsoever grievous or heinous they might be. See 1 Wood Ry. Law, § 5, pp. 9, 10; 2 id. § 345, p. 1392; Thomas v. Railroad Co., 101 U. S. 71; 1 Ror. R. 238; Pierce R. 496, and note. The franchises and powers of such a company are in large measure designed to be executed for the public good, and this exercise of them is the consideration for granting them. A contract by which the company renders itself incapable of performing its duties to the public, or attempts to absolve itself from its obligations, without the consent of the State, violates its charter, and is forbidden by public policy. Thomas v. Railroad Co., 101 U. S. 71. "Such corporations are created * ** to answer the public good, * * * and cannot therefore by mere common-law authority, divest themselves by direct act of their capacity to discharge the duties to the public which devolve upon them; and as a sequence thereto, cannot do that which may indirectly lead to the same thing, as for instance, make a mortgage, which by foreclosure and sale, may end in bringing about the inhibited result. 1 Ror. R. 238. In Pierce on Railroads, 496, it is said; "The company cannot, according to the current of the decisions, without special authority of statute, alienate its franchise, or property acquired under the right of eminent domain or essential to the performance of its duty to the public, whether by sale, mortgage, or lease." In Railroad Co. v. Brown, 17 Wall. 450, the Supreme Court says: "It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter, or the general laws of the State by a voluntary surrender of its road into the hands of lessees." A voluntary surrender to trustees, under a mortgage for which there is no legislative authority, cannot have a different operation. In Railroad Co. v. Winans, 17 How. 39, it is said: "The corporation cannot absolve itself from the performance of its obligations without the consent of the Legislature." The Supreme Court of Massachusetts, in Richardson v. Sibley, 11 Allen, 65, say: "A corporation, created for the very purpose of constructing, owning and managing a railroad for the accommodation and benefit of the public, cannot, without distinct legislative authority, make any alienation, absolute or conditional, either of the general franchise to be a corporation, or of the subordinate franchise to manage and carry on its corporate

business, which,' says the learned editor of the American Decisions, in one of its recent volumes (75 Am. Dec. 549), in our opinion, expresses the correct view.'"' The Supreme Court of New Hampshire, in Pierce v. Emery, 32 N. H. 484, says: "They may sell or mortgage their personal property, but they cannot sell or mortgage with it the right to manage and control the road, nor any corporate right or franchise." The Supreme Court of the United States, in one of its very latest decisions, Railroad Co. v. Railroad, 118 U. S. 309, says: "We think it may be stated as the just result of these cases, and on sound principle, that unless specially authorized by its charter, or aided by some other legislative action, a railroad company cannot by lease, or any other contract, turn over to another company, for a long period of time, its road, and all its appurtenances, the use of its franchise, and the exercise of its powers." The same facts as in this case- so far as the effect of the possession of the road of the company, and its operation by trustees under a mortgage, was the question - were before the Supreme Court of Illinois in the case of Grand Tower, etc., Co. v. Ullman, 89 Ill. 244, and it was held that where a railroad is in the hands of trustees, exercising the same functions the corporation was formed to exercise, and injury ensues, a person may sue the corporation, and recover damages, and will not be compelled to sue the trustees, though both were liable and might be sued. In the case of Thomas v. Railroad Co., 101 U. S. 71, it was contended that "a corporate body may (as at common law) do any act which is not either expressly or impliedly, prohibited by its charter," etc.; but the court said: "We do not concur in this proposition. We take the general doctrine to be, in this country (though there may be exceptional cases and some authorities to the contrary), that the powers of corporations, organized under legislative statutes, are such, and such only, as those statutes confer. Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others." Whatever may be the effect of the deed of trust upon the "works and property " of the company, as a security between the company and its bondholders, it cannot be set up by the company as a defense against liability for injuries to persons or property inflicted by the negligent operation of the road. "A mortgage by which a corporation undertakes to mortgage both its property and franchises may good as to the property, although invalid as to the franchises." 3 Wood Ry. Law, § 456. But assuming the validity of the deed of trust, as well for the incumbrance of the franchises as the works and property of the company, and the lawful duty and necessity for the trustees to take possession of both, for and until a sale could be effected, and a conveyance made to the purchaser, according to the terms of the deed of trust, and the requirements of the railroad law of the State, it is against the public policy and law of Virginia that they may take possession of the road, and manage and control its operation indefinitely, or as in this case, for eleven years, and thereby exempt the company from its legal and moral responsibilities to the public under its charter. Va. Sup. Ct. App., 1887. Naglee v. Alexandria & F. Ry. Co. Opinion by Fauntleroy, J.