eration of five hundred dollars, and the covenant to build a depot hereinafter mentioned." The deed further contained the following clause: "But this conveyance is made upon the express condition that said railroad company shall build, erect, and maintain a station-house or depot on the land herein described, suitable for the convenience of the public, and that at least one train each way shall stop at such depot or station each day when trainз run on said road, and that freight and passengers shall be regularly taken at said depot." The company took the land and constructed the road, but failed to locate the depot in the specified manner. The grantor thereupon instituted a proceeding against them for specific performance. It was held, however, that he was not entitled to this relief, and further that he was not even entitled to damages. A contrary conclusion was, however, reached in Aiken v. Albany, V. and C. Ry. Co., 26 Barb. 289, where the owner of a farm granted to a railway company a right of way through the said farm by a deed which contained, inter alia, the following clause: "The said Albany Northern Railroad is to construct and maintain two good farm crossings." This clause, the court intimated, was properly a condition. It was, however, in order to aid the grantor, construed in that case as a covenant, and specific performance thereof was accordingly decreed.

In order to take advantage of a condition broken there must be an actual re-entry by the grantor or his heirs. If the grantor has in the mean time conveyed the land to a third party, his right of re-entry is gone. Nicoll ↑. N. Y. and Erie R. Co., 12 N. Y. 121.

And the same result follows where he has conveyed part of the land only, for the right of re-entry is not in its nature severable. Tinkham . Erie Ry. Co., 53 Barb. 393.

A grantor of land to a railroad company who after condition broken permits the company to put extensive and valuable improvements on the land without protesting, will be estopped from setting up his right of re-entry. He will be deemed to have waived the breach. Ludlow v. N. Y. and Harlem R. R. Co., 12 Barb. 440.

In Baker v. Chicago, R. I. and Pacific R. R. Co., 57 Mo. 265, the owner of certain land consented to its occupation for the construction of a railroad and executed a conveyance granting a right of way over the same, conditioned that the company should, within a given time after the completion of the road, place fences and cattle guards adjoining the grantor's land as required by law. The deed was delivered to the agent of the company, with the unstanding, however, that it was not to be delivered to the company till they complied with its terms. The corporation went forward without objection from the grantor, and built the road, making expensive and permanent improvements on the land, but failing to construct the fences and cattle guards. The deed was never delivered to the company, and subsequently the grantor brought an action of ejectment. He was held, however, to have estopped himself by permitting the improvements to be made without objection, and judgment was accordingly entered for the railroad company.

Courts are sometimes called upon to construe conditions of this character, and to decide whether they have been complied with by the railroad company. A clause in a conveyance of a right of way to a railroad company upon which to build its road, "provided the same did not interfere with buildings on the grantor's land" was held to prevent the construction of the road so close to said buildings as to endanger them or prevent their usefulness. Rathbone v. Tioga Navigation Co., 7 W. and S. 74.

And where the grantor's deed of land contained an express condition that the grantee should make Chillicothe a station on its road otherwise the deed to be void, it was held that the erection of a station one fourth of a mile east of the town plat of Chillicothe was a sufficient compliance with the condition. Jenkins v. Burlington and Mo. River R. R. Co., 29 Iowa, 255.

In Southard v. Central R. R. of N. J., 2 Dutch. 13, the owner of land conveyed a certain portion thereof, for the purposes of a depot and passenger refreshment room by a deed containing a proviso that if the railroad company should erect and use any other buildings within a mile for the same purposes, the deed should be avoided. The company permitted one of its employees to erect and maintain an oyster stand in the depot and also occasionally to lodge passengers in said building. It also permitted from time to time merchants within a mile of the tract granted to unship their freight on the side of the track opposite to their own warehouses. These circumstances were not held, however, to constitute a violation of the provisions of the deed.

A condition in a deed to a railroad company, providing that the same shall be void unless the railroad and one of its stations be built in a certain locality is not void as being in contravention of public policy. McClure v. Mo. River, Ft. S. and Gulf R. Co., 9 Kans. 373.

A condition in such a deed that the company shall keep open certain streets through the land granted is not void as imposing a duty or trust upon the corporation outside its usual duties and powers. Tinkham v. Erie Ry. Co., 53 Barb. 393.

INDEX.

THE mode of citation of the American and English Railway Cases will be as
follows:

8 Am. and Eng. R. R. Cas.

AGENT, 159, 360.

See MASTER AND SERVANT, 49, 50; NEGLIGENCE, 12.

1. The agent of a railway company, acting under a general power to procure
a right of way for the railroad, does not have the right to designate and locate
for his principals the depots along the line of road; and his agreement to locate
a depot at a particular place, as a consideration for a deed to the company of a
right of way, would not be binding on the company. Houston, etc., R. R. Co.
v. McKinney, 723.

2. An incorporated company cannot be called on to answer in damages, in its
corporate capacity, for the false and fraudulent representations of its agent,
unless it authorized the representations. Id.

3. If the agent promised the location of a depot as a part consideration for the
deed, parol evidence would not, in a suit against the company, be admitted to
prove it, and the remedy of the grantor would be against the agent and not
against the company for the deceit practised. Id.

APPEAL, 94, 128, 215, 531.

See PRACTICE, 3, 5, 6, 10, 37.

1. When taken after death of one of the adverse parties, and before substitu-
tion of his successor, is premature. Sheldon v. Dalton, 155.

2. On proceedings to perfect an appeal from the circuit court, a certificate
signed by the judge, after his term of office had expired, will be stricken out.
Cross. Burlington, etc., R. R. Co. 263.

3. The certificate of the clerk, under his official seal, that the depositions and
papers used as evidence on the trial, in their original form, are contained in the
record transmitted to the appellate court, is sufficient. Id.

4. Where a statute providing for proceedings on appeal is repealed, the case
appealed is governed by the provisions of the repealing statute, notwithstanding
it may have been commenced while the repealed statute was in force. Id.

ASSAULT AND BATTERY, 354.

BRIBERY, 68.

See MASTER AND SERVANT, 6.

See EVIDENCE, 1.

A person injured by a defect in a bridge, forming part of a highway, which
a railroad corporation is bound to keep in repair, cannot maintain an action
against the corporation without giving the notice required by the Mass. St. of
1877, c. 234, § 3, to be given to the "persons" obliged to keep the same in re-
pair. Dickie v. Boston, etc., R. R. Co. 203.

CHILD, 280, 306.

See CROSSING, 15; EVIDENCE, 6; PARENT AND CHILD, 1.

1. Statutes as to fencing inapplicable in case of an infant straying on an un-
fenced track. Fitzgerald v. St. Paul, etc., R. R. Co. 311.

2. Where the injury is inflicted by means of locomotive on a child of tender
years, the evidence of negligence is more generally for the jury than for the
court. Vickers v. Atlanta, etc., R. R. Co. 337.

3. A child can be required to exercise, not so much care and caution as a per-
son of mature years, but only so much as may be reasonably expected of one of
its age or capacity; which is a matter to be determined by the peculiar circum-
stances of each case; what would be ordinary neglect, as towards a person of
full capacity, might be gross negligence as towards a child. Mobile, etc., R. R.
Co. v. Crenshaw, 340.

4. When to be considered a trespasser, and precluded from recovering for
injury. Baltimore, etc., R. R. Co. v. Schwindling, 544.

CO-EMPLOYEE.

CONSOLIDATION.

See MASTER AND SERVANT, 37-56.

1. Where two railroad companies consolidate, and the articles of consolidation
provide that all contracts made by either company are assumed by the consoli-
dated company, and stock to be issued to persons entitled thereto in either com-
pany, a stockholder of one company which sells its road-bed to the other com-
pany has not a vender's lien on the land so conveyed. Cross v. Burlington, etc.,
R. R. Co. 263.

2. Where, by the consolidation of two railroad companies, another is created,
which, by the terms of consolidation, acquires all of the property and fran-
chises, and assumes all of the debts and liabilities of the two of which it is
formed, and which become extinct by its creation, it takes such property sub-
ject to the debts of the original companies, and burdened with all liens upon it
which were valid against those companies, and will not be permitted to aver
ignorance of an unrecorded mortgage previously executed by one of the original
companies. Miss. Valley R. R. Co. v. Chicago, etc., R. Co. 575.

3. When terms of act are sufficient to merge old companies into a new one.
Meyer v. Johnston et al. 584.

4. The legal effect of an agreement for the consolidation of several railroad
companies, and of the several statutes authorizing and ratifying such consoli
dation, is a judicial question, which the court must consider and decide; and
when the statute authorizes the companies to unite and consolidate “to such an
extent, and upon such terms, as may be agreed on by and with the company or
companies entering into agrement with them," the character of the consolidation
is determined by the stipulations of the agreement. Id.

5. The agreement in this particular case construed to constitute a new cor-
poration. Id.

6. The acts of the officers of the new corporation need not to affect this result.
Id.

7. Where several railroads have consolidated, the holder of an unliquidated
claim against one of them must liquidate his claim before he can enforce it
against the consolidated company. Whipple v. Union Pac. R. R. Co. 651.

8. Two railroad companies owning lines of railroad connected only by other