FACT.

*

*

3. Defendant's vessel being ashore at
the Delaware breakwater, he tele-
graphed to M. & D. in New York
as follows: "Send me a small tow-
boat.
* Make the best
bargain you can." Held (ALLEN,
J.; GROVER and FOLGER, JJ., con-
curring), that the authority con-
templated the hiring of a boat
already manned and equipped, and
in the absence of proof of a neces-
sity for such action or of proof of
the existence of a custom or usage
to that effect, the agents were not
authorized to assume on behalf of
defendant the perils of the service
or the risks of the voyage, or to
insure against the negligence of any
one employed in the navigation or
handling of the boat.
Id.

In an action against a common
caurier, the question as to what is
reasonable time for a consignee of
goods to remove them after notice
of their arrival, where there is no
dispute as to the facts, is a ques-
tion of law for the court. A sub-
mission of the question to the jury
is error, and, in case the jury finds
different from what the law de-
termines, it is ground for reversal.
Hedges v. H. R. R. R.
223

See COMMON CARRIERS, 12.
EASEMENTS, 3.

MASTER AND SERVANT, 4.
NAVIGATION, 3.
NEGLIGENCE, 3, 11.
PLEADINGS, 13.

RAILROAD CORPORATIONS.

1. Where commissioners are ap-
pointed under the provisions of sec-
tion 22 of the general railroad law
(chap. 140, Laws of 1850), their
power over the proposed route is
not restricted to that part of it
which lies within the bounds of the
land of the party procuring their
appointment, but they may make
any alteration of the proposed
route within the county which
may be necessary to obviate such
objections of the party aggrieved
as they may deem well founded;
and in exercising their power to
alter the proposed route, it is the
duty of the commissioners to com-
plete the alteration so as to pre-
serve the continuity of the line;
they have no power to so change a
portion of the proposed route as
to leave it disconnected at either
end with the other portion, and
thus to abridge or interrupt the
road. People ex rel. v. Tubbs. 356
2. The statute contemplates but one
board of commissioners in a coun-
ty, and all alterations to be made
in the proposed route in such
county should be made by that
board; it should, therefore, com-
plete its work by either affirming
the route proposed by the com-
pany, or making all necessary
alterations; and when this is done

F

the route through the county is
established.
Id.

3. Where a railroad company leases
its road and all its lands, upon or
across which the road or any part
thereof, or its machine shops, ware-
houses, freight or passenger de-
pots or buildings are constructed,
such lease includes all lands ac-
quired for use in operating the
road, and without which the use
of the road, or any part thereof,
will be less convenient and valua-
ble.
In re N. Y. C. R. R. 414
4. Accordingly, -Held, that where
a railroad company had, prior to
the execution of such a lease, ac-
quired title to a piece of land for
the purpose of use as a street in
connection with its road, which
use would be highly beneficial to
and convenient for its business,
that the land was included in the
lease, although such use had not
been actually obtained at the time
of the execution of the lease; and
that where the land was con-
demned and taken under the
statute by another railroad, the
lessee was entitled to the use of
the money awarded as damages
for such taking during the con-
tinuance of the lease.

Id.

5. By the provisions of section 49 of
the general railroad act of 1850
(chap. 140, Laws of 1850), all the
powers and privileges contained in
the act, without distinction or dis-
crimination, were conferred upon
corporations then existing whether
created by special charter or formed
under the general act of 1848; but
no duties, liabilities or burdens
were imposed upon them, except
such as were contained in certain
sections enumerated, and which
were "not inconsistent with the
provisions of their charters." This
latter limitation is not a part of the
clause granting the powers and
privileges, and in no sense affects
it. The legislature intended by
this section that corporations then
existing should not only possess
and enjoy like powers and privi-
leges, but those of the same charac-
ter, measure and extent as were to
be conferred upon corporations
organized thereunder. Where,

therefore, a corporation then exist-
ing was limited by its charter to
a rate of fare for the carriage of
passengers less than that prescribed
by the act, i. e., three cents a
mile (sub. 9, § 28), by the act it was
authorized to increase its rates to a
sum not exceeding that thus pre-
scribed. (CHURCH, Ch. J., dissent-
ing.) Johnson v. H. R. R. R. 455

6. The responsibility of a railroad
company as a common carrier, for
baggage, continues until the owner
has a reasonable time and oppor-
tunity to remove it. In order to
relieve itself from this liability it
is its duty to have a baggage-master
at hand to deliver baggage for a
reasonable time after the arrival of
a train, and at reasonable hours
thereafter. Dininny v. N. Y. and
N. H. R. R.
546

7.

The wife of plaintiff was a passen
ger upon defendant's road from
New York to Mt. Vernon; imme-
diately upon the arrival of the train
the baggage-master placed her
trunk in the depot and went away.
She waited fifteen minutes to get
the trunk, but could find no one
to deliver it. About three hours
after, plaintiff's son went to the
depot for it, but the baggage-master
was still absent. The son went in
pursuit of him, and returning with
him, delivered his check and the
trunk was drawn out to the door,
but, meanwhile, the conveyance
employed to remove the trunk had
gone, and no other could be ob-
tained, and it was thereupon left
in charge of the baggage-master
for the night. During the night it
was broken open and rifled of its
contents. In an action to recover
for the loss,-Held (ALLEN and
FOLGER, JJ., dissenting), that de-
fendant's liability as common car-
rier had not terminated and that
it was liable.
Id.

9. A reservation of power on the| part of the municipal corporation to revoke the license in case of failure to comply with the terms, does not affect the liability of the railroad corporation while operating its road under the license. Id.

10. When passengers are getting on or off a train, suddenly to put it in motion, so as to endanger their safety, without giving any signal, is an act of negligence. Keating v. N. Y. C. R. R. 673

11. Where a railroad company has provided a depot and conveniences for getting on and off its trains, in the absence of other proof, passengers have no right, to get on at other places, and to attempt to do so would be such negligence as would preclude them from recovery for an injury received thereby. But when the company has been in the habit of receiving and discharging passengers at other places, it is not negligence for passengers to get on or off at those places while the train is standing still, and there is no apparent danger in so doing.

See COMMON CARRIERS.

CORPORATIONS, 5.

MASTER AND SERVANT, 4.
NEGLIGENCE, 2, 3, 4, 11, 12.

Id.

RECOVERY OF POSSESSION OF PERSONAL PROPERTY.

See CLAIM AND DELIVERY.

RECOVERY OF POSSESSION OF REAL PROPERTY.

See EJECTMENTS.

REFEREE.

See APPEAL, 2.

COMMISSIONERS OF APPEALS, 1.

RELEASE.

1. An assignment of a judgment against a corporation organized

under this act carries with it the claim or debt upon which it was founded, and all rights and remedies for the recovery and collection of such claim or debt, including the remedy given by the act against the trustees. A release, therefore, of one of the trustees by the assignor, after the assignment and after the releasee has notice of the transfer, will not operate to defeat the claim of the assignee. Bolen v. Crosby. 183

2. Where a release by one of several joint and several debtors has been executed, and those not parties to it claim the benefit thereof, the burden is upon them of showing that the instrument was such as barred an action against all. It will not be inferred for the purpose of reversing a judgment that the release is absolute and not a special and limited one, such as is authorized (chap. 257, Laws of 1835) to be given to one joint debtor without affecting the liability of the others. (RAPALLO, J., dissenting.) Id.

See DOWER, 2.

REMOVAL OF CAUSES.

1. The right to remove an action from a State court into the Circuit Court of the United States under the provisions of the act of congress of 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases" (12 U. S. Stat. at Large, ch. 81, p. 756), as amended by the act of 1866 (14 U. S. Stat. at Large, ch. 80, p. 46), does not depend upon any act or assent of the State court. If the case is within the provisions of that act and defendant has regularly taken the steps required by it for the purpose of removal, all proceedings in the State court are stayed absolutely; it has no further jurisdiction of the action; and any subsequent steps therein would be coram non judice and void. It cannot be compelled, therefore, to grant any order staying proceedings; and such an order would add nothing to the force and effect of the act and the

proceedings for removal. The question of jurisdiction must be decided by the Circuit Court. If the plaintiff persists in proceeding in the State court, the defendant should appeal to the Federal Court for the proper mandate staying proceedings, and to compel a transcript of the record to be certified to that court; and if plaintiff claims that the cause has not, for any reason, been removed, he may apply to that court to remand the cause. (ALLEN, J.; CHURCH, Ch. J., and RAPALLO, J., concurring; GROVER and PECKHAM, JJ., dissenting.) Bell v. Dix. 232

2. Plaintiff was imprisoned in Fort Lafayette in 1864 by order of defendant. Defendant justified as major-general of the army of the United States and as military commander of the department of the east, and took the steps required by the act of congress of 1863 (above specified) to remove the cause into the Circuit Court of the United States. Held (FOLGER, J., CHURCH, Ch. J., concurring; GROVER and PECKHAM, JJ., dissenting), that the case was not within the provision of that act.

Id.

§ 55), it is not necessary that the one from whose person or in whose presence the property is taken should be the actual owner thereof. As against the robber, he is the owner of all goods in his possession and custody whereof he is robbed. Brooks v. The People. 436

SALES.

See VENDOR AND VENDEE.

SERVICE AND PROOF OF.

Personal service of a summons and complaint can be made out of the State only when publication is ordered. (Code, § 135.) When so made it is equivalent to publication and deposit in the postoffice. Such service is not complete until the time prescribed for the publication has expired (§ 135); and defendant has twenty days thereafter to answer. A judgment, therefore, entered for want of an answer prior to the expiration of the latter period, is irregular. Brooklyn Trust Co. v. Bulmer. 84

the debt, and the other half to be
paid to the consignors; defendants
expressly agreeing that they would
retain but one-half, nor seek to set
off their debt against the other
half. Under the agreement G. and
Y. purchased and shipped to de-
fendants a boat load of wheat
which was sold at a profit. In an
action to recover the one-half
thereof, defendants pleaded their
debt as a set-off. Held, that the
agreement was for a sufficient con-
sideration, and that defendants
were thereby estopped. (The
cases bearing upon this question
collated and discussed.)

SHERIFF.

ld.

Where a sheriff receives for collec-
tion an execution against one of
the members of a copartnership,
and by virtue thereof levies upon
the interest of the judgment debt-
or in the goods of the firm, and
where, within sixty days after re-
ceipt, and before a sale, he receives
an execution against all the mem-
bers of the firm for a copartner-
ship debt, the latter is the prior
lien, and if upon sale the stock
proves insufficient to satisfy it, he
is justified in returning the former
execution nulla bona. Eighth Nat.
Bank v. Fitch.

SPECIFIC PERFORMANCE.

539

1. Where, in a contract for the con-
veyance of lands, the payment of
the purchase price, or a portion
thereof, is to accompany or pre-
cede the delivery of the deed, but
no time is fixed for such payment
and delivery, the payment is to
be made in a reasonable time, or
upon request; and a delay of three
years and upward after such re-
quest, without any excuse there-
for, is such laches as will preclude
a judgment for specific perfor-
mance. Finch v. Parker.

1

2. Where, by laches, the remedy at
law is barred, and the rights to a
specific performance forfeited,

3.

4.

The specific performance of a
contract is a matter not of absolute
right but of sound discretion in
the court, especially where the
interests of infants are concerned.
Courts of equity will not interfere
to decree specific performance
except in cases where it would be
strictly equitable, and in granting
or refusing such relief will look
not only at the nature of the
transaction but to the character of
the parties, and if one is a guardian
or trustee, the interest of the ward
or cestui que trust will be con-
sidered. The contracts of guardi-
ans touching the property of their
wards will not be enforced unless
they are strictly equitable, and for
the interest of the infants.
man v. Wright.

Sher-

227

In an action for specific perform-
ance against a guardian it is in-
cumbent upon the plaintiff to show
that the contract sought to be en-
forced was such an one as the
guardian acting for the best inte-
rests of the infant might properly
have made, and such as the court
would have approved and autho-
rized, had authority to make it
been asked.
Id.

5. A court of equity will not, any
more than a court of law, excuse
laches and gross negligence in the
assertion of a right to a specific
performance of a contract; but
where time has not been made of
the essence of the contract by its
terms, although there may not be
performance upon the day, if the
delay is excused and the situation
of the parties and property un-
changed, and the party reasonably
vigilant, the court will relieve from
the consequences of the delay.
326
Hubbell v. Von Schoening.