Where a corporation, organized under the General Railroad Act (ch. 140, Laws of 1850), leases a portion of the route covered by its franchise to another corporation, with the right to lay tracks thereon, not for the purpose of constructing the road of the lessor, but to enable the lessee to complete its own road, the tracks, when built, not to belong to the lessor or to be operated by it, but to be constructed at the expense of and to be operated and maintained for the use of the lessee exclusively, this is not such a user by the lessor of its franchise as is contemplated by its charter; and in determining the question whether the corporate existence and powers of the lessor have ceased because of failure to begin the construction of its road and to expend thereon ten per cent of the amount of its capital within five years after filing its articles of association, as prescribed by the act of 1867 (ch. 775, Laws of 1867), the construction and expenditure by the lessee upon the portion of the route so demised cannot be taken into consideration.

Such a corporation cannot retain its corporate existence, without the expenditure so required, by granting to another company the privilege of laying tracks over such parts of its route as the other company may desire to use.

A reservation in such a lease of a right in the lessor to run cars over a portion of the tracks laid by the lessee, on payment of a sum specified for such use, does not avail to give the lessor the benefit of the expenditures by the lessee.

As to whether such a lease is valid, quære. In the matter of the Brooklyn, etc., R. R. Co., 81 N. Y. 61.

Act 89 of 1875, in making valid the conveyances of corporations made in good faith though not according to law, does not make them presumptive evidence of the rightful character of the sale. A deed in proper form and a sale in good faith for value must be clearly proven.

Execution purchasers of real estate can sue as if they were absolute owners for any injury done the property (Comp. L. S 4657-8) as for timber wrongfully severed from the freehold.

Where the same person owns a parcel of land, in part by original title and in part by purchase under an execution, and sues for the removal of timber, he is not bound to show from which portion the timber was taken. Marquette, etc., R. R. Co. v. Atkinson, 44 Mich. 165.

Where a corporation is organized under the laws of one State it becomes a citizen of that State, although the same persons, by the same corporate name, have been incorporated with the same pow ers and the same objects by another State. Such an act of incorporation must be construed as only a license enlarging the field of its operations, and it does not constitute it a corporation of that State, but shorn of none of its qualities as a corporation of the

State under which it is organized. It is privileged to elect to sue in the United States courts.

Article 1, § 10, of the constitution of Texas, which provides that every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad," is not self-acting, but requires appropriate supplementing legislation prescribing the regulation of its exercise.

Railroad crossings, by intersecting lines, are such a source of danger from liability to collision in the transit of trains as could not be adequately compensated in damages, or by any moneyed consideration, and, except under the pressure of some paramount necessity, their construction should be enjoined.

When the right of way over private property, or the right of crossing a public highway has been acquired, certain common rights attach to the new acquisition, which are to be considered, protected, and enforced by the proper tribunals. Missouri, etc., R. R. Co. v. Texas, etc., R. R. Co., 10 Fed. Rep. 497.

Where the language of the statute is that no lease of one railroad by another shall be perfected "until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place and in such manner as they shall designate, and the holders of at least two thirds of the stock of such company represented at such meeting, either in person or by proxy, voting thereat shall have assented thereto," the stockholders' meeting, and the vote in such meeting upon the question of assenting to the proposed lease, are matters of essence, of substance, and not of mere form; and their assent individually obtained outside of such meeting, and in the absence of deliberation, would bind no one. Peters v. Lincoln and N. W. R. Co., U. S. C. C., D. Nebr., 12 Fed. Rep. 513.

A demurrer admits all facts well pleaded, but not conclusions drawn therefrom by the pleader.

Where a railroad company made a contract concerning all roads which it then did or might thereafter control, by ownership, lease, or otherwise, and thereafter acquired more than a majority of the stock of B., another railway company, and by voting such stock elected B.'s board of directors; and where certain persons were members of the board of directors of both A. and B., and the same persons were respectively presidents and vice-presidents of both companies: held, that A. had not acquired "control" of B. within the meaning of the terms of the contract, and that the word "control," as used in said contract, meant an immediate or executive control exercised by the officers and agents chosen by and acting under the direction of A.'s board of directors. Pullman Palace Car Co. v. Missouri Pacific Ry. Co. and another. U. S. C. C., E. D. Missouri, 11 Fed. Rep. 634.

In an action brought by the assignee of a subscription for railroad stock, to recover the amount of the subscription, the declaration alleged the consolidation of the company in which the stock was taken, and the plaintiff sought to introduce in evidence the articles of the original and the consolidated companies. Held, that the objection that they were "incompetent, irrelevant and immaterial" was not sufficiently specific.

Evidence of a stockholders' meeting to ratify a consolidation agreement is properly objected to if no proof has been offered of legal notice of such meeting of stockholders.

A plaintiff who declares upon an assignment of his claim to him by a consolidated railroad company, must fail if he does not show that the statutory conditions to consolidation were substantially observed.

One who declares upon a claim held under an assignment from a consolidated company cannot recover on proof merely that it was assigned by one of the constituent companies to his assignor.

Whether subscriptions to the stock of one railroad company are assignable by another company into which it has been merged by consolidation-Q. Rodgers v. Wells, 44 Mich. 411.

A town is not liable for an injury caused by a defect in a bridge or its approaches, which a railroad corporation is bound by law to keep in repair, although the bridge is part of a highway, and the town has made a contract with the railroad corporation to keep the same in repair, has made repairs upon it within six years prior to the injury, and, with knowledge of the defect in question, has suffered it to remain without warning to the public. Rouse v. City of Somerville, 130 Mass. 361.

The provision of the general railroad act (§ 28, chap. 140, N. Y. Laws of 1850), giving to every railroad company authority to construct its road across any street or highway which the route of its road shall intersect, was not repealed by implication by the acts of 1869 and 1874, providing for the laying out of the highways or avenues, known as "Ocean Parkway" (chap. 861, Laws of 1869; chap. 583, Laws of 1874), so far as it pertains to those highways; they are highways within the meaning of the railroad act, and railroads have the same authority to cross them as they have to cross other highways.

The act of 1871 (chap. 609, Laws of 1871), declaring that "no railway upon which locomotive steam shall be used, or is or shall be authorized or intended to be used as a motive power," shall be constructed across certain avenues therein mentioned, without the approval of the State engineer, has no application to that portion of "Ocean Parkway" constructed under said act of 1874.

The said act of 1871 has reference to railroads moving cars in the ordinary way by means of locomotive engines, it does not in

clude railways moving their cars by a propelling rope or cable attached to stationary power.

Accordingly, held, that a railroad corporation organized under the act of 1866 (chap. 697, Laws of 1866), for the purpose of constructing an elevated railroad to be operated "by means of a propelling rope or cable attached to stationary power," had authority under the said provision of the general railroad act, which by said act of 1866 is made applicable to corporations organized under it, to cross that portion of "Ocean Parkway" constructed under the act of 1874, which was intersected by the route of its road. Stranahan v. Sea View R. R. Co., 84 N. Y. 308.

By virtue of section 4, chap. 57, Sp. Laws, Minnesota, 1870, and section 1, chap. 71, Sp. Laws 1871, the Minneapolis and St. Louis Ry. Co. has authority to make a valid lease to another railway company of this State of rights which it has acquired, since the passage of said chapter 71, by condemnation of land. A lease of parcels of land abutting on public streets contained no restrictions as to the use of the leased premises by the lessee, or as to their authority with reference thereto, except a covenant not to sublet the premises or any part thereof without the written consent of the lessors, a right to re-enter being reserved in case of breach. Held, that the fact that, without objection from the lessees, and by their tacit permission, a railroad company is permitted to lay tracks and run trains over the adjacent half of the streets upon which the leased premises abut, and that it is expressly permitted by the lessees to lay track and run trains across the leased premises (outside of the streets,) partly for the accommodation of the lessees, is, without something more, evidence of a license only, and not of a subletting. It does not entitle the lessors to re-enter under their lease. It does not show that the railroad is in possession, nor that the lessors are entitled to possession, and therefore the lessor cannot maintain ejectment against the railroad company to recover possession of the premises thus used by it. State v. St. Paul, etc., R. R. Co., 11 N. W. R. 80.

There is nothing in the act in relation to mechanic's liens on railroads (R. S., § 3200,) restricting the right to a lien to those who perform work or farnish materials within the limits of this State. If part of a railroad lies within and part without this State, a lien may be enforced against that part within the State, though the work was done or naterials furnished on the part without.

Failure of the Cerk of the Circuit Court to forward to the Secretary of State a copy of an account filed for a mechanic's lien against a railroad as required by section 3203, Revised Statutes, will not defeat the ien.

Objection to the sufficiency of an affidavit for appeal must be taken by motion to dismiss before the case is submitted on its

merits. After submission this court will not go behind the order granting the appeal to determine whether the affidavit is sufficient or whether any affidavit whatever was filed. St. Louis B. and C. Co. v. Memphis, etc., R. R. Co., 72 Mo. 664.

A stockholder can only be made liable to an execution creditor of the corporation on garnishment when he is in default to the corporation for instalments due on his stock, or for calls made by the directors. If his liability is not due according to the terms of his subscription, and no call has been made by the directors, the creditor's remedy is by special execution awarded under section 13, page 291, Wagner's Statutes. (Following Hannah v. Moberly Bank, 67 Mo. 678.) Simpson v. Reynolds, 71 Mo. 594.

In an action against a stockholder of a railroad corporation by a creditor thereof, under the provision of the general railroad act (§ 10, chap. 140, Laws of 1850, as amended by chap. 282, Laws of 1854), making each stockholder liable for the debts of the corporation to the amount unpaid on his stock, the record of a judgment against the corporation is competent evidence of plaintiff's status as a creditor and of the amount due him.

The effect of said provision is not to impose any penalty or original liability upon the stockholder, but simply to confer upon the creditor of the corporation a right to pursue, for the satisfaction of his claim, the indebtedness of the stockholder to the corporation for his unpaid subscription. The creditor clams through the corporation, and if he shows that he is a credior, by evidence binding and conclusive against it, the evidence is competent against the stockholder.

Miller v. White (50 N. Y. 137), McMahon v. Nacy (51 id. 155), distinguished.

In such an action, on trial before a referee, after the case was closed it was reopened by order of the court for the sole purpose of allowing defendant to put in evidence certain exhibits and records; on the re-hearing, defendant offered oral evidence to sustain a counter-claim. Held, that it was properly excluded. Stephens v. Fox, 83 N. Y. 313.

When a partnership is created for a joint undertaking, each partner to collect certain proceeds, and the entire receipts to be shared upon a basis fixed in the agreement, any claim preferred by one against the other for a share of proceeds unfairly withheld, is the proper subject for the taking of an accourt to ascertain the various items of receipt and disbursement by either partner, to compare them together, and strike the proper balance. But if the parties themselves have cast up the items, and agreed upon the state of the account and the resulting balance either way, there is no further account to be taken, unless upon a suggestion of fraud,