having equal right to use them; but they have no right to make use of the highway as part of their freight-yard.3

*

* 2. It has sometimes been maintained that a corporation aggregate is not liable to indictment for misfeasance, but only for non-feasance. But the case of Reg. v. G. N. of England Railway settled that question upon elaborate argument and great consideration.4

tion could not be rated to the poor, because the remedy by imprisonment upon failure of distress was impossible; but the court considered the objection of no weight, though it might be that there would be some difficulty in enforcing the remedy.

"The proper mode of proceeding against a corporation, to enforce the remedy by indictment, is by distress infinite to compel appearance, after removal by certiorari, as suggested by Mr. Baron Parke in this very case, reported in 9 Car. & Payne, 469, and as appears by Hawk. P. C., B. 2, c. 27, § 14, Vol. iv. p. 140, and the cases cited in 6 Vin. Abr. 310, &c., tit. Corporations (B. a.), Vol. iv. p. 140.

"We are therefore of opinion that upon this demurrer there must be judgment for the crown." See also Regina v. Haslemere, 3 B. & S. 313; Regina v. Heytesbury, 8 L. T. N. S. 315.

In this country the subject has been somewhat discussed and variously determined. In addition to the cases already cited in this note from the American reports, we may here refer to State v. Morris & Essex Railw. Company, 3 Zab. 365, where the general views stated in the text are maintained. This case was on an indictment against the Morris & Essex Railw. Company for a nuisance, in erecting and continuing a building, and also for leaving their cars in the public highway, and the indictment was sustained, the court saying that “a corporation cannot be liable for any crime of which a corrupt intent, or malus animus, is an essential ingredient. But the creation of a mere nuisance involves no such element."

See also Lyman v. White River Bridge Co., 2 Aiken, 255; Dater v. The Troy Turnpike & Railw. Co., 2 Hill, 629; Bloodgood v. Mohawk & Hudson Railw., 18 Wendell, 9; Chestnut Hill Turnpike Company v. Rutter, 4 S. & R. 6, 16; Whiteman v. W. & S. Railw., 2 Harr. 514.

The English courts make no question in regard to corporations aggregate being liable for torts, committed by their agents in the proper business of the company. Glover v. The N. W. Railw., 19 Law J. 172; Duncan v. Surrey Canal Company, 3 Starkie, 50. See post, § 226, pl. 8; Ellis v. London & S. W. Railw., 2 H. & N. 424. And in Commonwealth v. Old Colony, &c. Railw., 14 Gray, 93, it was held, that a railway laid out and over a public highway, so as to obstruct it, without express authority or necessary implication from the statute, was indictable as a nuisance.

3

Gahagar v. Boston & Lowell Railw., 1 Allen, 187.

* A railway will be restrained from carrying on other business beyond the

VOL. II.

24

* 516, 517

It was held that where the surveyors of highways object to a road which has been substituted for a former road, they are not authorized to obstruct it, but must enforce the usual legal remedies upon the company, by mandamus, indictment, or bill in equity, as the case may be.5

3. But where by their act a railway company are permitted to build their road, and run locomotive engines parallel and adjacent to an ancient highway, whereby the horses of persons using the highway as a carriage road are frightened, it was held, on indictment against the company for a nuisance, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legislature, and that the company were therefore not liable.6

4. By their charter a company were empowered "to divert or alter any roads or ways, in order the more conveniently to carry * the same over or under the railway." The company, in carrying a road under the railway, had erected a skew bridge, which diverted the road at an angle of 45° instead of 34°, which was the angle made at that particular point by the old line of road. At the trial of an indictment against the company's engineer for so doing, the learned judge directed the jury, that if the public sustained inconvenience by the alteration, they should find for the crown. But if they thought that no material practical inconvenience was sustained by the public in having the present bridge instead of the other, and that an experienced engineer would have so constructed it, having regard both to the interest of the

scope of its powers at the suit of the Attorney-General, on the relation of a stranger to the company. Attorney-General v. Great Northern Railw., 1 Drew & Sm. 154.

5 London & Brighton Railw. v. Blake, 2 Railw. C. 322.

• The King v. Pease, 4 Barn. & Ad. 30. It is made a question how far a nuisance may be justified upon the ground that public benefits have resulted from the works causing the alleged nuisance. The King v. Russell, 6 B. & C. 566. In this case the affirmative is held by two judges, against Lord Tenterden, Ch. J.

One would conjecture that the opinion of the chief justice is the law upon that subject. But there can be little doubt, perhaps, that when the legislature allow that to be done, which would otherwise be a nuisance, it will be valid, upon the ground that they are the proper judges, when the public good requires the works. The King v. Morris, 1 B. & Ad. 441.

public and the company, they had a right to make such diversion, and the verdict should be for defendant. The verdict being for defendant, with leave to move the full bench to enter a verdict for the crown, and the question being discussed, the court declined to interfere.7

5. Lord Denman, Ch. J., said: "It is impossible that a verdict should be entered for the crown. In the case of obstruction of light, we leave it to the jury whether any real inconvenience is sustained, though some light may demonstrably be obscured." Parke, B., said at the trial, "that in a case before him, Regina v. London and Southampton Railway, as to the power which a company had to make a road over a public highway, he laid it down, that if possible, the work must be constructed without any inconvenience to the public, but if it could not be done without some such inconvenience, it must be done with the least possible."

6. An order of justices upon a railway for repair of a highway, in regard to damage done by them, need not state the particulars of damage or repair; it is sufficient to state the length of the damaged part of the road, and order the company to make good all damage done. The order and conviction for disobedience may include several highways in the same parish.8

7. A statute requiring signals to be given by the whistle or bell of the locomotive, within certain prescribed distance of any crossing of a highway upon a level with the railway, requires the signal before the crossing, and not after.9.

Indictment to recover the fine imposed upon a railway, where the life of a person is lost by carelessness thereon, must be against the company, and not against the individual stockholders, and * when the fine goes to the surviving relatives of the deceased, the indictment should show that there are such surviving relatives.10

The Queen v. Thorpe, 3 Railw. C. 33.

8 London & North W. Railw. v Wetherall, 2 Eng. L. & Eq. 265.

9 Wilson v. Rochester & Syracuse Railw., 16 Barb. 167.

10 State v. Gilmore, 4 Foster, 461. A railway company, duly authorized to lay their track in one of the streets of a city, are not, without proof of negligence, liable for accidental injuries resulting to individuals thereby. Proof of negligence, or want of care or skill in the manner of constructing and maintaining

4. But company must not unnecessarily inter- 8. Aggrieved persons cannot take redress into fere with comfort of others in such use.

their own hands.

§ 226. 1. A railway passing through the streets of a populous village or city is not of course a nuisance. But it has been

the track, is necessary to entitle a person whose property sustains damage thereby, as by a horse catching the hoof between the rails of the track, to maintain an action therefor. Mazetti v. N. Y. & Harlem Railw., 3 E. D. Smith, 98. In a late English case at nisi prius, on an indictment against the enginedriver and fireman of a railway train for manslaughter of persons killed while travelling in a preceding train by the prisoners' train running into it, it appeared that on the day in question special instructions had been issued to them, which in some respects differed from the usual rules, and altered the signal for danger so as to make it mean "proceed with caution"; that the trains were started irregularly by the superior officers of the company at intervals of about five minutes; that the preceding train had stopped for three minutes without any notice to the prisoners except the signal for caution; and that their train was being driven at an excessive rate of speed; that then they did not slacken immediately on perceiving the signal, but almost immediately; and that as soon as they saw the preceding train they did their best to stop, but without effect. It was held that if the prisoners honestly believed they were observing the rules as given to them, and if these rules were not obviously illegal, they were not criminally responsible; that the fireman being bound to obey the directions of the enginedriver, and so far as appeared having done so, there was no case against him; that even against the engine-driver, although there was evidence of excessive speed and insufficient look-out, the evidence was so slight that it would be reserved for the court of criminal appeal whether there was any case at all. Regina v. Trainer, 4 F. & F. 105. The decision of the Court of Criminal Appeal on the question is not as yet known. And see Reg. v. Benge, 4 F. & F. 504.

1 Hentz v. Long Island Railw., 13 Barb. 646; New Albany, &c. Railw. v. O'Dailey, 12 Ind. R. 551.

held, that a city has such interest in the soil of their streets, that the legislature cannot empower a railway company to use them for a railway track without compensation, and that it pertains to the corporation of a city to determine the mode of propelling cars within its limits, whether by steam or horse power, and the rate of speed.2

2. It was held, that a railway company, having, by running their cars and engines, and ringing bells, whistles, letting off steam, &c., upon Sunday, in the immediate vicinity of a church, so annoyed and molested the congregation worshipping there, as greatly to depreciate the value of the house, and render the same unfit for religious worship, were liable to an action at the suit of the church in its corporate capacity.3

3. A railway may use the public streets for their vehicles, by license from the city authorities, when such use does not unreasonably abridge the public use of such streets for other purposes.4 * Where a railway was authorized by the municipal authorities of a city to build a tunnel through the city, an injunction was denied, at the suit of a land-owner, claiming the work to be a nuisance.5

2 Donnaher v. The State, 8 Sm. & Mar. 649; Moses v. Pittsburg, &c. Railw. 21 Ill. R. 516.

* First Baptist Church in Schenectady v. S. & T. Railw., 5 Barb. 79. But see Same v. The Utica & Sch. Railw., 6 Barb. 313, where it is held that the action will not lie in the name of the corporation, the damage being to the worshippers, and not to the corporators. But from a note to this case it appears that it was decided before that reported 5 Barb. 79, and probably not brought to the attention of the court in that case.

4 Drake v. Hudson River Railw., 7 Barb. 508.

5

Hodgkinson v. Long Island Railw., 4 Edwards, Ch. 411. And the Court of Common Pleas, New York City, refused to restrain the city councils from rescinding an ordinance prohibiting the use of steam power upon railways below Forty-second Street. Teneyck v. The Mayor, &c. and N. Y. & H. Railw., 10 Am. Railw. Times, No. 42.

Brady, J., in giving judgment, said, "I should feel at liberty to determine that the use of steam below Forty-second Street by the company was a nuisance which should be arrested at once, if there was no act of the legislature authorizing it; but with such an act before me, it is equally my duty to say, for the reasons herein before assigned, that such use of steam is not a nuisance, and cannot be restrained."

Where a person, without the authority of Parliament, but with the concur