and use without charge so much of the lands of the said party of the second part as may be necessary for that purpose."

By force of these stipulations, the Delaware, Lackawanna and Western R. R. Co. claims the right to cross the track in question at a point where it runs through a piece of land about eighteen hundred feet long, used for terminal purposes and as a drill-yard. The question is, whether such a right has been conferred upon this company by virtue of this contract, the substance of which has been above quoted.

In my opinion, such a claim is a most extravagant one. I find such a signification neither within the literal terms of the agreement, nor sustained by any reasonable supposition as to the intention of the parties. The contract, in words, gives the right "without charge, to cross either or both of said railways, and to occupy and use, without charge, so much of the lands of the said party of the second part as may be necessary for that purpose.' The whole privilege here granted is the privilege to cross the track, and to occupy and use the land necessary for that purpose; but this right of passage does not embrace anything but the railroad track, and the land appertaining to such track. It would be altogether unreasonable to deduce from such terms as these, that it was the understanding of these parties that this railroad company should have the enormous privilege of crossing with its road not only the track of the other company, but also over all lands and structures used in connection with its road. Is it rational to assert that the Morris and Essex Company, when it entered into this compact, understood that it was to become vested with the right to construct its road, without charge, through the workshops of the other contracting party, or through its depots, however costly? And yet, such must be the right if the construction contended for is to prevail-and surely a right so exorbitant and oppressive cannot be raised up out of doubtful terms. It may well be doubted whether a power so unnecessary, so destructive of all fairness and equality in the bargain, could be enforced, except by the use of terms so clear and specific as to leave no room for speculation as to what was meant on the one side and on the other. The conventional privilege to cross the track of this company does not comprehend and carry with it the right to cross, without charge, its drilling-yard. So far, therefore, as the mere crossings of this main track at the points in question are concerned, the Delaware and Lackawanna R. R. Co. is entitled to do such act without charge; but so far as it crosses lands used for other purposes than that of its main railroad track, it must make a reasonable compensation, to be ascertained in the usual manner. The result therefore is, that in this respect the decree should be reversed, and the contract in question, construed in

the sense above indicated, should be decreed to stand confirmed in all respects, and to be specifically performed.

Neither party should be allowed costs in either court.

THE MIDLAND R. R. Co., Appellants,

V.

ANNA L. HITCHсосK, Respondent.

(34 New Jersey Equity, 278. June Term, 1881.)

The complainant was the holder of a first mortgage bond of the defendant, and agreed to come in under a plan to re-organize the defendant by force of the statute; the bill alleged that the defendant, as re-organized, was about to issue to the other holders of such first mortgage bonds, its own bonds, but did not show that such new bonds were to be secured by a mortgage. Held, that such statements did not lay a ground for equitable jurisdiction.

But as the bill alleged that defendant would not disclose to complainant what the plan of re-organization was, held, further, that the right of such discovery laid a sufficient foundation to the suit.

On appeal from a decree of the chancellor, whose opinion is reported in Hitchcock v. Midland R. R. Co., 6 Stew. Eq. 86.

For the facts of this case, see the chancellor's opinion reported in 6 Stew. Eq. 86.

Mr. John W. Taylor, for appellants.

I. There is a want of equity in the bill.

"An allegation in the bill that the plaintiff is informed,' or that he is informed and believes' that a certain material fact exists, is not a sufficient allegation of the existence of such a fact." Cameron v. Abbott, 30 Ala. 416; Lucas v. Oliver, 34 Ala. 626; Walton v. Westwood, 73 Ill. 125.

"But the fact should be positively alleged by the plaintiff in his bill." Story's Eq. Pl. (9th ed.) § 241, and note (a); Egremont v. Cowell, 5 Beav. 620-623; 1 Dan. Ch. Pr. (5th Am. ed.) *360; Lord Uxbridge v. Stareland, 1 Ves. 50-56; Quinn v. Leake, 1 Tenn. Ch. 71.

II. The complainant has an adequate remedy at law.

III. The complainant should have made the Central Trust Company and the present holder of the bond parties defendant, in order to equitable relief. By the complainant's bill, the Central Trust Company appears to have the custody or possession of the bond, and it should certainly be made a party.

Mr. Geo. R. Brown, for respondent.

I. As to want of equity. Story on Agency (8th ed.), 109, § 85; Jeffery v. Bigelow, 13 Wend. 518; Story on Agency, § 127; North River Bank v. Aymar, 2 Hill, 375; Johnson v. Jones, 4 Barb. 369; Van Hook v. Somerville Manuf. Co., 1 Hal. Ch. 633; Gulick v.

Vroom, 2 Vr. 182; 5 Vr. 463; Nicholson v. Janeway, 1 C. E. Gr. 285; Law v. Stokes, 8 Vr. 249; Hunter v. Hudson River I. & M. Co., 20 Barb. 493; Medbury v. Erie R. R. Co., 26 Barb. 564; Dunning v. Roberts, 35 Barb. 436; Witbeck v. Schuyler, 44 Barb. 469, 31 How. Pr. 97; Mechanics' Bank v. N. Y. & N. H. R. R. Co., 13 N. Y. 599; North River Bank v. Aymar, 3 Hill, 362; Farmers' Bank v. Butchers and Drovers' Bank, 14 N. Y. 627; Griswold v. Haven, 25 N. Y. 565; Exchange Bank v. Monteith, 26 N. Y. 506; Bank of New York v. Bank of Ohio, 29 N. Y. 619; President, etc., v. Comen, 37 N. Y. 320; Armour v. Mich. Cent. R. R. Co., 65 N. Y. 111; Welsh v. Hartford Fire Ins. Co., 73 N. Y. 5; Walsh v. Gilbert, 2 Hun, 58.

II. Defect of parties. The bill makes all persons parties who had or appeared to have any possible interest in the matter; it includes the individual members of the re-organization cominittee, and the new company formed under the plan of re-organization. There is no allegation in the bill showing any other person having an interest; on the contrary, the complainant is the only person who has.

III. Remedy at law. The complainant clearly had no remedy at law. She had only an equitable interest in the property and franchises of the New Jersey Midland R. R. Co. or the proceeds thereof. The property sought to be reached in this suit, so far as we know, is not in existence. A bond of the new company "to be issued" in the place of those in the old. The old bond was deposited for a certain purpose-that purpose, to obtain a new bond. The opinion of the court was delivered by

BEASLEY, C. J.

I agree with the chancellor in the view which he takes of the merits of this case as the same are stated in the bill.

My only difficulty has been with respect to the equitable foundation of the proceeding. The facts are detailed in the opinion of the chancellor. The bill is clearly defective, as it leaves it greatly in doubt whether or not the bond which the complainant claims the right to have issued to her by the company is a bond that is to be secured by a mortgage. If this, in point of fact, be the case, then it is plain that on this ground the matter in dispute is one for equitable cognizance. But if, on the other hand, the obligation on the part of the railroad company is to deliver a naked bond, unsecured in any way, to the complainant, in consideration of the bond surrendered to it by her, then it seems plain to me that a suit at law would be the only remedy. In such latter instance, an actual breach of the implied contract would afford the complainant plenary redress. But although this bill is thus deficient in this particular, nevertheless there is an indication in it that the bond in question is a mortgage bond, for in the charging part it charges that the complainant is entitled to "a mortgage bond of the said Midland com

pany," in lieu of the one surrendered by her. Yet, such a charge standing isolated in the bill, without being supported or justified by any precedent statement, would not sufficiently exhibit the existence of a jurisdictional fact. I am not able to see how the cognizance of equity over the case can be sustained on this ground.

However, I have come to the conclusion that it was proper to sustain this bill against this demurrer, for the reason that the complainant has a right to a discovery of the plan on which the new company was re-organized. In her bill, the complainant alleges that the committee or trustees entrusted with the carrying out of the plan or agreement of re-organization, approved of an assump tion, compromise or settlement of the debts, claims or liabilities of the said New Jersey Midland R. R. Co., but upon what particular or general terms they refuse to inform this complainant. It is clear, I think, that the complainant is entitled to this information, and it is also clear that this court cannot say whether her rights are legal or equitable until such discovery shall have been obtained. It is highly probable that the holders of the first mortgage bonds of the old company were to have similar bonds from the new company, and if such was the plan on which the new company was to be constituted, then, as has been said, the complainant has presented her case to the appropriate forum. This right to a discovery affords a basis on which this proceeding may be rested. I shall, therefore, vote to affirm the decree.

Decree unanimously affirmed.

CUMMINGS

v.

PITTSBURGH, CINCINNATI AND ST. LOUIS RY. Co.

(92 Pennsylvania Reports, 82. November 17, 1879.)

cars

A lad who was employed by a coal dealer was engaged in unloading standing upon a siding constructed by the dealer upon his own land. By reason of the neglect of the railroad employees to change the switch leading to the siding from the main track, several cars were propelled from the main track upon the siding and colliding with the cars on which the lad was em ployed, he received injuries from which he lost his leg. In a suit against the railroad company for damages. Held, that the lad was employed about the company's road within the very terms of the Act of April 4th, 1868,

and could not recover.

on or

Mulherrin v. Delaware, Lackawanna and Western Railroad Co., 31 P. F.

Smith, followed.

November 7th, 1879. Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term, 1879, No. 328.

Case by Daniel Cummings, by his father, John Cummings, against the Pittsburgh, Cincinnati and St. Louis Ry. Co., to recover damages for an injury to said Daniel Cummings, whereby he lost his leg.

The lad, who was about fourteen years of age, was caught and crushed between two coal cars in the coal yard of Morris McCue. At this same point there are several coal yards which are supplied with coal brought in cars on the defendant railway.

The ground on that side of the railroad at this point is about eight to ten feet lower than the railroad. The coal cars are run into the coal yards upon switches and short tracks running out into the coal yards upon frame trestle-work, and the coal is unloaded by drops, in the bottom of the cars, which are unfastened and the coal dropped down through the trestle-work into the coal yard. There are between the points named two main tracks of the railroad; then alongside and east of these main tracks there is a side track, which side track is located, partly on the ground of the railroad and partly on the ground of the owners of the coal yard. This side track was put in by the railroad, but a part of the cost of the same was assessed upon the owner of each coal yard connected with it.

From this side track there are switches and tracks running into each coal yard. These short tracks are upon the private property of the owners of the coal yards, and were constructed by themselves upon the trestle-work, as above stated. The owner of one of these coal yards is Morris McCue. He owns mines on the line of the railroad. His coal is loaded into cars of his own at the mines and then brought in by the defendant railroad company, on its road, by its locomotives and employees, to his coal yard in the city. When the train with the coal cars arrives it is changed, by a switch, from the main track to the side track, above mentioned; then it passes along the siding until near McCue's siding, when that switch is also turned and the cars are run from the coal siding on McCue's private track. The locomotive does not follow on this private track into the coal yard, but at this point it gives the cars a shove or a shot and drives them back on the coal switch by means of the force thus applied by means of the locomotive.

Located adjoining and east of McCue's coal yard is the coal yard of the National Coal Company.

On the 4th day of June, 1878, a locomotive in charge of the employees of defendant company, with a train of about twelve coal cars, came into the city over the railroad. Of the cars in this train six belonged to McCue and the balance to the National Coal Co., and were to be delivered upon the sidings or tracks in these two coal yards.

The twelve coal cars were in front and pushed by the locomotive