Page images
PDF
EPUB

from a failure to perform the contract. In Herrick v. Carter, 56 Barb. 41, the plaintiff sold and delivered to the defendant dry goods, which the latter agreed to pay for in nails at a certain price, to be delivered on or before a future day specified. The transaction was held not to be a purchase of nails, nor eveu an exchange of dry goods for nails; but that the seller of the dry goods might recover for their purchase money with interest from the day it became payable. When any thing remains to be done by either or both parties to a contract of sale, before delivery, either to determine the identity of the thing sold, the quantity or the price, the contract, until such things are done, is executory merely, and the title does not vest in the purchaser. Wallingford v. Burr, 18 N. W. Rep. 67; Hale v. Huntley, 21 Vt. 147; Hudson v. Wier, 29 Ala. 294: Stone v. Peacock, 35 Me. 385; Cunningham v. Ashbrook, 20 Mo. 553. As a general rule the title to goods does not pass so long as any thing remains to be done to identify the goods, or to determine the quantity or quality, if the price depends upon such determination. McClung v. Kelley, 21 Iowa, 508; Lingham v. Eggleston, 27 Mich. 324; Banchor v. Warren, 33 N. H. 183; Stephens v. Santee, 49 N. Y. 35. This action for conversion is in effect the common-law action of trover, and in order to maintain that action the plaintiff must have had the actual custody of or some species of property, either general or special, in the property which is the subject of the action (Bertholf v. Quinlan, 68 Ill. 297; Barton v. Dunning, 6 Blackf. 209; Kennington v. Williams, 30 Ala. 361; Hickok v. Buck, 22 Vt. 149), and he must also have an immediate right to the possession of the property. Clark v. Draper, 19 N. H. 419. It is claimed by the plaintiff in error that the defendant is estopped to set up his right to the hay under his conditional contract of sale to Howland for the reason that he did not make it known to the plaintiff before the purchase by the plaintiff. It would not be absolutely essential that the information should come directly from the defendant, if the plaintiff had knowledge of his rights before the purchase. As to whether he had that knowledge was a question for the jury to determine, there being some evidence from which it might be inferred; but in this case that question becomes unimportant, as it is well settled that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of the defendant. Davidson v. Waldron, 31 II 120; Mulligan v. Bailey, 28 Ga. 507; Zunkle v. Cunningham, 10 Neb. 163. Holmes v. Bailey. Opinion by Reese, J. [Decided Aug. 20, 1884.]

CORRESPONDENCE.

CODIFICATION.

Editor of the Albany Law Journal:

whole of Division III on law-making, particularly at Subdivision II, on Judge-Legislation," and the objections to it, the three objections to codification, and the answers to such objections as therein stated, may be useful to lawyers who have not the voluminous work. You will find it at vol. 13, p. 267, of the quarto; 21 vol. edition, Little, Brown & Co.. Boston, 1857.

Prof. E. Robertson, the author of the law article in the 9th edition, 1882, treats mostly of the analytical ideas of the late John Austin and the writings and criticisms of Sir Henry Maine. It does not contain the matter above mentioned. January 24, 1885.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, Jan. 27, 1885:

[ocr errors]

Judgment affirmed with costs-Solomon D. McMillan, appellant, v. John B. Arthur, respondent.—Motion for reargument denied with costs-John Hayes. respondent, v. Forty-second Street and Grand Street Ferry R. Co., appellant.-Motion for reargument granted, as per order-Sherburne Shaw, respondent, v. New York, Lake Erie and Western R. Co.- -Motion to put cause on calendar granted without costs-Peter R. Kelly, respondent, v. Horace F. Burroughs, appellant; John W. Blauvelt, executor, etc., respondent, v. William B. Slocum, appellant.-Motion to dismiss appeal granted without costs-Sarah E. Nichols, administratrix, respondent, v. Charles F. MacLean, ap pellant.-Motion to advance cause denied without costs Oscar C. Ferris, respondent, v. William R. Spooner, assignor, etc., appellant; German American Bank of Buffalo v. Georgeanna J. Gunther.-Motion to file certificate nunc pro tunc denied without costsIn re Hulbert D. Stevens, law student.-Motion as above granted without costs--In re Alfred T. Britton, law student. - Motion to discontinue and strike cause from calendar. Defendant's motion denied without costs. On plaintiff's motion ordered that the cause be stricken from the calendar and appeal discontinued without costs-Richard H. Disosway, appellant, v. Jedediah K. Hayward, respondent.-Motion to put cause on calendar denied without costs-Daniel R. Ly ddy, appellant, v. Long Island City, respondent. Order affirmed with costs-James Carney, respondent, v. John B. Thompson, appellant; Emily A. Kimball and others, respondents, v. Leonard Mapes and others, appellants; Amie Laruer, respondent, v. Henry E. Farnsworth, appellant; John Statts, appellant, v Thomas Garrett, respondent. Appeal dismissed without costs-Josiah H. Burton, appellant, v. Antoinette W. Sherman, impleaded, etc. respondent.

NOTES.

HAT is an this about "the police and the spar

It is to the interest of the whole community, espec-rers?" The police ought to be ashamed of med

ially of every lawyer and law student not having easy

access to the large law libraries at the great centers, to advocate the adoption of the Civil Code as proposed by David Dudley Field.

One of the best things I have read within a twelvemonth is "An Answer to Mr. James C. Carter's pamphlet on the proposed Codification of our Common Law," by Mr. Field, published in your journal, vol. 29, p. 127. It is multum in parvo, terse, and to the issue.

The profession and the whole country owe Mr. Field a debt of gratitude for his labor, for his energy and his persistence in and his unyielding devotion to

law reform and codification.

But I took up my pen to call your attention to the article on "Law" as it stands in the Encyclopædia Britannica," 8th edtion, written by John Ferguson McLennan, advocate. A republication of part or

dling with such innocent and interesting little birds.

-Leonard A. Jones, the learned commentator on mortgages, has become one of the editors of the American Law Review. The current number of the Review contains the following leading articles: The French Law of Marriage, by Edmund Kelly; The New British-Americau Extradition Treaty, by Edwin F. Conely; The Rights and Duties of Corporations in Dealing with Stock held in a Fiduciary Capacity, by Francis B. Patten; Popular Errors in the Law of Conveyancing, by C. G. Tiedeman; Liability of Municipal Corporations for Negligence, by H. E. Young.—We greatly regret to learn that Mr. Skinker, the reporter of the Missouri Supreme Court, has resigned his office. His labors commenced with volume 65, and have been marked by fidelity and intelligence.

The Albany Law Journal.

ALBANY, FEBRUARY 7, 1885.

CURRENT TOPICS.

THE
HE failure in New York city of the private
banking house of John J. Cisco & Son shows the
necessity of some reform in the laws relative to
banking, or else in the methods of private bankers.
This house seems to have invested all its depositors'
money in several pet schemes which it thought well
of, but which unfortunately went to the bad. The
result is that the depositors' money is jeopardized,
and probably lost in whole or in part. Now bank
ers have no moral right to use deposits for their
private enterprises. What would be thought of
Coutts in England if they were to put all their cus-
tomers' money in some crazy railway enterprise,
which were to break down? This habit of the New
York private bankers is open to criticism at the
hands of the authorities. Within a few days a Cali-
fornian has brought suit against another firm of
bankers to compel them to take back certain securi-
ties, which it is claimed they knew too much about
before the sale. This charge is a corollary of the
one we think Cisco's failure entitles us to make on
the latter's methods.

In a lucid and attractive treatise of fifty pages, Mr. F. W. Holls prints a paper, entitled "Franz Lieber," read by him in 1882 before the German Social Science Association. The text is a faithful reproduction of the excellent engraving which is prefixed. The opening sentences certainly strike too high a key. But the eulogy is moderated by facts honestly stated, and indulgence may well be claimed under the circumstances for a disposition to give to Dr. Lieber, the compiler and translator, credit which was in fact due to taste and skill rather than profound or original thought. Order No. 100 was an admirable piece of work; but Seward, Stanton and Lincoln knew little and cared less for Grotius and Puffendorf, except as they could avert European complications by the pen (not the advice) of the German-American jurist. When a translation of the Conversations-Lexicon could be termed an Encyclopedia Americana, it is not surprising to learn that it was seriously proposed to control Bismark at Frankfort by a German compendium from Cushing's Manual. Political Ethics and the noble thoughts "On Civil Liberty and Self Government" however have exercised a wide and enduring influence in literary as well as political circles. But when the author of this vivid and interesting sketch concedes that Lieber's admirers in Germany were few in number, and that no German house could be found to undertake the risk of publishing a second book, it is evident that while Laboulaye termed him "une des figures les plus originales parmi les jurisconsultes de notre temps," his personality consisted rather in himself than in his VOL. 31-No. 6.

H. POTTS,

work. It was felt on the continent that he not only added no element to the metal which he obtained from the inexhaustible ruins of ancient jurisprudence, but (except in the treatise On Civil Liberty) had not given to the mould a distinctive form.

An injunction has at length issued to restrain the publication of Lord Lytton's ridiculous love-letters, but inasmuch as the whole world has for several months been laughing at them and has now become tired of them, we see no use in the injunction except the matter of principle. It is very annoying to the surviving relatives of great men to have their letters published exhibiting their weaknesses and

prejudices and vices. Great men can prevent this

annoyance by not putting themselves on paper. We are not certain that it does any harm for the world to learn the real character of such men as Carlyle, Hawthorne and Lytton. Hawthorne stands the test of his own letters very well. Our respect for Carlyle is diminished, and for Lytton it is utterly destroyed. But after all we suppose that it is well enough to prohibit the unauthorized publication of such letters. It is only the putting the prohibition on the ground of sentiment that we object to. There is truth in letters as in wine, and it will never hurt the world to learn the real characteristics of those who have posed through life as its gods.

We hasten to put ourselves on record as abhorring the late dynamite outrages in London. Assassination is never justifiable in national differences. The assassination of innocent men, women, and children is peculiarly abominable. In fact, the methods of the Irish assassins are almost as abomniable as the employment by the English government of Indians against the American colonists in the war of independence. Having thus briefly, but we trust sufficiently, recorded our opinion on the immorality of such warfare, we feel at liberty to add that the English have and will have no reason to find fault with the United States for not suppressing such outrages. It is utterly impracticable to do so-as impracticable as it was for Great Britain to suppress Confederate privateering against our commerce in our late civil war. There is this difference however: while the dynamite outrages are regarded with universal horror and destestation in America, there was a great and influential party in Great Britain who regarded our misfortunes in the civil war with delight and did all they could to assist and succor our enemies-as for example, saving the crew of the Alabama. Our British cousins may depend upon it that we shall exhibit a great deal better spirit and act in a more decent practical manner than they ever did in our times of trial. This is particularly addressed to the threatening English newspapers which would fain embroil the

two countries.

We have received a Memorial of the late Charles O'Conor, from the New York Law Institute, con

taining an acknowledgment of his gift to them of twenty thousand dollars and the bound volumes of his Opinions and Cases, and certain silver testimonials presented to him by lawyers and ladies in connection with the Forrest case. The paper does full justice to the admirable trials of Mr. O'Conor's character. At the annual meeting of the New York City Bar Association, Mr. F. R. Coudert read a memorial of Mr. O'Conor, prepared by him at the request of the Association-an exhaustive and eulogistic treatment of the subject, perhaps not exaggerating the great lawyer's good and grand qualities, but certainly conveying the impression that he was a nearly faultless and almost angelic personwhich he certainly was not. Mr. O'Conor was certainly guilty of one glaring public fault and mistake; we mean his treatment of the Court of Appeals in the Tweed cases, and although we believe he subsequently invited the judges to dine with him, we never saw or heard of any public retraction of or apology for the accusation. If the lives of such men are to be studied as lessons, such things should not be glossed over. The admirable series of "American Statesmen," now in course of publication, treats such matters very differently.

Miss Becky Jones has now been in prison nine months for contempt, and it is high time that she should be delivered. Her contempt consisted in refusing to testify in the Hammersly will case, and reveal what she regarded as secrets of the family imparted to her as a servant. Any woman who can hold her tongue nine month ought to be applauded rather than punished, especially when she is keeping a secret. Becky seems to be a harmless sort of "crank." She is not being punished, either, for she is living in luxury and enjoying herself. Really, we should say the public dignity has been sufficiently vindicated by her imprisonment. There is danger of her being forgotten, and left to die in prison. Perpetual imprisonment for contempt would be an excessive punishment. The majority of murderers do not get so much as that.

On the other hand, we have no sympathy with Edmund Yates, the editor convicted of a society libel. His appeal has been dismissed, and he has been consigned to Holloway prison, to undergo his sen. tence of four months' imprisonment. A telegram from London says: "Orders to the governor of Holloway prison took effect to-day in regard to Edmund Yates, the celebrated society editor. He is put on an allowance of half a pint of wine or one of malt liquor a day. Visits from friends must be arranged by the visiting magistrates, and he can receive only one newspaper daily. His letters will be regulated by the governor's orders. He is to take exercise by himself in the first-class misdemeanants' ground, to rise at half-past six and retire at a quarter past nine. Rules may be relaxed by the medical authorities if his health suffers from the prison treatment." He is evidently not suffering.

His newspaper is being well advertised; in fact, its circulation is daily increasing in consequence of his incarceration. He will be out in four months, ready and encouraged to publish and sell more libels of society. We think it would be fairer to make him and Becky exchange places-give Becky four months, and lock Edmund up until he should promise not to do so any more.

We have seen several very severe articles in the newspapers on the abuse of cross-examination. There is a great deal of public cant on this subject. The privilege is rarely abused except that lawyers are generally tedious in its exercise. Witnesses very frequently have the best of the encounter. We must say that so far from believing that there is any considerable warrant for these strictures, we have been repeatedly astonished at the good nature, patience and magnaminity of cross-examining counsel, when dealing with obstinate, uncandid, prejudiced, stupid, evasive and tricky witnesses. As a general thing there is no witness so uncandid and tricky as an artless woman, and yet it is in respect to the cross-examination of women that counsel are most blamed. There are two sides of this question, as of every other, and it is well to hear the other side.

The speaker of the Assembly of this State has announced as the special committee on the Civil Code and Revision of the Statutes, Messrs. Scott, of Livingston; Raines, of Ontario; Kruse, of Cattaraugus; Cole, of Schuyler; Ives, of New York; McClelland, of Westchester; Connolly, of Brooklyn.

NOTES OF CASES.

N connection with Crocker v. Mc Gregor, 76 Me.

60 N. H. 187, holding that on the question whether a locomotive engine emitting steam and standing near a highway crossing is an object dangerous to the public travel, as likely to frighten horses of ordinary gentleness, evidence of other horses than the plaintiff's being frightened by locomotives and cars passing near the same crossing is not admissible. The court said: "Evidence that other horses, driven by other persons at other times, had been frightened by the same or a similar object, or by a sound produced in the same or a similar manner, was admissible to show that the object or sound was dangerous to the public travel, as being more likely than otherwise to produce the result complained of. Darling v. Westmoreland, 52 N. H. 401; Gordon v. B. & M. Railroad, 58 id. 396. The case does not show that the evidence excepted to was that of other horses being frightened by the escape of steam from a locomotive, but by locomotives and cars passing upon the railroad near the place of the injury. In Darling v. Westmoreland, the plaintiff was permitted to show that other horses were frightened at the same pile of lumber which produced the

particular fright occasioning the injury. In Gor- to him. It is clear from all the authorities that don v. Railroad, evidence that other horses were while a bailee cannot dispute the title of his emfrightened by the same or a like use of a locomo- ployer, he can show that since the bailment it has tive as that which caused the injury, was admit- been assigned to another. The allegiance of the ted; and in Rowell v. Railroad, supra, evidence that vassal was to defend the castle of his lord against locomotives scattered sparks and coals was decided outside foes, and not against itself. The present is to be competent and relevant on the question only the common case of the assignment of a fund whether the particular fire was set by sparks or or claim in the hands of the agent or attorney of coals from a locomotive. In State v. M. & L. Rail- the assignor. A question arising between the asroad, 52 N. H. 528, neglect of the engineer to give signor and assignee, each making a demand | the warning whistle on approaching a highway upon the trustee or stakeholder, the defendant crossing was made evidence on the question of the could have saved himself from all risk, and from particular negligence, at a different time, alleged as costs, by sending the contestants into equity upon a the cause of the injury; and in Hall v. Brown, 58 N. suit of interpleader. Having espoused the side of H. 93, the usage of railroad agents and servants in the assignor he took the consequences attached. No managing cars standing on or near a crossing was sufficient defense has been established against the admitted to show the probable management of the claim of the assignee. Marvin v. Elwood, 11 Paige, same cars at the same place at the time in question. 365; Smith v. Hammand, 6 Sim. 10; 3 Pom. Eq. The evidence excepted to was not evidence of other Jur., § 1327, and cases in note; 2 Story Eq. Jur., § horses' being frightened at the sound of escaping 817; Exchange Bank v. McLoon, 73 Me. 498." See steam, nor at the sight of the vapor produced by it. Nudd v. Montanye, 38 Wis. 511; S. C., 20 Am. Evidence of fright produced in horses by the Rep. 25. sight or sound, on sight and sound, of a locomotive and cars passing on a railroad, could not be evidence on the question of whether or not the plaintiff's horse at another time was was frightened at the sound of steam escaping from a locomotive stationary on the track. Nor could the defendants' negligence in managing a locomotive and cars moving on the railroad, at or near a crossing, be evidence of negligence or mismanagement in respect to steam escaping from a locomotive not moving. The facts shown by the excepted evidence were too unlike those alleged in the declaration to be evidence of negligence in the particular

case."

In Roberts v. Noyes, 76 Me. 590, it is held that although a bailee is not permitted to dispute the title of his bailor, he may show that the bailor has assigned his title to another, since the property was intrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger does not apply; the assignee is not a stranger. The court said: "The defendant invokes the rule of law, that an agent in possession of his principal's property is not permitted to dispute the principal's title thereto; that he cannot be converted into a trustee for a third person by a mere notice of his claim; that he cannot affect the principal's rights by an attornment to a stranger; and that an action of money had and received cannot lie in such case by a third party. All of which is true but misapplied. The plaintiff does not set up an independent and hostile claim as a stranger or third party. He claims under Mrs. Rounds, and not adversely to her original right. He claims that her right has become his; that thereby her trustee has become his trustee; and that the privity between her and her agent has been transferred to him. The plaintiff could not dispute Mrs. Rounds' original title, but he can show that it was assigned

There is

In Vehue v. Mosher, 76 Me. 469, the plaintiff recovered judgment for a farm mortgaged to another, who assigned the mortgage to him. gor, during the sixty days before the conditional The mortgabecame a final judgment, sold manure, previously made upon the place in the usual course of husbandry, to the defendant, who during that period entered the premises and carried the manure away. Held, that the plaintiff can maintain an action of trespass quare clausum fregit against the defendant therefor. The court said: "The defendant contends that trespass quare clausum cannot be maintained against him for the act. The position is that the action does not lie against the mortgagor, and therefore not against one licensed by the mortgagor to enter the premises. We think the action lies against the defendant, and would lie against the mortgagor had he done the same act. no intimation that the assignee of the mortgagee was not entitled to an immediate possession, though he was for a time postponed in getting possession by legal process. The action (quare clausum fregit) lies by mortgagee against mortgagor for strip and waste. The mortgagor is not liable in the action for using the premises, the possession of which is not taken by the mortgagee, but may be sued in quare clausum for abusing them in certain ways. A mortgagor in possession, before entry by the mortgagee, may lawfully cut and remove grass growing upon the land. Hewes v. Bickford, 49 Me. 71. He may take the rents and profits. He may cut firewood for use upon the premises. Hapgood v. Blood, 11 Gray, 400. He cannot cut and remove trees fit for timber in the market. Page v. Robinson, 10 Cush. 99. He cannot remove a building. Cole v. Stewart, 11 id. 181. Nor remove fixtures from a building. Smith v. Goodwin, 2 Me. 173. He is liable in quare clausum for any act causing substantial and permanent injury. Removing the manure in this case was of the same kind of injury and waste

as removing trees or buildings or house-fixtures.
Manure, situated as this was, is itself a fixture."
See Chase v. Wingate, 68 Me. 204; S. C., 28 Am.
Rep. 36.

COMMON WORDS AND PHRASES.

EMOLUM

called the ass 'the jackass being the male of this species. But it is urged that this construction will not do unless it appears that the animal is used as a horse; that is, used for riding, ploughing, and other such useful and necessary purposes for the benefit of the family. That if he is used merely for breeding purposes he is not within the spirit of the law, and is not exempt. We cannot so interpret our statute. It is not required by the terms of the statute, as it is in Alabama, for instance, that the horse exempt must be a work horse. Allman v. Gann, 29 Ala. 240. Nor are the horses exempt under our statute exempted for specific uses, as in the California statute. Robert v. Adams, 38 Cal. 383. Our exemption is general, unrestricted and unconditional and unlimited as to the value of the animals. It extends to all classes of of our citizens. It includes the valuable trotter or racer worth thousands of dollars, as well the comparatively valueless Mexican pony; the magnificent span of horses

MOLUMENTS.-In Apple v. County of Craw ford, Pennsylvania Supreme Court, February, 1884, it was held that the compensation allowed to the sheriff for boarding prisoners is one of the "emoluments" of his office, which may not be increased or diminished during his term. The court said: "The boarding of the prisoners was certainly one of his official duties imposed upon him by law. For the performance of this duty he was entitled to receive a compensation, which was definitely fixed by law at the time of his election. While this compensation could hardly be called a salary, it seems to us that it is included within the larger and broader term 'emolument.' In Webster's Unabridged Dic-driven by the wealthy man as well as the brokentionary the word 'emolument' is thus defined: The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, fees and perquisites; advantage; gain, public or private.' We think the word imports more than the word 'salary or fees,' and because it is contained in the Constitution in addition to the word salary, we ought to give it the meaning which it bears in ordinary acceptation. By the definition above given it imports any perquisite, advantage, profit or gain arising from the possession of office."

HORSE. A jackass is a “horse" within a statute of exemption. Robinson v. Robertson, Texas Supreme Court, June, 1884. The court said: "This rule of liberal construction of exemption laws has prevailed in our State from the earliest decisions down to the present time. Thus in Cobbs v. Coleman, 14 Tex. 594, under the exemption of a 'horse,' it was held that a bridle, saddle, stake-rope and martingales were exempt. In Rodgers v. Ferguson, 32 Tex. 533, it was held that the word 'wagon' in the exemption statute included all four-wheeled vehicles for whatever use employed. In Anderson v. McKay, 30 Tex. 186, it was held that lumber which was destined for the erection of a house upon land claimed as a homestead might, under certain circumstances, be regarded as a part of the homestead, and therefore exempt. In Allison v. Brookshire, 38 Tex. 199, it was held that a 'mule' was included in the exemption of a 'horse.' In Alexander v. Holt, 59 Tex. 205, growing crops upon a homestead are held to be exempt as a part of the homestead. In Tennessee, Richardson v. Duncan, 2 Heisk. 220, it has been held that a jackass is a horse within the meaning of the exemption statute of that State; which statute as to the question here involved is similar to our own. * * * We are of the opinion that a fair and liberal construction of our exemption statute includes within the meaning of the word 'horse' the animal of the same genus

* *

He may

down hacks of the poor laborer. Such is the law of
this State. Whether it be just, equal and wise, or
unfair and inequitable, is not for us to determine.
It is very true that under the construction of the law
a debtor may invest a large sum of money in two val-
uable stallions or jackasses, and in this way defraud
his creditors. He may do the same thing, on a
much larger scale, with his homestead.
invest an unlimited amount. in a homestead, and
from a hundred thousand dollar palace bid de-
fiance to his hard-working, poverty-stricken cred-
itors. So it is no argument against our construc-
tion of the law to say that it is not right because it
will allow a debtor to invest all his means in a
couple of fine-blooded jackasses and live in luxury,
not from the proceeds of their services as agricul-
tural animals, but from their services as foal-getters,
while his creditors are perhaps suffering for the pit-
tance which he honestly owes them."

[ocr errors]

or

ROADWAY, ROADBED.-Steamers used by a railroad company in transporting freight cars across water intervening between the termini of the tracks, are not taxable as part of the "roadway "roadbed." City and County of San Francisco v. Central Pac. R. Co., 63 Cal. 467. The court said: "It is equally as clear that they are not rails or rolling stock. These words are to be construed according to their ordinary and popular meaning, and we do not think that it would be contended that rails or rolling stock in their ordinary and popular signifi cation include the steamers above mentioned. Are they then embraced within the words roadway or roadbed in the ordinary and popular acceptation of such words as applied to railroads? These two words, as applied to common roads, ordinarily mean the same thing, but as applied to railroads their meaning is not the same. The roadbed referred to in section 10, in our judgment, is the bed or foundation on which the superstructure of the railroad rests. Such is the definition given by both Worcester and Webster, and we think it correct. The roadway has a more extended signification as ap

« PreviousContinue »