are used only in such modes as the proper transaction of its business necessitates.

The evidence is clear that the tracks mentioned are continually used in the manner set out in the bill. The defendant's trainmaster, at Camden, testifying for the company, states that the company uses Bridge avenue above second street considerably for the purpose of drilling, and that he could not transact the company's business without doing so; that he is not in the habit of permitting cars loaded with cattle, sheep and swine to remain upon the track between second and third streets longer than he must, before getting them down into the yard after they come into the street. These occurances take place at various hours of the day and up to eleven o'clock at night; ordinarily, he says, not later than that time. The proofs presented by the complainants, and not controverted on behalf of the defendant, establish that the use of the tracks thus admitted results in the nuisance of which complaint is made.

The fact that these nuisances are continuous, and materially diminish the comfort of complainants in their residence, makes the case one proper for an equitable remedy by injunction, unless the defendant can justify its conduct. Ross v. Butler, 4 C. E. Gr. 294, and cases there cited.

The defendant s justification was rested, at the argument, upon the ground that the legislature and the common council of Camden had authorized the defendant to use Bridge avenue for its business, that its business requires such use as the defendant has hitherto made,and therefore the use cannot be, in a legal sense, injurious.

There are two sufficient answers to this claim. The first is that neither the legislature nor the common council has attempted to grant so exten sive a privilege as is here set up. The charter of the Camden and Amboy railroad Company, passed February 4th, 1830, authorized it to construct and operate a railroad, with all necessary appendages, within limits embracing the locality now under consideration. In 1834 the Camden common council, by resolution, authorized that company to use Bridge avenue for the purposes of its roadway. In 1855 the legislature (P. L. of 1885 p. 118; Rev. p. 919 § 65) authorized railroad companies, whose incorporating acts limited the quantity of land which they might hold at their stations, to purchase and hold so much land as might be strictly necessary for most conveniently storing and working upon their engines, cars, fuel and materials to be used on their roads, and for receiving and delivering property transported on their roads to the best advantage, and for tracks, wagon-roads, platforms, and all other strictly station and railroad purposes. In 1862 the city council, by "an ordinance to afford facilities to the Camden and Amboy Railroad Company for the running of their trains through the city of Camden," gave its consent and authority to the company to lay side tracks, running obliquely from a point on the railroad, along Bridge avenue, between second

and third streets, to and upon the company's depot property lying west of second street. From these laws and regulations arise whatever rights. the defendant, which is the lessee of the Camden and Amboy Railroad Company, appears to have in Bridge avenue, in front of complainant's house. In our judgment, they indicate that those rights are such as pertain to the use of the avenue for the purposes of a way, not for the purposes of a station-yard. The primary privilege given is that of passage; this and its reasonable.incidents cover the whole scope of the grant. The right of storing engines and cars, either for a longer or a shorter period, the right of making up or breaking up trains, are not embraced in such a concession. These are strictly station and terminal purposes, and by providing for station-yards the legislature has indicated its intention that business of that nature should be transacted there. We do not say that the company may not, under any circumstances, do upon its roadway what ought commonly to be pode in its yards; for, no doubt, unforseen occurrences may sometimes render such acts almost indispensable, and then other less urgent rights, of the public at least, must give way. But when, in the ordinary course of its business, the company devotes a portion of its roadway to station purposes, it goes beyond express legislative sanction, and can support itself, if at all, only as a private individual might. This is what the defendant did in Bridge avenue. Having a right of passage there, it used its tracks as though they were within its terminal yard, and so used them constantly in its every-day concerns. For this is no legislative or municipal authority.

But, secondly, an act of the legislature cannot confer upon individuals or private corporations, acting primarily for their own profit, although for public benefit as well, any right to deprive persons of the ordinary enjoyment of their property, except upon condition that just compensation be first made to the owners. This principle rests upon the express terms of the constitution. In declaring that private property shall not be taken without recompense, that instrument secures to owners, not only the possession of property, but also those rights which render possession valuable. Whether you flood the farmer's fields so that they cannot be cultivated, or pollute the bleacher's stream so that his fabrics are stained, or fill one's dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the the owner's property. In neither instance has the owner any less of material things then he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion. This is the taking of his property in a constitutional sense; of course, mere statutory authority will not avail for such an interference with private property. This doctrine has been frequently enforced in our courts. In Trenton Water Power Co. v. Raff, 7 Vr. 335, Mr. Justice Depue said: "The destruction of private

* * *

property, either total or partial, or the diminution of its value by an act of the government directly, and not merely incidentally affecting it, which deprives the owner of the ordinary use of it, is a taking within the meaning of the constitetional provision. The injuries to which immunity from responsibility attaches are such only as arise incidentally from acts done under a valid act of the legislature, in the execution of a public trust for the public benefit,by persons acting with due skill and caution within the scope of their authority. If the injury be direct, or the work be done for the benefit of an individual or corporation, with private capital and for private emolument, the principle which absolves the parties from liability to action at the suit of persons injured does not apply, even though the public be incidentally benefitted by the improvement." He cites several decisions in this State supporting the doctrine. In McAndrews v. Collerd, 13 Vr. 189, the chancellor declared, as the opinion of this court, that the proposition that the legislative authority to a private corporation or an individual to do a work for its or his own profit, includes authority to use, at whatever hazard to the persons orproperty of others, dangerous materials, provided they be necessary to the convenient prosecution of the work, cannot be sustained; that there is an obvious distinction between the liability of a private corporation to public prosecution for a legalized nuisance, and its liability to a private action for damages arising from such nuisance; that in the one case the legislative authority is a protection, and in the other it is not. To the same effect is the language of the Supreme court of the United States in Baltimore and Potomac Railroad Co. v. Fifth Baptist Church, 108 U. S. 317: "The acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest, and over which the public have control. The legislative authority exempts only from liability to suits, civil or criminal, at the instance of the state; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large."

It must not be gathered from these propositions that all those inconveniences, which are the necessary concomitants of the location of railroads in populous neighborhoods, are to be considered civil injuries. That railways shall be so constructed and operated is required by the unanimous consent of the community, and the annoyances thence unavoidably arising ere not of sufficient importance to be regarded as invasions of those rights of property which society recognizes and protects. They must be classed rather among those limitations which the social State imposes upon the enjoyment of private property for the common good. But if in any case these annoyances become so great as to destroy or substantially impair the

legitimate use of private property, the person injured becomes entitled to redress. Even the common good must then yield to private right, unless compensation be made.

The decree and injunction below, following the prayer of the bill, are therefore, in the main, correct, but perhaps they may be interpreted as going further than they should, in that they absolutely forbid, under any circumstances, the use of defendant's tracks in front of complainants' premises for the purpose of distributing and shifting cars and making up trains, and putting and placing thereon cars laden with cattle, sheep and hogs. Such a use may, sometimes, in extraordinary emergencies, be unavoidable, and if it then should occasion a material injury to complainants, should be paid for in damages rather than be prohibited by injunction. The injunction should be against the use of those tracks, for the purposes indicated, in the transaction of the ordinary business of the defendant, leaving it at liberty to show, in response to any attempt to punish it for violation, that an occasional use was necessitated by an unforeseen contingency.

In order to make this modification, the decree below should be reversed, but without costs to the appellant. The complainants should recover their costs in the court below.

Decree unanimously reversed.

NOTE. The maxim, sic utere tuo ut alienum non laedas is usually difficult to obey, and its observance is beset with many complications in the relations of railroad companies to adjacent proprietors. The tracks of railroads, however long, are of course narrow, and as the operation of the road is always noisy, and sometimes malodorous, it is not remarkable that questions of abuse or excess of chartered rights frequently arise between the railroad company and abutting land-owners.

It is well settled that the dedication of land to public uses as a street or common road, does not confer the right to lay railroad tracks upon it. The dedication, or condemnation, of land for the purposes of a public street, confers only the right of user for the purposes of ordinary travel, the use of such street for railway purposes is an additional burden, and for this there must be a fresh dedication or condemnation, or at least appropriate compensation to him who owns the fee. If however the fee has passed from the original owner, and is vested in the State or the city, then of course the original owner has no reversionary interest and no right on that ground at least to complain that the servitude of a railroad track has been added to the ordinary uses of a street. And however the right may be obtained the railroad company cannot use it for purposes, or in a manner not clearly within the

1 Indianapolis etc. Co. v. Hartley, 67 Ill. 439; S. C. 16 Am. Rep. 624; Redfield on Railways, (3 ed.) § 76; Kucheman v. Railroad Company, 46 Iowa, 366; Barney v. Keokuk, 94 U. S. 324; Atchison etc. Co. v. Garside, 10 Kan. 552, 565.

2 Williams v. New York Central etc. Co., 16 N. Y. 97; Heard v. Brooklyn,60 N. Y. 242; Porter v. North, etc Co., 33 Mo. 128; South Carolina etc. Co. v. Steiner, 44 Ga. 546. 3 Heath v. Barmore, 50 N. Y. 302; Porter v. North etc. Co., supra, South Carolina etc. Co. v. Steiner, supra.

terms of the grant, either by its express words or by necessary implication from them. Hence, in the principal case, the right of way granted to a railroad company to traverse a street as a part of its track did not include the right to make that street a "yard" for "making up" and "breaking up" trains, or as standing room for cars, detained or out of use.

A Georgia case 5 goes much farther than that under consideration. The soil of a street it was conceded belonged to the State, the city gave a railrod company the privilege of using the street as part of its track, and the legislature ratified the municipal act. Upon suits for damages by the property holders on that street the Supreme Court held that they could recover such damages upon the ground that any injury to property which deprives the owner of the ordinary use of it, is equivalent to a "taking" and entitles him to compensation. And the court says: "Trains, freighted, and driven by steam, with gusts of thick smoke through his windows, and screaming along in front of his door, may affect his health and destroy his peaceful enjoyment of his property." This is farther than any other court has gone in favor of the property holder and against the railroad. In that case the property owner did not own the soil of the street in front of his premises, nor was the injury compalined of, any thing more than the usual and necessary consequence of running a railroad.

In a Michigan case,6 the true doctrine on this subject is thus stated: "An adjoining proprietor can never be entitled to recover from a railroad company, for the depreciation of the rental or sale value of his premises, because of the location of the track in the street, except upon the assumption that the location is, of itself, unlawful. As already stated, it is unlawful as to him if he owns the soil in the street; but if he does not, and the placing of the track there is permitted by competent authority, the incidental injuries he may suffer from the location of the track, and the proper and reasonable conduct of the business of the railroad company upon it, can afford no ground of action unless the statute gives one. The railroad is not a public nuisance, and no right of action can arise against the company until by negligence or mismanagement, they do, or suffer to be done, something injurious to the abutting proprietor, which the permission to occupy the street will not justify." This ruling was re-affirmed in a later case between the same parties.

It may be said that "every lot owner has a peculiar interest in the adjacent street which neither the local nor the general public can pretend to claim; a private right, in the nature of an incorporeal hereditement, legally attached to the contiguous ground, *

which can no more be appropriated against his will than any tangible property of which he may be the owner."8

The law, therefore, appears to be, that a railroad in a public street, is not a public nuisance, nor indicta

4 Commonwealth v. Erie etc. Co., 27 Penn. St. 351.

5 South Carolina etc. Co. v. Shiener, 44 Ga. 546.

6 Grand Rapids etc. Co. v. Heisel, 38 Mich. 62, 70. Grand Rapids etc. Co. v. Heisel, 47 Mich. 393; See also Moses v. Pittsburg etc. Co., 21 Ill. 516; Murphy v. Chicago, 29 Ill. 279; Stetson v. Chicago etc. Co., 75 Ill. 74; Chicago efc. Co. v. McGinnis, 79 Ill. 269; Elizabethtown etc. Co. v. Combs, 10 Bush. 382; Carson v. Central etc. Co., 35 Cal. 325.

Lexington etc. Co. v. Applegate, 8 Dana. 294; Haynes v. Thomas, 7 Ind. 38; Elizabethtown v. Combs, supra: Protzman v. Indianapolis etc. Co., 9 Ind. 467; Stone v. Fairburg etc. Co., 68 Ill. 394.

ble as such; that it may be so mismanaged as to be a private nuisance, as in the principal case under consideration, or "by ways innumerable, by acts of omission or commission: 10 that an owner of abutting property is not entitled to compensation for injuries suffered by reason of the location of a road in the street unless he owns the soil of the street; and that if he does own the soil of the street in front of his lot, he is entitled to such compensation, although he, or those under whom he claims, have long ago dedicated that soil to public uses for the ordinary purposes of street travel. ED. CENT. L. J.

1. ADMINISTRATOR-Official Bond-Surety — Liability of-When an administrator, having resigned afterwards becomes his own successor, and a balance is decreed against him on settlement of the first administration, the distributees may, at their election, charge the sureties on either the first or the second bond. When an infant distributee is represented, on final settlement of an administrator's accounts, by a guardian ad litem regularly appointed, the decree is as binding on him as if he were an adult. On final settlement of an administrator's accounts, when the estate is not ready for settlement and distribution, a decree against him must be rendered in favor of the succeeding administrator de bonis non (Code, § 2595); and if he has been appointed his own successor, the probate court has, ordinarily, no jurisdiction to make the settlement. If the administrator is summoned to settle both administrations on the same day, and a balance is first ascertained against him on the statements of the accounts of the first administration, which at the instance of the distributees, is carried as a debt into the second, they cannot afterwards, by bill of equity, charge the sureties on the first bond with the amount of this balance, on the ground that the court, by reason of the antagonistic positions occupied by the administrator, had no jurisdiction oi the first settlement. Modawell v. Hudson, S. C. Ala.

2. AGENCY-Authority-Variation of Terms-Ratification-Knowledge-Earnest Money.-Although

a written authority directing agents to "sell" land

may not be sufficient to authorize a conveyance by the agents, it may be sufficient to empower them to make an executory contract for a sale which will bind their principals. When authority is given to sell on terms that the price should be payable "in" a certain time, a sale on terms of payment "on or before" said time, does not presume the authority given. To render a principal liable upon a contract in making whereof his instructions have been departed from as to terms, on the ground that he has ratified the same, he must have made the ratification with khowledge of the fact that he had not been obeyed. Where earnest money has been paid to agentmaking an authorized contract, the principal, who has not received the money, may disaffirm the contract without the necessity of seeing that the money is returned. Jackson v. Badger, S. C. Minn., March 1, 1886; 22 Rep, 122.

3. BENEVOLENT SOCIETY-Beneficiary a Stranger. -Defendant was incorporated under chapter 267, of the Laws of 1875, as amended by chapter 53, Laws of 1876. By its certificate of incorporation its object was declared to be: "To combine the efforts of all its members with the view to effect mutual relief, aid and systematic contributions of benevolence and charity during their life-time, and to their respective families from time to time, when rendered necessary by sickness or pecuniary distress. By its by-laws, passed in 1880, § 2: "The object of this society shall be to secure mutual benefit and protection to its members and to furnish aid to their families or assigns in case of a member's death." A certificate of membership was issued to H., payable on his death, one-fourth to his wife and three-fourths to plaintiff or his representatives. Held, that plaintiff, though not a member of H.'s family was entitled to recover; the contract was not one beyond the powers of the defendant. Massey v. Mutual, etc. Society, N. Y. Ct. App. June 1, 1886; 5 East. Rep. 810.

4. COMMERCIAL LAW-Promissory Notes-Proof of Indorsement-Non-Suit.-Where, in an action on a note, plaintiff made out his case by putting the note in evidence, and rested, and the defendant then moved for a non-suit on the ground that there Was no proof of the indorsement of the note, plaintiff's counsel contending that no such proof was necessary, the court, upon deciding that proof of the indorsement was necessary, should have allowed plaintiff's request for leave to open the case, and introduce testimony concerning the indorsement, and a refusal so to do, and granting of a non-suit, where the effect thereof would be to compel plaintiff to commence a new action, to which the statute of limitations would be a bar, is Low v. Warden, S. C. Cal. June 17, 1886;

5.

error.

11 Pac. R. 350.

.

Promissory Notes-AssignmentNotice-Evidence-Trial-Instructing ¦Jury—Requests-Duty of Judge.-In an action by the assignee of a note against the payee, who assigned by writing his name under that of the maker, instead of by endorsement, it is competent for plaintiff, in rebuttal of the claim brought out in the defense, to prove that defendant intended by his act to become a joint maker, and to waive notice. It is the duty of the court in instructing the jury to use, when possible, the precise words contained in the requests to instruct. Cook v. Brown, S. C. Mich. July 15, 1886; 29 N. W. Rep. 46.

6. CONSTITUTIONAL LAW-Title of Act-Passage of Law-Legislature Journals-Errors in-Pre

sumption that Bill was Read-House JournalThird Reading of Bill-Enrollment of Statute.The title to an act of the legislature reads as follows: "An act authorizing the board of county commissioners of Ottawa county, and other counties therein named, to provide a fund, and appropriate the same, for the purpose of building county buildings in said counties." The "subject" of this act is the creation and use of a fund to build county buildings, and the body of the act ex pressly applies to the three counties of Ottawa, Washington, and Republic. Held, that the act contains only one subject, which is sufficiently expressed in its title, and is therefore not in conflict with that provision of § 16 of article 2, of the constitution, which requires that "no bill shall contain more than one subject, which shall be clearly expressed in its title." The bill was introduced in the senate, and read a first and a second time on the same day, and the senate journal does not show whether a case of emergency existed or not. Held that, although it is necessary, under § 15, of article 2 of the constitution, that "every bill shall be read on three separate days in each house, unless in case of emergency," yet that each house is the exclusive judge as to when a case of emergency arises or exists; and it is not necessary, in order that the reading of the bill shall be considered valid, that the emergency shall be stated upon the journal. From the legislative journals it appears there were several discrepancies or irregularities in the description of the bill, and the title to the bill, but held, that the same do not render the act as subsequently passed by the legislature, void. Nothing appearing showing that the bill was not read section by section on its final passage, as required by § 15 of article 2 of the constitution, held, that presumptively it was so read. Where the house journal shows expressly and affirmatively that the bill was placed upon its third reading, and that afterwards it "was read the third time," held, that it is sufficiently shown that the bill was read three times in the house. The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act, and of its validity, and is conclusive evidence of such regularity and validity, unless the journals of the legis lature show clearly, conclusively, and beyond all doubt that the act was not passed regularly and legally. Weyand v. Stover, S. C. Kan., July 9, 1886; 11 Pac. Rep. 355.

7. CONTRACT-Divisible Contract-Part Performance-Where a contract of sale contemplates and requires a performance in separable parts, and where the seller delivers an agreed proportion which the buyer accepts, and payment therefore becomes immediately due, the right to recover for such partial payment is at once complete and is not forfeited by a later default. The buyer cannot be compelled to accept a part performance in the inverse order of his contract, but only according to its terms; and where, at its initial point, the seller is in default, the right to rescind or abandon belongs to the buyer and applies to the whole con tract remaining unperformed. Pope v. Porter, N. Y. Ct. App. June 1, 1886; 3 Cent. Rep. 451.

8. CONTRIBUTORY NEGLIGENCE.-Burden of Proof -Facts Constituting-Contributory negligence is a defense, the burden of which rests on the defendant although negatived by the averments of the complaint; and it must be affirmatively proved by the defendant, unless the plaintiff's own evidence establishes it. In an action by a railroad company

to recover damages for injuries caused by a collision of one of its trains with several empty cars left standing on a side-track by the defendants' servants, if the empty cars were left standing too near the main track, and a collision might have been avoided by the use of reasonable diligence on the part of the persons in charge of the passing train, the defense of contributory negligence would be made out, and in this connection the speed of the train and the fact that it had a watchman so stationed as to see and give notice of obstructions, or the want of these precautions, would be material factors; buf, if the empty cars, though not placed too near the main track, insecurely scotched on the down grade of the sidetrack, and being put in motion by the passing train, rolled down on it at the switch, the speed of the train would be immaterial, and contributory negligence could not be imputed to the plaintiff. Montgomery, etc. R. R. Co. v. Chambers, s. c. Ala. Dec. Term, 1885-86. 9. CORPORATION.-Municipal Corporation - Evidence-Expert Testimony-When Admissible— Defective Ways-Injury to Person-Condition of Health after Accident-Damages-Personal Injury-Possibility of Recovery-Streets-DefectsNotice-Testimony of an expert as to the nature of injuries, where the knowledge has been derived from an inspection of the injury, and from conversation with the person injured, is admissible. The testimony as to the condition of the health after an accident, of one claiming damages therefor, is admissible. Where there is a probability of a permanent disability, and a bare possibility that the disability would not be permanent, there is a sufficient basis for damages. It is the duty of the city, and not of "passers-by," to notice defects in streets and sidewalks, and repair them. In order to recover for an injury caused by a defect in a street, the plaintiff must show that the defect has existed for such a length of time as would have enabled the city to have discovered it by the use of ordinary care and caution. Squires v. City of Chillicothe, S. C. Mo. June 7, 1886, 1 S. W. R. 23. 10. CRIMINAL LAW.-Aiding Prisoner to EscapeIntent to Liberate Particular Person.-Under an indictment for aiding a prisoner to escape, a conviction may be had, whether an escape was effected or attempted or not; but it is not necessary that there shall be a specific intent to liberate any particular prisoner, although there must be an intent to liberate, and it must be found by the jury; nor is the consent of the prisoner a necessary ingredient to the offense. In delivering the opinion of the Court, upon the latter point, Stone, C. J. says: "Is it necessary to a conviction that there shall be independent proof that the accused had the specific intent to aid the particular prisoner to escape? Can the offence be committed without the consent of the prisoner? The first of these questions we answer in the negative. All men are presumed to intend the natural consequences of their acts. All men are presumed to be averse to involuntary confinement, and to desire liberty. So, if a prison be opened or so broken as to allow the inmates to escape, this would be proof of a general intent, and would authorize the jury to find a specific intent to liberate each and every prisoner confined therein. And on the same principle, we answer the second of the above questions in the negative. The intent to liberate, however, must exist, and must be found by the jury. We have shown above that a general intent is enough, and have also stated that the jury may infer such intent from

11.

12.

13.

any intentional breaking, or assistance in an attempt to so break the prison as that the prisoners confined therein can escape." Hurst & Hill v. State, S. C. Ala. December Term, 1885-86.

-.Homicide ·Self-Defense - Hostility of Parties-Depositions-Criminal Case - Admissibility. Where it clearly appears that the accused and deceased had lived in avowed, open hostility, each going armed in anticipation of a deadly assault from the other, it is wholly immaterial which of them struck the first blow, on the occasion of an actual encounter between them fatal to either. Depositions taken in the presence of the accused, and where he had the opportunity of cross-examination, may be afterwards used on the trial, if at the time of using them the deponent is absent from the jurisdiction, or is dead. Sneed v. State, S. C. Ark. June 5, 1886; 1 S. W. Rep. 68.

-Indictment-Statutory Offence-Gaming -Broker Acting in Option Deals.-An indictment which merely follows the language of the statute, in charging an offense created by the statute, is good. Under the laws of Arkansas-act of March 20, 1880, (Mansf. Dig. §§ 1848, 1849)-a broker, or middleman, operating between buyer and seller, and bringing them together for the purpose of dealing in "grain futures," no bona fide sale and delivery of property being intended, is a gambler, even though he merely receives a commission on the sale, and has no other interest in the transaction. Fortenbury v. State, S. C. Ark. June 5, 1886, 1 S. W. Rep. 58.

-.Perjury-Time, Place, and Details Testifled to in Alleged Perjury not Immaterial Issues -Conclusion of Indictment-Formal Conclusion. -On an indictment for perjury, the alleged perjury consisting of false testimony that at a certain time and place the defendant was offered $250 by the deceased if he would kill the slayer of the deceased, which was given in evidence on the trial of the slayer for murder, the time, place, and details so testified to, are not immaterial issues of which perjury could not be predicated. An indictment for perjury, concluding, "against the peace and dignity of the State of Illinois," is sufficiently formal. The ancient conclusion, "and so the jurors aforesaid, upon their oaths aforesaid, do say," etc., "that the defendant did commit wilful and corrupt perjury," etc., while appropriate, is not material. 1 Starr & C. St. c. 38, § 227, Par. 283. Henderson v. People, S. C. Ill., June 12, 1886, 7 N. East. R. 677.

14. CRIMINAL PRACTICE.-A judgment of conviction upon one count in an indictment for arson, which did not charge the act to have been done "feloniously," and which was not framed under the section of the Penal Code providing for the punishment of the act as a misdemeanor, will be arrested, if defendant has been acquitted upon another count charging the act to have been "feloniouly" done. Commonwealth v. Weiderhold, S. C. Penn., May 3, 1886, 3 Cent. R. 401.

15. WAYS.-Eminent Domain-Private Benefit.— When it is necessary, in order that a man may discharge the duties required of him by law, such as attending courts and elections, that he should have a passway over the land of his neighbor, the right of eminent domain may be invoked for the purpose; following Robinson v. Swope, 12 Bush, 21. Cody v. Rider, Kentucky Ct. of Appl. June 3, 1886. 1 S. E. Rep. 2.