or by an overhead bridge at such a height as not to interfere with the free use of its route by the existing railroad; or by a passage on the surface, and at grade, where the rails of the existing railroad are temporarily cut, and frogs inserted, which thereafter permit the continuous use of the route by the existing railroad, except when the trains of the new railroad are crossing. But to sever the roadbed and rails of an existing railroad; to divide its route by a cut or a fill, which can only be passed by raising or lowering its grade,-is not, in my judgment, a crossing within the meaning of the act. It is rather a division of the existing railroad into two unconnected parts, which it can only make continuous by its effecting a crossing of the new railroad. Under this construction, no railroad can be crippled or interrupted to the public detriment. On this view of the act, the petition seeks to acquire, across the located route of prosecutors, rights which the act does not permit them to acquire by condemnation; and the order, for this reason, cannot be sustained. Other objections raise questions of much interest; notably that objection which denies the right to make any crossing through or over lines devoted to the storage of cars. But time has not permitted their examination. For the reasons above

given the order must be set aside.

Crossing and Connection of Two Roads.-See generally, Richmond & D. R. Co. v. Durham & N. R. Co. (N. Car.), 40 Am. & Eng. R. Cas. 488; note 39 Am. & Eng. R. Cas. 16, where the cases are collected.

Same-Report of Commissioners--Assessment of Damages. In the case of St. Louis Transfer R. Co. v. St. Louis, I. M. & S. R. Co., 100 Mo. 419. which was an action by the plaintiff company to have commissioners appointed to ascertain the points and manner of making certain crossings and intersections with defendant's road, and to ascertain the compensation to be paid therefor, the following points were determined:

While it is the duty of the commissioners, appointed under Revised Statutes, 1879, section 765, for the purpose of determining the points and manner of the crossing and joining, etc, of two railroads, and the compensation therefor, to view the premises, yet it is not required that such fact be recited in their report.

The circuit court has the power to hear evidence upon the question of the amount of compensation allowed by the commissioners and may award a new appraisement upon good cause shown, and the ruling of the circuit court in respect thereto may be reviewed by the supreme court.

But such report will not be set aside on appeal because it does not award damages to the defendant corporation, when no evidence on that point has been preserved in the record.

A report, allowing plaintiff a latitude of ten feet, in which to make the connections, with an explanation that it is for the purpose of a proper alignment of the frogs and lead bars, is sufficiently definite under the statute. Nor is the report objectionable because it leaves it optional with the plaintiff to place the connection with defendant at the north or south line of the street, there being nothing in the record to show that the defendant is prejudiced by reason of the fact that plaintiff can connect at either street line.

A provision in the report permitting plaintiff to occupy a certain incomplete switch of defendant for the space of two hundred and fifty feet, and which in effect condemns that much of defendant's sidetrack and appropriates the same to the use of plaintiff, was unauthorized by the order of the court appointing the commissioners, and an exception to the report on that ground should have been sustained.

Sufficiency of Description of Land Sought to Be Taken.-See ante, Cory v. Chicago, B. & K. C. R. Co., and note, pp. 183, 189.

ARMSTRONG

ข.

KARSHNER.

(Ohio Supreme Court, April 29, 1890.)

Subscriptions to Stock-False Representations.-While false statements made by an authorized agent of a corporation in regard to the past or present status of the corporate enterprise or of material matters connected therewith, whereby a subscription is obtained to its capital stock may be fraudulent, and defeat a recovery thereon, representations concerning the future intention, purpose, or expectation of the corporation will not have that effect, especially when it is not shown they were fraudulently made for the purpose of deceiving.

Same-Subscription Originally Invalid-Enforcement on Compliance with Condition. A subscription to the capital stock of a railroad company, the payment of which is made dependent upon the completion of a part of its road, may be enforced against the subscriber after the company has fully complied with its conditions, although, when the subscription was made, the company had not expended 10 per centum of its authorized capital in the construction of its road, nor obtained actual, bona fide subscriptions to its capital stock to the amount of 20 per centum thereof. Though such subscription, when made, was, under the provisions of section 3298 of the revised statutes, unauthorized, it nevertheless constituted a continuing offer of the subscriber to pay the company the amount subscribed, upon the performance by it of the conditions therein contained, which, when not withdrawn before the conditions were fully complied with, became an absolute subscription, and payment thereof cannot be defeated on the ground that the company was without corporate capacity to receive it.

Construction of Poor Road by Railway Company-Effect on Subscription. ----Railroad companies incorporated under the laws of this state are not required to construct first class railroads, before they can collect subscriptions to their capital stock, unless the subscription contains a stipulation to that effect.

Sale of Road after Subscription-Release of Subscriber.-A statute authorizing a railroad company to sell the whole or any part of its road, in force at the time a subscription is made to its stock, becomes a part of the contract of subscription, and a sale thereafter made by the company of a part of its road, under the authority of such statute, does not release the subscriber, except when and as provision is made therefor in the statute. Action on Subscription-Failure to Complete Road as Defense. It is no defense to an action on a subscription to the stock of a railroad corporation that the company has not completed the road in its entirety, nor that it has abandoned a part of the enterprise, when no condition to that effeet is expressed in the subscription.

Change in Line of Road-Release of Subscriber.—Subscribers to the capital stock of a railroad company are not released from the obligations of their subscriptions by a change afterwards made in the line of the road under section 3275 of the revised statutes, so as to pass through a county not named in its articles of incorporation. It is only when the line of the road is diverted from a county named in the articles of incorporation that persons who subscribed to the capital stock of the company, on the line of that part of the road so changed, are released from the obligations of their subscriptions. Rev. St. § 3276.

ERROR to Circuit Court, Ross County.

The original action was brought by John Karshner v. Milton Armstrong, in the court of common pleas of Ross county, by filing therein the following petition:

"The plaintiff, John Karshner, says: That on the 26th day of April, A. D. 1877, the Cincinnati and Fayetteville Railroad Company was duly incorporated as a corporation under the laws of Ohio for the purpose of building and operating a railroad from the city of Cincinnati, in the county of Hamilton, through the counties of Hamilton, Clermont, and Brown, to the village of Fayetteville, in said last named county, all in this state. That the capital stock of said company was $120,000, divided into two thousand four hundred shares of $50 each; and that, shortly after the incorporation of said company, the amount of such capital stock required by statute for the purpose having been duly subscribed and paid, said company duly organized by electing, according to law, a board of directors, who duly qualified as such. That on or about the 31st day of May, A. D. 1878, said company, a large amount of its capital stock, to-wit, more than twenty per centum of its authorized capital stock, in bona fide subscriptions, having been subscribed, and a large amount of money, to-wit, more than ten per centum of its authorized capital, having been expended by it in the construction of its said railroad, duly and legally changed the eastern terminus of said railroad, and extended the line of the same from said village of Fayetteville eastward through the counties of Brown, Clinton, Highland, Ross, Hocking, and Athens to the town of Nelsonville, in last named county, all in this state. That afterwards, on the 9th day of March, A. D. 1880, the name of said company was, by proceeding, had for the purpose in the court of common pleas within and for said county of Brown, duly and legally changed to the Cincinnati, Fayetteville, Hillsborough and Huntington Railroad Company; and that afterwards, on the 7th day of March, A. D. 1891, the name of said company was, by like proceedings in said court of common pleas within and for said county of Brown, again duly and legally changed from the Cincinnati, Fayetteville, Hillsborough and Huntington Railway Company to the Cincinnati,

Hocking Valley and Huntington Railway Company, which said last name it still retains. That on or about the 14th day of October, A. D. 1880, the Cincinnati, Fayetteville, Hillsbor ough and Huntington Railway Company made and entered into a contract in writing with one Henry T. Niles, under the firm name and style of Henry T. Niles & Co., for the building and completing of said company's line of railroad; and the said Henry T. Niles & Co., under said contract, and certain contracts supplemental thereto, made and entered into between said firm and said railway company after its name had been changed, as aforesaid, to the Cincinnati, Hocking Valley and Huntington Railway Company, to-wit, on the 5th day of September, A. D. 1881, and the 19th day of December, A. D. 1881, respectively, agreed to build and complete the line of said company's railroad from its junction with the Cincinnati and Eastern Railroad, in said county of Clermont, to said town of Nelsonville, in said county of Athens, in consideration of which, among other things, said railway company authorized and empowered said Henry T. Niles & Co. to procure stock subscriptions and donations to and for said company to the amount of $5,000 per mile for all that part of its said line of railroad between the Scioto river, in said county of Ross, and said town of Nelsonville, in said county of Athens, and to collect, hold, have, and use the same as their own in and about the construction of said railroad. That on the-day of October, A. D. 1881, the defendant, Milton Armstrong, for the purpose of aiding in the construction of said railroad, and in consideration of the advantages and benefit to accrue to him therefrom, and especially from the building of that part of said railroad from the Scioto Valley Railroad, in said county of Ross, to a point at or near the village of Adelphi, in said county, as well as in consideration of like subscriptions and agreements by others for said purpose, became a subscriber to the capital stock ef the said Cincinnati, Hocking Valley and Huntington Railway Company by executing and delivering to said company an agreement in writing in the words and figures following, which was duly accepted by it, to-wit:

"We, the undersigned, agree to pay the number of shares annexed to our respective names of fifty dollars each to the capital stock of the Cincinnati, Hocking Valley and Huntington Railway Company, and we hereby bind ourselves, our heirs, executors, or administrators, to pay the same to the authorized agent of said company. But it is expressly provided as follows: That no part of said subscription shall be due until a railroad track shall be laid ready for the running of cars from some point on the Scioto Valley Railroad to a

point at or near Adelphi, in Ross county: and, when said railroad track is so laid, we, the undersigned, mutually agree that we will each, on demand, pay the amounts set opposite our respective names to such authorized agent of said company in full payment for such shares of capital stock. No. of Shares.

"Names.

Oct., 1881.

Amount.

"It is distinctly agreed and understood that all the within stock subscriptions are binding, providing the road is built on the north of Adelphi; otherwise, they are void. Ten shares, $50 each,-$500.

"MILTON ARMSTRONG.'

"That said defendant thereby agreed to take ten shares of the capital stock of the said Cincinnati, Hocking Valley and Huntington Railway Company, each share being of the par value of $50, and agreed to pay therefor the sum of $500 to the authorized agent of said company, on demand, so soon as a railroad track should be laid ready for the running of cars from some point on said Scioto Valley Railroad to a point at or near said village of Adelphi, in said county of Ross, provided said railroad should be built north of said village of Adelphi. That afterwards, on or about the 20th day of October, 1882, the said Henry T. Niles & Co., who had, in compliance with the terms of their said contracts with said railway company, and in consideration of said subscription of said defendant, and induced thereby, partly built a portion of the railroad of the said company, including a part thereof between the village of Kingston, in said county of Ross, situate on the said Scioto Valley Railroad, and said village of Adelphi, and were still engaged in the construction of the same, made and entered into a contract in writing with the plaintiff, which was duly approved by said Cincinnati, Hocking Valley and Huntington Railway Company, under and by virtue of which he (the said plaintiff) agreed to build and complete that portion of the railroad of said company from said village of Kingston, at and on said Scioto Valley Railroad, to said village of Adelphi, on the west side of the Circleville and Adelphi turnpike, and also agreed, conditionally, to build that portion of said railroad of said company between said last named point and Daniel Davis', at or near the mouth of Big Pine creek, in said county of Hocking, upon certain terms and conditions in said contract set forth; in consideration of which, among other things, the said Henry T. Niles & Co., with the approval and assent of said railway company duly given, agreed to assign and transfer, and did duly assign and transfer, to him (the said plaintiff) all stock subscriptions and subscriptions for donations held and acquired by them under their said contracts with said railway company, including said subscription of said de44 A. & E. R. Cas.-16