company liable for the acts of its licensee or lessee, or the servants of the latter, such liability rests on the original duty of the railroad company, and the fact that it cannot of its mere volition shift its liability to another. The cause of action arises from a failure to discharge certain duties growing out of its charter and franchises, whether it seeks to discharge them itself through its own agents or whether it delivers its property and franchises to a lessee for operation. It is not at all similar to the case of Central R. Co. v. Williams, supra.

From the foregoing discussion it would seem to be better pleading, in the absence of any statutory provision, to allege whether the act complained of was committed by the railroad company itself, through its own employés, or by the employés of the lessee or licensee. If the point were specifically made at the proper time, perhaps it might be necessary to amend in order to adjust the pleadings to the evidence. But this could be done. Here error is assigned on the refusal to grant a general motion for nonsuit, and because the verdict was not authorized by the evidence. Almost the entire argument in this court was based upon the contention that the defendant was not liable for the conversion by its lessees, and the Heins Case was only cited passingly in one of the briefs. The ruling in that case as to the grant of a nonsuit was merely that, where the allegation was that a licensee did the injury complained of (whether necessary or not to have been decided), the proof must sustain it. Since this action was brought in 1896, an act has been passed (Acts 1899, p. 54) requiring all railroad companies leasing, or who have already leased their property or line of railroad to record such lease in each county through which the road may run, and declaring that a failure so to do will authorize any person having a right of action against such railroad or the lessee or the lessees thereof, including employés, to file and prosecute the action against said railroad company in all respects as if the same were the proper party, and declaring that no plea or other defense seeking to shift liability to such lessee or lessees, or denying the control or possession of such property, should avail as against such suit either by an employé or a member of the general public. Such act is, of course, prospective, and its passage is merely mentioned as bearing on the cases arising subsequently thereto.

8. Counsel for plaintiff in error contend with ability and ingenuity that under the peculiar terms of the charter of the Georgia Railroad & Banking Company (Acts 1833, p. 262; Acts 1835, p. 180) it is not subject to the general rule of liability for the acts of its lessees above referred to; but the agreed statement of facts shows that it has leased the right to operate the entire railroad. If the original company leased its

road and turned over the operation of its franchises to others, it is subject to the rule. When the original charter was granted, railroad building was in its infancy, and turnpikes were great public highways. Certain expressions were used which seem perhaps rather inapt to modern railroad conditions. But, in view both of the charter and the general law, the Legislature never intended that lessees could take the place of the original company in the operation of its cars and franchises as a railroad company, and the original company be entirely freed from liability in connection therewith. In the brief of counsel for defendant in error an attack is made on the legality of the lease and of the possession of the lessees, because the original lease was to an individual, who, it was claimed, could not exercise the franchises, and because the present holders are foreign corporations. But, under the views we have expressed above, this question is not material, since we hold that a legal lease docs not operate to prevent liability. See, on this subject, however, Georgia Railroad Co. v. Maddox, 116 Ga. 64, 42 S. E. 315.

Under the evidence the plaintiff was entitled to recover, and there was no error in overruling the motion for a new trial. Judgment affirmed. All the Justices con

cur.

(127 Ga. 183) JACKSON et al. v. JACKSON et al. (Supreme Court of Georgia. Dec. 17, 1906.) SPECIFIC PERFORMANCE-PARTIES-VENUE.

Where a vendor executed a bond for title to land to a father and two sons, agreeing, upon the payment of the purchase price, to convey the land to them jointly; and where such vendees between themselves agreed that the father should pay half the purchase price and take half of the land, and that the two sons should pay the balance and take the other half jointly, and in pursuance of these negotiations the father paid a part of the purchase price and died, leaving surviving him his said two sons and a widow and other heirs, all being of age; and where there were no debts against the estate, and all of the heirs agreed that certain of them should be substituted for the father and pay such remaining part of the purchase price as he was bound to pay, and, upon pay ment of the price, should receive the one-half interest in the land which had been contracted to be conveyed to the father; and where, after the purchase price had all been paid, the vendor refused to convey the land to the heirs so substituted, and it became necessary to institute a suit for specific performance: and where such suit was instituted by the substituted heirs, and all the other heirs at law were made parties defendant with the vendor, to the end that the interests of the substituted heirs might be asserted-held, (1) that the interests of such defendant heirs are substantial, and the relief sought against them is substantial, and they are not improper parties upon the ground that no substantial relief is sought against them; (2) that the relief sought against the vendor is substantial, and he is not an improper party on the ground that no substantial relief is sought against him: (3) that the venue for such a suit may be laid in the county of the resi dence of the vendor, or in the county of the residence of any one of the heirs who agreed to

This

This is a petition for equitable relief. Upon demurrer the action was dismissed upon the ground that the court to which the suit was brought did not have jurisdiction. is the only question for consideration. Floyd Jackson, Robert Jackson, and Frank Jackson were the plaintiffs, and filed the petition to the superior court of Morgan county. Stovall & Few, a copartnership composed of G. B. Stovall and M. C. Few, both of Morgan county, and Sally Jackson, Henry Jackson, Elizabeth Thomas, and Fannie Williams, all of Morgan county, were made parties defendant. These defendants do not appear to have made any objection or to have made any defense. In addition to the defendants already named, there were others, to wit, Rufus Jackson, Oscar Jackson, Sally Florence Jackson, Mary Jane Jackson, and Ellen Jackson, of Putnam county, and Pink Jackson, whose residence was alleged to be unknown. Of the defendants last named Rufus Jackson, Oscar Jackson, Sally Florence Jackson, and Mary Jane Jackson filed their demurrer upon several grounds, the third ground being as follows: "The superior court of Morgan county has no jurisdiction in this case, for that these defendants reside in the county of Putnam, where also is located the land in controversy, and these defendants, under the allegation in the petition, are the only ones who are necessary or proper parties to the cause of action set out, and the only ones against whom any substantial relief is prayed. Stovall & Few have no personal interest in the controversy, and are at best but nominal parties. Fitzpatrick & Walton have not only no interest in the controversy, but are improper parties to the case. All of the other defendants, except these demurring, are nominal parties. who are doing nothing, threatening to do nothing, concerning the matters complained of, and have no interest in the controversy." On hearing the demurrer, the court ordered "that it be sustained upon the third ground thereof, and the action be dismissed."

In the petition the plaintiffs alleged facts Bubstantially as follows: On the 11th day of December, 1896, Arch Jackson and his two sons, Rufus Jackson and Oscar Jackson, made a contract to buy from the defendants Stovall & Few a certain lot of land lying in Morgan county for the sum of $1,483.86, receiving a bond for title by virtue of which Stovall & Few agreed to convey to the said Arch and Rufus and Oscar Jackson the property upon

the payment of the balance of the purchase price. At the time of the making of this purchase it was agreed between all of the contracting parties that Stovall & Few should convey to Arch Jackson one-half of the land separately, and that they should convey the remaining half to the said Oscar and Rufus Jackson jointly; that after the making of the contract Arch Jackson paid to Stovall & Few $100 as part of the purchase money on said land, and after having made such payment Arch Jackson during the year 1897 died, leaving as his heirs at law his widow, the said Ellen Jackson, one of the defendants, and ten children, comprising the three plaintiffs, as already named, and the defendants Sally Jackson, Henry Jackson, Elizabeth Thomas, and Fannie Williams, and also the defendants Rufus Jackson, Oscar Jackson, and Pink Jackson. After the death of their father, all of the heirs above mentioned, being above the age of 21 years, agreed among themselves that petitioners should "take their father's place in the purchase of said land," and "should pay the said Stovall & Few onehalf of the purchase price of said land, and the said Rufus and Oscar Jackson should pay one-half of said purchase price of said land, and that when said land was fully paid for Stovall & Few should make a deed to said land, conveying said land, so purchased, one undivided one-half thereof to petitioners, and the other one undivided one-half interest thereof to the said Rufus and Oscar Jackson, so that the said Rufus Jackson and the said Oscar Jackson should each own a one undivided one-fourth interest in and to said land, and that your petitioners should each have and own a one-undivided one-sixth interest in said land so purchased." The petitioners entered upon said land and cultivated a portion of it for several years, and the said Rufus and Oscar occupied and cultivated the other portion.

It was further alleged that the petitioners paid one-half of the purchase price as it became due under said contract, and that all the purchase money had been fully paid, so that the matter was ripe for the execution of the deed. On the 3d day of March, 1900, Rufus Jackson and Oscar Jackson attempted to transfer and assign said bond for title to said land to their wives, the defendants Sally Florence Jackson and Mary Jane Jackson. This attempted transfer of said bond for title was illegal, because it was made for the purpose of defrauding petitioners and the creditors of the said Oscar and Rufus Jackson; that the said Oscar and Rufus Jackson had only a one-half interest in said bond for title, which fact was well known to the said Sally Florence and Mary Jane Jackson, and the said transfer to the said wives was without consideration. After all the purchase money had been paid, and after all the purchase-money notes had been taken up and canceled, Sally Florence Jackson and Mary Jane Jackson presented the bond for title to

Stovall & Few and demanded that a deed to the land be executed to them. Stovall & Few rightfully refused to do so, stating that they could not make a deed to said land to any one other than the ones to whom the bond for title was given. The plaintiffs had notified Stovall & Few of their interest in the land, and requested them not to make a deed to Sally Florence Jackson and Mary Jane Jackson, but demanded that they make a deed to petitioners to an undivided one-half interest in the land, which latter request Stovall & Few refused, and still refuse. In 1904 Fitzpatrick & Walton, of Morgan county, had an execution issued from the county court of Putnam county in favor of Fitzpatrick & Walton against Rufus and Oscar Jackson, and levied upon the land as the property of Rufus and Oscar Jackson. Sally Florence and Mary Jane Jackson filed a claim to the land, and the claim is now pending. Petitioners are afraid that, if a court of equity does not take charge of the case and decree a specific performance of the contract, Stovall & Few will make a deed and convey the land to Sally Florence and Mary Jane Jackson, or that Rufus Jackson and Oscar Jackson and Sally Florence and Mary Jane Jackson will transfer said bond to some other person, and petitioners will be left without a remedy. Rufus and Oscar Jackson and their wives are insolvent. Arch Jackson owed no debts at the time of his death which were not paid by his said heirs.

The prayers were, among other things, that Stovall & Few be required to execute a deed to the described land conveying one undivided one-half interest to petitioners, and conveying the other one undivided one-half interest to Rufus Jackson and Oscar Jackson; that all the other defendants, herein named as heirs of the said Arch Jackson, be required to come into court and set up their claim to the land, if any they have; that the plaintiffs have such other and further relief in the premises as equity may decree.

George & Anderson, for plaintiffs in error. Turner & Adams and M. C. Few, for defendants in error.

ATKINSON, J. Under the ruling of the court it is only necessary to consider whether or not the venue was properly laid in Morgan county. The case is an equitable cause, wherein it is sought to require the specific

performance of a contract for the sale of land, and in connection therewith to fix the rights of various parties relating thereto. It will be noticed that the only contending defendants are the widow, Ellen Jackson, and the two sons, Oscar Jackson and Rufus Jackson, with their wives, all of whom are shown to reside in the county of Putnam. These defendants contend that they are the only defendants against whom substantial relief is prayed, and for that reason the court of equity in Morgan county has not jurisdiction. The court, in dismissing the suit on demurrer, took this view of the case, and dismissed it upon the ground contended for. Our learned brother was in error. Stovall & Few, the vendors, were residents of Morgan county, were necessary parties, and substantial relief was prayed against them. They were the makers of the bond for title, and it was sought to require them to execute a deed to the plaintiffs. The defendants Sally Jackson, Henry Jackson, Elizabeth Thomas, and Fannie Williams resided in Morgan county, and they were likewise parties against whom substantial relief was prayed. It will be remembered that their father, Arch Jackson, was one of the purchasers of the land, and had paid a part of the purchase price, and the Morgan county heirs, who have just been named, entered into a contract with the plaintiffs in this case by which whatever interest they might have as heirs at law of Arch Jackson should go to the plaintiffs and the said Oscar and Rufus, provided they should pay the balance of the purchase price and thereby relieve the estate from the obligation. Stovall & Few would act at their peril if they attempted to convey the land to any of the heirs, unless all should become precluded by judgment or in some other way. Recognizing this, they were refusing to act until required to do so. The case is one peculiarly for equity jurisdiction, and in order to obtain complete relief the Morgan county defendants were necessary parties, and the relief against them was substantial. Under the familiar rule that a suit in equity may be brought in any county where a defendant resides against whom substantial relief is prayed, the venue of this case was properly laid in Morgan county. Civ. Code 1895, §§ 4950, 5871.

Judgment reversed. All the Justices con

cur.

(106 Va. 383)

NORFOLK & W. RY. CO. v. DENNY'S

ADM'R.

SAME V. EDWARDS' ADM'R. (Supreme Court of Appeals of Virginia. Jan. 17, 1907.)

1. COURTS-COMITY OF STATES.

An action to enforce a right given by statute of another state will be entertained; the statute not being contrary to the policy, or prejudicial to the interests, of the state in which the action is brought.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, §§ 18, 19; vol. 15, Death, § 50.]

2. EVIDENCE-PRESUMPTIONS-LAWS OF OTHER STATES-STATUTES-NECESSITY OF PLEADING.

The declaration, in an action for injury to persons on the track of a railroad in another state, need not allege that under the laws of that state it was the duty of the railroad company to do and perform the matters and things alleged to have been its duty in the premises; it being presumed that the laws of the two states on the subject are the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 101.]

3. TRIAL-INSTRUCTIONS-FACTS AND EVI

DENCE.

While employés of contractors for construction of a railroad were walking to their work on the track, they were killed by a train. In an action therefor against the railway company, the court instructed that if it was contemplated in the construction contract that the workmen should use the tracks in going to and from their work, or that such use was practically necessary, such use of the track did not constitute the employés trespassers or mere licensees, but they were there by invitation of the company. Held, that in the absence of evidence of the terms of the contract, or that such use of the track as a passway was necessary to the accomplishment of such work, or of evidence of anything more than that the track was a more convenient way of reaching the work, the giving of such instruction, the effect of which was to increase the duty of the company to the persons injured, if it was found that they were on the track by its invitation, was error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596–612.]

4. RAILROADS-INJURY TO PERSON ON TRACK -CONTRIBUTORY NEGLIGENCE.

On the question of the contributory negligence of one injured by a train while walking on a railroad track, it is material whether he was there as a trespasser or mere licensee, or by invitation of the company.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41. Railroads, §§ 1286-1318, 1220-1240, 1259, 1261, 1265, 1271, 1275-1284.]

5. SAME-LICENSEES-DUTY OF COMPANY.

As to licensees on a railroad track, where there is reason to expect their presence, it is the duty of persons in charge of a train to avoid injuring them after they see or know of their danger, or could have known of it by the exercise of reasonable care; but the company is not obliged to provide additional force to keep a proper lookout.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1236, 1237.]

6. SAME-DUTY OF PERSON ON TRACK.

A licensee on a railroad track must vigilantly look and listen for the approach of trains from the rear, as well as from in front.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1286, 1289.]

56 S.E.-21

"John R. Denny, administrator of James G. Denny, deceased, duly appointed and qualified as such under the laws of the state of Virginia, plaintiff, complains of Norfolk & Western Railway Company, a corporation, defendant, of a plea of trespass on the case, for this, to wit: That heretofore, to wit, on the 22d day of November, 1902, the defendant owned and operated a certain railway extending, in part, from Oakvale, in the state of West Virginia, to Wills, in said state, over and upon the track of which the defendant ran locomotive engines and trains of cars; that on, to wit, the date aforesaid, and for a long time, to wit, one year, prior thereto, on a portion of its said railway, to wit, that portion extending from said Oakvale to a point a considerable distance, to wit, three miles, east of said Oakvale, the said defendant caused to be conducted the repair of said railway and the construction of an additional track and other improve ments to its said railway, and in the conduct of said operations, on said date and during said period of time on said portion of said track, a large number of men, to wit, 200, were constantly employed by the contractors engaged in said work; and the said employés, while engaged in the discharge of their duties, and in going to and from their place of work and place of encampment, without objection from and with knowledge and acquiescence of, the defendant, constantly used the aforesaid portion of defendant's railway as a walkway, and by reason of the premises it became and was the duty of the defendant, and its agents and servants in charge and control of its locomotive engines and trains of cars, while operating and running such locomotive engine and trains of cars over the aforesaid portion of said defendant's railway, to keep a reasonable lookout for such of the aforesaid persons as might be walking on said railway, and to use reasonable care and prudence, in the operation and running of said locomotive engines and trains of cars, to avoid injuring them, and especially was it the duty of the said defendant, its said agents and servants, while operating and running its said trains backwards over said portion of said track to keep some person on the rear end of such train, whose duty it was especially to keep a lookout for persons who might be walking on said track, and to warn them in some reasonable and adequate manner of the approach of such backing train.

"And the plaintiff avers that the defendant, its agents and servants aforesaid, carelessly and negligently failed to discharge its aforesaid duties, and that on, to wit, the said 22d day of November, 1902, while the said James G. Denny, who was one of the men engaged in the operations of construction and repair as aforesaid, was walking on said portion of said railway, going from the place of his encampment to the place of his work, the defendant, and Its agents and servants in charge and control, carelessly and negligently ran a locomotive engine and trains of cars backward over said portion of said track, and carelessly and negligently failed to have any person on the rear end of said train to warn persons of its approach, as it was its duty to do as aforesaid, and carelessly and negligently failed to keep any reasonable lookout or to warn the said James G. Denny, in any reasonable or adequate manner of the approach of said train, and by reason of the carelessness and negligence of the said defendant, and its agents and servants aforesaid, the said train of cars and locomotive engine was run against, upon, and over the said James G. Denny, and he was thereby instantly killed.

"And the plaintiff avers that there was at the time of the death of the said decedent, James G. Denny, and still is, a statute of West Virginia, relative to the liability of persons and corporations for damages in case of injury by negligence causing death, substantially the same as the statute of Virginia upon the subject, which said statute of West Virginia is in the words and figures following, to wit:

"(5) Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damage in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.

64

'(6) Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased; provided, that every such action shall commence within

two years after the death of such deceased person.'

"2. And for this, also, to wit: That heretofore, to wit, on the 22d day of November, 1902, the said defendant owned and operated a certain railway extending, in part, from Oakvale, in the state of West Virginia, to Wills, in said state, over and upon the track of which the said defendant ran locomotive engines and trains of cars; that a large portion of the said railway, to wit, that por tion lying between Oakvale and a point a considerable distance, to wit, three miles, east thereof, was, on the date aforesaid and had been for a long time, to wit, one year, prior thereto, used by the public as a walkway without objections from, and with the knowledge and acquiescence of, the said defendant; and by reason of the premises it became and was the duty of the said defendant, and its agents and servants in charge and control of its locomotive engines and trains of cars, while operating and running such locomotive engines and trains of cars over the aforesaid portion of said defendant's railway, to keep a reasonable lookout for pedestrians walking along said portion of its railway, and to use reasonable care and prudence to avoid injurying them.

"And the said plaintiff avers that on, to wit, the date aforesaid, while the said James G. Denny was walking on and along said portion of said railway, at a point a considerable distance, to wit, one mile, east of said Oakvale, the said defendant, and its agents and servants in charge of, operating, and running the said defendant's locomotive engine and trains of cars eastwardly over said portion of said portion of said railway, carelessly and negligently failed to perform their duty as aforesaid, and carelessly and negligently ran the said engine and train of cars, against, upon, and over the said James G. Denny, and thereby instantly killed him.

"And the plaintiff avers that there was at the time of the death of the said decedent, James G. Denny, and still is, a statute of West Virginia, relative to the liability of persons and corporations for damages in case of injury by negligence causing death, substantially the same as the statute of Virginia, upon the subject, which said statute of West Virginia is in the words and figures following, to wit:

"(5) Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damage in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.