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THE NEW YORK SYSTEM OF PROCEDURE.
| in point of time. In order to see how closely the New
York Code has been followed, let us glance at one or two ITS THEORY, HISTORY AND PROGRESS IN THE UNITED
of the Codes of the various States before us. The Code
of California, in section 307, says: “There is in this STATES, ENGLAND AND INDIA.
State but one form of civil action for the enforcement (Concluded.)
or protection of private rights, and the redress or WE have now completed what we proposed should prevention of private wrongs." Section 421 reads: W constitute the first portion of our essay - the
“ The forms of pleading in civil actions, and the rules theory of the New York system of procedure. In by which the sufficiency of the pleadings is to be decomplete as our treatment of it has been, we have en termined, are those presoribed by this Code.” The deavored, after pointing out the general manner by pleadings are the same, excepting that no reply is prowhich all remedial law develops itself, to examine the vided for; while the modes of trial, proof and relief abuses which existed at the adoption of our Code, are analogous to those laid down in our Code. The and in what manner it was proposed to reform or re Code of Ohio begins by saying: “The distinction move them. We have shown, as a result of that inno between actions at law and suits in equity, and the vation, how the forms of actions and pleadings at forms of all such actions and suits, heretofore existcommon law were abolished, how the distinction be- | ing, are abolished, and in their place there shall be tween actions at law and suits in equity was obliterated, hereafter but one form of action, which shall be called and in their place was substituted the civil action, a civil action." Section 83 abolishes the forms of whereby there should be an uniform course of proced pleading in civil actions; and the Code itself preure in all cases, whether formerly of legal or equita scribes all rules for the determining of the sufficiency ble cognizance, or of both; and how finally all forms of pleadings. Those pleadings are — petition by plain- and proceedings were discarded which were not nec tiff, answer (or cross petition) or demurrer by the deessary to, or which prevented the ascertainment, en fendant, the demurrer or reply by the plaintiff, and, forcement and protection of civil rights. The per as with us, the pleadings close by a demurrer to the manent result of this reform, whether it has accom reply. As to the modes of trial, mode of proof and plished all the good results the orignators of the new mode of relief, the remark made in this connection system supposed would be incident to its adoption, concerning the California Code applies here. The and whether the arguments against the Code have in Code of Kentucky, after abolishing actions at law and reality any force, are topics we prefer to consider at suits in equity, and substituting in their place (section the close of our essay.
1) the civil action, says in section 3: “ The proceedings We have omitted, it will be seen, all consideration in a civil action may be of two kinds – 1, ordinary; 2, or even mention of many interesting matters, which equitable;” and in the next section we find “The we did not think strictly within the intent of the plaintiff may prosecute his action by equitable proframer of the subject of this essay, and consequently ceedings in all cases where courts of chancery, before have not felt justified in touching upon many radical the adoption of the Code, had jurisdiction, and must changes. For instance, no mention is made of the so proceed in all cases where such jurisdiction was exprovisions as to costs, the former theory of which was clusive.” The impression we might gather from this fundamentally altered, or of those as to the strict last section, that there was undoubted conflict between construction of the statute of limitations in allowing its provisions and those of section 1, and that the reno acknowledgment or promise to take the case out tention of law and equity proceedings would work the of the operation of this statute, unless in writing same harshness as of old, is corrected when we read signed by the party to be charged thereby. Want of section 7: “An error of the plaintiff as to the kind of space and of entire relevancy of these matters, fully proceedings adopted shall not cause the abatement or justified us, we believe, in excluding any such discus dismissal of the action, but merely a change into the sion which might have been considered foreign to the proper proceedings by an amendment in the pleadings, subject under consideration.
and a transfer to the proper docket.” Thus nominal The history of the New York system of procedure only is the distinction between law and equity procedin our own State has been sufficiently treated of while ure in Kentucky, and Iowa and Oregon, for the same discussing its theory, and we now proceed to speak of | rules, as with us, apply to the pleadings, proof and its history and progress in the United States, England judgment, only in one instance, the judge alone, in the and India. We shall endeavor, as opportunity offers other the judge and jury must determine the case. itself, to show that, while a general reform in our re After a careful examination of the Codes of the vamedial law, irrespective of any model, has made itself
rious States, we are prepared to state, that all the main felt in our country and in other lands, whenever that
reforms and changes introduced are modeled after reform has touched and effectually eradicated glaring and substantially correspond to those of our owu State. abuses and defects, the result had been made feasible
Proceeding with the history and progress of our by the great effort and success of the labors of the Code elsewhere than in our own country, we come, in men of our own State.
order of time, to the reform of procedure in India. The adoption of a Code in Kentucky closely fash- | The act to reform the remedial law of India was passed ioned after ours followed hard upon the adoption of by the legislative council of India in 1859; and subsethe New York Code. Ohio came next, and then In | quently, in 1861, it was largely amended. A hasty exdiana fell in line, until now substantially our own | amination of that act might fail to convince us that Code has been adopted in Alabama, California, Flor the reform there introduced was at all analogous to ida, Indiana, Iowa, Kansas, Kentucky, Minnesota, that adopted in our State; but a careful study will Missouri, Nebraska, Nevada, North Carolina, Ohio, show us that the course by which it proposes to decide Oregon, South Carolina and Wisconsin, and in the cases, not upon any technicality, but upon the merits, Territories of Arizona, Dacotah, Idaho, Montana, 18 not radically different from that pursued in the Washington and Wyoming, Wyoming heading the list | New York system of procedure. We have mentioned
that our commissioners, in their various reforms, were united and consolidated together, and shall constitute, guided by the mode of procedure in the courts of under and subject to the provisions of this act, one equity, and the act of India proceeds in the same Supreme Court of Judicature in England." The act way; and, keeping this fact in mind, we shall trace then treats of the jurisdiction and law of this high the resemblance between our Code and theirs. There court of justice, the sittings and jurisdiction of busiis under their Code but one form of action for the en ness, some very general provisions as to trial and proforcement of civil rights. Proceedings under this cedure, as to officers and offices, and as to the jurisaction are begun by Aling with the court a plaint diction of the inferior courts. This summary outlines which answers to our complaint. There is then issued the whole of the Supreme Court of Judicature act, by the court a summons to the defendant to appear and we see how similar it is to the first part of our before it personally, by agent or by pleader; and this Code, except as to the consolidation of courts, which summons states whether it is issued for the settlement for us was effected by the constitution of 1846. The of issues, or for the final disposal of the suit. On the act of 1875 contains one provision which in its effect is return day of the summons, the defendant states his similar to section 7 of the Kentucky Code, that the defense, and the court decides the controversy. But if | incorrect assignment of a cause to any division of the the court shall require written statements, they shall High Court shall only necessitate a transfer to the be produced, made as brief as the nature of the case correct division. Under the head of jurisdiction and will admit, and (what at first will strike us as peculiar) law, it is provided that law and equity shall be conthey shall not be argumentative, nor by way of an currently administered, and plaintiffs may be entitled swer one to the other, but each shall be a simple nar to relief, and defendants allowed defense on equitable rative, setting forth what each person believes to be
grounds in the new court, just as before in the Court material to the case, and which he believes he will be of Chancery. This act, it will be seen, lays down only able to prove it called upon by the court. The pro the general principles and outlines of the reformed duction of the old issue at common law, or of one
system, prescribing how the new High Court shall be analogous to that provided for in our Code, is quite created out of the materials of the several existing lost sight of; but the selection and separation of all courts with as little change as possible. For the deissues of law and fact shall be made by the court. tails of practice and pleading we must look to the
It we pursue our examination further, we shall see rules of the court, which are arranged in a schedule, why this is so. Formerly the production of an issue and made part of the act. Here we meet at the outby the pleadings, and thus the preparation of the case set with a virtual re-enactment of section 69 of our for a decision was thought necessary or feasible only Code: “ All actions which have heretofore been comwhere the trial was by jury. Now nowhere in this act menced by writ in the superior courts of common do we find mention of the trial by jury; for we can law at Westminster, or in the Court of Common Pleas readily understand how, in a country like India, its
| at Lancaster, or in the Court of Pleas at Durham, and
at Lancaster, or in the existence would be almost an impossibility. Few na all suits which have hitherto been commenced by bill tives would be competent to sit as jurymen; and the l or information in the High Court of Chancery, or by selection of twelve foreigners would be a matter of
a cause in rem, or in personam in the High Court of difficulty, and would hardly accord with that grand old Admiralty, or by citation or otherwise in the Court principle of our common law, which allowed one from of Probate, shall be instituted in the High Court of toreigu lands to be tried by at least six of his own | Justice by a proceeding to be termed an action." countrymen. So we believe the framers of the Indian This action is to be commenced by a writ of sumCode were sensible in making no provision for trials mons, which shall contain an indorsement of the claim by juries, but we are convinced that the adoption of made. The conservative judges here, clinging to traour rules as to pleadings would have facilitated the dition, provide that the summons shall be in the form submission, trial and decision of the case. The mode of a writ which, when signed by the plaintiff or his of proof under the civil action which exists in India solicitor, and sealed by the proper officer, shall be is not radically different from that which obtains in deemed to be issued; but what a mere matter of form our State, while the judgment it can enforce is similar this attesting will be in the course of time we know to ours.
from the history of original writs, and the example of The adoption of the reformed system of procedure subpoenas in our courts. But one form of summons is in England, of which we shall now speak, was in reality required, and here we take the opportunity to note the result of a long and critical investigation made by the difference between this rule and that of the Code & royal commission, consisting of the ablest jurists of of our State. Exactly why we, in this state, should the kingdom. Upon the report of that commission have virtually two summous, one for money demand the Supreme Court of Judicature act was passed in on contract, and the other for relief, our study of the 1873, and underwent some change by the amendments subject has failed to show us. That the lines of disof 1875, in which last year it was adopted, or rather tinction between them are not always clearly drawn, went into force. Here we shall be able to see more we gather from an annotated Code before us, where, readily than in India the direct and unmistakable in- | | in more than fifty-five reported cases, the use of the fluence of the New York Code.
correct summons was a matter of dispute. A failure In section 3 of part I, we read: “From and after to choose the proper one, it is true, works no such the time appointed for the commencement of this act, | injustice as the abatement or dismissal of the action; the several courts hereinafter mentioned (that is to but when we remember that it often entails on the say), the High Court of Chancery of England, the plaintiff the payment of costs, and that one form of Court of Queen's Bench, the Court of Common Pleas summons would convey to the defendant as much at Westminster, the Court of Exchequer, the High information as is now obtained by the use of two, aud Court of Admiralty, the Court of Admiralty, the Court that the provisions are so ample for securing the comof Probate, the Court for Divorce and Matrimonial plaint by having it filed, or compelling service of a Cases, and the London Court of Bankruptcy, shall be copy of it, it seems hardly reasonable that we ought to retain what, to us, appears to a certain extent a mere of frauds was a mistake, since it is acknowledged that arbitrary form. To proceed, however, after service of the interpretation of every word of it has cost a subthe summons, which by the way is not a duty of the sidy. Such reasoning may avail one in petty disputes, court, but may be made by any one capable of reading but it can scarcely interest us. Those who maintain and making au affidavit of such service, the defendant, this position remind us of those who inveigh against unless he expressly waives the right, is entitled to a religion when some professor of it, forgetting its duties statement of the plaintiff's complaint and of the relief and commands, is fouud guilty of culpable neglect or or remedy to which he claims to be entitled. The wrongful acts, but they willfully disregard all the defendant then is required to deliver to the plaintiff a influence for good and truth which that religion statement of his defeuse, set-off, or counter-claim; exerts, the noble thoughts and deeds which spring into and the plaintiff is allowed to reply to the same. The being through its ministration, but are passed by unnoplea in abatement no longer exists, but the demurrer | ticed. When that religion, despite these strictures, has substantially supplies its place. Each pleading must gone on in its development, till a nation purified by its contain, in as concise language as possible, the material teachings awakes to new life and activity, and stands allegations upon which the party pleading relies. The a living monument of its regenerating power, these system of pleading here introduced is substantially objectors and objections are lost to view. So not the that of the old Court of Chancery and of our Code, adjudicated cases upon the Code and the statute of with this important qualification, that no provision is frauds concern us, as much as what those measures made for the verification or even signature of the have done for the upbuilding of our institutions of pleadings, but they are simply to be made by the justice, and for the inauguration of a new era of solicitor, or agent, or the party himself appearing, enlightened jurisprudence. with the name and place of business of such person.
“What's done we partly may compute, As to the mode of trial, the trial by jury is in reality a
But know not what's resisted." thing of the past, and can no longer be secured unless In this liberal spirit must we criticise our system of by request of the defendant. It is, strange to say, in procedure. We must remember that the early opinions no sense optional with the plaintiff. As to the mode of our judges were in many cases erroneous. They of proof, an action for discovery alone, with all the had grown up under the old system of procedure, had cumbrousness of the old bill of discovery, can be practiced and administered law under it until it bemaintained, and there seems to be no direct provision came impossible for them to realize the sudden that the answer to the interrogatories shall be made sweeping changes which the legislature intended to under oath; but remembering that the rules begin by make; and their inability to fully appreciate the prosaying that “Where no other provision is made by visions of the Code arose, too, from their opposition to the act or these rules, the present procedure and prac its enforcement, and led them in every passible manner tice remain in force," we presume that is implied. As to bring forward obstacles to the progress of the new to relief, substantially the same rules obtain as to reform. Let any one who doubts the truth of this parties as with us, and hence a similar judgment can remark read some of the early cases, decided after the be enforced.
adoption of our Code – those of Shaw v. Jayne, Boyce We shall not attempt a comparison of the merits of v. Brown, Alger v. Scoville - and he will be convinced this system with our own. Where it is similar, and that we have made no misstatement. Outside of these the similarity is patent everywhere, our Code seems to cases we have been able to find no extended attack have been the model after which this act was fashioned. upon our Code, except that set forth in a somewhat Much of the old cumbrousness, it strikes us, still re- | lengthy argument, published by Mr. W. H. Green in mains. For instance, what possible reason can there 1867; and we read his work conscientiously, in order, if be for allowing an actiou for discovery alone to be possible, to discover in what particulars the commismaintained, when in the 17 and 18 Victoria, c. 125, $ 51, sioners had failed in their efforts. We were unable, it was permitted in courts of law to enforce discovery however, to find one good reason adduced for restoring from the plaintiff or defendant just as with us, except the old regime, but we did meet many misstatements, that the examination must be in writing! It seems | which we must charitably suppose were made from an strange that the English could not have appreciated incomplete mastery of the subject he was handling. in this particular, and in other matters, the much sim In speaking of the principles which underlie the pler methods enforced by our Code.
development of the law, he fails to appreciate even Our work is now completed; and with a few words the Roman formula system, and when he enumerates as to the result of the reformed system in this State, facts he meets with no better success, for when he we shall dismiss our subject. We do not propose to | states that in 1834 the English reformed their procedmake any examination of the arguments, familiar to ure, he gives one, unacquainted with that reform, an every tyro, urged against all codification. The
incorrect idea of its object, and in mentioning that strongest one is, that law being in its nature elastic
they were returning to the simplicity of the common and bounding, cannot be hemmed in by any limita- law as respects pleading, he neglects to state, that as tions which strict language necessarily imposes. But early as 1851, a commission of the first lawyers of that argument is equally strong when applied to all England pronounced in favor of an abolition of the statutes, and while we continue to have legislatures | old forms of action. After distributing parallel reaenact laws for our benefit, with acknowledged success, sous through a pamphlet of one hundred and sixty this objection to codification can never be very forci pages, with a rather unsuccessful invocation of the ble. The objectors to the reformed system point to muse of Shakespeare, Mr. Green brings his labored the fifty or sixty volumes of practice reports, which effort to a close. are filled with eases containing adjudication upon our But despite these petty attacks and oppositions of lawCode, and assume that it has consequently failed in its yers and judges, the Code has worked its way steadily mission. The same class of objectors, if they be con- into favor, not only in our State, but all over this sistent, must contend that the passage of the statute ' country, in England, and in India.
We confess to an admiration for our system of proced- power of the counties to subscribe, or the privilege of ure. We have endeavored to describe the state of the company of receiving subscriptions, was decided our law when the commissioners began their work, and in the case of The State v. Greene County, 54 Mo. 540. how futile had been all attempts to accommodate it to | In that case the Kansas City, Galveston and Lake the demands of the times; and, with a full appreciation Superior Railroad Company was chartered in 1857, of this, we can imagine the thoughtfulness and ability with power to construct a branch road from Kansas which guided the deliberations of these gifted men and City to the southern boundary of the State; and accomplished jurists. Of Mr. Field we have already power was given to the county courts of any county made mention, and we believe we have spoken with a through which the road or any of its branches might due recognition and appreciation of the labors of run to subscribe to the stock of the company and issue Messrs. Graham and Loomis, when we accorded to its bonds therefor. The company afterward changed him the greatest share of honor for the noble pro its name, and, in 1870, consolidated with the Hannibal duction of this commission. All, however, are en- and St. Joseph Railroad Company; and the latter titled to our praise and admiration, for though the company continued the work of constructing the genius of the work belongs peculiarly to Mr. Field, branch road referred to, which had been begun by still the others contributed their experience and lent the Kansas City Company. The branch was built their honored names to a new and untried system of under a separate organization created by the parent law whose reception was certain to be unfavorable at company, called the Kansas City and Memphis Railfirst by a profession which draws much of its inspira- road Company, but under the control and with the tion from tradition. One of them was the editor of aid of the parent company. The county court of a work on Practice, which was then the only authori Greene county, in 1870, subscribed to the capital stock tative work upon the subject; yet all these men, of the Hannibal and St. Joseph Railroad Company, regardless of their individual interests, truly guided issued to aid in building and equipping the branch by this noble passage of Hallam: “Let us not be road, which ran through the county. The Supreme deterred by a clamor against innovation from abro Court of Missouri decided that the subscription was gating what is useless, simplifying the complex, or valid; and that the power to subscribe, originally determining what is doubtful, nor attempt to stave given, still subsisted unaffected by the consolidation. off an immediate pressing difficulty by a patch-work The cases decided by this court, of The Philadelphia scheme of modifications and suspensions, but let us and Wilmington R. R. Co. v. Maryland, 10 How. 376, consult for posterity in a comprehensive spirit of and Tomlinson v. Branch, 15 Wall. 460, were cited and legal philosophy.".
relied on for the purpose of showing that where a conThe spirit, if not the language, of this author has solidation is effected between two railroad companies, impressed itself upon the system we have to-day; and and nothing to the contrary is indicated, the rights our law is stripped of its grosser abuses. Advocates and privileges, as well as the duties and liabilities of and judges no longer grope in a labyrinth of techni- each, continue to exist as before in the hands of the cality, or deal with the clumsy machinery of the old new organization. It seems to us that this decision procedure, but they are now in a position to use all in the Greene county case governs the present case. It reasonable and sensible means for the decision of cases is true the court laid considerable stress on the fact upon their merits. Suitors need no longer be deterred that the brauch road in that case was a distinct interfrom an ascertainment of their rights, by the fear of est from that of the main line, and was not liable for endless litigation, and men have become less willing its obligations or liabilities; and the holders of the to commit wrongs when they recognize that their stock in the branch road had the right to control its redress will be speedy and effectual. The labors of affairs, and this feature was not changed by the conthe commissioners uncovered the hidden beauty and solidation. This fact, undoubtedly, prevents the case symmetry of our common law; the husk has been from being an exact precedent for the present one. removed; the full-grown man has laid aside the rent, But the close aud intimate relations which in other patched clothing of his childhood days, which impeded respects connected the branch with the main line in his freedom of action and development. Other inno that case, give to the decision a good deal of imporvations and changes will doubtless be necessary in the tance. The principles adopted were substantially the years to come, but it is a source of great gratification same as those involved in the present case. The facts to know that the men of our own State have laid down are not very fully stated in the report, but it would and elaborated the principle, by which every such appear from the statement of the dissenting judge (p. reform must in future proceed.
557) that the stock subscribed for in that case was the stock of the Hannibal and St. Joseph Railroad Com
pany. As such, though it may have been special stock EFFECT OF CONSOLIDATION OF RAILWAY
applicable to the branch road, it made the holder a CORPORATIONS UPON MUNICIPAL SUB
member of the parent company entitled to vote for its SCRIPTIONS TO STOCK.
directors, and no doubt in other ways connected with IN the case of County of Scotland, plaintiff in error, v. its fortunes. T Thomas, decided at the recent term of the United In that case, as in this, the power to consolidate was States Supreme Court, the question arose whether given after the original charter was granted, and after legislative authority given to counties and towns the constitution went into effect. But that was not to subscribe to the capital stock of a specified rail regarded as affecting the power. By general laws of road corporation and to issue its bonds therefor the State, in force when the original charter was was extinguished by the subsequent consolidation of granted, the legislature had reserved the power to that corporation with other corporations. The case alter, suspend, and repeal all charters of incorporaarose in Missouri, the plaintiff in error being a county tion, and had specially reserved this power in the in that State. The court says that simple consolida- general railroad act. (See Revised Statutes of Mo. tion with another company does not extinguish the | 1855, pp. 371, 438.) It would seem clear, therefore, that alterations of the charter were admissible, and would subscription after the consolidation without consulting not affect rights of the company untouched thereby, their principals. Such a material change of circumnor a power to subscribe to its stock previously existing. stances would have rendered the subscription an excess (See Callaway Co. v. Foster, decided by this court in the of the power given to them. Authority given to a present term.)
person to be exercised for his own benefit and at his The power to amend thus existing, the amending own discretion may be exercised by him under changes acts in this case do not subvert the original purposes of circumstances that would amount to a revocation of the charter, but rather carry them out and perfect of a power given to an attorney, unless it expressly them. The railroad authorized by it was “a railroad conferred discretion. A recurrence to the opinion in from the city of Alexandria, in the county of Clark, in the Harshman case will show that this distinction the direction of Bloomfield, in the State of Iowa, to underlies the reasons given for the judgment in that such point on the northern boundary line of the State case. The county court of Scotland county, in the of Missouri as shall be agreed upon by said company, present case, acted as the representative authority of and a company authorized on the part of the State of the county itself, officially invested with all the discreIowa, to construct a railroad to intersect the road tion necessary to be exercised under the change of authorized to be constructed by the provisions of this circumstances brought about by the consolidation aot, at the most practicable point on said State line." | in question. For, as before remarked, the county Bloomfield was a small town in Iowa, evidently not courts in reference to the subscription in question intended as the final objective point of the proposed represented the counties themselves as their officially line, which is only required to be “in the direction of constituted authorities. This is distinctly stated by Bloomfield.” A connection with a continuous road in the Supreme Court of Missouri in the case of The Iowa was the declared object of the road proposed. It | Hannibal and St. Jo. R. R. Co. v. Marion County, 36 was evidently the purpose to bring Alexandria, a port Mo. 303. The power given to the county courts of Missouri on the Mississippi river, in connection intersected by the Alexandria and Bloomfield railroad with the rich region of southern and western Iowa by to subscribe to its stock, was given to them as repremeans of the road then being chartered, and a road to senting the counties. When they subscribed for the connect therewith running into the State of Iowa. | stock, it was the county that subscribed. It was disThis purpose will be most effectually attained by the cretionary with them whether to subscribe or not, and construction of the continuous line contemplated by (within the limits imposed by the act) how much they the consolidated companies. The genoral direction of should subscribe. the road is not changed. It does not pass through But the case has other aspects which it is necessary Bloomfield it is true; but it does not pass it by so far to take into consideration. If we look at the subject as to be a substantial departure from the route origi in a broad and general view, it will be still more maninally indicated. The amending act, therefore, which fest that the power in question was intended to exist authorized a consolidation with the Iowa Southern notwithstanding the consolidation. The project of Railway Company and thereby constituted the Mis the railroad promised a great public improvement, souri, Iowa and Nebraska Railway Company, was in conducive to the interests of Alexandria and the perfect accord with the general purpose of the original counties through which it would pass. Its construccharter of the Alexandria and Bloomfield Railroad tion, however, would greatly depend upon the local Company; and if the other rights and privileges of aid and encouragement it might receive. The interests the latter company passed over to the cousolidated of its projectors and of the country it was to traverse company, we do not see why the privilege in ques were regarded as mutual. The power of the adjacent tion should not do so; nor why the power given to counties and towns to subscribe to its stock as a means the county to subscribe to the stock should not cou of securing its construction was desired not only by tinue in force.
the company but by the inhabitants. Whether the The decision of this court in the case of Harshman policy was a wise one or not is uot now the question. y. Bates County, 92 U. S. 569, is urged against this It was in accordance with the public sentiment of that view of the case. But we do not think it applicable. period. The power was sought at the hands of the In that case the question was, whether authority given legislature, and was given. It was relied on by those to the county court by the electors of a township to who subscribed their private funds to the enterprise. subscribe in its behalf for stock in a certain railroad | It was involved in the general scheme as an integral company, continued to exist after the company had l part of it, and as much contributory and necessary to ceased to exist by being absorbed in another company its success as the prospective right to take tolls. Why by consolidation? We held that it did not. The it should not still attach to this portion of the road, county court was regarded as being the mere agent as one of the rights and privileges belonging to it, into of the township, having no discretion to act beyond whose hands soever it comes by consolidation or otherthe precise terms of the power given. The powers of wise, it is difficult to see. The principles laid dowu in an agent or attorney, authorized to act for another, are the case of The Philadelphia, Wilmington and Baltimore very different from those possessed by a person acting R. R. Co. v. Maryland, 10 How. 376, and Tomlinson v. in his own behalf. Had the charter of the Alexandria Branch, 15 Wall. 460, and recently reaffirmed in Branch
field Railroad Company authorized foreign | v. City of Charleston, 92 U.S. 677, seem to us directly apcorporations to subscribe to its stock (supposing that plicable. Subscription to the stock was not only a power by the general law of Missouri they had no such of the county, but a privilege of the company – being power) they would undoubtedly have retained that a portion of the rights and privileges which it obtained power after the consolidation; it being in their dis-by translation from the charter of the North Missouri cretion to exercise it or not. But if any such foreign Railroad Company. It was expressly so held by the corporation had, before the consolidation, sent an order Supreme Court of Missouri in the case of Smith v. to a firm in St. Louis to subscribe stock for it in the County of Clark, 54 Mo. 58; and the same principle had original company, the firm could not have made the I been adopted in the earlier case of The Hannibal and