THE NEW YORK SYSTEM OF PROCEDURE.

ITS THEORY, HISTORY AND PROGRESS IN THE UNITED STATES, ENGLAND AND INDIA.

WE

(Concluded.)

E have now completed what we proposed should constitute the first portion of our essay-the theory of the New York system of procedure. Incomplete as our treatment of it has been, we have endeavored, after pointing out the general manner by which all remedial law develops itself, to examine the abuses which existed at the adoption of our Code, and in what manner it was proposed to reform or remove them. We have shown, as a result of that innovation, how the forms of actions and pleadings at common law were abolished, how the distinction between actions at law and suits in equity was obliterated, and in their place was substituted the civil action, whereby there should be an uniform course of procedure in all cases, whether formerly of legal or equitable cognizance, or of both; and how finally all forms and proceedings were discarded which were not necessary to, or which prevented the ascertainment, enforcement and protection of civil rights. The permanent result of this reform, whether it has accomplished all the good results the orignators of the new system supposed would be incident to its adoption, and whether the arguments against the Code have in reality any force, are topics we prefer to consider at the close of our essay.

We have omitted, it will be seen, all consideration or even mention of many interesting matters, which we did not think strictly within the intent of the framer of the subject of this essay, and consequently have not felt justified in touching upon many radical changes. For instance, no mention is made of the provisions as to costs, the former theory of which was fundamentally altered, or of those as to the strict construction of the statute of limitations in allowing no acknowledgment or promise to take the case out of the operation of this statute, unless in writing signed by the party to be charged thereby. Want of space and of entire relevancy of these matters, fully justified us, we believe, in excluding any such discussion which might have been considered foreign to the subject under consideration.

The history of the New York system of procedure in our own State has been sufficiently treated of while discussing its theory, and we now proceed to speak of its history and progress in the United States, England and India. We shall endeavor, as opportunity offers itself, to show that, while a general reform in our remedial law, irrespective of any model, has made itself felt in our country and in other lands, whenever that reform has touched and effectually eradicated glaring abuses and defects, the result had been made feasible by the great effort and success of the labors of the men of our own State.

The adoption of a Code in Kentucky closely fashioned after ours followed hard upon the adoption of the New York Code. Ohio came next, and then Indiana fell in line, until now substantially our own Code has been adopted in Alabama, California, Florida, Indiana, Iowa, Kansas, Kentucky, Minnesota, Missouri, Nebraska, Nevada, North Carolina, Ohio, Oregon, South Carolina and Wisconsin, and in the Territories of Arizona, Dacotah, Idaho, Montana, Washington and Wyoming, Wyoming heading the list

in point of time. In order to see how closely the New York Code has been followed, let us glance at one or two of the Codes of the various States before us. The Code of California, in section 307, says: "There is in this State but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs." Section 421 reads: "The forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this Code." The pleadings are the same, excepting that no reply is provided for; while the modes of trial, proof and relief are analogous to those laid down in our Code. The Code of Ohio begins by saying: "The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished, and in their place there shall be hereafter but one form of action, which shall be called a civil action." Section 83 abolishes the forms of pleading in civil actions; and the Code itself prescribes all rules for the determining of the sufficiency of pleadings. Those pleadings are― petition by plaintiff, answer (or cross petition) or demurrer by the defendant, the demurrer or reply by the plaintiff, and, as with us, the pleadings close by a demurrer to the reply. As to the modes of trial, mode of proof and mode of relief, the remark made in this connection concerning the California Code applies here. The Code of Kentucky, after abolishing actions at law and suits in equity, and substituting in their place (section 1) the civil action, says in section 3: "The proceedings in a civil action may be of two kinds -1, ordinary; 2, equitable;" and in the next section we find "The plaintiff may prosecute his action by equitable proceedings in all cases where courts of chancery, before the adoption of the Code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive." The impression we might gather from this last section, that there was undoubted conflict between its provisions and those of section 1, and that the retention of law and equity proceedings would work the same harshness as of old, is corrected when we read section 7: "An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings, and a transfer to the proper docket." Thus nominal only is the distinction between law and equity procedure in Kentucky, and Iowa and Oregon, for the same rules, as with us, apply to the pleadings, proof and judgment, only in one instance, the judge alone, in the other the judge and jury must determine the case. After a careful examination of the Codes of the various States, we are prepared to state, that all the main reforms and changes introduced are modeled after and substantially correspond to those of our own State.

Proceeding with the history and progress of our Code elsewhere than in our own country, we come, in order of time, to the reform of procedure in India. The act to reform the remedial law of India was passed by the legislative council of India in 1859; and subsequently, in 1861, it was largely amended. A hasty examination of that act might fail to convince us that the reform there introduced was at all analogous to that adopted in our State; but a careful study will show us that the course by which it proposes to decide cases, not upon any technicality, but upon the merits, is not radically different from that pursued in the New York system of procedure. We have mentioned

that our commissioners, in their various reforms, were guided by the mode of procedure in the courts of equity, and the act of India proceeds in the same way; and, keeping this fact in mind, we shall trace the resemblance between our Code and theirs. There is under their Code but one form of action for the enforcement of civil rights. Proceedings under this action are begun by filing with the court a plaint which answers to our complaint. There is then issued by the court a summons to the defendant to appear before it personally, by agent or by pleader; and this summons states whether it is issued for the settlement of issues, or for the final disposal of the suit. On the return day of the summons, the defendant states his defense, and the court decides the controversy. But if the court shall require written statements, they shall be produced, made as brief as the nature of the case will admit, and (what at first will strike us as peculiar) they shall not be argumentative, nor by way of answer one to the other, but each shall be a simple narrative, setting forth what each person believes to be material to the case, and which he believes he will be able to prove if called upon by the court. The production of the old issue at common law, or of one analogous to that provided for in our Code, is quite lost sight of; but the selection and separation of all issues of law and fact shall be made by the court.

If we pursue our examination further, we shall see why this is so. Formerly the production of an issue by the pleadings, and thus the preparation of the case for a decision was thought necessary or feasible only where the trial was by jury. Now nowhere in this act do we find mention of the trial by jury; for we can readily understand how, in a country like India, its existence would be almost an impossibility. Few natives would be competent to sit as jurymeu; and the selection of twelve foreigners would be a matter of difficulty, and would hardly accord with that grand old principle of our common law, which allowed one from foreign lands to be tried by at least six of his own countrymen. So we believe the framers of the Indian Code were sensible in making no provision for trials by juries, but we are convinced that the adoption of our rules as to pleadings would have facilitated the submission, trial and decision of the case. The mode of proof under the civil action which exists in India is not radically different from that which obtains in our State, while the judgment it can enforce is similar to ours.

The adoption of the reformed system of procedure in England, of which we shall now speak, was in reality the result of a long and critical investigation made by a royal commission, consisting of the ablest jurists of the kingdom. Upon the report of that commission the Supreme Court of Judicature act was passed in 1873, and underwent some change by the amendments of 1875, in which last year it was adopted, or rather went into force. Here we shall be able to see more readily than in India the direct and unmistakable influence of the New York Code.

In section 3 of part I, we read: "From and after the time appointed for the commencement of this act, the several courts hereinafter mentioned (that is to say), the High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Cases, and the London Court of Bankruptcy, shall be

united and consolidated together, and shall constitute, under and subject to the provisions of this act, one Supreme Court of Judicature in England." The act then treats of the jurisdiction and law of this high court of justice, the sittings and jurisdiction of business, some very general provisions as to trial and procedure, as to officers and offices, and as to the jurisdiction of the inferior courts. This summary outlines the whole of the Supreme Court of Judicature act, and we see how similar it is to the first part of our Code, except as to the consolidation of courts, which for us was effected by the constitution of 1846. The act of 1875 contains one provision which in its effect is similar to section 7 of the Kentucky Code, that the incorrect assignment of a cause to any division of the High Court shall only necessitate a transfer to the correct division. Under the head of jurisdiction and law, it is provided that law and equity shall be concurrently administered, and plaintiffs may be entitled to relief, and defendants allowed defense on equitable grounds in the new court, just as before in the Court of Chancery. This act, it will be seen, lays down only the general principles and outlines of the reformed system, prescribing how the new High Court shall be created out of the materials of the several existing courts with as little change as possible. For the details of practice and pleading we must look to the rules of the court, which are arranged in a schedule, and made part of the act. Here we meet at the outset with a virtual re-enactment of section 69 of our Code: "All actions which have heretofore been commenced by writ in the superior courts of common law at Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits which have hitherto been commenced by bill or information in the High Court of Chancery, or by a cause in rem, or in personam in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall be instituted in the High Court of Justice by a proceeding to be termed an action."

This action is to be commenced by a writ of summons, which shall contain an indorsement of the claim made. The conservative judges here, clinging to tradition, provide that the summons shall be in the form of a writ which, when signed by the plaintiff or his solicitor, and sealed by the proper officer, shall be deemed to be issued; but what a mere matter of form this attesting will be in the course of time we know from the history of original writs, and the example of subpoenas in our courts. But one form of summons is required, and here we take the opportunity to note the difference between this rule and that of the Code of our State. Exactly why we, in this State, should have virtually two summous, one for money demand on contract, and the other for relief, our study of the subject has failed to show us. That the lines of distinction between them are not always clearly drawn, we gather from an annotated Code before us, where, in more than fifty-five reported cases, the use of the correct summons was a matter of dispute. A failure to choose the proper one, it is true, works no such injustice as the abatement or dismissal of the action; but when we remember that it often entails on the plaintiff the payment of costs, and that one form of summons would convey to the defendant as much information as is now obtained by the use of two, and that the provisions are so ample for securing the complaint by having it filed, or compelling service of a copy of it, it seems hardly reasonable that we ought to

retain what, to us, appears to a certain extent a mere arbitrary form. To proceed, however, after service of the summons, which by the way is not a duty of the court, but may be made by any one capable of reading and making an affidavit of such service, the defendant, unless he expressly waives the right, is entitled to a statement of the plaintiff's complaint and of the relief or remedy to which he claims to be entitled. The defendant then is required to deliver to the plaintiff a statement of his defense, set-off, or counter-claim; and the plaintiff is allowed to reply to the same. The plea in abatement no longer exists, but the demurrer substantially supplies its place. Each pleading must contain, in as concise language as possible, the material allegatious upon which the party pleading relies. The system of pleading here introduced is substantially that of the old Court of Chancery and of our Code, with this important qualification, that no provision is made for the verification or even signature of the pleadings, but they are simply to be made by the solicitor, or agent, or the party himself appearing, with the name and place of business of such person. As to the mode of trial, the trial by jury is in reality a thing of the past, and can no longer be secured unless by request of the defendant. It is, strange to say, in no sense optional with the plaintiff. As to the mode of proof, an action for discovery alone, with all the cumbrousness of the old bill of discovery, can be maintained, and there seems to be no direct provision that the answer to the interrogatories shall be made under oath; but remembering that the rules begin by saying that 'Where no other provision is made by the act or these rules, the present procedure and practice remain in force," we presume that is implied. As to relief, substantially the same rules obtain as to parties as with us, and hence a similar judgment can be enforced.

We shall not attempt a comparison of the merits of this system with our own. Where it is similar, and the similarity is patent everywhere, our Code seems to have been the model after which this act was fashioned. Much of the old cumbrousness, it strikes us, still remains. For instance, what possible reason can there be for allowing an action for discovery alone to be maintained, when in the 17 and 18 Victoria, c. 125, § 51, it was permitted in courts of law to enforce discovery from the plaintiff or defendant just as with us, except that the examination must be in writing! It seems strange that the English could not have appreciated in this particular, and in other matters, the much simpler methods enforced by our Code.

Our work is now completed; and with a few words as to the result of the reformed system in this State, we shall dismiss our subject. We do not propose to make any examination of the arguments, familiar to every tyro, urged against all codification. The strongest one is, that law being in its nature elastic and bounding, cannot be hemmed in by any limitations which strict language necessarily imposes. But that argument is equally strong when applied to all statutes, and while we continue to have legislatures enact laws for our benefit, with acknowledged success, this objection to codification can never be very forcible. The objectors to the reformed system point to the fifty or sixty volumes of practice reports, which are filled with eases containing adjudication upon our Code, and assume that it has consequently failed in its mission. The same class of objectors, if they be consistent, must contend that the passage of the statute

of frauds was a mistake, since it is acknowledged that the interpretation of every word of it has cost a subsidy. Such reasoning may avail one in petty disputes, but it can scarcely interest us. Those who maintain this position remind us of those who inveigh against religion when some professor of it, forgetting its duties and commands, is found guilty of culpable neglect or wrongful acts, but they willfully disregard all the influence for good and truth which that religion exerts, the noble thoughts and deeds which spring into being through its ministration, but are passed by unuoticed. When that religion, despite these strictures, has gone on in its development, till a nation purified by its teachings awakes to new life and activity, and stands a living monument of its regenerating power, these objectors and objections are lost to view. So not the adjudicated cases upon the Code and the statute of frauds concern us, as much as what those measures have done for the upbuilding of our institutions of justice, and for the inauguration of a new era of enlightened jurisprudence.

"What's done we partly may compute,

But know not what's resisted."

In this liberal spirit must we criticise our system of procedure. We must remember that the early opinions of our judges were in many cases erroneous. They had grown up under the old system of procedure, had practiced and administered law under it until it became impossible for them to realize the sudden sweeping changes which the legislature intended to make; and their inability to fully appreciate the provisions of the Code arose, too, from their opposition to its enforcement, and led them in every possible manner to bring forward obstacles to the progress of the new reform, Let any one who doubts the truth of this remark read some of the early cases, decided after the adoption of our Code - those of Shaw v. Jayne, Boyce v. Brown, Alger v. Scoville - and he will be convinced that we have made no misstatement. Outside of these cases we have been able to find no extended attack upon our Code, except that set forth in a somewhat lengthy argument, published by Mr. W. H. Green in 1867; and we read his work conscientiously, in order, if possible, to discover in what particulars the commissioners had failed in their efforts. We were unable, however, to find one good reason adduced for restoring the old regime, but we did meet many misstatements, which we must charitably suppose were made from an incomplete mastery of the subject he was handling. In speaking of the principles which underlie the development of the law, he fails to appreciate even the Roman formula system, and when he enumerates facts he meets with no better success, for when he states that in 1834 the English reformed their procedure, he gives one, unacquainted with that reform, an incorrect idea of its object, and in mentioning that they were returning to the simplicity of the common law as respects pleading, he neglects to state, that as early as 1851, a commission of the first lawyers of England pronounced in favor of an abolition of the old forms of action. After distributing parallel reasons through a pamphlet of one hundred and sixty pages, with a rather unsuccessful invocation of the muse of Shakespeare, Mr. Green brings his labored effort to a close.

But despite these petty attacks and oppositions of lawyers and judges, the Code has worked its way steadily into favor, not only in our State, but all over this country, in England, and in India.

We confess to an admiration for our system of proced

ure.

We have endeavored to describe the state of our law when the commissioners began their work, and how futile had been all attempts to accommodate it to the demands of the times; and, with a full appreciation of this, we can imagine the thoughtfulness and ability which guided the deliberations of these gifted men and accomplished jurists. Of Mr. Field we have already made mention, and we believe we have spoken with a due recognition and appreciation of the labors of Messrs. Graham and Loomis, when we accorded to him the greatest share of honor for the noble production of this commission. All, however, are entitled to our praise and admiration, for though the genius of the work belongs peculiarly to Mr. Field, still the others contributed their experience and lent their honored names to a new and untried system of law whose reception was certain to be unfavorable at first by a profession which draws much of its inspiration from tradition. One of them was the editor of a work on Practice, which was then the only authoritative work upon the subject; yet all these men, regardless of their individual interests, truly guided by this noble passage of Hallam: "Let us not be deterred by a clamor against innovation from abrogating what is useless, simplifying the complex, or determining what is doubtful, nor attempt to stave off an immediate pressing difficulty by a patch-work scheme of modifications and suspensions, but let us consult for posterity in a comprehensive spirit of legal philosophy."

The spirit, if not the language, of this author has impressed itself upon the system we have to-day; and our law is stripped of its grosser abuses. Advocates and judges no longer grope in a labyrinth of technicality, or deal with the clumsy machinery of the old procedure, but they are now in a position to use all reasonable and sensible means for the decision of cases upon their merits. Suitors need no longer be deterred from an ascertainment of their rights, by the fear of endless litigation, and men have become less willing to commit wrongs when they recognize that their redress will be speedy and effectual. The labors of the commissioners uncovered the hidden beauty and symmetry of our common law; the husk has been removed; the full-grown man has laid aside the rent, patched clothing of his childhood days, which impeded his freedom of action and development. Other innovations and changes will doubtless be necessary in the years to come, but it is a source of great gratification to know that the men of our own State have laid down and elaborated the principle, by which every such reform must in future proceed.

EFFECT OF CONSOLIDATION OF RAILWAY CORPORATIONS UPON MUNICIPAL SUBSCRIPTIONS TO STOCK.

N the case of County of Scotland, plaintiff in error, v.

power of the counties to subscribe, or the privilege of the company of receiving subscriptions, was decided in the case of The State v. Greene County, 54 Mo. 540. In that case the Kansas City, Galveston and Lake Superior Railroad Company was chartered in 1857, with power to construct a branch road from Kansas City to the southern boundary of the State; and power was given to the county courts of any county through which the road or any of its branches might run to subscribe to the stock of the company and issue its bonds therefor. The company afterward changed its name, and, in 1870, consolidated with the Hannibal and St. Joseph Railroad Company; and the latter company continued the work of constructing the branch road referred to, which had been begun by the Kansas City Company. The branch was built under a separate organization created by the parent company, called the Kansas City and Memphis Railroad Company, but under the control and with the aid of the parent company. The county court of Greene county, in 1870, subscribed to the capital stock of the Hannibal and St. Joseph Railroad Company, issued to aid in building and equipping the branch road, which ran through the county. The Supreme Court of Missouri decided that the subscription was valid; and that the power to subscribe, originally given, still subsisted unaffected by the consolidation. The cases decided by this court, of The Philadelphia and Wilmington R. R. Co. v. Maryland, 10 How. 376, and Tomlinson v. Branch, 15 Wall. 460, were cited and relied on for the purpose of showing that where a consolidation is effected between two railroad companies, and nothing to the contrary is indicated, the rights and privileges, as well as the duties and liabilities of each, continue to exist as before in the hands of the new organization. It seems to us that this decision in the Greene county case governs the present case. It is true the court laid considerable stress on the fact that the branch road in that case was a distinct interest from that of the main line, and was not liable for its obligations or liabilities; and the holders of the stock in the branch road had the right to control its affairs, and this feature was not changed by the consolidation. This fact, undoubtedly, prevents the case from being an exact precedent for the present one. But the close and intimate relations which in other respects connected the branch with the main line in that case, give to the decision a good deal of importance. The principles adopted were substantially the same as those involved in the present case. The facts are not very fully stated in the report, but it would appear from the statement of the dissenting judge (p. 557) that the stock subscribed for in that case was the stock of the Hannibal and St. Joseph Railroad Company. As such, though it may have been special stock applicable to the branch road, it made the holder a member of the parent company entitled to vote for its directors, and no doubt in other ways connected with its fortunes.

In that case, as in this, the power to consolidate was given after the original charter was granted, and after the constitution went into effect. But that was not

the State, in force when the original charter was granted, the legislature had reserved the power to alter, suspend, and repeal all charters of incorporation, and had specially reserved this power in the general railroad act. (See Revised Statutes of Mo. 1855, pp. 371, 438.) It would seem clear, therefore, that

alterations of the charter were admissible, and would not affect rights of the company untouched thereby, nor a power to subscribe to its stock previously existing. (See Callaway Co. v. Foster, decided by this court in the present term.)

The power to amend thus existing, the amending acts in this case do not subvert the original purposes of the charter, but rather carry them out and perfect them. The railroad authorized by it was "a railroad from the city of Alexandria, in the county of Clark, in the direction of Bloomfield, in the State of Iowa, to such point on the northern boundary line of the State of Missouri as shall be agreed upon by said company, and a company authorized on the part of the State of Iowa, to construct a railroad to intersect the road authorized to be constructed by the provisions of this act, at the most practicable point on said State line." Bloomfield was a small town in Iowa, evidently not intended as the final objective point of the proposed line, which is only required to be "in the direction of Bloomfield." A connection with a continuous road in Iowa was the declared object of the road proposed. It was evidently the purpose to bring Alexandria, a port of Missouri on the Mississippi river, in connection with the rich region of southern and western Iowa by means of the road then being chartered, and a road to connect therewith running into the State of Iowa. This purpose will be most effectually attained by the construction of the continuous line contemplated by the consolidated companies. The general direction of the road is not changed. It does not pass through Bloomfield it is true; but it does not pass it by so far as to be a substantial departure from the route originally indicated. The amending act, therefore, which authorized a consolidation with the Iowa Southern Railway Company and thereby constituted the Missouri, Iowa and Nebraska Railway Company, was in perfect accord with the general purpose of the original charter of the Alexandria and Bloomfield Railroad Company; and if the other rights and privileges of the latter company passed over to the consolidated company, we do not see why the privilege in question should not do so; nor why the power given to the county to subscribe to the stock should not continue in force.

The decision of this court in the case of Harshman v. Bates County, 92 U. S. 569, is urged against this view of the case. But we do not think it applicable. In that case the question was, whether authority given to the county court by the electors of a township to subscribe in its behalf for stock in a certain railroad company, continued to exist after the company had ceased to exist by being absorbed in another company by consolidation? We held that it did not. The county court was regarded as being the mere agent of the township, having no discretion to act beyond the precise terms of the power given. The powers of an agent or attorney, authorized to act for another, are very different from those possessed by a person acting in his own behalf. Had the charter of the Alexandria and Bloomfield Railroad Company authorized foreign corporations to subscribe to its stock (supposing that by the general law of Missouri they had no such power) they would undoubtedly have retained that power after the consolidation; it being in their discretion to exercise it or not. But if any such foreign corporation had, before the consolidation, sent an order to a firm in St. Louis to subscribe stock for it in the original company, the firm could not have made the

subscription after the consolidation without consulting their principals. Such a material change of circumstances would have rendered the subscription an excess of the power given to them. Authority given to a person to be exercised for his own benefit and at his own discretion may be exercised by him under changes of circumstances that would amount to a revocation of a power given to an attorney, unless it expressly conferred discretion. A recurrence to the opinion in the Harshman case will show that this distinction underlies the reasons given for the judgment in that case. The county court of Scotland county, in the present case, acted as the representative authority of the county itself, officially invested with all the discretion necessary to be exercised under the change of circumstances brought about by the consolidation in question. For, as before remarked, the county courts in reference to the subscription in question represented the counties themselves as their officially constituted authorities. This is distinctly stated by the Supreme Court of Missouri in the case of The Hannibal and St. Jo. R. R. Co. v. Marion County, 36 Mo. 303. The power given to the county courts intersected by the Alexandria and Bloomfield railroad to subscribe to its stock, was given to them as representing the counties. When they subscribed for the stock, it was the county that subscribed. It was discretionary with them whether to subscribe or not, and (within the limits imposed by the act) how much they should subscribe.

But the case has other aspects which it is necessary to take into consideration. If we look at the subject in a broad and general view, it will be still more manifest that the power in question was intended to exist notwithstanding the consolidation. The project of the railroad promised a great public improvement, conducive to the interests of Alexandria and the counties through which it would pass. Its construction, however, would greatly depend upon the local aid and encouragement it might receive. The interests of its projectors and of the country it was to traverse were regarded as mutual. The power of the adjacent counties and towns to subscribe to its stock as a means of securing its construction was desired not only by the company but by the inhabitants. Whether the policy was a wise one or not is uot now the question. It was in accordance with the public sentiment of that period. The power was sought at the hands of the legislature, and was given. It was relied on by those who subscribed their private funds to the enterprise. It was involved in the general scheme as an integral part of it, and as much contributory and necessary to its success as the prospective right to take tolls. Why it should not still attach to this portion of the road, as one of the rights and privileges belonging to it, into whose hands soever it comes by consolidation or otherwise, it is difficult to see. The principles laid down in the case of The Philadelphia, Wilmington and Baltimore R. R. Co. v. Maryland, 10 How. 376, and Tomlinson v. Branch, 15 Wall. 460, and recently reaffirmed in Branch v. City of Charleston, 92 U. S. 677, seem to us directly applicable. Subscription to the stock was not only a power of the county, but a privilege of the company - being a portion of the rights and privileges which it obtained by translation from the charter of the North Missouri Railroad Company. It was expressly so held by the Supreme Court of Missouri in the case of Smith v. County of Clark, 54 Mo. 58; and the same principle had been adopted in the earlier case of The Hannibal and