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not, upon the pleading and evidence in this cause, such was the fact.

Another question has been exhaustively argued by counsel, and that is whether or not the language of the statute, which has been quoted above, although in terms conferring a distinctly discretionary power upon the levy court, is in effect mandatory; the language being, "And if the levy court after inquiring into the matter, shall be of opinion that there is danger of loss to such sureties by reason of their said suretyship, the said levy court shall have power to issue an order restraining such late collector from the further collection of any taxes committed to him," etc. The complainants contend, as we have seen, that upon the state of facts at that time existing they had a claim de jure that the power should be exercised, and that, consequently, under the established rules of statutory construction, it became the duty of the levy court to exercise the power granted to them,-a duty which could have been enforced by proceedings in mandamus,-so that the officers composing the levy court disobeyed a statutory mandate when they refused to grant the relief prayed for in their petition. It is manifest that the effect of this contention is precisely the same as the preceding one, and that the conclusion reached as to the responsibility of the state-the public-to the sureties for the disobedience of a mandate of the statute by the officers composing the levy court renders this question in like manner immaterial, inasmuch as, if that conclusion be correct, it could not affect the liability of the sureties on the collector's bond if it should be held that the levy court did disobey the statutory mandate when they refused to grant their petition.

Many authorities have been cited by counsel, especially those from our own state, upon the rights and liabilities of sureties in private undertakings. Now, there is no branch of equity jurisprudence which has been more fully developed than that which deals with the rights and liabilities of sureties in private undertakings, and it is well settled under what circumstances courts of equity will interfere to restrain a creditor from recovering from a surety, upon the breach by his principal of the condition of his bond, when the creditor's own laches or wrongful acts have intervened to the detriment of the surety or the increase of his risk. But in the case of private undertakings the creditor is held to be responsible to the sureties for the acts of his agents,their acts are his acts,-whereas, in the case of official bonds, entered into for the federal or state governments, the government is not held responsible for the acts of its agents when not authorized by law; and where loss or increase of risk comes to the sureties in an official bond by reason of the conduct of public officers, the chance of their mis

takes or misconduct, their laches or wrongful acts, must, in the absence of express statutory provision, be taken to be part of the risk which the sureties in an official bond assume. To quote again the language of Mr. Justice Story: "The surety may place confidence in the agents of the government, and rely on their fidelity in office; but he has of this the same means of judgment as the government itself, and the latter does not undertake to guaranty such fidelity." The case of the complainants may be a very hard one, but it is one where there seems to be no warrant for the intervention of this court.

It is only necessary to advert to one other point in the case. The execution issued on the judgment entered against the sureties is for the sum of $16,353.43, which is $1,921.92 in excess of the amount which the levy court found to be due from Dougherty, after making the allowance required by law, when he made his final settlement in March, 1891. It is alleged by the defendants in their answer, and not denied by the complainants, that after the March settlement it was discovered by the levy court that fraud on the part of Dougherty had vitiated that settlement, which was afterwards opened and corrected, and that the amount found to be actually due upon a final examination of his accounts was the sum of $16,353.43, for which the writ of execution was issued October 19, 1893. The injunction prayed in this case is therefore refused, and the bill of complaint is dismissed, with costs, on the usual terms.

PHILADELPHIA, W. & B. R. CO. v. WILMINGTON CITY RY. CO.

(Court of Chancery of Delaware. May 15, 1897.)

RAILROADS-CROSSING BY STREET RAILWAY AT GRADE-INJUNCTION.

1. Where the charter of a street-railway company provides that it may cross any track of any railroad, provided that it conform to the grade of the track to be crossed, injunction will not lie at the instance of a steam-railway company to prevent said street-railway company, operating by electricity under the trolley system, from stretching or extending its trolley wires over, or from operating its line of street railway at grade across, the tracks of the steam-railway company at a street crossing in a city.

2. Except under special statutes, the crossing by a street railway, at grade, of a railroad's right of way across an existing highway, will not be enjoined on the ground that the great volume of the railroad company's traffic and the number of its trains at such crossing rendered the crossing dangerous.

3. An electric street railway, as operated by the trolley system, is not an additional burden upon the soil in the common highway.

4. Where the act of an electric street railway crossing complainant railroad company's tracks on a public highway does not take property of the complainant, and does not work some damage to it, differing in kind from the damage which the complainant would suffer in common

with the rest of the community, it has no standing to ask an injunction merely because the respondent proceeds ultra vires, or usurps a franchise.

Action by the Philadelphia, Wilmington & Baltimore Railroad Railroad Company against the Wilmington City Railway Company for an injunction. Motion for a preliminary injunction. Denied.

George Gray, H. H. Ward, and Andrew C. Gray, for complainant. Willard Saulsbury, for respondent.

NICHOLSON, Ch. Injunction bill. The complainant operates a line of railroad from the city of Philadelphia to the city of Baltimcre and elsewhere which crosses the state of Delaware. It passes through the city of Wilmington, and crosses Third and Fourth streets at grade, both of said streets having been common highways, established and maintained at the expense of the city of Wilmington, long before the company complainant was incorporated, or in fact any other railroad company was incorporated in this country. At a short distance below the railroad crossing, there it a bridge over the Christiana river, known as the "Third Street Bridge," serving as a means of communication with an outlying portion of the city, known as South Wilmington, as well as with the adjacent country and the neighboring city of New Castle. The respondent operates a street railway in the city of Wilmington, and upon some country highways adjacent thereto, by electricity, under what is known as the "Trolley System," and has laid street-railway tracks along Third street to the complainant's railroad, both on the northerly and southerly side. Its purpose is to cross complainant's road with its street railway where complainant's road crosses Third street, thus connecting with its tracks already laid across the Third Street Bridge and in South Wilmington. Respondent's charter, granted in 1864, provides that it may "cross any track of any railroad company now incorporated, or hereafter to be incorporated, provided that it conform to the grade of the track to be crossed." The complainant filed a bill in equity to restrain the proposed crossing. Upon the presentation of complainant's bill, I granted a rule to show cause why the preliminary injunction prayed for in said bill should not be awarded, with a restraining order until the determination of the rule. The bill was subsequently amended, and the restraining order modified in accordance therewith. The amended bill prays as follows: "(1) That the said defendant may fully and truly answer this bill of complaint, and not under oath, the same being hereby expressly waived. (2) That the said defendant, and its successors, its officers, employés, workmen, agents, deputies, and attorneys, may be restrained by the injunction of the hon

orable court from again stretching or extending its trolley wires across the tracks of the said complainant on said Third or Fourth street, in said city of Wilmington, and from operating, or attempting to operate, its said present or any projected line of street railway across the tracks of said complainant, at Third or Fourth Street, in the said city of Wilmington, with the use of electricity as a motive power. (3) And, also, that a preliminary injunction may be issued from this honorable court, to restrain the said defendant, and its successors, employés, workmen, agents, deputies, and attorneys, from again stretching or extending its trolley wires across the tracks of said complainant, on said Third or Fourth street, in said city of Wilmington, with the use of electricity as a motive power, or otherwise howsoever in like manner, until the further order of the chancellor. (4) That the complainant may have such further or other relief as the nature of the case may require. (5) That a subpoena may be issued for the said "The Wilmington City Railway Company,' as defendant in this cause." The respondent has filed its answer, fully meeting and denying all the equities of the bill. Affidavits have been presented and read on both sides, and the questions involved argued upon the motion for a preliminary injunction.

The complainant does not claim any property rights as abutter or owner in fee which will be affected by the proposed crossing, and only shows in itself the right to cross Third and Fourth streets, previously existing highways, in such a manner as shall preserve to the public the use of the streets under the well-known common-law rule that where a steam railroad crosses a street or public highway, as in this case, it takes its right subject to the right of the public to use the street in a reasonable and lawful manner. As was said by Judge Houston in the case of McCoy v. Railroad Co., 5 Houst. 609, decided in 1879: "As Fourth street was then, and long had been before the company was started or the railroad was constructed by it, a common highway, established and maintained at the expense of the city of Wilmington, there can be no question in this case that the people of the city and the public in general had a paramount right to the use and enjoyment of it as such, as well where it was intersected and crossed by the railroad as in any other part of it." The status of the Third street crossing is identically the same. It appears from complainant's bill and affidavits-and it is not denied by the respondent, although it denies the necessity of so many tracks and so much shifting-that, in consequence of the great volume of complainant's business, it uses seven lines of railroad track at the crossing of Third street, and eight lines at its crossing of Fourth street; that the business and traffic

necessitates the passage of about 45 passenger trains north and 50 passenger trains south, and of about 33 freight trains north and south, every 24 hours over said crossings; that the necessary local shifting of cars and trains over said crossings causes the passage of about 350 trains or parts of trains every 24 hours, so that the total average passage of trains, or parts thereof, over said crossings, does not fall short of 475 during every 24 hours. And this crowding of its right of way at the Third and Fourth street crossings, and the consequent dangers and difficulties attending the use of Third and Fourth streets as public highways, are urged by complainant's counsel as in itself a reason for the exercise of the extraordinary powers of the court of chancery and the granting of an injunction in this case. The only cases cited, however, that could by any construction support such a contention, are under Pennsylvania statutes expressly investing the courts with special powers to prevent grade crossings. In the case of Pennsylvania R. Co. v. Braddock Electric Ry. Co., 152 Pa. St. 125, 25 Atl. 783, the court recites the Pennsylvania statute, as follows: "When such legal proceedings relate to crossings of lines of railroad by other railroads, it should be the duty of the courts of equity of this commonwealth to ascertain and define, by their decree, the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road intended to be crossed; and if, in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade."

But in this state there is no such legislation. The powers of the court of chancery and the rules. governing its action in this behalf have not been extended or modified by any general legislation, and I am not aware of any principle in law or equity in accordance with which the difficulties and dangers attending the use of Third and Fourth streets as public highways at the points where they are crossed by the complainant, which are caused by the multiplication of the complainant's tracks and trains,-by its increased use of its right of way,-could be considered by the court of chancery as a reason for enjoining any use of the streets across the complainant's right of way, which is a legitimate use of those highways, and not an additional servitude or easement. There are cases, indeed, in which, under city ordinances, the writ of mandamus has been issued to compel a steam railroad company to elevate or depress its tracks when its increased use of its right of way had obstructed or materially impaired the public use of a highway; but I am not aware of any case, except as we have seen, under special statutes, in which the erossing by a street railway at grade of a railroad's right of way across an existing highway was ever enjoined by a court of

equity on the ground that the great volume of the railroad company's traffic, the number of its trains at such crossing, rendered the crossing dangerous. The remedy for such dangers must be sought elsewhere, and in a different mode.

It is conceded by complainant's counsel that the overwhelming weight of authority in this country has established the principle that what is ordinarily known as a street railway is not an additional burden to that of the general easement of the public in the street or highway, and they submit to the weight of authority on this point. It is not necessary, therefore, to cite the authorities or to consider the force of their reasoning. The whole subject is satisfactorily discussed by the chancellor of New Jersey in the case of West Jersey R. Co. v. Camden, etc., Ry. Co., 52 N. J. Eq. 35, 29 Atl. 424, where he says in conclusion: "Basing their conclusions upon the contemplation of the customary use of the electric street railway, the courts have regarded that, as operated by the trolley system, it is not an additional burden upon the soil in the common highway;" and he cites a number of important cases in confirmation and illustration. The chancellor then further says, speaking of a railroad crossing similar to the one now under consideration: "The exercise of the right to cross does not of necessity exclude the public from the enjoyment of the highway at the point of crossing, further than to permit the lawful operation of the railroad. The high rate of speed and the dangerous character of the trains run over the crossing necessitate that, in the operation of its railroad, the complainant shall have the right of way, to be exercised in accordance with the requirement of law, and imposes the duty upon the public, in the use of the highway, as the railroad crossing is approached, to stop, if necessary in the exercise of due care, look and listen, in order that the right of the railroad may be safely accorded to it. But there is nothing in the right which otherwise limits the use of the highway by the public, or restricts the increase of the volume of that use either in the manner originally exercised or through conveniences which invention may from time to time provide. It follows from the conclusion that the use of the street by the electric car, as it is now usually operated, is within the purposes for which the highway was created; that such car is not to be excluded from the point in that highway where the railroad may cross it. It, like other passers in the street, must conform with the requirements which the railroad imposes,-stopping, if necessary, looking, listening, and yielding the right of way. Nor do I perceive any tenable objection to the suspension of a trolley wire over the railroad crossing at a sufficient height. In the present instance it is not suggested that the elevation intended would be insufficient to permit the proper operation of the complainant's road." Admitting this to be law, it necessarily follows that the respondent, which is admitted

to have received from the municipal authorities all the necessary privileges in the streets in question which it was in the power of those authorities to grant, would have the same right to use those streets for the purposes of its railway across the complainant's right of way as it has to use those streets in any other part of them. The express legislative grant in respondent's charter, of the power to "cross any track of any railroad company now incorporated, or hereafter to be incorporated, provided that it conform to the grade of the track to be crossed," has already been referred to.

But the complainant has advanced another objection, upon which it largely bases its motion for a preliminary injunction. It is alleged in the fifth paragraph of the bill that "the defendant company hath no power or authority under its charter, as aforesaid, or under the law of the state of Delaware, to use electricity as a motive power for the propulsion of its cars in the said city of Wilmington." This objection at once raises the question: What standing has the complainant in this court to ask, on this ground, for the preliminary injunction prayed for? If that which the respondent proposes to do with its electric railway does not take property of the complainant for its use, and does not work some damage to it, differing in kind from the damage which the complainant would suffer with the rest of the community, it has no standing to ask for injunction merely because the respondent proceeds ultra vires, or usurps a franchise. This is hornbook law, but I will cite two cases which were decided by Chancellor McGill, and resemble very closely the case before me, viz. Morris & E. R. Co. v. Newark Pas. Ry. Co., 51 N. J. Eq. 380, 29 Atl. 184, and West Jersey R. Co. v. Camden, etc., Ry. Co., 52 N. J. Eq. 39, 29 Atl. 423. A careful examination of the pleadings and proof has satisfied me that the complainant in this case has failed to show such special damage. It is true that it has alleged in the third paragraph of its bill, as amended, that it "is advised and believes, and therefore avers, that the stretching of said trolley wires across the track of said company, and the laying of the necessary ground wires for the operation of said electric road over said crossings upon said Third street or said Fourth street, would be attended with great danger to the employés and servants of said complainant operating the trains of said complainant, and would most seriously interfere with the due operation of said road of said complainant at said crossing." But the answer denies this allegation, and alleges that the wires would be strung more than 22 feet above the ground, out of the way of any possible interference with complainant's trains or employés. There are no affidavits in support of this allegation of the bill, and the answer, being responsive, and being also supported by affidavits, must control in the present application.

The complainant also alleges that the use of electricity under what is known as the "Trolley System" will render the crossing by the street railway more dangerous than if it used horses as a motive power. But the answer denies this allegation, and a great number of affidavits upon this point have been presented and read on both sides; a number of expert electricians and officers of street-railway systems throughout the United States testifying in behalf of the respondent that, with the machinery and safety appliances in use by the respondent, the crossings would be safer than by horse power, and that the chances of accident from any of the causes alleged in complainant's bill and affidavit would be much less than those that might arise in the operation of a horse railway at the railroad crossing. After carefully considering and weighing these affidavits, I am satisfied that it does not clearly appear from them that the crossing under the trolley system at this point would be more dangerous and a greater menace to the complainant's traffic than would the crossing by horse power, against which no injunction is asked; so that, even should it be granted that these allegations are relevant and material to this application, yet, as the evidence before me leaves the relative danger to a railroad crossing of the two systems an unsettled question, they cannot avail the complainant, since, in the application for a preliminary injunction, the complainant's case must be clearly made out. As has been seen already, the complainant does not claim any property rights as abutter or owner in fee, which will be affected by the proposed crossing of its right of way by the respondent under the trolley system, and does not claim to be in danger of receiving any damages other than those already considered. It is therefore manifest that it has no standing in this court for its application for a preliminary injunction, and that, for the purpose of this motion, it is not open to the court to consider the question whether the respondent railway company has or has not power or authority under its charter, or under the laws of the state of Delaware, to use electricity as a motive power for the propulsion of its cars in the said city of Wilmington. There is more than one way of obtaining a judicial determination of that question, but the proceeding now pending before this court is not one of them.

The arguments of the learned counsel in this cause have been exceptionally able and elaborate, exhausting the whole field of inquiry. I have examined the vast number of cases cited by counsel with great care, and have given attentive consideration to the many points which have been so ingeniously raised and elaborated by them; but I do not deem it necessary in this opinion to discuss any other than those I have already presented, which I believe to be conclusive of the questions at issue. I will deny the motion for a preliminary injunction, and discharge the rule in this cause.

LONEY V. LONEY et al.

(Court of Appeals of Maryland. Jan. 4, 1898.) PAROL GIFT - EVIDENGE-SUFFICIENCY-SPECIFIC

PERFORMANCE.

1. Ten witnesses testified that plaintiff's father had stated that he had given the land in question to plaintiff, and that plaintiff fixed it up to suit himself. Plaintiff had no deed of the land. He paid more than $1,100 to improve it. His mother and other members of his family testified that they never heard of such gift; that the father always spoke of the property as his own; and that he used a stable on the land for keeping cows and a horse, and kept hay in the loft. Held sufficient to establish a gift to the son.

2. A son is entitled to specific performance where his father made a verbal gift of land to him, and he took possession, and made valuable and permanent improvements.

Appeal from circuit court of Baltimore city. Bill by Charles B. Loney against Annie M. Loney and others. From a decree for defendants, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and BRYAN, PAGE, ROBERTS, and BOYD, JJ. France & France, for appellant. Abraham Sharp and Henry W. Fox, for appellees.

BRYAN, J. Charles B. Loney alleged that his deceased father, Charles Loney, made him a verbal gift of a portion of a certain leasehold lot in the city of Baltimore, and that he entered into possession of the portion given to him, and erected buildings on it at considerable expense, and that his father died without having executed a deed conveying to him the legal title to the lot. He filed a bill in equity against the executors of his father, and against his widow and the other children and the husbands of the married daughters. The answers of the widow and of the daughters and the husbands of such of them as are married deny the gift of the lot by the father. The answer of Lewis Loney, the only brother of the complainant, admits the allegations of the bill of complaint. The answer of the executors does the same. We shall have something to say about the answer of the executors hereafter. The court below dismissed the bill, and the complainant appealed.

The question is principally one of fact. The deceased owned and occupied a leasehold lot in the city of Baltimore, at the northwest corner of Paca and Barre streets, fronting 50 feet on Paca street, and running back to Spring alley, bounding 120 feet on Barre street. The portion of the lot claimed by the complainant is the rear part of it, which is separated from the front part by a 12-foot way, with a gate on Barre street. The evidence is very voluminous, and much of it has no important bearing on the question in controversy. We have considered it carefully, but it would answer no good purpose to cite it in detail. We shall content ourselves by mentioning such parts of it as bear on the essential questions in the case. The witness Redsecker testified that the father told him that the property

"from here back" (pointing from the entrance on Barre street) belonged to his son. The old man (according to the witness) said: "I gave it to him, and he fixed it up to suit himself." At the time there was on this portion of the lot a three-story brick house, and in the rear of that a two-story brick building, used for a stable and carriage house. The witness said that he was pretty sure that the conversation took place in the summer of 1884. Dougherty, Miss Dougherty, Richardson, Leydecker, Switzer, Lerian, Ensor, and Walter testify to the same general effect in respect to the gift. Cornthwaite testified that the improvements made on the rear portion of the lot were a very large brick stable, a two-story dwelling house, and a store. He also testified that he heard a conversation between old Mr.

Mrs.

Loney and another person, in which the old man said: "Fix the property to suit Charley, as it belongs to him." The complainant paidthe expense of the improvements on the property. It is shown that he paid more than $1,100 for labor and materials used in the buildings; and it is evident from Ensor's testimony that the materials cost considerably more than the amounts shown by the bills which have been produced. The testimony inregard to these statements made by Loney, the father, has not been contradicted by direct testimony; but evidence is given by the mother and other members of the family tending indirectly to disprove the fact of the gift by the father. None of these witnesses ever heard of any such gift. They testify that they had no reason to believe that any had ever been made, and that they had every opportunity of knowing it, if such were the case; and some of them testify that the father always spoke of the property as his own, and that the fatherused the stable for keeping cows and a horse, and kept hay in the loft. There was a good deal of testimony which showed that muchill feeling existed towards the complainant, and charges were made against him in respect to matters which do not bear in any way on the alleged gift. As he could not be a witness, he has had no opportunity of being heard in his defense. Charles B. Loney and Lewis H. Loney were the executors of their father. When they passed their account in the orphans' court, they included in it this rear lot, and it has been distributed under the will of the deceased.

Without an elaborate discussion of the evidence, we may say that we are satisfied that Loney, the father, did give to his son the lot in question. The evidence of the many witnesses who testify distinctly and positively to the old man's declarations to this point requires that we should believe it. None of thewitnesses for the defendants were present when the father's declarations on this subject are alleged to have been made; and the contradiction to them is altogether inferential, founded on their deductions made from circumstances, such as that they had never heard of the gift, although they had ample oppor-

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