LEASE-Continued.

gation imposed by its charter or the general laws of the State by leasing its road,
without the consent of the State. So, where a railroad corporation, without
such consent, leased its road to another railroad corporation, which entered upon
and controlled and managed the road, held, that the former corporation is liable
for injuries to persons caused by negligent defects in its track at a highway
crossing. Freeman v. Minneapolis, etc., R. R. Co. 410.

12. Section 1, p. 71, Minnesota Sp. Laws 1871, does not consent to the defend-
ant leasing its road unless to a railroad company of this State. Sections 69, 106,
c. 34. Gen. St. 1878, does not consent to any lease by any railroad company of
this State of its road to any Iowa railroad company unless the latter has com-
plied with the provisions of section 106. Id.

See TAX, 3-5, 35.

LEGISLATURE. POWER TO ADJUST STATE Debt, 147.

LESSEE.

See CONSTITUTIONAL LAW, 3.

1. Lessee of railroad operating the same is liable for fires kindled by its engines
the same as if it owned its road. Slosson v. Burlington, etc., R. R. Co. 509.

LIEN.

1. A subcontractor is entitled to a mechanics' lien for his work in the con-
struction of a railroad under the statutes of Iowa, which, if enforced would
compel the main contractors to see that it was paid; and if they entered into a
written contract by which they became personally liable to plaintiff as such sub-
contractor, an action brought upon the contract is within the statute. Vaughn v.
Smith, 82.

2. The object of the statute (section 2583 of the Iowa Code) is to localize all
actions of laborers and others making contracts relating to the construction of
railways, to obviate the necessity of seeking redress at the residence of the con-
tractor or place of business of the corporation or company having the contract
to build the entire line of the railroad, and a motion to change the venue from
the place of residence of the plaintiff to another county was properly overruled.
Id.

3. Under the Missouri Act of March 21 1873, embodied in Sections 3200 to
3216, inclusive, of the Revised Statutes of 1879, a lien for labor and materials
cannot be enforced against that portion or section of a railroad only for which
they were furnished. The lien is against the whole road, and the whole must
be sold. It is otherwise, however, as to the rolling-stock and other movable
property. While all of these are subject to the lien, only so much of them need
be sold as may be necessary to satisfy the judgment. Knapp v. St. Louis, etc.,
R. R. Co. 394.

OF STATE FOR INDORSEMENT OF BONDS, 129.

See BOND, 10; Constitutional Law, 1–6.

LIVE STOCK, TRANSPORTATION OF, 373.

See CARRIER, 1–3.

MANDAMUS. WHEN IT LIES TO GOVERNOR OF STATE, 147.

MORTGAGE.

1. Mortgages of future acquisitions of property by railroad companies are up-
held in equity and liberally construed. Equity treats a mortgage of property to
be afterwards acquired as a contract binding in conscinece, to execute a mort-
gage upon it at the instant it comes into being, and will enforce specific per-
formance. It does more. It considers it as already done if no specific per-
formance be requested; and then binds everybody to respect the equitable lien
who knows of it, or without knowing of it has got the property without valu-
able consideration. Little Rock, etc., R. R. Co. v. Page, 36.

2. Where, in an action brought by a trustee for bondholders to foreclose a
railroad mortgage, the amount of outstanding bonds was stated at a less amount
than that found by the referee, to whom it was referred to compute the amount
due, held, that said provision was not available to a bondholder, moving to set
aside the judgment entered on the report, and a sale thereunder. Peck e.
N. Y., etc., R. R. Co. 422.

3. Also held, that, as the judgment demanded was the foreclosure of the mort-
gage, the judgment was not more favorable in that respect, and the law required
that the amount due should be ascertained. Id.

4. Also held, that, if it was improper to allow plaintiff, against the allegations
of his complaint, to prove a larger amount of bonds, it was, at most, a mere
irregularity; that the court below could have, in its discretion, allowed an
amendment of the complaint, ex parte, before or after judgment; and whether
or not it would, on the application of a bondholder, open the judgment rested
in its discretion, the exercise whereof was not reviewable here. Id.

5. It was alleged that the judgment was irregular because some of the bonds
were reported by the referee to have been issued as collateral, and that they were
put upon a footing with the other bonds. It did not appear that the collateral
bonds were not valid obligations for their full amounts, and it was alleged, in
the opposing papers, that they were. Held, that whether or not the Supreme
Court would, under the circumstances, vacate the judgment to allow an inves-
tigation into the amount due ro the holders of said bonds, was in its discretion,
and its decision was not subject to review here. Id.

6. The petition asked relief from the sale, on the ground of mistake and sur-
prise, which was shown. The sale was duly advertised, the petitioner obtained
no stay, there was no proof of the value of his bonds, or that he owned them; it
was not shown that the property was sold for an inadequate price; and the peti-
tioner did not offer any definite sum which he would pay upon a resale, or show
that he was able to bid off the property. The petitioner was allowed to come
into the reorganization scheme on the same footing as the other bondholders.
Held, that the facts authorized the Supreme Court to exercise its discretion, and
its determination was not reviewable here. Id.

7. In a railroad mortgage which is declared to be for the purpose of securing
the payment of the interest as well as the principal of certain bonds, and where
the mortgagor's right of possession terminates upon a default in payment of the
interest as well as principal on any of the bonds, the trustees in the mortgage or
any bondholder, on non-payment of any interest, may file a bill for foreclosure
and sale, and will be entitled to a decree nisi, ascertaining the amount of interest
due, and giving the debtor a reasonable time to pay it. In case of non-payment,
a sale may be made and the proceeds applied to the payment of interest and also
of principal; but the debtor, at any time before the sale or its confirmation, may
redeem by bringing into court the amount of unpaid interest and costs. Chi-
cago, etc., R. R. Co. v. Fosdick, 427.

8. The decree on which the sale is based must find correctly the fact, nature,
and extent of the default which constitutes the breach of the condition of the
mortgage, and the amount due on account thereof; and a decree which orders a
sale for the non-payment of a larger amount than is actually due is fatally erro-
neous. Chicago, etc., R. R. Co. v. Fosdick, 427.

9. Where the foundation of the trustees' right to foreclose was, that a certain
amount of interest should be in default, and it was shown that such default had
occurred, but there was nothing in the record to show that the coupons as to
which default had been made had not been funded under certain funding agree-

MORTGAGE-Continued.

ments granting an extension, and the default so waived, and it was not even
shown that the coupons held by some of the complainants had not been funded
-this was not sufficient to justify a foreclosure based on such default as a neces-
sary condition precedent. Id.

10. Nor is such foreclosure justified by the fact that the company, after loss of
possession of its property by the foreclosure proceedings, failed to pay interest;
for the steps taken as a necessary preliminary to foreclosure must stand or fall
upon the circumstances existing when they were taken, and cannot be supported
or validated by subsequent occurrences. Id.

11. A mere provision that in case of a sale for default of interest the proceeds
are to be applied to the payment of principal also, does not make the principal
due before the stipulated time, nor prevent the mortgagor from redeeming by
the mere payment of interest. Id.

12. Provisions imposing penalties being strictly eonstrued, in a paragraph of
a mortgage which provides that "if default be made in the payment of any
half-year's interest on any of the bonds secured, and such default continue for
more than six months after demand without the consent of the holder, then the
principal of all the bonds shall immediately become due, and the trustees may
so declare the same and notify the debtor; and, upon the written request of the
holders of a majority of the said bonds, shall proceed to collect both principal
and interest," the latter clause held to render such written request a necessary
condition precedent to foreclosure proceedings, and not merely to render im-
perative on the trustees a power claimed to have been made optional with them
by the first clause. Id.

13. Where a railway mortgage is made, which is void as against a prior claim-
ant for services in the construction of the road, and a bill of foreclosure is filed,
which denies the validity of the prior claim, and which makes the claimant a
party to the suit, and the claimant is served, appears, and suffers the bill to be
taken pro confesso, he cannot claim a lien upon the road in the hands of a pur-
chaser to whom it has been sold by virtue of a decree of foreclosure in the said
suit, said sale being ordered by the court to convey a title discharged of all liens
and claims; and this although the claimant had reduced his claim to a judgment
before the bill was filed. Woods v. Pittsburgh, etc., R. R. Co. 479.

1. One in a perilous position is not to be held to the exercise of the same care
and prudence as if he were in a place of security. Adams v. Hannibal, etc.,
R. R. Co. 414.

2. One who invites another to bring upon his premises for use a dangerous
implement, knowing it to be such, will take upon himself the consequences
which naturally follow. Marquette, etc., R. R. Co. v. Spear, 486.

See ANIMALS, 3; CARRIER, 7; FENCES, 8; FIRES; INTEREST; LEASED Roads, 5;
PLEADING AND PRACTICE, 13, 16, 17, 22.

WHO MAY SUE FOR DAMAGES, 25.

See PLEADING AND PRACTICE, 3-6.

NEGLIGENCE. WHEN THE COMBINED ACT OF Two CORPORATIONS.

See PLEADING AND PRACTICE, 8.

NON-RESIDENT, A CORPORATION IS, WHEN CHARTERED BY ANOTHER STATE, 18.
See DOMICILE, 2.

TAX ON STOCK OF, 362, 369.

See TAX, 52, 55.

NOTE GIVEN FOR SUBSCRIPTION TO STOCK, 69.

See SUBSCRIPTION TO STOCK, 2, 3.

ORDINANCE, CITY, REGULATING SPEED OF TRAINS, 406.

See SPEED OF TRAINS, 1, 2.

PARENT AND CHILD, RIGHT OF ACTION FOr Death of MOTHER, 35.
See PLEADING AND PRACTICE, 6.

WHEN PARENT CAN RECOVER FOR DEATH OF MINOR CHILD, 25.
See PLEADING AND PRACTICE, 4, 5.

PAROL EVIDENCE, TO VARY WRITTEN CONTRACT, 82.

See PLEADING AND PRACTICE, 10, 11.

1. A personal representative has no rights nor powers beyond the jurisdiction
of the State under whose laws he received his appointment. He cannot receive
his appointment in Kentucky and appeal in this State to the statutes of Indiana
to recover damages for injuries to the decedent caused by a railroad company in
that State. Taylor v. Penna. Co. 23.

2. An administrator appointed in Kentucky, and suing in this State, must be
able to show that the laws in this State entitled him to recover the thing sued
for. Id.

3. Where a person whose death has been occasioned by negligence leaves him
surviving a widow but no children, and also parents, the right to recover dam-
ages for his death is, by virtue of the provisions of the Act of April 26, 1855 (P.
L. 309), vested solely in the widow, and the parents are entitled to no part of the
damages which said widow may recover. Lehigh Iron Co. v. Rupp, 25.

4. Under the provision of said act parents are only entitled to recover dam-
ages for the death of a child where the family relation exists at the time of the
accident. If the child be free, either by age or emancipation, and be living
apart from his parents, and in no way contributing to their support, they cannot
maintain such an action. Id.

5. Where a parent brings suit to recover damages for the death of a minor
child occasioned by the negligence of the defendant, he is only entitled to recover
the value of the child's services during minority, in addition to the expenses
caused by the injury and death. Id.

6. Section 2971 of the Georgia Code provides as follows: A widow, or if no

PLEADING AND PRACTICE-Continued.

widow a child or children, may recover for the homicide of the husband or
parent; and if suit be brought by the widow or children, and the former or one
of the latter dies pending the action, the same shall survive in the first case to
the children, and in the latter case to the surviving, child or children." Held,
that this section gives a right of action against a railroad by the minor children
for the homicide of the mother, and does not restrict their right to the homicide
of the father. Atlanta, etc., R. R. Co. v. Venable, 35.

7. In the case of a natural person, a resident of the county, the affidavit for a
change of venue must be made by the person himself, and not by his agent.
Hedge v. Gibson, 69.

8. If an injury is caused by the combined acts of negligence of two corpora-
tions, a joint action may be maintained for the entire injury against both. Bry.
ant v. Bigelow Carpet Co. et. al. 72.

9. Where a deposition taken before a notary shows where it was taken, before
whom, and that the witness was first duly sworn, and it appears by the certificate
of the officer that the deposition was "read over by the said witness, was sub
scribed and sworn to by said deponent at" (naming the town and county), on
(naming the date), it is in literal compliance with the statute (sections 3735 and
3737 of the Iowa Code). Vaughan v. Smith, 82.

10. A contract in writing, promising to answer for the debt of another, can-
not be aided or added to by parol evidence. To allow a promise to be supple-
mented by parol where no such promise is contained in the writing, is clearly
within the statute of frauds. Id.

11. The admission of parol evidence explanatory of a written contract, and
submitting such contract to the jury for construction, are errors for which
judgment must be reversed. Id.

12. Where there is no officer who possesses the power to make the county
liable by contract, the difference in phraseology in the respective courts, "by
the proper officer" and "by the proper officer of the township," is not material.
McBride v. Hardin Co. 221.

13. Where a section of the statutes authorized the publication of the receipts
and expenditures of the county, and of accounts of the treasurer, and the board
of supervisors awarded the printing of its proceedings in a certain paper, held,
that such paper may recover the expense for printing the whole. Id.

14. It is not error in a court to instruct a jury to find a certain verdict if it is
satisfied that, conceding all the inferences which a jury might draw from the
testimony, the evidence would not be sufficient to support a contrary verdict.
Stewart v. Lansing, 225.

15. A judgment that a party is a bonâ fide owner of certain coupons does not
establish that he is the bonâ fide owner of the bonds. Id.

16. Where a party has a full and adequate remedy at law, a court of equity
will not assume jurisdiction, but will remit the party to whatever remedy or de-
fence he may have in the courts where such matters are properly cognizable.
Archer v. Terre Haute, etc., R. R. Co. 249.

17. A court of equity will not enjoin a county collector from applying for
judgment against the right of way of a railroad company for taxes due on its
capital stock, on the ground the complainant claims to have succeeded to such
company's rights, the defence, if any, being available at law, and this especially
when the complainant has obligated itself by contract to pay such taxes. Id.
18. A court of equity will not give a party relief against that which it is his
duty to do, by contract or otherwise. So, where a complainant corporation has
agreed with a railway company, for a consideration, to make advances to pay
its taxes, when necessary to maintain its organization, and has been put into
possession of all its property, it will not be allowed to enjoin the collection of
such taxes which are proper and legal, on the assumed ground of its ownership
of the property. Id.

19. A foreign corporation cannot interfere by bill to enjoin taxes legally or
illegally assessed, under the laws of this State, against a domestic corporation,
unless the former will itself be injuriously affected by the collection of such
taxes, as to its property or otherwise. Id.