possessed of as executor," and "is still seeking to obtain this knowledge." She therefore prayed that an attachment be not granted against her. Bowers & White, for petitioner. John J. Hargadon, contra. The On May 3, 1860, an Act of Assembly was passed (P. L. 1860, p. 780) incorporating the Junction Railroad Company, the capital to consist of 5000 shares of $50 each, subject to the General Railroad Law of February 19, 1849. The company was authorized to construct a railroad, commencing at a point upon the Philadel error in this proceeding is in supposing a per-phia and Reading Railroad, at or near the sonal liability was imposed upon the executrix of the deceased executor. She was not decreed to pay the amount ascertained to have been in his hands at the date of his death, but his estate was declared the debtor. The petitioner there fore represents simply a creditor of the deceased executor, and must obtain a speedy settlement, in the mode prescribed by law, of his estate. Accordingly the proper practice is, to require the executrix to file an account at the expiration of the year, and then present petitioner's claim for payment. The attachment is refused, the order to pay vacated, and the petition therefore dismissed. Opinion by HANNA, P. J. U. S. Circuit Court- bridge of said company, near Peters Island, in the river Schuylkill, thence by the best route to a point upon the line of the Pennsylvania Railroad, thence by said railroad by the most direct and practicable route to a point upon the line of the Philadelphia, Wilmington, and Baltimore Railroad. The company was authorized to borrow money to the amount of $300,000, which was subsequently increased to $800,000. By a supplement passed March 23, 1861 (P. L. 177), the company was authorized to use the roadway of the Pennsylvania Railroad and of the West Chester and Philadelphia Railroad, or either of them, with the consent of such companies respectively, or to construct the whole or such parts of their railroad as may be needful, with or without the use of one or both of the roads of the companies aforesaid. a The Junction Railroad Company was formed. by a combination entered into by the Pennsylvania Railroad, the Philadelphia, Wilmington, and Baltimore Railroad, and the Philadelphia and Reading Railroad Companies, and all the stock was subscribed for by them except a few shares subscribed for by individuals. The comMay, 1879. Pany was organized, and proceeded to construct Lathrop and Taylor v. The Junction R. R. railroad from a point on the Philadelphia and Reading Railroad to Haverford Street, and also Co. and The Pennsylvania R. R. Co. from the north side of Market Street to a point Railroad-Ownership of track forming part of on the Philadelphia, Wilmington, and Baltimore the line of another railroad in which it is a Railroad at or near Gray's Ferry.. The ground stockholder-Right of way of latter road between the north side of Market Street and Manner of enforcement Obligation to trans- Haverford Street belonged to the Pennsylvania port freight under general railroad law- Railroad Company, being part of what is now Stockholders' bill-Preliminary injunction. called the company's yard. The road on this Motion for a preliminary injunction. portion of the line was actually made by the Bill in equity, filed by Francis L. Lathrop and Pennsylvania Railroad Company, they paying Lewis H. Taylor, citizens of the State of New the cost of materials, labor, and all cost of conJersey, for themselves and other stockholders of struction. Bonds were issued by the Junction the Junction Railroad Company, against the Railroad Company to the amount of $800,000, Junction Railroad Company and the Pennsylva- secured by a mortgage of the entire road. nia Railroad Company, corporations incorporated and doing business under the laws of Pennsylvania. At the same time that this bill was filed similar bills were filed by the Baltimore and Ohio Railroad Company and the Central Railroad Company of New Jersey against the same defendants. The complainants each owned one share of stock of the Junction Railroad Company. The bill and affidavits set forth the following facts: Proceedings were afterwards instituted by the Junction Railroad Company, in the State Courts of Pennsylvania, against the Pennsylvania Railroad Company, to determine the rights of the said companies in the portion of road lying between Market Street and Haverford Street, and the decree of the Supreme Court of Pennsylvania declared the ownership of the strip to be in the Pennsylvania Railroad Company, without prejudice, however, to any rights of the Junction Railroad Company relating to the use of said Brooks v. Curtis, 4 Lans. 283. This is a right in the nature of a right of way necessity. portion. (Pennsylvania Railroad Company's | If the owner of an estate stand by and see Appeal, 30 Sm. 265.) another expend money upon an adjoining estate, By the General Railroad Law of 1849, it is the latter relying upon an existing right of easeprovided that upon the completion of any rail- ment in the other estate, without which such exroad, the same shall be esteemed a public high-penditure would be useless, and do not interpose way for the conveyance of passengers and the to prevent the work, he will not be permitted to transportation of freight, provided that the said interrupt the enjoyment of such easement. company shall have exclusive control of the motive power, and may establish such rates of toll as to the president and directors shall seem reasonable; provided, however, nevertheless, that said rates of toll, when the cars used for such conveyance are owned or furnished by others, shall not exceed two and one-half cents per mile for each passenger; three cents for each ton of 2000 pounds of freight; three cents per mile for each passenger or baggage car; and two cents per mile for each produce or freight car. The Baltimore and Ohio Railroad Company proposed to send its cars over the Junction Railroad in course of transmission to New York City, and to bring them back again for transmission to the West; the Philadelphia and Reading Railroad Company, and the Philadelphia, Wilmington and Baltimore Railroad Company were ready and willing to receive and haul these cars, respectively, over their roads to and from the Junction Railroad, but the Junction Railroad Company refused to furnish the motive power to haul the said cars over the portion of their road belonging to the Pennsylvania Railroad Company; permitting the Pennsylvania Railroad Company to furnish exclusively the motive power. The Pennsylvania Railroad Company were requested to furnish the motive power, but returned no answer. The prayer of the bill was, inter alia, (1) That the Junction Railroad Company be enjoined from refusing to furnish motive power to trans of Washburn on Easements, 31. Bacon's Abr., vol. 4, 688, '9. Morris v. Edgington, 3 Taunt. 31. When two or more persons have a common interest in property, equity will not allow one to appropriate it exclusively, or impair its worth to the others. Jackson v. Ludeling, 21 Wall. 616. D. L. & W. R. R. v. Erie R. R., 6 C. E. Green, 307. Adequate relief can be given on an interlocuapplication. tory Oxlade v. N. E. R. Co., 1 C. B. n. s. 454. Garton v. B. & E. R. W. Co., 6 C. B. n. s. 639. n. s. 297. Att'y Gen. v. G. N. R. C., 1 Drew & S. 154. Att'y Gen. v. Met. Board of Works, 1 Hem. & M. Hepburn v. Lordan, 2 Hem. & M. 345. Cole Silver Mining Co. v. Virginia, 1 Sawyer, 685. Scott, for the Pennsylvania Railroad Company, port over their road freight or passengers shipped by the Philadelphia, Wilmington, and Baltimore Railroad Company, or the Reading Railroad This is not a case for the issue of a preliminary Company. (2) That the Pennsylvania Railroad Company be enjoined from interfering with the injunction. There is no precedent for using a Junction Railroad Company in the performance preliminary writ to take the subject of the litigaof their corporate duties, and in the transport-joyed it, and give it, pendente life, to a party who tion from a party who has always heretofore ening of freight and passengers. The Pennsylvania Railroad Company, in their answer, denied that they had ever surrendered any of their rights to the Junction Railroad Company over that portion of the Junction Railroad which belonged to them, and ran through their yard; and denied that the Junction Railroad Company had violated its duty by refusal to transport passengers or merchandise over said strip of land, or that they were themselves required so to transport said cars. Samuel Dickson and John C. Bullitt, for the motion. has never heretofore enjoyed it-that being the Child v. Douglas, Kay's Ch. R. 578. Farmers' R. R. Co. v. Reno O. C. & P. H. R. R. Mammoth V. C. C. Co.'s App., 54 Pa.. St. 183. University v. Green, 1 Mary. Ch. 97. N. Y. Printing & Dyeing Est. v. Fitch, I Paige, 97. | vania Railroad, by the most direct and practica- Att'y Gen. v. City of Paterson, I Stockton, 624. Dodge v. Woolsey, 18 Howard, 331. The stockholders cannot have this relief upon any other grounds than that the directors of the Junction Railroad Company are guilty of a breach of trust. They are not guilty of that breach of trust, because the relation in which they stand to the Pennsylvania Railroad Company for the use of this mile of track is in effect and in law a contract made in pursuance of the terms of their charter and exercise of their discretion; and unless this Court will undertake to put itself in the place of the directors, reversing their discrethe place of the directors, reversing their discretion, and say that the mile must be run in some other mode than under this contract, there can be no injunction. 1 Potter on Corp's, & 84. Green's Brice's Ultra Vires, 183. ble route, to a point upon the line of the Philadelphia, Wilmington, and Baltimore Railroad." By a supplement to this charter, passed in 1861, the Junction Railroad Company was authorized to "make a complete line of railway from a point on the Philadelphia and Reading Railroad, at or near the bridge at Peters Island, to a point on the Philadelphia, Wilmington, and Baltimore Railroad, at or near Gray's Ferry Bridge, by the most convenient and practicable route." By further legislation the company was authorized to borrow $500,000 upon mortgage of its property and franchises, and upon this security a loan of that amount was negotiated upon the authorized guaranty of it by the three companies named. The stock of the company was taken and is now held by the Pennsylvania Railroad Company, the Philadelphia and Reading Railroad Company, and the Philadelphia, Wilmington, and Baltimore Railroad Company, except a few shares which are held by individuals. At the organization of the company in 1861, the President of the Pennsylvania Railroad Company was elected its president, and occupied that line of its road was located definitely between its position until 1867, during which time the whole prescribed termini; under his direction a large sum, to wit, about $870,000, was expended in its construction, and the whole of the road, except that part between Market and Thirty-fifth streets, was completed by it. This intervening part was constructed by the Pennsylvania Railroad Company, and was held James E. Gowen, for the Junction Railroad by the Supreme Court of Pennsylvania to be the Company. C. A. V. Oct. 28, 1880. THE COURT. It is no part of my present purpose to notice any other than the main question in this case. It is sufficient for me to say, as to several other questions discussed by counsel at the argument, that, in my opinion, the Court has power to grant the preliminary relief prayed for, and that the alleged impending injury to the interests of the complainants is of such a character as to entitle them to invoke the intervention of the Court. property of that company, and this decision must be regarded as conclusive, so far as the legal ownership of that link is concerned. But in view of the admission that the Junction Railroad may have rights touching the use of the section of road referred to, the decree was entered without prejudice to such rights, or to the assertion. of them in an appropriate proceeding. Various other facts are alleged in the bills of complaint, and are verified by the accompanying affidavits, which, all together, constitute a "strange, eventful" history of the construction of the road. The Junction Railroad Company is a corporation created by a special Act of the Pennsyl- Enough of them have been here stated to indivania Legislature, dated May 30, 1860, whereby cate the vital object, and the essential importit was authorized to "construct a railroad com-ance to the public, of the construction of the mencing at a point upon the Philadelphia and road. Reading Railroad, at or near the bridge of said The Pennsylvania, the Philadelphia and Read. company, near Peters Island, in the river Schuyl-ing, and the Philadelphia, Wilmington, and Balkill; thence by the best route to a point upon timore Railroads terminate at Philadelphia. the line of the Pennsylvania Railroad, within They were unconnected with each other, and so one mile east of George's Run, at the village of the immense traffic requiring transfer from the Hestonville; thence by the line of the Pennsyl- one to the other, was necessarily conducted with Company, in reference to the middle section of the Junction Road, when it induced these interests to make large expenditures of money and incur large liabilities upon the faith that this middle section should constitute an indispensable constituent of a joint enterprise? There is no just ground for any discrimination. great expense, inconvenience, and embarrass- and southern sections of the Junction Road, ment. These difficulties could be almost entirely either by denying it altogether, or by imposing avoided by the construction of a continuous line burdensome restrictions upon it. Why ought not only about four miles long from Gray's Ferry to a like measure of justice be meted out to the Peters Island, and accordingly the Junction Road other interests associated with the Pennsylvania was projected and made. A broken line with a gap in the middle of it would not answer the purpose; its continuity was absolutely essential to effectuate the object of its creation, as well as to meet the just expectation of its stockholders and the public. So, in the annual report of the Pennsylvania Railroad Company, February 3, 1862, it is said: The Philadelphia, Wilmington, While I am of opinion that the Junction Railand Baltimore Railroad Company, the Philadel-road Company may have the right to employ its phia and Reading Railroad Company, and the own motive power over the whole line between Pennsylvania Railroad Company have organized its termini, yet, I think, the operations of the the Junction Railroad Company, under a charter road should be conducted with as little friction procured from the Legislature of 1860, and as possible, and without any avoidable abridgamended at the last session. The object of this ment of the proprietary rights of the Pennsylline is to connect these three railroads by a con- vania Railroad Company. The injunction tinuous line along the west bank of the Schuyl- granted, therefore, will not restrain that comkill River, from the Reading Railroad, near pany from operating its own portion of the line Peters Island Bridge, to the Philadelphia, Wil-with its own motive power. mington, and Baltimore Railroad, at Gray's Ferry, intersecting the Pennsylvania Railroad, near the Wire Bridge, at Fairmount, so that an interchange of freight between these lines may and decreed that an injunction be granted until interchange of freight between these lines may be effected without passing through the populous further order of this Court, enjoining and reportions of the city. In apparent accordance straining the said Junction Railroad Company, with this declaration were all the acts and decla- its officers, servants and agents from declining or rations of the Pennsylvania Railroad Company during the progress of construction until the controversy arose as to the ownership of the middle section, and they may, therefore, be fairly regarded as, in a great measure, inducing the expenditure of the large sum laid out by the Junction Railroad on its line. The following decree was entered ; (1) And now, October 28, 1880, it is ordered refusing or in any manner failing to perform the duties required of them by the charter of said company, and especially from declining or refus ing to furnish motive power, haul, receive, ship or transport over its road freights or passengers arriving in cars by the Philadelphia, Wilmington, and Baltimore Railroad destined for the Philadelphia and Reading Railroad or its connections, or from declining or refusing to furnish motive power, haul, receive, ship or transport freight or passengers arriving in cars by the Philadelphia and Reading Railroad, destined for the Philadel phia, Wilmington, and Baltimore Railroad or its connections. Any other hypothesis must assume that the Junction Railroad Company was willing to imperil the chief object of the enterprise and the value of its investment, by making itself entirely dependent upon the arbitrary will of the owner of the middle section for the profitable use and enjoyment of the two other sections of the line. Ought the Pennsylvania Railroad Company, (2) That the said Pennsylvania Railroad then, to be permitted so to control the section Company, its officers, agents, and servants be of the road of which it is the proprietor, as to enjoined and restrained from interfering with or exclude the Junction Railroad Company from in any manner hindering the said Junction Railparticipation in its use as part of a continuous road Company from performing its said corpoline? I think not. It must be treated, in rate duties and transporting freight and passenequity, as having agreed to such reasonable use gers as aforesaid. of the section owned by it, as is necessary to effectuate the common object of those who furnished the means of constructing the Junction Road as a continuous line; and, to that extent, to a modification of its proprietary rights. It would certainly be unwarrantable in the Junction Company to exclude the Pennsylvania Railroad Company from the beneficial use of the northern (3) This injunction shall not be taken to restrain the said Pennsylvania Railroad Company from furnishing exclusively the motive power to transport the cars aforesaid over and upon that portion of the Junction Line which is situated between the north side of Market and Thirtyfifth streets in the city of Philadelphia. Opinion by MCKENNAN, Cir. J. WEEKLY NOTES of Cases. Error to the Common Pleas of Bucks County. Case, by Anthony Bock against the Pennsylvania Railroad Company, to recover damages for the loss occasioned by the death of his son Anthony Bock, Jr., and also for the loss of a VOL. IX.] THURSDAY, DEC. 23, 1880. [No. 18. horse killed at the same time by a train on de Supreme Court. July, '79, 67. March 5, 1880. Pennsylvania R. R. Co. v. Bock. Negligence-Contributory negligence-Suit for death of minor child-Pleading-Declaration -Joinder of common law and statutory claims -Joinder of parties suing in different rights. fendant's track at a crossing in the borough of Bristol. At the trial, before WATSON, P. J., it was agreed that the action should be tried with the same effect as if the plaintiff's wife had been a party plaintiff and that she should be concluded by the verdict. The evidence showed that on the morning of May 31, 1875, the plaintiff was engaged in hauling manure in the borough of Bristol with a team consisting of a hay wagon, two mules, and a lead horse. He had crossed the track, which ran through a well-built up portion of the town, earlier in the day with the wagon and mules only, and proceeded to load In an action against a railroad company for negligence, up, at a stable not far distant from the track, the defendant requested the Court to charge: "That the while his son, a lad of seven years, but remarkplaintiff being about to drive a team, with two mules and ably intelligent and well-grown, and accustomed a horse on the lead, across a railroad track, with a loaded to assist his father in this and other ways, brought wagon, having placed his son, seven years of age, on the lead horse, over which he, the father, had no control, was the horse round by another road, leading under guilty of negligence in placing his son in such a dangerous the track, but which at that time was impassable position; and cannot recover for the loss of his son or his for the wagon. There was no line attached to horse killed by the passing train." To which the Court the horse, the boy, who rode upon his back, conanswered: "This point assumes a fact, the existence or non-existence of which is a question for your considera- trolling him by the bridle. While the plaintiff rion, to wit: whether plaintiff placed his son on a horse was loading the wagon the boy geared the horse over which he had no control. This is for you and we can- to the wagon and when ready to start jumped not assume it. If it were true it would be strong evidence upon the horse's back and the team started off, of negligence. It is for you to find under all the evidence in the cause whether there was negligence either on the part of the plaintiff or of his son who was killed, which contributed to the production of the accident. If there was such contributing negligence the plaintiff cannot recover." The verdict was for the plaintiff: Held, that the assumption in the point forbade its affirmance, and that it could have been well refused without qualifying remarks. the plaintiff taking the near mule by the bridle and walking beside him. At the foot of a slight rise leading to the track and about 60 feet from it plaintiff stopped the team. From this point, owing to the houses, the track is only visible for a few feet in the westerly direction; from a point about eleven feet from the track it can be seen in Held, further, that there was error in the remark that if the same direction for about 468 feet, and from the assumed fact were true, it would be strong evidence of the middle of the track the view is clear for 1500 negligence, for on the verity of the facts as assumed, without feet. At the crossing planks are laid down makreference to other proofs, it would be contributory negli-ing an even surface. Plaintiff, after stopping gence per se; and as it was not certain that the error did the team, walked ahead to the middle of the track, from which place he looked in both direcWhere the form of the declaration shows no inconsist-tions and listened for about half a minute; not ency in the rights sued upon, nor an apparent misjoinder of the claimants thereunder, an actual misjoinder of rights or parties must be taken advantage of on trial and not by motion in arrest of judgment. the defendant no harm, the judgment must be reversed. A claim for statutory and common law damages admitting of the same pleas and judgment may be joined in the same action. hearing any train he called to the boy to come on, and returning to meet the wagon took the near mule by the bridle as before; just as the horse was about to step across the first rail plaintiff heard a train approaching; he shouted "Oh !" and jerked the mule back but the horse had already got his forefeet on the track and was struck by the locomotive of an east-bound train. The horse was instantly killed; and the boy was thrown upon the engine and received serious injury from whith he died within a few hours. Held, that no such error was apparent on the record as A witness who was present testified that so soon could be taken advantage of by motion in arrest of judg-as he saw the train both he and the plaintiff In an action against a railroad company for the death of plaintiff's minor child, in which was joined a claim for the loss of personal property, it was agreed on the trial that the action should be tried as if the mother were a party, and she should be precluded by the verdict. The verdict was for the plaintiff: ment. shouted, but within three seconds from the time |