justified by the circumstances here presented. Indeed, Horst says that he stopped and hesitated about passing the cut, until he was beckoned on by one of the train hands. Having been thus invited to pass, he had no reason to apprehend that anything would be done by the company's servants to alarm his horse. As he came up everything was quiet, and there was no good reason why it should be otherwise; and if some one of the employees chose, just at the critical moment when the horse was between the cars, to shift the brakes, and thus cause the rattling spoken of, the jury might well find that this was the immediate cause of the accident. Whilst a railroad company must be allowed the free use of all its rights, yet those rights must be exercised with due regard to the welfare and safety of others. Pennsylvania R. Co. v. Barnett, 9 P. F. Smith, 259. It not only has the right, but it is its duty to have the whistles of its locomotives blown upon all proper occasions, but not under a bridge over which a trayeller is passing with his team. They have a right to blow off their engines through the mud valves, but not at a common crossing; they have a right to stop a locomotive, but not to the windward of a house in process of construction, and which may be burned by sparks issuing therefrom. Turnpike Co. v. R. R. Co., 4 P. F. Smith, 345. All these things indicate negligence in the use of a right, and cannot be justified on the ground of the possession of such right, for it must also be used in a lawful manner.

In the present case, the right to screw up or release the car brakes is not denied, but whether this was done at a proper time and in a proper manner was a question of fact properly determinable by the jury. Negligence where there is evidence involving it is always for the jury, and in this case we cannot say there was no such evidence.

Judgment affirmed.

NOTE. This case affords a somewhat unusual and peculiar instance of that most fruitful cause of litigation, casualties at railroad crossings. As stated by Gordon, J., it is unlawful to block crossings with trains. The company's right is to pass over, not to obstruct. Murray v. Railroad, 10 Rich. (S. C.) 227; State v. Railroad, 1 Dutcher (N. J.), 437; State v. Grand Trunk R.Co., 59 Me. 189; Patterson v. R.Co., 19 Am. & Eng. R. R. Cases, 415. The passer-by must on his part exercise proper care. Chicago, etc. R. Co. v. Coss, 73 Ill. 394; Chicago, etc. R. Co. v. Sykes, 96 Ill. 162: Cahagan v. R. Co., 1 Allen, 187. The decisions analogous to the principal case may be examined somewhat in detail. In Mahar v. R. Co., 19 Hun, 32, a train left a narrow opening at a street crossed by several tracks. A passer-by going cautiously over the crossing was struck by a car switched rapidly down another track. It was held that the crossing was obstructed, and that whether the injured man had been guilty of contributory negligence was for the jury to decide.

In a recent Michigan case, Young v. R.Co., 19 Am. & Eng. R. R. Cases, 417, the plaintiff was injured by his horse taking fright at cars standing at a crossing. An opening at least sixteen feet wide had been made in

the train. The highway at that point was twenty feet wide, and the evidence was conflicting whether the whole crossing was left free. The court refused to say that the highway was not obstructed when sixteen feet of it were clear. What amounted to obstruction depended on the facts of the case and should be determined by the jury.

Another Michigan case, Geocke v. G. R. & I. R. Co., 24 N. W. Rep. 675, closely resembles the principal case. When plaintiff reached the crossing he found a train upon it. After waiting some time the train was backed clear of the crossing, the engine stopping at a point thirty-three feet from where the plaintiff crossed. The engine was letting off steam from the safety-valve, but plaintiff's team, accustomed to the railroad, did not mind this noise. But as the wagon was crossing the rails the cylinder cocks were opened, so the plaintiff testified, a sharp hissing sound made, and smoke and steam belched out, which frightened the team and occasioned the accident. It was held (1) that it was not negligence for the plaintiff to cross. (2) That there was no negligence of the defendant, unless there was an unnecessary opening of the cylinder valves. The defendants' right of way included a right to make the noises unavoidably incident to a railroad. (3) Whether the cylinder valves were opened, and if so, whether they were unnecessarily opened was for the jury.

In a very late case, V. & M. R. Co. v. Alexander, 62 Miss. 498, still another phase of the question is displayed. The train had been at the crossing an hour, the locomotive standing three feet and a half over the highway. The plaintiff waited twenty minutes for the train to move, then got down and led his horse across. The locomotive made no noise, but the horse took fright at the sight of it. It was held that the railroad company was liable as obstructing the highway, and that whether the plaintiff was guilty of contributing negligence was for the jury.

These cases agree with the text in holding that to go over a highway crossing where a train is standing is not per se negligent.

It is held, also, that what amounts to an obstruction of the highway depends upon the circumstances of the particular case.

The case last cited seems to rule that to delay upon any part of a crossing is an obstruction. It has been held, however, in Michigan, that the mere facts that a car projects a little over the highway, and that a quiet horse takes fright at it does not make the railroad company negligent. Gilbert v. R. Co., 51 Mich. 488.

The cases show, finally, that as the use of crossings belongs both to railroads and passers-by, the right possessed by the former to make noises incident to railroads, must at crossings be exercised with appropriate care. CHARLES CHAUNCEY SAVAGE.

Philadelphia, Pa.

way as to prove that he admits the existence of a contract and admits that the goods were delivered under the contract, this is a sufficient acceptance to satisfy § 17 of the Statute of Frauds, although the purchaser afterwards rejects the goods on the ground that they are not equal to sample; and if the goods prove equal to sample the purchaser is liable. Kibble v. Gough, 38 L. T. Rep. N. S. 204, approved. Decision of Lord Coleridge, C. J., and Cave, J., affirmed.

The plaintiff brought this action to recover the price of certain wheat which he had agreed to sell to the defendant, or, in the alternative, damages for not accepting the wheat. There was no memorandum in writing of the contract of sale, but the plaintiff in pursuance of a verbal agreement, caused a number of sacks of wheat to be placed in barges and sent to the defendant's mill. The barges arrived in the evening, and on the following morning the defendant's servants raised some of the sacks from the barges into the mill. After several sacks had been brought into the mill the defendant's foreman arrived and examined the sacks which had been brought up, and stopped the delivery of the wheat on the ground that it was not equal to sample, and on this ground the defendant refused to accept it, and the wheat remained in the barges until after the commencement of the action, when it was sold by order of the court, and realized a sum which was less than the agreed price by £44. At the trial, which took place at the Chelmsford assizes, before Mr. Bulwer, Q. C., sitting as commissioner, the jury found that the wheat was equal to sample, and that the plaintiff had acted reasonably. As to the question whether there was a sufficient acceptance of the wheat by the defendant to render the ccntract of sale binding, the learned commissioner directed the jury that, if the sacks of wheat were placed in the defendant's mill, although he did nothing more than was necessary for the purpose of examining them, there was an acceptance. The jury found for the plaintiff for £44 in addition to the sum realized by the sale of the wheat. The defendant moved to enter judgment for him on the ground that there was no evidence of a sufficient acceptance of the wheat to satisfy the 17th section of the Statute of Frauds, or for a new trial on the ground of misdirection.

This motion was dismissed by Lord Coleridge, C. J. and Cave, J., and the defendant appealed. Morton (Murphy, Q. C., with him), for the defendant, in support of the appeal.

There was no evidence of acceptance to satisfy section 17 of the Statute of Frauds, which ought to have been left to the jury, and therefore judgment ought to have been given for the defendant at the trial, and ought to be entered for him now. Even if there was some evidence for the jury, the direction was incorrect, and there ought to be a new trial. The direction was founded on the cases of Morton v. Tibbett, 15 Q. B. 428, and Kibble v. Gough, 38 L. T. Rep. N. S. 204, which were referred to at the trial; but,assuming those decisions to

be correct, they are distinguishable from the present case, having regard to the way in which the goods were dealt with. Here nothing was done which could amount to an acceptance of the wheat. The examination which was made was for the purpose of ascertaining whether the wheat was equal to sample in order that the defendant might decide whether he would accept it or not, and he decided not to accept. What was done may have amounted to a receipt of a part of the goods, but that is not sufficient, for the statute requires both receipt and acceptance. Rickard v. Moore, 38 L. T. Rep. N. S. 841,is a strong authority in favor of the defendant, and that case throws some doubt on the correctness of the decision in Kibble v. Gough, 38 L. T. Rep. N. S. 204.

Philbrick, Q. C., and R. Vaughan Williams, for the plaintiff, were not called on.

BRETT, M.R.-The law on the point raised in the present case is settled by the judgment of this court in Kibble v. Gough, 38 L. T. Rep. N. S. 204, which lays down the rule and principle as to evidence of acceptance of goods within the meaning of section 17 of the Statute of Frauds. In giving judgment in that case Bramwell, L. J., said: "The first question is on the Statute of Frauds, was there part delivery, and did the defendant actually receive and accept part of these goods? *** There was here no contract in writing. There is no doubt about the delivery of the first thirteen quarters; was there an acceptance of them? I will not say that the decision in Morton v. Tibbett, 15 Q. B. 428, was wrong; on the contrary, I think it was right. A man may accept goods without losing his right of objection to them; there must be such an acceptance to satisfy the statute as amounts to a recognition of the contract between the parties." In that case the goods were taken in by the buyer, and were dealt with for a short time, but were not kept for so long a time that the buyer would have had no power to reject them if they had proved not to be equal to sample. In a case where goods are delivered, and the buyer takes possession of them and deals with them, if he could not do so unless he had made a contract, and unless the goods had been delivered in fulfilment of that contract, there is evidence for the jury of an acceptance to satisfy the statute. The only question in the present case is whether there was evidence which would entitle the jury to find that there had been such an acceptance. The goods were sent to the defendant's mill in barges, and the next morning some of the sacks of wheat were taken up into the mill by the defendant's servants. A little later the defendant's foreman came and examined the wheat, which had been brought up. I cannot see how he could do that unless he knew that there was a contract, and that the wheat had been delivered in pursuance of the contract, and therefore I think the jury were entitled to say that he examined the wheat in order to ascertain whether it was equal to sample. How reasonable men could

come to any other conclusion except that the defendant admitted that there was a contract relating to wheat, and admitted that this particular wheat had been delivered to him in pursuance of this contract, and had examined it for the purpose of ascertaining whether it was equal to sample, I am unable to understand. No doubt there might be circumstances attending the delivery of goods which would not lead to a similar conclusion, as, for instance, if the person to whom the goods were delivered refused to allow them to remain on his premises or to have anything to do with them. In such a case, although there would be a delivery, there would be no acceptance. I rely not only on the delivery and the fact that, the goods were in the defendant's warehouse, but on the fact that he examined them, and by doing so admitted that there was a contract. That is all that is necessary to justify the verdict of the jury. The case of Kibble v. Gough is a decision which is binding on this court, but I do not think that Rickard v. Moore, 38 L. T. Rep., N. S. 841, was decided under such circumstances as to be binding on us in the present case. For these reasons I am of opinion that there is no color for the suggestion that there was any misdirection at the trial, and that being so the decision of the Divisional Court was correct, and this appeal must be dismissed.

BAGGALLAY, L.J.-I am of the same opinion. In order to make this contract of sale binding under section 17 of the Statute of Frauds, it is necessary that "the buyer shall accept part of the goods so sold, and actually receive the same." The decisions in Morton v. Tibbett and Kibble v. Gough show that there may be an acceptance and receipt sufficient to satisfy the provisions of section 17, although the circumstances are not such as to preclude the purchaser from afterwards rejecting the goods on the ground that they are not equal to sample. It is true that there was some difference of opinion in the old cases as to what constituted a sufficient acceptance, but the question seems now to be settled, for Kibble v. Gough affirmed Morton v. Tibbett after that decision had stood for nearly twenty-eight years. In Rickard v. Moore there is a distinction as to the facts, and there is also this distinction, that the jury in that case found that the goods were not equal to sample. Here, and in the other two cases to which I have referred, the jury found the contrary. I have no doubt that there was evidence to go to the jury in the present case, and that their verdict was right.

BOWEN, L. J.-I am of the same opinion. I think the case is governed by Kibble v. Gough, which must be taken as the fountain of the law on this subject. We are bound by that decision, so it is unnecessary to express any opinion as to its correctness; but at the same time I cannot help saying that it seems to me to be founded on sound commercial common sense. An acceptance and receipt is the condition on which the validity of the contract depends, and one would expect that

the legislature would mean that it should amount to an acceptance where the buyer was dealing with the goods in such a way as to recognize the existence of the contract of sale, and the fact that the goods had been sent to him under it. That is the effect of the decision in Kibble v. Gough (ubi sup.) In Rickard v. Moore (ubi sup.), there was a distinction, as has been pointed out by the Master of the Rolls and Baggallay, L.J.; for in Kibble v. Gough the jury found that the goods were equal to sample, whereas in Rickard v. Moore it was found that the goods were not equal to sample, and therefore they were rightly rejected by the purchaser. The decision in that case as to the acceptance was merely on a secondary point, and I think that Bramwell, L. J., could not have meant to unsettle the law as laid down in Kibble v. Gough. Even if this were so, I am of opinion that, having the two cases in the Court of Appeal before us, we ought to go back to Kibble v. Gough, and follow that decision.

Appeal dismissed.

NOTE. The doctrine enunciated in the principal case-that in order to manifest an acceptance within the meaning of the statute, the buyer must so deal with the goods as to prove that he recognizes the existence and obligation of the contract-together with the cognate rule that the property must pass entirely beyond the dominion and control of the seller, runs through all the reported decisions and forms the basis of the whole law on this subject. Thus it is universally held that there must be both a delivery by the vendor and an acceptance by the vendee; that the one without the other will not satisfy the requirements of the statute. And first, as to delivery, it is essential that the possession and control of the property should be completely transferred to the purchaser; if the vendor retains his lien on it for the purchase-money, it cannot be so delivered as to take the case out of the statute.2 But the fact that the vendor remains in possession of the goods under an agreement with the vendee to sell them for him will not make the sale void.3 The delivery may be symbolical, e. g., a delivery of the key of the warehouse in which the goods are stored; or where it would be extremely difficult to collect all the articles in one place; or where they are of great weight and bulk. It is not necessary that the delivery and acceptance should be contemporaneous with the making of the contract; it is sufficient if they take place within a reasonable time. But to constitute a sufficient delivery and acceptance, something more than mere words is requisite;s and no promise or declaration of the buyer that he will take the goods (then left for him at another place), at a future day, will amount to an acceptance.9

Next, as to acceptance, it is necessary to show some act on the part of the vendee plainly acknowledging the existence of the contract and that the goods are received pursuant thereto. Thus where goods are sold by sample, it is not enough to prove that they came into the possession of the vendee and that they corresponded to sample; for he might receive them without accepting them, and they might be such as the contract called for and yet be rejected by the purchaser.10 But any unequivocal act, on the part of the buyer, amounting to an assertion of ownership of the property, will suffice to take the sale out of the statute. In an interesting English case it appeared that a complete verbal bargain had been made for the sale of a horse, but no actual delivery; that the vendor then asked the purchaser to lend him the horse for a short time; that the vendee assented, and the vendor kept the horse for two weeks and then sent him to the purchaser, who refused to receive him; and it was held that,as the purchaser had assumed the ownership of the horse in making a loan of him, there was a sufficient delivery and acceptance.12 But the seizure of the goods, under legal process, as the property of the vendee, is not sufficient to satisfy the statute.13 There is much conflict of authority as to whether the acceptance must be absolute and final, so as to preclude the buyer from afterwards objecting to the quantity or quality of the goods, or the reverse. The principal case and Morton v. Tibbett, cited by court and counsel, seem to establish the rule that there may be a sufficient acceptance by the purchaser without any waiver of his right to reject the goods for inferiority or deficiency. And there are many cases agreeing with these decisions.14 But on the other hand it has been frequently held that the mere receipt of the goods by the vendee and his examination of them for the purpose of ascertaining their quantity and quality will not amount to a sufficient acceptance; that he must accept them finally and unconditionally.15 It is not always necessary that the goods should leave the shop or warehouse of the seller.16 But an acceptance is not proved by showing a deposit of the articles in the public highway at a point designated by the purchaser, and a notification to him of the fact that they were so deposited; nor by the fact of the vendor's sending the article in an incomplete condition to a place designated by the vendee for the delivery of the perfect article.18

It is well settled that the delivery and acceptance of a substantial part of the goods sold will satisfy the requirements of the statute.19 But evidence of delivery

10 Remick v. Sandford, 120 Mass. 309; Stone v. Browning, 68 N. Y. 598.

11 Vincent v. Germond, 11 Johns. 283; Marshall v. Ferguson, 23 Cal. 65.

12 Marvin v. Wallace, 6 El. & B. 726. An American case, on a similar state of facts, holds an exactly opposite view: Philips v. Hunnewell, 4 Greenl. 376.

13 Hicks v. Cleveland, 48 N. Y. 84; Washington Ice Co. v. Webster, 62 Me. 341.

14 Currie v. Anderson, 2 El. & El. 598; Cusack v. Robinson, 1 B. & S. 299; McMaster v. Gordon, 20 U. C. C. P. 16; Strong v. Dodds, 47 Vt. 358; Smith v. Stoller, 26 Wis. 671. 15 Hewes v. Jordan, 39 Md. 472; Stone v. Browning, 68 N. Y. 598; Lloyd v. Wright, 25 Ga. 215; Hausman v. Nye, 62 Ind. 491. And Morton v. Tibbett has been severely criticised in the exchequer. Hunt v. Hecht, 8 Ex. 814; Coombs v. R. R. 3 Hurl. & N. 510; Castle v. Sworder, 6 Id. 832.

16 Exp. Safford, 3 Lowell, 453. See Knight v. Mann, 120 Mass. 219.

17 Finney v. Apgar, 31 N. J. L. 266.

18 Brewster v. Taylor, 63 N. Y. 587.

19 Van Woert v. Railroad, 67 N. Y. 538; Atwood v. Lucas, 53 Me. 508; Davis v. Moore, 13 Me. 424; Gault v. Brown,

48 N. H. 183; Townsend v. Hargraves, 118 Mass. 325.

and acceptance of a less amount of similar goods is not sufficient without proof that they were delivered and received as a part of the goods sold.20

The acceptance need not be the personal act of the vendee; it may be made for him by any duly authorized agent. And a delivery to one of several joint purchasers, and acceptance by him, renders the contract valid as to all.22 As to the effect of delivery to a carrier there has been much indecision. It has been held that if the goods were delivered to a carrier selected and named by the purchaser, and accepted by him, this would constitute a sufficient receipt and acceptance under the statue.23 But the better opinion undoubtedly is, that, while a delivery of the goods to a carrier, pursuant to the directions of the purchaser, will fulfill the duty of the vendor and amount to a sufficient delivery, yet it cannot be construed into an acceptance of them by the vendee.24 In other words, if the contract itself were valid, such a delivery would be sufficient to transfer the title to the purchaser, but it is not sufficient to consummate a sale otherwise void under the statute.

The question of acceptance is one of fact, and it is for the jury to decide whether the circumstances proved, of acting or forbearing to act, do or do not amount to an acceptance within the statute.25

20 Davis v. Eastman, 1 Allen, 422.

H. C. BLACK.

21 Snow v. Warner, 10 Met. 132. But see Quintard v. Bacon, 99 Mass. 185.

22 Smith v. Milliken, 7 Lans. 336.

23 Hart v. Sattlery, 3 Camp. 528; Spencer v. Hale, 30 Vt. 314.

24 Denmead v. Glass, 30 Ga. 637; Wilcox S. P. Co. v. Green, 72 N. Y. 17; Rodgers v. Phillips, 40 N. Y. 519; Atherton v. Newhall, 123 Mass. 141; Lloyd v. Wright, 25 Ga. 215.

25 Garfield v. Paris, 96 U. S. 557.

1. CONSPIRACY. [Indictment.] Must Charge that the Combination was Corrupt.-To constitute a combination a conspiracy, it must be corrupt. An indictment against members of a board of chosen freeholders for combining to vote a sum of money out of the county funds to a third person, but which did not charge that the confederation was corrupt, or that the third person was to the knowledge of the defendants disentitled to the money, is bad. [Citing People v. Powell, 63 N. Y. 88.] State, Wood et al. prosecutors v. State, S. C. N. J., Nov. 5, 1885; 1 Atl. Reporter, 509.

2. CONSTITUTIONAL LAW. [Judicial Power.]—Act Authorizing Entry of Judgment by Confession by Clerk of Court.-The act of the legislature authorizing clerks of the circuit courts to enter up judgments by confession is not unconstitutional. In the opinion of the court by Thayer, J., it is said: "It is contended upon the part of the appellants that the entry of judgment by default or up

8.

on confession involves the exercise of judicial power, and that, as all judicial power in this State is required to be vested in certain courts, the legislature had no authority to confer any such power upon the clerk. The decisions of other courts under similar provisions of statute and organic restrictions are conflicting. The point of difference between them is a disagreement as to whether such entry is a judicial or ministerial act. If I were required to decide the abstract question, I should be very much inclined to hold that the rendition of judgment in all cases was a judicial act. The mere entry of judgment, no doubt, is a ministerial act; but it seems to me that before such entry can be made there must be an adjudication, either that the facts committed, or the confession and statement in the particular case, entitle the party to a judgment. Our statute upon the subject has been in force for nearly twenty years. It may be said to have been acquiesced in by the bar, and it has tacitly been upheld by the courts. It has become a rule or practice, and, if pronounced invalid now, would cause disturbance in property rights and occasion great mischief. When an act of the legislature has been so long recognized as binding, and important affairs of the community, affecting individual rights, been transacted in accordance with its provisions, it should not be disturbed unless it plainly and unequivocally conflicts with the organic law. An act which has been sanctioned by the community ought not to be declared unconstitutional by the courts when the question is in any degree doubtful. Whatever, therefore, my own private notions upon the subject are, so long as I am not positively certain of their correctness, I feel constrained to hold that such judgments are valid." Waldo, C. J. dissented. Crawford v. Beard, S. C. Colo., Nov. 9, 1885; 8 Pac. Repr. 537.

[Retirement of Judges and Justices]— Surrogate in New York not a Judge or Justice, etc. The provision of § 13 of article 6 of the Constitution of New York, to the effect that no person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age, does not apply to persons holding the office of surrogate. [The court reasoned that in interpreting constitutions regard must be paid to the popular sense in which words are generally used, and that legislative action closely following the adoption of a provision of the Constitution, and related thereto, is entitled to great consideration by courts in construing the provision.] People ex rel. etc. v. Carr, N. Y. Ct. of App., Oct. 27, 1885; 2 East Repr. 659.

4. CONTRACT. [Estoppel by Fact of Signing.] Signing without Intending to be Bound.-In the absence of fraud or imposition, one who enters into a contract is conclusively presumed to understand the terms and the legal effect of it, and to assent to them. [Citing Rice v. Dwight Man. Co., 2 Cush. 80]. Accordingly it is no defense to an action on a note that the maker testifies that she signed the notes "not thinking of such a thing as binding herself upon the note," unless she was induced so to believe by the fraud of the plaintiff or his agent. Jackson v. Olney, S. C. Mass. Oct. 24, 1885; 2 East. Repr. 712.

5. DOWER-Money set Apart in Lieu of, is Realty. -In a suit for that purpose, lands of D. are sold for partition, one-third of the proceeds being set apart for widow's dower; A., a daughter of D.,

who was sui juris, and a party to the suit, subsequently intermarried with T., and died during life of widow of D., never having had issue; after death of widow, T. sued to recover the share o A, his deceased wife, in the dower fund, claiming it as personalty. Held: The dower fund is realty, and A.'s share passes to her next of kin; T., her surviving husband, has no interest therein. Turner v. Turner, Va. S. C. of App., Oct. 8, 1885; 9 Va. L. J. 728.

6. DURESS. [Per Minas].-Threat to Sue and Imprison not Duress.-A threat to sue defendant, and to arrest and imprison him, is not such duress as will avoid a promise induced by such threat. [Citing 1 Pars. Cont. (5th ed.); Shephard v. Watrous, 3 Caines, 196; Farmer v. Walter, 2 Edw. Ch. 601: Knapp v. Hyde, 60 Barb. 80.] Dunham v. Griswald, N. Y. Ct. of App., Oct. 27, 1885; 2 East Repr. 674.

7. EASEMENT. [Non-User-Abandonment-Evidence]. Non-User for More than Twenty Years how far Evidence of Abandonment.-While a mere non-user of an easement, even for more than twenty years, will not be conclusive evidence of abandonment, such non-user, united with an adverse use of the servient estate, inconsistent with the existence of the easement, will extinguish it. [Citing Jennison v. Walker, 11 Gray, 423; Owen v. Field, 102 Mass. 90; Barnes v. Lloyd, 112 id. 224; Chandler v. Jamaica Pond Aqueduct, 125 id. 544.] Smith o. Langewald, S. C. Mass., Oct. 24, 1885; 2 East. Repr. 718.

8. EMINENT DOMAIN. [Abandonment.] -Right to Abandon the Condemnation Proceedings.-Under the statute (section 242), the right or privilege to abandon proceedings to condemn land on payment of costs and accrued damages is lost whenever the land-owner acquires a vested right to the compensation awarded. The land-owner's interest in the award made cannot be said to be vested until the payment or deposit in the manner provided by law of the sum awarded. [Citing on this point Stacey v. Vermont Cent. R. Co., 27 Vt. 39, and cases there cited; Peoria & R. I. R. Co. v. Rice, 75 Ill. 329; Norris v. Mayor, etc., 44 Md. 598; Graff v. Mayor of Baltimore, 10 Md. 544.] Proceedings to condemn land are special proceedings, differing widely from those of an ordinary civil action, governed by dissimilar rules of pleading and practice; and abandonment in one is not analagous to nonsuit in the other. [Pollard v. Moore, 51 N. H. 188, followed.] An appeal from the award, and the overruling of a motion to set the same aside, does not deprive the party seeking to condemn the land from abandoning the proceeding, even after decision of Supreme Court. [Denver & N. O. R. Co. v. Jackson, Colo. 340, explained and limited.] Where a railroad seeks to condemn lands for depot, engine-house and machine-shops, and right of way, it may, after the award, abandon the proceedings as to all except the right of way, if it choose so to do; but in that case there will have to be a new award of damages resulting from the right of way alone. In a note to this case the learned editor of the Pacific Reporter adds: "It was held by Judge Deady, in the case of United States v. Oregon Ry. & Nav. Co., 16 Fed. Rep. 524, that where the United States has instituted proceedings to condemn lands for public improvements, after the award of damages has been made, the plaintiff can elect to pay the award or abandon the proceedings. But it is said by the Supreme