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pleted his contract when he had shipped the tent by the usual route to Lewistown, and the title passed and defendant would be liable for the purchase-price, even though the tent should be destroyed, without plaintiff's negligence, in transitu, and this would not be affected by the fact that plaintiff retained his lien for the purchase-price until the tent was delivered at Lewistown. Judgment affirmed. Higgins v. Murray. Opinion by Church, C. J. [Decided April 9, 1878.]
ed. Held, that he had jurisdiction to issue an order appointing the commissioners. Orders below affirmed. In re Ryers. Opinion by Folger, J. Church, C. J., dissented. [Decided January 15, 1878. Reported below, 10 Hun, 93.]
PARTNERSHIP. Attachment and execution against one partner on firm debt does not hold firm property.-In an action against a firm upon a firm debt where both partners were brought into court, but one only was liable from his personal situation to the issue of an attachment against his property, held, that an attachment issued would reach only his property,and not the property of the firm, an hat an assignment of the firm for the benefit of creditors after the attachment, would convey the firm property, and a sale thereafter, under execution, of the interest of the partner named, would only convey his interest after the settlement of the estate, and the execution purchaser could not hold title to the property attached and sold against the assignee. Judgmeut below affirmed. Staats v. Bristow. Opinion by Fol
NOTES OF RECENT DECISIONS.
[Decided April 9, 1878.]
RAILROAD AID BONDS. Town bonds not issued in compliance with statute invalid.-The consent of a majority of the tax payers of the towu of Thompson was obtained for the issuing of town bonds in aid of a railway. The consent stated on its face that it was given in accordance with the provisions of the act of 1868 (chapter 553, amended by Laws 1869, chapter 96), and authorized commissioners appointed thereunder for said town to borrow upon the faith and credit of the town $148,000, and to do and perform other things necessary to carry into effect the provisions of the said act. Held, to authorize the commis. sioners to proceed only according to the provisions of the act of 1868, that is, to borrow money by disposiug of the bonds at not less than par, and invest the money so raised in the stock of a railroad company, and not to authorize the commissioners to issue bonds in exchange for the stock of any company, and bonds issued in the latter manner would be invalid. Held, also, that where bonds payable to bearer were issued in the latter way, and recited on their face that they were issued under the act of 1848, and were given “for value received in the stock of the Monticello and Port Jervis Railroad Co.," it would appear on their face that they were issued in violation of the act, and would be void in the hands of any holder. Judgment below reversed. Horton v. Town of Thompson. Opinion by Rapallo, J. Andrews, Miller and Earl, JJ., dissent.
2. Constitutional law: statute validating invalid bonds void.- When bonds were issued in the manner mentioned, held that an act of the legislature declaring the bonds valid (Laws 1871, chap. 809) would not render them so, it being beyond the limits of legislative power to render the bonds binding upon the town without its consent. [Decided January 15, 1878.]
CONSTITUTIONAL LAW: POWER OF CONGRESS AS TO CRIMES IN STATES: POWER AS TO MAILS.-Congress has no power to make criminal the using of means to procure abortions in the several States. That power belongs to the respective States. But Congress has plenary power over the mails and the postal service, and may declare what shall and what shall not be mailable matter, and punish violations of its criminal enactments in this regard. U. S. Dist. Ct., E. D, Mo., March 30, 1878. United States v. Whittier (Ch. Leg. News.)
CORPORATION: JURISDICTION OF FOREIGN.-A resolution of a foreign corporation, filed pursuant to a State statute, authorizing its agent “to acknowledge service of process for and in behalf of such company, and consenting that service of process upon any agent shall be taken and held to be as valid as if served upon the company or association," amounts to an agreement for a constructive presence within such State; and a Federal court may obtain jurisdiction over such corporation by service upon its agent. U.'S. Circ. Ct., E. D. Mich., April 1, 1878. 'Fonda v. Brit. Am. Assur. Co. (Cent. L. J.)
DEFENSE: BREACH OF AGREEMENT TO FURNISH INFORMATION.-A defendant who had agreed to furnish information as to the credit of others, and whose negligence had caused loss to the plaintiffs, cannot set up as a defense that the communications were merely verbal, and that they are required by statute to be in writing, in order to sustain his liability. Such a statute is intended to protect honest and careful men, and cannot be used to shield one who has been guilty of negligence or misfeasance. Ct. Common Pleas, Philadelphia, April 6, 1878. Sprague v. Dun (Leg. Intel.)
ESTOPPEL: STATEMENTS BY MAKER OF PROMISSORY NOTE TO INTENDING PURCHASER.- Where the maker of a promissory note, payable to a certain person or bearer, on being inquired of by a third persou, to whom the payee had offered, after its dishonor, to sell it, answered that it was all right, and that he would pay it, and thereupon the purchase was made and the price paid, the maker is estopped from setting up failure or want of consideration, or any other equity existing between himself and the payee, to an action brought upon the note by the purchaser or his privies. Sup. Ct., Ga., March 16, 1878. Reedy v. Brunner.
FRAUD; SALE BY ONE PARTNER OF INSOLVENT FIRM TO ANOTHER.- .-A sale for a valuable consideration by one partner to another, when the firm is in. solvent, does not of itself constitute fraud, either actual or constructive. U. S. Dist. Ct., W. D. Mich., March 15, 1878. Russell y. McCord (Ch. Leg. N.).
TITLE. To property manufactured under contract: when it vests: lien of workman for price.-Where plaintiff contracted to make and deliver to defendant a tent, and defendant requested him to send it from New York to Lewistown, Me., but plaintiff did not contract to deliver it at Lewistown, held, that plaintiff had com
THE following decisions were passed down Tuesday,
PRACTICE IN U. 8. COURTS: LIEN OR JUDGMENT. - People ex rel. Royal v, Board of Fire Commissioners 1. In the United States courts where a State is divided of city of New York. - Cal. 395, same as last above into several districts, a judgment obtained in one dis- – People ex rel. Simms v. Same defendants. Cal. trict is a lien upon defendant's real estate in all parts 399, Folger, J., reads opinion for affirmance orderof the State. The right of lien depends upon the right People ex rel. Freer v. Canal Appraisers. of execution; and by section 985, Revised Statutes, all writs of execution may “run and be executed in all parts of the State.” 2. Plaintiff has a right to con
NEW BOOKS AND NEW EDITIONS. current execution all over the State. 3. The direction of the writ to one marshal is merely formal and of no
HERMAN ON CHATTEL MORTGAGES. consequence. U.S. Circ. Ct., E. D. Penn., March,
Treatise on Chattel Mortgages. By Henry M. Hermian, au1878. Prevost v. Gorrell (Pittsb. L. J.).
thor of the law of Executors, etc. New York: Cock
roft & Co. REPEAL OF GENERAL LAW UNDER WHICH CORPORATION IS FORMED.-The repeal of an act under which a THIS is a valuable book upon a subject of great and corporation is incorporated does not repeal its charter. growing importance to the profession and the busOnly express legislation can take that away. New iuess community. The law on the subject has here Jersey Ct. Chancery, Feb. 1878. Freehold Mut. Loan tofore been in a chaotic condition, and a thoroughly Assoc. v. Brown (N. J. L. Jour.).
comprehensive work was very much needed. There
were, indeed, a vast number of decisions, but they COURT OF APPEALS DECISIONS.
were scattered and contradictory, and those of the profession who had occasion to consult them were very liable to be misled. The author seems to have
deduced from the various authorities the underlying Per curiam, opinion for denial of motion, with $10 principles which govern the subject treated, and we costs - Madison Ave. Baptist Church v. Baptist are confident the bench and bar will welcome his book Church in Oliver street. - Per curiam, opinion for as being a safe guide to the understanding of these granting motion to discoutinue appeal, on payment of principles. The work is divided into three books, costs of the appeal, and $10 costs of motion — MacKay each book being subdivided into chapters. The first v. Lewis. Agree to deny motion, with $10 costs, no book treats of the origin and nature of chattels and opinion – Faber v. Hovey. —- Agree to grant motion mortgages, of the form of a chattel mortgage, of the for leave to perfect the appeal by giving an undertak- description of the property, of the consideration, and ing with sureties, who shall justify within 20 days, and of delivery. Book second is devoted to a considerait is ordered that the appellant shall, within 20 days, tion of the validity of chattel mortgages, of their regcause the return to sthe appeal to be filed with the istration, recording or filing, of the possession of clerk of this court, and three printed copies thereof mortgaged chattels, of fraudulent and void mortgages, to be served on the attorneys for the respondents of the effect of the bankrupt law, of priority, and of within 10 days thereafter, and that the appeal be put mortgages on ships. Book third considers the rights of apon the present calendar for hearing as a preferred the various parties to a mortgage, and others affected by cause, with liberty to either party to move it on for it, of payment and of satisfaction, of transfer of argument on a notice of two days, and if the appellants the interest of the mortgagor, and of the remedies of fail to give such security, or cause the return to be the mortgagee after default or breach of condition. filed, or to serve copies thereof as above required, the It will thus be seen that the law on the subject is appeal to be dismissed with costs; no opinion - Sco- presented in a systematic manner, and that every field v. Adams. Cal. 47, Rapallo, J., reads opinion part is considered. The work is well indexed and for reversal of final judgment and new trial – Sturgis excellently printed and bound. v. Vanderbilt. Cal. 79, Andrews, J., reads opinion for affirmance order and judgment absolute for
NEW YORK SUPERIOR COURT REPORTS, VOLUME XLII. respondent-People ex rel. Morris V. Board of
Reports of cases arquea and determined in the Superior Court Supervisors of Richmond county.-Cal. 152, Church, of the city of New York. By Samuel Jones and James Ch. J., reads opinion for reversal of judgment
C. Spencer, reporters of the Court. New York Superior
Court Reports, Volume XLII. Jones & Spencer's Voland order setting aside verdict, and dismissing ume X. New York: Ward & Peloubet, successors to complaint, and judgment ordered on verdict
Diossy & Co., 1878. Connecticut Fire Insurance Co. v. Erie Railway.
There are a number of valuable cases in this volCal. 203, Miller, J., reads opinion for reversal and ume, both upon general questions of law and upon new trial - People's Bank of New York v. Mitchell. those of interest only in this State. Among such cases
-Cal. 388, Earl, J., reads opinion for reversal or- we will notice these: Brown v. Torrey, p. 1. A stockder and denial of motion - People ex rel. Morris v.
holder claiming to be liable for the debts of a corporaRandall. (al. 205, Andrews, J., reads opinion for
tion and who, himself, as an officer, signed a note issued affirmance. — Welsh v. German American Bank. by the corporation, is estopped from setting up a want Cal. 206, Miller, J., reads opinion for affirmance. of power in the corporation to make the note. Maguire Schroeder v. Gurney. - Cal. 207, Earl, J., reads for v. Dinsmore, p. 17. A concealment by a shipper of the affirmance of order, and judgment absolute for true value of the goods shipped, or his silence alone, plaintiffs on stipulation - Lawrence v. Gallagher.
discharges the carrier from liability for ordinary negliCal. 294, agree to affirm on opinion of Special Term -- gence. Wiel v. Fischer, p. 32. A representation by a Hunt v. Church. -Cal. 57, Folger, J., reads opinion
mortgagor, to one about to purchase the mortgage, that for affirmance - McCullough v. Hoffman. Cal. 28,
the same was given for value, accompanied by a certifiEarl, J., reads opinion for affirmance — Townsend v.
cate that the mortgagor“knew of no offset or defense, O'Conner. Cal. 394, Allen, J., reads for reversal of legal or equitable, thereto," held to estop the mortjudgment and affirmance of proceedings of defendants. gagor from setting up the defense of usury National
Trust Co. v. Roberts, p. 100. A conviction for an infa- for the Sixth Circuit, Noah H. Swayne, Associate mous crime in another State, or foreign country, would Justice; for the Seventh Circuit, John M. Harlan, Asnot render a witness incompetent here, under the law sociate Justice; for the Eighth Circuit, Samuel F. as it stood previous to the new Code. Dumphy v. Erie Miller, Associate Justice; for the Ninth Circuit, SteRailway Co., p. 128. Rules of a railway company, lim- phen J. Field, Associate Justice. iting the right of a passenger on a ticket from New York to Rochester, as to stopping over at intermediate The Chicago Legal News thus discourses concerning stations, held reasonable and valid. Einstein v. Chap- the Bankrupt Law, skillfully uniting sentiment and man, p. 144. The change of possessiou required by 2 R. business: “This law is evidently in its death struggle. S. 136, in order to make a sale of property valid, must A few more days, and in all human probability it will be not only actual, but continued, or the sale will be pre- have passed away. We have no tears to shed over its sumed frauduleut. Madens v. Shepard, p. 353. Persons decease. We never spoke a kindly word of it while receiving bills of lading from a carrier are conclusively living, we shall not praise it now. We feel like saying, presumed to know the terms upon which the property is
“Behold, an aged sinner goes, to be carried, and to have assented thereto. O'Hagan
Laden with guilt and heavy woes, v. Dillon, p. 456. Intoxication will not constitute
Down to the regions of the dead,
With endless curses on his head;” contributory negligence, unless it disqualifies the individual from the exercise of ordinary care and and, in this connection, we would say that we have prudence. Welsh v. German Am. Bank, p. 462. Where
the most complete line of Bankruptcy Blanks in the a bank paid a check drawn to order upon a forged United States, which we shall be most happy to furnish indorsement of the name of the payee, and returned
to the mourners until after the funeral." the check to the depositor, who kept it two years before discovering the forgery, held, that this did not con
In the case of Bowery Nat. Bank v. Duryee, decided stitute payment of the check, nor was the keeping two by the General Term of the Supreme Court for the years ratification. Eneas v. Hoops, p. 517. An
First Department on the 23d inst., an important point alteration materially affecting a contract guaranteed,
of practice was passed upon. At Special Term, Lawwill discharge the guarantor, though the variation may
rence, J., held that under the new Code the plaintiff be to his advantage. Ritterband v. Baggelt, p. 556. Re
must state in his complaint in every case where the strictions upon the sale of shares of membership, in a
defendant is subject to arrest not only the cause of corporation, do not destroy the character as property, action but the cause of arrest, even where such cause which such shares or right would otherwise have. There of arrest is extrinsic to the cause of action, so that the are a number of decisions in the volume, construing jury on the trial might pass not only on the question the meaning of sections of the old and new Code. Iu
of defendant's liability in money, but also on the matHatzel v. Hatzel, p. 561, $S 968, 969, 970, 1009, 1013 of ters affecting his liberty. Judge Lawrence held in the new Code are explained. The reporting is excel
this respect the New Code had effected a desirable imlently done, and the mechanical execution of the vol-provement on the old practice of passing upon the ume is all that could be desired.
question of a man's liberty upon affidavits, while the less important question of his money liability was
passed upon after hearing the oral testimony of witNOTES.
nesses. The General Term reversed this decision upon the authority of the case of Sloane v. Livermore, de.
cided at the same time. The latter case involved the Coast. It is entitled the California Legal Record, construction of section 558 of the New Code, which and is issued weekly in San Francisco by Messrs. Sco
says: “But at any time after filing or service of the field & Palmer. The first two numbers have reached
complaint, the order of arrest must be vacated on us, and, judging from them, we should say that the
motion if the complaint shows that the case is not one Legal Record is a publication that ought to receive the
of those mentioned in section 549 or 550 of this act." support of the profession in California and the adjoin-Judge Ingalls, who gave the opinion, holds that to ing States. The numbers received by us contain a
entitle the defendant to his release the complaint number of current decisions of the Supreme Court of
must actually negative the right to arrest; and where California, legal notes upon events of interest to the
the cause of arrest is distinct from the cause of action, legal profession, digests of decisions in other States, and
the complaint in the action need not state the cause of other useful matter. We trust our new contemporary arrest, and not negativing it, the arrest may be upwill succeed. It certainly deserves to.
held op affidavits.
A NEW law periodicada has appeared on the Pacific
The following order was entered in the United States The statistics of divorce actions in Vermont are thus Supreme Court on the 22d inst.: There having been an stated in a local paper: “ During the year 1876 one Associate Justice of this court appointed since the hundred and sixty-eight divorces were granted in the commencement of this Term, it is ordered that the State - three less than in 1875 – being one divorce to following allotment be made of Chief Justice and every sixteen marriages. In one hundred and twentyAssociate Justices of said court among Circuits, agree- three cases the wife was the petitioner, and in fortyably to act of Congress in such case made and pro- five the husband. Sixty-six were granted for ‘intolvided, and that such allotment be entered on record, erable severity,' eleven for refusal to support,' twenviz.: For the First Circuit Court, Nathan Clifford, ty-four for adultery,' fifteen for desertion.' Associate Justice; for the Second Circuit Court, Ward Hunt, Associate Justice; for the Third Circuit Court, A suit brought by the city of St. Louis for the posWilliam Strong, Associate Justice; for the Fourth session of the property of the St. Louis Gas Company, Circuit, Morrison R. Waite, Chief Justice: for the was decided by the Court of Appeals on the 16th inst. Fifth Circuit, Joseph P. Bradley, Associate Justice; in favor of the plaintiff. About $2,000,000 is involved. difference of opinion, many believing it would ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the
be no improvement to adopt the provisions of the name of the writer should be given, though not necessa- Federal law and forbid every preference. There is rily for publication.
a difference in the character of debts which men in Communications on business matters should be ad- their private transactions everywhere recognize. dressed to the publishers.
Payment in full to one creditor even at the expense
of a failure to pay others, may not be unjust though .
the allowance of preferences in assignments opens a door to fraud and tends to render favored persons
less vigilant. The question is one of difficulty, and ALBANY, MAY 4, 1878.
it is probable that the statutes of the various States will continue to differ in respect thereto.
The Albany Law Journal.
Among the acts contained in the Supplement acappearing in our present issue, pass upon the im- 830 of the Code of Civil Procedure. That section portant constitutional question of the validity as to
excluded from the witness-stand the husband or
wife of one who was excluded by section 829. existing debts of exemption laws passed by State legislatures. The court hold that the remedy sub
We pointed out some time ago the folly of sisting in a State when and where a contract is
the section and are pleased to see it stricken out.
It would have been better had section 829 been inmade, and is to be performed, is a part of its obli- cluded in the repeal, but that will come in time. gation, and any subsequent law of the State, which so affects that remedy as substantially to impair and les. Among the other acts in the Supplement is an act in sen the value of the contract, is forbidden by the Fed
relation to infections and contagious diseases of anieral Constitution and is therefore void. In the case in mals, which confers upon the governor plenary question, the court hold that a statute of North Caro- power in relation thereto when occasion requires;
an act amending chapter 465 of the Laws of 1875, lina exempting the personal property of a debtor to the extent of five hundred dollars and a homestead of tribute to the support of fire departments in villages
which requires fire insurance companies to conthe value of one thousand dollars, is unconstitutional and cities, and a lengthy act amending the law so far as debts in existence at the time of its pass. regarding the assessment and collection of taxes. age are concerned. The position of the court upon this subject will satisfy every one except those who desire to defraud their creditors. The decision comes at an opportune moment, and will do much
The Bankrupt Law dies hard. After the bill for to check a growing disposition in State legislatures its unconditional repeal had passed the Senate by a to relieve debtors from the performance of their ob
vote of 37 to 6, and the House of Representatives by an ligations by the passage of exemption and stay laws. equally overwhelming majority, notwithstanding the
most vigorous efforts to either postpone action upon it
or to so change it by amendments so that it would The action of Congress in reference to the bank- not accomplish the object sought, it has been, durrupt law has called attention to the laws formerly in ing the past week, the subject of considerable force in the various States, regulating insolvency, debate in the Senate. The amendments made in but which have since the enactment of the Federal the House did not change the tenor of the bill passed statute to a great extent been dormant. The re- by the Senate, they only made it more certain and peal of this statute will revive the State laws and more effective. The bill was discussed on Tuesday many of these will be found not suited to the needs and Wednesday. On the latter day the amendment of the present time. In one State, Rhode Island, of the House mentioning the date of the acts to be the situation has been anticipated, a special session repealed, and designating their place in the Revised of the legislature having been held to consider bills | Statutes, was agreed to. An amendment fixing the for modifying the insolvent laws. Only two days time when the repeal should take effect at January were spent in the work, but a law was passed wherein 1, 1879, was then proposed by Mr. Matthews, and preferences to creditors are forbidden, and an equal | after a vigorous debate adopted, and the bill referdistribution of the property of failing debtors red to the judiciary committee that the saving among their creditors provided for. The insolvent clause might be perfected. The principal argument law of our own State is probably as good a one as advanced for a continuance of the law until tho could be contrived except as to the matter of date mentioned was that there are many insolvent preferences, and even as to this there is a great persons who would be turned out of house and
VOL. 17.- No. 18.
excuse for a continuance of the law, but we image IN
home unless they are given the remainder of the
NOTES OF CASES. year to commence proceedings to obtain a discharge. The necessities of unfortunate debtors furnish the
'N Welsh v. German American Bank, 42 N. Y.
Super. 462, the plaintiff was a depositor in the ine that the most of these persons would willingly bank mentioned. Checks upon the bank, payable to take their chances of relief under the laws of the order of one W. N. Johnson, were signed by the their own States. The real cause of the delay in plaintiff, at the solicitation of his clerk, who reprethis matter of repeal will be found in the efforts sented that amounts for which they were given were made by those who derive profit from bankruptcy due to Johnson, who had dealings with the firm, proceedings, either in the way of official fees or The clerk, after obtaining such checks, forged the otherwise. We trust, however, that their opposition name of Johnson and sent them, through other parwill prove ineffectual and that before another week ties, to the bank for payment, and they were paid. the bill may become a law.
The checks were charged to plaintiff's account and
were returned to him with his pass-book, and kept The term of office of the Commissioners to revise by him for nearly two years, when he discovered the the statutes expired on Tuesday last. On that day made a claim against the bank for the amount
forgery of Johnson's indorsement, and then first the Commissioners submitted to the Legislature a
which had been paid on the checks. The bank, as considerable portion of "part four,” relating to
a defense to an action brought for such amount, crimes and criminal procedure. The whole of the
claimed that it had fulfilled its agreement with Part is drafted and ready for the press, but there was not sufficient time to print it. The Commis- plaintiff in paying money upon checks signed by sioners say that in drafting the Part they have made him, and, second, that plaintiff
, by keeping the
checks two years without claiming any thing wrong, use of the “ Code of Criminal Procedure” reported had ratified the payment. The court decided that in 1860, and of the “Penal Code” reported in 1865, both these defenses were unsustainable, holding but have adopted or followed neither exclusively,
that the payment made was not one to the written as their work had a different scope. They, how
order of the depositor, and that the failure of the ever, express their “high opinion of the ability with which the latter (the Penal Code) was drawn and of plaintiff to make a claim for the sums paid on the its value "— an opinion which will be indorsed by all / forged checks until two years thereafter, he not havfamiliar with the work. Beside this part four and the ing discovered the forgery until that time, did not
constitute a ratification of the payment. See Weisser unadopted chapters of the Code there is now before
v. Denison, 10 N. Y. 69, which, in some respects, the Legislature part two, relating to property and
very much resembles the case at bar. Here checks other matters connected with private rights.
forged by the confidential clerk of a depositor were
paid by a bank, charged to the depositor in his passThe Court of Appeals of this State took a recess book, the book balanced, and with the forged checks on the 26th ult., until the 20th of this month, among others returned to the clerk who exainined when it will re-convene and proceed with the pres- the account at the request of his principal, the deent calendar.
positor, and reported it correct, and the depositor
did not discover the forgeries until several months The Court of Appeals in First National Bank of afterward, when he immediately made them known Chittenango v. Morgan, an abstract of which is given to the bank, and it was held in an action to recover in our present number, refuse to extend the doc- the amount of the deposit that the bank could not trine of Risley v. Brown, 67 N. Y. 160, and Getty v.
retain the amount of the forged checks. See also Binsse, 49 id. 385, that upon the death of one of the
Hall v. Huse, 10 Mass. 40; Salem Bank v. Gloucester makers of a joint promissory note, who signed
Bank, 17 id. 1; Ward v. Evans, 2 Salk. 442. simply as surety, his estate is discharged from the payment thereof, both in law and equity, to a case where a firm in business makes its note for the ac
In Beard v. Connecticut and Passumpsic Rio. R. R. commodation of the indorsers, who transfer the note
Co., 48 Vt. 101, plaintiff was rightfully at defendfor value, to a bona fide purchaser without notice.
ant's railroad station in the evening for the purpose The rule in the two cases mentioned is a severe one
of taking passage on defendant's ca rs.
There was a and often operates unjustly. Section 758 of the platform which extended from the east side of the Code of Civil Procedure abrogates it so far as this
station to the railroad track, over which passengers State is concerned, but it prevails elsewhere. It passed to and from the cars. A passage led through should not be extended beyond the cases to which
the center of the station to the street which was it has heretofore been applied.
several feet lower than the track, and there were also