are not bound to maintain the streets in suitable condition as amphitheaters for the spectators at a public show, nor as "trotting-parks for the purposes of the race-course, nor as playgrounds for children." Citing Stickney v. Salem, 3 Allen, 374; Blodgett v. Boston, 8 id. 237; Richards v. Enfield, 13 Gray, 344; Gregory v. Adams, 14 id. 242; McDougall v. Salem, 110 Mass. 21; Stinson v. Gardiner, 42 Me. 248; McCarthy v. Portland, 67 id. 167; S. C., 24 Am. Rep. 23. But Doe, C. J., said: “A person is 'travelling upon a highway,' within the meaning of Gen. St., ch. 69, § 1, when he is making a reasonable use of a highway as a way. He need not be on a long journey. Taking one step from his own door to the sidewalk, and another into his neighbor's house, he is travelling during the moment of his transit on the path laid out for the accommodation of the public. And although the use of a highway as a way includes motion from one place to another more or less distant, continuous movement is not necessary. Such use does not cease with every cessation of locomotion. A person going for a physician, and meeting him accidentally in the street, may stop for a reasonable time, and at a reasonable time and place, to speak to him, without instantly terminating his rightful use of the way. And if he expects to meet the physician in the street, and goes for the reasonable and proper purpose of meeting him there, his use of the street is not wrongful on that account." He disapproved the remark of Cowen, J., in Pearsall v. Post, 20 Wend. 111, 131, that "it is only in case of inevitable or at least accidental detention that he can be excused even in halting for a moment." And he continued: "Mere stopping is not necessarily a tort. It may be a reasonable use of a way as a way. In a crowded thoroughfare, at a railroad crossing, and at his own gate or door, the traveller may be obliged to stop. And as absolute necessity is not the test of his right to go upon the land on which he has a right of way, so it is not the test of his right to stop there. The easement is bought by the public when it is reasonably necessary for the public accommodation. The right, when bought, is the right of reasonably using the land as a way. And whether mere stopping, or stopping for any particular length of time, is such a reasonable use, is generally a question of fact depending upon the traveller's purpose and the circumstances of his case ""A highway may be laid out as a means of public access to natural scenery, for the accommodation of pleasure-seekers. Higginson v. Nahant, 11 Allen, 530. * And there is no rule of law that a traveller transcends his right of way when he halts on such a road. Nor is there a rule of law that while he may stop on Mt. Washington turnpike to rest, to view the landscape, to greet an acquaintance, or to inspect a procession of travellers, he cannot stop on Elm street in Manchester for the same purpose. To the same effect is Murray v. McShane 52 Md. 217, S. C., 36 Am. Rep. 367, where the plaintiff sat for a moment on a door-sill to tie his shoe.

*

A

THE VALUE OF OIL PAINTINGS.

NUMBER of recent cases have drawn our attention to the value put on oil paintings by their painters, owners, and others. There is probably no species of property as to which the proprietors are at once so ignorant and so credulous. A man goes to an itinerant auction sale of oil paintings manufactured by machinery-paintings turned out by the gross from factories where "artists," employed by the day, put in, one the trees, another the skies, another the rocks, another the water, another the figures, and so on, continually and buys one of these abortions of art, which probably cost, frame and all, say six dollars, "cheap" for twentyfive or thirty dollars, and then imagines it worth one hundred dollars, or more, and gets it insured' for that sum. Mr. Potiphar had a pretty good notion of a good many paintings, when he said: "A man rubs and dabbles a little upon a bit of canvass two feet square, and then coolly asks three hundred dollars for it." In Charles Surface's famous auction of the family pictures the prices were probably round, and Sir Oliver's portrait was probably not reserved at all for its artistic merit, but solely on account of the spendthrift's tenderness for the original.

These extravagant estimates of the value of paintings sometimes get their owners into trouble. Thus in Wood v. Firemen's Insurance Co., 126 Mass. 316, the plaintiff had procured an insurance by a valued policy on a painting, the original of which, he represented, was a "Christ crowned with thorns," by Leonardo da Vinci, and was preserved in the Vatican or one of the churches at Rome, under the care of the Pope, and could not be bought for $1,000,000; that this copy, by Pinol de T. Salos, was the only one in America, and no other copy could ever be allowed by the Pope. This was almost as plausible a story as that told by Singe, the pastry cook, to Mrs. Potiphar, about a picture which he sold her

his brother had bribed one of the Pope's guard to steal it from the Vatican. But when this famous copy was burned up the heartless insurance company took the ground that Mr. Wood had misrepresented the value of the picture, thus leading them to insure it at an exhorbitant amount, and that the policy, according to its conditions, was void. And the court so held, observing: "The. policy was a valued policy. The representations related to the origin of the painting, and were written statements of facts which, if true, would give peculiar value to it, as the only copy which could ever be had of an original painting of great merit, by one of the most famous of the old masters. They were calculated to induce the defendant company to take a risk by a valued policy for the sum named in it, which it would otherwise have declined or taken only for a smaller amount."

A little more leniency was shown to the owner who was also the painter, in Luce v. Springfield F. & M. Ins. Co., 1 Flippen, 281. Mr. Roberts had perpetrated 105 landscapes and portraits in oil, com

prising President Taylor and his cabinet, President Harrison and his cabinet, a full length of Washington, General Taylor and the battle of Buena Vista, etc., and he had got them insured for $45,000 in the aggregate, putting prices opposite each article in the schedule, as high as $3,000 in one instance, but not stating these prices as the value. The court held the policy not a valued policy, but on the question of damages they observed: "The plaintiff's only testimony on this subject is that given by Roberts, the insured, who says in his judgment, the paintings were worth $45,000. Roberts is an old man, and has for thirty years been engaged in painting; but when his testimony is weighed in the light of the evidence produced by the defendant, no one can justly conclude otherwise than that Roberts' | judgment is not a safe criterion of the value of these paintings. The basis of his judgment was not stated, and I have little doubt no just basis for his extravagant valuation exists.

"On the part of the defendant there were four persons testified, all of whom speak from knowledge of works of art, including paintings. One, for thirty years has been a successful portrait painter; two have been and are extensive dealers in paintings and works of art, importing from Europe, and evincing a discriminating judgment of art works. They all testify that as works of art, these paintings had no value. Their judgment was based upon, and they testified in reference to, the two paintings which were not destroyed. Portraits of 'John Wesley' and 'Governor Bouck,' which were by Roberts, the insured declared to be of average merit with the paintings destroyed, as I have the testimony, though it is claimed he qualified this statement as to 'Wesley.' But take 'Governor Bouck' as a standard. The witnesses say these two paintings, which were produced in court, are worthless as works of art. Both paintings were thus characterized; that of 'Wesley' utterly worthless, and that of 'Governor Bouck' as very inferior; it has 'hardness of color or surface texture, wanting in drawing, wholly defective in composition, coloring and every thing. They do not come under the

head of art.'

"It is said by these witnesses that landscape paintings of like inferior quality would be worth more than portraits, because they would sell better at auction to persons without taste, or ignorant of art or of the value of paintings. They say landscapes of like want of merit might bring twentyfive to fifty dollars, at auction. Portraits of 'Governor Bouck' might bring twenty-five to thirty dollars, for the sake of having a copy of Elliott's original painting, but such portraits as 'John Wesley' would be utterly worthless. Paintings find their market value mainly from their quality and the name of the artist. There are in this list of paintings eighty-eight portraits, four groups of portraits, five battle pieces, four historical pieces, and four landscapes. Under the evidence, it is somewhat doubtful what the value of the destroyed paintings may be, but the proofs will justify me in finding about $3,000 as the value."

This decision was probably a sorer blow to the artist's pride than to his pocket.

A larger value seems to have been placed on oil paintings in Re Lord Londesborough, Bridgman v. Lord Otto Fitzgerald, 43 L. T. (N. S.) 408. The court there held that a head by Carlo Dolce, the "Monarch of the Glen," by Landseer, and paintings by Roberts, Stanfield, Hollings, Ansdell, and Cook, were not embraced by the term, "objects of vertu and taste," used in connection with "jewels, trinkets, gold and silver plate, ornamental and other china." The court thought such paintings ought not to be classed with "painted snuff-boxes and small statuettes," and the like.

It looks to us as if some of the Massachusetts judges had at some time been gulled at some of the picture auctions of which we have spoken. On no other ground can we account for the holding in Green v. Boston and Lowell R. Co., 128 Mass. 221; S. C., 35 Am. Rep. 370, that a family portrait is not an article of "great and intrinsic value," like specie, drafts, and bank bills. But still they hold that the measure of damages for its loss is its value to the owner, and evidence that it was the only one extant would be competent. Such articles, they say, "cannot be said to have any market value," and $200 seemed not an exorbitant valuation of the only extant portrait of the claimant's father.

Down in New Mexico the courts have a rare appreciation of the fine arts. In Laguna v. Acoma, 1 New Mex. 220, the question was whether an oil painting of San Jose, patron saint of the pueblo of Acoma, left with them by the early conquerors, belonged to that pueblo, or to the parish priest, or to the pueblo of Acoma. Restoration of it to Acoma was decreed. The court remarked: "However much the philosopher or more enlightened Christian may smile at the simple faith of this people in their supposed immediate and entire guardian of the pueblo, to them it was a pillar of fire by night and a pillar of cloud by day, the withdrawal of whose light and shade crushed the hopes of these sons of Montezuma, and left them victims to doubt, to gloom, and to fear. The cherished object of the veneration of their long line of ancestry, this court permanently restores, and by its decree confirms to them, and throws around them the shield of the law's protection in their enjoyment of their religious love, piety, and confidence. In this case, the title that Spain had given this people, confirming to them the possession and ownership of their lands, and the rock upon which they have so long lived, was found in the hands of one professing to be of a better-instructed and more civilized race, and turned by him into the means of extortion and moneygathering from the unoffending inhabitants. It is gratifying to us to be the judicial agents through which an object of their faith and devotion, as well as the ancient manuscripts, that are the written evidence that established their ancient rights in their soil and their rock, are more safely restored and confirmed to their possession and keeping."

Municipal portraits also have a certain value, not as likenesses of saints in the guise of mayors and

refuse to enforce or to protect. He instantly demands of them to do their duty in this regard, which of course they fail or refuse to do, and thereupon he discovers that he has two causes of action entitling him to equitable relief in a Court of Chancery, namely: one against his own company, of which he is a corporator, for refusing to do what he has requested them to do; and the other against the party which contests the matter in controversy with that corporation. These two causes of action he combines in an equity suit in the Circuit Court of the United States, because he is a citizen of a different State, though the real parties to the controversy could have no standing in that court. If no non-resident stockholder exists, a transfer of a few shares is made to some citizen of anothor State, who then brings the suit. The real defendant in this action may be quite as willing to have the case tried in the Federal court as the corporation and its stockholder. If so, he makes no objection, and the case proceeds to a hearing. Or he may file his answer denying the special grounds set up in the bill as a reason for the stockholder's interference, at the same time that he answers to the merits. In either event the whole case is prepared for hearing on the merits, the right of the stockholder to a standing in equity receives but little attention, and the overburdened courts of the United States have this additional important litigation imposed upon them by a simulated and conventional arrangement, unauthorized by the facts of the case or by the sound principles of equity jurisdiction.

That the vast and increasing proportion of the active business of modern life which is done by corporations should call into exercise the beneficent powers and flexible methods of courts of equity, is neither to be wondered at nor regretted, and this is especially true of controversies growing out of the relations between the stockholder and the corporation of which he is a member. The exercise of this power in protecting the stock holder against the frauds of the governing body of directors or trustees, and in preventing their exercise, in the name of the corporation, of powers which are outside of their charters or articles of association, has been frequent, and is most beneficial, and is undisputed. These are real contests however between the stockholder and the corporation of which he is a member. The case before us goes beyond this.

This corporation like others is created a body politic and corporate that it may in its corporate name transact all the business which its charter or other organic act authorizes it to do.

Such corporations may be common carriers, bankers, insurers, merchants, and may make contracts, commit torts, and incur liabilities, and may sue or be sued in their corporate name in regard to all of these transactious. The parties who deal with them understand this, and that they are dealing with a body which has these rights and is subject to these obligations, and they do not deal with or count upon a liability to the stockholder whom they do not know and with whom they have no privity of contract or other relation.

The principle involved in the case of Dodge v. Woolsey permits the stockholder in one of these corporatious to step in between that corporation and the party with whom it has been dealing, and institute and control a suit in which the rights involved are the rights of the corporation, and the controversy one really between that corporation, entirely capable of asserting its own rights, and the other party, who is equally so. This is a very different affair from a controversy between the shareholder of a corporation and that corporation itself, or its managing directors or trustees, or the other shareholders, who may be violating his rights or destroying the property in which he has an interest. Into such a contest the outsider, dealing with the corporation through its managing agents in a

matter within their authority, cannot be dragged, except where it is necessary to prevent an absolute failure of justice in cases which have been recognized as exceptional in their character and calling for the extraordinary powers of a court of equity. It is therefore always a question of equitable jurisprudence and as such has within the last forty years received the repeated consideration of the highest courts of England and of this country.

The earliest English case in which this subject received any very careful consideration is that of Foss v. Harbottle, before Vice-Chancellor Wigram, whose very full and able opinion is reported in 2 Hare's Ch. 488. The case was decided in 1843 on a demurrer to the bill, which was brought by Foss and Turton, two shareholders in an incorporation called the Victoria Park Company, on behalf of themselves and all other stockholders, except those who were made defendants, against the directors and one shareholder not a director, and against the solicitor and architect of the company. The bill charged the defendants with concerting and effecting several fraudulent and illegal transactions, whereby the property of the company was misapplied, aliened and wasted. It alleged that there had ceased to be a sufficient number of qualified directors to constitute a board; that the company had no clerk or office; and it prayed for the appointment of a receiver and a decree against the defendants to make good the loss. After showing that the case was one in which the right of action was in the company, the vice-chancellor says: "In law the corporation and the aggregate members of the corporation are not the same thing in purposes like this, and the only question can be whether the facts alleged in this case justify a departure from the rule which prima facie would require that the corporation should sue in its own name and in its corporate character, or in the name of some one whom the law has appointed to be its representative." Again, after pointing out that cases may arise where the claims of justice would be found superior to the techuical rules respecting the modo in which corporations are required to sue, he adds: "But on the other hand, it must not be without reasons of a very urgent character that the established rules of law and practice are to be departed from, rules which, though in a sense technical, are founded on the general principles of justice and convenience; and the question is whether a case is stated in this bill entitling plaintiffs to sue in their private character." He then in an elaborate argument holds that the bill is fatally defective because it does not aver that there is no acting or de facto board of directors who might have ordered the bringing of this suit; and secondly, that it was the duty of the plaintiffs-the two shareholders who complain of what had been done - -to have called a meeting of the shareholders or attended at some regular annual meeting and obtained the action of a majority on the matters in issue. The majority he says may have been content with what was done and may have ratified the action of the board, in which case the whole body would have been bound by it. The demurrer was sustained and the bill dismissed.

In the subsequent case of Mozeley v. Alston, 1 Phillips' Ch. 790, decided in 1847, Lord Chancellor Lyndhurst says that "the observations of the vice-chancellor in Foss v. Harbottle correctly represent what is the principle and practice of the court in reference to suits of this description.

These cases have been referred to again and again in the English courts as leading cases on the subject to which they relate, and always with approval.

In the case of Gray v. Lewis, decided in the Chancery Appeals, in 1873, Sir W. M. James, L. J., said: “I am of opinion that the only person, if you may call it a person, having a right to complain was the incorporated society called Charles Lafitte & Co. In its corporate