Baltimore & Ohio Railroad Company . Walker.

crossing, and among the duties, both to the state and toward each other, are those of keeping the crossing in repair and maintaining watchmen at their joint expense. Either may there fore lawfully do whatever is necessary to their performance. Applying the principle stated by Bishop on Contracts cited supra, the law's command created the joint promise of the companies to the state, and the several promise of each to the other to perform the duties prescribed by the statute. In this sense the obligation of the companies becomes one of contract, and one of them having discharged the whole obligation, and the other no part of it, though receiving the full benefit, there is no reason why it should not, upon the principle already stated, be entitled to reimbursement from the latter for its share of the common burden borne by the former.

The case of Middleborough v. Taunton, 2 Cush. 406, relied on by counsel for plaintiff in error, is not inconsistent with the conclusion announced; but, as we understand the case, is in harmony with it. In that case it appeared that the town of Middleborough was indicted for neglecting to repair one of its highways. It confessed the indictment and was fined. The court appropriated the fine to the repair of the higway and appointed an agent to superintend its application. The plaintiff alleged that the highway was upon the dividing line between it and the town of Taunton and the duty of repairing the same was equally incumbent on both towns. The dispute in the case was whether there was a common obligation on both towns to repair the highway. The defendant contended the whole of it was within the town of Middleborough, or if not, the center of the highway was the dividing.line, and each town was bound to keep in repair such highways only as were within their respective limits. The trial court ruled that the whole of the way was within Middleborough, and the plaintiff became non-suit, subject to the opinion of the whole court. It does not appear to have been questioned that if to both towns belonged the joint or common duty to repair the highway, the plaintiff should have recovered. But since that was not the case the judgment was affirmed. Shaw, C. J., in the opinion says:

Baltimore & Ohio Railroad Company v. Walker.

"But it is said that towns are by law (Rev. Stats. c. 25, §1), obliged to repair highways; and it is certainly true, that all highways within the bounds of any town' are to be kept in repair at the expense of such town. If towns repair beyond their bounds without an actual request, it is a voluntary act done in pursuance of no obligation or duty, and money laid out for such purpose is not expended at the implied request of the town subject to the duty of such repairs * * *. It seems to us, therefore, that the case of plaintiff falls within this dilemma. If the road was wholly in Middleborough the plaintiffs have merely performed their own duty and paid their own debt. If one-half of it, only, was in Middleborough, the other was in another town and county; and the plaintiffs, if they have laid out money to repair it, have done so in pursuance of no actual request or of any common duty or obligation constituting a request in law; and, of course, that an action for money paid will not lie."

It would seem to follow from the reasoning of the learned chief justice, that if the money had been expended in the discharge of a common obligation belonging to both towns to repair the way, the action would have lain.

The further claim is made by the plaintiff in error that, while the statute provides that the expense of keeping the crossing in repair and maintaining watchmen shall be borne by the companies jointly, it is silent in regard to the proportion to be borne by each; and as one company may require the watchman's services many times more than the other, the expenses should be apportioned accordingly. Whether in such case the expenses should be apportioned on the basis indicated, or upon any state of facts an unequal division could under the statute be made, we need not decide. Such circumstances of inequality of benefits are not shown, nor does any other reason appear, making an equal division of the burden unjust. If any such existed the defendant should have made it to appear.

The correct rule on this subject is clearly stated in Bishop on Contracts, sec. 216, as follows:

"When persons are under equal obligations to do a thing,

Compton . Railway Company.

not violative of law, and one of them does it, if there is no circumstance rendering the equities between them otherwise than equal, and no express agreement, the doer is entitled, under a promise which the law creates, to recover such sums of his several companions as shall leave the burden equal. This is the familiar rule as between sureties and other joint promisors, where one has discharged more than his proportion of a debt, and it applies also in other like cases."

We think the right of the plaintiff to recover upon the case made in his petition is sustained by sound reason and sauctioned by authority, and the judgment recovered by him should be affirmed.

Judgment affirmed.

COMPTON v. RAILWAY COMPANY.

Railroad companies-Consolidation of roads-Rights of bondholders.

In 1862 the Toledo & Wabash Railway Company, formed by the consolidation of a road in this state with one in the state of Indiana, issued $600,000 of what were termed convertible equipment bonds, payable in 1883 and bearing interest at the rate of seven per cent. payable semiannually. It operated its road until 1865, when it was consolidated with certain roads in the state of Illinois, the new company being called the Toledo, Wabash & Western Railway Company. It was stipulated in the agreement, forming the basis of the consolidation, that these equipment bonds should be "protected" by the new company at their maturity. In 1873 the last-named company, continuing to own and operate its road, issued certain bonds amounting to $5,000,000, and secured the same by a mortgage upon all its property. Under proceedings begun in 1875 for the foreclosure of this mortgage in the courts of Ohio, Indiana and Illinois, the road was sold in 1877 to one Ellis and two others associated with him, it being specially provided in the decree rendered in the court of this state, the common pleas of Lucas county, that the sale should be made “without prejudice to any claim which may be made by the holders" of the above named equipment bonds. The owner of the road at the commencement of this suit, The Wabash, St. Louis & Pacific Railway Company, derives its title from Ellis and his associates. Held:

That under the statute of this state in force at the time the Toledo, Wabash & Western Railway Company was formed by consolidation (1 S. & C.

Compton v. Railway Company.

327), and the stipulation in the agreement that these equipment bonds should be protected by the new company, the holders of these bonds acquired the right to require the property of the company that issued them to be applied to their payment; and, the consolidation and the agreement being matter of public record, the right is available against all persons deriving title from the consolidated company.

(Decided March 13, 1888.)

RESERVED in the District Court of Lucas County.

This was an action commenced in the court of common pleas of Lucas county by James Compton, asking that certain bonds of which he claimed to be the owner, with the unpaid interest coupons thereon, should be declared a lien upon so much of the road of the Wabash, St. Louis & Pacific Railway Company, as formerly belonged to the Toledo & Wabash Railway Company, by whom the bonds had been issued, and for the finding of the amount due him thereon, and an order of sale of so much of its road as is within the jurisdiction of the court, subject to certain admitted prior liens, unless the amount found due him should be paid by the Wabash, St. Louis & Pacific Company in a short time to be named; and for other relief.

The case, after trial and judgment in favor of the plaintiff, was appealed by the defendants, to the district court, where it was reserved for decision in this court upon an agreed state'nent of the facts, which is as follows:

"On the first day of November, 1862, the Toledo & Wabash Railway Company executed and issued a series of bonds, amounting altogether to the sum of six hundred thousand dollars, which were styled equipment bonds. The principal of these bonds is due the last day of May, 1883, and they bear interest at the rate of seven per cent. per annum, payable semi-annually in New York city, from and after the first day of May, 1863. A series of interest coupons are attached to each bond. They were put upon the market at the time of their issue and sold; and the plaintiff was, at the commencement of this suit, and is now, the bona fide holder for value of VOL. 45-38

Compton v. Railway Company.

bonds of this series having a par value of one hundred and fifty thousand dollars, upon which no interest has been paid since November 1st, 1874, and also of the coupons payable on the said bonds since said last-mentioned date. The numbers of the bonds owned by plaintiff are correctly stated in the petition.

"The Toledo & Wabash Railway Company, which issued these bonds, was a corporation organized under the laws of the states of Ohio and Indiana, especially the consolidation statutes of those states, and owned a line of railway extending from the city of Toledo, to State Line city, of Indiana, which railway is now a part of the main line of the Wabash, St. Louis & Pacific system.

"The railroad companies which were united to form this Toledo & Wabash Railway Company, were the Toledo & Wabash Railroad Company, an Ohio corporation, and the Wabash & Western Railroad Company, an Indiana corporation. The line of the former company extended from Toledo to Harrison township, Paulding county, Ohio; and that of the latter company from the state line in Allen county to State Line city in Warren county, in Indiana.

"The Toledo & Wabash Railway Company continued a separate corporation until the year 1865, when it was consolidated with various other companies to form the Toledo, Wabash & Western Railway Company. The consolidation agreement is dated the twenty-ninth day of May, 1865. Under this agreement the following companies were consolidated: The Toledo & Wabash Railway Company, the Great Western Railway Company of 1859, the Quincy & Toledo Railroad Company, and the Illinois & Southern Iowa Railroad Company. The agreement of consolidation was duly executed and ratified by the stockholders of the various companies, and was filed in the office of the secretary of state of Ohio on the 6th day of July, 1865. It contains the following provisions :

666

Now, therefore, the said companies, by their respective directors, agree to consolidate their roads, property and capital stock into one company, upon the basis and conditions hereinafter specified, to be submitted by the directors of each