contractors upon the road, and that for this reason, the case should have been arrested from the jury. To warrant such action, there must be an absolute want of proof. In this case, the notice served upon the company, stated that Spotts, Frank & Co. were contractors, and the admission by silence of this fact on the part of the company, although evidence of the most meager and unsatisfactory character, was, nevertheless, proper to go the jury in the absence of any other testimony upon the subject.

Furthermore, it appears from the record that this objection, although covered by the general assignment of errors in the petition filed in the court of common pleas was not specifically alleged, or brought to the notice of that tribunal. Although clearly within its power to have taken cognizance of this subject, it was not bound to search for errors not specifically alleged and its failure so to do, will not necessarily be fatal upon review in the district court or here. Judgment affirmed.

[This case will appear in 38 O. S.]

RAILROAD-RECEIVER-NOTICE MUST BE GIVEN OF APPLICATION FOR.

SUPREME COURT OF OHIO.

OHIO RAILWAY CO.

V.

HUGH J. JEWETT.

1. A railroad may be sued in any county through or into which its road passes, without regard to the nature of the cause of action.

2. The appointment of a receiver to take from the defendant the posession of his property, cannot be lawfully made without notice, unless the delay required to give such notice will result in irreparable loss.

3. In an action to prevent the consolidation of railroad companies, the election of directors for the new company at a meeting of the stockholders held under section 3383 of the Revised Statutes, will not justify such an appointment against either of the companies, on the ground that part of the stockholders participating in the meeting have been inhibited from doing so by injunction.

Error to the Court of Common Pleas of Franklin County.

The original petition was filed in the Court of Common Pleas of Franklin County, on October 19, 1881, by Hugh J. Jewett and R. Suydam Grant, who sue in their own behalf as stockholders in the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and in behalf of other stockholders who might come in and contribute to the action. The defendants are the said railway company, the Cincinnati, the Cincinnati, Hamilton and Dayton Railroad Company, J. H. Devereux, George H. Russell, F. H. Short and Stevenson Burke.

The petition is founded upon the attempted consolidation of the two companies named, and sets out the steps taken to effect such consolidation. The material facts are found stated in the case of State ex rel. Attorney-General v. Vanderbilt, decided at this term, ante.

The case last named was instituted after the bringing of this action, and it was therein ad

judged that the attempted consolidations of said corporations was unauthorized and invalid.

The object of the petition in this case was to prevent the election of a board of directors of the consolidated company, known as the Ohio Railway Company, at a meeting of the stockholders to be held at Cleveland on October 20th, 1881. The petition avers that Devereux is a stockholder, director and the president of both companies, and that said Burke is vice-president of the first named company, that said Russell is the secretary of the first named company, and that said Short is secretary of the last named company.

earn

The petition also contains the following averment: That not only is the said pretended consolidation illegal by reason of the matters and things herein before set forth, but also the interests of these plaintiffs, as stockholders aforesaid in the said defendant, the Cleveland, Columbus Cincinnati and Indianapolis Railway Company, will be greatly prejudiced and irreparably injured by reason of the furthering and completing of said pretended consolidation. That under the said agreement of consolidation, it is intended. to consolidate or unite the two corporations defendant into one pretended corporation, with a single management of the said corporations, to keep but one set of books of the ings of the two lines of railway, and thereby to confuse the earnings and expenses, respectively, of the said corporations defendant, and to make the property and earnings of each of the said corporations liable for the debts and obligations of the other. That the debts and obligations of the defendant, the Cincinnati, Hamilton and Dayton Railroad Company, are actually much greater than those of the Cleveland, Columbus, Cincinnati and Indianapolis Railway company, and that it will be greatly to the damage of these plaintiffs to have the stock of the two corporations consolidated, and the earnings. of the properties of the respective corporations amalgamated and confused." And asks that the said corporations defendant, and their respective directors, stockholders and officers, be forever enjoined and restrained from doing any act toward the completion of the said pretended consolidation, or any consolidation of the said corporations defendant, or for the election of any board of directors of the said pretended Ohio Railway Company, and from surrendering the possession of the railways and properties, books, papers and records of the said corporations; or either of them, to the said alleged Ohio Railway Company, or to any board of directors or officers pretending or claiming to represent the same.

And the defendants, J. H. Devereux, Stevenson Burke, George H. Russell, and F. H. Short be, and each of the same be forever enjoined and restrained from in any way furthering, aiding, promoting or participating in the said meetings, called as aforesaid. An ex parte temporary injunction was allowed, as prayed for, at the time of filing the petition. And on the same day service was made on the Cleveland, Columbus,

Cincinnati and Indianapolis Railway Company, at Franklin County, and on the other defendants on the morning of the 20th of October in Cuyahoga County, before the meeting for the election of directors.

On October 22, 1881, the plaintiffs, by leave of the court, filed a supplemental petition, in which it was stated in substance that notwithstanding the injunction and service thereof, the meeting for the election of directors of the Ohio Railway Company was held at the time and place appointed for that purpose in which the said Devereux, Burke, Russell and Short participated. That all the stockholders assembled at said meeting were notified of the filing of said petition and the allowance of said injunction before proceeding to such election. That directors were elected at such meeting for the Ohio Railway Company whose names are set forth and who are asked to be made defendants.

It is also averred: "That said pretended directors and officers of said pretended new corporation intend to, and unless stopped by the effective intervention of this court, will take control and management of the property, franchises, and assets of every kind, of the two railroad companies, defendants in this case, in the name of said pretended new corporation, and will abandon and cause to be dissolved the two railway companies, defendants in this case. Plaintiffs say that by reason of facts stated in the original petition, the said two railroad companies, defendants, have not been consolidated, nor can they be; that the meeting stated in the original petition, wherein their stockholders voted to ratify the agreement for consolidation, and the votes there given, as well as the votes cast at the meeting on October 20, 1881, at Cleveland, hereinbefore described, were without legal validity or effect, either to dissolve the old companies

or to create a new one."

The appointment of a receiver was prayed for, to take possession and control of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company's road, and of all other roads leased or held by it, and of all of its property of every kind and nature whatsoever, and to hold and operate said roads under the direction of the court until further ordered; and for such orders of injunction as would enable the receiver to fulfill the duties of his appointment.

At the time of the filing of the supplemental petition an appointment ex parte of a receiver was made as prayed for, and such orders entered

as would enable him to take control of all the property and rights of the said company, and to fully perform the duties of his appointment.

The receiver gave bond and was duly qualified as required by the court.

On application to this court. leave was granted to the plaintiffs in error to file the present petition in error to reverse the order appointing the receiver, and all orders founded upon and in execution of said aphointment; and the execution of the duties of said appointment, and of

said orders, were stayed until the petition in error could be heard.

Harrison, Olds & Marsh for plaintiffs in error. Converse, Booth and Keating for defendants in error.

WHITE, J.

The only question before us for determination relates to the order appointing the receiver, and the orders made in aid of such appointment.

Whether the service of process upon the original defendants, Devereux, Burke, Short and Russel, in Cuyahoga county, was effective to subject them to the jurisdiction of the court issuing the process, is not before us for consideration; that branch of the case is still in the court of common pleas. The only parties interested in the question of the appointment of the receiver, are the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the original plaintiffs Jewett and Grant. The company, for any cause of action against it, was brought into court under the last clause of section 5027 of the Revised Statutes, which provides, that "an action against a railroad company may be brought in any county through or into which such road or line passes.

The meeting held at Cleveland was a meeting of the stock holders only. The corporations had no corporate duty to perform at the meeting. The object of the meeting was to comply with section 3383 of the Revised Statutes. The section provides for a meeting of the stockholders of the original companies, at a time and place to be fixed by themselves, to elect directors and other officers of the new company formed by the consolidation; and it is declared that the "election shall be conducted in such a manner as may be prescribed by the stockholders at such meeting."

The ground of action stated in the petition was the invalidity of the consolidation. This invalidity arose from the incapacity of the corporations, under the statute, to effect such consolidation. There being no power to consolidate, the original corporations continued to exist in their integrity, with all their rights of property and franchises. As such corporations they were respectively enjoined, under the original petition, "from surrendering the possession of the railways and properties, books, papers and records of the said corporations, or either of them, to the said alleged Ohio Railway Company, or to any board of directors or officers pretending or claiming to represent the same."

The alleged violation at the meeting, of the injunction, by the defendants, Devereux. Burke, Short and Russell, did not constitute ground against the corporation of which they were stockholders, for the appointment of the receiver; and it was only in the capacity of stockholders that they acted or had any authority to act at the meeting.

It does not appear who constituted the other directors of the defendant company; nor is it averred that the company or any of the directors were intending, in violation of the injunction against the company, to surrender or transfer its property to the alleged Ohio Railway

Company, its directors or officers. No such transfer could be effected by operation of the statute; for the consolidation was not authorized by the

statute.

There was no obstacle to giving notice to the company before acting on the appointment of a

receiver. No fraud or insolvency was charged against any of the parties; nor that the property of the company was in danger of removal beyond the jurisdiction of the court, or of otherwise being lost. The controversy was solely as to the effect of the attempted consolidation.

Under the circumstances of the case, the appointment of the receiver was an unwarranted exercise of judicial power, which it is the duty of this court to reverse and set aside. Railroad Co. Sloan, 31 Ohio St. 15; Verplank v. Insurance Co., 2 Paige, 438.

Judgment accordingly.

[This case will appear in 37 0. S.]

PASSENGERS IN PUBLIC CONVEYANCES.

SUPREME COURT OF MICHIGAN.

CUDDY v. HORN.

The rule by which one who rides in a private conveyence is presumed to control, or be indentified with, the driver, and to have no right of action for any injury done him by a collision caused by the driver's negligence, cannot apply to passengers in public conveyances, such as railway cars or steamboats, even though they have chartered the conveyence.

The master of a vessel cannot relieve himself of responsibility for its safe management by surrendering its control to a charterer.

Where a passenger in a conveyance can have no control over those in charge of it, he cannot be held to be so indentified with them as to be considered a party to their negligence.

Passengers on a steam yacht chartered for their use, but not under their control in matters of navigation,

have a right of action against its owners for injuries

caused them by the negligent management of those in charge of it.

An act wrongfully done by the joint agency or co-operation of several persons, or done contemporaneously by them without concert, renders them liable, either jointly or severally.

If a passenger upon one vessel is injured by its collision with another in consequence of the negligence of the officers of both, he has a right of action against them jointly and it is for the jury to fix the liability where it belongs.

Where evidence tends to make out a case for the plaintiff, its force and effect is for the jury, and the Supreme Court will not attempt to review or weigh it.

The Limited Liability Act of Congress exempting shipowners from personal liability for injuries caused by the negligence of those in charge of their vessels, does not apply to boats navigating streams connecting the great lakes.

MARSTON, C. J.

The following statement of facts taken from the briefs of counsel for the defendants, is sufficiently full and accurate for a definite understanding and discussion of the legal questions raised. The action was commenced by the plaintiff, as administrator of the estate of John Kelley, deceased, to recover damages on account of his death caused by a collision between the steamer "Garland," of which the

defendant, Horn, was owner, and the steam yacht "Mamie" owned by other defendants on the Detroit river, July 22d, 1880. The declaration alleged, in substance, that the "Garland" was going down the river upon a pleasure exturning from a pleasure excursion, and that cursion, and the "Mamie" was coming up, reKelley was a passenger on the "Mamie"; that by failure of the master of the "Garland" to keep a proper lookout, and by his failure to give proper signals at the proper time upon the approach of said "Mamic," as required by rule 3 for the government of pilots, and by reason of the failure of the master of the "Mamie" to give the proper signals to indicate upon which side she would pass until the vessels had approached so near that a collision was inevitable, and by reason of the failure of the owner and master of the "Mamie" to keep a proper lookout upon said "Mamie, said vessels collided, and said "Mamie" sank, causing the death by drowning of said Kelley.

The defendant, Horn, and the other defendants filed separate pleas of the general issue. The owners of the "Mamie" also filed a plea in abatement, alleging that proceedings had been commenced, and were then pending in the District Court of the United States by them as owners of the "Mamie" for the purpose of taking advantage of the statute of the United States limiting the liability of vessel owners in certain cases. And special notice of such proceeding was also given with the plea of the general issue.

A trial was had upon this plea, and a verdiet, by direction of the court, rendered for the plaintiff thereon, and the trial thereupon proceeded upon the plea of the general issue, and a verdict was rendered in favor of the defendants. The case comes here on writ of error, and the points relied upon by the defendants will be considered in order.

The position taken by defendant, Horn, was that the plaintiff's intestate was a passenger on the "Mamie" at the time of the alleged collision, and the "Mamie" having contributed to the collision, plaintiff's intestate must, in law, be held to have been so far identified. with those in charge of the yacht, that he could not have recovered, if he had survived, for an injury suffered by him occasioned by such collision, and that, under the terms of the chartering or hiring of the yacht, he could not have recovered for an injury so received.

It appeared that Rev. A. F. Blyenberg had chartered the steam yacht "Mamie" to carry a party of altar-boys and others, twentyone in all, and fourteen of them from eleven to fifteen years of age, from Detroit to Monroe and back, for which he was to pay $20; and

that the yacht was in charge of the master and engineer placed there by the owners. At the time of chartering the yacht it was stated that there would be about twenty persons to go on the trip, but no limit was placed upon the number or as to the route to be taken in going to and returning from Monroe.

It has not, aud could not be claimed, that young Kelley had any authority or control whatever over the master or engineer of the yacht, or that he could have changed or directed the movements of the yacht in even the slightest degree. And while Father Blyenberg, we may assume, could and did have charge of the yacht, as to the time of starting, the number of passengers and such like, yet, as to the duc and proper management of the vessel, the steam she should carry, the speed at which she should be run, the course she should take within certain limits, the rules she should observe in meeting and passing other vessels, the lights she should carry, in a word, the laws and rules applicable to such crafts while navigating the rivers and lakes, were matters over which he could not rightfully be permitted to have any control or direction whatever. These were matters which the master of the vessel could not legitimately turn over to the guidance of any person who may have chartered the boat for a trip to and from a certain point. Had directions been given the master to run the yacht ashore, or upon a rock, or to run down upon and destroy a rowboat, or to not give and answer the neccessary signals when approaching another vessel, or to not carry proper lights, clearly the master would have been under no obligations to obey such orders, and neither he nor the owners of the vessel could have justified such a departure from duty by setting up the authority or directions of Father Blyenberg therefor. In this case it was the legal duty of the yacht to carry proper lights at night, and to give and answer certain signals in due and proper time when approaching another vessel, and what the law had thus directed to be done could not be varied, changed or controlled by any person who may have chartered the vessel for the occasion. And where a person can rightly have no voice or control, he cannot be held so identified with those in charge as to be considered a party to their negligence. It seems to me that any other rule could but point out the way to owners of vessels in which they could, violate all rules and regulations adopted to insure the safety of passengers without incurring any liability therefor.

The reason for holding a person riding in a private conveyance identified with the driver thereof, and, therefore affected by the negligence of the latter, cannot fairly be held applicable in cases

like the present. In the case of a private conveyance the driver is under the direction and control of the passenger, and, if not, the latter may well decline to intrust his safety further in such conveyance. When, however, a person road train or a steamboat, he has no such control enters a public conveyance, and certainly a railover the movements of either, and whether he may have chartered such conveyance for a special purpose or not, yet for a faithful observance of the rules of law enacted for the running or navigation thereof, he cannot be held responsible in a case like the present, where the master is not his servant and is not subject to his direction or authority.

The authorities cited by counsel for plaintiff in error, and which decline to follow Thorogood v. Bryan, 8 C. B. 115, should be followed in the present case. The charterer in this case did not appoint the officers of the boat but was himself, and those who accompanied him, under and subject to their power in the navigation of the vessel; and if they, thus controlling the moveresenting the owners thereof, were guilty of negments of the "Mamie " while running, and repligence in the performance of their duties, those aboard have a remedy for injuries suffered in consequence thereof. See also Covington T. Co. v. Kelley, 36 Ohio St. 86.

liability on the part of the defendants. The quesIt was next insisted that there was no joint tion is not free from embarrassment, and upon a trial the danger is that each defendant is interested in endeavoring to throw all the blame upon the other, and perhaps attempt to prove acts of negligence not set forth in the declaration. In opposition to this, it may be said that negligence caused a collision by which plaintiff's intestate was killed, and that a remedy is given by statute to recover damages therefor; that if separate actions are brought different juries may acquit defeated, although his right to recover be unquesall the defendants, and thus the plaintiff be tioned. When, therefore, such embarrassments are likely to arise upon the trial, and bearing in mind that the plaintiff is without fault and is entitled to recover-at least we must so consider in the discussion of this question-is not the plaintiff who has thus suffered the wrong entitled to a remedy, and that the difficulties and dangers are to be thrown upon those presumably in the If, in either view, injustice is likely to be done, wrong, rather than upon him who was not in fault? should not the defendants assume, or be charged with, the risk? Is there, however, likely to be any injustice done in holding them jointly liable? I think not. The facts are likely to be brought out in such a trial; neither will be interested in keeping back any thing tending to show that it was the other alone that was in fault; and we cannot assume that any wilfully false evidence will be given in the case. The facts are quite likely, therefore, to be fully presented to the jury, who can place the responsibility where it rightfully belongs, either by holding both liable or by

An act wrongfully done by the joint agency or co-operation of several persons will render them liable jointly or severally. The injury done in this case resulted from a collision caused by the contemporaneous act of two separate wrongdoers, who, though not acting in concert, yet by their simultaneous wrongful acts put in motion the agencies which together caused a single injury, and for this the injured party could receive but a single compensation. It is a fact that they all united in the wrongful act, or set on foot or put in motion the agency by which it was committed. That rendered them jointly liable to the person injured, whether the act was done by the procurement of one person or of many; and if by many, whether they acted with a common purpose or design in which they all shared, or from separate and distinct motives and without any knowledge of the intention of each other, the nature of the injury is not in any degree changed or the damages increased which the injured party has a right to receive: Stone v Dickinson, 5 Allen 30.

In Colegrove v. N. Y. Cent. & Hud. River Railroad Co., 20 N. Y. 492, it was held that a passenger injured by a collision resulting from the concurrent negligence of two railroad corporations could maintain a joint action against both. Cooper v. E. T. Co., 75 N. Y. 116, was a case where death had resulted from a collision by two vessels, and an action against both was maintained. In my opinion this action may be maintained. against the owners of both vessels: Hillman v. Newington, 23 Albany Law Jour. 294.

It was next insisted that the case made by the plaintiff showed no fault or negligence on the part of the owners of the "Mamie" that would justify a verdict against them. The rule must now be considered as settled in this state, that where the evidence tends to make out a case for the plaintiff, the force and effect thereof must be submitted to the jury, and that this court will not attempt to review or weigh it.

In a case like the present it would be dangerous in the extreme for this court to attempt to find the facts or to draw inferences from the facts proven, or to attempt to say what might be considered an act of negligence or sufficient evidence thereof. In our opinion the case upon this point should have been submitted to the jury; and, in view of the fact that there must be a new trial, it is better that this court should not enter upon a discussion of the facts which lead us to this conclusion. It was also urged that this case came within the limited liability act of Congress, and that the defendants, owners of the "Mamie, were not personally liable. The learned judge before whom the case was tried held that the "Mamie" did not fall within the provision of the United States statutes, citing in support thereof Am. Transp. Co. v. Moore, 5 Mich. 368, The Mamie 5 Fed. Rep. 813. We are of opinion that these cases fully covered this question, and

As we have thus passed upon all the material questions raised, and are of opinion that the court erred upon the questions designated, the judg ment will be reversed, with costs, and a new trial ordered.

LEASE-FRAUD-REPRESENTATIONS.

SUPREME COURT OF MINNESOTA. WILKINSON

V.

CLAUSON.

April 5th, 1882.

In the course of negotiations between plaintiff and defendant for a lease of stores then in process of completion, whose situation required a sewer, plaintiff, who had constructed a sewer therefor with ordinary care, in good faith recommended the said stores as suitable for defendant's business, and stated to defendant "that there was an excellent sewer connected with them, which would make the premises clean." The written lease thereafter executed, contained no stipulations upon these matters, and no references to the sewer. Said sewer was sufficient in ordinary storms, but subsequently proved insufficient in a heavy rainstorm of exceptional severity, and said premises were flooded and defendant's goods greatly damaged. Held:(1) That said representations are to be taken as the expression of plaintiff's judgment and opinion merely, and fail to sustain the charge of fraud; and the same are not to be construed as a part of the terms of the contract. (2) There is no implied covenant in the lease that said stores were suitable for defendant's use, or supplied with proper drainage. (3) No wrongful act or omission on plaintiff's part being shown, and no stipulation in his contract violated, he is not liable for said damage, but is entitled to recover upon said lease.

Appeal from District Court, County of Ramsey. VANDERBURGH, J.

The defendant entered into possession of the demised premises prior to November, 1878, and moved out in March, 1880. This action is to recover rent due for the last two months of his occupancy. The lease was for a term of three years and upwards, and before it was executed certain negotiations took place in reference to the stores to be occupied, then being built, during which, as the trial court finds, "the plaintiff recommended said stores to defendant as suitable for his business, which was that of merchandizing, and stated to him that there was an excellent sewer connected with the stores, which would make the premises clean." This appears to be the sum of the representations upon which defendant predicates his charge of fraud in connection with the leasing of said premises. The lease itself expresses no covenants on plaintiff's part which are claimed to have been broken. It contains no representations on the subject of the sewer or the suitableness of the tenement for defendant's use; but aside from the usual covenants for letting, its provisions relate wholly to the matter of the finishing and fitting up of the rooms to be occupied by the defendant, including the basement in which the defendant proposed to store goods. At the time of said negotiations, said sewer had been constructed with