A city invited bids for making a street railroad. Bids were made
by an unincorporated company, and accepted -- accepted, however,
with a modification. To this modification the company agreed,
expressing its readiness to sign a contract embodying the terms and
conditions of it. The communication accepting the modification was
referred to a committee, but no contract in form was ever signed.
At this point of the matter, the city passed a resolution giving
permission to the unincorporated company to have themselves
incorporated:
"The incorporation in no way to change the conditions of
the
propositions heretofore made and accepted by the parties
respectively, the same being intended to secure the rights and more
effectually preserve the remedies of parties against each other
respectively in case of any violation of contract to be
hereafter entered into."
The unincorporated company accordingly got a charter, and so
became an incorporated one. Its charter authorized it to complete
all agreements entered into with the city for the use of
the streets, AND to operate street railroads in ALL the streets of
the city
with the consent of the city. The company, in its
chartered form, now expressed to the city its readiness to execute
their contract (which had been prepared by the city solicitor), and
to enter on the construction of the road. This communication was
referred to a committee. In the meantime, opposition was made by
the citizens to having rails in the streets, and the city resolved
to recede from its project of having them, recognizing at the same
time its "moral, but not legal, obligation to make good to those
who had been incorporated as a street railway any real damage
sustained by change of purpose."
Held:
1st. That there was no perfected contract between the city and
the unincorporated company.
2d. That if there had been, there was no evidence that the city
had accepted the incorporated company in place of the
unincorporated one.
Page 77 U. S. 39
The City of Memphis being by its charter empowered "to regulate
the laying of railroad iron and the passage of railroad cars
through the city," and by general law "to grant privileges in the
use and enjoyments of the streets," passed, on the 11th of
November, 1859, an ordinance prescribing the terms on which the
board would grant the exclusive privilege of constructing street
railways in Main Street and other streets specially named and
operating them under certain regulations for a term of twenty-five
years.
By the ordinance, bids were invited to be made on or before
November 20, to the mayor and finance committee, and were to be
reported to and awarded by a board consisting of the mayor and
aldermen at the first meeting thereafter.
Accordingly, on the 29th of November, the board met and received
from the finance committee a number of bids, including one from H.
D. Small, William Kirk, and nine persons named, "and others, as the
People's Passenger Railroad Company of Memphis," the proposition
being made by Kirk and Small as "business agents of the company."
The committee reported that the bid thus made was the best one for
the interest of the city, and the board proceeded to make their
award pursuant to the ordinance. The bid thus reported on contained
four propositions, each offering to pay certain amounts, fixed or
contingent, for the privilege of running upon certain streets. The
board made their award by authorizing the mayor and city attorney
to close a contract with Kirk, Small, and the others upon the terms
of their second proposition as to the amount and time of payment,
but including other streets, making a reservation of a right to
determine the sort and weight of rail to be used, and varying the
time of completion.
These modifications were accepted by Kirk and Small in behalf of
the persons composing the People's Passenger Railroad Company
December 2, and a notice thereof, in writing, with great form and
specification that they were so,
Page 77 U. S. 40
given to the board, and by the board, December 8, "read
received, and ordered to be filed."
On the same 8th day of December, the board passed a resolution
giving permission to the associates, describing them as "
the
parties to whom has been awarded the contract for city railroads,
under the ordinance passed the ___ day of _____, 1859," to
have themselves incorporated,
"the incorporation in no way to change the conditions of
the
propositions heretofore made and accepted by the parties
respectively, the same being intended to secure the rights and
more effectually preserve the remedies of parties against each
other respectively, in case of any violation of contract to be
hereafter entered into."
On the 1st of February, 1860 -- that is to say about two months
afterwards -- Small, Kirk, and their associates were incorporated
by the style of "The People's Passenger Railroad Company of
Memphis," and by section of their charter authorized to complete
all the contracts or agreements
entered into with the City
of Memphis or other parties for the use of the streets of said
city, and to enlarge and alter the terms of the same with said
parties --
AND to operate street railroads, by animal power, in
ALL the streets of said city, with the consent of the said
city.
Section 5 authorized the company to extended said road or roads
outside the corporate limits.
On the 21st of February, 1860, the president and secretary of
the People's Passenger Railroad Company laid before the board of
mayor and aldermen a copy of their charter, and expressed their
readiness to sign the contract which had been prepared for their
signature by the city attorney. They say:
"We think that the same is in accordance with the agreement with
the city as embodied in the ordinance on the bid and the resolution
of grant. By a resolution of our board of directors under the
charter which you permitted us to obtain, we are authorized to sign
the contract, and hold ourselves in readiness to do so. . . . We
are prepared to give the required bonds as soon as the contract is
executed. "
Page 77 U. S. 41
They express also their readiness to enter immediately upon the
construction of the road, for which they say they had made
preparations.
This communication was referred to a committee, with
instructions to report.
In the meantime, opposition had arisen among the property
holders on Main Street, one of the streets named in the contract,
and the committee recommended a postponement of action as to that
street till March 20, for the purpose of obtaining information as
to the effect of street railroads on the value of property.
On the 22d of March, the board resolved to recede from the
undertaking to have a street railway on Main Street, recognized
their "moral but not legal obligation to make good to
those who
had been incorporated as a street railway company any real
damage sustained by change of purpose," and referred the matter
back to the committee,
"to modify the plans for street railways with the company, if it
can be effected, or, otherwise, to agree on a settlement of the
supposed damages, and report back to the board."
No opposition appeared to have existed on any street but Main
Street.
The committee and the company came to no settlement as to
damages, and the committee made no report till the 23d of April,
1861, when they reported a resolution, which was adopted by the
board, offering to sanction the construction of the road on any
street, provided the consent of two-thirds of the propertyholders
thereon were first obtained.
The occupation of the city by the army during the rebellion, and
the suspension of the courts, prevented any proceedings by the
company either to obtain the consent of the propertyholders or to
enforce its rights by legal proceedings, and so the matter remained
until June, 1865.
In the month and year last named, the rebellion being now
suppressed, the legislature of Tennessee chartered a new company,
to-wit,
"
The Memphis City Railroad Company, with authority to
construct, maintain, use, and operate street railways by animal
power on all or any of the streets of Memphis,"
and to make all contracts and agreements
Page 77 U. S. 42
with the city or other parties in connection with the matter.
And it repealed the act by which the People's Passenger Railway
Company had been incorporated.
The new company having begun to lay its track on the streets of
Memphis, and opposition being made thereto, on account of the
former charter to the other company, the new company filed its bill
in chancery, in a state court of Tennessee, the old company being
made a defendant, to test the right of the matter. The old company
set up as a defense to the bill that they had an existing contract
with the city, and that the charter to the new company was a law
impairing its obligation. The court decreed in favor of the new
company, and that decree being affirmed in the supreme court of the
state, the old company brought the case here. The questions
accordingly were:
1. Whether there existed any contract between the city and the
old company?
And if yea, then,
2. Whether the statute incorporating the second company was a
law impairing the obligation of a contract?
Of course, unless the first question was determined
affirmatively, that is to say, unless it was determined that a
contract had been entered into between the old company and
the city, then the second could never arise.
Page 77 U. S. 45
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Express authority was vested in the Memphis City Railroad
Company, by the fourth section of their act of incorporation,
to
"construct, maintain, use, and operate street railways by animal
power, on all or any of the streets in the City of Memphis, using
for that purpose all necessary machinery
Page 77 U. S. 46
and equipments,"
and "to make, complete, and execute all contracts and
agreements" made with the city or other parties for any purpose
connected directly or indirectly with the construction,
maintaining, or operating such railway, and to alter or enlarge the
terms of the same with the said parties. [
Footnote 1]
Evidently the legislature assumed to confer the franchise of the
company without regard to the consent or action of the city, and
upon the assumption that there was no valid subsisting contract
between any other parties and the city for constructing the
described railroad and putting the same in operation. Confirmation
of that proposition, if anything else is needed, is found in the
ninth section of the act of incorporation, which provides that the
act entitled an act to incorporate the People's Passenger Railway
Company of the City of Memphis, passed February 1, 1860, be and the
same is hereby repealed.
Pursuant to the act of incorporation the company was duly
organized, and the stock necessary to construct ten miles of the
railway track, and to equip, run, and maintain the same, was duly
subscribed, and the contract awarded to responsible persons to
construct and equip that part of the railway as authorized by the
terms of the charter.
Regularly organized and ready and willing to comply with all the
requirements of their charter, the corporation complainants allege
that their contractor, employees, and agents commenced to construct
the railroad with the intention of fulfilling all their
obligations, and would have completed the undertaking if they had
not been interrupted and obstructed in the work; that the mayor and
aldermen of the city, or some of them, in disregard of the
franchise of the company, forcibly and with violence caused the
work to be discontinued and stopped.
Based upon these and similar allegations, the prayer of the bill
of complaint is that John Park, mayor, and the board of mayor and
aldermen, may be made parties respondents
Page 77 U. S. 47
in the suit, and for an injunction. They were accordingly made
parties, and the complainants having executed a bond, with the
usual conditions, in the sum of twenty thousand dollars, the writ
of injunction was duly issued.
Service of the writ of injunction having been made, the People's
Passenger Railroad Company filed a petition in the case,
representing that they were authorized by their charter, with the
consent of the city, to execute all contracts made with the city or
other parties, for the use of the streets of the city for operating
street railroads thereon by animal power, and praying to be made a
party respondent to the bill of complaint. Hearing was had on the
petition, and it appearing that the petitioners were interested in
the issue, it was ordered by the court that the prayer of the
petition be granted.
Being the original respondents, the city authorities filed a
separate answer, in which they admit that the complainants made the
offer in writing, as required by their charter, to construct the
railroad, and that they took possession of one or more of the
streets of the city for that purpose; that they commenced the work
and that the mayor of the city interrupted the work as alleged and
caused it to be discontinued.
Extended answer was also filed by the other corporation
respondents, in which they set up their act of incorporation
granted February 1, 1860, and especially the fourth section
thereof, which provides that they
"shall have power to complete and execute all contracts and
agreements entered into with the City of Memphis, or other parties,
for the use of the streets of said city for building said railroad,
and may alter or enlarge the terms of the same with said parties,
and may operate street railroads by animal power on all the streets
in the City of Memphis,
with the consent of said
city."
They also allege that the city authorities, prior thereto,
invited bids for the construction of such railroad on certain
streets in the city, including those mentioned in the bill of
complaint; that on the twenty-ninth of November, 1859, the bids
made for that object were reported to the mayor and aldermen, and
that they awarded the contract to William
Page 77 U. S. 48
Kirk and H. D. Small, whose bid was made in their own behalf,
and as agents of certain associates since constituted the People's
Passenger Railroad Company of Memphis; that the said contractors
and their associates were subsequently, with the consent of the
city authorities, incorporated by the legislature of the state, and
with the understanding that the conditions of the contract as made
and accepted should not be changed; and the respondents aver that
they are advised and insist that the consent of the city given as
stated and subsequently ratified by the legislature, as by their
charter appears, is a contract between the parties which no
subsequent legislature can constitutionally alter or impair without
their consent.
By virtue of those proceedings they claim that they are invested
with a franchise which neither the city council, nor the
legislature, nor any other party can constitutionally invade, and
that the ninth section of the complainants' charter, by which their
act of incorporation was repealed, is null and void, because it was
passed in contravention of that clause of the Constitution which
forbids the states from passing any law impairing the obligation of
contracts, and the respondents in conclusion submit to the court
that the matters set forth in the answer call for the interposition
of the court to protect their rights as though they were
complainants asking relief in the premises, and they pray that the
answer may stand as a cross-bill, and that the mayor and board of
aldermen, as well as the complainants, may be required to answer
the allegations, and that the injunction may be dissolved.
Complainants demurred to the cross-bill, and the demurrer was
sustained, and the cross-bill was dismissed. On appeal to the
supreme court of the state the decree was affirmed, and the
respondents in the original bill of complaint appealed to this
Court.
Two things must clearly appear in order to justify the court in
adopting the views of the respondents:
(1) That there was a contract between the respondents and the
city
Page 77 U. S. 49
authorities, which was complete in itself, and which was binding
on both parties.
(2) That the charter subsequently granted to the Memphis City
Railroad Company impairs the obligation of that contract.
I. Prior in date as the charter of the respondents is, it is
clear that the charter granted to the complainants invades the
rights of the respondents, if the exclusive rights which they claim
were ever perfected by a binding contract made between them and the
city authorities, unless it be assumed that the charter under which
they claim such exclusive right could be repealed by a subsequent
legislature. Viewed in that light the case presents two questions
for decision, both of which must be decided in favor of the
respondents, or the decree of the supreme court of the state must
be affirmed: (1) whether the city authorities ever entered into a
binding contract with the respondents that the respondents might
complete and execute all contracts and agreements previously made
with the city, or other parties, for the use of the streets of the
city for building and operating said railroad, and if they did make
such a contract, then (2), whether the act of the legislature
repealing their act of incorporation is or is not a valid law.
Apparently, it was a question in the state court whether the
respondents were ever legally incorporated; but there does not
appear to be any substantial ground of doubt upon that subject, as
the persons named in the act, and their associates, are expressly
constituted a body politic and corporate under the name therein set
forth, and the first section also provides that they may have
succession for the term of twenty-five years, may sue and be sued,
plead and be impleaded, may have and use a common seal, purchase
and hold real and personal estate, create stock, elect directors
and other officers, and may make all necessary bylaws, subject to
the usual condition that they shall not be inconsistent with the
laws of the state. Unfounded as the objection is in any view of the
case, it may be dismissed without further consideration.
II. Apart from that topic, however, the real question is,
Page 77 U. S. 50
whether the special powers described in the fourth section of
their charter ever actually vested in the respondents, as they
allege in their answer. They insist that the exclusive right to
construct railroads for the transportation of passengers over the
streets of that city, and to use the streets of the city for that
purpose, was granted by the city authorities to certain individuals
as contractors before the respondents were incorporated, and that
they, the respondents, with the consent of the city, subsequently
became the assignees of that contract and agreement, and as such
were and are invested with the authority to complete and execute
that contract and agreement as ratified and confirmed by the
legislature.
None of the elements of that proposition are admitted by the
complainants; but they insist that municipal corporations have no
power to grant such a franchise to individuals or other
corporations, unless thereto specially authorized by the
legislature; and they also insist that no such power is shown to
have been conferred in this case.
III. Serious doubts are entertained whether the mayor and
aldermen of the City of Memphis possessed any authority to make
such a contract as that set up in the answer as having been made by
them with the persons under whom the respondents claim, as it
obviously amounts to a franchise for twenty-five years; and if so,
then it is clear that it could not be granted by those authorities
in virtue of the ordinary powers possessed by such
municipalities.
Power to make laws is vested in the legislature, under the
Constitution of the state, and it is very doubtful whether the
legislative department can delegate to any other body or authority
the power to grant such a franchise, as the exercise of that power
involves a high trust created and conferred for the benefit of
those who granted it, and as the trust is confided to the
legislature it must remain where it is vested until the
Constitution of the state is changed. [
Footnote 2]
Page 77 U. S. 51
Franchises, it is conceded, cannot, as a general rule, be
granted by such a corporation, and it is clear that the privilege
of making a railway or turnpike, or establishing a ferry and taking
tolls for the use of the same, is a franchise, as the public have
an interest in the same, and the owners of the privilege are liable
to answer in damages if they refuse the use of the same, without
any reasonable excuse, upon being paid or tendered the usual fare.
[
Footnote 3]
IV. Consonant with that view this Court held, in the case of the
Bank of Augusta v. Earle, [
Footnote 4] that franchises are special privileges
conferred by the government on individuals, and which do not belong
to the citizens of the country generally of common right, and that
in this country no franchise can be held which is not derived from
the law of the state. [
Footnote
5]
Contracts undoubtedly may be made by such municipalities to the
extent of the authority conferred for that purpose by the
legislature, but the granting of a franchise is not the same thing
as a contract, and the exercise of such a power cannot be upheld or
vindicated as falling within the same rule as the power to make
contracts.
By the amendment to their charter, passed February 13, 1854, the
authorities of the city were empowered to regulate the laying of
railroad iron and the passage of railroad cars through the city;
but the better opinion is, that the provision in that behalf
relates to construction of railroad tracks and the running of
railroad cars through the city by incorporated companies whose cars
are propelled by steam, and that it has no reference whatever to
the construction or authorization of a street passenger railway
within the corporate limits, as claimed by the respondents in their
answer. [
Footnote 6]
Authority is also conferred on municipal corporations, by the
code of that state, "to grant privileges in the use and
Page 77 U. S. 52
enjoyment of the streets" of the municipality; but it would be a
very forced construction to hold that the power to grant such a
franchise for twenty-five years is included in that provision.
[
Footnote 7]
V. Independently of those provisions, it is quite clear that the
municipal authorities of the city possessed no such power as is
supposed by the respondents. Such corporations are usually invested
with the power to lay out, open, alter, repair, and amend streets
within the corporate limits; but the rule is well settled, that by
virtue of those powers, without more, they cannot grant to an
association of persons the right to construct and maintain for a
term of years a railway in one of the streets of the municipality
for the transportation of passengers for private gain, and that an
ordinance or resolution of the authorities granting such a right is
void. [
Footnote 8]
Special powers are given to such corporations to lay out, open,
and repair streets as a trust to be held and exercised for the
benefit of the public, from time to time, as occasion may require,
and the general rule is, that those powers cannot be delegated to
others, nor be effectually abridged by any act of the municipal
corporation without the express authority of the legislature.
[
Footnote 9]
Municipal corporations are doubtless invested with subordinate
legislative powers to be exercised in the passage of ordinances for
local purposes, connected with the public good, but they are merely
derivative, and are subject, at all times, to the legislative
control. [
Footnote 10]
VI. Suppose, however, the authority to make the contract set up
in the answer of the respondents may be derived from the statutory
provisions to which reference is made, still the
Page 77 U. S. 53
court is of the opinion that the decree of the state court
should be affirmed upon two grounds, which will be separately and
briefly explained:
(1) Because the supposed contract with the persons under whom
the respondents claim was never perfected between those persons and
the city authorities.
(2) Because the respondents fail to show, even if it be admitted
that the contract between those parties was perfected, that the
city authorities ever consented to accept the respondents as the
successors of the supposed prior contracting party.
1. Examined carefully, the evidence will show that at every
stage of the negotiations something remained to be done to complete
the contemplated arrangement.
Prior to the twenty-second of November, 1859, the proper
authorities of the city passed an ordinance proposing to grant the
right to construct and operate street railroads for the
transportation of passengers in cars to be drawn by horses or
mules, for twenty-five years from the passage of the ordinance.
Bids were subsequently invited for that purpose, and the persons
before named submitted four propositions as bids for the contract.
On the twenty-ninth of the same month, the city council authorized
the mayor and corporation attorney to close a contract with those
persons to construct such a railway on certain streets and on
certain prescribed terms -- they to pay to the city the sum of one
hundred and twenty-seven thousand five hundred dollars, at the
times and on the terms named in their second proposition. But the
city authorities reserved the right to determine what description
of rails and weight of iron should be used by the contractors, and
the stipulation was that they should give a bond to the city in the
sum of twenty-five thousand dollars to indemnify the city and
individuals against damage. Subsequent proceedings intervened
before any further action was taken under that resolution.
Kirk and Small, professing to act in behalf of the association
called the People's Passenger Railroad Company of Memphis, December
2, 1859, addressed a letter to the mayor and aldermen of the city
accepting the grant of the streets
Page 77 U. S. 54
named as set forth in the "general railroad ordinance" and in
the aforesaid resolution, subject to the terms, conditions,
privileges, and restrictions of said ordinance and resolution, and
expressing their readiness to sign a contract embodying those terms
and conditions.
Permission was given by the city authorities to those persons,
on the eighth of the same month, to procure for themselves an act
of incorporation, provided it did not change the conditions of
their proposition, and was granted subject to the consent of the
city, and was so framed as not to prevent any other company from
building street railroads. They were accordingly incorporated
February 11, 1860, and the act of incorporation provides, as before
explained, that the respondents, "with the consent of said city,"
may exercise the powers described in the fourth section of the
charter. No contract was ever executed between the persons before
named and the city authorities, and no further efforts were made to
complete the proposed arrangement until after the act of
incorporation was passed.
Granted and accepted, as the charter was, on the condition that
the respondents should secure the consent of the city before they
could exercise the franchise in question, they are not at liberty
to set up any other theory. Conclusive proof that the original
arrangement was not concluded is exhibited in the letter of the
president and secretary of the respondent corporation, written
after the respondents were organized, and addressed to the board of
mayor and aldermen, in which they refer to a contract as one
prepared by the corporation attorney, and say that they are
authorized to sign the contract on the part of the corporation.
They say they are prepared to give the required bonds as soon as
the contract is executed, but they do not pretend that any draft of
a contract was ever before presented to the city authorities.
Nothing of the kind is suggested in the communication, but they
speak of the contract as one prepared "for our signature," and the
bid as "our bid," assuming throughout that the persons who made the
bid and conducted the negotiations
Page 77 U. S. 55
and the corporation respondents are identical, which is a fatal
mistake. They are not the same, and it is clear that the proposed
contract between those who made the bid and the city was never
completed. [
Footnote 11]
2. Attempt is made by the respondents to give a restricted
construction to the phrase "with the consent of the said city," as
contained in the fourth section of their charter, but the court is
not able to concur in that suggestion. Briefly stated, the
suggestion is that the phrase, as properly construed, only requires
that the consent of the city should be obtained in case the company
should desire to construct railways on streets other than those
designated in the contract, but it is not possible to adopt that
construction of the phrase. On the contrary it seems clear that the
franchise described in the fourth section was granted subject to
the condition precedent, that the respondents should obtain the
consent of the city to use the streets for the purpose therein
described. [
Footnote 12]
Granted on that condition the charter would not avail the
respondents in this case even if it appeared that the consent to
that effect had been given to the two persons who made the bid and
conducted the negotiations antecedent to the act of incorporation.
[
Footnote 13]
Consent to those individuals, even if given as supposed, did not
bind the city to accept an incorporated company in their stead, as
the legislature might, for good reasons, require that such consent
should be again given after the franchise was granted; and as such
consent was never obtained, it is quite clear that the decree of
the state court must be affirmed. Influenced by that view of the
case, the court does not think it necessary to refer to the
subsequent proceedings between the parties, as it is clear that
none of them are of a character to give any different aspect to the
controversy.
Decree affirmed.
Page 77 U. S. 56
THE CHIEF JUSTICE, with NELSON and DAVIS, JJ., dissented, MR.
JUSTICE DAVIS saying for himself and them, that they thought that
there was a contract between the People's Passenger Railway Company
and the City of Memphis which could not be impaired by state
legislation, but that he did not go into the question at length, as
it was of no general interest, and of importance only to the
parties to the suit.
JUSTICES STRONG and BRADLEY had not taken their seats on the
Bench when this case was adjudged.
[
Footnote 1]
Sessions Laws, 1865, p. 88.
[
Footnote 2]
Cooley on Constitutional Limitations 117;
Thorne v.
Cramer, 15 Barbour 112;
Barto v. Himrod, 8 N.Y. 483;
Parker v. Commonwealth, 6 Pa.St. 507; Sedgwick on the
Constitution 165;
Wayman v.
Southard, 10 Wheat. 46
[
Footnote 3]
3 Kent (11th ed) 590;
Willoughby v. Horridge, 16
English Law and Equity, 437;
Beekman v. Railroad Company,
3 Paige Ch. 45.
[
Footnote 4]
38 U. S. 13
Pet. 595.
[
Footnote 5]
Angell & Ames on Corporations (8th ed) 2;
State v.
Armstrong, 3 Sneed 634;
Mayor &c. v. Shelton, 1
Head 24.
[
Footnote 6]
Sessions Laws, 1854, p. 294;
Moses v. Railroad Company,
2 Ill. 522.
[
Footnote 7]
Code 1858, p. 303.
[
Footnote 8]
Davis v. Mayor, 14 N.Y. 514.
[
Footnote 9]
Milhau v. Sharp, 27 N.Y. 611;
People v. Kerr,
27
ib. 188;
Elliott v. F. & W. Railroad, 32
Conn. 579;
Wager v. Troy Union Railroad, 25 N.Y. 526;
People v. Third Avenue Railroad, 45 Barbour 63;
Street
Railway v. Cummingsville, 14 Ohio, N.S. 523;
State v.
Council of Hoboken, 1 Vroom 225.
[
Footnote 10]
2 Kent 11th ed., 317;
Rogers v.
Burlington, 3 Wall. 663.
[
Footnote 11]
Governor v. Petch, 10 Hurlstone & Gordon 610;
Musser v. Street Railway Co., 7 American Law Register
284.
[
Footnote 12]
Walker v. Devereaux, 4 Paige Ch. 251.
[
Footnote 13]
King v. Mayor, 3 Barnewall & Adolphus 271;
King
v. Justices, 1 Neville & Manning 67.
