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English decisions upon this subject is not altogether without gratification, as the former decisions had so effectually mystified the subject, that it seemed not improbable that the difficulty of comprehending them might very likely be ultimately found with ourselves, rather than at the door of the eminent jurists who have so long clung to the now acknowledged inconsistencies of Humble v. Langston, which pertinacity in error, as a general thing, is far more uncommon in Westminster Hall than with courts of less experience. Men of the learning and experience of the English judges generally feel that they can afford to acknowledge their common share of human fallibility without serious prejudice." It is impossible to avoid adding, that of the Barons of the Exchequer who decided Humble v. Langston, only one remained on the bench at the date of the decision of Walker v. Bartlett; and that learned judge, together with two of the three judges who decided Sayles v. Blane, were consenting parties to the decision of Walker v. Bartlett.

Then the learned Chief Justice of Vermont, in speaking of the pertinacity with which error has been clung to, appears to labour under a misconception. The judges who decided Humble v. Langston, never had an opportunity of revising the opinion of their court in that case: no case having ever subsequently come before them, putting to the test whether they clung to, or resiled from, that decision. In Sayles v. Blane the three judges who decided, did so in deference to the deliberate decision of a court of co-ordinate jurisdiction, as did the Court of Common Pleas with the case of Walker v. Bartlett.2

When a rule is once laid down by a court of competent jurisdiction, it is surely most desirable, for the sake of uniformity of adjudication, that the rule should be adhered to until reversed in a court of error: certainly that practice is the only one that can be followed with the hope of maintaining, in due authority, the three co-ordinate common law judicatures of England.

1 Redf., pp. 47, 48.
217 C. B., 454–460.

It is unnecessary to mention that, in case of railway companies here, the shareholders are liable to the extent of unpaid up shares, &c., to judgment creditors of the Company; but in the United States there is, for the most part, no provision of that nature; hence this and the general question of liability of a trading company on its dissolution, have been much more fully discussed than with us. What is to be done with the liabilities and rights of an incorporated body on the dissolution of the corporation? is always a difficult inquiry. The reader will, we think, find it handled in this work in a satisfactory manner,1 and more elaborately in the cited case decided by six judges, the three others dissenting, of the Supreme Court of the United States; or, as Chief Justice Redfield calls it, "the national tribunal of last resort." They decided that, "on the dissolution of a corporation, its effects are a trust fund for the payment of its creditors, who may follow them into the hands of any one, not a bona fide creditor or purchaser without notice."

2

We must pass over the Chief Justice's elucidation on what is called in America, from the civil law, the doctrine of "eminent domain," and what we, in plainer English, should call the principle which attributes to the sovereign the prerogative or power of interfering with private property for great public objects, and on occasions when the necessity of the case admits of no alternative. Such is the prerogative or right of entering on the lands of the subject adjacent to the sea, to erect bulwarks, &c., on prospect of invasion, &c.; and the principle governs questions relating to compulsory taking of lands for the purpose of railway and other works.. We cannot do more than that, which it is worth while, however, to do, viz.-quote the language of the Chief Justice of the Supreme Court in reference to the construction to be put on powers of this kind given to companies :-"It would present a singular spectacle if, while the courts of England are restraining, 1 Redf., § 50.

2 Curran o. State of Arkansas, 15 Howard R., 304, 305--321.

He refers (Redf. § 63) to Tacit. Ann. I., § 75; Plin. Hist., xxxvi., § 2, the reference being an error, and states Clarence River Bridge v. Warren Bridge, 11 Peters, 420, in the Sup. Court of U. S., to be their leading case on the subject.

within the strictest limits, the spirit of monopoly and exclusive privilege in nature of monopoly, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging those privileges by implication." The principle of compensation, which is founded in justice, and recognised by the best jurists, is fully and frankly acted on in America, where, as a rule, no man is called upon to part with his property for state purposes, except upon an equivalent previously provided by the state; the rule being subject, it may be presumed, to the fact that it is, in general, impossible to ascertain, till the work is done, what shall be a just amount of compensation.2

3

The principle in its fullest development has only been adopted, in our law, on some particular heads; ex. gra., in questions of the making of highways, as in 1 and 2 Will. IV., c. 43. In Scotland they are more liberal, at least to themselves. Some of the American decisions on this head of eminent domain, seem not a little wild and extravagant. It has been held, in one of their courts of error, to be a perfectly proper exercise of the rights of eminent domain by a legislature, to empower a railway company to run cars, worked by steam power, along the main street of a city, without any compensation for the privilege being payable to any one. In other states, it is true, the law is differently expounded. In Vermont the courts have held taking of land for a public highway, is not appropriating it to public use, within the meaning of the constitution of that state, which requires compensation in such cases to be made "in money;" but that this provision only applies where the fee of the land is taken; and that, where an easement only is taken, for the purpose of a high

12 Kent Com., 399, 8th Edit. So Grotius, De Jure B. and P., iii., cap. 19, § 7; cap. 20, § 7, and other authorities cited by Chancellor Kemt. So the Code Napoleon, art. 545.

2 Lister v. Lobley, 7 A. & E., 133.

3 Bell's Principles, &c., p. 173.

42 Kent Com., 403, 404; Redf. § 76. This is matched by a decision that a bowling alley kept for gain in a village is a nuisance at common law. Id. See Redf., § 76.

way, and the remaining lands is worth more than the whole was before the laying out of the road, the party is entitled to no compensation.1

Owing to that provision in the constitution of the United States, which prohibits the state legislatures from passing any law impairing the obligation of contracts, many curious questions have arisen in the attempt to ascertain the proper limits of the restriction thus imposed upon each sovereign state. The Judges of the Supreme Court of the United States, who are expressly empowered to decide upon the constitutionality or otherwise of all laws, passed as well by the State Legislatures as by Congress itself, have been in former times, and are, we believe, now, far from unanimous on this subject. Among these questions is that of the duration of privileges or franchises conferred upon a corporate body. In America, these are, at present, whether given by express words or by implication, regarded as irrevocable, and inviolable by any subsequent legislation; though this doctrine does not go so far as to exclude others, whether individuals or corporations, from the grant of similar privileges or franchises if the legislatures see fit. In this country, whilst the sovereign was the only known source of incorporation, the principle was laid down that the king could not dissolve a corporate body; and the same principle was maintained long after the sovereign ceased, in practice, to be the only creator of corporations; but no doubt the whole legislature has always had the inherent power of destroying any corporate existence, though it only appears to have exercised the power in the cases of the knights templars, temp. Edw. II., and the religious houses, temp. Hen. VIII.

The Chief Justice is an ardent admirer of the beautiful simplicity with which the courts of law in this country, in former times, invested their decisions as to carriers' responsibility, and hails some late decisions as indicating an intention to restore, as far as practi1 Livermore. Town of Jamaica, 23 Verm. Rep., 361; Redf., § 71, and this mode of reckoning is adopted in some states, though rejected in most. 2 See Redf., §§ 70, 231.

3 Er. gra., Horn. v. Lond. & S. W. Ry. Comp. 1 Jur. N.S., 236.

cable, the reasonable responsibility of carriers, and return again to the spirit of that line of decisions in which the nail indeed was hit, but hit with a sledge-hammer.1 In the state of New York the courts at one time held, that it is not competent for carriers to exonerate themselves from their general liability, either by notices brought home to the owner of goods at the time they are deposited for carriage, or even by express contracts to that effect; but the law is differently held now. In other states, when the question has arisen whether notice would excuse the liability of the carrier, it seems to have been taken for granted that a special acceptance of the terms of such notice would have that effect. The same law is held in the Supreme Court of the United States, which observed, in a case where the question was much discussed,―

"The owner of the goods, by entering into the contract, virtually agrees that, in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment, but as a private person who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or negligence." The reader must judge for himself as to the wholesomeness of this view. In Vermont the court says "We are more inclined to adopt the view which the American cases have taken of the subject of notices by common carriers, intended to qualify their responsibility, than that of the English courts, which they have in some instances subsequently regretted. The consideration that carriers are bound, at all events, to carry such parcels, within the general scope of their business, as are offered them to carry, will make an essential difference between the effect of notices by them and by others, who have an option in regard to work which they undertake. In the former case, the contractor having no right to exact unreasonable terms, his giving public notice that he shall do so, where

1 Redf., §§ 132-134, 140.

2 Redf., § 132, note (3).

New Jersey St. Nav. Comp. v. Merchants' Bank, 6 How., 382.

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