mutation whatever, thus abolishing the use of tickets sold below the prices of single fares. This is believed to be the wisest system for street railways by many experienced persons. But it is one of those matters of detail which can best be regulated by the companies themselves, their own interest and that of the public being nearly identical, although operating in different directions, -the one desiring to reduce single fares, and the other to increase the general aggregate of traffic in such a manner as to increase the net profits.

It does not seem to us there is much demand for any system of commutation or exchange tickets upon street railways. The true theory is, in our judgment, to allow the lowest living compensation for a given distance, and then require the passengers to assume the loss resulting from special accommodation within the range of the route. This special accommodation is most frequently demanded, by way of subdivision of the trip. It would no doubt afford great accommodation to passengers if they could be allowed to subdivide the trip indefinitely. In a single trip within the limits of the city of Boston, without passing over the same track more than once, it might, no doubt, be convenient for some passengers to ride in ten different cars, in some extreme cases, and, in numerous cases, in three or four different cars. It is evident, therefore, that no system could be lived under which should allow the passenger to change cars at will, with no increase of fare. If there is to be, as it is evident there must be, some additional fare paid for each change of cars, there will always be some uncertainty in regard to the precise amount which should be required in order to compensate the expense. It will be very difficult to fix upon any general rule which shall be sure to afford full compensation short of requiring an additional fare for each change. And we think, as the change of cars is solely for the accommodation of the passengers, there should always be compensation for it, and that all doubts should be resolved against the party for whose benefit they are caused. It seems to us, therefore, both on the score of justice and simplicity, that if we were to take the matter entirely new we should leave it upon the basis of requiring an additional fare for every additional passage, unless and until the companies found it for their advantage, in order to give the public accommodation demanded in the most

acceptable manner, to devise some scheme of compromise in regard to checks for different lines, believing that it would be sure ultimately to be done in the best manner in that way. But since a statute has been enacted upon this subject with the apparent concurrence of those interested, we have felt reluctant to recommend its entire repeal until it has been fairly and fully tried, and we do not consider this has yet been done. If we were to recommend any modification of the existing provisions upon the subject, we should desire to substitute for them a general provision, that any passenger desiring to pass from any one point in any city or town to any other point in the same city or town, where the passage could not be effected in a single car, but might, by means of different cars, whether of the same or different companies, such persons should be allowed, by paying the highest fare required for a passage in any portion of such town or city, and one cent in addition for each check, to receive checks entitling him or her to the immediate completion of such continuous passage in any car running within the limits of such town or city, with the provision that, if such passenger should attempt to use such checks for any other purpose or at any other time, he or she should be liable to the same penalties as in other cases of evasion of lawful fare. This will be an accommodation beyond the actual compensation, but as the matter is hereby simplified very much, and as it could not be attended with serious loss to the company, and might increase the traffic to some extent, by affording greater accommodation, we should prefer this form of commutation to any other which has occurred to us, if we were to recommend any change. This mode is not liable to the same abuse as that now in force. We have inserted a section in the bill to this effect.

NOTE IV. TO § 124, ante, p. 447.

A provision in the charter of a R. R. corporation that proprietors of certain wharves and lands should have the right to construct upon such wharves and lands railroads connecting with the main road, and of entering upon that road with their cars and vehicles," and that the owners and conductors of said cars and vehicles shall be liable to pay the same and no other rates of toll, and be subject to the same rules, regulations, and provisions as the owners and conductors of other cars and vehicles travelling upon said main road," does not, since the passage of the Stat. of 1845, c. 191, regulating and limiting the rights of connecting roads to use a railroad, give the proprietors of those wharves and lands the right to have goods transported in the cars of the corporation owning the railroad at the same rates and no higher than those charged to others for the same and similar kinds of goods.

A railroad corporation is not obliged as a common carrier to transport goods and merchandise for all persons at the same rates.

In an action to recover for transporting merchandise over a railroad, in the absence of a special contract, evidence is admissible that the plaintiffs raised their charges without giving notice thereof to the defendant, and without his knowing that they were different from what he had been accustomed to pay. Fitchburg Railroad Company v. Gage, 12 Gray, 393.

NOTE V. TO § 17, ante, p. 53.

1

A promissory note payable to a person by name, adding treasurer, &c., naming a railway corporation, must be regarded as payable to the person named and not to the corporation. But such a note, given for a conditional subscription of stock, must be regarded as a waiver of the condition, and, if executed some time after the date of the subscription, cannot be construed as part of the contract of subscription.2

A corporation, after having claimed and exercised corporate powers for a considerable time, will be estopped from denying its corporate existence.3 It is said in some cases, that if the corporation contracts by a style which is usual in creating corporations, and which discloses the names of no natural persons, that the corporate existence will be implied and need not be averred.4 But in general such a proposition would not be regarded as maintainable in suits, either in favor or against a corporation; it should be described as such in the declaration, with its central place of doing business.

It has been held, that where defendants, sued as a corporation, rely upon the fact that the corporate existence has ceased before the institution of the suit, it must be pleaded in abatement and not in bar of the action. But in general the want of corporate existence and power may be shown at any time before judgment, upon proper notice and special plea.5 A party who has sued a corporation and recovered judgment against them by a particular name, is afterwards estopped from denying the corporate existence.6 But this seems not altogether in accordance with the requirement that estoppels be mutual, unless the judgment

1 Chadsey v. McCreery, 27 Ill. R. 253.

2 O'Donald v. E. Ind. & Cl. Railw. Co., 14 Ind. R. 259.

3 Callender v. Painesville & H. R. R. Co., 11 Ohio St. 516; The Atlantic & Ohio R. R. v. Sullivant, 5 Ohio St. 276. See also Ashtabula & New L. R. R. Co. v. Smith, 15 Ohio St. 328.

4 Stein v. Ind. &c., Association, 18 Ind. R. 237.

5 Meikel v The German Savings Fund Society, &c., 16 Ind. R. 181.

• Pochelu v. Kemper, 14 Louis. Ann. 308.

were between the same parties. Such an estoppel would therefore only operate as between the plaintiff in the former suit and the corporation.

The cases are very numerous where it has been held that a party who gives a written contract to a corporation by a particular name is estopped to deny the existence and name of such corporation.7

And in all cases of the plea of nul tiel corporation, proof of a corporation in fact will be sufficient.?

'Hubbard v. Chappel, 14 Ind. R. 601.

END OF VOL. I.

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