provision somewhat in advance of what had been decided in Fletcher v. Peck and the preceding cases, and held that it applied not only to contracts between individuals and to grants of property made by the State to individuals or to corporations, but that the rights and franchises conferred upon private, as distinguished from public corporations, by the legislative acts under which their existence was authorized, and the right to exercise the functions conferred upon them by the statute, were, when accepted by the corporators, contracts which the State could not impair.

It became obvious at once that many acts of incorporation which had been passed as laws of a public character, partaking in no general sense of a bargain between the States and the corporations which they created, but which yet conferred private rights, were no longer subject to amendment, alteration, or repeal, except by the consent of the corporate body, and that the general control which the Legislatures creating such bodies had previously supposed they had the right to exercise, no longer existed. It was no doubt with a view to suggest a method by which the State Legislatures could retain in a large measure this important power, without violating the provision of the Federal Constitution, that Mr. Justice Story in his concurring opinion in the Dartmouth College case, suggested that when the Legislature was enacting a charter for a corporation a provision in the statute reserving to the Legislature the right to amend or repeal it must be held to be a part of the contract itself, and the subsequent exercise of the right would be in accordance with the contract and could not therefore impair its obligation. And he cites with approval the observations we have already quoted from the case of Wales v. Stetson. 2 Mass. 146.

It would seem that the States were not slow to avail themselves of this suggestion, for while we have not time to examine their legislation for the result, we have in one of the cases cited to us as to the effect of a repeal, a case from 1 Paige's Chancery Reports, 102, in which the Legislature of New Jersey when chartering a bank with a capital of $400,000 in 1824, declared by its 17th section that it should be lawful for the Legislature at any time to alter, amend and repeal the same. And Kent (2 Commentaries, 307), speaking of what is proper in such a clause, cites as an example a charter by the New York Legislature of the date of February 25, 1822. How long the Legislature of Massachusetts continued to rely on a special reservation of this power in each charter as it was granted it is unnecessary to inquire, for in 1831 it enacted as a law of general application that all charters of corporations thereafter granted should be subject to amendment, alteration, and repeal at the pleasure of the Legislature, and such has been the law ever since.

This history of the reservation clause in acts of incorporation supports our proposition that whatever right, franchise, or power in the corporation depends for its existence upon the granting clauses of the charter, is lost by its repeal.

right to cumber these streets with a railroad track which it could not use, for these belonged by law to no person of right and were vested in defendants only by virtue of the repealed charter.

It was therefore in the power of the Massachusetts Legislature to grant to another corporation as it did the authority to operate a street railroad through the same streets and over the same ground previously occupied by the Marginal Company. Whether this action was oppressive or unjust in view of the public good, or whether the Legislature was governed by sufficient reason in thus repealing the charter of one company and in chartering another at the same time to perform as part of its functions the duties required of the first, is not as we have seen a judicial question in this case. It may well be supposed if answer were required to the complainant's bill, that it was made to appear that the Marginal Company had shown its incapacity to fulfill the objects for which it was created, and that another corporation embracing larger area, connecting with more freight depots and wharves, and with more capital, could better serve the public in the matter for which both franchises were given.

That in creating the later corporation whose object was to fulfill a public use, it could authorize it to take such property of other corporations as might be necessary to that use as well as that of individuals, can hardly admit of question. Section four of the act gives this power to the Union Company with reference to the tracks of all street railroads in the city, and provides that in the event of an inability to agree with the owners of these tracks as to compensation, that shall be determined in accordance with the provisions of general laws previously enacted on that subject. To this there can be no valid legal objection. The property of corporations, even including their franchises when that is necessary, may be taken for public use under the power of eminent domain on making due compensation. West River Bridge Co. v. Dix, 6 How. 507; Central Bridge Corporation v. Lowell, 4 Gray, 482; Boston Water-Power Co. v. B. & W. R. R. Co., 23 Pick. 360; Richmond Railroad Co. v. The Louisa R. R. Co., 13 How. 83.

But it is the sixth section of the act which is most bitterly assailed as an invasion of appellant's rights. It declares that the Union Freight Company within four months from the passage of the act shall take the tracks, or any part thereof of the Marginal Freight Company, subject to the laws relating to taking land by railroad companies and the compensation therefor. If, as the language seems to imply, the new company is bound to take so much of the track of the old one as it shall need or elect to use and pay for it within four months, it is a requirement favorable to this company in preference to others, and with especial reference to the fact that its power to use the track for railroad purposes has ceased. If it is merely a permission to take the track on payment of compensation, it is still a favor to the Marginal Company to require this to be done within four months.

A suggestion is made that the Marginal Company

the track of the Commercial Freight Company, and that this property stands on different grounds from the remainder of its track.

It results from this view of the subject that whatever right remained in the Marginal Company to its rolling-stock, its horses, its harness, its stables, the debts due to it, and the funds on hand, if any, it no longer had the right to run its cars through the streets or any of the streets of Boston. It no longer had the

We are unable to discover any difference in principle. If the new company takes this track, or takes the Marginal Company's right to use it, we suppose the latter will be entitled to compensation for its interest in it, as for other property taken for a public use.

In fact in regard to the whole question discussed as to the mode of making compensation and its sufficiency to indemnify the Marginal Company for what is taken, it seems to us to be premature; for whenever the attempt to adjust the compensation is made, the ques

tion of its sufficiency and its compliance with the law on that subject may arise and it can then be decided.

Nor are we satisfied of the soundness of the argument of counsel that the clause in the Marginal Company's charter which declares it to be subject to the restrictions and liabilities contained in the general laws relating to street railways, withdraws it from the operation of the 41st section of chapter 68 of the general laws of the State. The latter clause declares all acts of incorporation subject to its provisions. This subjection is not impaired by the fact that a particular corporation is made by its charter subject to other laws also of a general character.

We are of opinion that the question of the repeal of the charter of the Marginal Company is to be decided by the construction of the general statute whose effect and history we have discussed.

These considerations require the affirmance of the decree of the Circuit Court sustaining the demurrer to appellant's bill, and it is so ordered.

EXPERT TESTIMONY IN ACTION FOR SERVICES AS ATTORNEY.

SUPREME COURT OF THE UNITED STATES. APRIL 3, 1882.

HEAD V. HARGRAVE.

In an action for legal services the opinions of attorneys as to their value are not to preclude the jury from exercising their "own knowledge and ideas" on the subject. It is their province to weigh the opinions by reference to the nature of the services rendered, the time occupied in their performance, and other attending circumstances, and by applying to them their own experience and knowledge of the character of such services. The judgment of witnesses is not, as a matter of law, to be accepted by the jury in place of their own.

N error to the Supreme Court of the Territory of

IN error to

This was an action brought in a District Court of Arizona to recover the sum of $2,000, alleged to be owing by the defendants to the plaintiffs for professional services as attorneys and counsellors-at-law in that territory in 1877 and 1878. The complaint alleges that the services were performed in several suits and proceedings, upon a retainer by the defendants; and that they were reasonably worth that sum. The answer is a general denial.

On the trial, one of the plaintiffs testified to the rendition of the services by them in several suits, stating generally the nature of each suit, the service performed, and its value. Five attorneys-at-law also testified to the value of the services; three of whom were called by the plaintiffs and two by the defendants. They differed widely in their opinions, the highest estimate placing the value of the services at $5,440, the lowest at $1,000.

The court instructed the jury, that in determining the value of the plaintiffs' services, they might consider their nature, the length of time they necessarily occupied, and the benefit derived from them by the defendants; that the plaintiffs were entitled to reasonable compensation for the services rendered; and that the reasonableness of the compensation was a fact to be determined from the evidence as any other controverted fact in the case; and then proceeded as follows: The services rendered were skilled and professional, and for the purpose of proving to you the value of that class of services rendered, professional gentlemen, attorneys-at-law, claiming to be familiar with the value of such services, have testified before you. If you accredit these witnesses with truthfulness, their testimony should have weight with you; and the fact as to

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what is a reasonable compensation should be determined from the evidence offered, and not from your own knowledge or ideas of the value of that class of services. In other words, you must determine the value of the services rendered from the evidence which has been offered before you, and not from your own knowledge or ideas of the value of such services."

The defendants thereupon asked the court to instruct the jury as follows:

"In determining the value of the plaintiffs' services the jury are not bound by the testimony of the expert witnesses; that testimony may be considered by the jury; but if in their judgment the value fixed by those witnesses is not reasonable, they may disregard it, and find the amount which in their judgment would be reasonable.

"In determining the value of the plaintiffs' services the jury are not bound by the opinions of the witnesses, unless the jury shall find from all the evidence taken together, including the nature of the services, the time occupied in the performance of them, and the result of them, and the benefit derived by the defendants from the rendition of said services, that said opinions are correct."

The court refused to give these instructions, and an exception was taken. The jury thereupon gave a verdict for the plaintiffs for $1,800; upon which judgment was entered. A statement of the proceedings at the trial was then prepared, which among other things set forth the alleged errors of law excepted to by the defendants. This statement was used on a motion for a new trial, which was denied; and by stipulation it was embodied in the papers for the appeal to the Supreme Court of the territory from the judgment, as well as from the order denying the new trial. The order and judgment were both affirmed; and to review the judgment, the case is brought to this court.

FIELD, J. The defendants in error object to the use of the statement, which sets forth the exceptions taken, as not constituting a part of the record before us. The ground of the objection is, that the statement was prepared for and used on the motion for a new trial, with the disposition of which this court cannot interfere. The objection would be tenable but for the stipulation of the parties that the statement might be used on appeal from the judgment. A statement of the case, according to the law regulating civil proceedings in the territory, takes the place of a bill of exceptions, when the alleged errors of law are set forth with sufficient matter to show the relevancy of the points taken. It is not the less available on appeal from the judgment when by stipulation it is embodied in the record for that purpose, though used on the motion for a new trial. We have had occasion to refer to this subject in Kerr v. Clampitt, which arose in Utah, where a similar system of procedure in civil cases obtains; and it is unnecessary to repeat what is there said. 95 U. S. 188. The only question presented for our consideration is whether the opinions of the attorneys, as to the value of the professional services rendered, were to control the judgment of the jury so as to preclude them from exercising their "own knowledge or ideas" upon the value of such services. That the court intended to instruct the jury to that effect is, we think, clear. After informing them that in determining the value of the services, they might consider their nature, the time they occupied, and the benefit derived from them; also that the plaintiffs were entitled to reasonable compensation for the services, and that the reasonableness of the compensation was a fact to be determined from the evidence, it proceeded to call special attention to the testimony of the attorneys, and told the jury that if they accredited these witnesses with truthfuluess their testimony should have weight, and the fact as to what is reasonable compensation should be "determined from the evidence offered," and not from their

rule that the deceased was bound to exercise care according to the circumstance, that inasmuch as he knew the dangerous condition of the gutter "he was bound to exercise such care and caution as its alleged dangerous character should have suggested to him. (See 4th assignment). The court below denied this proposition and held the deceased was bound only to use ordinary care. This idea runs all through the rulings of the court. As a general principle ordinary care is undoubtedly the rule in the use of a public highway. Erie v. Schwingle, 10 Harris, 384; Lower Macungie Township v. Merkhoffer, 21 P. F. S. 276; Borough of Pittston v. Hart, 8 Norris, 389. In this case much of the danger was the result of the insecure position of the deceased upon his wagon. His seat was but a loose box and he had nothing to hold on to. He was liable to be thrown off by any sudden jar whether caused by the gutter, a loose stone, or any inequality of the road. This is patent and ought not to be ignored in the case. What was the proper measure of care under such circumstances? The same care that a man with a fixed load and a firm seat would be expected to take? Certainly not. Negligence is the absence of care according to the circumstances. If a man is driving an untamed horse he naturally and properly exercises more care than if he were driving one entirely gentle. So of the road. If it is rough and out of repair he exercises more care than if well graded and macadamised. The deceased knew of the defect in the gutter; he knew, also, that he had an unsafe seat; he was bound to use such care as a prudent man would have used uuder such circumstances, and the court should have so instructed the jury.

It

It was error to exclude the evidence referred to in the 8th and 9th assignments. It was certainly competent to show that the deceased had driven across the gutter several times shortly before his death. would be evidence of his knowledge of its condition. The defendant was entitled to an unqualified affirmance of its second point. This is not denied, but it was argued that the answer of the learned judge was a substantial affirmance. It is much better when a point can be affirmed to say so. When affirmed with a qualification or in language different from the point itself it is very apt to mislead the jury. It certainly weakens the force of the point with them. There is nothing else in the case that requires discussion.

Judgment reversed.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATE STOCK-WHAT CONSTITUTES SALE OFCORPORATE BOOKS AS EVIDENCE OF OWNERSHIP OF STOCK — ESTOPPEL.-In an action by the receiver of an insolvent corporation to recover of defendant the unpaid balance due upon ten shares of the capital stock of the corporation of which defendant was at one time owner, it appeared that defendant purchased the stock in 1869. In 1874 ho requested one O., the clerk of the corporation, to find a purchaser, and under the direction of B., the president of the corporation, O. purchased such stock for B. & Co. of which firm B. was a member, and B. paid defendant therefor by a check on the corporation, which was charged to B. & Co. on its books. Defendant delivered the certificate of stock to (). with a transfer of the stock signed by him in blank, no name being inserted as transferee. B. was from that time until the receiver was appointed president of the corporation, and his partner was one of the trustees. For four years after the sale the dividends on the stock were paid to B. & Co. as appeared in the books of the corporation. The transaction relating to the sale of the stock was with B.

alone. Held, that as between defendant the corporation and B. & Co. the sale of stock was valid and complete, and that the receiver stood in no better position than the corporation to deny the validity of the salo even though defendant remained registered as a stockholder. The rule is well settled that one who takes a certificate with the usual power of attorney as between him and the transferee, takes the whole title both legal and equitable, and it makes no difference that the blanks are not filled up. The purchaser here having taken the stock with a blank power of attorney signed by the defendant within the authorities, took a complete and perfect title to the stock and was the absolute owner thereof. Holbrook v. New Jersey Zinc Co., 57 N. Y. 616, 624. See also Driscoll v. W. B. & C. M. Co., 59 id. 96. For the purpose of determining the stockholder's liability in case of the insolvency of a corporation, the stock books of the corporation are not conclusive. While these books are in many cases evidence of the ownership, this rule is not without exception. The cases Adderly v. Storms, 6 Hill, 624; Mann v. Currie, 2 Barb. 294; Rosevelt v. Brown, 11 N. Y. 148; Webster v. Upton, 91 U. S. 65; Pullman v. Upton, 96 id. 329, distinguished. Order reversed. Cutting v. Damerel. Opinion by Miller, J. [Decided March 21, 1882.]

NEGLIGENCE- MASTER AND SERVANT-INJURY RESULTING FROM ONE OF TWO CAUSES―QUESTION FOR JURY-WHEN THAT NEGLIGENCE OF SERVANT OF

MASTER. (1) Plaintiff's intestate, an engineer employed by defendant, was killed while on one, of defendant's trains by the derailment of the engine and train. At the place where the accident took place the track of defendant's railroad was defective. But it was proved that at the time of the accident the flange of the forward left hand wheel of the engine was broken. The train was at the time running east at considerable speed round a curve curving to the right. Broken pieces of the flange were picked up on the track at a point west of the place where the train was derailed. It was contended by defendant that the flange of the wheel broke before the train left the track and that the breaking caused it to do so. The plaintiff contended that the fracture of flange took place after the derailment and had nothing to do with it. It was proved that the fracture of the flange was due to an undiscoverable flaw in the wheel. The court charged the jury that if they believed intestate came to his death by reason of a defect in the wheel plaintiff could not recover, but left it to them to say whether the derailment was caused by the defect in the track or the breaking of the wheel. Held, no error. (2) Defendant requested the court to charge "that if the jury believe the track had been inspected within a reasonable time prior to the accident by a competent inspector of the defendant, and had been by him adjudged to be in a safe condition, the plaintiff cannot recover," which was refused. Held, no error. The inspection of the track was a duty of the master. If negligently performed even by a competent inspector the master would still be liable. To excuse him from liability the track must have been carefully inspected by a competent inspector. Judgment affirmed. Durkin v. Sharp. Opinion by Tracy, J. [Decided Feb. 28, 1882.]