plaintiff'UUle thereto. It I.s familiar learning that a tens.nt Is estopped to deny his landlord's titl.e, either the...term or the continuan.ce ofthep08sessioJ: taken under the lease. 1 Washb. Real Prop. 856; Zeller v. Eckert, 4 How. 289; BUM1/«' v. Sargent, 7 Pac. Rep. 120. .. . In his testimony,; dllfendant,ays.that he imposed upon this. ,matter by the agent of the plalDtIlf, from :Wllom he took the lease. But the CIrcumstances do not support the assertion. The' agent simply told thll defendant that the plaintiff had the title to the land,. and :fuat, if he cut hay on it, without his perdefendant, to use his own langull.ge, mission, he would be prosecuted; . asked for and obtained the lease,tl;) save trouble. Afterwards, when the mistake was made in listing the section as swamp land, the defendant undertook to take advantage of it. and buy in what he doubtless thought was a paramount title to that of his landlord, and thereby hold 'the possession in his own right. There must be a finding for the plainti1f In this case as in the other.
MANNING 11. NORFOLK SOUTHERN
R. Co. t
(Oircuit Oourt, E. D. Virrrlnia. J anuary,l887.)
RAniROAD COMPANIEs-BoND AND MORTGAGE-RIGHT OF BONDHOLDER TO
Bn. The common-law right to sue upon a bond is not affected by the remedies provided in the mortgage given simultaneously. and for the better securing of the bond, unless the provisions of the mortgage exclude this right in expresl terms, or by necessary implication. ..
SAME-IMPLICATIONS FROM PROVISIONS OF MORTGAGE.
The right to sue upon a written admitted to be valid Is of too high a character to be taken away by Implication, especially if drawn from an instrument other than that which is given in direct and positiveacknowledgment of the debt. '
BAME-AsSUllP8IT BY DISSENTING. BONDHOLDERS.
Dissenting bondholders mll.Y sue in assumpsit for the amount of their unpaid 'coupons, notwithstanding the fact that the majority in interest have consented to waive the rights secured by the mortgage. .
Common-law action on coupons which had been cut from bonds made and issued by the defendant, and which were secured by a mortgage to Ford & Jordan, as trustees, dated September 1,1880. The bonds were in the usual form of railroad bonds, and by each of them the railroad company promised to pay $1,000 to the bearer on September 1, 1920, with interest at the rate of 6 per cent" on the first days of March and September ill each year, upon presentation and surrender of the coupons annexed to said bonds ,as they should severally become due. The bonds further recited that the payment of the principal and interest was secured by the said mortgage upon the terms and conditions set forth therein, and also contained a provision to the effect that, if interest should remain in defaulHorsix months, whole principal sum might, at the option of the bondholder, become forthwith due and payable. The mortgage contained the'.same provision, making it obligatory upon the trustees to exercise snoh option, and declare the whole amount due, upon the request of a majority in interest of the bondholders, or, upon like request,
· Reported by Theodore M. Etting, Esq., of the Philadelphia bar.
MANNING 1.1. NORFOLK SOUTHERN R. CO.
to waive their right to exercise such option. The mortgage then prescribed the proceedings to be taken by the trustees incase of default: R.rst, to enter into possession of the mortgaged property, and to apply the net earnings to the payment of the interest coupons; or, second, to sell the. property at public auction, after notice, and to apply the net proceeds to their payment; or, third, to enforce the rights of the bondholders under the mortgage by sale or entry or judicial proceedings, as it should be deemed most expedient for the bondholders' interests; but the duty of the trustees; and their power to make election, were declared to be subject to the right and power of a majority in interest of the bondholders to instrllct the trustees to waive such default, or to enforce their rights. Before maturity olthe coupons, a majority of the bondholders waived the payment of interest for five years, agreeing to fund the coupons, and aCcept in place thereof scrip certificates; and requested the trustees to declare that the exaction ofpayment of interest should be and that the time for the payment of such interest should be extended, and that no proceedings for the.6bforcement of the conditions of the mortgage should be taken. The txustees assented thereto, and· so notified the company, and the coupons belonging to the bonds held by such ll1ajonty were surrendered to the company, and exchanged for the certificates. The bondholders who did not assent to the funding scheme own, about t40,OOOof bonds. The question argued before the court was whether the dissenting bondholder's right to sue in covenant upon his bond, or in aB8ump8'it upon the coupons, was lost,because a majority of the bondholders had consented to waive the enforcement of their rights under the
SluJ,rp c:rc Hughes and Albert Gallup, for plaintiff. Starke c:rc Martin and G. W. Wingate, for defendant.
HUGHES, J. 'I'he common-law right of suing to judgment upon a written obligation admitted to be valid is of too high a character to be taken away by implications, especially if these are drawn from instruments other than that which is in direct aud positive acknowledgment of the debt. 1;'h6 suit at law is brought upon written obligations in the form of coupons cut from bonds payable to the holder: In defensethedefendant contends that the right of action upon them has been taken away by the provisions of a mortgage which it executed simultaneouslywith the execution of the bonds. The mortgage was given for the purpose of securing the payment of the bonds. It contains various provisiollslooking to the protection of the property of the company which it covers from undue sacrifice. It contains no provision whichpositively, and none, I think, which impliedly, takes away from a holder of coupOns, who has taken no part in instructing the trustee as provided b)' the terms of the mortgage, his right of action upon them at common law. I fully concur in the views of this mortgage deeq. set out by Judge HALL, in the opinion filed in the case, on the true force andefl'eot of this instru· ment, and I need not repeat them here. It controls the property which
it conveys, but does not, in .anyof its provisions, affect the conlU1oh-law right of action belonging to any holder of the coupons of the Norfolk Southern Company who has not participated in the action of the majority of the creditors of the company. , Judgment may be taken for the amount claimed, upon the coupons in
NET,SON 11. ALLEN PAPER CAR-WHEEL Co.
(Circuit OOU1't, No D. llZzTwia.
MASTER AND SERVANT-INjuRY TO SERVANT.
Plaintiff was employed in hauliI:lg', heavy paohges of paper from defendant's warehouse to his it, appeared that, at the warehouse door, through which the truck-loads of paper passed, there' was a stone sill about im inch and a half higher than, the' fioor,aiid,in'order to make an easy rise Over the sUI, a plank beveled: o;tf at one end was laid so as to surmountt1le sill;' but the plank had become so worn as to leave a jolt of half inch abrupt rise, overwhlCh the wheels of the truck had tel 'pass. l'laintiff, beingengliged in drawing the truck over it,struck the sill. He fell,and: several bundles of the paper, weighing 50 poundS,ea,ch, fell on and inj1ll'edhi'm. in an action against his eJJ!.ployer, if the crossing from the floo,17 to the sill had been used'in the same condition thant was in at the time plaintlff was hurt, without accident, and nothing had occurred to indicate danger to, men continuing to use it wit.h due care, then the uld say there was.no in leaving such a slight obstruction to. the' truck-wheels unremedied. To charge the defendant, the danger should appear to be such as to suggest itself to a man of ordinary prudence. '
At Law. Dent & Black, for plaintiff. Flower, Remy & Gregory, for defendant. This was an action to recover damages for personal injuries sustained by the plaintiff while in the enlploy of the defendant, by reason of the alleged negligence of the defendant. It appeared from the proof that the defendant was engaged in the manufacture of car-wheels, in which paper was used as one of the materials of such wheels. The paper was stored in a warehouse .about 60 feet fronl the shop where the paper was worked up, and between the warehouse and the shop was a plank platform, across which the paper was carried upon a four-wheel truck, with a frame or a platform about five and a. half feet long and three feet wide, extending over the wheels. This paper came in blocks or bundles, weighing about 50 pounds each, and about 25 bundles of paper were piled upon the trock as a load. At the shop-door, through which these truck-loads of paper passed, there was a stone sill, which was about an inch an a half higher than the plank platform, and, in order to make an easy rise from the. platform over the sill, a beveled plank was laid down, one edge which was chamfered off so as to make an inclined plane to surmount the sill,and this plank had become so worn or abraded where it came against the sill as to leave a jog or jolt of not