Kelley v. William Sharp Saddlery Co., 99 Ga. 393 (27 S. E. Rep. 741). Mo. Rev. Stat. 1889, § 8922, which disqualifies a wife from testifying as tc" any admission or conversation of her husband whether made to herself or to third parties," does not prohibit a widow from testifying in support of a delivery of deeds to her husband, that she saw the grantor hand to him. Shanklin v. McCracken, 140 Mo. 348 (41 S. W. Rep. 898). For construction of statutesas to the competency of witnesses concerning transactions with a deceased person, see Hagan v. Powers, 103 Ia. 593 (72 N. W. Rep. 771), construing Ia. Code 1873, § 3639; Schmitz v. Beals, 115 Mich. 112 (73 N. W. Rep. 109); Laird v. Laird, 115 Mich. 352 (73 N. W. Rep. 382), construing and apply. ing 3 How. Ann. Mich. Stat., § 7545; Madson v. Madson, 69 Minn. 37 (71 N. W. Rep. 824); Towle v. Sherer, 70 Minn. 312 (73 N. W. Rep. 180), construing and applying Minn. Gen. Stat. 1894, § 5660; Presnell v. Garrison, 121 N. C. 366 (28 S. E. Rep. 409; 29 S. E. Rep. 839; Blake v. Blake, 120 N. C. 177 (26 S. E. Rep. 816), construing and applying N. C. Code, § 590; Paddock v. Adams, 56 O. St. 242 (46 N. E. Rep. 1068), construing and applying Ohio Rev. Stat., § 5242; Spencer v. Terrell, 17 Wash. 514 (50 Pac. Rep. 468), construing and applying Wash. Code Proc., § 1646.

Sec 326.

Miscellaneous notes-Statutes construed. A lease invalid as to third parties because not recorded, is admissible in evidence to show the terms of the tenancy where there has been sufficient occupancy of the premises under it to create a tenancy by implication. Emrich v. Union StockYard Co., 86 Md. 482 (38 Atl. Rep. 943). Recitals in a deed as to the consideration given for it, are not admissible in evidence to show the value of the property as between persons not parties to it. Lake Roland El. Ry. Co. v. Frick, 86 Md. 259 (37 Atl. Rep. 650). The record of an inquest adjudging one insane, is not admissible to show his want of capacity in a previous transaction. Rhodes v. Fuller,139 Mo. 179 (40 S. W. Rep. 760.) S. C. Rev. Stat. 1893, art. 2371, does not abrogate the common law rules as to the establishment of a lost deed and record thereof. A plat attached to a deed becomes a part of the deed and may be proved in the same man

ner as the deed. State v. Crocker, 49 S. C. 242 (27 S. E. Rep.49). Mo.Rev. Stat. 1889, § 2428, applied,admissibility of record of a deed upon proof of loss of the original. Hume v. Hopkins, 140 Mo. 65 (41 S. W. Rep. 784). Neb. Code Civ. Proc., § 414, construed and applied-admissibility of copy of judicial records of a sister state-attestation. Westerman v. Shepherd, 52 Neb. 124 (71 N. W. Rep 950).

EXECUTION SALES.

MCCOLGAN v. BALTIMORE BELT R. CO.

(85 Md. 519.)

Execution sale of portion of railroad right of way. Lands belonging to a railroad company which form an essential part of the right of way of an operating railroad can not be sold on execution to pay a judgment against the company.

FOWLER J.

Sec. 327. Statement of the case.

The appellant,

Charles C. McColgan, recovered a judgment against the Baltimore Belt Railroad Company in the superior court of Baltimore city for $3,543.75, which was affirmed by this court. (35 Atl. Rep. 59.) It is admitted that the judgment is valid and subsisting and that no part of it has been paid or otherwise discharged. The appellant procured an execution to issue from this court to the sheriff of Baltimore city to sell for the payment of said judgment the lands and tenements of the appellee company, consisting of twenty four lots of ground, with the improvements thereon, in the city of Baltimore, which, it is admitted, form part of the right of way of the appellee and upon which it has laid its tracks, and which, therefore, constitute an essential part of its railroad, and are necessary to its operation. The appellee's property is mortgaged for a loan of six million of dollars, and a sale of the lots levied on would prevent it from earning money to pay this and other debts. The circuit court of Baltimore city, upon a bill filed by the railroad company, passed a decree enjoining the

judgment creditor from selling the lots in question in satisfaction of his judgment-and hence this appeal.

Sec. 328. Execution sale of the property of a railroad which is essential to its operation. The contention of the appellant is that he may, without showing any special or general legislative authority other than the right which any judgment creditor has to sell the property of a debtor, levy upon and sell the corporate property of a railroad company, which is essential to the performance of its corporate duties. And although his proposition is in direct conflict with the views of this court as announced in State v. Consolidation Company, 46 Md. 1 and Brady v. Johnson, 75 Md. 449 (26 Atl. Rep. 49; 20 L. R.A.737) and against the weight of authority, we are asked to adopt it and reverse the decree appealed from, which is based upon and in entire accord with the cases just cited. In Brady v. Johnson, 75 Md. 449 (26 Atl. Rep. 49; 20 L. R. A. 737), we held that it is clear upon well-settled principles that an excution will not lie against property such as the property here levied upon is admitted to be. And in the valuable notes to this case, as reported in 20 Lawy. Rep. Ann. 737, a number of authorities sustaining our view are collected. The learned authors of Elliott on Railroads, the most recent and one of the most valuable works on the subject, cite Brady's case, and a long list of authorities, including the supreme court of the United States and the highest courts of Indiana, Tennessee, Massachusetts, Ohio, Pennsylvania, California, Illinois and Nebraska in support of the proposition that "The franchise of a railroad company, and corporate property essential to the enjoyment of the franchise, are not subject to sale on execution, unless the legislature authorizes or assents to the transfer." 2 Elliott R. R., § 520. But, in addition to this, all of the corporate property being mortgaged, the injunction was properly issued upon the authority of the case of Gue v. Tidewater Canal Co., 24 How. 257, cited in Brady's case, in which Taney, C. J., said, delivering the opinion of the court: "It would be against the principles of equity to allow a single creditor to destroy a fund to which other creditors had a right to look for payment, and equally against the principles of equity to permit him to destroy the value of the prop

erty of the stockholders by dissevering from the franchise property which was essential to its useful existence." The rule we have adopted in Brady's case, and which, as we have seen, is almost universally recognized, does not rest upon any corporate immunity, nor was it adopted to afford any peculiar protection to corporations generally. This doctrine is applicable only to quasi public corporations, and since the state has charged them with a duty towards the public, it is against its policy to allow such corportions to be so crippled that the duty can not be preformed. In the case of Plymouth Railroad Co. v. Colwell and Jacoby, 39 Pa. St. 337 (80 Am. Dec. 526), Judge Woodward thus states the doctrine: "As to land which has been appropriated to corporate objects, and is necessary for the full enjoyment and exercise of any franchise of the company, whether acquirred by purchase or by exercise of the delegated power of eminent domain, the company hold it entirely exempt from levy and sale; and this on no ground of prerogative or corporate immunity, for the company can no more alien or transfer such land by their own act, than can a creditor by legal process; but the exemption rests on the public interests involved in the corporation. Though the corporation, in respect to its capital is private, yet it was created to accomplish objects in which the public have a direct interest, and its authority to hold lands was conferred that these objects might be worked out; they shall not be balked, therefore, by either the act of the company itself, or its creditors." The appellant fails to cite any authorities to sustain his position, and the only argument or suggestion he makes to support it is drawn from the alleged right under the general law of this state of every jugment creditor in every case to have his judgment satisfied by execution, and from the provisions of the 19th article of the Bill of Rights which guarantees to every man a remedy for any injury done to his person or property. But it is too late seriously to consider a proposition, the adoption of which involes a departure from the well-settled rules of law, a reversal of our own well-considered decisions, and the placing of ourselves in conflict with a long line of authorities, including the Supreme Court of the United States and the highest tribunals of many of the States. of the Union. Decree affirmed.

Sec. 329. Execution sale of property of a corporation necessary to its performance of a public duty. In the case of Overton Bridge Co. v. Taylor, 33 Neb. 857 (51 N. W. Rep. 240; 29 Am. St. Rep. 514), in which it was held that a bridge erected by a bridge company and designed for the use of the public could not be sold on execution to pay a debt of the company, the supreme court of Nebraska say: "The property of strictly private corporations, -such, for instance, as manufacturing, mining and trading companies,— or perhaps those in which the public is indirectly interested,-as libraries, hospitals and the like,-is liable to be taken on execution, precisely as the property of an individual debtor; but the property of corporations which are classed as public agencies,—such as railroad and bridge companies, which is essential to the exercise of their corporate franchise, and the discharge of the duties they have assumed towards the general public, cannot, without statutory authority, be sold to satisfy a commonlaw judgment, either on execution or in pursuance of an order or decree of court. Gooch v. McGee, 83 N. C. 59 (35 Am. Rep. 558); Baxter v. Turnpike Co., 10 Lea 488; Water Co. v. Hamilton, 81 Ky. 517; Palestine v. Barnes, 50 Tex. 538; Gue v. Canal Co., 24 How. 257; Seymour v. Turnpike Co., 10 Ohio 476; Foster v. Fowler, 60 Pa. St. 27. It is said by Morawetz in his work on Private Corporations (§ 1125), If a corporation has received aid from the government for a public purpose, any property of the company, necessary to enable it to accomplish this purpose, is impressed with a trust in favor of the public, and cannot be seized and sold by the creditors of the company under execution. Property acquired by the company by purchase, if not necessary to enable it to perform its duties to the public, may be taken under an attachment or execution; but after exhausting this class of property, the only remedy of a judgment creditor is to obtain the appointment of a receiver, and a sequestration of the company's earnings.' The privi leges conferred by law upon corporations to construct railroads, canals, bridges, etc., are conferred with a view to the use and accommodation of the public; and to permit the property necessary for the accommodation of the public to be taken and sold by creditors would be to defeat the prime object of the statute which endows such companies with corporate existence." Applying the principles enunciated in the case reported in full, it is held by the Michigan supreme court that the freight house and a portion of the right of way and tracks of a railroad, although at its terminus, cannot be sold for nonpayment of municipal assessments for local improvements, for which the company is liable. Lake Shore & M. S. Ry. Co. v. City of Grand Rapids, 102 Mich. 374 (60 N. W. Rep. 767; 29 L. R. A. 195). Citing, Applegate v. Ernst, 3 Bush 648 (96 Am. Dec. 272); Georgia v. Atlantic & G. R. Co., 3 Woods 434 (Fed. Cas. No. 5,351); Porter v. Railroad Co., 76 Ill. 561. And in West Virginia it is held that, it not appearing that all other remedies had been exhausted, one who had sold land to a railroad company as a part of its right of way could not have a forced sale of such portion of the right of way in order to satisfy a vendor's lien for unpaid purchase money, after the railroad had become