to cases where the employee sees that the defect has not been remedied, and yet exposes himself to it. In such case, on the principles heretofore announced, the employer's liability, in this form of action, ceases. He may be liable for breach of promise; but the casual connection between his negligence and the injury, is broken by the intermediate voluntary assumption of the risk by the employee." Whar. Neg., §§ 323, 324; Beach. Contr. Neg., §§ 64, 140; Wood Master & Servant, § 538; Cooley on Torts, 674; Daniels v. Clegg, 28 Mich. 33; Tanner v. Louisville, etc. R. Co., 60 Ala. 621; Cook v. Central R. Co. & B. Co., 67 Ala. 538; Haley v. Earle, 30 N. Y 20S.

Contributory negligence, like negligence itself, is a question for the jury, when the testimony is indeterminate, and anything is left to be inferred by the jury. It is a question of law, however, when the facts are clearly made known, and the course which common prudence dictates can be readily discerned. H. & C. R. R. Co. v. Copeland, 61 Ala. 376; Cook v. Central, etc. R. Co., 67 Ala. 552; Alabama, etc. R. Co. v. Hawk, 72 Ala. 112; Fernandez v. Sacramento Ry. Co., 52 Cal. 45; Flynn v. Kansas City, etc. R. Co., 47 Amer. Rep. 99; s. c., 98 Mo. 193; Hough v. R. Co., 100 U. S. 213; Union Pacific R. Co. v. Fray, 13 Amer. & Eng. R. Co., 158; s. C., Kan.; McGrath v. New York, etc. R. Co., 18 Amer. & Eng. R. Cas. 5; G. H., etc. Ry. v.'Dran, 46 Amer. Rep. 261; s. C., 59 Tex. 10.

- We need not deny, and do not decide the question that, under the facts of this case, negligence on the part of Harrison, the superintendent, would be negligence of the Woodward Iron Company, and dealt with as such. Ford v. Fitchburg R. Co., 110 Mass. 240; Corcoran v. Holbrook, 59 N. Y. 517; Crutchfield v. R. & D. R. E. Co., 98 N. C. 300. According to plaintiff's testimony-and we are discussing this case as shown in his testimony alone-it is probable that there was negligence in permitting the defective joint in the steam-pipe to remain out of repair for two days after being notified of it. The real question presented is whether there was proximate contributory negligence on the part of plaintiff. Carried to its extremest tension, the testimony fixes negligence on the corporation only in its failure to repair the leaky joint in the steam-pipe. It not being shown that the persons above the surface, and about the engine, had any notice that the sump was out of order, or that Jones was away from the switch, or in any place of danger, no fault or negligence can be predicated of the single act of letting thə empty car down the slope. Was there negligence on the part of Jones, the plaintiff? We think there was. He knew the car was above, and was liable to descend at any moment. He knew the switch was so set, that the car would descend to him on the very track he was standing on. He knew steam was escaping from the steam-pipe, and must he not have known the shaft was being choked with it? Having with him his miner's

lamp, by the light of which he was working, is it possible he would fail to observe the accumulation of steam or smoke, and consequent obscuration of his vision? If the noise was so great that he could not hear the approaching car, should he not have adopted some measure to avoid or avert the impending danger?

We are not, and could not, be supposed to be cognizant of the details and wants of the service plaintiff was engaged in. Conceding that to relieve the nozzle of the hose of the mud accumulated in it, it was necessary that he should stand on the track of the railroad, this does not relieve him of the imputation of negligence in being there at the time he was injured. It would seem impossible for him to have been ignorant that the shaft was so filled with steam as to prevent his seeing the approaching car, situated as he was, and working by the light of his miner's lamp. He certainly could have abstained from standing on the railroad track, until danger was passed, by the empty car passing down, or he could have placed his negro assistant above him, to give him notice of the approaching car. And, notwithstanding his orders were not to stop a descending car, unless there was a loaded one ready to be carried back, he certainly would have felt authorized to disregard such order and stop the car, if the work at the sump was so pressing that it could not be delayed until the car passed below. Viewed in any light, the plaintiff was guilty of negligence, which contributed proximately to the injury.

Applying the foregoing principles, charge number five of those asked by defendant ought to have been given. Charge numbered two should also have been given, if it were not that one clause in hypothesis has no evidence to support it. That clause is, "If you believe from the evidence in this case that the plaintiff turned the switch," etc. There is no evidence tending to show who turned the switch. This, even though immaterial, would justify its refusal. Martin v. Brown, 75 Ala. 443; M. & E. Ry. Co. v. Kolb. 73 Ala. 396.

Reversed and remanded.

NOTE.-A master is not bound to adopt the safest method of working. The employer is also not bound to employ the latest improvements in machinery to secure the servant's safety.2 In an action for injuries resulting from defects in machinery, it must be shown that the master had knowledge, or by the exercise of reasonable care and diligence should have known, of the defect, before a recovery can be had.3 Where a master has expressly promised to repair a defect in the machinery used by the servant, he may recover for an injury caused thereby, within such a period of time after the promise as would be reasonable to al

1 Naylor v. C. N. W. Ry. Co., 11 N. W. Rep. 24.

2 Gildersleeve v. R. R. Co., 1 Reporter, 184; Smith v. R. R. Co., 8 Reporter, 367.

3 Ballou v. Ch. & N. W. Ry. Co., 11 N. W. Rep. 559; Attchison T. & S. F. Ry. Co. v. Ledbetter, 8 Pac. Rep. 411.

low for its performance. It was held by the Supreme Court in the case of Kansas Pac. Ry. Co. v. Peavey,5 that if an employe knows that another employe is incompetent or habitually negligent, or that the material with which he works is incompetent, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, that he will be deemed to have assumed the risk of such incompetency, negligence, or defects, and cannot recover for an injury resulting therefrom.6

Where a pile of lumber that was originally properly constructed became dangerous afterwards by reason of the cutting of cross-strips, and by reason of such defect fell upon and injured a workman, he must prove that the employer, through some responsible officer or agent, had actual notice of the defect, or that it had existed so long that he should have discovered it in the exercise of reasonable care. The general rule in actions for damages arising from negligence, is that the defendant's negligence makes him liable unless the plaintiff has done something to con tribute to the accident. If he has, then he cannot recover.8 It is the duty of one approaching upon a railway crossing to stop and look and listen for approaching trains, and a failure to do so is negligence.9 The same degree of care is required for an employe engaged in his duty upon the track as for a person crossing the track.10 And crossing or standing on a track without looking and listening for approaching trains, although the railroad company was negligent in operating the trains, has been held contributory negligence. Although there are defects in the machinery tools, appliances, or structures furnished by an employer, or the dangers of the occupation are unusual, still if the employe knew of the defects in the machinery or of the dangers to be encountered and continued in the employment, he will be regarded as assuming the dangers arising from such defects or dangers, and cannot recover for injuries arising therefrom.12 An employer is not liable for an injury sustained by an employee, where his own negligence or want or ordinary care contributes materially to the injury.18 Where the injury arose from an uncovered ditch, the fact that the servant had been employed for several months in a place where the defect was plainly visible, raises a presumption that he assumed the risk.14 Where a servant, knowing the hazard of the employment as the business is conducted, is injured while engaged therein, he cannot recover merely on the ground that there was a safer way of conducting the business, the adoption of which would have prevented the injury.15 Evidence held to justify submis

4 Parody v. Ch. M. & St. P. Ry. Co., 15 Fed. Rep. 205; Hough v. Texas & P. Ry. Co. 100 U. S. 213. 58 Pac. Rep. 780.

6 Davis v. Detroit & Milwaukee R. R. Co., 20 Mich. 105; S. C. 4 Am. Rep. 364; Mad River and Lake Erie R. R. Co. v. Barber, 5 Ohio St. 541; Wright v. N. Y. C. R. R., 25 N. Y. 566; Frazier v. Pa. R. R. Co., 38 Pa. St. 104.

7 Baldwin v. St. Louis K. & N. Ry. Co., 25 N. W. Rep. 918.

8 Haley v. Earle 30 N. Y. 208.

9 Penn. R. R. Co. v. Weber, 18 Am. Rep. 407; Gonzales v. N. Y. & Harlem R. R. Co., 38 N. Y. 440.

10 Roll v. N. C. Ry. Co., 15 Hun. 496.

11 C. B. & Q. Ry. Co. v. Van Petten, 64 Ill. 510; Allyn v Ry. Co., 105 Mass. 77; Morse v. Ry. Co., 65 Barb. 490; Ry. Co. v. Bell, 70 II. 102.

12 Deering on Negligence § 201; Naylor v. Chicago etc. Ry. Co., 53 Wis. 661.

13 Deering on Negligence § 210.

14 De Forest v. Jewett, 19 Hun. 509; Aldrich v. Midland etc Co., 20 S. C. 559.

15 Stafford v. Chicago, B. & G. R. Co., 2 N. E. Rep.

185.

sion of question of negligence of defendant, and contributory negligence of plaintiff is a question for the jury.16 Whether the servant knew of the danger is a question for the jury.17

It is for the servant to show, not merely that the place was unsafe, and that he was injured thereby, but that he himself was in the exercise of due care.18 In order to enable the plaintiff to recover he must prove that he has not been careless, negligent or rash.19 And the burden is upon the plaintiff to establish negligence, or personal fault on the master's part and his own care.20

The employer is not liable to a servant for any injury resulting from the negligence, of a fellow-servant in the same line or department of employment.21 But the current of decisions and the weight of authority is to the effect that where the employer uses due diligence in selecting competent and trustworthy servants, and furnishes them with suitable tools and means with which to perform the services for which they were employed, he is not answerable in damages to one of them for injuries resulting from or caused by the negligence of a fellow-servant in the same service.22 ALBERT N. KRUPP.

Milwaukee, Wis.

16 Phillips v. Ch. M. St. P. Ry. Co., 25 N. W. Rep. 544; Vollmer v. Berens, 50 Wis. 496; Randall v. N. T. Co., 54 Wis. 147; Predeaux v. The City of Mineral Point, 43 Wis. 524.

17 Thompson v. C. M. étc., Ry. Co., 14 Fed Rep. 504. 18 Taylor v. Carew Manufacfuring Co., 22 Cent. Law J. 135.

19 Wharton on Neg. 217.

20 Donaldson v. M. M. R. R. Co., 18 Iowa, 281; McMellen v. R. R. Co., 20 Barb. (N. Y.) 449; Wood's Law on "Master and Servant," p. 754.

21 Buckley v. Goule & Curry Silver Min. Co., 14 Fed Rep. 833; Johnson v. Armour. 18 Fed. Rep. 490; Hart v. Peters, 13 N. W. Rep. 219.

22 Farwell v. Boston etc., R. Corp. 4 Metc. 49; Smith v. Lowell Manuf'g. Co., 124 Mass. 114; Moseley v. Chamberlain, 18 Wis. 700; Chamberlain v. Milwaukee etc., R. Co., 11 Wis. 238; Cooper v. Milwaukee etc., Ry. Co., 23 Wis. Rep. 668.

1. Corporation- Validity of Organization — Who may Attack. The validity of the organization of an acting corporation cannot be questioned in any collateral proceedings, but only in direct proceedings, for that purpose, countenanced by the sovereignty.

2. Municipal Corporation-Estoppel.- The law of estoppel applies to a municipal corporation precisely as it does to a natural person, in all things pertaining to the proprietary rights of such corporation.

3. Constructive Fraud.- A municipal corporation which assents to the sale of its proprietary interests, accepts, converts, and retains the consideration, and silently permits the vendee to better and improve what he has bought, is thereby precluded from afterwards questioning the validity of the sale.

*S. C. 1 S. W. Rep. 319.

Appeal from White Circuit Court, Chancery.

Bill in equity, by a municipal corporation, to rescind a sale made by it of its proprietary interest in a railroad corporation of which it was the controlling stockholder.

Clark & Williams and W. R. Coody, for appellants; F. W. Compton (with whom are Cypert & Rives,) for appellee.

BUNN, S. J., delivered the opinion of the court.

In 1871, when the Cairo & Fulton (now St. Louis Iron Mountain & Southern) Railway was being located through this State, various efforts were made by the citizens of the town of Searcy, in White county, to induee the railroad people to diverge from the contemplated route, so as to touch their town; and, all these efforts proving fruitless, on the twenty-first July, 1871, some of them, nine in number, signed articles of association, and caused the same to be filed in the office of the secretary of State, they having subscribed the necessary amount of stock, named their directors, their commissioners to open subscription books, and done other things required by law entitling them to file the same. They thus became a railroad corporation, under existing laws, and immediately caused books of subscription to be opened, and a survey of their contemplated tap or branch road to be made; locating the same so as to have its western terminus at the town of Searcy, and its eastern terminus or junction with the Cairo & Fulton Railway at a point they named "Kensett," a short and immaterial distance from the point named in the charter or articles of association. The full amount of stock was subscribed, and the principal portion, amounting to $20,000, was taken and subscribed by the town of Searcy in its corporate capacity, after the will of her citizens qualified to vote was taken by means of an election, in itself regular; and to pay the same, the bonds of the town were issued, sold, and subsequently redeemed by money raised by taxation. Except a small amount expended for surveys, no other money was ever paid for stock subscriptions except that paid by the town. Thus, under its corporate. name of "The Searcy Branch Railroad Company," this corporation proceeded to build, according to the provisions of its charter and bylaws, a wooden tramway from Searcy to the Cairo & Fulton road, at Kensett, and did complete and put the same in operation, employing the requisite number of coaches, drawn by horse-power, at an expenditure of about $18,000.

Notwithstanding the fact that none of the stockholders except the town had paid anything for their stock, the affairs of the company continued to be managed by the directors named in the charter, except two, who early became lessees of the road; their places being filled by the advice and consent of the town, the only bona fide stockholder. The revenues derived from the annual lease of the road, amounting to about $1,500, less an amount expended on repairs, continued to be paid over to the town by the company. In the

early part of the year 1877, owing to rapid and increasing decay of the timbers used for the superstructure, and the usual wear and tear of other portions of the road and property, it began to appear to the directors and the citizens of Searcy that very soon the expenses of repairing would absorb, and ultimately more than absorb,the rents and profits of the road. The greater portion of that year was spent in efforts to dispose of the road in a manner that would save the town and the company from loss, and yet serve its original purpose, and finally it was proposed to sell it on certain terms named; and, failing to effect a sale after repeated efforts, the appellee, then one of the board of directors of the road, proposed to purchase the road on the terms previously named, with some immaterial modifications, if his brother, another one of the appellees, would unite with him in the purchase. After consulting with his brother, and finding him willing to make the purchase, W. A. Yarnell resigned his place as one of the directors, and purchased the road from the other directors for the sum of $500 in cash, and for the further consideration that they (the Yarnells) should extend the road to West Point, at the head of navigation on Little Red river,—a point about four or five miles east of Kensett,making the whole line about twice as long as originally established between Searcy and Kensett; and to equip the whole line with iron rails, and proper coaches drawn by steam-power; and to keep the same in operation perpetually; a maximum rate of charges from freight and passengers being fixed in the contract of sale. A deed was made by the president, by direction of the company, to the Yarnells.

The Yarnells, having extended the road, and done other things in accordance with their contract, associated with themselves the other appellees, presumably to make the requisite number of persons, and then filed articles of association in the office of the secretary of State, and thereby became a railroad corporation under the name of the "Searcy & West Point Railroad Company," and at the institution of this suit were thus owning and operating the aoad, having expended almost $30,000 in the extension and equipment of the same under the conditions of their contract on purchase. The corporate authorities of the town of Searcy instituted this action in September, 1882, to annual the sale of the road to the Yarnells, raising sundry issues of law affecting the validity of the sale and transfer of the road, and setting up the foregoing facts in support of its complaint; denying that the town ever assented to the sale; and alleging that W. A. Yarnell, by reason of his position and influence, gained an undue advantage over the town; and that the town was powerless to assert her rights until she did so.

There is little controversy as to the facts in this The controversy is mainly upon the effect of admitted facts, and the question of law appli

case.

cable thereto. The appellent denies that the town of Searcy, as the sole stockholder, assented to and authorized the sale; but we think it is fuirly established that she did, and we apprehend that the denial is more upon the admissibility, than upon the directness and strength, of the evidence adduced. It goes without controversy that up to the time when the town of Searcy became a stockholder in the railroad company every act had been done by the incorporators, stockholders, and managers required by law to acquire corporate rights and powers; and it will scarcely be contended that the railroad company up to that time could not have lawfully entered upon private property, against the will of the owner, for the purpose of making the necessary surveys and location of its road; and that it could have procured, by judicial sentence, a condemnation of private property for its right of way. It had become in other words, a railroad corporation under the laws of this State, clothed with all the powers conferred by law upon such. This being so, all conditions precedent having been performed by the incorporators, it is simply out of all precedent for the appellant, in a collateral proceeding like this,.or in any other proceeding, to attempt to show that the corporation was a nullity by showing that certain conditions subsequent had not been complied with.

The existence of a corporation once formed can only be called in question by a direct proceeding, and that, too, at the suit of the sovereign power,the State. Nor are the breaches of conditions subsequent alleged by the appellant-such as a failure of stockholders to pay up their subscriptions, the failure to hold elections to elect directors, and breaches of similar character-sufficient grounds for the destruction of a corporate existence, even at the suit of the State, where the by-laws, and, of course, where the law, provides that the directors named in the charter shall serve until their successors are elected and qualified as provided by the laws of this State. Mansf. Dig. § 5420; Com. v. Cullen, 13 Pa. St. 133; Cahill v. Kalamazoo Mut. Ins. Co., 2 Doug. (Mich.) 124. Moreover, the town of Searcy having dealt with Searcy Branch Railroad Company as an ostensible corporation, whereby rights became vested, cannot be heard to plead its want of corporate character. Oregonian Ry. Co. v. Oregon Ry. & Nav. Co., 20 Amer. & Eng. R. Cas. 523; S. C. 23 Fed. Rep. 232.

Presumably, to make the point that the railroad corporation had ceased to exist by abandonment, and consequently that the town of Searcy — the sole stockholder with paid up stock-was also the sole and exclusive owner of the railroad, the appellant's counsel contend in argument that her subscription to the capital stock of the railroad company, the issuance of her bonds, and the levy and collection of taxes to redeem the same, were acts expressly authorized by an act of the general assembly approved July 23, 1868; admitting at the same time that the laws providing for the car

rying of such power into effect were wanting, unless the analogous laws applying to counties be called into requisition, which they say was done in this case. It is difficult to see the point in this argument. Whether the town of Searcy was expressly authorized to take stock or not is a question, it seems to us, that has little to do with the town's sole ownership of the road. At all events, the act approved July 23, 1868, was repealed by a subsequent act, once published in the digest of Arkansas,and more recently copied in Gantt's Digest, beginning at § 3194, and including § 3202. The indisputable fact is that there never was a time in Arkansas, since the adoption of the general incorporation laws, when railroad corporate rights could be possessed and exercised by one sole owner. There must be at least five owners or there is no franchise to own. Nor does it mend the matter to say that a corporation stockholder in another corporation is, of itself, composed of many individuals, for, as a stockholder, it is but one person.

The next question in order is whether the sale to W. A. Yarnell and brother was void per se, because of his being one of the directors of the company until the negotiations between himself and other directors were already pending, and during which he resigned, (the sole purpose of his resignation being to place himself in a position to make the purchase,) or was it only voidable. There is and there should be a distinction between the case of a sale to a sole trustee and the case of a sale to one of several trustees. Even in the case of one trustee selling the property of his cestui que trust to himself, the rule seems to be that such a sale is voidable; that is, void or not, according to the circumstances of the case. Thus, in 3 Wait. Act. & Def. 468, cited by the appellant's counsel in ther brief, it is said: "But although a trustee cannot purchase of himself, he may, under special circumstances, buy from the cestui que trust, if the latter is sui juris." If it be true that the town of Searcy, as the owner of a majority of the stock in the railroad company, advised, assented to, or afterwards, by her acts, ratified, the sale of the road to W. A. Yarnell, one of the directors of the company, and if the town of Searcy was at the time sui juris, could it be said that the sale was void under the rule quotǝd above? Again, in Pickett v. School-district No. 1, 25 Wis. 551, also quoted by appellant's counsel, it was held that the contracts of directors made with one of their number are voidable in equity; meaning, of course, that they are not absolutely void. There may be isolated cases where sales of trust property by a trustee to himself have been treated as void obsolutely, but the weight of authority is decidedly in support of the rule by which such sales generally are treated as voidable only, especially in equity.

It is contended by appellant that she had no power to dispose of her corporation property, and for that reason the sale of her interest, whatever it was, to the Yarnells, was null and void. A

municipal corporation may be the owner of two classes of property: One class includes all property essential to, or even convenient for, the proper exercise of municipal functions and corporate powers; the other class includes all property held for general convenience, pleasure, or profit. It is needless to inquire into the extent of the rights and powers which a municipal corporation has in, and over property of the firstnamed of these classes. It may well be admitted that such an inquiry would involve grave doubts. But the Searcy Branch Railroad, and all its property and franchises, belonged to the second class, and our inquiry is solely as to that.

In Bailey v. Mayor, etc., 3 Hill, 531, it was held that "a municipal corporation, when in the exercise of franchises and the prosecution of works for its emolument or advantage, and in which the State in its sovereign capacity has no interest, is answerable as a private corporation, although such works may also be in the nature of "great enterprises for the public good;" and "powers granted exclusively for public purposes belong to the corporation in its public, political, or municipal character." "Powers granted for private advantages, though the public may also derive benefit therefrom, are to be regarded as exercised by the municipality as a private corporation;" and "municipal corporations, in their private character as owners or occupiers of property, are regarded as individuals." We quote from the syllabus of the case, which seems to be a correct epitome of the opinion. The same distinction is made, and the same rule announced, in Lloyd v. Mayor, etc., 5 N. Y. 369.

Again, if the power to dispose of her property was nowhere expressly granted to the town of Searcy, it is equally true that it was nowhere expressly granted to the town of Searcy, it is equally true that it was nowhere expressly withheld, and such disposal nowhere prohibited. The question, therefore, is merely a question of a bare want of power. The contract of sale being otherwise fair and lawful, both parties having performed their respective parts, the plea of ultra vires cannot and ought not, in equity and good conscience, to avail anything. See Hitchcock v. Galveston, 96 U. S. 341, and National Bank v. Matthews, 98 U. S. 621.

Again, it is contended that the company, even by a vote, or assent of stockholders otherwise expressed, could not sell the road with the franchise. It is true that not even a majority of the stockholders in number or amount, or both, can sell the property of the company against the wishes of the minority, and thus defeat the object for which the corporation was formed; and it may be true that the franchise may not be sold at all, and yet the directors, by unanimous vote of the stockholders, can sell all the other property of the corporation, under the theory that one may at all times sell his own; and thus the incorporators may denude themselves of all power and ability

to exercise the right of the franchise, and they cannot avoid the consequences of their acts by setting up the inalienable character of the franchise right. The State alone has such an interest in that as will enable her to sue for its recovery back to herself, not to the appellant.

Again, the mere vehicle of conveyance of title to the road from the company to the Yarnells is objected to as not being in conformity to the laws of the State, insuring perpetual succession in incorporators. This objection is not good, because, the stockholders having unanimously parted with all they could part with, there is no one left to claim the succession, and consequently no one left who is in a situation to be heard on such a plea. Besides, the objection is a weak one in the minds of appellant's counsel. Why not treat the deed in this case as an equitable assignment of the stock, as suggested by appellant's counsel? It is that, if nothing more. Moreover, if there were no other objection to the sale than the mere shape of the instrument by which the title was sought to be transmitted from the company to the Yarnells, this court, on proper application, in furtherance of justice and right, would compel the transfer to be made in proper form, under the rule that what should have been done the court will compel to be done.

We have thus disposed of the merely legal objections to the sale. Some of these would be unavailable as objections in any case, and all of them are unavailable when relied on by one occupying the relative position of the appellant in this case.

The facts of the case may be disposed of more briefly. Granting, for the sake of argument, that his fiduciary relation did not cease by reason of his resignation as one of the directors of the company, and yet the evidence in the case fails to sustain the charge that William A. Yarnell, while in his trust relation, and by reason of the same, so managed, or assisted in managing, the affairs of the company as to compel a sale of the road, and to himself and to his advantage. All the testimony adduced tends to show that the wooden tramway, in obedience to natural laws, at the end of four or five years from its construction, was so rapidly going into total decay that early in the year 1877 the company, the town council, the citizens of Searcy, and all persons interested, plainly saw that some disposition of the road must be made other than renting or leasing it, as had been the practice. Under the then existing laws the town of Searcy, as a corporation, was powerless to render pecuniary aid, or grant relief in any way. All seemed to regard a sale of the road as the only way out of the difficulty-the only remedy against the impending ruin. A sale was sought, by various methods, to be made, to all who might desire to purchase, and finally, when no one else would undertake it, the Yarnells made the purchase upon substantially the same terms as had been repeatedly offered to all others.

The original object of the town was to secure