By the first lease, the plaintiff (the Montreal company) conveyed its railroad to the Lowell for the term of 99 years from June 1, 1884. The second lease, made by the Lowell to the Maine, and dated June 22, 1887, is for the term of 99 years from April 1, 1887. In the first lease the Lowell covenanted that it would operate the plaintiff's road during the term, and would not assign or underlet it, or part with the possession of it, except with the plaintiff's written consent; and that if the Lowell violated any of its covenants, the plaintiff might enter upon and take possession of the road, and thereby determine the Lowell's estate therein.
In the first article of the second lease the Lowell conveyed its own road and all roads leased to it, so far as they were assignable without violation of law or of agreement, and the Maine agreed to pay the rent of all roads leased to the Lowell. By this agreement, read as it must be with the second article and the rest of the instrument, the Maine bound itself to pay the rent of all roads leased to the Lowell, whether they were assignable or not.
The second article is as follows:
"The lessor covenants that if it be found impracticable to at *Page 450 once deliver immediate possession of any railroad leased or operated by it at the inception of this lease, by reason of any agreement to the contrary or other reason, it will use all reasonable efforts to deliver, and will deliver, possession thereof as soon as practicable. The lessor shall meanwhile continue in the possession of such railroad, and, under the direction of the lessee in all respects, shall continue to use and operate the same under its contract with the company owning the same, and to pay the rental or other consideration agreed to he paid for the use of the same, and to receive the earnings there of; but shall immediately transfer and pay over all such earnings to the lessee to its own use, which in consideration thereof shall reimburse the lessor for all expenditures, and indemnify and hold it harmless against all costs, claims, and liabilities arising out of the lessor's possession and operation of said railroad, or under and by virtue of its lease or other contract for operating the same."
This contract was made without the plaintiff's consent, and the performance of it by the Lowell and the Maine was begun October 11, 1887. Thereupon the plaintiff, having duly asserted its right of forfeiture by entering upon and taking possession of its road so far as it could without personal violence, properly brought against the Maine this real action (Walker v. Walker, 63 N.H. 321), in which, by agreement, the Lowell has been joined as a defendant.
No special plea has been filed, and by the ninth rule of court (56 N.H. 581, 582), in the absence of such plea, the case would be tried on the general issue. Under this plea the plaintiff would be entitled to judgment against both defendants on the first count, because the only estate claimed by either of them is one for years and not a freehold. The plaintiff would also be entitled to judgment against the Maine, because by the plea of nul disseisin that corporation would admit itself in possession (Fletcher v. Chamberlin, 61 N.H. 438, 470), and thereby admit a violation of the Lowell's covenant against a change of possession. But defective pleading may be amended. The parties understood that no question was to be raised on the want of special pleas, and that the answer of each defendant to the second bill in equity was to be treated as its plea to this action. Though such a practice is irregular and not approved, the case is considered and decided as if the material facts stated in the answers were properly and formally pleaded.
Each defendant admits the execution of the second lease, and makes a copy a part of its answer. The Maine denies that before "October 11, 1887, it managed and controlled the . . . Lowell . . . corporation, or any part thereof, or any of its leased lines including the plaintiff's railroads; that after October 11, 1887, it operated or continued to operate the roads of the plaintiff, except as hereinafter alleged and stated;" and alleges that the Lowell, *Page 451 "pursuant to the covenants of its lease to the defendant of June 22, 1887 [the second lease], has remained in possession thereof, and operated the same in all respects conformably to said contract." The Lowell alleges that "it did not and never has assigned, or underlet, or parted with the possession of the premises demised to it by the plaintiff, . . . either to the . . . Maine . . . or to any other corporation or person, and has not parted with the control thereof, but still possesses, operates, and controls the same in accordance with the provisions of" the first lease; but does not deny, and by not denying admits, the performance of its covenants in the second lease after October 11, 1887, as averred by the Maine. Both defendants distinctly present the exact issue to be tried. They say that the Lowell, by making and performing its contract with the Maine, has not assigned, underlet, or parted with the possession of the demised premises. And they maintain in argument, as they aver in their answers, that the Lowell, though it uses and operates the plaintiff's road under the direction in all respects of the Maine, for the Maine's exclusive benefit, "still possesses, operates, and controls the same in accordance with the provisions of said lease" from the plaintiff. They present the question whether a performance of the second lease is a violation of the first.
Did the Lowell, by making and performing the stipulations of the second lease, break its covenant not to assign the demised premises or its covenant not to part with the possession? It might part with, and the Maine might take possession of, the plaintiff's road without a legal assignment. West v. Dobb, L. R. 5 Q. B. 460; Quackenboss v. Clarke, 12 Wend. 555. It might make an assignment without parting with the possession. McMurphy v. Minot, 4 N.H. 251; White v. Hurt, L. R. 6 Exch. 32; Corporation of Bristol v. Westcott, 12 Ch. Div. 461; Williams v. Bosanquet, 1 B. B. 238; Church v. Brown, 15 Ves. 265.
The plaintiff's object in requiring the Lowell to covenant against alienating or parting with the possession of its road was legitimate. A faithful performance of the covenant might be of great value, and its non-performance a great injury, to the plaintiff. The parties agreed that the plaintiff should have, as security for its performance, the property leased. Whether the plaintiff is in fact injured by a violation of the covenant is not in this case material.
By the common law leases for years were forfeited if the tenant disaffirmed the lessor's title, claimed a greater estate than he was entitled to, or aliened in fee. 4 Kent 106; 2 Bla. Com. 274, 276; Bac. Abr., Leases T., 2; De Lancey v. Ganong, 9 N.Y. 9. The covenants of a lessee, and provisos for a reentry upon a breach of them, are, like other contracts, to be construed fairly and without favor to either party. A strained and forced interpretation is not to be given them in order to defeat their object. The intention of the parties, *Page 452 as expressed by the language of the whole instrument, is to be found and enforced. Davis v. Elsam, 1 M. M. 189; Goodtitle v. Saville, 16 East 87, 95, 96; Croft v. Lumley, 6 H. L. Ca. 672, 693; Corporation of Bristol v. Westcott, 12 Ch. D. 461; Hayne v. Cummings, 16 C. B. N. S. 421, 427; Doe v. Keeling, 1 M. S. 95; Roe v. Sales, 1 M. S. 297; Doe v. Spry, 1 B. A 1. 617; German v. Chapman, 7 Ch. D. 271; Bishop of St. Albans v. Battersby, 3 Q. B. D. 359, 362; Whitwell v. Harris, 106 Mass. 532, 537.
Technical terms or special words are not necessary to an assignment; any language which shows the intention of the parties to transfer the property from one to the other is sufficient. The form of the instrument is immaterial. If it has the legal effect to pass to another the lessee's interest in the whole or in any part of the demised premises for his entire term or the remainder of his term, it is an assignment. An under-lease for the whole term is an assignment. Hicks v. Downing, 1 Ld. Raym. 99; Beardman v. Wilson, L. R. 4 C. P. 57; Bedford v. Terhune, 30 N.Y. 453. Although by the under-lease a rent exceeding the original rent is reserved, and it is expressly stipulated that the so called under-tenant shall hold as the tenant of his grantor, he is nevertheless in law the tenant of the original lessor. Wollaston v. Hakewill, 3 M. G. 297, 322, 323; Parmenter v. Webber, 8 Taunt. 593; Bac. Abr., Leases, I, 3. A lessee's grant of all his interest in the whole or in a part of the premises is an assignment. Dartmouth College v. Clough, 8 N.H. 22, 29; Trustees v. Streeter,64 N.H. 106; Com. Dig., Condition E. A lessee of one hundred acres, on condition that he shall not assign, can no more convey one acre without breaking the condition than he can ninety-nine or one hundred acres. His grant of ninety-nine and ninety-nine one hundredths acres is no more a breach than his grant of one hundredth of an acre. If A is bound not to alien a manor, his alienation of one acre, parcel of it, is a breach. Vin. Abr., Condition, U, a. 25. "If a lessee, by any instrument whatever, whether reserving conditions or not, parts with his entire interest, he has made a complete assignment; if he has transferred his interest in a part of the premises, he has made an assignment pro tanto." Woodhull v. Rosenthal,61 N.Y. 383, 391; Com. Dig., Debt E; Cro. Jac. 411; Palmer v. Edwards, 1 Doug. 187, note; Wollaston v. Hakewill, supra. It is not material that all the plaintiff's franchises were not conveyed by the Lowell to the Maine, if such is the fact. It is enough if any one of them or any part of the plaintiff's property was conveyed. Nor is it material to the present questions whether the plaintiff's franchises are the principal thing of which its lands and chattels are inseparable incidents, or whether the tangible property is the principal to which the franchises are incident.
Whether the performance of the second lease in legal effect conveys to the Maine the franchises and property of the plaintiff, or *Page 453 any part of them, or the possession of the property, is a question to be determined on a consideration not merely of the granting or other single clause of the lease, but of all the provisions relating to the subject. The plaintiff's road is not formally assigned to the Maine. On the contrary, it is excepted from the operation of the granting clause. But the plaintiff's franchises and property "after being taken out of the category of things conveyed . . . are then separately dealt with in a special clause of the contract." By the literal terms of this clause (the second article) the Lowell covenants that it will give to the Maine and that the Maine shall have the plaintiff's franchise of using, controlling, and operating the Montreal. The covenant that the Lowell shall "use and operate" the road "under the direction of the lessee in all respects" is an express agreement that the Maine shall use and operate it through the instrumentality of the Lowell as a servant, agent, or general manager. In the performance of their contract the Maine is the master, the Lowell the subordinate. In the absence of any question of estoppel, the Lowell is not, and the Maine is, responsible to employes with notice of the situation for their pay, to patrons and others for negligent injuries, and to the state for the performance of all the requirements of law relating to railroads. The Lowell is no more answerable in these particulars than any individual superintendent or general manager. Aldrich v. Palmer, decided in Grafton county, December, 1860, and not reported (for the head note, see 24 Monthly Law Rep. 32); Stone v. Cartwright, 6 T. R. 411, Sto. Ag., ss. 261, 263, 313; Brown v. Rundlett, 15 N.H. 360; Sleeper v. Weymouth, 26 N.H. 34, 38. It has no legal interest in the earnings: every dollar of them is the property of the Maine. If the Lowell can maintain an action to recover moneys due for freight, or funds in the hands of an employe or agent, a release by the Maine would be a good defence. Whatever money the Lowell receives, it is bound to pay over to the Maine "immediately." It has no lien. Stillings v. Gibson, 63 N.H. 1. In literal and explicit words, the Lowell agrees to give, and by performing the agreement does give, to the Maine the plaintiff's franchise of taking and receiving all the tolls — the gross receipts from the business of the road — to be held by the Maine for its exclusive benefit. It is not material that they are received by the Maine through the hands of the Lowell as an intermediary. If the road were discontinued, or ceased to be a source of income, the Lowell would lose nothing. Until 1983 the entire loss would fall on the Maine. The gift is not of such net profits as the Lowell by its management may realize, but of the gross tolls, — all the moneys that may be obtained by the use and operation of the property "under the direction oil the lessee in all respects," during the entire remainder of the Lowell's term. This is an assignment. By it the entire beneficial interest of the Lowell in the plaintiff's property is conveyed to the Maine. By the grant of the profits of *Page 454 land, "the whole land itselfe doth passe; for what is the land but the profits thereof?" Co. Lit. 4, b. A devise of the use and income of land is a devise of the land itself. McClure v. Melendy, 44 N.H. 469; Wood v. Griffin, 46 N.H. 230, 234. The Lowell's subsequent grantee of all its right, title, and interest in the plaintiff's road would take nothing of value, assuming that by the grant he would acquire the possession of the road and the Lowell's right to use and operate it under the direction of the Maine. The naked possession of the road, with the barren right to operate it under the direction, and for the benefit of another, is worthless. Its value is in the right to control the management and take the usufruct of the property, in the possession of whomsoever it may be and by whomsoever it may be operated.
By the covenants of the second lease and the performance of them, the relation of principal and agent is established between the Lowell and the Maine. If the Lowell is the agent of the Maine, there is a forfeiture by assignment of title and of possession; it is not possible in law, or in fact, for the Lowell to hold and operate the plaintiff's road as the plaintiff's tenant according to the terms of the first lease, and also as the Maine's agent according to the terms of the second. The question is, Which one is the other's agent? The defendants say the plaintiff's railroad was excepted from the granting clause of the lease, because they "knew that any assignment or subletting or alienation" of the plaintiff's "franchises would cause serious trouble and mischief for all parties concerned," and this was "the exact thing" they "meant to avoid;" they knew "a contract by one railroad corporation with another for the exclusive use of another's road could not be anything but a lease;" they knew "the indisputable rule of law . . . that whatever may be the rights of the principal and agent inter sese, as against all the world the agent's possession is always, and for all purposes, the principal's possession," but that as the Lowell could not exercise the plaintiff's franchises except through agents, it might without assigning or parting with the possession of the road employ any person or qualified corporation — might employ the Maine — as its agent to do its work; therefore they say, that in the use and operation of the plaintiff's road they must have intended to make the Maine the Lowell's agent; they could not have intended to make the Maine the principal and the Lowell the agent, for that arrangement would effectuate both a transfer of the title and a change of the possession; the legal effect of the contact is to "make the Maine the Lowell's agent to work the road in the Lowell's name and in the Lowell's right," and by the stipulation that the plaintiff's road shall be operated by the Lowell under the direction in all respects of the Maine, they meant, and their language must be construed to mean, that it shall be operated by the Maine under the direction in all respects of the Lowell.
By their contract the Maine controls the use and operation of *Page 455 the plaintiff's road, takes all the profit, and bears all the loss and responsibility of the business, — is, in fact, the master; the Lowell operates the road under the control and direction of the Maine, has no part in the profit or loss, and no interest in the business, — is, in fact, the servant. To style the Lowell master or principal and the Maine servant or agent, if in any conceivable view permissible, subserves no useful purpose here. The legal relations of the parties are not changed by the misnomer. To say that A, who has authority to direct and control B in operating a railroad for A's exclusive benefit is B's servant and agent in the operation of the road, is to use language in a sense unknown to the law or in business.
The Maine and the Lowell intended that the plaintiff's property should be conveyed in fact, but not in law; that it should pass, but be held not to pass. To see if by some peculiarity of judicial interpretation in New Hampshire their purpose can be accomplished, they say, The Montreal road is excepted from the operation of this agreement, but shall be controlled, used, operated, and enjoyed by the Maine in all respects as if it were included herein, except that the Maine's orders shall be transmitted through the Lowell. It is as if they had said, concerning the entire contract, This instrument is not and shall not be construed to be a lease. Burke v. Railroad, 61 N.H. 160, 167, 243.
The Lowell "doth grant, demise, and lease" its assignable roads to the Maine. A further provision, that "the Lowell doth also grant, demise, and lease its non-assignable roads to the Maine," would have been equivalent to a notice of readiness to surrender them to their owners without controversy. Concerning those roads, the instrument was so drawn as to raise the question whether the Lowell would "assign" them, "or part with the possession thereof," by performing an agreement to become the Maine's indemnified servant thereon, holding and operating them under the Maine's orders and paying all the earnings to the Maine. Instead of "doth grant, demise, and lease," or other ordinary terms of conveyance signifying a present assignment of those roads completed by delivery of the writing, the Lowell's possession of them and interest in them were disposed of by an executory contract in the future tense. The Lowell shall enter the service of the Maine as holder and operator of the Lowell's non-assignable roads under the direction of the Maine in all respects, and shall pay all the earnings to the Maine; the Maine shall pay the rents and expenses, and shall indemnify the Lowell and hold it harmless.
The effect of the Lowell's covenants in the first lease cannot be avoided by a circuity of language or other verbal device in the second. To hold that the performance of the agreement, that the Maine shall exercise the plaintiff's franchise to control the use and operation of the road and shall receive and hold the tolls for its exclusive benefit during the entire remainder of the Lowell's term, is not a breach of the covenant against assignment, is to fritter *Page 456 away the covenant and make it worthless. Varley v. Coppard, L. R. 7 a. P. 505, 507. The purpose of the condition against assignment is defeated. The provision might as well have been omitted. It has no substantial effect. What it forbids in form, it permits in substance. Doe v. Carter, 8 T. R. 300; Doe v. Hawke, 2 East 481; Davis v. Elsam, 1 M. M. 189; Jackson v. Corliss, 7 Johns. 531; Jackson v. Silvernail, 15 Johns. 278; Jackson v. Kipp, 3 Wend. 230; Livingston v. Stickles, 7 Hill 253, 257, 258; Gillis v. Bailey, 17 N.H. 18, 21 — S.C., 21 N.H. 149, 157.
The defence that the Maine is the agent of the Lowell is a traverse of those covenants of the second lease that give to the Maine the control and the earnings of the plaintiff's road, and impose on the Lowell the duty of obedience. The possession of property held by a servant in his subordinate capacity is his master's possession. When the second lease took effect, October 11, 1887, it changed the Lowell's possession of the Montreal from that of a master to that of a servant, substituted the Maine for the Lowell as the principal in the possession and operation, and conveyed from the Lowell to the Maine the Lowell's rights of property and control. The Maine's possession, held for it by the Lowell as its servant, is a disseisin for which the plaintiff can maintain trespass or this real action against the Maine. If the Lowell had filed a plea of disclaimer, and the plaintiff had replied maintaining its writ, the Lowell would prevail. On a like issue between the plaintiff and the Maine, the plaintiff would prevail. The disseisin is a complete transaction, and not a promise to deliver possession when the plaintiff consents. Since the agreement that the Maine shall have the Lowell's interest and power has been carried into execution, it has not been a mere executory covenant to make an assignment. Divested of everything but possession as a servant, the Lowell is bound by the terms of the agreement to withdraw from its menial position "as soon as practicable." "Meanwhile," that is, until June 1, 1983, if the plaintiff does not give its written consent to an assignment, the Lowell is bound to remain in the service of the Maine, and, whether the plaintiff consents or not, the Maine is bound to pay the rent as it becomes due to the plaintiff, bear all the expense and loss of the operation of the road, and is entitled to all the profits. The only effect of obtaining the plaintiff's consent would be, that in the operation of the Montreal the orders given by the Maine would no longer be sent by wire, or otherwise, through the office of the Lowell. There is no occasion to consider the large amount of testimony presented on the irrelevant and immaterial questions whether the Maine, on and after October 11, 1887, exercised its stipulated power of direction in all respects by a general order entrusting the conduct and operation of the road to the Lowell as its general manager, or whether from time to time it issued special and specific orders, or, if it did, whether it sent them direct to the men in its employ, *Page 457 or performed the idle ceremony of transmitting them through the Lowell.
In this suit at law the rights of the parties depend upon no general or special question of an equitable as distinguished from a legal character. The case is a simple one of broken contract. The Lowell agreed that if it transferred the plaintiff's road to another company the plaintiff might take it back; and the Lowell has made the transfer which it agreed not to make. There is no peculiar equity or want of equity that affects the legal merits. The court has no power to deprive the plaintiff of the remedy which the contract specifically provides.
The disfavor which a forfeiture meets in legal presumptions and technical rules is irrelevant, because here is no ambiguous language or doubtful construction. Those presumptions and rules do not alter the contract by which the Maine is to be put in the place of the Lowell as principal in the operation of the plaintiff's road until 1983 without the plaintiff's consent. Since the defendants have expressed their intention to make this change in written words that admit but one meaning, it is useless to inquire how probable or improbable it is that they intended to do what they have done. Were such inquiry made, it would be found not merely probable, but certain, that they intended to use the language of their covenants in the only sense of which it is capable. The words carefully chosen to express their purpose are so simple, full, and precise, that a mistake is impossible. It has not been suggested that there was a mistake. Had there been one, it could have been rectified on a bill in equity for the reformation of the contract. If such a bill had been filed, the decision of this case would, on motion and cause shown, have been postponed to await the result. On the question that would be raised in such a proceeding, there is in the three volumes of depositions abundant and unconflicting testimony which puts the point beyond a doubt. It shows that their intentions were what would necessarily be inferred from the second lease without extraneous evidence. The Lowell desired to let its own road to the Maine for 99 years if it was released from its obligation to pay rent, and from all its duties, liabilities, and risks as lessee and operator of the Montreal and other roads. If it went out of business on its own road, it did not propose to continue in business on the Montreal. The Maine desired to hire the Lowell and the Montreal, and to take the Lowell if it could not have both. When the bargain was put in writing, their purpose was expressed with professional accuracy and skill in provisions that would enable the Maine to keep the Montreal if the court should hold that the Lowell's covenants against alienation could be evaded by circumlocution.
As soon as the second lease took effect, October 11, 1887, the plaintiff refused to receive rent. By agreement of the parties, payments were afterwards made and received "on account," and *Page 458 "without prejudice to the rights of either party." By receiving rent before that time, the plaintiff did not waive the forfeiture incurred by the transfer of the possession of its road from the Lowell to the Maine, nor the forfeiture caused by the Lowell's alienation of its leasehold title. A landlord does not waive the breach of a condition by receiving rent before the breach occurs,, nor by receiving it after a breach of which he is ignorant. Until October 11, 1887, there was no change in the possession of the plaintiff's road. Before that day the Lowell held the possession in its own right as proprietor; on and after that day as the servant and agent of the Maine. On this point the pleadings and proofs concur. The denials and allegations above recited of the Maine are an averment that the Lowell entered upon the performance of its covenants with the Maine, October 11, 1887, and not before. In the second volume of the evidence, page 17, is a paper signed by the president of the Lowell and by the president of the Maine, in which those officers say that on that day the Lowell delivered and the Maine received possession of all the Lowell's assignable roads. The Maine did not take possession or control of the Lowell's non-assignable roads before it took possession of the assignable ones. When the second lease went into effect, October 11, 1887, and not before, the Maine began to exercise over the plaintiff's road its power of direction in all respects, — took the position of master; the Lowell began to use and operate the road under that direction, — took the place of servant; and the legal possession of the road passed from the Lowell to the Maine. If the defendants had proved the waiver of a forfeiture incurred by the Lowell's alienation of the title, it would not aid them, — it would not be a waiver of the forfeiture created by the change of possession.
If the Lowell's leasehold estate in the Montreal was not assigned before October 11, 1887, by the unperformed covenants of the second lease, it was assigned by the performance of those covenants on that day and afterwards; and the forfeiture by alienation was not waived by the plaintiff's receipt of rent, because it had not then occurred. If, by the mere execution and delivery of the lease without a performance of its covenants, the Lowell's estate in the road passed to the Maine, the forfeiture was not waived by the plaintiff's receipt of rent, because there is no evidence in the case tending to show that prior to October 11, 1887, the plaintiff had any notice or knowledge of the existence, delivery, or contents of the lease. If the defendants' omission to call witnesses on this point when the depositions were taken had been due to inadvertence, it must be assumed that they would have moved to open the case for the admission of the evidence (if it existed and they deemed it material) when their attention was called to the subject by the printed and oral arguments of the plaintiff. They were aware of the liberality with which parties *Page 459 are relieved from the consequences of accident, mistake, or misfortune touching the merits of the cause, either in pleading or in proof, when they apply for relief. They have had abundant time and opportunity for such a motion, which they knew would be granted if it ought to be. One sufficient reason for their not making the motion would be its futility. Even if by the unperformed covenants of the second lease the Lowell's title was assigned before October 11, 1887, the plaintiff's receipt of rent prior to that day, with full knowledge of the existence, delivery, and contents of the lease, could not be a waiver of the forfeiture caused on that day by the change of possession.
In one of the defendants' briefs they contend that the Lowell could not, contrary to its covenant, assign the plaintiff's road to the Maine; that an assignment would be ultra vires and void; and that therefore "there has been no alienation by the . . . Lowell of the plaintiff's franchises and property." That is to say, the Lowell's covenant not to assign is incapable of being broken; and for an assignment made by the Lowell to the Maine and put by them into permanent effect from October 11, 1887, the plaintiff has no remedy, because by force of some technicality (which the defendants do not specify), although there is a breach of the covenant in fact, there is none in law. The position finds no countenance in either of the cases cited in its support. In Ottawa R. R. Co. v. Black, 79 Ill. 262, there is nothing suggestive of the idea that a corporation's covenant against alienation is not as capable of being broken as any other agreement, or that the Lowell could not convey the plaintiff's road to the Maine for 96 years, subject only to the plaintiff's right to enter and enforce the forfeiture. In Doe v. Powell, 5 B. C. 308, the lessee's voluntary assignment would have been voidable at the election of the lessor, if there had been no bankrupt law. But the assignment was an act of bankruptcy on the part of the lessee; and it was held that his leasehold estate passed to his assignee in bankruptcy, and that this involuntary assignment, being an act of the law, was not bleach of the covenant. Holroyd, J., said the voluntary assignment. "not only became void and a nullity ab initio, but was actually avoided by the bankruptcy and the proceedings under the same before any advantage was attempted to be taken of the supposed forfeiture. Under these circumstances, for want of the deed's operating in law as an assignment, it was not in consideration of law an assignment by the bankrupt, but in that respect the same as if no such deed had ever been executed by him." This decision, whether right or wrong, is irrelevant except in so far as it assumes that the voluntary assignment would have been a breach of the covenant and a forfeiture if it had not been annulled by the proceedings in bankruptcy. In this case there is no question of the operation of a bankrupt law. The stipulations of the second lease, by the performance of which the plaintiff's *Page 460 road would be transferred from the Lowell to the Maine for the term ending June 1, 1983, went into effect when the Maine took possession of the Lowell, October 11, 1887. Between the Lowell and the Maine the transfer was effective, and would have remained in force 96 years if the plaintiff had not, by seasonable entry, exercised its right to object.
"Further, on the same grounds," say the defendants in the same brief, "there has been no dispossession of the Lowell by the Maine, neither corporation being competent to authorize or to acquiesce in it. If upon the evidence there has been any interference with the Lowell's full enjoyment of the franchises pertaining to the plaintiff's road, it cannot be regarded as other than the personal trespass of the individuals immediately concerned. . . . No case of that sort . . . can be heard or tried in the present suits, to which the Maine and Lowell are the only parties defendant." In other words, a corporation, like the king, can do no wrong; for injuries committed by its agents acting within the scope of their authority, the agents personally, and not their corporate master, are responsible. The grounds upon which the defendants put this exception to the law that regards the possession and acts of an agent as the possession and acts of his principal are not disclosed, and to sustain it no authority is cited. Until a change is made by the law-making power, corporations acting by agents, like individuals acting in the same manner, will continue to be capable of committing torts and violating contracts.
Judgment for the plaintiff.
DOE, C. J., and SMITH, J., concurred in the opinions of CLARK and CARPENTER, JJ.