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11. EVIDENCE, CONTRACT TO PROCURE.—A contract is void as against publio

policy if by it one of the parties agrees to secure such testimony as will
enable the other to win an existing or contemplated suit. It is not nec.
sary that the contract should contemplate the production of perjured
testimony. It is void because its tendency is to proinote unlawful

acts. Quirk v. Muller, 647.
12. CONTEST OF WILL-CONTRACT NOT TO CONTEST, How AFFECTED BY POB.

LIO Policy-ExFORCEMENT OF CONTRACTS.-An heir's covenant not to
contest the will of his ancestor is not void as against public policy, or tho
policy of the law that an invalid will shall not be established as a valid
will; but is in harmony with the paramount public policy that parties
of full age and competent understanding shall have liberty to contract,
and that their contracts, when entered into freely and voluntarily, shall
be held sacred, and shall be enforced by courts of justice. In re Estate

of Garcelon, 134.
18. A CONTRACT NOT TO CONTEST A Will is One That Concerns PRIVATE

PARTIES ALONE. - It is not against public policy, and is as much entitled
to be enforced as a valid compromise of the contest of a will, which,

when fairly made, is always enforced. In re Estate of Garcelon, 134.
Boo ADMIRALTY; ConstitUTIONAL LAW; LIMITATIONS OF ACTIONS, 63

MUNICIPAL CORPORATIONS, 2-4; STATES, 2-5; STATUTES, 2, 3.

CONVEYANCES.
See DEEDS; MORTGAGES.

CORPORATIONS.
1. STOCKHOLDERS-LIABILITY ON STOCK SUBSCRIPTIONS.—The fact that part

of the stock of a corporation has been illegally subscribed by another
corporation, all of the remaining subscribers for stock having taken
with knowledge of that fact, and having paid part of their subscrip-
tion to enable the corporation to commence business, cannot be success.
fully asserted by thein to escape liability on their stock subscriptions in
an action against them by the creditors of the corporation. Cole v.

Salsop R. R. Co., 858.
2 STOCKHOLDERS-LIABILITY FOR STOCK SUBSCRIPTIONS MADE BY THEM

THROUGH TRUSTEES. --Under a complaint alleging that stock in a cor-
poration has been subscribed for by a party as “trustee,” who, in mak.
ing such subscriptions, has acted as agent for certain subscribers at
their request, and for the benefit of each of them in proportion to his
individual subscription, the creditors of the corporation may maintain
an action against the real parties in interest to recover the amount of
their subscriptions, and, without alleging fraud, may show by parol
evidence that the subscription is in fact other than what upon its face

it appears to be. Cole v. Sutsop R. R. Co., 858.
2. By-Lawg-Proxies. - If the statute allows stockholders of a corporation

to be represeuted at all elections by proxies of their own selection, a
by-law of a banking corporation, providing that no proxy shall be
voted by any one not a stockholder of the corporation, is void, as being
an infringement upon the statute. People's Home Sav. Bank v. Supe
rior Court, 147.
LIMITATION UPON BY-LAWS.—A by-law cannot take away, or even abridge,

the substantial rights of a stockholder of a corporation. Peoplo's Home
Sav. Bank v. Superior Courl, 147.

6. STATUTES—BY-LAWS AUTHORIZING A MODE OF VOTING BY PROXI.-A

statuto authorizing a corporation to provide in its by-laws for “the
mode of voting by proxy" refers to the preliminary requirements to be
followed in order that the proxy may be entitled to vote, and does not
authorize the curtailing of the right to vote by proxy, but only to reg.
alate the exercise of the right by requiring the authority to be in
writing, properly witnessed, acknowledged, and filed with the records,

ota. People's Home Sav. Bank v. Superior Court, 147.
& What Have NO VALIDITY.-A corporation whose primary object is

without statutory authority can have no lawful existence, although
some of its declared purposes may be lawful. Hence, if its primary
object is to obtain money from its members, it is unauthorized, alo
though its declared purposes are "to encourage frugality and economy
in its members; to create, husband, and distribute funds from monthly
installments, dues, or investments from its members; to purchase, tako,
hold, sell, convey, lease, rent, and mortgage real estate and personal
property; to loan surplus accommodations; and to carry on and conduct
a general investment business." Slate v. International Investment Co,

920.
7. PURPOSES NOT EXTENDED BY GENERAL WORDS OF STATUTE. — Under

statute authorizing the formation of corporations for certain desig.
Dated purposes the general words “or for any lawful business or purpose
whatever, exçept," etc., extend only to things of a nature kindred to

those specifically mentioned. State v. International Investment Co., 920.
& ULTRA VIRES.-A CONTRACT, WHEREBY A GUARANTY LIFE ASSOCIATION

UNDERTAKES to pay losses which may accrue against another and sim.
ilar association, is an attempt to divert the funds to objects not author.
ized by its charter, and is therefore ultra vires and void. Twiss F.
Guaranty Life Assn., 418.
IT AN ULTRA VIRES CONTRACT IS PERFORMED BY ONE SIDE, the other
contracting party cannot be permitted to enjoy the benefits received,
and will be required in a proper action to account; but one whose
condition has not changed or been prejudiced by the ultra vires con.
tract cannot compel its enforcement. Twiss v. Guaranty Life Assa,

418.
10. Contract Ultra VIRES-PUBLIC POLICY.-If a municipal corporatioa

grants to an electric light and gas company a franchise to operate ito
works, and to supply the inhabitants of the city with gas and electric
ity, it is bound to operate its works, and has no power to lease them to
a third party for a period of years. Such a contract, if 'made, is altra

vires and void as against public policy. Visali, Gas etc. Co. v. Sims, 105
11. VOID CONTRACT - RELIEF - Pl.EADING ESTOPPEL. – A court will not

relieve either party to a contract with a corporation, which is not only
ultra vires, but also void as against public policy, and performance of
the contract by one of the parties will not estop the other from pleado

ing its invalidity. Visalia Gus etc. Co. v. Sims, 105.
12 ACCOUNTING FOR MONEY OR PROPERTY RECEIVED UNDER VOID Cose

TRACT–LESSEES. -While a corporation is liable to account for money
or property received by it under a void contract, the rule does not apo
ply to a lesses of the corporation whose lease is void, and who is found

to have made nothing from the lease. Visalia Gas etc. Co. v. Sime, 105.
18. INSOLVENCY_RIGHT OF RECEIVER TO SUB FOR Srock SUBSCRIPTIONS

A receiver for an insolvent corporation, appointed at the instanoo of its
creditora, is clothed with all their rights, and may no to recovor stook
subscriptions although the corporation could not maintain such suit.

Cole v. Satsop R. R. Co., 858.
14 INSOLVENCY_PREFERENCES. ---A creditor, not a director, who has no

interest in an insolvent corporation other than that of its creditor, is
not a trustee, and has the right to sue by attachment, and thus acquire
a superior lien to any and all other creditors, although advised to ato
tach by a director of the corporation. La Grange Butler Tub Co. v.

National Bank, 558.
18. INSOLVENCY-PREFERENCES IN EQUITY.-A court of equity haring ao

quired jurisdiction of an insolvent corporation for the purpose of admin.
istering its estate, is bound to respect legal rights and preferences
already acqnired, and to make distribution accordingly. La Grange

Butter l'ub Co. v. National Bank, 558.
16. INSOLVENCY-ASSETS AS Trust Fund.—The assets of an insolvent cor-

poration are trust funds for the benefit of all its creditors in so far as
to prohibit the disposition of its assets toward the payment of debts
duo its officers, or by securing such debts by creating liens so as to
thereby give them a preference over other creditors, or from the time
when a court of equity acquires jurisdiction over it for the purpose of
winding up its affairs and distributing the proceeds arising from a sale of
the assets equitably among the oreditors. La Grange Butter Tub Co. v.

National Bank, 558.
17. TRUST IN FAVOR OF CREDITORS.—Equity regards the property of a cor-

poration as a fund held in trust for its stockholders while it is solvent,
and for the payment of its debts when it becomes insolvent, and if
others than bona fide creditors possess themselves of it, then in case the
corporation becomes insolvent, they hold it charged with a trust in
favor of its creditors, and such trust a court of equity will enforco.

Atlas Nat. Bank v. More, 274.
18. FOREIGN CORPORATIONS_FAILURE TO COMPLY WITH STATUTE-Pen.

ALTY.-If a statute imposes a penalty on a foreign corporation for fail.
ure to file a copy of its charter and to appoint an agent the penalty so
provided is exclusive of any other. La France Fire Engine Co. v. Mb

Vernon, 827.
19. FOREIGN CORPORATIONS - FAILURE TO COMPLY WITH STATUTE - Con.

TRACTS WITH_ESTOPPEL. — Under a statute failing to provide that con.
tracts made by foreign corporations doing business within the state with.
out complying with the provisions of such statute shall be void, but fix.
ing a special penalty for such violation, a party contracting with such
corporation is estopped from pleading its want of compliance with the

statute. La France Fire Engine Co. v. Mt. Vernon, 827.
Smo ASSIGNMENT FOR THE BENEFIT OF CREDITORS; NEGOTIABLE INSTRO.

VENTS, 1; PARENT AND CHILD, 1, 4; TRADEMARKS, 6, &

COSTS.
Soo HOMESTEAD, 9; MARRIAGE AND DIVOROR, 7.

COTENANCY.
L ADVERSE POSSESSION. A cotenant who, under color of title, enters into

possession of the land held in common, claiming the whole to himsoll,

-

thereby acquires an adverso possession, and sets the statuto of limita-

tions in operation. King v. Carmichael, 303.
& CONVEYANCE BY Oxe — ADVERSE Poss ESSION.- A cotenant who sells

and conveys the whole of the land held in common and gives pos.
session thereby creates in the grantee a title and possession adverse
to the other cotenant or cotenants, and if such grantee continues to
hold for the period of time prescribed by the statute of limitations he

thereby acquires a good title as against them. King v. Carmichael, 303.
& PURCHASE OF TAX TITLE. A cotenant in possessior: cannot acquire

title as against his cotenant by purchasing a tax title to the common

property. Thompson v. McCorkle, 334.
4. TENDER—WHEN UNNECESSARY.-In an action by one cotenant to set aside

a tax title to the common property acquired by another cotenant, no
tender of taxes is necessary before bringing suit. Thompson v. No

Corkle, 334.
& EJECTMENT AGAINST STRANGER. — A tenant in common is, as against

every person but his cotenant, entitled to the possession of every
part of the common land, and may recover such possession in an action
of ejectment brought against a stranger to the common title. Allen v.
Higgins, 847.

See PARTITION.

COUNSEL'S ADDRESS.

See APPEAL, 4.

COUNTY COURT.
See INSOLVENCY.

COUPONS.
See Box Ds,

COURTS.
THE GENERAL LANGUAGE OF THE OPINION IN A CASE MUST BE CONSTROED

with reference to the particular facts then before the court Chapman
v. Slate, 158.

See JURISDICTION.

CRIMINAL LAW.
Tue ATTEMPT TO COMMIT A Crime has been made when the opportunity

occurs, and the intending perpetrator has done some act tending to
accomplish his purpose, though he is baffled by an unexpected obstacle

or condition. People v. Gardner, 741.
Seo EXTORTION; HOMICIDE; INCEST; INDECENCY; INTOXICATING LIQUORS;

JUSTICES OF THE Peace, 3; New Trial, 1, 2.

CUSTODY.
See PARENT AND CHILD, 1-4.

CUSTOM.
EVIDENCE TO PROVE.- PARTIES ARE PRESUMED to have dealt with refer.

ence to a general custom, and, in order to correctly interpret their
intentions, evidence is admissible to put the court or jury in possession

of a knowledge of the custom in the light of which the parties trans-
acted their business. Bowman v. First Nat. Bank, 870.

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DAMAGES.
1. DAMAGES PURELY SPECULATIVE in character, and dependent on so many

contingencies that they cannot be traced with reasonable certainty to
the breach of the contract, are not allowable. Hitchcock v. Supreme

Tent, 423.
2 MEASURE OF-Loss or Profits.-If one party breaks a contract which

the other party has partly performed, and the violater then per.
forms and completes the work himself from which he reaps the profits
which the other party might have made, he cannot escape liability for
damages if the other party can show the profits made while he was
executing it, and the benefits received from its subsequent completion.
The measure of damages is the profits and benefits remaining after the
cost of doing the work has been deducted from the amount agreed to

be paid for doing it. Hitchcock v. Supreme Tent, 423.
3. MEASURE OF.-AN INSTRUCTION TO THE JURY in an action to recover

damages for the death of a railway employee, that they should assess
the damages at whatever sum they should deem just and reason.
able from all the evidence in the case, not exceeding the amount
of the declaration, is not erroneous. The instruction could not have
been understood by the jury to have authorized damages to be assessed
by way of solatium, if there is no claim for such damages made in the

declaration. Chicago etc. R. R. Co. v. Kneirim, 259.
. Master and Servant — NEGLIGENCE-MEASURE OF DAMAGES-EARN.

INGS.-In an action by a father to recover for personal injury to his
minor son caused by negligence it is error to charge the jury, without
evidence, that such son was likely to earn more than his present wages

in the near future “by way of promotion." Reese v. Hershey, 795.
8. Sratures Giving PUNITIVE, DOUBLE, OR TREBLE DAMAGES against one

cutting or otherwise converting to his own use timber growing on the
land of another without his consent are confined to cases where some
element of recklessness, wantonness, willfulness, or evil design enters
into the act. Therefore, if the land is located in a wilderness, far from
human habitation, and there is nothing to indicate that any one actu-
ally asserted ownership of any part of the country thereabout, and there
is nothing to indicate willfulness, wantonness, or recklessness, actual

damages only will be allowed. McDonald v. Montana Wood Co., 616.
6. PENALTY OR LIQUIDATED DAMAGES. — To DETERMINE WHETHER A SUM

SPECIFIED IN A CONTRACT IS A PENALTY OR LIQUIDATED Damag Es the
court will consider the language used, the subject matter of the con.
tract, and the intention of the parties. The fact that the parties used
the words “liquidated damages” in their agreement does not always
determine the question. The courts generally lean toward that con.
struction which excludes the idea of liquidated dainages, and permits
the party to recover only the damages which he Las actually sustained.

Hennessy V. Metzger, 267.
7. PENALTY OR LIQUIDATED DAMAGES. --If a building contract names the day

at which it is to be completed, and declares that the contractor for each
day's delay beyond that time shall be charged with the sum of tifty
dollars as liquidated damages, and it is difficult to determine what the

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