5. A contract to establish a college "in" a certain town does not require it to be placed within the corporate limits when a large num ber of the inhabitants of the town dwell be- yond such limits. Rogers v. Galloway Female College (Ark.) 636 6. A contract to establish a college "at" a certain town does not require that it should be placed within the corporate limits. Id.
7. A private understanding with one of four persons who make equal subscriptions, to the effect that other persons will raise and pay a part of his subscription, will not release one of the other four, where this agreement did not amount to a release of the subscriber from any part of his subscription. Id. 8. A subscriber to a fund to be given for securing the location of a college at a certain place on condition that a specified sum is raised cannot avoid his subscription by showing a deficiency in the amount after it has been ac- cepted as sufficient by the party establishing the college, where he was a leading spirit in the enterprise, knew the subscribers, and knew what was demanded.
16. A judgment upon a tort is not a con- tract, within the meaning of the constitutional provision against impairing the obligation of 258 contracts. Sherman v. Langham (Tex.)
17. The remedy on promissory notes and warrants of attorney by statutes in force at the time that they were made, which author- ized the holder to enter judgment, issue ex- ecution, and levy upon and sell the debtor's property notwithstanding any assignment for creditors which he might make more than sixty days after their issue, constitutes an es- sential part of the contracts or securities, and cannot be taken away by a subsequent statute which attempts to provide that all levies or other processes shall be dissolved by such an assignment. Second Ward Sav. Bank v. Schranck (Wis.)
9. A college established by a church pur- Contracts; capacity to make, see INCOMPE- suant to subscriptions and propositions there- for is the beneficiary of the subscriptions, standing in loco ecclesia as to the right to sue upon it.
11. An action on a contract which is not only declared unlawful by statute, but is made a penal offense, cannot be maintained. Raleigh & G. R. Co. v. Swanson (Ga.) 275
12. A contract between a railroad company and a ticket broker, whereby the latter is en- abled to sell tickets to individuals over the com- pany's lines for interstate transportation at less than the established rate for the sale of tickets by its regular agents, between the same points and for the same accommodation, is in viola tion of the act of Congress of Feb. 4, 1887, to regulate commerce.
13. The exposure of holders of patents cov ering similar articles to litigation will not jus- tify them in making a combination in restraint of competition. National Harrow Co. v. Hench (C. C. App. 3d C.) 299 14. An agreement to sell no harrow for less than the schedule price is invalid when made y the owner of the patent with a corporatiion organized by rival manufacturers of harrows to take title to the patents and license the former owners to operate under them and sell only at schedule prices to be fixed by the cor- poration.
Fictitious names in, see NAME.
Effect of statute of frauds upon contracts between sureties to fix their shares of liability. 378
For permanent employment; mutuality 467 Wagers on race
CORPORATIONS. See also BUILDING
AND LOAN ASSOCIATIONS;, CONFLICT OF LAWS, 2; ESTOPPEL, 3-5; EVIDENCE, 4; INJUNCTION, 1; LIFE TENANT, 2, 3; RE- CEIVERS, 1-3, 7; WAREHOUSEMEN, 3; WRIT AND PROCESS.
1. The subjection of what purports to be a corporation but has no legal existence, as such because of the nonpayment of the bonus tax imposed by Md. act 1890, chap. 536, to a suit by the state for the recovery of the tax by Md. Code, § 88h, does not, by implication, give it a legal existence for all purposes, in- cluding a capacity to sue, as it is expressly de- nied the exercise of any corporate powers un- til the bonus is paid, by § 8Eƒ. Maryland Tube & I Works v. West End Improv. Co. (Md.)
2. The lack of the corporate existence of the plaintiff suing as a corporation can be set up to defeat the action by the defendant, where this is based on the failure of the plaintiff to 15. Efforts to prevent competition to re-pay the bonus tax prescribed by Md. Acts
1890, chap. 536, under which such nonpay-ness; depositing securities in trust; for whose ment prevents the attempted corporation from having or exercising any corporate powers. Id. Powers.
3. The plea of ultra vires will not be al- lowed to prevail when it will not advance jus- tice, but will, on the contrary, accomplish a legal wrong. Lewis v. American Sav. & L. A880. (Wis.)
559 4. An extension of the business of a cor- poration into another state is within the power of the directors. Id.
5. By-laws providing that the transfer of the stock of an irrigation company shall be made only with the land for which it was is- sued do not apply to a sale of delinquent stock for assessments, as the purchaser is not a trans- feree of the former owner of the stock. Spur geon v. Santa Ana Valley Irrig. Co. (Cal.) 701
6. The rights of a purchaser of delin- quent stock sold for assessments must be de- termined by the general law, if no provision therefor is made by the charter or by- laws, and general provisions of a by-law as to transfer of shares of stock do not apply. Id.
7. An act of a corporation tending to produce injury to the public by affecting the welfare of the people is an abuse of its cor- porate franchise for which the charter of the company may be forfeited by an information in the nature of quo warranto. People, Mc Ilhany, v. Chicago Live-Stock Exch. (11.) 373 Insolvency.
Failure to perfect; status of. By-laws as to transfer of stock. Preference to creditors of.
Status of unauthorized foreign companies.
8. The invalidity of an attachment of prop- 3. The maintenance of a county asylum erty of an insolvent corporation will not pre- does not become a private business such that clude a purchaser of the property from defend- the county is liable for injuries received by em- ing against one claiming it under a mortgage ployees, by reason of the fact that some reve which constitutes an invalid preference. Four-nue is incidentally derived by the county from ler v. Bell (Tex.) the sale of surplus farm products and from payments made by those liable for the support of insane persons kept in the asylum. Hughes v. Monroe County (N. Y.) 33
9. Members of a company incorporated in another state, who organize and choose direc- tors in Florida and undertake to carry on the 4. A county is not liable for injuries re corporate business in that state without be- ceived by an employee from a defective ma coming incorporated therein, are liable as part-chine in an asylum which was maintained by ners in the business. Taylor v. Branham the county in discharge of its duty as a politi (Fla.) 362 cal division of the state to care for its insane. Hughes v. Monroe County (N. Y.)
10. A corporation created under the laws of another jurisdiction cannot exercise cor- 5. No new liability for torts is imposed porate functions in Florida without becoming upon a county by a statute making it a munie- incorporated under its laws, and its liabilities ipal corporation for exercising the powers and contracted there while unincorporated therein discharging the duties of local government rest upon its members or stockholders in the and the administration of public affairs, and jurisdiction as partners. Id. providing that actions for damages for any in- liable shall be in the name of the county. jury to any property or rights for which it is Markey v. Queens County (N. Y.)
11. The compliance by a foreign building
and loan association with the laws of the state which created it need not be investigated by the authorities of another state in which it de-
posits securities as required by statute in order to obtain a license to do business therein. Lewis v. American Sav. & L. Asso. (Wis.) 559
12. A deposit of securities by a foreign cor- poration as required by law in order to obtain the right to do business in the state is not ultra vires.
Liabilities of counties in actions for torts and negligence:-(I.) Injuries to travelers and ve- hicles: (a) by bridges and approaches being out of repair: (1) implied liability; (2) where Corporations; conditions of right to do busi- statute imposes liability; (b) from defective
partition sale in an action to which she was not a party, notwithstanding Ind. Rev. Stat. 1894, 2660, providing that no sale of the hus- band's property by virtue of any decree to which she shall not be a party shall affect her rights, as that section applies only where the wife is a necessary party, which she is not in such action. Id.
4. The effect of the deed in a partition sale is not reduced to that merely of co-owners so as to leave the property subject to the inchoate dower rights of their wives, by a statute pro- viding that the conveyances shall bar all claims of such owners to said lands as effectually as if they themselves had executed the same. Id.
5. A statute providing that a judicial sale of a man's property in a suit to which his wife is not a party shall not prejudice her dower rights has no effect in case of a sale for parti- tion of land in which he has an undivided in- terest, where another statute designating the persons to be made parties to partition proceed- ings does not recognize her as a necessary one. NOTES AND BRIEFS.
Dower; inchoate interest of wife under stat- utes; effect of partition.
lineman to inspect and test for himself the guy wires or circuit breakers of an electric-railroad company, which uses the same poles that are used by the telephone company when it fur- nishes him with suitable appliances for that purpose, and he knows that there are no other persons employed to do such testing. Id.
4. The right of a telephone lineman to as- sume that an electric-railroad company has used suitable and safe appliances to prevent the escape of electricity from its main or trolley wire to the guy wires does not excuse him from exercising proper care to prevent injury, when he knows as a fact that the wires are not safe. Id. NOTES AND BRIEFS.
Electrical uses; negligence as to dangerous. wires. 192
Electricity; use of, in street, as a nuisance.
ELECTRIC RAILWAYS. See EMINENT DOMAIN, 6, 9.
ELEVATED RAILROADS. See IN- JUNCTION, 5, 6.
1. An ascending and descending cage of See also CRIMINAL an elevator is such an attraction to children that an unguarded or open door or one which may readily be opened from the outside, may constitute negligence on the part of the owner when children are allowed to play where they
Drunkenness; municipal regulation of, as a may be injured by it. Siddall v. Jansen (Ill.)
EASEMENTS. See PARTITION, 3, 4.
1. Ejectment may be maintained to com- pel the removal of telegraph poles from a pub. lic highway over plaintiff's land on which the line constitutes an additional burden for which compensation has not been made to the owner. Postal Teleg. Cable Co. v. Eaton (Ill.)
2. Failure to comply with the provisions of an ordinance respecting the doors of ele- vators will render the owner liable for an in- jury received in consequence by a child which was rightfully at the place of the injury. Id. EMBEZZLEMENT.
A receiver who un'awfully appropriates money which comes into his hands as receiver, 722 or fails to account for or pay over the same on demand, is not within Kan. Comp. Laws 1889,
2. A transfer of land over which a tele- graph line has been constructed without right gives the purchaser all his grantor's rights, including the right to bring ejectment. Id. ELECTRICAL USES AND APPLI. ANCES. See also CARRIERS, 6; EVI- DENCE, 8.
1. The breaking of a live electric wire which falls to the ground and causes the death of a person touching it does not render the owner liable, if it was due entirely to accident which no reasonable human care could pre- vent. Snyder v. Wheeler Electrical Co. (W.Va.) 499
2. The use of the same poles by a tele- phone company and an electric-railroad com- pany, at the request of the municipal authori- ties, is not unlawful when it is not shown to be necessarily attended with increased danger. Bergin v. Southern New England Teleph. Co. (Conn.)
3. A telephone company may require its
2220, providing that if any "agent" shall neglect or refuse to deliver to his "employer or employers," on demand, any money which has come into his possession by virtue of such employment, he shall on conviction be pun- ished. State v. Hubbard (Kan.) 860 EMINENT DOMAIN. See also CONSTI- TUTIONAL LAW, 1, 7; GAS, 1; INJUNC- TION, 8, 9.
1. A liberal construction should be given to the constitutional provision for just compen- sation to the owners of property taken or dam- aged for public use. Searle v. Lead (S. D.)
2. Damages by the grading of a street in front of one's premises, although no prior grade had been established, are within the pro- visions of the Constitution against taking or damaging property without just compensation.
3. No admission that any damage will be
caused by the grading of a street is necessary to the filing of a petition by the city, under S. D. Acts 1891, chap. 94, providing for the as- certainment of damages before taking or dam- aging private property for public use. Id. 4. The ascertainment and payment of damages that may be caused by a change of grade of a street is a condition precedent to the right of the municipality to proceed under a Constitution providing for just compensa- tion to the owners of property taken or dam aged for public use.
5. Damages for injuries caused to an abut- ting lot by being left 8 or 10 feet above the street by change of grade must be paid by the city to the lotowner, under a Constitution pro- viding compensation for property taken, in jured, or destroyed, for public use. Hender- son v. McClain (Ky.) 349 6. Poles for a trolley railroad, set at stated distances on either side of tracks near the mar- gin of a street, on which wires are placed, con- stitute an additional burden upon the street. Jaynes v. Omaha Street R. Co. (Neb.) 751
7. A telegraph line is an additional burden on the fee of a public highway, for which compensation must be made to the owner. Postal Teleg. Cable Co. v. Eaton (Ill.) 722 8. The motive power which moves vehi- cles on a street does not determine whether or not an additional burden is imposed upon the easement, but that question depends on the exclusiveness and permanency of the occupa- tion of any portion of the street. Jaynes v. Omaha Street R. Co. (Neb.) 751 9. The depreciation of the property of abutting owners by the exclusive use of a portion of the street by a trolley company's poles and wires gives a right to compensa- tion under Neb. Const. art. 1, § 21, which pro- vides that property shall not be "taken or damaged" for public use without just com- pensation.
Eminent domain; injuring property with- out compensation.
3. The doctrine of estoppel cannot be suc- cessfully invoked against the denial of corpo- rate existence unless the corporation has at least a de facto existence. Maryland Tube & I. Works v. West End Improv. Co. (Md.) 810
4. A corporation is not estopped from de- nying that it is a warehouseman, or that its re- ceipts, as such, are valid, as against a holder of them who took them with knowledge of the facts respecting the character and powers of the corporation. Franklin Nat. Bank v. Whitehead (Ind.)
5. A foreign corporation as well as its stockholders and receiver are estopped from disputing the validity of a trust upon which the corporation deposited securities as a condi- tion of the license to do business in the state. Lewis v. American Sav. & L. A880. (Wis.) 559
6. A party to an action who procures from the presiding judge a ruling that a specified judgment is valid and legal, as the result of which the case is adjudicated in his favor, is estopped in a subsequent litigation with the same adverse party to deny the validity or le- gality of such judgment. Luther v. Clay (Ga.)
See LANDLORD AND TEN-
ANT, 4. EVIDENCE. See also APPEAL AND ER- ROR, 9, 11, 13, 18, 22, 25, 26; TRIAL, 2, 3, 5. Judicial notice.
1. The source, course, and destination of 346, 349 the rivers of the state are a matter of judicial Extent of rights acquired by; right to enter cognizance. People v. Truckee Lumber Co.
and remove property.
Additional burden on highway. Additional burden of street railway.
722 Presumptions and burden of proof. 752 2. The one alleging the unconstitutional- ity of a statute has the burden of substantiat- ing his claim. Cook v. Fogarty (Iowa) 488 absence of proof, to prevail in a sister state 3. The common law is presumed, in the which was once under the jurisdiction of Eng- land. Gooch v. Faucette (N. C.)
An available legal defense to a pending action at law which is furnished by a valid re- lease will not prevent equitable relief in favor of the defendant when the trial of the action at law might affect his reputation and charac- ter in the community by reason of charges and revelations as to his past conduct, whether real or fabricated, on which the action was based. Bomeisler v. Forster (N. Y.) 240
4. It is a reasonable presumption that s foreign corporation which has obtained a li- cense by depositing securities which it had agreed to do and which the law required as a condition of the license did so in the manner and for the purposes prescribed by the law. Lewis v. American Sav. & L. Asso. (Wis.) 559
5. The presumption, from the fact of the partition of the surface of land by parol, is that it includes the coal beneath as well as the sur- face; and one who denies it has the burden of proof. Byers v. Byers (Pa.) 537 6. The mere happening of an accident is
not sufficient to show negligence as between | and signed it under an agreement with the persons having no contract relations with each payee that the principal only should be liable. other if other evidence shows due care under Shuey v. Adair (Wash.) 473 the circumstances. 17. Parol evidence is admissible to show ning Co. (Pa.)
fraudulent misrepresentations by the vendor as 7. An accident which in the ordinary to the quantity of the land sold, though not in course of things could not have happened if any manner incorporated in the deed consum- proper care had been used affords reasonable mating the contract. Gustafson v. Rustemeyer evidence, in the absence of explanation, that (Conn.) it arose from want of care. Snyder v. Wheel- ing Electrical Co. (W. Va.)
499 8. The presumption of negligence from the breaking of a live electric wire and its fall to the ground is not final or conclusive, but may be repelled by evidence. Id.
9. A carrier has the burden of showing that its conductor, in beating a passenger in al- leged self-defense, used no more force than ap- peared to him, as a reasonable man, necessary to repel the assault. St. Louis S. W. R. Co. v. Jones (Ark.) 784 10. The burden is on defendant in a mur der trial in Ohio, who sets up insanity as a de- fense, to establish it by a preponderance of the evidence; but the proof should be deemed to preponderate in favor of insanity whenever its existence is made probable upon a full and fair consideration of all the evidence ad- duced for and against it. Kelch v. State (Ohio) 737
18. A devise absolute in form cannot be shown by oral evidence to be in trust for other persons. Moran v. Moran (Iowa) 204 Opinions.
19. The opinion of a witness is of no value on the question whether or not a particular place at which there is a railroad switch, to which the switch engine frequently runs, is within the depot grounds or yard limits. Rab- idon v. Chicago & W. M. R. Co. (Mich.) 405
20. After one accused of murder has offered evidence of his demeanor for the purpose of convincing the jury of his insanity at the time of trial, for the purpose of raising the pre- sumption of insanity when the crime was com- mitted, a person who is acquainted with him may testify that he is simulating. Burt v. State (Tex.) 305
21. An opinion as to sanity may be given by a nonexpert witness who has given a very full detail of the facts upon which the opinion Id.
11. A contractor for city work cannot state 22. A hypothetical question by contestant to from memory the state of his accounts with an expert witness upon the question of inca- the city at a certain time, when books show-pacity of a testator need embrace only the facts ing such facts are accessible. Greenville v. Or- which the evidence of the contestant tends to mand (S. C.) prove, and not those alleged by proponents, Documentary. which he denies, or those which are irrelevant. Re Miller (Pa.)
12. Legislative journals are competent evi- dence to show that a bill was not passed in 23. Testimony that a person "looked very accordance with mandatory provisions of the bad; he was lame and he could scarcely get Constitution. Stanly County v. Snuggs (N. C.) get up stairs," is not inadmissible on an issue 439 as to his condition at a certain time. Balti more City Pass. R. Co. v. Nugent (Md.) 161 Declarations; res gestæ.
13. A properly authenticated record of con- viction of crime in a Federal court may by statute be made admissible in a proceeding to disbar the accused as an attorney in a state court. Re Kirby (S. D.)
24. Testimony of a defendant that he did not instruct his counsel in the matter, but that 856 he acted altogether on the advice of the coun- 14. An agreed statement of facts upon which sel, is admissible where he is charged with act- a case was tried without a jury, although noting maliciously in making a complaint on absolutely binding on the parties in a jury trial which a hearing as to the insanity of another was based. Porter v. Řitch (Conn.) of another case between them involving the person 353 same issues, is admissible in evidence on the latter trial at the instance of one party against the other, subject to the latter's right to dis- prove, rebut, or explain any statement con- tained therein. Luther v. Clay (Ga.) 95
25. Sureties cannot testify to instructions to the maker as to the disposition of the notes against the holder unless he is shown to have knowledge of them. Greenville v. Ormand (S. C.) 847
26. The absence of the sureties on a note at
15. Evidence obtained by forcibly entering the time of its attempted negotiation will not the house of an accused person and searching preclude testimony as to what then took place it and the person accused, without any warrant being given by one who, after the refusal of or authority of law, is not inadmissible to show the payee to discount it, advanced money on the possession of articles tending to establish the note which was committed by the sureties guilt, although the search and seizure may to the maker's hands for negotiation. have been unlawful, unwarranted, unreason- able, and reprehensible. (Ga.)
16. Oral evidence is inadmissible to show that the maker of a note was only an agent
27. Testimony that the members of a club considered a certain paper one of the strongest they had had read before them is incompetent as hearsay. Porter v. Ritch (Conn.) 353 Relevancy.
28. Evidence of acts of an agent of a de-
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