CONSTITUTIONAL LAW.

(3d), That, considering that the Legislature and Executive Depart-
ments of the Federal Government had decided in favor of the existence
of such a power, and what the consequences of an opposite decision at
the present time by the court would be, they would hold the Treasury
Notes to be a legal tender until the Federal Courts should determine
otherwise. Reynolds vs. Bank of the State of Indiana,

III Liability of U. S. loans to State taxation.

1. Stock in the public debt of the United States, whether owned by
individuals or by corporations, is taxable under the laws of the State
The People vs. The Commissioners of Taxes,

2. The taxation, by the State, of property invested in a loan to the
Federal Government, is not forbidden by the Constitution of the United
States, where no unfriendly discrimination to the United States, as bor-
rowers, is applied by the State law, and property in its stock is subjected
to no greater burdens than property in general. Id.

3. Whether Congress, for the purpose of giving effect to its powers to
borrow money, and of aiding the public credit, may constitutionally
enact that a stock to be issued by the Federal Government shall be ex-
empt from taxation, quære. Id.

4. The cases of McCullough vs. Maryland, 4 Wheat. 116; Osborn vs.
U. S. Bank, 9 Wheat. 738; and Weston vs. The City of Charleston, 2 Pet.,
examined and distinguished. Id.

IV. Stay Law, validity of.

The Indiana statute of 1861, which provides that in all cases of sales
by the Sheriff on execution, after its passage, the Sheriff shall not give
the purchaser a deed for, and possession of the property sold, but only a
certificate entitling him to a deed and possession in one year from the
sale, if the property is not redeemed in the manner therein provided, is
unconstitutional, so far as it applies to sales on judgments upon contracts
existing at, and before its passage. Scoby vs. Gibson,

CONTEMPT.

In refusing to testify.

See WITNESS.

CONTRACT.

I. When varied by subsequent Parol Agreement, or by Custom.

1. Where a contract is made by written correspondence solely, it must
be treated as a contract in writing, not subject to addition or alteration
by proof of the acts, declarations, and intentions of the parties aliunde.
Whitmore vs. South Boston Iron Company,

2. But it is competent to show that the parties subsequent to entering
into the same, consented to waive any of its provisions, and to substitute
ethers in their stead. Id.

3. But an additional warranty, not expressed, or implied by its terms,
that the article sold is fit for a particular use, cannot be added, either by
implication of law or parol proof. Id.

4. Nor can the question whether such warranty is fairly to be inferred
from the application of the terms of the written contract to its subject-
matter, or from the attending circumstances, be submitted to the jury.
they should be instructed that no such warranty exists in the case. Ia.

5. A contract to manufacture "retorts like the one before furnished"
imports more than likeness in "size, shape, and exterior form." It has
reference to the material and workmanship. Id.

6. Such a contract cannot be controlied by proving a custom in the
vicinity of the transaction, that founders shall not be held to warrant

669

81

22

408

CONTRACT.

their manufacture, unless by express contract; or, in case of apparent
defects, and the absence of any express agreement, that they shall have
their castings returned in a reasonable time, and the right to replace
them by new ones.

Id.

7. The rule of damages for not furnishing manufactured articles ac-
cording to contract, is the difference in value between those actually
furnished and such as should have been, unless they were to have been
furnished for a particular use. Id.

II. When void as against Public Policy.

See INSURANCE, II.

CORPORATION.

1. Stock, how to be transferred.

1. Upon a pledge of stock in a railroad corporation in New Hamp-
shire, there should be such delivery as the nature of the thing is capable
of, and to be good against a subsequent attaching creditor, the pledgee
must be clothed with all the usual muniments and indicia of ownership.
Pinkerton vs. Manchester and Lawrence Railroad,

2. Under the laws of New Hampshire, a record of the ownership of
shares must be kept by such corporations in this State, and by proper
certifying officers resident therein. Id.

3. On the transfer of stock the delivery will not be complete, until an
entry of such transfer is made upon the stock record, or it be sent to the
office for that purpose, and the omission thus to perfect the delivery will
be prima facie, and if unexplained, conclusive evidence of a secret trust,
and therefore as matter of law fraudulent and void as to creditors. Where
the transfer was made at a distance from the office, and the old certifi-
cates surrendered, and new ones given by a transfer agent appointed for
that purpose, and residing in a neighboring State, proof that the proper
evidence of such transfer was sent to the keeper of the stock record to be
entered by the earliest mail communication, although not received until
an attachment had intervened, would be a sufficient explanation of the
want of delivery, and such transfer would be good against the creditor.
Id.

4. But where the pledge was made in Boston on the eighth day of July
by a delivery over of the certificates, and nothing more done until the
third day of the following August, and then the old certificates surren
dered to the transfer agent there, and new ones received from him, and
notice given by the first mail to the office at Manchester in this State: It
was held, that as against an attachment made between the obtaining the
new certificates and the notice at the office, the possession was not sea-
sonably taken, and the transfer was therefore not valid. Id.

5 Where, upon a sale on execution of shares in a corporation, a certi-
ficate is demanded of the corporation by the purchaser, and a suit is
brought for refusing to give such certificate, the measure of damages is
the value of the stock at the time of the demand, with interest, and not
the value at the time of trial or at any intermediate period. Id.

II. Fraudulent issue of Stock.

R. & G. L. Schuyler being the owners of one hundred and sixty shares
in the defendants' company, of which R. Schuyler was the Register and
Transfer Agent, the latter in 1849 delivered to the plaintiffs, as collateral
security for a debt due by him, certificates for ninety of those shares, with
a plank power.
No application for a transfer on the books of the com-
pany, as required by the charter, was made until 1854, when it was dis-
covered that R. S. had been guilty of a fraudulent over issue of the stock
of the company to his firm, but there was no evidence that any of this
spurious stock had passed out of the hands of the firm before the deli-

94

CORPORATION.

very of the genuine certificates to the plaintiffs. The company subse-
quently refused to aliow the transfer of the latter. Held,

1. Burden of proof.-It is incumbent upon the defendants to show, if
such be the fact, that these certificates do not represent the genuine stock
of the company, that being a fact more exclusively in their power to
prove.

2. Plaintiffs' title.-The plaintiffs are to be regarded as the first and
only equitable purchasers and owners of ninety of the one hundred and
sixty shares of genuine stock held by Schuyler.

3. Plaintiffs' title not lost by delay.-The bona fide holders of such cer-
tificates had a right to rely upon them, as securing to the owners the
shares which they represented, against all transfer to other parties.

4. Notice to the Company.-The knowledge of Schuyler that these certi-
ficates were held by bona fide purchasers, for value, was notice to the
Company, while he acted as their transfer agent in registering the trans-
fers to subsequent parties, and thus affected them, constructively, with
the fraud of their agent, and thereby avoided the effect of such transfers
as between the plaintiffs and the Company, and rendered them liable to
make good the plaintiffs' loss thereby sustained.

5. Semble. It is by no means certain that the transfers registered are
to be regarded as having operated upon the plaintiffs' shares.

6. Blank transfers.-Blank powers of attorney, for transferring stock,
although under seal, may be filled up at the convenience of the trans-
ferree, and thus operate as of their date.

7. Lex loci.-Such being the settled law of the State of New York
where this instrument was intended to take effect, will remove all ques-
tion as to its validity, even if we admit that the law of the place where it
was executed is otherwise. Bridgeport Bank vs. The New York and New
Haven Railroad,

III. Assignment of Railroad to Creditor, when passes License to use a Patent.
See PATENT.

IV. Subscriptions by Towns, &c., to Stock.

See MUNICIPAL SUBSCRIPTION.

210

DESCENT AND DISTRIBUTION.

The Intestate law of Pennsylvania of 1833 provides that on the death
of a person without issue, his parents shall take his real estate during
their joint lives and the life of the survivor of them. A private statute
of that state passed in 1853 enacted that A. and B children of C. should
have all the privileges, &c., of children born in lawful wedlock, and
inherit and transmit real estate as such. These were the offspring of C.
and of X., who had afterwards married Y. A. died intestate without
issue, in 1859, at which time C., X., and Y. were all living. Held, that
C. and X., as the legislative parents of A., took a joint life estate in his
lands. Killam vs. Killam,

. 18

Held, also, that the act of 1855, which provides that the estate of a
bastard shall, on his intestacy without issue, pass to his mother abso-
lutely, did not apply. Id.

DOMICIL.

See CONFLICT OF LAWS, II., III.

DOWER.

I. Right of Tenant to disprove Seisin in Husband.

1. A tenant in an action of dower is not estopped from showing that
the seisin of the husband was not such as to give his wife a right of
dower, where he or his grantor has accepted a deed of the premises from
the husband and claims under it, although he may be estopped from de-
nying the right of the husband to give the deed. Foster vs. Dwinel, 604

2. Estoppels are mutual. The wife is not estopped if the husband, in
a deed, misstates his title-as one not giving dower. Id.

3. Dower is no part of the estate of the husband, but an independent
and inchoate right, which may become an interest in the estate after his
death, if his seisin was such as to give it. But the law will not create
this estate by the operation of an estoppel where it otherwise would not
exist, where the tenant has simply accepted a deed from the husband,
which does not allude to the matter of dower, or to the existence of the
wife. Id.

4. Where it appears in the deed from the husband, that his title is
only that of mortgagee before foreclosure, no estoppel can arise. Id.

II. Wife of Mortgagee when dowable.

The wife of a mortgagee cannot claim dower in an estate until the same
is foreclosed by the husband. Foster vs. Dwinel, .

EASEMENT.

See WAY.

ERRORS AND APPEALS.

Discretion at Trial of Case.

1. As a general rule, the party holding the affirmative of the issues
has the right to open and conclude the argument to the jury; but such
practice being within the discretion of the court, the refusal to give the
defendant the conclusion will be no cause for reversal of the judgment.
Reichard vs. The Manhattan Life Insurance Company,

2. No exception lies to the decision of a judge of the superior court
upon the question whether a deposition which has been read in evidence
in a trial shall be delivered to the jury when they retire to consider of
their verdict. Whithead vs. Keyes,

EQUITY.

I. Jurisdiction over separate Estate of Married Woman.

See MARRIED WOMAN'S ACTS.

604

547

471

EQUITY.

II. Specific Performance of Building Covenants and Restrictions.

See INJUNCTION.

ESCAPE

Action for.

See ARREST, I.

SHERIFF.

ESTOPPEL.

See DOWER, I. 1, 2.

EVIDENCE.

I. Examination of Witnesses.

When the plaintiff in the course of a trial calls out the declarations of
the defendant, it does not follow, that all that was said by defendant
can be given in evidence, but only that which tended to qualify that given
in evidence by the plaintiff, and no more. Brouner vs. Goldsmith et al.,

II. Foreign Judgment, where not inquirable into.
See PLEADING.

III. Written Contract, when varied by Parol Evidence.
See CONTRACT, I.

EXECUTION.

On Stock, when preferred to Unregistered Pledge.

See CORPORATION, I. 5.

FOREIGN INSURANCE COMPANY.

See INSURANCE, II.

FRAUD.

Antecedent Debt, where constitutes a Purchaser for Value.

If the owners of property have intrusted it to an agent for a special
purpose, and the agent, in violation of his duty, has unlawfully consigned
the same to be sold, with directions to remit the proceeds to a private
creditor of his own, and such creditor, upon being informed by a letter
from the consignee of the consignment of the property and directions in
reference to the same, manifests his assent thereto by unequivocal acts,
and the property is sold by the consignee, and bills of exchange, payable
to the agent's creditor or his order, are purchased with the proceeds, and
remitted in a letter addressed to him, in compliance with the directions,
and the creditor, after receiving notice of the intended remittance, and
after manifesting his assent thereto, and after the remittance is actually
made, but before it is received, learns for the first time of the manner in
which the agent became possessed of the property, and of his wrongful
acts in reference to it, the original owners of the property cannot main-
tain an action for money had and received against such creditor, to re-
cover the amount collected by him upon the bills of exchange. Le Breton
vs. Peirce.

HABEAS CORPUS.

Commitment for Contempt, when examinable upon.
See WITNESS.

47

35