CORPORATION.

primâ facie title to the shares. Any director or stockholder desiring to avoid
such sale, must proceed at once to dispute it in legal form. State ex rel. Page
v. Smith, 466.

21. If the sale is otherwise valid, it is not vitiated by the fact that the mo-
tive of the purchaser and of some of the directors was to enable the former
to vote upon the shares in a certain manner at an approaching election of
corporate officers. Id.

22. Where new stock is issued which is to share in profits with existing
stock, all the holders of the latter have an equal right to subscribe for their
proportionate part of the new stock, but this rule does not apply to original
stock bought in by the corporation and held as assets, and sold for the pay-
ment of liabilities or for the general benefit. Id.

23. Where a director lends money to his corporation, taking a deed of trust
to secure the same, he must act fairly and be free from all fraud and oppres-
sion. Harts v. Brown, 553.

24. A director can loan money to a corporation when the money is needed,
and the transaction is open and otherwise free from blame. Oil Company v.
Marbury, 680.

25. An insolvent corporation cannot purchase in a portion of its capital
stock. Currier v. Lebanon Slate Co., 680.

26. Where shares of stock in a banking corporation have been hypothe
cated, and placed in the hands of the transferce, he will be subjected to all
the liabilities of ordinary owners. Wheelock v. Kost, 558.

27. A stockholder of a banking corporation which is a corporation de facto,
who receives dividends, will be estopped from insisting when sued by its cred-
itors that the corporation was not legal. Id., 552.

28. Unpaid stock is as much a part of the assets of an insurance company
as the cash which has been paid in upon it. Sanger v. Upton; Upton v.
Tribilcock, 559.

29. A fraudulent representation by an agent
par value was assessable, is no defence to an
ments. Id.

that only 20 per cent. of the
action for the unpaid instal-

30. The transferce of stock on which the full nominal value has not been
paid, is liable for calls on the unpaid portion made during his ownership,
without an express promise. Webster v. Upton, 638.

31. The capital stock of a business corporation is a trust fund for the pro-
tection of creditors, and neither stockholders nor directors can withhold or re-
lease any part of it from the claims of such creditors. The stock in this sense
is the whole stock, not merely the percentage of it called in or paid. Id.

32. The subject of subscriptions to stock and the liability of holders dis-
cussed. Id., note.

33. The plaintiff company was about being organized, and defendant hav-
ing subscribed his name to a paper agreeing to take ten shares, was liable as
a stockholder to assessments, although no shares designated by numbers be
assigned to him. European & N. A. Railway Co. v. McLeod, 592.

34. Contracts made by the promoters of a corporation before a charter is
obtained are binding upon it, if the benefits under the contract have been ac-
cepted and enjoyed by the corporation. Bell's Gap Railroad v. Christy, 620.
35. In such case the promoters of the enterprise must be a majority of
them. A minority could not bind the association or corporation. Id.

1. Counties are liable for the laches or misconduct of their servants, when
special duties are assumed or imposed on them. Hannon v. St. Louis, 664.

2. Thus, where the county of St. Louis made a contract for laying water-
pipe to the county insane asylum, the duty was not one imposed by general
law upon all counties, but a self-imposed one; and quoad hoc the county was
a private corporation, and governed by the same rules as to its liability. In
such case it is immaterial whether the performance of the work is voluntarily
assumed in the first instance, or is a special duty imposed by the legislature,
and assented to by the county. Id.

VOL. XXIV.-96

COUNTY.

3. And municipal and quasi corporations are, under the above circum-
stances, subject to the same doctrine of liability. Hannon v. St. Louis, 664.
COURTS. See CONSTITUTIONAL LAW, V.; REMOVAL OF CAUSES.

1. Where a majority of the court agree in the judgment that ought to be
rendered, but disagree as to the reason for such judgment, such judgment
must be entered. Railroad Co. v. Hubbard, 620.

2. The Supreme Court of the United States will not reverse the judgment
of a territorial court on the construction of the territorial code. Sweeny v.
Lomme, 126.

3. Where an appeal can be taken from an inferior court of a state to the
highest court of the same, only with leave of the latter, and that leave has
been refused, a writ of error, if there be in the case a "Federal question,”
properly lies, under sect. 709 of the Revised Statutes, to the inferior court,
and not to the highest one. Gregory v. McVeigh, 498.

4. A Federal question exists when-in a suit by a person who seeks to re-
cover property on the ground that a judgment and execution on it by a court
of the United States, interpreting a statute of the United States, has deprived
him of the property in violation of the first principles of law-the defendant
sets up a title under that judgment and execution, and the decision is against
the title so set up. Id.

5. The decision of the Supreme Court of a state that a company profess-
ing to be a corporation under the laws of the state is legally so, is conclu-
sive. Secombe v. Railroad Co., 498.

6. The mode of exercising the right of eminent domain in the absence of
any constitutional provision is within the discretion of the legislature. Id.
7. A judgment of condemnation rendered by a competent court, is no more
subject to impeachment in a collateral proceeding than the judgment of any
other court of exclusive jurisdiction. Id.

8. The Federal courts have no jurisdiction to enjoin proceedings in state
courts. Haines v. Carpenter, 552.

9. The United States courts have power under the writ of habeas corpus to
discharge persons from the custody of state officers, where it appears that they
are held under a state law which seeks to punish them for executing a law of
the United States, or where the act for which they are held was done in pur-
suance of the process of a Federal court. Ex parte Waddy Thompson, 522.

10. But where a party is in custody of a state officer under an indictment
for larceny and sets up as a justification for the act complained of a writ of re-
plevin issued from a United States court, the latter court will on habeas corpus
inquire into the fact whether its writ was fraudulently obtained for the pur-
pose of carrying off the property, and if satisfied of that fact, will remand the
relator to the custody of the state officer. Id.

11. A writ regular on its face is a justification to the officer to whom it is
addressed for everything that he may lawfully do under such an authority,
but this rule does not extend to a party who has procured the writ by fraud. Id.

12. If the highest court of a state has, after judgment, sent its records to an
inferior court, and no longer has them in its own possession, the Supreme
Court of the United States may send its writ either to the highest court or to
the inferior court. Atherton v. Fowler, 560.

13. Although jurisdiction cannot be given to the United States courts by
the consent of the parties, they may admit the existence of facts showing
jurisdiction upon which the courts may judicially act. Railway Co. v. Ram-

say, 192.

COVENANT. See WARRANTY, 1.

1. A stipulation in a deed of conveyance, whereby the grantee, in part con-
sideration for the conveyance, agrees for himself, his heirs, and assigns, that
the premises conveyed shall not be used or occupied as a hotel, so long as
certain other property, owned by the grantor, shall be used for that purpose,
binds both the grantee and all claiming under him, and may, in equity, be
enforced by injunction. Stines v. Dorman, 121.

2. Where a builder has done a large part of the work, but yet has failed to

COVENANT.
complete a building within the time limited by his covenant, the other party
can either abandon the contract, or permit the party in default to go on, and
if he does the latter, he cannot afterwards set up the breach as a defence to
an action for the contract price. Construction Co. v. Seymour, 553.

3. For the injury done by the failure to perform in the stipulated time, he
may recover in a suit on the contract, or he may recoup, in an action on the
contract against him, for the price. Id.

4. In an action of covenant founded solely on a specialty, evidence of a
parol promise is inadmissible. Id.

CRIMINAL LAW. See FACTOR; INTOXICATING LIQUORS, 2, 3.

T. Generally.

1. Liability to criminal punishment without criminal intent. Note to Uni-
ted States v. Adler, 48.

2. The burden of showing that a confession of guilt was obtained by im-
proper inducements rests with the defendant. Rufer v. The State, 120.

3. Where a witness is offered by the state to prove a confession made by
the defendant, to the admission of which testimony the defendant objects, on
the ground that the confession was not voluntary, it is the right of the de-
fendant to inquire of the witness and prove his objection before the confession
is given in evidence. Id.

4. A verdict in a criminal case, where there has been neither arraignment
nor plea, is a nullity. Davis v. The State, 186.

5. After such a verdict, the court cannot order a plea of "not guilty" to
be entered without the defendant's consent.

id.

6. A judge has power to suspend sentence, where the circumstances, in his
opinion, render the offence trifling and the law has imposed no minimum
punishment for it. Weaver v. The People, 531.

7. In general, where a sentence has been omitted by the judge who tried
the case, another judge may impose the proper sentence at a subsequent time,
but where sentence has been suspended by a judge under circumstances that
indicate his opinion that no punishment should be inflicted, a subsequent ɛen-
tence by a different judge is erroneous. Id.

8. MICROSCOPICAL EXAMINATION OF BLOOD IN ITS RELATION TO CRIMI-
NAL TRIALS, 561.

II. Murder,

9. DRUNKENNESS AS AN EXTENUATION IN CASES OF MURDER, 505.
10. Where it is shown that two or more persons acted in concert in the
commission of an alleged murder, it is competent for the state by proper tes-
timony to show, upon the separate trial of one, the motives which actuated
the others in the alleged homicide. Rufer v. The State, 120.

11. On a trial for murder it was competent to give evidence, for the pur-
pose of showing motive, that the prisoner and the deceased both visited the
same woman; that just after the homicide the prisoner said he had warned
deceased not to visit her, she would prove a curse to any man, and now it
had come to pass. McCue v. Commonwealth, 377.

12. Unless the Commonwealth shows "ingredients" of murder in the first
degree, no presumption arises from the killing that the offence is higher than
murder in the second degree. Id.

13. If the killing was not accidental, malice and a design to kill are to be
presumed from the use of a deadly weapon. Id.

14. Where upon a conviction of murder in the first degree the record does
not show that before sentence the prisoner was asked if he had anything to
say why sentence should not be pronounced, it is error, and the sentence will
be reversed and the record remitted, that he may be sentenced afresh. Id.
III. Assault and Battery.

15. To make it competent for a party complained of for assault and battery,
to show that the person assaulted was quarrelsome and fractious, he must
show that he had knowledge of such fact. State v. Meader, 55.

16. A party assaulted in such a way as to induce in him a reasonable belief

CRIMINAL LAW.

that he is in danger of losing his life, will be justified in defending himself.
Roach v. The People, 441.

IV. False Pretence.

17. Where a loan is induced by the fraud of the borrower, and the lender
delivers certain bank bills without any expectation that the same bills will
be returned in payment, the borrower is guilty of obtaining money by false
pretences, but not of larceny. Kellogg v. The State, 499.

CUSTOM. See USAGE.

DAMAGES. See ACTION, 2; FERRY, 3; MALICIOUS PROSECUTION, 3-5;
MASTER AND SERVANT, 1; NEGLIGENCE, 1-5; TROVER, 4.

1. Municipal corporations are not liable to vindictive or exemplary damages
for personal injuries growing out of mere neglect to keep a sidewalk in a safe
condition. Chicago v. Kelly, 249.

2. Where a person, on the commission of a wrongful act, becomes liable
only in consequence of his subsequent approval or sanction of it, he will be
liable only for the real injury sustained, and will not be subject to vindictive
damages. Grund v. Van Vleck, 249.

3. Exemplary or punitive damages in tort can only be recovered where the
injury is the result of wilful misconduct, or a conscious indifference to con-
sequences. Milwaukee & St. Paul Railroad Co. v. Arms, 553.

4. In no case has a plaintiff any legal right to exemplary damages. Such
damages depend upon the case and the evidence and the finding of the jury.
Jerome v. Smith, 687.

5. Where the plaintiff, in pursuance of an agreement with the defendant,
furnished the materials and constructed a carriage for the defendant, in ac-
cordance with his order and directions, for which a stipulated price was to be
paid, and the defendant refused to receive and pay for it when completed and
tendered: Held, that in an action brought for that purpose, the plaintiff is
entitled to recover the contract price and interest from the time the money
should have been paid. Shawhan v. Van Nest, 153.

6. The subject of damages in such case discussed. Id., note, 160,
DEBTOR AND CREDITOR. See APPLICATION OF PAYMENTS; EQUITY, 4, 5.
I. Assignments.

1. In case of an assignment of choses in action for the benefit of creditors,
the law of the domicile of the assignor determines what is a sufficient transfer
to authorize the assignee to collect the same. Fuller v. Steiglitz, 742.

2. An assignee is a trustee for all creditors whether secured or not. Meily's
Appeal, 618.

II. Fraudulent Conveyances or Sales. See HUSBAND AND WIFE, 16–19.

3. A sale of goods is fraudulent as to creditors, where possession is retained
by the vendor. Cutting v. Jackson, 681.

4. Nor does it alter the case that the sale was made in the presence of a
witness, where it was not attended with such publicity as would naturally
give notoriety to the transaction.

Id.

5. Upon the sale of a chattel a reservation that the vendor should still have
the right to use the thing sold constitutes a secret trust, from which fraud as
to the creditors of the vendor is an inference of law. Lang v. Stockwell, 121.

6. The assignment of a collateral security to a creditor establishes a privity
of contract, which invests him with the ownership of the collateral for all
purposes of dominion of the debts assigned. Hanna v. Holton, 441.

7. When the collateral is lost by the insolvency of the debtor in it, through
the supine negligence of the creditor, he must account for the loss to his own
debtor. Id.

DEED. See BOUNDARY; EASEMENT, 8, 14.

1. A particular description in a deed will govern a general one. Fletcher
v. Clark, 742.

2. The conditions upon which an escrow is to be delivered to the grantee
may rest in parol. Campbell v. Thomas, 249.

DEED.

3. When the grantor still retains the right of control over the deed, it is
not an escrow. Campbell v. Thomas, 249.

4. A deed deposited by the grantor with a third person is not an escrow
unless there is a valid contract of sale between the grantor and grantee. Id.
5. There can be no delivery of a deed so long as it is within the control
and subject to the authority of the grantor. Duer v. James, 441.

6. The delivery may be to a third party authorized to receive it, and it may
be inferred from the words or acts of the party or both combined. Id.

7. On appeal from a decree reforming a deed on the ground of mistake, the
true construction of the deed is before the court, as well as the sufficiency of
the proof of the mistake. Fryer v. Patrick, 311.

8. The regularity of an acknowledgment taken before a reputable officer is
presumed, and the burden of showing forgery or other irregularity is with the
party contesting the acknowledgment. Hourtienne v. Schnoor, 373.
DISTILLED SPIRITS.

1. The offence of failing to efface and obliterate the stamps required by law
to be upon a package of distilled spirits at the time of emptying the package
is complete without any intent to defraud, or any purpose to violate the law.
United States v. Adler, 45.

2. If a person causes a package of distilled spirits to be emptied, it is a
personal duty resting upon him to see that the stamps are effaced, and this
duty cannot be shifted from himself by directing another to do the same for
him. Id.

DIVORCE. See HUSBAND AND WIFE, I.

DOG.

At common law an owner of a dog must have knowledge of its vicious
propensities to be liable for its acts. Slinger v. Hennsman, 186.

DOWER. See HUSBAND AND WIFE, II.

DRAFT. See BILLS AND NOTES, 19-21; BILL OF LADING.

1. A promise extorted by terror or violence, whether on the part of the
person to whom the promise or obligation is made or that of his agent, may
be avoided on the ground of duress. Bush v. Brown, 55.

2. If a party execute an instrument from a well-grounded fear of illegal
imprisonment, he may avoid it on the ground of duress. Id.

3. A sale made through fear of arrest on a writ of trover may be avoided,
and it is not necessary to offer to rescind. Brownell v. Talcott, 55.
EASEMENT.

1. The English doctrine of presumptive title to light and air, arising from
the uninterrupted enjoyment of it for twenty years and upward, was part of
the common law of England and of the colonies at the period of American
independence, and as such continued to be the law of Delaware. Clawson v.
Primrose, 6.

2. How far the common-law rule in regard to ancient lights has been
adopted in the United States, discussed. Id., note.

3. A court of equity will restrain the obstruction of lights by erections on
adjoining land, even where the right is unquestioned or established, only when
the privation of light and air by a proposed erection will be in such degree
as to render the occupation of the complainant's house uncomfortable, if it be
a dwelling-house, or if it be a place of business the privation must render the
exercise of the business materially less beneficial than it had formerly been. Id.
4. A fair test of what is such a privation of light, &c., is the fact that a
jury would give substantial and not merely nominal damages. Id.

5. Where a common owner of two tenements, the windows of one of which
overlook the yard of the other, and receive light and air therefrom, its shutters
swing out over such yard, and access from its fire-escapes which overhang the
yard being had to such yard, severs the same by conveyances to different