duties undertaken by one of the parties so contracting. Marvel v.
Phillips, 370.
6. ONE SEEKING TO DISAFFIRM A CONTRACT SOLELY BECAUSE OF HIS TEMPO.
BARY INCAPACITY when he made it, such incapacity being entirely
unknown to the other party, must not retain the fruits of his contract.
Gibson v. Western New York etc. R. R. Co., 586.
See CUSTOM; INSANE PERSONS, 7.
CONTRIBUTION.
See SURETYSHIP, 3
CONTRIBUTORY NEGLIGENCE
See MASTER And Servant, 23.
See TRESPASS, 1; Vendor and Purchaser.
1. ORGANIZATION OF.-If corporate powers are granted by private statute
there must be evidence of acceptance by the corporators and a compli⚫
ance with all conditions precedent prescribed by law, in order to show
affirmatively that the corporation is lawfully organized; but, if the cor-
poration is formed under a general law, the signing and recording of
articles of agreement by the corporators constitute them a body politic
for the purposes set forth in such agreement. Benbow v. Cook, 454.
2. FORMATION OF.-Private corporations are formed when the necessary
contractual relations are created between the persons clothed by law
with the powers of a body politic. Benbow v. Cook, 454.
8. MEETINGS-NOTICE-PRESUMPTION.-Minutes of the proceedings of a
meeting of the stockholders of a corporation raise a presumption that
due notice thereof was given, and that its proceedings wore regular
and lawful. Benbow v. Cook, 454.
4. MEETING OF-WAIVER OF NOTICE.-Strict statutory requirements as
to notice of a meeting of stockholders of a corporation, being intended
for their protection, may be waived by them, and, if waived, the meet-
ing and all its proceedings are as valid as if full statutory notice had
been given.-Benbow v. Cook, 454.
5. MEETINGS RATIFICATION OF PROCEEDINGSs.- Although a meeting of
the stockholders of a corporation for the purpose of organizing the
corporation, or for any other purpose, is not called in the manner pre-
scribed by law or the by-laws of the company, the action of the meeting
is valid if every stockholder who did not participate in the meeting
ratified its action afterward. Benbow v. Cook, 454.
6. ORGANIZATION-MEETING FOR-NOTICE OF.-If all of the stockholders
expressly assent to a call for a meeting of stockholders to organize a
corporation, participate in such meeting, and acquiesce in its action, it
is a valid meeting, although express notice was not given to each
stockholder as by statute provided. Benbow v. Cook, 454.
7. FORMATION.-If persons associate themselves together as a corporation,
under statutory authority, and take all the subsequent steps neces-
sary to perfect it, the original subscribers become members of the oor-
poration and liable to assessment upon their subscriptions. Windsor
Electric Light Co. v. Tandy, 838.
& LIABILITY ON SUBSCRIPTION FOR SHARES.-One who subscribes to the
capital stock of a corporation is liable for an assessment upon his sub-
scription without an express promise on his part, as he, by the act of
subscription, impliedly promises to pay any legal assessment upon the
shares subscribed for. The remedy by forfeiture and sale, as provided
by statute, is merely cumulative. Windsor Electric Light Co. v. Tandy,
838.
SUBSCRIPTION TO STOCK-RIGHT TO Repudiate.—A person fraudulently
induced by an agent or promoter of a corporation to subscribe to its
capital stock may at his option repudiate the contract, and the fraud
may consist as well in the suppression of what is true as in the repre-
entation of what is false. Virginia Land Co. v. Haupt, 939.
10. SUBSCRIPTION TO STOCK-WAIVER OF RIGHT TO REPUDIATE — Tho
right to repudiate a subscription to the capital stock of a corporation
induced by the fraud of its promoter is not waived by the fact that the
subscriber has given the promoter a proxy to represent him at the first
meeting of stockholders, at which the fraud inducing the subscription
is for the first time disclosed. The subscriber cannot be affected by
notice to the promoter of what the latter knew from the beginning and
did not disclose. Virginia Land Co. v. Haupt, 939.
11. STOCK SUBSCRIPTION - REPUDIATION OF FOR FRAUD-NOTICE-LACHES
-Burden of PROOF.-Laches, as a bar to a subscriber's right to repu-
diate his subscription to the capital stock of a corporation for fraud,
begins to run only from the time when the subscriber is first charge-
able with notice that a fraud has been perpetrated upon him. Mere
suspicions or random statements heard in public or in stockholders'
meetings do not necessarily constitute notice; but, after a subscriber's
suspicions are reasonably aroused, it is his duty to investigate at once,
and the burden of proof is upon the corporation to show notice and
laches on the part of the subscriber. Virginia Land Co. v. Haupt, 939.
12 FORFEITURE OF STOCK.—If the articles of association of a corporation
declare that its directors shall have authority to make a requisition
for installments upon shares by giving a thirty days' notice in news-
papers published in the cities of Philadelphia and Detroit, and after
such time that the directors may forfeit the stock of all parties
failing to pay such installments, a forfeiture based upon a publication
of such notice in one only of such cities is void. Until thirty days after
the publication in both places no installment can become due, and
hence no stockholder could be in default for not making payment.
Morris v. Metalline Land Co., 614.
13. A POWER GIVEN TO FORFEIT STOCK MUST BE STRICTLY PURSUED,
and, if any restrictions or limitations imposed by the charter of the
corporation have been disregarded, the alleged act of forfeiture must
be declared invalid. Morris v. Metalline Land Co., 614.
14 FORFEITURE OF STOCK. THE MERE INACTION OF STOCKHOLDERS
whose shares have been subjected to a void declaration of forfeiture
does not estop them from resisting such forfeiture, nor from assert-
ing their ownership of the stock, where the forfeiture was for a
default in the payment of installments which had not in fact become
due, because of the failure to publish the notice requiring payment in
the manner stipulated in the articles of association, and the corporation
was not one requiring continuous contributions from its members to
sustain either its existence or its business. Morris v. Metalline Land
Co., 614.
15. STOCK DIVIDENDS.-Ordinarily a dividend declared in stock is to be
deemed capital, and a dividend in mouey is to be deemed income,
Thomas v. Greyg, 310.
16. STOCK DIVIDENDS, APPORTIONMENT OF. If it appears that a stock
dividend has been declared, resulting from the net earnings of a cor-
poration during a time specified, for a portion of which time a life
estate existed in respect to the stock upon which the dividend is de-
clared, the court should ascertain the amount of the net earnings em
braced within the period of the life estate, and award to the tenant
thereof such amount, and the balance to the remaindermen. Thomas
v. Gregg, 310.
17. REMAINDERMEN AND TENANT FOR LIFE-STOCK DIVIDENDS.—If a resolu-
tion of a corporation making a dividend in stock declares that the amount
distributed is a part of the net earnings and income of such corporation
received for the fiscal years therein designated, and that the directors
therefore resolve that a dividend of a designated per cent be declared
upon the common stock, payable in common stock of the company, such
dividend must be regarded as the property of a person who was, during
the time the earnings accrued, a tenant for life of the stock upon which
the dividend was declared, and not the property of the remaindermen.
Thomas v. Gregg, 310.
18. REMAINDERMEN AND TENANT FOR LIFE-STOCK DIVIDENDS.-When it
is possible for the court to ascertain whether the distribution in a stock
dividend includes net earnings, and, if so, what proportion, and also
whether such earnings were intended to be made a part of the capital,
or merely to be used temporarily, with the intention on the part of
the directors of refunding them to the shareholders as income, the
court should make such investigations, and dispose of the stock in an
equitable way between the tenants for life and the remaindermen.
Thomas v. Gregg, 310.
19. REMAINDERMEN AND TENANT FOR LIFE-STOCK DIVIDENDS. -A divi-
dend, although declared in stock, is, if based on the earnings of the
corporation, in reality, by whatsoever name called, but the income of
the capital invested, and a mode of distributing the profits. Thomas
v. Gregg, 310.
20. EMPLOYEES - BY-LAWS AS NOTICE AND EVIDENCE.
dealing with a corporation is not bound to inquire into the by-laws
of such corporation to ascertain whether the officer or agent with
whom he is dealing has authority to act. Hence, if a corporation,
through its president, employs one as its agent by the year, and gives
him "absolute charge," it will not be allowed, after receiving such
agent's services for seventeen months, and then dismissing him for
cause, to prove, by its by-laws, in an action by the agent to recover a
balance of salary due, that the president had no authority to employ
any one by the year. Moyer v. East Shore Terminal Co., 709.
21. ESTOPPEL TO DISAVOW ACT OF AGENT.-A corporation is estopped to
disavow the act and authority of its agent in executing a mortgage on
its property if, with notice of its execution, the corporation takes no
eteps to disaffirm the act of such agent. On the contrary, such action
amounts to a ratification of the mortgage. Benbow v. Cook, 454.
22. RIGHT TO DISPOSE OF PROPERTY.-Private corporation may dispose of
its property without express statutory authority. Benbow v. Cook,
28. MORTGAGE DEED executed by a corporation on its property is not an
executory contract. Benbow v. Cook, 454.
MEETINGS- VALIDITY OF MORTGAGE. When all of the directors and
stockholders constituting the body corporate meet without notice, and
hold a corporation meeting, at which they agree to create an indebted-
Dess, and authorize the execution of a mortgage to secure it, their action
is valid and binding, and a failure to make a record of their proceedings
at that time does not affect the validity of their action provided a
record of such proceedings is made and sigued by them at another
time. Benbow v. Cook, 454
25. SEAL-PRESUMPTION.-A deed of a corporation reciting that it is sealed
with the corporation seal raises the presumption that what purports
to be such seal placed after the names of the corporate officers execut-
ing the deed is the seal of the corporation. Benbow v. Cook, 454.
26. CONSTITUTIONAL LAW-IMPAIRMENT OF VESTED CORPORATE RIGHTS.
The rights insured to private corporations by their charters, and the man-
ner of their exercise, are subject to such new regulations as from time
to time may be made by the state with a view to the public protection,
health, and safety, and in order to guard properly the rights of other
individuals and corporations. Virginia Development Co v. Crozer Iron
Co., 894.
See INTERVERTION, 2; LIENS, 5; Mandamus, 3–5; Statutes, 8; Taxes, 2, &
CORPUS DELICTI
See BURGLARY, 1.
COUNSEL'S ADDRESS
See NEW TRIAL, 3.
COUNTERCLAIM.
See CLOUD ON TITLE; SETOFT.
AMENDMENT OF RECORDS, ON What may be BaSED.—The amendment of a
judicial record after the lapse of a term solely upon the recollection of
a judge is not authorized, and will be reversed upon the appeal of the
person injured thereby. Boyd County v. Ross. 210.
1. STATE WHERE CRIME IS DEEMED COMMITTED.-One who while in one
state aims and fires a pistol at another, who at the time is in another
state, commits the offense in the latter state of "shooting at another,"
although the ball does not take effect, but misses and lodges in the lat-
ter state. Simpson v. State, 75.
2. STATE WHERE CRIME IS DEEMED COMMITTED-CONTRUCTIVE PRES.
ENCE.—The presence of the accused within a state is essential to make
his criminal act one which is done within that state. Such presence
need not be actual; it may be constructive. Simpson v. State, 75.
& STATE WHERE CRIME IS DEEMED COMMITTED.—A criminal act begun
in one state and completed in another renders the person who does the
act liable to indictment in the latter state. Simpson v. State, 75.
4. AGE OF DISCRETION-MENTAL CAPACITY.-Upon the trial of a boy be-
tween the ages of ten and fourteen years for any offense it is not error
to give in charge to the jury section 4294 of the code. That section re-
lates alone to mental capacity. Gordon v. State, 189.
5. INTOXICATION TO EXCUSE CRIME must be of such a degree as to render
the offender incapable of entertaining an intent to commit such crime.
If it falls short of this it is worthless as a defense. Warner v. State,
415.
6. ALIBI-INSTRUCTION.-The proof of an alibi in a criminal case is suffi.
cient when it satisfies the jury, with reasonable certainty, that the ac-
cused was not present when the crime was committed. Hence, it is error
justifying the granting of a new trial to charge: "The prisoner in this
case has attempted to set up an alibi. The court charges you that when
the defendant attempts to set up an alibi, that the burden of proof is
upon him to satisfy you beyond a reasonable doubt that the alibi is
true." Miles v. State, 140.
7. DEADLY WEAPON, WHAT IS.-The question whether an instrument with
which a personal injury is inflicted is a deadly weapon depends upon
the manner of its use, rather than upon the intrinsic character of the
instrument itself. State v. Norwood, 498.
See APPEAL, 10; BURGLARY; CONTEMPT, 4; EXTRADITION.
CROSSINGS.
See RAILROADS, 11-15.
See MARRIAGE AND DIVORCE, 7, 8; PARENT AND CHILD, 2
1. A USAGE INCONSISTENT WITH A CONTRACT cannot be given in evidence
to affect it. Baltimore Baseball Co. v. Pickett, 304.
2. A USAGE to be admissible must be proved to be known to the parties, or
to be so general and well established that knowledge and adoption of
it may be presumed, and it must be certain and uniform. Baltimore
Baseball Club v. Pickett, 304.
3. A CUSTOM OR USAGE WILL NOT BE PERMITTED TO VARY THE TERMS OF A
SPECIAL CONTRACT. Hence, if a contract is entered into by which one
person employs another for a stated period, the employer cannot justify
his discharge of the employee on the ground that a custom existed in
the business giving him the right to cancel the contract on ten days'
notice that the employee was deficient in his work. Baltimore Baseball
Club v. Pickett, 304.
4. GENERAL USAGE, WHEN NOT A PROPER SUBJECT OF PLEADING AND
PROOF.-Evidence as to the existence of a general usage will not be re-
ceived for the purpose of giving meaning to language and abbreviations
employed in an assessment-roll. Power v. Bouille, 511.
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