fraud, or from continuing to deal with the property as if no fraud ex-
isted. Id.
1. WHEN CORPORATION IS FORMED UNDER AUTHORITY OF STATE, CAPITAL
SUBSCRIBED BECOMES BASIS OF CREDIT, and the members of the corpo-
ration are not individually liable for its debts, except and only to the
extent that the charter or letters of incorporation may make them so.
Marshall Foundry Co. v. Killian, 539.
2. CAPITAL STOCK OF CORPORATION, INCLUDING UNPAID SUBSCRIPTIONS
THERETO, CONSTITUTE a trust fund for the benefit of the creditors of the
corporation, and the creditors have a right to examine into the action of
the corporation to see if the subscriptions have been paid, and how. Id.
3. EACH SUBSCRIBER FOR STOCK IN CORPORATION BECOMES LIABLE FOR THE
AMOUNT of stock subscribed by him, and he can only discharge this lia
bility by paying it, in money or money's worth, in the manner indicated
by the subscription and the charter and by-laws of the corporation.
Parol evidence is not admissible to vary the terms of subscription, or to
show a discharge from liability in any way other than that required by
the terms of subscription and the charter and by-laws. Id.
4. PERSONS WHO SUBSCRIBE TO STOCK AND PARTICIPATE IN IRREGULAR FOR-
MATION OF CORPORATION UNDER GUISE of the authority conferred by
statute constitute a corporation de facto, if not de jure; and having held
out inducements to the public to deal with and credit it upon the faith
of its chartered capital, they are liable at least to the extent of the capi
tal stock subscribed by them, and cannot evade that liability by any
secret arrangement entered into among themselves. Id.
5. ONE WHO PARTICIPATES IN ORGANIZING SUCH CORPORATION, AND WHO
ACTS AS ITS PRESIDENT, WAIVES all objection to the validity of its con-
stitution or organization, and as to him the provisions of its charter and
by-laws are binding. Id.
6. TRANSEREE OF STOCK IS NOT LIABLE FOR UNPAID BALANCE OF SUBSCRIP-
TION PRICE, where he holds as an innocent purchaser for value, without
actual notice of the fact that the stock was subject to future calls for
such unpaid balance. West Nashville P. Co. v. Nashville Sav. Bank, 835.
7. BOOM COMPANIES ARE QUASI PUBLIC CORPORATIONS intended to supply
facilities to the general public for the driving of logs. West Branch B.
Co. v. Lumber & L. Co., 766.
8. CHARTERS OF MOST PRIVATE CORPORATIONS ARE FOR PURPOSE OF
PRIVATE GAIN; but as they are intended also to subserve great public
interests, they should be so construed as not to defeat the purpose of
their creation. Id.
9. GENERAL PRINCIPLE IN CONSTUCTION OF STATUTES IS, that a proviso,
or saving clause, which is directly repugnant to the body of the act, will
not have effect to defeat the purpose of the enactment; but this principle
will not apply in the construction of the charters of private corpora
tions, where the matters contained in the saving clause are made and
intended to be made an essential condition of the enjoyment of the char-
ter. If private corporations accept charters under such circumstances,
they must enjoy their privileges subject to the conditions, or not enjoy
them at all.
10. THOUGH CHARTER OF PRIVATE CORPORATION IS TO BE STRICTLY
CONSTRUED, yet when the commonwealth has granted a public franchise,
a clause relative merely to the manner in which such franchise shall be
exercised will not be construed so as to defeat the grant. Id.
11. CONSTRUCTION TO BE GIVEN TO PROVISOS TO SECTIONS 2, 3, and 7,
act of March 29, 1849 (P. L. 245), incorporating the West Branch
Boom Company, must not be such as to defeat the grant itself, forbid.
ding the company to stop a mixed mass of logs for the shortest time
reasonably necessary, by the use of the utmost diligence and skill, tɔ
withdraw from that mass their own logs. And if, in the exercise of their
powers, they detain logs, and are in no way negligent, the special rem-
edy provided by section 3 of the act must be pursued. Id.
12. MERE INSOLVENCY IS NEVER SUFFICIENT EVIDENCE OF SURRENDER OF
CORPORATE RIGHTS. Dewey v. St. Albans T. Co., 84.
See CHARITIES; STATUTE OF LIMITATIONS, 1.
1. WHEN PLAINTIFF IS PREVAILING PARTY in a suit in equity, he should
recover costs, but this is in the discretion of the trial court, and will
not be disturbed, unless there has been an abuse of the discretion.
Turner v. Johnson, 62.
2 WHERE SUBSTANTIAL ISSUES are found for both parties, the taxation
of costs rests in the discretion of the courts, and will not be disturbed,
unless there has been a clear abuse of discretion. Id.
8. PLAINTIFF, ANd not DefendaNT, MUST PAY COSTS in a suit to redeem from
a mortgagee's possession, and this though he succeeds, unless defendant
is guilty of fraud in his defense. Id.
1. ADVERSE POSSESSION. IF ONE TENANT IN COMMON CONVEYS WHOLE
ESTATE IN FEE, and his grantee enters and claims and holds the ex-
clusive possession, the conveyance and entry and possession must
be deemed adverse to the title and possession of the co-tenant, and
amount to a disseisin; and such possession, if continued for twenty years,
will bar the title of such co-tenant. The conveyance in fee, and entry
under it, and possession, are notorious and unequivocal acts of owner-
ship, of such a nature as to give notice to the co-tenant that the entry
and possession are hostile and adverse to his title. Rutter v. Small, 434.
2. PAROL PARTITION BETWEEN TENANTS IN COMMON, followed by possession,
is sufficient to sever the possession, but the equitable title only passes
which by adverse possession may ripen into a legal title. Nave v.
Smith, 79.
3. CO-TENANT IN POSSESSION UNDER PAROL PARTITION may defend such pos-
session, control the legal title, and compel its transfer to him. Id.
4. WHERE AFTER PAROL PARTITION one tenant with the consent of his
co-tenant disregards such partition and executes a mortgage on the un-
divided one half of the land, this is a revocation of such partition as
between the parties to the mortgage. Id.
5. WHERE CO-TENANT'S ATTACHING CREDITORS DISREGARD PAROL PARTI
TION and prosecute their suit, and buy the land as the undivided one
half of such co-tenant, and then recognize a party holding under
the other co-tenant as the owner of the other one undivided half of the
land, they cannot elect to affirm the parol partition, and thus defeat the
title of the party recognized by them as their co-tenant. Id.
6. AS BETWEEN TENANTS IN COMMON, STATUTE OF LIMITATIONS does not run
when there is no adverse possession. Id.
7. EITHER OF TWO TENANTS IN COMMON MAY RELEASE OR COLLECT A CLAIM
FOR DAMAGES for trespass upon the estate; such damages are common
to both estates, and belong to them jointly. Hodges v. Heal, 199.
PLAINTIFY WHO SUES TWO DEFENDANTS CANNOT DENY COUNTERCLAIM on
the ground that it did not accrue to both, when he has always treated
the deal as with both. Drew v. Edmunds, 122.
1. DEED TO PLAINTIFF UNDER WHICH HE CLAIMS THAT COVENANT OF
WARRANTY CAME TO HIM is admissible in evidence in an action for
the breach of such covenant, to show an assignment of the land to him.
Tillotson v. Prichard, 95.
2. LEX LOCI REI SITE GOVERNS IN ACTION FOR BREACH OF COVENANT OF
WARRANTY. In an action for breach of covenant of warranty, where
the grantor resides in Vermont, the grantee in New Hampshire, and the
land is situated in Minnesota, the construction and force of the contract,
including the rule as to damages, must be governed by the law of Minne-
sota. And if the referee fails to find what the law of Minnesota is, the
supreme court of Vermont will decline to presume that the law of Min-
nesota is the same as that of Vermont, but will recommit the case to the
court below to determine the damages according to the rule in Minne-
sota. Id.
8. DECLARATION WHICH COUNTS ON COVENANTS OF SEISIN AND RIGHT TO
CONVEY MAY BE AMENDED by adding a count upon the covenant of war-
ranty, and such amendment may be made after the evidence has been
heard by the referee. Id.
4. COVENANT OF WARRANTY RUNS WITH LAND AS INCIDENT TO IT, notwith-
standing the grantor had neither title nor possession, if the grantee has
had possession; and a grantee holding under mesne conveyances, who is
evicted, may maintain an action upon such covenant. Id.
5. ACTION FOR BREACH OF COVENANT OF WARRANTY IS TRANSITORY by the
Vermont statute; and the courts of that state, when the grantor resides
there, have jurisdiction of such action, although the land is in another
state. Id.
6. DECLARATIONS OF EVICTOR AND OF HIS WORKMEN ON LAND ARE EVIDENCE
to show an eviction. Id.
CREDITORS' BILLS.
See EQUITY, 9, 10.
1. INDICTMENT FOLLOWING LANGUAGE OF STATUTE IS GENERALLY SUFFI
CIENT; and where the statute makes the exclusion of persons from certain
privileges an offense, the circumstances constituting the offense need not
be particularly averred. People v. King, 389.
2. INDICTMENT FOR EXCLUDING COLORED MEN FROM A SKATING RINK 13
SUPPORTED BY EVIDENCE OF REFUSAL TO SELL THEM TICKETS, with-
out which they would not be admitted. Id.
3. JEOPARDY WITHIN MEANING OF PROVISION OF PENNSYLVANIA CONSTITU.
TION, article 1, section 10, that "no person shall for the same offense be
twice put in jeopardy of life and limb," is the peril in which a defend-
ant is put when he is regularly charged with crime before a tribunal
properly organized, and competent to try him. From this jeopardy he
is to be relieved, if relieved at all, by the verdict of the jury. Common-
wealth v. Fitzpatrick, 757.
4. PLEA OF FORMER CONVICTION MUST BE SPECIAL, and for its support it
is necessary to show the legal conviction of the defendant, on an
indictment free from error, in a court having jurisdiction, and also
the identity of the person convicted, and of the offense of which he was
convicted. If such a plea is general, vague, and uncertain, is supported
only by proof equally uncertain, and the former indictment upon which
the defendant was alleged to have been convicted does not appear in the
record, it should be overruled. Daniels v. State, 238.
ALTHOUGH CONFESSION INDUCED BY THREATS IS NOT EVIDENCE, yet if it be
attended by extraneous facts which show that it is true, any such facts
thus developed, which go to prove the crime of which the defendant was
suspected, will be received as testimony; and if such confession be proved
true by the discovery to which it leads, it will be admissible; in case of
larceny, however, the property must be identified by other evidence as
that which was actually stolen. Id.
6. EVIDENCE AS TO TEMPERAMENT, DISPOSITION, AND CONDITION OF MIND
of the defendant is not admissible on the trial of an indictment for mur.
der, where insanity at the time of the homicide is not set up as a plea.
Jacobs v. Commonwealth, 802.
7. REQUEST FOR INSTRUCTIONS may, under the North Carolina code, section
415, be disregarded by the judge, where they are not put in writing and
signed. State v. Horton, 613.
8. IN CAPITAL CASE, COURT HAS NO POWER TO DISCHARGE JURY after the
commencement of the trial, without the consent of the prisoner, unless
an absolute necessity requires it. Mere inability of the jury to agree
within a few hours or days is not such a necessity; nor is the fact that
the regular term is approaching an end, for the courts have power to
continue the term until the case can be properly ended. Commonwealth
v. Fitzpatrick, 757.
9. ONE WHO ENTERS OPEN OUTER DOOR of Building, AND BREAKS OPEN
INNER DOORS with intent to steal, may be convicted of burglary. Dan-
iels v. State, 238.
10. INCEST MAY BE COMMITTED WITH ONE'S ILLEGITIMATE CHILD. That the
victim of the crime was born out of wedlock constitutes no defense un-
der section 302 of the Penal Code of New York. People v. Lake, 344.
11. THERE IS NO VARIANCE BETWEEN INDICTMENT AND PROOF, when the crime
of incest is charged to have been committed with Georgiana Lake, whose
full name is shown to be Georgiana Jeanette Lake. Id.
12. EVIDENCE. IN LARCENY, the intent to steal by the taking is the grava-
men of the crime, and the defendant may testify as to the intent with
which the act is done, where such intent is material. State v. Williams, 46.
13. ID.-WHEN DEFENDANT IS ON TRIAL FOR LARCENY of a cow, he may tes-
tify that he purchased a due-bill on the owner of the cow, and having
been informed and believing that such owner would let the cow go on
such bill, he took her, thinking he had the right to do so, and with no
intent to steal. Id.
14. ACCESSARIES.—Where, in prosecution for an assault to kill, parties are
indicted as accessaries, they cannot be convicted unless there was a
common purpose, both in the mind of the principal and themselves, to
kill, and the assault was committed in an attempt to accomplish the com-
mon purpose, or unless it was made by the principal with the intent
to kill, of which such accessaries had knowledge, and committed some
act in furtherance of the attempt mentioned. State v. Hickam, 54.
15. Assault, FORCE NECESSARY TO REPEL.-Where party assaulted be
lieves, and has good reason to believe, that great bodily harm is about
to be done him, and acts in a moment of seeming impending peril, he
need not nicely gauge the quantum of force necessary to repel the assault;
but in such case, when the plea of self-defense is set up, the question
is, whether, under all the circumstances, the accused had reason to be-
lieve, and did believe, that the force exercised was necessary to protect
him from impending danger of great bodily harm. Id.
16. ASSAULT TO KILL-ERRONEOUS CHARGE. - Where accused is on trial
for an assault to kill, and pleads self-defense, a charge which instructs
that if defendant made the assault charged with a pistol he must show
that he made it under circumstances which justified it, is erroneous, for
the reason that it casts the burden of proof on defendant, requires a
higher degree of proof than the law demands, and submits a question of
law to the jury as to what facts would justify the assault. Id.
17. ASSAULT TO KILL-PROOF TO ESTABLISH.-In trial of an assault with
intent to kill, where the plea of self-defense is interposed, the state must
establish, not only by a preponderance of evidence, but beyond a rea-
sonable doubt, that the assault was committed with intent to kill, in
malice, and under such circumstances as not to be justifiable as self-
defense. Id.
18. ASSAULT TO KILL-ERRONEOUS INSTRUCTION. - In trial for an assault
with intent to kill, where the plea of self-defense is set up, it is error to
instruct the jury to find a verdict of guilty unless the accused showed
some satisfactory grounds for making the assault, as it leaves them to
determine what facts would satisfy the law and constitute a good defense,
a question which they are not competent to determine. Id.
19. ASSAULT TO KILL-REASONABLE DOUBT. — Where defendant, on trial
for assault to kill, pleads self-defense, an instruction that, upon the
facts stated, the jury must find defendant guilty unless they have a
reasonable doubt of defendant's guilt, and if so, they must give him the
benefit of the doubt, but not telling in what way or to what extent,
is erroneous. They must be told that if they entertain such doubt, it
is their duty to acquit. Id.
20. ASSAULT TO KILL-DEFENSE OF RELATIVE. When the accused finds
his mother and sister engaged in a difficulty with others, he has a right
to interfere in defense of his mother, and whether any act he does
afterwards can be justified on the ground of self-defense depends on the
motive prompting the act, and the circumstances under which it was
done, and not as to whether he voluntarily entered into the difficulty.
Id.
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