chattel, or personal security, to buy, sell, hold, and transfer notes and
other securities, and evidences of indebtedness, to make contracts,
acquire and transfer property, in like manner as private individuals,
has power to accept stock in another corporation as collateral secu
rity for signing a note on which the corporation obtains money.
(Calumet Paper Co. v. Stotts Investment Co., 362.)
7. CORPORATIONS-SALE OF STOCK TO ANOTHER COR-
PORATION-RIGHT OF STOCKHOLDER TO ANNUL.-A sale of
all its assets and stock by one corporation to another, the purchase
price being stock in the latter, may be set aside and annulled by a
stockholder in the former corporation who has not assented to, par-
ticipated in, nor ratified such sale. (Elyton Land Co. v. Dowdell,
105.)
8. CORPORATIONS-RIGHT TO TAKE STOCK IN ANOTHER
CORPORATION.-A corporation authorized by its charter "to take
stock" in other corporations has no power to effect its own dissolu-
tion by sale of all of its assets, and to take the stock of another
corporation in payment therefor and for distribution to its share-
holders, or to any shareholder, without his consent and contrary to
his preference, as he cannot be required arbitrarily to accept any.
thing but money. (Elyton Land Co. v. Dowdell, 105.)
9. CORPORATIONS-SUCCESSION-STATUTE OF FRAUDS.
If, after curing defects in its organization, a de jure corporation takes
all the property and assumes all the liabilities of the de facto organi.
zation, the transaction is not within the statute of frauds. (Calumet
Paper Co. v. Stotts Investment Co., 362.)
10. CORPORATIONS-LIABILITY OF NEW, FOR DEBTS OF
OLD.- In the absence of a special agreement, a newly organized cor-
poration is not answerable for the debts of an old corporation or firm,
to whose business and property it has succeeded, unless it affirma-
tively appears, from the pleadings and proofs, that the transfer of
the property and franchise amounts to a fraud upon the creditors of
the old corporation, or the circumstances attending the creation of
the new corporation, and its succession to the business, franchise, and
property of the old corporation, are such as to warrant a finding that
it is a mere continuation of the old corporation under a different
name. (Austin v. Tecumseh Nat. Bk., 543.)
11. CORPORATIONS, PREFERENCES BY INSOLVENT.-An in-
solvent corporation which has ceased to do the business for which it
was created cannot so dispose of its assets as to deprive creditors of
the fair and just distribution thereof. (Fowler v. Bell, 787.)
2. FOREIGN CORPORATION, MORTGAGE OF INTENDED
AS A PREFERENCE.-A mortgage made by a foreign corporation
while insolvent and after it has ceased to do business cannot be
enforced or foreclosed against property in this state, nor can the
judgment of foreclosure be sustained on the ground that the de-
fendant has acquired such title as he has under proceedings which,
if sustained, will prevent a fair and just distribution of the prop-
erty of such corporation situate within this state among its credit-
ors. (Fowler v. Bell, 787.)
13. FOREIGN CORPORATIONS, PREFERENCE BY.-If the
laws of the state do not permit its domestic corporations which are
nsolvent and have ceased doing business to prefer one of their
creditors, such preferences made by an insolvent foreign corporation,
though valid in the state where made and where the corporation
has its domicile, will not be permitted to operate in this state upon
property here situated because upon such insolvency the property be-
came a trust fund for the benefit of the creditors of such corporation.
(Fowler v. Bell, 787.)
14. CORPORATIONS, UNLAWFUL PREFERENCES.-A Judg
ment confessed by an insolvent corporation in favor of a creditor
who loaned it moneys, knowing that they were to be used to pur-
chase its own stock, is an unlawful preference, and will not be per-
mitted to prejudice the rights of other creditors. (Adams etc. Co. v.
Deyette, 751.)
15. INSOLVENT CORPORATIONS, PREFERENCES BY.-A
judgment confessed by an insolvent corporation with a view to giv
ing a preference to one of its directors is not enforceable as against
its other creditors. (Adams etc. Co. v. Deyette, 751.)
16. CORPORATIONS — INJUNCTION — MINORITY STOCK
HOLDER, WHEN ENTITLED TO.-A minority stockholder in a
corporation, who cannot obtain redress through the directors or
stockholders for a corporate wrong of the directors in voting to the
corporate officers unreasonable and exorbitant salaries, is entitled
to an injunction to restrain and correct such wrong. (Decatur Min-
eral Land Co. v. Palm, 140.)
17. CORPORATIONS—INJUNCTION TO PREVENT ABUSES-
ATTORNEY'S FEE.-If, in a suit by a minority of the stock-
holders of a corporation to prevent mismanagement of the corporate
business, and for an injunction to prevent the payment of unreason-
able and exorbitant claims held by its officers for their salaries,
and to restrain the directors from voting excessive salaries to such
officers, the relief prayed for by injunction is granted, the complain-
ants are entitled to recover a reasonable attorney's fee to be paid
by the corporation, but the amount of such fee must be determined
from the evidence, and the court cannot take judicial knowledge of
the value of the services rendered by such attorney. (Decatur Min-
eral Land Co. v. Palm, 140.)
18. CORPORATIONS - ACTION BY MINORITY STOCK-
HOLDER TO REDRESS CORPORATE WRONG-WHAT FACTS
MUST BE SHOWN.-To entitle a stockholder in a corporation to
maintain an action against it in his own name to redress corporate
wrongs he must show by his complaint to the satisfaction of the
court that he has sought within the corporation redress of the
wrongs alleged, that he has requested the managers or directors to
redress such wrongs, and, failing with them, has applied to the
stockholders for relief, or, if he has not sought redress within the
corporation, he must, with particularity and definiteness, allege
facts which constitute a satisfactory excuse therefor; otherwise, his
complaint is subject to demurrer. (Decatur Mineral Land Co. v.
Palm, 140.)
19. CORPORATIONS-UNPAID STOCK SUBSCRIPTIONS—LIA-
BILITY. A person sued for unpaid stock subscriptions in a corpora
tion, who is a stockholder at the time that the action is commenced.
cannot defend on the ground that the plaintiff became a creditor of
the corporation after the defendant acquired such stock. (Calumet
Paper Co. v. Stotts Investment Co., 362.)
20. CORPORATIONS - UNPAID STOCK SUBSCRIPTIONS-
LIABILITY.-If a person holds unpaid stock in an insolvent cor-
poration as collateral security for a loan, it is not necessary to
prove that he subscribed for the stock, in order to hold him liable
for the subscription. (Calumet Paper Co. v. Stotts Investment Co.,
362.)
21. FOREIGN CORPORATIONS-COMITY.-A foreign corpora-
tion will not be permitted to exercise within the state powers which a
domestic corporation is not by law allowed to exercise under the
same circumstances. (Fowler v. Bell, 787.)
22. CORPORATIONS.-WHERE THE SERVICE OF PROCon
ON A FOREIGN CORPORATION may be made upon its agent, it is
sufficient to constitute one such agent that he conducted the transac
tion out of which the action arose, and, if the corporation is a foreign
Insurance company, service may be made on its local agent who had
authority to issue policies, collect premiums, pay losses, etc. (Pol-
lock v. Building etc. Assn., 695.)
23. CORPORATION, FOREIGN, SERVICE OF PROCESS UPON.
In South Carolina, service of summons may be made on a foreign
corporation, when it has property within the state, or when the cause
of action arose therein, by delivering such summons to any of its
resident agents, and, where the corporation has held out a person as
its agent, it will not, for the purpose of avoiding service of process
made upon him, be permitted to prove that he was not its agent, or,
though its agent, that his powers were special and not such as to
Justify the service of process upon him. (Pollock v. Building etc.
Assn., 695.)
24. CORPORATION, FOREIGN, APPOINTMENT OF RECEIV-
ER FOR, WHETHER TERMINATES RIGHT TO SERVE PRO-
CESS UPON AGENT.—The appointment of a receiver of the assets
of a corporation within the state of its residence does not terminate
the authority of an agent of the corporation resident in this state.
Therefore, summons issued here against the corporation may be
served upon such agent after, as well as before, such appointment.
(Pollock v. Building etc. Assn., 695.)
25. CORPORATIONS, STOCKHOLDERS' LIABILITY, WHEN
ATTACHES-LIMITATIONS.-The liability of the stockholders in
a savings bank to its depositors is incurred at the time of each de-
posit, and expires by the statutes of California at the end of three
years. (Wells v. Black, 162.)
26. CORPORATIONS JUDGMENT AGAINST PRESUMP-
TION.-If, after an abortive attempt to incorporate, a de facto cor.
poration becomes indebted, and subsequently cures the defects in its
organization, after which a creditor obtains judgment against it on
such indebtedness, it must be presumed that he obtained judgment
against the de jure corporation. (Calumet Paper Co. v. Stotts In-
vestment Co., 362.)
27. CORPORATIONS-ESTOPPEL TO DENY EXISTENCE OF—
PARTNERSHIP OR INDIVIDUAL LIABILITY.—If a party deals
with a company as a corporation, though it is imperfectly organized,
sues upon notes made by it, and recovers judgment thereon, he is
afterward precluded, in an action upon the same indebtedness, from
assailing the existence of the corporation, and insisting upon a part-
nership or individual liability of its members. (Nebraska Nat. Bk.
v. Ferguson, 522.)
See Agency, 2, 10, 11; Attachment, 4: Banks and Banking, 4, 5; Li-
bel, 1, 2; Mandamus, 1; Master and Servant, 7.
A COTENANT MAY RECOVER, IN AN ACTION OF EJECT-
MENT, the whole of the property of the cotenancy as against one
in possession thereof without title. (Brady v. Krueger, 771.)
COUNTERCLAIM.
See Setoff.
1. CERTIORARI.-An order of a court of probate depriving a
guardian of the custody of moneys of his ward and directing that
they be withdrawn from a bank in which they are on deposit only
when authorized by the court, is in excess of its jurisdiction, and
may, therefore, be vacated on certiorari. (De Greayer v. Superior
Court, 220.)
2. GUARDIAN OR ADMINISTRATOR, RIGHT OF TO CUS-
TODY OF ASSETS.-An order of a court of probate that moneys
of a decedent or of a ward be held by a deposit company and paid
out only as authorized by the court is void, where the statute exacts
security from guardians and administrators, and gives them a right
to the exclusive possession and general care and management of the
estates committed to their charge. (De Greayer v. Superior Court,
220.)
COVENANT OF WARRANTY.
See Fraudulent Conveyances, 2.
CREDITOR'S SUIT.
CREDITOR'S BILL-INDIVIDUAL ASSETS OF PART-
NERS.-The proper remedy of a judgment creditor of a partnership
who desires to reach debts due to individual members of the arm is
a creditor's bill. (Siegel v. Schueck, 309.)
1. CRIMINAL LAW, CONSTITUTIONALITY OF.-An act can-
not be made criminal which the party committing cannot know in
advance whether it is criminal or not. Hence, the making of an un-
reasonable charge for services cannot be made criminal under a stat-
ute creating uo test of reasonableness in this respect. (Louisville
etc. R. R. Co. v. Commonwealth, 457.)
2. CRIMINAL LAW-BREACH OF THE PEACE QUESTION
FOR THE JURY.-It is not sufficient to justify the use of words
calculated to lead to a breach of the peace that there was some
provocation. The provocation must be sufficient, and whether it
was so or not is a question for the jury. (Dyer v. State, 228.)
3. CRIMINAL LAW, OFFENSE COMMITTED IN THE PRES-
ENCE OF AN OFFICER, WHAT IS NOT.-Though one has a con-
cealed weapon on his person in violation of law, he cannot be re-
garded as committing an offense in the presence of an officer where
his weapon is not seen, and could not be seen, by the latter except
by search of his person. (Pickett v. State, 226.)
1. DAMAGES, PRESUMPTION OF.--From the carrying away
of water from a spring upon the plaintiff's land damage to him is
presumed, though not expressly averred. (Metcalf v. Nelson, 746.)
2. DAMAGES-BREACH OF CONTRACT TO BUY GOODS.-
Upon a breach, by the buyer, of a contract to buy goods, the meas-
ure of damages is the difference between the contract price and the
market price of the goods at the time of the breach. (Murray v.
Doud, 297.)
3. DAMAGES, EXEMPLARY, DISCRETION OF JURY.-
Though, in an action for tort, the jury may, in their discretion, award
exemplary damages, it is not proper to instruct them that the plain-
tiff is entitled to such damages. The court cannot determine this
question, and can only instruct the jury to give such damages as
they think proper. (Robinson v. Superior etc. Ry. Co., 897.)
4. DAMAGES FOR ILLNESS, INSTRUCTION CONCERNING.
In an action to recover damages for being exposed to, and contract-
ing a contagious disease, an instruction that the plaintiff may re-
cover for loss of time while ill, her medical expenses, and for the
pain she has suffered in the past or may have to endure in the future,
but that, in order to assess damages for the future, the jury must be
satisfied to a reasonable extent, fron the evidence, that she will con-
tinue to suffer, is not erroneous. It does not justify the giving of
damages for the future which are not reasonably certain to result.
(Kliegel v. Aitken, 901.)
See Agency, 12, 13; Libel, 2; Railroad Companies, 10, 11; Setoff, 6;
Trespass; Vendor and Purchaser, 1.
DEBTOR AND CREDITOR.
See Suretyship, 4.
1. DEDICATION, OFFER OF CAN BE REVOKED.-If a land-
owner offers to dedicate certain lands as public streets or highways,
but they are never used as such and the dedication is never ac-
cepted, he may withdraw his offer. (Prescott v. Edwards, 186.)
2. DEDICATION OF LANDS TO PUBLIC USE.-The public
must be a party to every dedication. Therefore the platting of
lands, recording the plat, and selling lots by reference to it do not
constitute a dedication if the public does not accept it, and prior to
such acceptance the offer of dedication may be withdrawn. (Pres-
cott v. Edwards, 186.
3. STREETS, ESTOPPEL OF VENDOR TO DENY DEDICA
TION OF.-One who goes upon land with a surveyor, and, by
stakes marking boundary lines, divides it into small parcels, between
which he leaves strips, and to persons contemplating purchasing
states that such strips are streets, and who afterward sells and con-
veys such parcels, not including the streets, is estopped from deny.
ing as against his grantees and their successors in interest that the
lands included in such strips are streets. (Prescott v. Edwards, 186.)
1. DEEDS OF QUITCLAIM-PRIORITY.-A quitclaim deed
properly recorded, in favor of one who purchases in good faith and
without notice of a prior unrecorded conveyance, takes precedence
of such conveyance. (Schott v. Dosh, 531.)
2. ACKNOWLEDGMENT - MISTAKE IN CERTIFICATE —
VALIDITY OF DEED.—If a deed is actually signed, witnessed,
properly acknowledged and delivered, it passes the legal title, for
the validity of a conveyance does not depend upon whether it has
been recorded. Hence, the rights of a judgment creditor of the grant-
or are not affected by a mistake of the notary in taking the ac
knowledgment in one county but certifying, by mistake, that he is a
notary public of another county. (Roberts v. Robinson, 567.)
1. DEFINITIONS.-TO "LIQUIDATE" a balance means to pay
ft. (Austin v. Tecumseh Nat. Bank, 543.)
2. ACCIDENT-DEFINITION.-An accident is an unusual or un-
expected result attending the operation or performance of a usual or
necessary act or event. (Hey v. Guarantor's etc. Co., 644.)
"Disease" or "bodily infirmity." (Meyer v. Fidelity etc. Co., 374.)
"Filing a paper." (Hanover Fire Ins. Co. v. Schrader, 25.)
"Forcible entry." (Lewis v. State, 255.)
"Total loss." (Royal Ins. Co. v. McIntyre, 796.)
"Uncontrollable impulse." (Genz v. State, 619.)
1. WILLS-DEVISE WHEN NOT VOID FOR UNCERTAINTY.
A devise of the testator's property remaining after the payment of
his debts to his wife for her to dispose of and live on during her life
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