Foreclosure ment of debt. Presumption as to pay- statute, and that under the Iowa statute and de- 22. The mere fact that a chattel mortgage given to secure a promissory note has been fore closed, nothing appearing as to the value of the property mortgaged, or what was realized from the foreclosure sale, does not raise the presump tion that the property sold for enough to pay the debt and costs, and that the proceeds extinguished the debt.-Baker v. Baker, (S. D.) 49 N. W. 1064. Civil Damage Laws. See Intoxicating Liquors, 9-14. Claim and Delivery. CONFLICT OF LAWS. Recovery for personal injuries. 1. In an action brought in Minnesota by a sectionman on defendant's railroad for personal injuries, it appeared that, while engaged on a train of flat-cars in throwing off railroad iron along defendant's track in Iowa, for repairing it, he was injured by the negligent handling of the iron by the other sectionmen. Held, that the statute of Iowa, and decisions of the courts of that state construing it, must fix defendant's liability, without regard to the decisions of the supreme court of Minnesota construing a similar 2. In the absence of proof of the statutes of a sister state, the common-law rule will be applied in determining the legality of contracts made in that state. -Mohr v. Miesen, (Minn.) 49 N. W. 862. Interest. 3. A note dated at S. was in fact made and delivered in New York. The maker was a resident of S. and the payee of New York. The note provided for interest at 7 per cent., which is usurious in New York. There was no evidence as to where the indebtedness was incurred, or where the consideration for which the note was given passed. Held, that from the date on the note it would be presumed that it was to be paid at S., and that, under the rule that a contract is governed by the law of the place of performance, the note would be valid under the law of Iowa authorizing that rate of interest. - Bigelow v. Burnham, (Iowa,) 49 N. W. 104. 4. A note was dated, executed, and made payable in Wyoming, by a corporation which resided there, but which had most of its property, and transacted most of its business, in Nebraska, the note being payable to a resident of Wyoming. It was secured by mortgages executed in Wyoming on property situated in Nebraska, and provided for a rate of interest unlawful in the latter state. The payee went to Nebraska, examined the records, found no incumbrances, received the mortgages there, and paid the money by check on a Wyoming or Nebraska bank. There was evidence tending to show that the agreement for the loan was made in Wyoming in good faith. Held, that a finding that the note was governed by the interest laws of Wyoming was warranted. -Coad v. Home Cattle Co., (Neb.) 49 N. W. 757. Consideration. Parol evidence, see Evidence, 40, 41. Consolidation. See Railroad Companies, 2. Constable. See Sheriffs and Constables. CONSTITUTIONAL LAW. Annexation of property to city, see Municipal Disposition of fines, see Fines, 1. Mechanic's lien law, see Mechanics' Liens, 1. of druggists, see Druggists. of liquor traffic, see Intoxicating Liquors, 1. Titles of acts, see Statutes, 1-9. Judicial powers. 1. Acts 14th Gen. Assem. Iowa, c. 43, § 1, and Acts 16th Gen. Assem. Iowa, c. 40, § 8, establishing a penitentiary at Anamosa, in which shall be confined such convicts as the executive council may designate, are not in conflict with Const. Iowa, art. 5, § 1, vesting the judicial power in the courts, and the executive council may transfer to the penitentiary at Anamosa a convict sentenced to imprisonment in the penitentiary at Ft. Madison. O'Brien v. Barr, (Iowa,) 49 N. W. 68. 2. A county attorney is a quasi officer of the district court; and hence Gen. St. Minn. 1878, c. 7, § 3, as amended by Laws 1885, c. 17, § 1, which authorize the district court, on appeal from the board of county commissioners, to fix and determine the county attorney's salary, is not unconstitutional as imposing legislative functions and duties on the judiciary. — Rockwell v. Board 4. Comp. St. Neb. c. 77, art. 4, § 1, which restricts the right of counties to foreclose taxliens acquired by them to cases where the amount involved exceeds $200, is not rendered invalid as class legislation, prohibited by the state constitution, by the fact that no limitation is placed on the foreclosure of tax-liens by indi: viduals, as the statute applies equally to all counties in the state. Lancaster County v. Trimble, (Neb.) 49 N. W. 938. 5. The provision of Laws N. D. c. 184, § 11, placing building and loan associations incorporated under the laws of the state in a separate class, and excepting them from the usury law, will be construed to apply only to transactions of such an association with its own stockholders, and, as thus construed, it does not violate Const. N. D. § 11, requiring all laws of a general nature to have a uniform operation; or section 69, subd. 13, prohibiting any special law regulating the rate of interest.-Vermont Loan & Trust Co. v. Whithed, (N. D.) 49 N. W. 318. Monopolies and privileges. 6. The provision of Laws N. D. c. 184, § 11, placing building and loan associations incorporated under the laws of the state in a separate class, and excepting them from the usury law, will be construed to apply only to transactions of such an association with its own stockholders, and, as thus construed, it does not violate Const. N. D. § 20, forbidding the granting of privileges or immunities to any citizen, or class of citizens, which, upon the same terms, shall not be granted to all citizens.-Vermont Loan & Trust Co. v. Whithed, (N. D.) 49 N. W. 318. 7. Pub. Acts Mich. 1877, No. 141, prescribing the manner of enforcing the liability of stock holders for debts of a corporation, is not rendered class legislation by section 1, which makes it inapplicable to suits for labor brought by the laborer.-Ripley v. Evans, (Mich.) 49 N. W. 504. Retrospective laws. 8. Laws Minn. 1889, c. 103, legalizing the deeds of married women after judgment of divorce, in certain cases, notwithstanding defects in the service of process in the divorce proceedings, is retrospective as well as prospective in its operation, and is not unconstitutional.-Wistar v. Foster, (Minn.) 49 N. W. 247. Vested rights. 9. Under the occupying claimants' law of 1873, (Gen. St. Minn. 1878, c. 75, § 17,) the failure of the claimant to pay into court the assessed value of the occupant's improvements within one year from the rendition of the verdict or finding in favor of such claimant not only barred his remedy, but extinguished his right of property, the title to which thereafter vested in the adverse occupant, although no judgment had been entered in the action. Hence, Laws Minn. 1889, c. 190, (amendatory of this law, and providing for payment within one year from the entry of the judgment,) in so far as it is made to apply retroactively to such cases, is invalid.-Flynn v. Lemieux, (Minn.) 49 N. W. 238. 10. Under the occupying claimants' law of 1873, (Gen. St. Minn. 1878, c. 75, § 17,) which provides for the payment to the occupant of the sum awarded to him for his improvements, with in one year after the rendition of the verdict, the occupant has a vested right to have the payment made within the time prescribed; and hence Laws Minn. 1889, c. 190, which amends the former law, and provides for payment within one year from the entry of judgment, is invalid in so far as it is made to apply retroactively.Craig v. Dunn, (Minn.) 49 N. W. 896. 11. It is no infringement of the vested rights of physicians that the Michigan statute regulating the practice of pharmacy (3 How. St. Mich.) prohibits them, without compliance with its requirements, from keeping "open shops for the retailing, disbursing, or compounding of medicine and poisons," though they may be fully competent to do so. People v. Moorman, (Mich.) 49 N. W. 263. Obligation of contracts. 12. Laws Wis. 1877, c. 143, which postpones foreclosure sales for a year after judgment, and provides for the repeal of Laws 1859, c. 195, but does not give the year's right of redemption allowed by that law after sale, does not impair the obligation of contracts in applying to mortgages given before its enactment, since the time for redemption is the same in either case, and the remedy not materially changed. -Northwestern Mut. Life Ins. Co. v. Neeves, 49 N. W. 832, 46 Wis. 147. Police power. 13. Laws Wis. 1882, c. 167, § 12, as amended by Laws 1887, c. 460, § 3, provides that every person keeping a pharmacy store or shop for retailing, compounding, and dispensing drugs, etc., shall be a registered pharmacist, or have in bis employ a registered pharmacist, and that, if any person permits the vending of drugs, etc., in his store or place of business, except under the personal supervision of a registered pharmacist, or registered assistant pharmacist, then he shall be liable to a penalty of $50; and it provides further for certain qualifications for a registered pharmacist, and for the payment of a registration fee in an amount to be fixed by the board of pharmacy, not exceeding $2. Held, that the act is within the police power of the state, and the registration fee is not a tax on the business, nor does it deprive of property without due process of law.-State v. Heinemann, (Wis.) 49 N. W. 818. Taxation. 14. Comp. St. Neb. c. 77, art. 4, § 1, which permits counties to acquire land sold for delinquent taxes, but which restricts their right to foreclose the tax certificates in their hands to cases where the amount involved exceeds $200, in effect empowers the county commissioners to release taxes on lands where the amount of the tax is less than $200, and therefore violates Const. Neb. art. 9, § 4, which prohibits the legislature from releasing any municipal or private corporation, or any individual, from its or his proportionate share of the taxes. County v. Trimble, (Neb.) 49 N. W 938. Imprisonment for contempt. Lancaster 15. Code Iowa, § 1543, as amended by Acts 20th Gen. Assem. c. 143, § 12, providing for the imposition of a fine of $500 and imprisonment in certain cases of contempt committed by violating injunctions, is constitutional. Following Jordon v. Circuit Court, 69 Iowa, 178, 28 N. W. 548.Utterson v. Conrad, (Iowa,) 49 N. W. 88. Cruel and unusual punishment. 16. Laws Wis. 1891, c. 351, which fixes, as a punishment for the unlawful killing of wild game, a fine of from $50 to $75, or imprisonment for from 60 days to 3 months, or both, is not unconstitutional, as providing a cruel and unusual punishment.-State v. De Lano, (Wis.) 49 N. W. 508. CONTEMPT. Punishment, see Constitutional Law, 15. Violation of injunction - Compensation for injuries. Complainants obtained an ex parte injunction restraining defendants from interfering with complainants' possession of a mill leased to them by defendants. Defendants having refused to deliver possession, complainants brought con tempt proceedings against them, under How. St. Mich. § 7277, allowing the same in the enforcement of civil remedies. Before judgment was rendered therein the injunction was dismissed on the answer and showing of defendants that an agreement had been made by which all rights under the lease had been surrendered, and that it was merely by reason of an oversight that the lease itself had not been surrendered. Held that, under said section, providing that, if actual loss or injury has been produced by the contempt to any party, the court shall order a sufficient sum to be paid by defendant to such party to indemnify him and to satisfy his costs and expenses, instead of fining defendant, and that the payment thereof shall be in bar of any action by the party for such injury, the court should not have given judgment against defendants for complainants' costs, there having been no injury to them by reason of defendants' refusal to obey the injunction.-Holland v. Weed, (Mich.) 49 N. W. 877. Contest. Of election, see Elections and Voters, 8. will, see Wills, 6. CONTINUANCE. Interpretation. 1. Evidence of the practical construction given to a contract by the parties thereto, in their dealings under it, may be considered in determining the proper construction.-Hosmer v. McDonald, (Wis.) 49 N. W. 112. 2. Where an agreement in settlement of litigation is made by which one party is to receive deeds to one-third of certain lands now in controversy, described by mistake as having been sold to the other party at an auction sale, and which were understood by the parties to have been so sold, the settlement will be given the effect intended, and will be held to cover the lands in suit.-Northern Chief Iron Co. v. Hosmer, (Wis.) 49 N, W. 115. Performance. 3. In an action to recover the contract price for drilling and sinking a well, plaintiffs testified that water in sufficient quantity was not reached until at the depth of 262 feet, and was then obtained in abundance; that it was only requisite then to put on a screen at the bottom and clean out the sand; that in putting it down the screen got caught, and defendant ordered them to stop work. Held, that the jury were 1. Affidavits for a continuance for the pro-warranted in finding a substantial compliance duction of the testimony of absent and distant with the contract.-Maddon v. Oestrich, (Minn.) witnesses must allege facts and circumstances 49 N. W. 301. to be given in evidence from which legal conclusions constituting a cause of action or defense may be drawn.-Farmers' & Merchants' Bank v. Berchard, (Neb.) 49 N. W. 762. Absence of witness. Absence of attorney. 2. Where an equity suit has, under the rule of court, been set for trial several weeks before the date of trial, and defendant on the day of trial files an amended answer setting up a settlement of the case, and an application for a continuance on the ground that her attorney, who is also a material witness as to the settlement, is absent, the continuance is properly refused, as the attorney's negligence must be imputed to his client.-Zabel v. Nyenhuis, (Iowa,) 49 N. W. See, also, Accord and Satisfaction; Assignment; Impairing obligation, see Constitutional Law, 12. Actions. 4. In an action on an alleged agreement by defendant to pay all expenses incurred by plaintiff in enforcing defendant's sale to him of defendant's interest in a partnership, where defendant alleges that he agreed to pay a specified sum only, and there is evidence of several conversations as to such agreement previous to the execution of the bill of sale, an instruction that the bargain, if there was one, had no effect before that time, and that the testimony as to previous conversations was to be considered with reference to what occurred at the execution of the bill of sale only, and that if the bargain at that time was as defendant stated, the verdict should be for the latter, is properly refused, as it is immaterial whether the agreement was made before or after the execution of the bill of sale. -Brittain v. Kelly, (Mich.) 49 N. W. 53. Pleading. 5. In an action for breach of a contract defendant may show cause for rescinding the contract under a general denial.-Stahelin v. Sowle, (Mich.) 49 N. W. 529. 6. In an action for breach of contract, the petition, if it sets up the terms of the contract, avers performance on the part of plaintiffs of the conditions to be performed on their part, and alleges non-performance by defendant of the stip ulations on his part to be kept and performed, is sufficient as against a demurrer.-Bryant v. Barton, (Neb.) 49 N. W. 331. Burden of proof. 7. Where, in an action for an attorney's compensation, defendants plead that the attorney had neglected or refused to perform any services, as provided in the contract, and have introduced evidence in support of such defense, the burden is on plaintiff to show that the attorney performed his contract, or stood always ready and willing to do so.-Hitchcock v. Davis, (Mich.) 49 N. W. 912. Contributory Negligence. See Master and Servant, 28-34; Negligence, 5-8. Conversion. See Trover and Conversion. Conveyances. See Chattel Mortgages; Deed; Fraudulent Conveyances; Mortgages; Sale; Vendor and Vendee. CONVICTS. Power to designate place of confinement, see Constitutional Law, 1. Transfer from one penitentiary to another-Order. Under Acts 14th Gen. Assem. Iowa, c. 43, 1, and Acts 16th Gen. Assem. Iowa, c. 40, SS, establishing a penitentiary at Anamosa, in which shall be confined such convicts as the executive council may designate, the executive council | need not designate by name the convicts to be transferred, but it may authorize the warden to transfer 20 convicts "whose removal will, in the judgment of the state warden, be most consistent with the interests of the state and the proper treatment of its convicts, and with a due regard for the existing contracts for the employment of convict labor. "-O'Brien v. Barr, (Iowa,) 49 N. W. 68. CORPORATIONS. See, also, Banks and Banking: Benevolent Societies; Building and Loan Associations: Carriers; Insurance; Municipal Corporations; Railroad Companies; Religious Societies; Telegraph Companies; Towns; Union Depot Companies. Confession of judgment by general manager, see Judgment, 1. Consolidation with foreign corporation, effect, see Liability of bailee of stock, see Bailment. Right to hold land. 1. The owner of land in South Dakota conveyed the same to the U. Co., a Minnesota corporation, whose business, as set out in its charter, was to buy, sell, and deal in any property, real, personal, or mixed, wherever situated. The purchase of such land by the U. Co. was for the purpose of selling at a profit, and afterwards it sold and conveyed the same to defendant. Subsequently the grantor of the U. Co. gave a deed of the same land to plaintiff. Held, under Const. S. D. art. 17, § 7, which provides that "no corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business," that the business of the U. Co., being legal, at least so far as dealing in the personal property was concerned, it had a right to take and hold such real estate as might be "necessary and proper for its legitimate business;" and the validity of the deed to it could not be questioned in an action between plaintiff and defendant, but could be questioned only in a direct proceeding by the state.-Gilbert v. Hole, (S. D.) 49 N. W. 1. Who may attack validity of organization. 2. The fact that a street railway company has not complied with the statute in its organization does not authorize an abutting property owner to bring suit to enjoin the laying of its track, unless property rights are thereby affected, as the usurpation of a corporate franchise is a matter between the state and the company.-Nichols v. Ann Arbor & Ypsilanti St. Ry. Co., (Mich.) 49 N. W. 538. Estoppel to dispute corporate existence. 3. The maker of a note payable to a bank cannot, in an action on the note, raise the question of the incorporation of the bank. -Exchange Nat. Bank v. Capps, (Neb.) 49 N. W. 223. 4. In an action against individual stockholders to charge their property with a judgment rendered against the corporation, the plaintiff is not v.49N.w.-73 estopped to allege defects in its organization by reason of having recognized the corporation in dealing with it and in bringing suit against it as such. Heuer v. Carmichael, (Iowa,) 47 N. W. 1034, followed.-Stivers v. Carmichael, (Iowa,) 49 N. W. 983. Officers. 5. A general stockholders' meeting for the election of officers of a Minnesota corporation, held out of the state, all of the stockholders not consenting, and the by-laws providing that it shall be held at a specified place in the state, is illegal, under Gen. St. Minn. 1878, c. 34, § 86; and, as against the officers thus elected, those previously in office have the right to retain control of the affairs of the corporation.-Hodgson v. Duluth, H. & D. R. Co., (Minn.) 49 N. W. 197. 6. In an action against a corporation for services rendered by plaintiff in the capacity of general manager a verdict for plaintiff will not be disturbed where there is evidence that the services sued for were rendered in the discharge of the general manager's duties as they were defined in the by-laws of the corporation.-Kryger v. Railway Track Cleaner Manuf'g Co., (Minn.) 49 N. W. 255. Contracts. 7. A subscriber to the capital stock of a cor poration is estopped in an action on the subscription to deny the power of the corporation to make the contract. Columbia Electric Co. v. Dixon, (Minn.) 49 N. W. 244. 8. The agent of a corporation, whose business was the manufacture and sale of organs, sold one of his company's instruments, and took a note in payment, with himself as payee. He then exchanged the note for another, and indorsed it to his company. Held, in an action by the company on the note, that by accepting the same the company did not violate the provision of its charter prohibiting its doing a banking business, as the note was part of the proceeds of the organ.Western Cottage Organ Co. v. Reddish, 49 N. W. 1048, 51 Iowa, 55. 9. The president of a lumber company who, while in open and notorious charge of the busi ness, employs a sawyer for an entire season, will be presumed, in the absence of contrary evidence, to have authority to do so.-Ceeder v. H. M. Loud & Sons Lumber Co., (Mich.) 49 N. W. 575. 10. The fact that a person having the general charge of such company is also its president does not operate as a limitation upon the powers usually exercised by such managers.-Ceeder v. H. M. Loud & Sons Lumber Co., (Mich.) 49 N. W. 575. 11. Where the owner of nearly all the stock and franchises of a railroad company contracted in his individual capacity for the construction of part of the road, and there was no evidence of any original authority expressed or implied, nor a subsequent ratification, the company was not bound thereby.-Donoghue v. Indiana & L. M. Ry. Co., (Mich.) 49 N. W. 512. Actions. 12. At common law, a corporation may sue and be sued by the corporate name, without an averment of the act of incorporation, and the Nebraska Code has not changed the common law in that regard.-Exchange Nat. Bank v. Capps, (Neb.) 49 N. W. 223. Stock subscription. 18. Defendants signed a subscription paper reciting that "we, the undersigned citizens of S., promise to pay the trustees of the hotel to be built at S. the sums set opposite our names, to be taken as stock, $25 per share. " It was represented to them by the citizens' committee, soliciting subscriptions, that the hotel would cost $150,000, and that this paper was informal, and was merely "to see what could be done," and that a binding subscription paper would be presented later. When this was presented, defendants refused to sign. Afterwards a corporation was formed, and an hotel built, costing about 14. It is no defense to an action on a subscrip- 15. Pub. Laws Mich. No. 6, p. 6, au horizing 16. Where the subscriber attended one of the 17. Pub. Laws Mich. No. 6, p. 6, relating to fair 18. Under Rev. St. Wis. 1878, c. 87, relative Transfer of stock. 19. If stock of a bank has been assigned to a on the books of the bank.-Central Nebraska 20. In an action by individual stockholders for Liability to creditors. 21. Where the articles of incorporation do not 22. While the publication of the articles of 24. Pub. Acts 1877, No. 141, § 2, provides that 504. 25. In an action by creditors of an insolvent cor- Correction. Of judgment, see Judgment, 19, 20. COSTS. Awarded in contempt proceedings, see Contempt. |