(Sornrll ICaro Srifirol IGibranj Cornell University Library KF 1386.U5R32 The true doctrine of ultra vires in the 3 1924 019 347 479 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019347479 THE TEUE DOCTEINE OF ULTEA YIEES IN THE LAW OF CORPORATIONS BEING A CONCISE PRESENTATION OF THE DOCTRINE IN ITS APPLICATION TO THE POWERS AND LIABILITIES OF PRIVATE AND MUNICIPAL CORPORATIONS REUBEN A. REESE, Esq. Op the Colorado Bab CHICAGO T. H. FLOOD AND COMPANY 1897 Copyright, 1897, BY T. H. FLOOD & CO. KF or STATE JOURNAL PRINTING COMPANY, Printers and Stbreotyfbbs, madison, wis. TO THE HOE". THOMAS J. BALLINGEE, OF TEXAS, UNIMPEACHABLE INTEGRITY AS A MAN, AND UNSWERVING LOYALTY AS A FRIEND, MAKE HIS ACQUAINTANCE AN HONOR AND HIS COMPANIONSHIP A DELIGHT, AS A SLIGHT ACKNOWLEDGMENT OP THE HIGH REGARD IN WHICH HE IS HELD BY THE AUTHOR,. THIS VOLUME IS RESPECTFULLY INSCRIBED. PREFACE. The aim and purpose of this volume is to set forth in a concise and practical way the established principles of the Doctrine of Ultra Vires in its application to the acts and contracts of corporations both public and private. By the title — " The True Doctrine of Ultra Vires " — no reflection is meant to Be made upon other writers who have heretofore treated the subject in works on corporation law, although, in some respects, the views herein expressed are diametrically opposed to those of some modern law writers who have casually discussed the various phrases of this doctrine. In whatever feat- ures, however, this brief exposition of the subject differs from its presentation by others, comparison as to the number and character of authorities cited to sustain the propositions laid down is respectfully invited. In style and composition neither classical precision, stilted phrase- ology, nor laborious efforts at " fine writing," has been attempted, the main object being to furnish a brief and practical compendium of the doctrine of ultra vires for the practicing attorney; and it is believed the work, though purposely condensed, may for that reason be all the more useful to him for ready reference. The dim- VI PREFACE. culties to be overcome in classifying and arranging, under separate headings, the several branches of the subject, and at the same time avoid discussing in detail the gen- eral law of corporations, which has already been fully considered by many eminent commentators, are quite ap- parent, and this in some measure may account for the fact that no American treatise on the doctrine has ever been published. The obstacles to be surmounted in the preparation of a work of this character will, it is to be hoped, insure to the writer the kind indulgence of the profession. E. A. E. Colorado Springs, March 4, 1897. CONTENTS. CHAPTEK I. CREATION AND CONSTRUCTION OP CORPORATE CHAR- TERS. Part I. CREATION OF CHARTERS. Section. Page. 1. Introductory 1 2. A corporation a legal entity 2 3. Creation of chartered corporations 2 4. "What acceptance of charter implies 7 5. Distinction between natural and artificial persons . . 8 ■6. Distinction between corporation and partnership ... 9 7. Distinction between corporations under general and spe- cial act 10 Part II. CONSTRUCTION OF CHARTERS. '8. General rule of construction 12 9. Corporations have only powers given by charters ... 13 10. Rule peculiarly applicable to corporation organized under general laws 16 11. Ultra vires questions decided by law of organization . 17 12. Province of court in construing corporate powers . . 20 13. Powers construed as incidental to those expressly given 21 14. Discretion of corporations 22 15. Miscellaneous incidental powers 22 CHAPTEK II. THE DOCTRINE OF ULTRA VIRES. THE DOCTRINE GENERALLY. 16. Introductory 25 17. Ultra vires — Senses in which term used 26 Vlll CONTENTS. Section. Page - 18. Principles of doctrine plain %& 19. Two propositions of doctrine settled 28 20. Chronological review of doctrine 30 21. Head v. Providence Ins. Co. 30 22. People v. Utica Ins. Co 31 23. New York Firemen's Ins. Co. v. Sturges 31 24. Bank of United States v. Dandridge . 32 25. Beach v. Fulton Bank 32 26. Bank of Augusta v. Earle 32 27. Barry v. Merchants' Exchange 33 28. Perrine v. Chesapeake, etc. Canal Co. ...... 34 29. Hood v. New York, etc. R. Co. 34 30. Pearce v. Madison, etc. R. Co 37 31. Bissell v. Michigan, etc. R. Co . . . .39 32. Monument Nat. Bank v. Globe Works 41 33. Miners' Ditch Co. v. Zellerbach . . 42 34. Franklin Co. v. Lewistown Institute for Savings ... 43 35. Thomas v. Railroad Co. 43 36. Davis v. Old Colony R. Co 45 37. Central Transp. Co. v. Pullman's Palace Car Co. . . . 46 38. Lucas v. White Line Transp. Co. 51 39. The doctrine as construed by English courts — Colman v. Eastern Counties Ry. Co 55 40. East Anglian Co. v. Eastern Counties Ry. Co. .... 57 41. Ashbury, etc. Ry. Co. v. Riche 58 42. Attorney-General v. Great Eastern Ry. Co. 64 43. Small et al. v. Smith et al 65 44. Baroness Wenlock v. River Dee, etc 65 45. Trevor v. Whitworth 66 CHAPTEE III. CONTRACTS OF CORPORATIONS. THE DOCTRINE APPLIED TO CONTRACTS GENERALLY. 46. Introductory 67 47. Application of doctrine to contracts generally .... 68 48. Province of court in applying doctrine 69 49. Tendency of courts to disregard statutory enactments . 70 50. As to incidental contractual powers 72 51. Irregularity no defense to liability on corporate contracts 73 CONTENTS. IX Section. Page. 52. When charter prescribes mode of contracting, must be strictly pursued 74 53. All persons bound to take notice of limits of corporate powers 75 54. Why corporations not liable on ultra vires contracts . . 76 55. Distinction between ultra vires and illegal contracts . 77 56. Prohibited contracts regarded as illegal and void ... 79 57. Unauthorized contracts none the less illegal because ig- nored by courts 80 OHAPTEE IV. THE DOCTRINE APPLIED TO EXECUTED CONTRACTS. 58. Estoppel — Defense of ultra vires to executed contracts ., 83 59. Same subject ' 84 60. Same subject — Corporation similar to one under legal dis- ability 85 61. Performance by innocent party to contract ultra vires a corporation 86 62. Position of United States supreme court on alleged rule 89 63. San Antonio v. Mehaffey 91 64. Railway Co. v. McCartney 93 65. Hitchcock v. Galveston 94 66. Jones v. Guaranty Co. 97 67. National Bank v. Mathews 97 68. Central Transp. Co. v. Pullman Car Co. 98 CHAPTER Y. ACTIONS ON ULTRA VIRES CONTRACTS. 69. General rule as to actions on illegal contracts .... 100 70. Ultra vires as defense to actions — General rule . . . 102 71. Court must be satisfied of legality of contract .... 104 72. Actions on executed ultra vires contracts 105 73. Actions in courts of equity and at law 107 74. Quantum meruit — Relief on ultra vires contracts . . 113 75. Relief on contracts ultra vires and under statute of frauds 116 CHAPTER YI. ADOPTION AND RATIFICATION OF CONTRACTS. 76. General doctrine of ratification stated 119 77. Nature and effect of ratification 120 X CONTENTS. Section. _ Pa « e - 78. Ultra vires contracts of corporations cannot be ratified 121 79. Ratification by corporation of acts of promoters . . . 123 CHAPTEK YII. THE DOCTRINE APPLIED TO INCIDENTAL POWERS OF CORPORATIONS. 80. Introductory 126 81. Power to acquire real property 127 82. Devise to corporations 131 83. Jus disponendi in corporations 131 84 Power to sell implies power to mortgage 133 85. Power of bank to hold real estate 134 86. Power to acquire by eminent domain 135 87. Alienation by deed 136 88. Conveyance by agent 137 89. Acknowledgment to corporate deeds 137 90. Affixing seal to deeds 138 91. Assignment for benefit of creditors 138 92. Power to act as trustee 139 93. Trust must be within scope of corporate powers . . . 140 94. Cannot be compelled to execute repugnant trust . . . 140 95. Power to take by bequest 141 96. Power to borrow money 142 97. Test to determine if transaction is borrowing .... 144 98. Instances of implied power to borrow 144 99. Power to loan money 146 100. Power as to negotiable notes 147 101. Power as indorsee 149 102. Power of savings bank to make negotiable paper . . . 149 103. Power as to discount and purchase 149 104. Liability on accommodation paper 15 1 105. Power to pledge securities 151 CHAPTER VIII. POWERS AND LIABILITIES AS TO CAPITAL STOCK. 106. Introductory — Nature and purpose of capital stock . . 152 107. Capital stock as a trust fund 153 108. Limitation on doctrine that capital stock a trust fund . 155 109. Power to increase capital stock ; 156 CONTENTS. XI Section. Page. 110. Consent of stockholders necessary to increase capital stock 15? 111. Power of national bank to increase capital stock . . . 158 112. Irregularity in executing power as affecting stockholders 160 113. Power to reduce capital stock 160 114 Reduction of capital stock in England 161 115. Power to issue new stock 161 116. Powers as to special stock 162 117. Power to issue shares at discount 163 118. Power to issue preferred stock 164 119. Liability on ultra vires issue of preferred stock" . . . 165 120. Power to deal in own stock 167 121. Power to purchase stock of other corporations .... 169 122. Instances where power denied 169 123. Power of foreign corporation to purchase stock of domes- tic Company 171 124. Power to declare dividends 171 125. Power to pledge future calls 172 126. Liability on dividends declared 173 127. Liability on illegal stock 174 CHAPTER IX. THE DOCTRINE APPLIED TO RAILROAD CORPORATIONS. 128. General power to make contracts 175 129. Contracts to carry beyond own line 176 130. Traffic agreements between railroads 177 131. Pooling contracts 178 132. Railroad bonds — Definition 180 133. Power to issue bonds 181 134. Formalities prescribed must be strictly pursued ... 181 135. Negotiability of railroad bonds 182 136. Power to guaranty bonds of another company .... 183 137. Power to lease road and franchises 184 138. Ultra vires lease will not be set aside at suit of lessor . 189 139. Instances where power to lease denied 189 140. Power to mortgage property 190 141. Power to mortgage franchises 191 142. Consolidation and amalgamation — Definition. . . . 192 143. Powers of corporations to consolidate 194 XII CONTENTS. Section. ' Page. 144. Effect of consolidation 195 145. Effect of interstate consolidation "198 146. Rights and liabilities of consolidated company . . . 199 147. Consolidation as affecting stockholders 200 148. Consolidation as affecting taxation 202 149. Trusts and illegal combinations 203 CHAPTER. X. THE DOCTRINE IN ITS RELATION TO DIRECTORS AND OTHER OFFICERS AND AGENTS OF CORPORATIONS. 150. Introductory 207 151. Distinction between corporate acts and unauthorized acts of directors ' 207 152. Test to distinguish acts of directors from corporate acts 209 153. Directors as trustees 210 154. General powers of directors 211 155. Instances of directors' powers 211 156. General liability of directors 512 157. Power of bank directors , 213 158. Liability of bank directors 214 159. Powers and liabilities of bank president 215 160. Powers and duties of bank cashier 216 ' 161. Instances of cashier's powers 217 CHAPTER XL THE DEFENSE OF ULTRA VIRES AS TO TORTIOUS ACTS OF OFFICERS AND AGENTS. 162. General rule as to liability of corporation for torts . . 219 163. Liability for tortious acts of agent 221 164. Authority of agent in fixing liability 223 CHAPTER XII. POWERS AND LIABILITIES OF FOREIGN AND DE FACTO CORPORATIONS., 165. General powers of foreign corporations 225. 166. The absence of prohibitory legislation presumes a tacit adoption of foreign laws 226 CONTENTS. Xlll Section. Page. 167. Contractual powers similar to domestic corporations . 227 168. De facto corporations estopped to deny corporate exist- ence 227 CHAPTER XIII. THE DOCTRINE OF ULTRA VIRES APPLIED TO MUNICIPAL CORPORATIONS. 169. Introductory— Nature. of municipal corporations . . . 231 170. Exercise of municipal powers 232 171. Ordinances — Power to enact 233 172. Nature and effect of ordinances 234 173. Ministerial and judicial ordinances distinguished . . . 235 174. Effect of ultra vires ordinances 236 175. Instances of ultra vires ordinances . 236 176. Ordinances must be reasonable 237 177. Courts cannot interfere with discretion of municipality 239 178. Courts may restrain passage of ultra vires ordinances . 240 179. Powers as to taxation 240 180. Power to tax may be revoked 241 181. Power can be exercised only fqr public purposes . . . 242 182. Taxation and power to license distinguished .... 243 . 183. Power to exercise right of eminent domain 244 184. Distinction between eminent domain and taxation . . 244 185. Powers as to property 245 186. Powers of divided municipality 247 187. Powers of extinguished municipalities 248 CHAPTER XIY. GENERAL POWERS AS TO CONTRACTS. 188. Introductory — General rule as to contracts .... 249 189. The mode prescribed must be strictly pursued .... 252 190. Ultra vires contracts by officers 254 191. Implied municipal contracts. 256 192. When estoppel not applicable 257 193. When estopped to deny irregularity 258 194. Ratification of ultra vires contracts 258 195. Contracts of compromise and arbitration 259 196. Limitation on contracting indebtedness 260 197. Instances where increase denied 262 198. Equity will enjoin illegal creation of debt 233 XiV CONTENTS. CHAPTER XV. PARTICULAR. POWERS AND LIABILITIES OF MUNICIPAL CORPORATIONS. Section. Page. 199. Exclusive control over streets 265 200. When estopped to deny existence of street 266 201. Power to grade and improve streets 266 202. Discretionary powers as to improvement 268 203. Liability for consequential damages 269 204. Liability for accidents upon streets 271 205. Instances of liability for defective streets 273 206. Notice to authorities required . . . 274 207. Sewers — General powers as to 275 208. Discretion in selecting system 276 209. Duty to provide sewer outlet 277 210. City not insurer of condition of sewer 277 211. Liability for injury from defective sewer 278 212. Power to abate nuisances 279 213. Liability as to nuisances 280 214. Powers as to quarantine regulations 282 215. Powers as to public wharves 283 216. Exclusive privileges to gas and water companies . . . 284 217. Contracts as to gas and water supply 285 218. Power to regulate rates 285 219. Liability for damages owing to inadequate water supply 286 220. Doctrine of respondeat superior 287 221. Distinction between public gwasi-corporations and munic- ipal corporations 289 222. Not liable for damages arising from ultra vires acts of officers • 291 CHAPTER XVI. POWERS AND LIABILITIES AS TO MUNICIPAL SECURITIES. 223. Power to issue bonds 295 224. Purposes for which bonds may be issued 296 225. Instances where power denied 297 226. Formality in execution as affecting liability .... 298 227. Irregularity as affecting liability 298 228. Effect of recitals in bonds 299 INDEX. XV Section. Page. 229. Who are bona fide holders 301 230. Power to issue bonds not implied from power to borrow . 302 231. Limitation on indebtedness as affecting legality of bonds 303- 232. Invalid bonds cannot be ratified 305 233. Liability cannot be avoided by reorganization .... 306 234 Liability in assumpsit on invalid bonds 307 235. Illegal issue of bonds may be enjoined 308 236. Municipal-aid bonds 309 237. Power must be specially granted 309 238. Power to subscribe to railroad stock 311 239. Limitation on amount of subscription 312 240. Levying tax to pay subscription 313 TABLE OF CASES CITED. References are to sections. A. Abbey, Metropolitan Concert Co. v., 139. Abbott, Elliott v., 160, 161. Abbott v. Johnstown, etc. R. Co., 137. Abbott v. Omaha Smelting Co., 3. Abbott v. Packet Co., 70. Abbott, Society, eta v., 107. Abbott, Thompson v., 144, 146, 186. 188. Abel, March v., 71. Aberdeen, State Board v., 191. Aberdeen R. Co. v. Blaikie, 153. Academy, Moss v.. 96. Academy of Music v. Flanders Bros., 168. Ackerman v. Halsey, 158. Acres, Lake Erie R. Co. v., 163. Adams, Anthony v., 213, 222. Adams v. Farnsworth, 191. Adams, Haven v., 87. Adams, Tash v., 175. Adams, Valparaiso v., 203. Adams Co., Quincy Bridge Co. v., 145. Adams Express Co. v. Wilson, 129. Addlestone Co., In re, 117. Adriance v. Roome, 52. .iEtna Bank v. Charter Oak Ins. Co., 9, 136. .^Etna Ins. Co., Middleport v., 240. Agar v. Insurance Co., 160. Agnew v. Brail, 195. Agricultural Association, Taylor v., 96. Aicardi v. State, 8. Akron, McCombs v., 220. B Alabama, etc. Co. v. Central As- sociation, 70, 96. Alabama R. Co., Jordon v., 162. Alabama R. Co. v. Smith, 53. Alabama R. Co., Waddill v., 53. Albany, People v., 212. Albany Co., Laramie Co. v., 86. Albert Association Co., In re, 137. Albert Lea, Graham v., 205. Albright v. Town Council, 188. Alden v. Minneapolis, 203. Aldrich,Lumbard v., 81. Aldrich v. Tripp, 222. Alers, Sherwood v., 70. Alexander v. Brown, 77. Alexander v. Cauldwell, 154, 194 Alexander, Mathews v., 173. Alexander v. O'Donnell, 69. Alexander v. Relfe, 163. Alexander, Richmond Factory Co. v., 3. Alexander v. Tolleston Club, 81. Allegheny City, Amey v., 239. Allegheny City v. McClurkan, 70, 74. Allen, Camden v., 224 Allen, Chouteau v., 105, 194 Allen v. Galveston, 170. Allen v. Herrick, 127. Allen v. Inhabitants, etc., 224 Allen v. Joy, 181, 225. Allen v. Lafayette, 233. Allen, Page v., 198. Allen, Phillips v., 212. Allerton, Railway Co. v., 109, 110. Alley v. Inhabitants, etc., 170. Allison, Bank of Hindustan v., 127. Allison v. Railroad Co., 235. XV111 TABLE OF CASES CITED. References are to sections. Almada & Tirito Co., In re, 117. Almy, Salem Nat. Bank v., 51, 168. Alton, Sturtevant v., 188, 201. Alvis, Sheward v., 53, 70. American Academy v. Howard, 94. American Com. Co. v. Humboldt M. Co., 136. American Ins. Co., Judah v., 14 American Ins. Co., Miller v., 74. American Preserves Trust v. Man- ufacturing Co.. 69, 148. American Tube Works v. Boston Mach. Co., 116. American, etc. Soc, "Wade v., 92. American, etc. Union v. Yount, 81. Amery, Rex v., 3. Ames, British Am. Land Co. v., 166. Amey v. Allegheny City, 239. Amherst, Merrick v., 225. Ammon, Miller v., 69. Amy, Pendleton v., 227. Amy, St. Joseph Township v., 227. Anderson, Bliss v., 53. Anderson v. City, 175. Anderson, Smith v., 153. Anderson v. Township of Santa Ana, 238. Andover, Gassett v., 191. Andover v. Grafton, 230. Andover, Jenkins v., 224. Andreas, Craig v., 69. Androscoggin B. Co. v. Auburn Bank, 105. Androscoggin R. Co., Evansville R. Co. v., 129. Anglo-Cal. Bank, Mahoney Min. Co. v., 96, 98. Anita, Davis v., 176. Anthony v. Adams, 213, 222. . Anthony v. County of Jasper, 226. Anthony v. Household Mach. Co., 116. Appeal of City of Erie, 196, 197. Appleton, Hayes v., 170. Archer v. Terre Haute R. Co., 9. Ardesco Oil Co. v. N. A. Min. Co., 83, 91. Argenti v. San Francisco, 188, 190, 191, 192. Arkansas, Curran v., 107. Armstrong, Beaver v., 135. Armstrong v. Brunswick, 212, 2131 Armstrong, St. Louis v., 194. Armstrong, Winters v., 109, 111. Am v. City of Kansas, 211. Arnot v. Erie R. Co., 129, 136. Arrighi, Jefferson Co. v., 194. Arthur v. Bank, 91. Arthur v. Griswold, 158. Ash, Conservators v., 3. Ashbury, Glass v., 170. Ashbury Ry. Co. v. Riche, 41, 42, 43, 44, 45, 52, 53, 72, 78, 137. Ashley v. Port Huron, 211. Ashton-under-Lynn, Bateman v., 70. Ashville Division, etc. v. Aston, 81. Aspinwall, Eaton v., 106. Aspinwall, Knox Co. v., 135, 190, 193, 227, 228. Aspinwall v. Sacchi, 106. Assurance Co., In re, 168. Aston, Ashville Div. etc. v., 81. Atchison, etc. R. Co. v. Commis- sioners, 146. Atchison, etc. R. Co. v. Denver, etc. Co., 131. Atchison, etc. R. Co. v. Fletcher, 136. Athenseum, etc. Co. v. Tooley, 74. Athens City Water Works, Fow- ler v., 217. Atkinson v. Marietta, etc. R. Co., 9; Atlanta, Cooper v., 222. Atlanta, Fulla v., 203. Atlanta, Wells v., 177, 188, 217. Atlantic, etc. R. Co. v. State, 144 Atlantic City Water Works v. Atlantic City, 216, 217. Atlas Bank v. Nahant Bank, 74. Attorney-General v. Boston, 145t Attorney-General v.' Great East- ern Ry.. 42, 43, 44, 47. Attorney-General v. Insurance Co., 100. Attorney-General v. Stevens, 168. Attorney-General v. Wilson, 153. Atwater, First Cong. Soc. v., 92. Atwood, De Camp v., 91. Aubert v. Walsh, 69. Auburn Bank, Androscoggin R. Co. v., 105. TABLE OB" CASES CITED. XIX References are to sections. Anburn Plank Road Co. v. Doug- las, 8. Augusta, Walsh v., 196. Augusta, Williams v., 212. Augusta, Wright v., 219. Auerbach v. Le Sueur Mill Co., 81, 100. Aukland v. Westminster Board, 53. Aurora v. Cobshire, 200. Aurora, Faulkner v., 204. Aurora v. West, 135, 237. Aurora Agl. Soc. v. Paddock, 77, 84. Austin, Berrick v., 161. Austin, Doyle v., 181. Austin v. Mundy, 175. Australian, etc. Co. v. Mounsey, 96, 98. Averhill, Moss v., 56, 100. Averhill, Rochester Sav. Bank v,9. B. Backman v. Charleston, 194 Bacon, Holt v., 161. Badger v. Bank, 160, 161. Badger, Partridge v., 83, 96, 100. Bagshaw v. Eastern Counties Ry. Co., 53. Bagshaw v. Eastern Union Ry. Co., 9, 70. Bailey v. M. E. Church, 53. Bailey, Padrick v., 176. Bailey, State v., 143, 143, 147. Baird v. Bank, 81. Baker v. Boston, 222. Baker, City of Madison v., 211. Baker, Dixon v., 211. Baker, Niagara County Bank v., 103. Baker, Shawneetown v., 195. Baker, Whitman M. Co. v., 47, 81. Bakersfield Association v. Ches- ter, 51, 168. Baldwin, Farmers' & M. Bank v., 103. Balfour v. Ernest, 148. Ball, Savage v., 100. Ballard, Bradlev v., 58, 96. Ballou, Litchfield v., 233. Ballston Bank v. Marine Bank, 161. Baltimore v. Baltimore, eta Co., 47. Baltimore v. Eschbach, 190, 201, 222. Baltimore v. Gill, 196, 198. Baltimore, Horn v., 201. Baltimore v. Musgrove, 190. Baltimore v. Radicke, 176, 178. Baltimore, etc. R Co. v. Glenn, 166. Baltimore, etc. R. Co., Mayor, eta v., 128. Baltimore, eta R. Co. v. Schu- macher, 129. Bangor, Darling v., 202. Bangor, Smith v., 205. Bangor Savings Bank v. Still- water, 233. Bangor & Slate Co., In re, 118. Banigan, Bard v., 119. Bank, Arthur v., 91. Bank, Badger v., 160, 161. Bank, Baird v., 81. Bank v. Bruce, 120. Bank v. Chillicothe, 96. Bank v. Colby, 144. Bank, County of Moultrie v., 197. Bank, Dabney v., 91. Bank, Dana v., 87. Bank, Dater v., 83. Bank, Farmers' & M. Bank v., 160. Bank, Godbold v., 156. Bank v. Haskill, 161. Bank, Jones v., 168. Bank, Lloyd v., 160. Bank, Louisville v., 215. Bank, Mackay v., 162. Bank, McDonough v., 79. Bank, Merrick v., 91. Bank, Minor v., 160. Bank, Norton v., 74. Bank, People v., 170. Bank, Pomeroy v., 144 Bank, Potter v., 100. Bank, Reese v., 124. Bank, Ridgeway v., 96, 100. Bank v. St. John, 156. Bank, St. Louis v., 171. Bank, Smith v., 161. Bank, Spohr v., 168. Bank, State v., 83. Bank, Sturges v., 161. Bank v. Transportation Co., 120v XX TABLE OF CASES CITED. References are to sections. Bank, Union M. Co. v., 96. Bank, Wild v., 160. Bank, Williams v., 74, Bank of Augusta v. Earle, 8, 9, 26. 28, 47, 52, 103, 156, 157, 165, 167. Bank of Australasia v. Breillat, 96, 98. Bank of British Columbia, Wil- lamette v., 9, 53. Bank of Columbia, Mechanics' Bank v., 161. Bank of Columbia v. Paterson, 76, 77, 188. Bank of England, Coles v., 124. Bank of Gennessee v. Patchin Bank, 9. Bank of Hindustan v. Allison, 127.. Bank of Hindustan, In re, 142. Bank of Kentucky, Lewis v., 167. Bank of Kentucky v. Schuylkill Bank, 79, 160. Bank of Lyons v. Demon, 77. Bank of Maryland, State v., 100. Bank of Michigan v. Niles, 81,85. Bank of Pennsylvania v. Comm., 8. 9, 12. Bank of Pennsylvania v. Reed, 161. Bank of St. Paul v. Dana, 14. Bank of Sonoma County v. Fair- banks, 225. Bank of United States v. Dand- ridge, 13, 24, 28, 50, 76, 151, 154, 157, 160. Bank of United States v. Fleck- ner, 21, 77, 103, 160. Bank of United States v. Owens, 69. Bank of Virgennes v. Warren, 160. Banking Co. v. Jersey City, 178. Banking Co., Leggett v., 84. Banks v. Poitiaux, 83. Baptist Society, Chambers v., 94. Barber, Erie Co. Iron Works v., 162. Barber, Montgomery Co. v., 188. Barber Asphalt Pav. Co. v. Go- greve, 189. Barber Asphalt Pav. Co. v. Hunt, 189. Barbour v. Ellsworth, 222. Barclay Coal Co., Morris R. Cot v., 131. Bard v. Banigan, 119. Bard v. Poole, 166, 167. Barker v. Hoff, 69. Barker v. Insurance Co., 100. Barker District v. Valley Dis- trict, 186. Barlow, Whitney Arms Co. v., 55, 56, 58, 61, 63, 64, 66, 68. Barnes v. District of Columbia, 220. Barnes v. Lacon, 237. Barnes v. Ontario Bank, 96, 98, 160, 161. Barnett v. Denison, 229. Barney, Frothingham v., 122. Baroness Wenlock v River Dee, 44. Barr v. City of Kansas, 204. Barr, Hatch v., 87, 90. Barrington v. Neuse River, 86. Barritt v. New Haven, 203. Barrow, etc. Co., In re, 114. Barry v. Merchants' Exchange, 27, 83, 84, 96, 100, 106, 124. Bartholomew, etc. Co. v.- Beatty, 168. Bartlett, Spring Valley Water Works v., 235. Bartlett v. Viner, 55. Barwick v. English, etc. Bank, 162. Bass, White v., 69. Bassett, Granger v., 124, 126. Bassett, Holbrook v., 96. Batelle v. Northwestern Cement Co., 79. Bateman v. Ashton-under-Lynn, 70. Bateman, City Bank v., 77. Bateman v. Covington, 215. Bateman v. Mayor, 50,488. Bates, Savings Bank v., 91. Bates County v. Winter, 190. Bauerle, Wilkinson v., 91. Baumgartner v. Hasty, 212. Bay St. Louis, Chandler v., 230. Bayonne, Paret v., 195. Beach v. Fulton Bank, 25. Beacher, Tyler v., 181. Beale, Robinson v., 120. TABLE OF CASES CITED. XXI References are to sections. Bean v. Joy, 195. Bear River Co., Blen v., 194. Bear River Co., Shaver v., 77. Bearden v. Madison, 172. Beardstowa, etc. R. Co. v. Met- calf, 84. Beasley, Mayor, etc. v., 176. Beatty v. Bartholomew, etc. Co., 168. Beatty v. Insurance Co., 47. Beaty v. Knowler, 8, 12, 47. Beaufort Co., Satterthwaite v., 177. Beaver v. Armstrong, 135. Becker v. Keokuk Water Works, 219. Beckwith, Mount Pleasant v., 186, 187. Beckwith, Winslow Mfg. Co. v., 88. Beecher, Tyler v., 225. Beekman v. Saratoga Rv. Co., 86. Beers v. Phoenix Glass Co., 96, 160. Belding v. Pitkin, 69. Bell, State v., 173. BelL Weir v., 158. Bell Tel. Co., St. Louis v., 170. Bell's Gap Ry. Co. v. Christy, 79. Bellamy Mfg. Co., Dispatch Co. v., 77. Belleville, St. Louis, etc. Co. v., 192. Bellevue, Town of Depere v., 186. Bellmeyer v. Marshalltown, 9. Belmont v. Erie Ry. Co., 53. Belmont, Frost v., 79. Beman v. Rufford, 137. Bennett v. Filyaw, 129. Bennett v. Peninsular S. Co., 129. Bennett, Watson v., 161. Bennington Ins. Co., Isham v., 90. Benson v. Heathorn, 153. Bentley v. County Commission- ers, 170. Bentz, St. Louis v., 212. Bergen v. Clarkson, 173, 174 Bergen v. Fishing Co., 91. Bergen County, Merchants' Bank v., 226, 229. Bergman v. St. Paul, etc. Ass'n, 53. Bernal, Parker v., 122. Bernerly, Trumpler v., 86. Berrick v. Austin, 161. Berry, New Decatur v., 214 Berry, Pneumatic Gas Co. v., 76, Berry, Railroad Co. v., 144. Berry v. Yates, 121. Bever, Clark v., 115. Bevers, State v., 190. Bigelow v. Randolph, 219. Bigler v. Mayor, etc., 189. Bill v. Western Union Tel. Co., 139. Billings, Providence Bank v., 8. Binney's Case, 83. Biscoe, Ringas v., 91. Bishmeyer v. Evansville, 219. Birch v. Cropper. 117. Bird v. Bird's Pat. Co., 33, 78. Birkshire, etc. R. Co., Winchester v., 137. Birmingham Gas Co., Smith v., 162. Birmington v. Wallis, 69. Bishop v. Brainerd, 143. Bishop v. Centralia, 200. Bishop, Wright v., 235. Bissell, Blanchard v.. 171. Bissell v. Jeffersonville, 193. Bissell v. Kankakee, 181, 225. Bissell v. Mich. S. R. Co., 31, 38, 55, 61. Bissell v. Spring Valley Town- ship, 226. Black v. Columbia, 219. Black v. Delaware Canal Co., 53, 70, 72, 137, 143. Black v. United Companies, 8. Blackburne v. Selma, etc. R. Co., 81. Blackburne Bldg. Soc. v. Cun- liffe, etc. Co., 96, 97. Blackshire v. Homestead, 87. Blackstone Canal, Fai-num v., 96. Blaikie, Aberdeen R Co. v., 153. Blair, Fogg v., 115. Blair v. Insurance Co., 100. Blake, Great Western R. Co. v., 129. Blake v. Mayor, 170. Blalock v. Kernesville Mfg. Co., 120. Blanchard v. Bissell, 171. Blanchard's Factory v. Warner, 81. Bland, Robinson v., 75. XX11 TABLE OF OASES CITED. References are to Sections. 'Blanke, Egmarm v., 120. Blasdell v. Fowler, 69. Blazier v. Miller, 117. Blen v. Bear River Co., 194 Bliss v. Anderson, 53. Bloodgood, Utica Ins. Co. v., 75. Bloom, Slee v., 107. Bloom v. Xenia, 170. Blunt v. Walker, 81. Board, etc., McDermott v., 172. Board of Commerce v. Legg, 210. Board of Education v. State, 225. Boardman v. Hayne, 190. Boardman v. Lake Shore E. Co., 124. Boffinger, St. Louis v., 177. Bogardus v. Trinity Church, 81. Bolles, Commissioners v., 238. Bolton v. San Antonio, 235. • Bond, Crawfordsville V;, 209. Boney, Louisville, etc. R. Co. v., 146. Bonham, Susquehanna Canal Co. v., 141. Bonner v. New Orleans, 135. Boogher v. Life Association, 162. Boom Co. v. Paterson, 86, 183. Boonville, Hunt v., 203. Booth v. Robinson, 96, 98, 122. Bornham, Canal Co. v., 15. Borough, etc. v. Fitzpatrick, 204 Borough of Reading, Green v., 203. Bornman, Penn v.< 69. Boston, Attorney-General v., 145. Boston, Baker v., 222. Boston, Brimmer v., 215. Boston, Burrill v., 190. Boston, Cavanagh v., 183, 212. Boston, Child v., 208. Boston, Dingley v., 212. Boston, Fisher v., 219. Boston, Hill v., 219. Boston, Lowell v., 69, 179, 181, 225. Boston, Nason v., 205. Boston, Shaw v., 176. Boston, Thayer v.. 162, 222. Boston Association, Roylston Market v., 170. Boston Carpet Co., Howe v., 122. Boston Mach. Co., American Tube "Works v., 116, 127. Boston, etc. R. Co. v. B. & M. Ry. Co., 8. Boston, etc. R. Co., Lightner v., 146. Boston, etc. R. Co., Middlesex R. Co. v., 137. Boston, etc. R. Co. v. New York, etc. Co., 137. Boston, etc. R. Co., State v., 81. Boston, etc. R. Co., Troy, etc. R Co. v., 9. Boston Water Power Co., Dupee v., 83. Bostwick, Brinkerhoff v., 156, 158. Bostwick, Fishkill Sav. Inst, v., 77. Bott v. Pratt, 172. Boucher v. New Haven, 205. Boulton v. Crowther, 203. Bound v. Wisconsin Cent. R Co., 197, 235. Bousquet, HuthsiDg v., 190. Bower, Corgill v., 158. Bowes, Patterson v., 198. Bowman, Eidman v., 110. Bowman, Insurance Co. v., 101. Bowman. Jackson v., 215. Boyce v. Montauk Gas Co., 52. Boyce, Wheeler Mfg. Co. v., 163. Bradford, Grant Co. v., 175. Bradford v, Mayor, 204, 206. Bradley v. Ballard, 58, 96. Bradley v. New York, etc. Co., 8. Bradley v. South Carolina Phos. Co., 8. Bradsall v. Clark, 173. Brady v. Mayor, 70, 189, 190, 194 201. Brainerd, Bishop v., 143.' Brain erd, Moore v., 129. Brainerd, New London v., 170, 175. Brainerd v. Railroad Co., 135. Brail, Agnew v., 195. Branch v. Charleston, 148. Branch v. Jessup, 9, 53, 137. Branch, Tomlinson v., 146, 148. Brandow, Dutch Church v., 95. Brannen v. Loving, 159. Breillat, Bank of Australasia v., 96, 98. Bremond, International R Co. v., 143. TABLE OF CASES CITED. XX111 References are to sections. Brenham v. German Am. Bank, 224, 230. Brenham v. Water Co., 170, 188. Brewer Brick Co. v. Brewer, 181. Briant, McCoy v., 170. Bridenbecker v. Lowell, 161. Bridge Co., East Hartford v., 199. Bridge Co. v. Frankfort, 191. Bridge Co. v. Land & Imp. Co., 8. Bridge Co. v. Metz, 145. Bridge Proprietors v. Hoboken, 8. Bridgeport, Davidson v., 77. Bridgeport, Gregory v., 188. Bridgeport v. Railroad Co., 170, 177, 201. Bridgeport Hydraulic Co., Nick- erson v., 219. Bridgewater Nav. Co., In re, 119. Brieswick v. Mayor, etc., 171. Briggs, Buckley v., 100. Briggs v. Cape Cod Canal Co., 168. Briggs, Chicago & A. By. Co. v., 8. Briggs v. Penniman, 107. Briggs v. Spaulding, 154, 156, 157, 158. Brigham, Caine v., 100. Brighton, People v., 86. Brimmer v. Boston, 215. Brinkerhoff v. Bostwick, 156, 158. •Brintnall v. Railroad Co., 129. Brisham v. Delaware, etc. R. Co., 126. Bristol v. Newchester, 186. British Am. Land Co. v. Ames, 166. British Cast-Plate Co. v. Mere- dith, 203. British Life Ins. Co., In re, 122. Briton, Police Jury v., 100, 223, 237. Broadwav Bank, Lionberger v., 91. Broadway Co. v. Hankey, 216. Broburg v. Des Moines, 205. Brockport, West v., 219. Brode v. Insurance Co., 100. Brodhead v. Milwaukee, 225. Brokaw v. New Jersey R. Co., 162, 164. Bromley, Smith v., 69. Bronson v. La Crosse R. Co., 53. Bronson, Oberlin v., 175. Brookfleld, Oheeney v., 190. Brooklyn v. City R. R, 215. Brooklyn, Mills v., 202, 208. Brooklyn G. R. Co. v. Slaughter, 9, 50. Brooklyn R. Co., Stewart v., 163. Brooks, Claihorne Co. v., 223, 237. Broughton v. Pensacola, 233. Broughton, Water Co. v., 50. Brown, Alexander v., 77. Brown, Duke v., 229. Brown, Eastern R. Co. v., 162. Brown, Jackson v., 84, 85. Brown, Joint-stock Co. v., 122, 158. Brown v. Lehigh Canal Co., 124, Brown v. Mayor, 194. Brown, Parkersburg v., 74, 181, 224. Brown, Shrewsbury v., 191. Brown, State v., 185. Brown, Steamboat Co. v., 129. Brown, Townsend v., 8. Brown, Tuckerman v., 108. Brown v. Vinalhaven, 213. Browning v. Owen Co., 222. Brownlee, Cashman v., 146. Bruce, Bank v., 120. Bruffett v. Great Western R Co., 146. Brunswick, Armstrong v., 212, 213. Brunswick G. L. Co. v. United Gas Co., 137. Bryan v. Chicago, etc. R. Co., 163. Bryan v. M. & P. R. Co., 129. Bryan v. Page, 191, 194. Bryson v. Philadelphia, 215. Buchanan v. Litchfield, 196, 224, 228, 232. Buck, Logan City v., 170. Buckeye Brewing Co., Easum v., 122. Buckeve Marble Co. v. Harvey, 72, 74, 123. Buckley v. Briggs, 100. Buckley v. Prescott, 205. Buena Vista Co., Carpenter v., 228. Buffalo, Hodges v., 194. Buffalo, Ketchum v., 100, 185, 188. Buffalo, La Couteulx, 185. Buffalo Ins. Co., Webster v., 5% Buffalo Oil Co. v. Oil Co., 162. XXIV TABLE OF CASES CITED. References are to sections. Buffalo R. R. Co., Soper v., 154 Buffit v. Troy, etc. R. Co., 13, 128. Buford v. Grand Rapids, 211. Buford v. Keokuk Pack. Co., 83, 131. Buhl, Richardson v., 148. Building Association. Franz v., 168. Building Association, Massey v., 101. Bullions. Robertson v., 93. Burch, Miller v., 212. Burke, New Albany v., 115. Burlington, French v., 196. Burlington, Mills Co. v., 195. Burlington, Rogers v., 225. Burlington, Starr v., 172. Burlington, etc. R. Co., Miller v., 163, 164. Burmeister v. Howard, 172. Burnham v. Webster, 160. Burnham, Wells v., 189. Burr v. Glass Co., 83, 100. Burr v. McDonald, 88, 96. Burrill v. Boston, 190. Burroughs v. Railroad Co., 129. Burt v. Rattle, 84, 119. Burton's Appeal, 83, 87. Butchers' Bank v. McDonald, 168. Butler, Lexington v., 228. Butts v. Cuthberson, 100. Byrnes v. Cohoes, 209, 211. Byrnes, Hutchins v., 87, 90. Byron, Metropolitan Co., 98. 0. ' Cabanniss, Danielly v., 177, 225. Cabot v. Rome, 188, 217. Cadwell, Utica Ins. Co. v., 75. Cahous, Sewell v., 200. Caine v. Brigham, 100. Calais, Woodcock v., 213. Caldwell, Louisville, etc. R. Co. v., 100. Caledonia R. Co. v. Helensburg, 70, 79. Calhoun, Kelly v., 89. California Pac. R. Co. v. Low, 136. Callenday v. Marsh, 203. Calloway Min. Co. v. Clark, 81. Camden v. Allen, 224. Camden, Miss. etc. R. Co. v., 237» Camden v. Mulford, 173, 174. Camden, Simmons v., 203. Camden, etc. R. Co., Elkins v., 131, 155. Camden, etc. R. Co. v. Forsyth, 129. Camden, etc. R. Co. v. May's Land- ing R. Co., 137. Cameron, Chicago v., 53. Cameron, Mathes v., 230. Campbell v. Marietta R. Co., 137. Campbell v. Montgomery, 203, 220. Campbell, Nebraska v., 220. Campbell's Case, 137, 147. Canaan, Coates v., 200. Canal Commissioners, Penn. Ry. v., 8, 12. Canal Co., Black v., 143. Canal Co. v. Borham, 15. Canal Co., Briggs v., 168. Canal Co., Conant v., 77. Canal Co., Farnum v., 145. Canal Co. v. Fulton Bank, 143, 148. Canal Co., Gue v., 141. Canal Co. v. Parnably, 220. Canal Co. v. Valette, 83, 91, 96, 100. Canal, etc. R. Co. v. St. Charles R. Co., 52. Canney, Ossepee Mfg. Co. v., 74, 75, 81. Canton, Leonard v., 170. Canton v. Nist, 172. Canton Masonio Society, Rock* hold v., 7. Cape Cod Canal Co., Briggs v., 168. Cape May, Green v., 170, 194. Capitol Bank, Pope v., 103. Capitol City Water Co. v. Mont- gomery, 217. Carey v. East Saginaw, 74. Carey, Ottawa v., 170, 225. Carey, Perin v., 93, 185. Carondelet, Taylor v., 213. Carpenter v. Buena Vista Co... 328. Carpentier, Oakland v., 215. Carr v. Le Fevre, 135. Carr v. Northern Liberties, 202,. 203. TABLE OF CASES CITED. XXV References are to sections. Carr v. Rogers, 61. Carr, Sherman v., 170. Carroll v. East St. Louis, 81. Carroll, Farmers' L. & T. Co. v., 9 14. Carroll Co. v. Smith, 190. Carter v. Howe Maoh. Co., 163. Carter v. Peck, 129. Carter, Pontiac v., 203. Carter, Wright v., 8. Carthage, Cullen v., 170. Case v. Kelly, 81, 85. Casey v. Galli, 112. Cashman v. Brownlee, 146. Cass v. Manchester, etc. Co., 53. Cass Co. v. Johnson, 227. Catherman, Hilbish v., 181. Caudy v. Knitting Co., 162. Cauldwell, Alexander v., 154, 194. Cavanagh v. Boston, 183, 212. Cecil, Lamb v., 91. Cedar County, Withelm v., 194. Cemetery Association v. New Haven, 183. Central Association, Alabama Ins. Co. v., 70, 96. Central Bank v. Empire Stone Co., 9. Central Bank, Merchants' Bank v., 77. Central Gold Min. Co. v. Piatt, 83. Central Ry. Co. v. Coggin, 146. Central Ry. Co. v. Collins, 9. Central Ry. Co. v. Georgia, 141, 143, 144, 148. Central Ry. Co., Low v., 9. Central Ry. Co., Morris Canal Co. v., 8. Central Ry. Co. v. Penn. R. Co., 121. Central Ry. Co. v. Smith, 163. Central Ry. Co., Stockton v., 137. Central Trans. Co. v. Pullman Co., 9, 10, 12, 37, 52, 53, 54, 55, 68, 69, 70, 72, 74, 78, 137, 138. Centralia, Bishop v., 200. Centralia v. Krouse, 206. Chadsey, Alvey v., 159. Chaffee v. Granger, 188. Chaffee v. Rutland R Co., 124. Chaffee Co. v. Potter, 53. Chamberlin v. Evansville, 176. Chamberlin v. Huguenot Mfg. Co., 51, 168. Chambers v. Baptist Society, 94. Chambers v. Falkner, 9, 53, 71, 99. Chambers v. Manchester, etc. R. Co., 70, 134.. Chambers v. Satterlee, 203. Chambers v. St. Louis, 81. Champaign v. Mclnnes, 205. Champlain Ry. Co. v. Valentine, 81. Chandler v. Bay St. Louis, 230. Chapin v. Greenlees, 120. Chapin v. Vermont, etc. R. Co., 135. Chapman v. Colby, 85. Chapman v. Douglas Co., 74, 233. Chapman, Walker v., 69. Charles River Bridge Co. v. Bridge Co.. 8. 9, 28. Charleston, Backman v., 194. Charleston, Branch v., 148. Charleston, Butler v., 201. Charleston, Feldman v., 181. Charleston, Johnston v., 206. Charlotte, Hill v., 202. Charlotte, Wilson v., 177. Charlton v. New Castle Ry. Co., 143. Charter Oak Ins. Co., iEtna Bank v., 9. Chase, Harvey v., 100. Cheeney v. Brookfield, 190. Chemical Bank v. Kohner, 161. Chesapeake & Del. Ry., Perrine v., 8, 12, 28, 81. Chesire, Smith v., 230. Chesire Glass Co., Dorley v., 51, 168. Chester, Bakersfleld, etc. Ass'n v., 51, 168. Chetlain v. Insurance Co., 120. Chewacla Lime Works v. Dis- mukes, 70. Cheyenne, Union Pac. Co. v., 177. Chicago v. Cameron, 53. Chicago, Clay burg v., 220. Chicago v. Cleveland, 126. Chicago v. Fowler, 204. Chicago, Fuller v., 196. Chicago, Garrison v., 196. Chicago, Kinzie v., 47. Chicago v. Laflin, 212. XXVI TABLE OF CASES CITED. References are to sections. Chicago, Maher v., 94, 191. Chicago v. McGiven, 205. Chicago v. McGraw, 222. Chicago v. Robbins, 206, 220. Chicago, Schnell v., 193. Chicago v. Stearns, 206. Chicago v. Trotter, 176. Chicago. Transportation Co. v., 81, 203. Chicago, Tugman v., 176. Chicago, Wheeler v., 191. Chicago, etc. Coal Co. v. Hall, 146. Chicago, etc. R. Co. v. Briggs, 8. Chicago, etc. R. Co., Bryan v., 163. Chicago, etc. R. Co., Chicago Co. v., 145. Chicago, etc. R. Co., Craker v., 163. Chicago, etc. R. Co., Ellerman v., 247. Chicago, etc. R. Co., Hodgman v., 235. Chicago, etc. R. Co. v. Howard, 96, 136. Chicago, etc. R. Co. v. Lake Shore, etc. R. Co., 143. Chicago, etc. R. Co. v. Marseilles, 120. Chicago, etc. R. Co. v. Moffitt, 144, 146. • Chicago, etc. R. Co., Peck v., 145. Chicago, etc. R. Co. v.* People, 129. Chicago, etc. R. Co. v. St. Anne, 240. Chicago, etc. R. Co. v. Union Pac. R. Co., 19, 71. Chicago, etc. R. Co., "Wiggins Ferry Co., 129. Chicago Gas Trust Co., People v., 121. 122, 137, 148. Chichester, etc. R. Co., Taylor v., 52, 55, 56, 70. Child v. Boston, 208. Childs v. Smith, 3. Chillicothe, Bank v., 96. Chin Yan, Ex parte, 1761 China, Estes v., 213. Chorn, Hadden v., 94. Chouteau v. Allen, 105, 194 Christian Union v. Yount, 166. Christian University v. Jordon, 78. Christopher v. Christopher, 189. Christy, Bell's Gap Ry. Co. v., 79. Chubb v. Upton, 106, 112. Church v. City, 172. Church, Donnelly v., 100. Church v. Sterling, 77. 128. Churchill, Frankfort Co. v., 79. Cincinnati. "Walker v., 170. Cincinnati, Wheeler v., 170, 219. Cincinnati Co. v. Rosenthal, 71. Citizens' Bank v. Wiegand, 159. Citizens' Building Ass'n v. Coriell, 156, 158. Citizens' Gas Co. v. Elwood, 216. Citizens', etc. R. Co., State Board v., 9. Citizens' Savings Ass'n v. Topeka, 181. Citizens' "Water Co. v. Hydraulic Co., 216. Citizens' Water Co., Sherwood v., 218. City, Anderson v., 175. City, Church v., 172. City, Commissioners v., 209. City of Aurora v. West, 237. City of Eufaula v. McNab, 224 City of Flora v. Nancy, 205. City of Kahoka, Hill v., 233. City of Kansas, Arn v., 211. City of Kansas, Barr v., 204. City of Louisville v. Bank, 215. City of Madison v. Baker, 211. Citv of Nevada, Norton v., 233. City of New York, Brady v., 189. City of Ohio v. New York, etc. R. Co., 124. City of Paterson, State v., 235. City of Raleigh, Tucker v., 96. City of Toledo v. Cone, 169, 170. City of Topeka v. Huntoon, 177. City Bank v. Bateman, 77. City Bank, Perkins v., 161. City Council, Davis v., 202. City Council v. Plank Road Co., 9,70. City Council, Stockton, etc. R. Co. v., 181. ■ City Council, Winter v., 239. City Gas Co., Norwich Gas Co. v., 216. 218. City Railroad. Brooklyn v., 215. Claffin V. South, etc. R. Co., 132. TABLE OF CASES CITED. XX VH Keferences are to sections. Claflin v. Hopkinton, 175. Clapp v. Peterson, 120. Claiborne County v. Brooks, 233, 237. Clarendon, Lewis v., 237. Clarendon Township, Young v., 223,230,237. Clark v. Bover, 115. Clark v. Bradsall, 173. Clark, Calloway M. Co. v., 81. Clark v. Davenport, 170. Clark v. Des Moines, 230. Clark v. Edgar, 158. Clark v. Farmers' Mfg. Co., 100. Clark v. Farrington, 14. Clark v. Hancock, 223. Clark, Harvester Co. v., 168. Clark v. Iowa City, 135. Clark v. Lyons Co., 194. Clark v. Omaha R. Co., 137. Clark v. School District, 100. Clark, State v., 171, 176, 181. Clark, Stoutmore v., 101, 168. Clark v. Sutton, 203. Clark v. Titcomb, 83, 96. Clarkin, Natoma, etc. Co. v., 81. Clarksburg, Richards v., 170. Clarkson, Bergen v., 173, 174. Clarksville, Gause v., 230. Clason v. Milwaukee, 176. Clay v. County, 237. Clay v. Grand Rapids, 207. Clayburg v. Chicago, 220. Clayers, Vermont Ry. Co. v., 3. Clearwater v. Meredith, 144, 147, 148. Cleary, Marquette v., 202. Cleburne, Coler v., 226. Cleneay, Junction R. Co. v., 135. Cleveland, Chicago v., 126. Cleveland, Rhodes v., 211. Cleveland v. St. Paul, 206. Cleveland, State v., 172. Cleveland, Western College v., 220. Cleveland, Williams College v., 220. Cleveland, etc. R. Co. v. Closser, 131. Cleveland, etc. R. Co., Conn. L. Ins. Co. v., 135. Cleveland, etc. R. Co., Mut. Ins. Co. v., 100. Cleveland, etc. R. Co. v. Prewitt, 146. Cleveland, etc. R< Co. v. Robbins, 126. Cleveland, etc. R. Co., Zabriskie v., 9, 53, 76, 135. Clinch v. Financial Corp., 142. Clinton, Donelson v., 206. Clinton v. Phillips, 176. Clinton, Ross v., 211. Clinton Water Works, Davis v.; 219. Close v. Glenwood Cemetery, 168. Closser, Cleveland, etc. R. Co. v., 131. Coal Float v. Jeffersonville, 176. Coal Valley Co., Peoria, etc. R. Co. v., 9. Coates v. Canaan, 200. Coates v. Donnell, 91. Coates, Gaines v., 216. Cobourg, etc. Ry. Co., Coyley v., 146. Cobshire, Aurora v., 200. Cochran, Kennedy v., 69. Coe, Pennock v., 8. Coggeshill v. Pelton, 95. Coggin v. Central R. Co., 146. Cohen v. Wilkinson, 53. Cohoes, Byrnes v., 209, 241. Coit v. N. Car. Gold Co., 108, 115. Coke Co., State v., 199. Colby, Bank v., 144. Colbj', Chapman v., 85. Cole, First Parish v., 92. Cole, Inhabitants, etc. v., 81. Cole v. La Grange, 181, 225. Coles v. Bank of England, 124. Coleman v. Columbia Oil Co., 120. Coler v. Cleburne, 226. College, State v., 83. Collerne v. London Bldg. Soc, 120. Collier, Ruggles v., 9. Collins, Central Ry. Co. v., 9. Collins v. Hatch, 212. Colman v. Eastern Counties Ry. Co., 9, 39, 136. Coloma v. Eavis„227, 228. Colorado Springs, Cornell v., 81. Colter v. Doty, 15. Columbia, Black v., 219. Columbia Co., Flint v., 87. XXV111 TABLE OF OASES CITED. References are to sections. Columbia Oil Co., Coleman v., 120. Columbus, etc. B. Co., MoAuley v., 143. Columbus, etc. E. Co. v. Powell, 146. Colvin, Sheridan v., 177. Combination Trust Co. v. Wild, 105. Commanche Co. v. Lewis, 228. Commercial Bank, Franklin Bank * v., 121. Commercial Bank v. Iola, 181, 225, 237. Commercial Bank. Lathrop v., 81. Commercial Bank v. Newport Mfg. Co.. 96, 100. Commercial Hotel, Eichwold v., 83, 91. Commissioners, Atchison, etc. R Co. v., 146, Commissioners v. Bolles, 238. Commissioners v. City, 209. Commissioners, Comm. v., 179. Commissioners v. Cox, 190. Commissioners v. Gas Co., 176, 212. Commissioners v. Goodrich, 212. Commissioners, Haag v., 222. Commissioners, Hadley v., 3, 12. Commissioners, Inhabitants v.. 86. Commissioners v. January, 238. Commissioners, Louisville v., 185. Commissioners, Memphis R. Co. v.. 141. Commissioners, Moran v., 193. Commissioners, Munn v., 96, 100. Commissioners, People v., 189. Commissioners, Pother v., 228. Commissioners v. Railway Co., 96. Commissioners, Reynolds v., 83. Commissioners, State v., 148, 173, 185. Commissioners v. Thayer, 227. Commissioners v. Worcester, 312. Commonwealth, Bank of Penn- sylvania v., 8, 12. Commonwealth v. Commission- ers, 179. Commonwealth, Erie Ry. Co. v., 8, 10, 12. Commonwealth v. Franklin Canal Co., 12. Commonwealth, Kepner v., 171. Commonwealth v. Markham, 182. Commonwealth v. Pittsburg, 100. Commonwealth v. Smith, 83, 133, 134, 137. Commonwealth, Society, etc. v., 3. Commonwealth v. Steffee, 176. Commonwealth, Williamsport v., 188. Commonwealth v. Worcester, 176. Compagnie Francaise v. Western Union Co., 121. Conant v. Canal Co., 77. Concord, Hubbard v., 205. Concord, Hutchison v., 204. Concord v. Robinson, 223, 228, 230, 237. Concord, etc. R. Co., Manchester, etc. R. Co. v., 130. Concord, etc. E. Co., Pearson v., 122. Cone v. Hartford, 207. Cone, Toledo v., 169, 170, 220. Conery v. New Orleans Water Works, 177. Congregational Church v. Trust- ees, 94. Congress, etc. Co., Knowlton v., 109, 119. Conn, Flash v., 166. Connecticut, etc. Ins. Co. v. Cleve- land, etc. R. Co., 100, 135. Connecticut Sav. Bank v. Fiske, 96. Conservators, etc. v. Ash, 3. Converse, Green Co. v., 144. Converse v. Norwich Trans. Co., 53. Conybeare, New Brunswick Ry. v., 162. Cook v. Milwaukee, 205, 220. Cook v. Tullis, 77. Cook Co. v. Hough, 81. Coombs, Ft. Wayne v., 207, 209, 211. Coon, People v., 195. Cooper v. Atlanta, 222. Cooper v. Corbin, 131. Cooper v. Curtis, 161. Coose, Sawyer v., 220. Copley v. Grover & B. Co., 162. Corbin, Cooper v., 131. Corgill v. Bower, 158. Cork, etc. R. Co., In re, 96. Coriell, Building Association v., 156, 158. TABLE OF CASES CITED. XXIX Keferences are to sections. Corn Exchange Bank v. Coal Co., 77. Cornell v. Colorado Springs, 81. Cornell v. Guilford, 175. Cornes, Gordon v., 225. Corporation of Ireland, Guiness v., 118. Corporation of Ireland, Knight v., 168. Corrigan v. Gage, 176. Corserv. Paul, 161. Corwith, Galena v., 50. Cory v. County of Somerset, 189. Coughlin v. Gleason, 189. Coulson v. Portland, 231. Coulter, St. Paul v., 171, 212. Council Bluffs, Dodge v., 166. Council Bluffs, Everett v., 212. Council Bluffs, Powers v., 220. Council Bluffs v. Stewart, 196. County, Clay v., 237. County, People v., 230. County Commissioners, Bentley v., 170. Countv Commissioners v. Ducket, 220. County of Daviess v. Huidekoper, 227. County of Douglas, Chapman v., 233. County of Jasper, Anthony v., 226. County of Moultrie v. Bank, 197. County of Randolph v. Post, 227. County of Somerset, Cary v., 189. Cousley, Screw Co. v., 79. Coventry, Evans v., 120. Covert v. Rogers, 91. Covington, Bateman v., 215. Covington, Harper v. 224 Covington, Haynes v., 201. Covington, Henderson v., 170, 175. Cowan v. Milburne, 69. Cowan v. West Troy, 189, 194 Cowdrey, Galveston v., 141. Cowell v. Springs Co., 166. Cowgill v. Long, 238. Cox, Lafayette v., 9. Goyley v. Cobourg, etc. R. Co., 146. Cozart v. Georgia, etc. R. Co., 52, 136, 137. Craig v. Andreas, 69. Craig v. Vicksburg, 135. Craigie v. Hadley, 162. Craker v. Chicago, etc. R. Co., 163. Crane, Unity Ins. Co. v., 3. Crawford v. Longstreet, 81. Crawfordsville v. Bond, 209. Creal v. Keokuk, 201. Crescent City G. L. Co. v. New Orleans G. L. Co., 216. Crescent City Ins. Co., New Or- leans v., 219. Creswell, Williams v., 166. Crocker, Shaw v., 203. Crompton, Pierce v., 167. Crompton v. Zabriskie, 198. Cropper, Birch v., 117. Cross, Lumsden v., 225. Crossett v. Janesville, 203. Crowther, Boulton v., 203. Crum's Appeal, 76. Culbertson, Butts- v., 100. Culbertson v. Fulton, 197, 231. Cull'en v. Carthage, 170. Cumberland, etc. Co., Exchange Bank v., 77. Cumberland, etc. Co., Hoffman, etc. Co. v., 153. Cumberland, etc. Co. v. Parish, 153. Cunliffe v. Manchester, etc. R. Co., 53. Cunliffe, B. & Co., Building So- ciety v., 96, 97. Cunliffe, Mayor, etc. v., 190, 222. Curran v. Arkansas, 107. Currier v. Lebanon Co., 120. Curry v. Mt. Sterling, 86. Curtis, Cooper v., 161. Curtis, Farmers' L. & T. Co. v., 81. Curtis v. Leavitt, 13, 74, 96, 98, 100. Curtis, Medomak Bank v., 77. Curtis v. Piedmont Co., 74. Curtis v. Whipple, 224 Curzon, Droitwich, etc. Co. v., 109, 113. D. Dabney v. Bank, 91. Dalley, Wakeman v., 158. XXX TABLE OE CASES CITED. References are to sections. Dana v. Bank, 14, 87. Danbury, etc. R. Co. v. "Wilson, 9. Dandridge, Bank of U. S. v., 13. 24, 28, 50, 76, 151, 154, 157, 160. Dandridge. Steam Nav. Co. v., 201. Danielly v. Cabanniss, 177, 225. Danville, Small v., 213. Danville Seminary, Nutt v., 7. Darling v. Bangor, 202. Darling v. Railroad Co., 129. Darling v. St. Paul, 173. Darnell, Coates v., 91. Darst v. Gale, 58. Darst v. People, 212. Dartmouth College v. Woodward, 9, 21, 28, 50. Dater v. Bank, 83. Davenport, Clark v., 170. Davenport, Davenport, etc.. Co. v., 197. Davenport, East Lincoln v., 238. Davenport, Grant v., 198, 217. Davenport, King v., 212. Davenport v. Mayor, 204. Davenport v. Ruckman, 220. Davenport, Van Pelt v., 209, 211. Davidson v. Bridgeport, 77. Davidson, Hayward v., 81. Davidson, Milne v., 172. Davidson v. Ward, 158. Davidson, Williams v., 170, 172. Davidson v. Young, 192. Daviess Co. v. Dickinson, 190, 224, 231. Daviess Co. v. Huidekoper, 227. Daviess Co., Ogden v., 229. Davis v. Anita, 176. Davis v. City Council, 202. Davis v. Clinton Water Works, 219. Davis v. Des Moines, 197. Davis, De Russey v., 170. Davis, Home Ins. Co. v., 166. Davis, Littlewort v., 70. Davis v. Mayor, 199. Davis v. Montgomery, 213, 219. Davis v. Old Colony R Co., 36, 47, 53. 136, 137. Davis v. Ren. & Sar. Ry. Co., 8. Davis' Case, 96. Dawson, Iron Co. v., 166. Dawson, Revanna Nav. Co. v., 8f,. 95. Day v. Mitford, 204. Day v.' Spiral Spring Co., 74 Dayton v. Quigley, 176. Dearborn, England v., 96. Dean v. Todd, 177. De Camp v. Atwood, 91. De Camp v. Dobbins, 81. Decatur, Hill v., 171. Decker, Evansville v., 209. Deering, Seele v., 213. De Grand, Russell v., 71. De Kay, Hackensack Water Coi v., 134. 135, 168. Delamon, New Orleans, etc. Co. v., 141. Delaware, etc. Co., Black v., 53, 70, 72, 137. Delaware, etc. Co., Brisham v., 126. Delaware, etc. Co. v. East Orange, 176. Delaware, etc. Co. v. Penn. Coal Co., 77. Delaware, etc. Co., Wasmer v., 137. Delaware Bay, etc. R. Co., Joint Co. v., 8. Delaware Tax Cases, 8, 145, 148. Deming Co., Roberts v., 74. Demon, Bank of Lyons v., 77. Denike v. Lime Co., 143. Denison, Barnett v., 229. Denison, Simpson v., 130. Denton v. Jackson, 3. «• Denver, etc. R. Co. v. Atchison,. etc. Co., 131. Denver, etc. R. Co. v. Harris, 162. Depere v. Bellevue, 186. Deposit Association, Lamm v., 194. Derby Fishing Co., Witte v., 15. Derinzy v. Ottawa, 203. De Russey v. Davis, 170. De Ruyter v. St. Peter's Church, 83. Des Moines, Broburg v., 205. Des Moines, Clark v., 230. Des Moines, Davis v., 197. Des Moines, Des Moines Gas Co. v., 172, 177, 216. Des Moines, Hauger v., 170. TABLE OF CASES CITED. XXXI References are to sections. Des Moines, Van Horn v., 219. Des Moines, etc. R. Co., Teachout v., 53. De Sota, Land v., 233. Des Plaines. Poyer v., 178. Detroit. Dewey v., 202. Detroit, Goodrich v., 50, 188. Detroit v. Hosmer, 189. Detroit, Mekellar v., 205. Detroit, Wilkins v., 189. Devian, Guenther v., 69. Dewey v. Detroit, 202. Dewitt v. San Francisco, 185. Deyo v. Otoe Co., 237. Dhlin, Insurance Co. v., 77. Dickerman, Somerville v., 170, 195. Dickinson, Daviess Co. v., 190, 224, 231. Dickinson v. Poughkeepsie, 191. Dickson v. United States, 82. Dill v. Inhabitants, eta, 201. Dill v. Wareham, 119. Dingley v. Boston, 212. Dingman v. People, 215. Dinsmore v. Atlantic, etc. R. Co., 137. Ditnpfell v. Ohio R. Co., 78. Dismukes, Chewacla Lime Works v., 70. Dispatch Line v. Bellamy Mfg. Co., 77. District of Columbia, Barnes v., 220. District of Columbia, Johnson v., 208. Dix v. Dummerston, 195. Dix, West River, etc. Co. v., 183. Dixon v. Baker, 211. Dixon Co. v. Field, 53, 190, 228, 232. Dixon Co., Hedges v., 73, 231. Dobbins, De Camp v., 81. Dodge, Council Bluffs v., 166. Dodge, Houghton v., 77. Dodge v. Woolsey. 53. Donnally, Parker v., 159. Donnell v. Lewis Co. Bank, 96. Donnelly v. Church. 100. Donohue, French v., 168. Donovan v. Green, 237. Dooley v. Chesire Glass Co., 51, 168. Dore v. Milwaukee, 203. Dorman v. Jacksonville, 203. Doty, Cotter v., 15. Dougherty v, Hunter, 159. Douglas, Auburn Plank Road Co. v., 8. Douglas, Niantic Sav. Bank v., 146. Douglas v. Placerville, 198. Douglas v. Virginia City, 50, 188. Douglas, Weismer v., 181, 237. Douglas Co., Chapman v., 74, 233, Doulson v. Clinton, 206. Dover & D. Ry. Co., McGregor v., 9, 55, 56. 70. Dow, Memphis, etc. R. Co. v., 96. Downey, 111. Cent. R. Co. v., 164. Downing v. Marshall, 82. Downing v. Mt. Washington, etc. Co., 9. 47. Doyle v. Austin, 181. Doyle v. Migner, 3. Drainage Commissioners, Elmore v., 221. Drake v. Lowell, 204. Drake v. Phillips, 198. Dranesburg v. Jenkins, 237. Drew, National Ex. Co. v., 162. Drew, Northern Cent. Co. v., 146. Drexel v. Town of Lake, 207. Droitwich, etc. Co. v. Curzon, 109( 113. Drurv v. Inhabitants, 94. Dry Docks Co. v. Hicks, 81. Dubuque, Gelpcke v., 135, 227, 238. Dubuque v. Maloney, 212. Dubuque. Manderchid v., 203. Dubuque, etc. R. Co. v. Litch- field, 9. Duckett, County Commissioners- v., 220. Duckwall v. New Albany, 175. Duke v. Brown, 229. Dummer, Wood v., 107. Dummerston, Dix v., 195. Duncomb v. N. Y. etc. R. Co., 105. Dunlap, Rabe v., 137. Dunlap, Ryan v., 161. Dunn, New Orleans, etc. v., 177. Dupee v. Water Power Co., 83, 120;. Durango v. Pendleton, 201. Durant v. Palmer, 206. Durer v. Hudson Co. Ins. Co., 77. xxxii TABLE OF CASES CITED. References are to sections. Dutch Church v. Brandow, 95. Dutch Church, Van Houton v., 94. Dyersburg, Norton v., 223, 230. E. Eakin v. St. Louis E. Co., 137. Eagle Bank. Hooker v., 77. Eagle Ins. Co., Strauss v., 9, 47, 50. Earl of Shrewsbury v. North Staf- ford Ry. Co., 70, 79. Earle, Bank of Augusta v., 8, 9, 26, 28, 47, 52, 103, 156, 157, 165, 167. Earle, Taylor v., 122. Early's Appeal, 120. East Anglian Ry. v. Eastern Coun- ties Ry., 9, 40, 53, 70, 72. East Haddam Bank, Goodspeed v., 162, 164. East Hartford, Bridge Co. v., 187, 199. East Lincoln v. Davenport, 238. East Montpelier, Montpelier v., 92. East Oakland v. Skinner, 190, 224, 238. East Orange, Delaware, etc. R. Co. v., 176. East Portland, Baltimore v., 201, 222. East River Bank v. Hoyt, 154. East Saginaw, Carey v., 74. East Saginaw, Stecket v., 201. East St. Louis, Carroll v., 81. East St. Louis, Gartside v., 178. East St. Louis v. Gas Light Co., 188, 216. East St. Louis v. St. John, 86. East St. Louis v. Wehrung, 173. East Tenn. etc. R. Co. v. Nelson, 129. East Tenn. etc. R. Co. v. Rogers, 129. East Warren, etc. L. Co., Senney v., 87. Eastern, etc. R. Co., Bagshaw v., 9, 53, 70. Eastern, etc. R Co. v. Brown, 162. Eastern, etc. R. Co., Coleman v., 9, 39. Eastern, etc. R Co. v. East An- glian, etc. Co., 9, 40, 53, 70, 72. Eastern, etc. R Co. v. Hawkes, 9, 52, 137. Eastern, etc. R. Co., Lynch v., 235. Eastern, etc. R. Co., March v., 124. Eastern, etc. R Co., Sturges v., 118. Eastern Plank Road Co. v. Vaughan, 3. Eastman v. Meredith, 219. Easum v. Buckeye Brew. Co., 122. Eaton v. Aspinwall, 106. Eaton, Nelson v., 96. Eaton v. Pacific Nat. Bank, 127. Eaton, etc. R. Co. v. Hunt, 145. Eau Claire, Smith v., 203. Eavis, Coloma v., 227, 228. Ebbw. Vale, eta Co., In re, 109, 113. Eby v. Guest, 120. Eddy, Jeverin v., 206. Edgar, Clark v., 158. Edison E. L. Co. v. New Haven, etc. Co., 144. Edwards v. Grand Junction R Cd., 77. Edwards v. Midland Ry., 162. Edwards, Springfield v., 196, 235. Egmann v. Blanke, 120. Eickemeyer, Sheldon Hat Co. v., 83, 106. Eidman v. Bowman, 110. Eldridge v. Smith, 141. Elkhorn Bank, Rockwell v., 96, 100, 134. Elkins v. Camden, etc. R Co., 131, 155. Ellerman v. Chicago, etc. R. Co., 47. Elliott v. Abbott, 160, 161. Elliott, Marietta, etc. R Co. v., 9. Elliott, M;,yor v., 95. Elliott v. Philadelphia, 219. Elliott, Union Bank v., 91. Ellsworth, Barbour v., 222. Elmore v. Drainage Commission, 221. Elmwood Township v. March, 238. Elwood, Citizens' Gas Co. v., 216. Ely v. Grand Rapids, 189. Ely, Hooper v., 198. Ely, N. Y. etc. Ins. Co. v., 12. Emerson v. Newburg, 194 TABLE OF CASES CITED. XXX1U Heferenees are to sections. Emery, Harper v., 235. Emery v. Mariaville, 230. Emery v. Ohio Candle Co., 148. Emery, Pierce v., 83, 91, 100. Emmet v. Reed, 77. ■ Empire Assur. Corp.. In re, 142. Empire Mfg. Co. v. Stewart, 167. Empire Stone Co., Central Bank v., 9. England v. Dearborn, 96. English v. People, 181. English Joint-Stock Co., Barwick v., 162. Episcopal Society v. Episcopal Church, 77. Erie, Grant v., 202, 219. Erie, Schwingle v., 221. Erie City Iron Works v. Barber, 162. Erie R. Co., Arnot v., 129. Erie R. Co., Belmont v., 53. Erie R. Co., Comm. v., 8, 10, 12. Erie R. Co., Heath v., 53. Erie R. Co., McGregor v., 145, 167. Erie R. Co., Pennsylvania v., 124. Erie R. Co., Vance v., 162, Erie R. Co., Woodruff v., 9. Erie Trans. Co., Stewart v., 9, 53, 129, 130. Ernest v. Balfour, 148. Ernest v. Nichols, 120. Errol, Rich v., 74, 75. Eschbach, Baltimore v., 190, 201, 222. Estelle v. Lake Crystal, 205, 206. Estes v. China, 213. Eufaula v. McNab, 185, 224. Eureka Basin Co., In re, 181. Eureka Flour Mills, Smith v., 47, 96, 100. European, etc R. Co. v. Poor, 153. Evans v. Coventry, 120. Evans, Holdworth v., 70. Evansville, Bishmeyer v., 219. Evansville, Chamberlin v., 176. Evansville, Decker v., 209. Evansville, Evansville R. Co. v., 177. Evansville R. Co. v. Androscog- gin, etc. Co., 129. Evansville R. Co., Fisher v., 143. Evening Journal Association v. McDermott, 162, Everett v. Council Bluffs, 212. Everhardt v. West Chester Ry. Co., 118. Ewing, Lincoln Sav. Bank v., 92. Ewing v. Robeson, 51, 168. Ewing, Shiras v., 218. Excelsior Co. v. Lacey, 156. Exchange Bank, Rice v., 219. Exchange Bank v. Sibley, 157, 158. Exchange Bank, Smith v., 103. Ex parte Chin Yan, 176. Ex parte Frank, 175. Ex parte Grady, 70. Ex parte Maude, 117. Ex parte Mayor, etc., 215. Ex parte Scholbred, 72. Ex parte Stanley, 125. Ex parte Williams, 135. Ex parte Williamson, 70, 98. Export Co., Taylor v., 120. Eyser v. Weissgarber, 74, 75. F. Fairbanks, Bank of Sonoma v., 225. Falkner, Chambers v., 9, 53, 70, 99. Fanning v. Schammel, 238. Farmers', etc. Bank v. Baldwin, 103. Farmers', etc. Bank v. Bank, 160. Farmers', etc. Bank, John v., 101. Farmers', etc. Bank v. Needles, 101. Farmers', etc. Bank, Phelps v., 124. Farmers', etc. Bank, Ridgeway v., 96, 100. Farmers', etc. Bank v. Sherman, 77. Farmers', etc. Bank, Spohn v., 12. Farmers', etc. Bank v. Transpor- tation Co., 129. Farmers' Ins. Co., Luthe v., 53. Farmers' L. & T. Co. v. Carroll, 9, 14 Farmers' L; & T. Co. v. Curtis, 81. Farmers' L. & T. Co., Harmock v., 131. Farmers' L. & T. Co. v. Insurance Co., 92. XXXIV TABLE OF CASES CITED. References ore to sections. Farmers' L. & T. Co., Eacine R. Co. v., 144, 145. Farmers' L. & T. Co. v. St. Joseph, etc. R. Co., 74, 131. Farmers' Mfg. Co., Clark v., 100. Farnsworth, Adams v., 191. Farnum v. Blackstone Canal, 96, 145. Farrington, Clark v., 14. Faulkner v. Aurora, 204. Faure Elec. Co., In re, 154 Fay v. Noble, 96, 100. Fell v. Gas Co.,' 144. Feital v. Middlesex R. Co., 139. Feitsam v. Hay, 137. Feldman v. Charleston, 181. Ferguson v. Meredith, 144. Ferris v. Ludlow, 109. Festial v. King's College, 124. Field, Dixon County v., 53, 190, 228, 232. Field v. West Orange, 203, 211. Fifth Ward Savings Bank v. First National Bank, 102, 159. File Works, McLennon v., 136. Filyaw, Bennett v., 129. Financial Corporation, In re, 113. Financial Corporation, Clinch v., 142. Finnegan, Roddy v., 172. Fireman's Ins. Co., Brode v., 100. First Cong. Soc. v. Atwater, 92. First National Bank v. Fricke, 77. First National Bank v. Graham, 163. First National Bank v. Pierson, 103. First National Bank v. Salem Mill, 120. First National Bank v. Savings Bank, 102, 159. First National Bank, Weckler v., 9,50. First Parish, etc. v. Cole, 92. Fish v. Mayor, 201. Fisher v. Boston, 219. Fisher v. Evansville R Co., 143. Fisher v. Harrisburg, 176, 207. Fisher, Morris Canal Co. v., 135. Fisher v. N. Y. etc. R Co., 146. Fisher, Schockley v., 91. Fishing Co., Bergen v., 91. Fishkill Savings Bank v. Bosfc- wick, 77. Fiske, Conn. Sav. Bank v., 96. Fiske, State v., 173. Fitchburg, Weare v., 205. Fitzpatrick, Borough, etc. v., 204 Flack v. Hughes, 235. Flagg, People v., 201. Flagg, Stone v., 3, 12. Flanagan, Kansas City v., 170. Flanders Bros., Academy of Music v., 168. Flash v. Conn, 166. Fleckner v. Bank, 21, 77, 103, 160: Flemming, Louisville, etc. R Co. v., 163. Fletcher, Atchison, etc. Co. v., 136. Flint v. Columbia Co., 87. Fogg v. Blair, 115. Fogg v. Railroad Co., 162. Fond du Lac, Kane v., 195. Foote, Newport Bridge Co. v., 203; Foote v. Pike Co., 227. Forbes v. Marshall, 96. Formholz v. Taylor, 74, 75. Forsvth, Camden, etc. R Co. v. r 129. Fortier v. New Orleans Bank, 53. Fort Scott, United States v., 196, Fort Wayne v. Coombs, 207, 209; 211. Fort Wayne, Grove v., 204 Fort Wayne Elec. Co., Keokuk v., 137. Fort Worth City Ry. v. Smith Bridge Co., 9. Foster, Iowa LumBer Co. v., 120. Foster v. Lookout Water Co., 219. Foster, McPherson v., 231, 232. Foundry Co., Stoddard v., 124. Fowler v. Athens City Water Works, 219. Fowler, Blasdell v., 69. Fowler, Chicago v., 204. Fowler v. Robinson, 107. Fowler v. Scully, 69. Fox v. New Orleans. 190. Fox, State Bank v., 120. Francis v. Troy, 170. Frank, Ex parte. 176. Frankenberg, Illinois Cent. R Cov v., 129. Frankfort, Bridge Co. v., 191. TABLE OF CASES CITED. XXXV References are to sections. Frankfort Co. v. Churchill, 79. Franklin Bank v. Commercial Bank, 121. Franklin Bank v. White, 69, 74, 75, 119. Franklin Bridge Co. v. "Wood, 3, 12. Franklin Canal Co., Comm. v., 12. Franklin County, German Sav. Bank v., 238. Franklin County v. Lewistown Inst., 9, 34, 53, 55, 70, 121. Franklin County, Maupin v., 190. Franklin Ins. Co. v. Hart, 79. Franklin Wharf Co. v. Portland, 208, 213. Franz v. Building Association, 168. Frasar v. Ritchie, 120. Frazee's Case, 175. Frazier v. Wilcox, 83, 166. Freeberg, Pitzman v., 237. Freeman, Home v., 141. Freeman v. Minn. etc. E. Co., 137. Freeman, State v., 176. Freher v. Geiseka, 74, 75. French v. Burlington, 196. French v. Donohue, 168. Fricke, First Nat. Bank v., 77. Fricke, Keithburg v.-, 238. Frost v. Belmont, 79. Frost v. Frostburg Coal Co., 168. Frothingham v. Barney, 122. Frye v. Tucker, 128. Fuller v. Atlantic, 203. Fuller v. Chicago, 196. Fuller v. Heath, 196. Fulton, Culbertson v., 197, 231. Fulton v. Lincoln, 170. Fulton Bank, Beach v., 25. Fulton Bank, Sharon Canal Co. v., 143, 148. Fulton County. Marsh v., 190, 191, 193. 194, 201, 224, 233. Furnell v. St. Paul, 205. Furniss v. Gilchrist, 96. G. Gabel v. Houston, 172. Gage, Corrigan v., 176. Gage v. Newmarket, 70. Gaines v. Coates, 216. Gale, Darst v., 58. Gale v. Kalamazoo, 173, 215. Galena v. Corwith, 50. Gallatin Turnpike Co., Hopkins v., 88. Galli, Casey v., 112. Galveston, Allen v., 170. Galveston v. Cowdrey, 141. Galveston, Hitchcock v., 62, 65, 193, 196, 233. Garrison v. Chicago, 196. Gartside v. East St. Louis, 178. Gas Co., Commissioners v., 176, 212. Gas Co. v. Des Moines, 172. Gas Co., East St. Louis v., 216. Gas Co., Fee v., 144. Gas Co., Grand Rapids, etc. Co. v., 199. Gas Co., Indianapolis v., 172. Gas Co. v. Light Co., 199, 216. Gas Co. v. Manufacturing Co., 144 Gas Co. v. Middleton, 199. Gas Co. v. San Francisco, 171, 191. Gas Co., State v., 215, 216, 218. Gas Light Co. v. Gas Co., 199. Gas Light Co., East St. Louis v., 188. Gas Light Co., Indianapolis v., 217. Gas Light Co. v. Saginaw, 199, 216. Gas Light Co., State v., 218. Gas Light Co. v. United Gas Co., 74. Gas Light Co., Young v., 53. Gassett v. Andover, 191. Gates v. Hancock, 194. Gatling Gun, In re, 114. Gause v. Clarkville, 230. Geiseka, Freher v., 74, 75. Gelpcke v. Dubuque, 135, 227, 238. Georg v. Nevada Central R. Co., 137. Georgetown, Goszler v., 21, 203. Georgetown, Perley v., 222. Georgia, Railroad Co. v., 141, 143, 144, 148. Georgia, etc. R. Co., Cozart v., 52, 136, 137. Georgia, etc. R. Co., Wilkes v., 53. XXXY1 TABLE OF OASES CITED. References are to sections. German Am. Bank, Brenham v., 224, 230. German Am. etc. Co., National Park Bank v., 136. German M. Co., In re, 96. German Savings Bank v. Frank- lin Co., 238. German Savings Bank v. Wulfe- kehlen, 120. Germantown Ins. Co., Dhlin v., v., 77. Gettys, Kerchner v., 166. Gibboney, Union Township v., 194 Gibbs' Case, 96. Gibbs, Mersey Docks v., 220. Gibbs, Overend & G. Co. v., 15*, 156. Gibson v. Goldthwaite, 159. Gifford v. Railroad Co., 198. Gilchrist, Furniss v., 96. Gildersleeve. Hinkley v., 9. Gilham v. Wells, 176. Gill, Baltimore v., 196, 198. Gill, Mayor, etc. v., 177. Gillette v. Missouri, etc. R. Co., 164. Gilliam v. South, etc. R. Co., 163. Gillison v. Charleston, 211. Girard, Vidal v., 92, 93, 94. Glasby v. Morris, 207. Glasgow v. Rouse, 181. Glass v. Ashbury, 170. Glass Co.; Beers v., 160. Glass Co., Burr v., 100. Gleason, Coughlin v., 189. Gleason, Mills v.. 194. Glenn, Baltimore, etc. R. Co. v., 166. Glenwood Cemetery, Close v., 168. Glidden v. Striplen, 61. Globe Works, Monument Bank v., 9, 32, 74, 100, 104, 162. Godbold v. Bank, 156. Goddard, Root v., 70. Godfrey, Metropolitan Bank v., 85. Goff v. Great Northern R. Co., 162. Gogreve, Barber Paving. Co. v., 189. Gold Mining Co. v. National Bank, 76. Gold Mountain Co., Morrison v., 79. Goldsmith, London v., 205. Goldthwaite, Gibson v., 159. Goldworthy, Smith v., 113. Gooch v. McGee, 86. Goodrich, Commissioners v., 212. Goodrich v. Detroit, 50, 188. Goodspeed v. East Haddam Bank, 162, 164. Goodwin v. Hardy, 124. Goodwin v. Ramsey Co., 230. Gordon v. Cornes, 225. Gordon v. Preston, 84. Gordon, Proprietors, etc. v., 77. Gordon's Ex'rs v. Richmond, etc. Co., 119. Gorrell v. Life Ins. Co., 96. Goszler v. Georgetown, 21, 203. Gottfried v. Miller, 91. Goundie v. Water Co., 81. Grady, Ex parte, 70. Grafton, Andover v., 230. Graham v. Albert Lea, 205. Graham, Lake Co. v., 53. Graham, National Bank v., 163, 163. Grand Chute v. Winegar, 228. Grand Junction, etc. Co., Ed- wards v., 77. Grand Junction, etc. Co., Haven v., 135. Grand Junction Water Works, Ware v., 53. Grand Lodge v. Waddell, 70. Grand Rapids, Buford v., 211. Grand Rapids, Clay v., 207. Grand Rapids, Ely v., 189. Grand Rapids, McBride v., 189 Grand Rapids, etc. Co. v. Grand Rapids, etc. Co., 170. Grand Rapids Elec. Co. v. Gas Co., 199. Grandjean, Slidell v., 9. Granger v. Bassett, 124, 126. Granger, Chaffee v., 188. Grangers', etc. Ins. Co. v. Kamper, 3, 109. Grant v. Davenport, 198, 217. Grant v. Erie, 202, 219. Grant Co. v. Bradford, 175. Grant Co., Richardson v., 191. Graves, Goszler v., 215. TABLE OF OASES CITED. XXXTU References are to sections. Gray v. Jackson, 129. Great Eastern Ry., Attorney-Gen- eral v., 42, 43, 44, 47. Great Luxemberg R. Co. v. Mag- nay, 153. Great Northern R. Co., Gofl v., 162. Great Northern R Co. v. Railway Co., 137. Great Northern Ry. Co., South Yorkshire, etc. R Co. v., 55, 70, 137. Great Western Ry. v. Blake, 129. Great Western Ry., Bruffett v., 146. Great Western, etc. Ry. Co., Hoole v., 118. Great Western, etc. Ry. Co.,' Mid- land Ry. Co. v., 130. Great Western, etc. Ry. Co., Root v., 129. Great Western, etc. Ry. Co. v. Rushout, 53. Greeley v. Nashua Sav. Bank, 53. Greeley v. People, 185. Green v. Borough of Reading, 203. Green v. Cape May, 170, 194 Green, Donovan v., 237. Green, Hutchison v., 155. Green v. Omnibus Co., 162. Green, State v., 146. Green, Underwood v., 212. Green Bay, etc. R. Co. v. Union S. S. Co., 9, 47, 53, 129, 136, 137. Green County v. Converse, 144. Green County, State v., 143. Greenbush, Parr v., 190. Greenville, Mauldin v., 231. Greenville Compress v. Planters' Press, 72, 74, 143. Greenville, etc. Co., Wiswall v., 9. Greenwood v. Louisville, 219. Greer, Pittsburg v., 220. Gregory v. Bridgeport, 188. Gregory v. Jersey City, 189. Gregory v. Patchett, 70. Greiner v. Ulery, 101. Griffin v. New York, 206. Grimes v. Hamilton, 195. Griswold, Arthur v., 158. Griswoldville, Ward v., 107. Grove v. Fort Wayne, 204. Grover & Baker Co., Copley v., 162. Gruber v. Washington, etc. R. Co., 162, 163. Guaga Iron Co. v. Dawson, 166. Guaranty Co., Jones v., 66. Gue v. Canal Co., 141. Guenther v. Devien, 69. Guest, Eby v., 120. Guiness v. Corporation of Ireland, 118. Gunness v. Land Corporation, 55, 56. Gunter v. Leckey, 69. Gurno, St. Louis v., 203. Guthrie Co., Tracy v., 76. H. Haag v. Commissioners, 222. Habersham, Jones v., 81, 93. Hackensack, etc. Co. v. De Kay, 134, 135, 168. Hackensack, etc. Co., Zabriskie v., 53. Hackett v. Ottawa, 227, 229. Hackettstown v. S wackhamer, 96. Hadden -v. Chorn, 94. Haddersfleld, Corporation of Ire- land v., 86. Hadley, Craigie v., 162. Hadley v. Commissioners, 3, 12. Hafford v. New Bedford, 219. Hague v. Philadelphia, 194. Hale v. Houghton, 217. Hall, Chicago, etc. Coal Co. v., 146. Hall v. Paris, 53, 74. Hall, Skinner v., 129. Hall v. Sullivan R Co., 141. Hall v. Swansea, 74. Hallowell Bank v. Hamlin, 159. Halsey, Ackerman v., 158. Halstead v. Mayor, 175. Ham, Railroad Co. v., 144. Hamilton v. McLaughlin, 87. Hamilton v. New Castle Ry. Co., 96, 100, 128. Hamilton, Vail v., 9. Hamilton Co., Grimes v., 195. Hamlin, Hallowell Bank v., 159. Hamm, McConnell v., 181. xxxvm TABLE OF CASES CITED. References are to sections. Hammett v. Philadelphia, 325. Hammond v. Straus, 51, 168. Hammonton, State v., 188. Hams, New Orleans, etc. E. Co. v., 137. Hancock, Clark v., 223. Hancock, Gates v.,. 194. Hancock v. Holbrook, 83. Hancock, Howson v., 74, 75. Handley v. Stutz, 107, 109, 110, 112, 117. Hankey, Broadway Co. v., 216. Hanmer, Peninsular Bank v., 77. Hannauer Oil Works, Mallory v., 53, 70, 148. Hanover Sav. Ass'n, Larwell v., 96. Hansborough, Upton v., 51, 168. Hanser, State v.. 173. Hanson, Merchants' Bank v., 53. Hanson v. Vernon, 181, 224. Hapgood, Penn. Match Co. v., 79. Harbeck v.. Toledo, 183. Harding, etc. v. Eockford, 223. Hardy, Goodwin v., 124. Hardy v. Merri weather, 100. Hare v. London, etc. E. Co., 130. Harmock v. Farmers' L. & T. Co., 131. Harned, Manhattan B. Co. v., 127. Harper v. Emery, 225. Harrington, Webster v., 198. Harris, Denver, etc. E. Co. v., 162. Harris v. McGregor, 3. Harris, People v., 185. Harris v. Eunnels, 69. Harris v. San Francisco E. Co., 126. Harrisburg, Fisher v., 176, 207. Harrison v. State, 199. Hart, Franklin Ins. Co. v., 79. Hartford, Cone v., 207. Hartford, Manchester v., 205. Hartford, Portland Ey. Co. v., 235. Hartford, etc. Co. v. Sprague, 145. Hartford Bridge Co. v. East Hart- ford, 187. Hartridge v. Eockwell, 120. Hartwell, Jackson v., 15, 185. Harvey v. Chase, 100. Harvey, Marble Co. v., 72, 74, 123, 136. Hasbrouck v. Milwaukee, 235. Hascall v. Life Association, 100. Haskell, Bank v., 161. Haskell v. New Bedford, 208. Hastelow v. Jackson, 69. Hasty, Baumgartner v., 212. Hat Co., Priest v., 168. Hatch v. Barr, 87, 90. Hatch, Collins v., 212. Hauger v. Des Moines, 170. Haven v. Adams, 87. Haven v. Grand June. etc. E. Co., 135. Hawkes, Eastern Counties Ey. Co. v., 9, 52, 137. Hay, Feitsam v., 137. Hayden, Leland v., 120. Hayes v. Appleton, 170. Hayes v. Holly Springs, 190, 324, 229. Hayes v. Oshkosh, 219. Hayne, Boardman v., 190. Haynes v. Covington, 201. Hay ward. v. Davidson, 81. Haywood v. Pilgrim Society, 77. Hazlehurst v. Savannah E. Co., 53, 121. Head v. Providence Ins. Co., 21, 28, 37, 47, 50, 70, 170. Heath v. Erie R Co., 53. Heath, Fuller v., 196. Heathorn, Benson v., 153. Heck v. McEwin, 3. Hedges v. Dixon County, 73, 231. Hedges v. Paquett, 156. Hedley, Williams v., 69. Heenrich v. Pullman Co., 163. Heineberg, Page v., 81. Heland v. Lowell, 171, 172. Helensburg, Caledonian Ey. v., 70, 79. Helfrich v. Williams, 164, Heller v. Sedalia, 219. Hempsted, North Hempsted v., 187. Henckes v. Minneapolis, 205. Henderson v. Covington, 170, 175. Henley, Mayor v., 220. Henley, Warren v., 181. Hennesy v. St. Paul, 53. Henry Co., Eedd v., 235. Hensley v. People, 225. Herkimer, Ind. etc. M. Co. v., 3. Herley, Mayor v., 162. TABLE OF CASES CITED. XXXIX References are to sections. Heme Bay, Webb v., 134. Herriok, Allen v., 127. Heurson v. New Haven, S13. Hewison v. New Haven, 204. Hewitt v. School District, 223. Hicks, Dry Docks Co. v., 81. Hicks, Mott v., 96, 100. Higert v. Green Castle, 205. Hightower v. Thornton, 106. Hilbert, St. Louis Carriage Co. v., 120. Hilbish v. Catherman, 181. Hildreth v. Lowell, 86. Hill v. Boston, 219. Hill v. Charlotte, 202. Hill v. City of Kahoka, 233. Hill v. Decatur, 177. Hill v. Nisbet, 121. Hill Mfg. Co. v. Railroad Co., 129. Hill v. Memphis, 223, 229, 237. Himmelmann v. Hoadley, 201. Hines v. Lockport, 202. Hinkley v. Gildersleeve, 9. Hitchcock v. Galveston, 62, 65, 193, 196, 233. Hitchins Bros. v. Maybard, 211. Hoadley, Himmelmann v., 201. Hoag, Sawyer v., 103. Hoboken, Bridge Proprietors v., 8. Hoboken, North Hudson Co. v., 182. Hoboken. State v., 182. Hodges v. Buffalo, 194. Hodges v. Screw Co., 83, 122, 154, 156. Hodgmau v. Chicago, etc. R. Co., 235. Hodgson v. Powers, 53. Hoff, Baker v., 69. Hoffman, Moore v., 178. Hoffman, etc. Co. v. Cumberland, etc. Co., 153. Hogie v. People's Association, 120. Holbrook v. Bassett, 96. Holbrook, Hancock v., 83. Holdsworth v. Evans. 70. Holland v. San Francisco, 9, 14. Hollister, Salt Lake City v., 9, 53, 74, 163, 222, 233. Holly Springs, Hayes v., 190, 224, 229. Holmes v. Johnson, 69, 71. Holmes v. Mead, 82. Holmes, etc. Mfg. Co. v. Holmes, etc. Co., 121. Holt v. Bacon, 161. Holt, Wahl v., 129. Holt v. Walworth, 107. Holt v. Winfleld Bank. 159. Home v. Boston Carpet Co., 122. Home v. Freeman, 141. Home v. Keeler, 194. Home Ins. Co., Seignouret v., 113. Homestead, Blackshire v., 87. Hood v. Lynn, 175. Hood v. Railroad Co., 13, 29, 53, 129, 164. Hooker v. Eagle Bank, 77. Hoole v. Great Western R. Co., 118. Hooper v. Ely, 198. Hope v. International Co., 120. Hopkins v. Swanson, 172. Hopkins v. Turnpike Co., 88. Hopkins, Yancey v., 190. Hopkinton, Claflin v., 175. Hopper v. Covington, 224. Horn v. Baltimore, 201. Horn v. People, 171. Horton v. Thompson, 194. Hosmer, Detroit v., 189. Hoth, United States Bank v., 83, 100. Hough v. Cook Co., 81. Houghton v. Dodge, 77. Houghton, Hale v., 217. Housatonic R. Co., Bridgeport v., 170. 177. House, Imhoff v., 74, 75. House v. Montgomery Co., 204. Household Mach. Co., Anthony v., 119. Houston, Gabel v., 172. Houston & T. C. R. Co. v. Shirley, 142, 144. Hovelman v. Kansas City, etc. Co., 216. Hovey v. Mayo, 177, 203. Howard, American Academy v., 94. Howard, Bermeister v., 172. Howard, Chicago, etc. Co. v., 96, 136. Howard, Railroad Co. v., 9. Howard v. San Francisco, 219. 2d TABLE OF CASES CITED. References are to sections. Howard, Stein v., 115. Howard, Thornton v., 94. Howard, White v., 82. Howe, In re, 93. Howe, N. Y. Inst, v., 95. Howe, Brown & Co., Tool Co. v., 84. Howe Machine Co., Carter v., 162. Howe Machine Co., Webster v., 104. Howson v. Hancock, 74, 75. Hoyle v. Plattsburg, etc R. Co., 153. Hoyt, East River Bank v., 154. Hoyt, Reed v., 91. Hoyt, Thompson v., 159. Hubbard v. Concord, 205. Hubbard v. Investment Co., 55. Hubbardston, Stone v., 205. Hudson, York, etc. R. Co. v., 153. Hudson Co. Ins. Co., Durar v., 77. Hughes, Flack v., 235. Huguenot Mfg. Co., Chamberlin v., 51, 168. Huidekoper, Daviess Co. v., 227. Hull Glass Co., Smith v., 77. Humboldt v. Long, 53. Humboldt M. Co. v. Am. Com. Co., 136. Humes v. Mayor, 203, 204. Humphrey v. Patrons' Mer. Ass'n, 77, 168. Hunt, Barber Asphalt Paving Co. v., 189. Hunt v. Boonville, 203. Hunt, Eaton, etc. Co. v., 145. Hunt v. Knickerbocker, 69, 71. Hunter, Dougherty v., 159. Huntoon, City of Topeka v., 177. Hurford v. Omaha, 170. Hussey v. King, 164. Hussey v. Norfolk R. Co., 162. Hutchins v. Byrnes, 87, 90. Hutchins, Lake Shore, etc. R. Co. v., 146. Hutchinson v. Concord, 204. Hutchinson v. Green, 155. Huthsing v. Bousquet, 190. Hutson v. Mayor, 204. Hyde Park v. Oakwood, 183. Hydes v. Joyes, 173. Hydraulic Co., Citizens' Water Co. v., 216. Ice Co., Mott v., 164 Illinois, Turnpike Co. v., 8. Illinois Canal Co. v. St. Louis, 215, Illinois Cent. R. Co. v. Downey, 164. Illinois Cent. R. Co. v. Franken- berg, 129. Illinois Cent. R. Co. v. Johnson, 129. Imhoff v. House, 74, 75. Ind. Car Co. v. Parker, 210. Ind. etc. Co., Indianapolis v., 170, 1 88 Ind. Roll. Mill Co. v. Railroad Co., 159. Indiana, etc. R. Co., Ohio, etc. R. Co. v., 137. Indianapolis v. Gas, etc. Co., 172, 217. Indianapolis v. Ind. etc. Co., 170, 188. Indianapolis v. Scott, 210. Indianapolis v. Tate, 211. Indianapolis Ins. Co., Ray v., 101. Indianapolis, etc. M. Co. v. Herki- mer, 2. Indianapolis, etc R. Co. v. Jones, 146. Indianapolis, etc. R. Co., Mowrey v., 144. Indianapolis, etc R Co., Smead v., 9, 96. Inhabitants, etc., Allen v., 170, 224. Inhabitants, etc v. Cole, 81. Inhabitants, etc v. Commission- ers, 86. Inhabitants, etc., Dill v., 201. Inhabitants, etc. v. Field, 211. Inhabitants, etc, Morrison v., 134. Inhabitants, etc. v. New Orleans, 177. Inhabitants, etc., Prout v., 195. Inman v. Tripp, 211. In re Addleston Co., 117. In re Albert Association Co., 137. In re Assurance Co., 168. In re Almada & Tirito Co., 117. In re Bangor & State Co., 148. In re Bank of Hindustan, 142. In re Barrow, etc Co., 114, TABLE OF CASES CITED. xli References are to sections. In re Bridgewater Nav. Co., 119. In re British Life Ins. Co., 122. In re Building Society, 70. In re Cork, etc. R. Co., 53, 73, 74, 96. In re Corporation of Haddersfleld, 86. InreEbbw. Vale, etc. Co., 109, 113. In re Empire Assurance Corpora- tion, 142. In re Eureka Basin Co., 181, In re Faure Elec. Co., 154 In re Financial Corporation, 113. In re Gatling Gun, 114. In re German M. Co., 96. In re Howe, 93. In re Insurance Co., 120. In re International Ins. Co., 96. In re London, etc. R. Co., 120. In re Marseilles, etc. Co., 120. In re Mt. Washington, etc. Co., 86. In re New York, etc. Co., 8. In re Northern Coal Min. Co., 120. In re Phoenix Co., 74. In re Pyle Works, 125. In re Quebrada By., 114 . In re Sage, 145. In re Sankey Brook Coal Co., 125. In re Sea Foam, etc. Ins. Co., 74 In re Union Plate Glass Co., 114 In re United Service Co., 120. In re Washington Avenue, 225. In re Weymouth Packet Co., 117. Insurance Co., iEtna Nat. Bank v., 136. Insurance Co., Agar v., 160. Insurance Co., Attorney-General v., 100. Insurance Co., Beatty v., 47. Insurance Co., Blair v., 100. Insurance Co., Chetlain v., 120. Insurance Co., Farmers', etc. Co. v., 92. Insurance Co., Jones v., 172. Insurance Co., Kennebec Co. v., 166. Insurance Co., Life & Fire Ins. Co. v., 162. Insurance Co., Liverpool, eta Co. v., 9. Insurance Co., Maynard v., 162. Insurance Co., McCullough v., 168. Insurance Co., Mumford v., 100. Insurance Co., Nichol v., 160. Insurance Co., Ramsey v., 168. Insurance Co., Smith v., 70. Insurance Co., Southall v., 143. Insurance Co., Susquehanna, etc. Co. v., 84 Insurance Co., Vance v., 156. Insurance Co., Williams v., 162. International, eta Co. v. Bre- mond, 143. International, eta Co., Hope v., 120. International, eta Co., Kentle v., 163. International, etc. Co. v. United States, 77. Investment Co., Hubbard v., 155. Iola, Commercial Bank v., 181, 225, 237. Iowa City, Clark v., 135. Iowa Lumber Co. v. Foster, 120. Iowa Mountain Bank v. Mercan- tile Bank, 162. Irish v. Railroad Co., 129. Iron R. Co. v. Ironton, 86. Irvine v. Union Bank. 78. Isham v. Bennington Ins. Co., 90. Ithica, Saulsbury v., 205. Ives v. Smith, 131. J. Jackson v. Bowman, 215. Jackson v. Brown, 84, 85. Jackson, Denton v., 3. Jackson, Gray v., 129. Jackson v. Hartwell, 15, 185. Jackson, Hastelow v., 69. Jackson's Adm'rs v. Plank Road Co., 124 Jacksonville, Dorman v., 203. Jacksonville v. McConnel, 47. Jacksonville, Murphy v., 175. Jacobs, Union Bank v., 96, 98, 100. James v. Portage, 200. Janesville, Crossett v., 203. January, Commissioners v., 238. Jasper County, Anthony v., 226. Jefferson County v. Arrighi, 194 xlii TABLE OF CASES CITED. References are to sections. Jeffersonville, Bissell v., 193. Jeffersonville, Coal Float v., 176. Jeffersonville, Shallcross v., 175. Jenkins v. Andover, 224. Jenkins, Dranesburg v., 237. Jermain v. Lake Shore E. Co., 124. Jersey City, Banking Co. v., 178. Jersey City, Gregory v., 189. Jersey City, Keeney v., 189. Jersey City, McConvill v., 175. Jersey City, Rouede v., 227. Jersey City, State v., 173, 174, 176, 235. Jersey City, Trapshagen v., 207. Jessup, Branch v., 9, 53. Jeverin v. Eddy, 206. Jewett v. New Haven, 219. John v. Farmers' Bank, 101. Johnson, Cass County v., 227. Johnson v. Dispatch Co., 162. Johnson v. District of Columbia, 208. Johnson, Holmes v., 69, 71. Johnson, 111. Cent. R. Co. v., 129. Johnson, Kean v., 137. Johnson, Musser v., 87. Johnson, "Northern Bank v., 161. Johnson v. Philadelphia, 215. Johnson v. Shrewsbury, etc. R. Co., 71, 137. Johnson v. Utica Water Works, 86. Johnson, Wood v., 96, 100. Johnson County v. McClintock, 235. Johnston v. Charleston, 206. Johnston, Meyer v., 143. Johnston Harvester Co. v. Clark, 168. Johnston, etc. R. Co., Abbott v., 137. Joint Co. v. Delaware Bay Ry. Co., 8. Joint-Stock Co. v. Brown, 122, 158. Jones v. Bank, 168. Jones v. Guaranty Co.. 66. Jones v. Habersham, 81, 93. Jones v. Ind. etc. R. Co., 146. Jones v. Insurance Co., 172. Jones v. New Haven, 220. Jones, Quincy v., 203. Jones v. Richmond, 188. Jones, Stewart v., 141. Jones v. Terre Haute R. Co., 124. Jones, Wetherell v., 55. Jordon v. Alabama R. Co., 162. Jordon, Christian Union v., 78. Joy, Allen v., 181, 225. Joy, Bean v., 195. Joy v. St. Louis, 128, 146. Joyes, Hydes v. 173. Junction R. Co., Cleneay v., 135. Junction R. Co., McCrary v., 53, 147. K. Kaine, St. Louis v., 172. Kaist v. St. Paul, 203. Kalamazoo, Gale v., 173, 215. Kalamazoo, Shelden v., 163. Kamper, Grangers' Ins. Co. v., 3, 107. Kane v. Fond du Lac, 195. Kankakee, Bissell v., 181, 225. Kansas City v. Flanagan, 170. Kansas City v. Kiley, 213. Kansas, etc. Co., Hovelman v., 216. Kean v. Johnson, 137. Kean y. Van Reuth, 168. Keeler, Howe v., 194. Keeler, Mead v., 100. Keeney v. Jersey City, 189. .Keithburg v. Frick, 238. Keller v. Leavenworth, 230. Kelley, Louisville R. Co. v., 163. Kelley v. Milan, 223. Kelly v. Calhoun, 89. Kelly, Case v., 81, 85. Kelly v. Mayor, etc., 96, 100. Kelly v. Meeks, 170. Kelly v. Milwaukee, 177. Kendall Co., Post v., 190. Kennebec Co. v. Insurance Co.,, 166. Kennedy v. Cochran, 69. Kennedy v. Phelps, 212. Kennicott v. Supervisors, 228. Kenosha, Paul v., 74, 191. Kent v. Quicksilver M. Co., 96, 106. 124, 127. Kentle, International, etc. Co. v., 163. Keokuk, Creal v., 201. TABLE OF CASES CITED. xliii References are to sections. Keokuk v. Ft. Wayne Elec. Co., 137. Keokuk v. Soroggs, 170. Keokuk, etc. Bridge Co., Pitts- burg, etc. E. Co. v., 9, 47, 52, 53, 54, 69, 74, 76. Keokuk Packing Co., Buford v., 83, 121. Keokuk, etc. R. Co., State v., 144. Keokuk Water Works, Becker v., 219. Kep, Utica Ins. Co. v., 69. Kepner v. Commonwealth, 171. Kerchner v. Gettys, 166. Kernaghan v. Williams, 53. Kernesville Mfg. Co., Blalock v., 120. Kerr, Troy, etc. R. Co. v., 137. Kersey Oil Co. v. Oil Creek R. Co., 139. Ketchum v. Buffalo, 100, 185, 188. Ketchum, N. Y. etc. Co. v., 79. Keyser v. School District, 77. Kiel, Morris v., 87. Kiley, Kansas City v., 213. Killam, Lawrence v., 188. King v. Davenport, 212. King, Hussey v., 164. King v. Patterson, 124, 126. King, Phillips Academy v., 92. King, Trustees v., 95. King, Warren v., 119. King, Wood Hydraulic Co. v., 166. King Mountain Min. Co., Nason v., 87. King's College, Festial v., 124. Kinmundy v. Mayham, 173. Kinzie v. Chicago, 47. Kip, ST. Y. etc. E. Co. v., 86. Kip v. Paterson, 176. Kipp v. Mayor, 176. Kirkham v. Russell, 170, 176. Kneeland, Lathrop v., 109. Kneeland v. Milwaukee, 189. Kneeland, Tombigbie v., 165, 166. Knickerbocker, Hunt v., 69, 71. Knight v. Corporation, 168. Knitting Co., Caudy v., 162. Knowler, Beaty v., 8, 13, 47. Knowlton v. Congress, etc Co., 109, 119. Knowlton, Spring Co. v., 69, 73, 138. Knox Co. v. Aspinwall, 135, 190, 193, 227. 228. Knox Ins. Co., Ogilvie v., 108. Kohner, Chemical Bank v., 161. Konrad v. Rogers, 185. Krightly, Oliver v., 198. Krouse, Centralia v., 206. Krulevitz v. Eailroad Co., 162. Kyle v. Railroad Co., 129. Lacey, Excelsior Co. v., 156. Lacey, Orr v., 70. Lacon, Barnes v., 237. La Crosse R. Co., Bronson v., 53. Lafayette, Allen v., 233. Lafayette v. Cox, 9. Lafayette Ave. Bank v. St. Louis S. Co., 9. Lafayette R. Co., 'Tippecanoe Co. v., 53, 78. Laflin, Chicago v., 212. La Grange, Cole v., 181, 225. Laing v. Reed, 98. Laing, Solomon v., 53, 121. Laird v. De Sota, 233. Lake, Terre Haute v., 201. Lake County v. Graham, 53. Lake County, Sutliff v., 53. Lake Crystal, Estelle v., 205, 206. Lake Erie Ins. Co., Valley R. Co. v., 121. Lake Erie, etc. R. Co. v. Acres, 163. Lake Erie, etc. R. Co., Paine v., 144, 146. Lake Shore, etc. E. Co., Board- man v., 124. Lake Shore, etc. R. Co. v. Hutch- ins, 146. Lake Shore, etc. R. Co., Jermain v., 126. Lake Shore, etc. R Co., Sage v., 145. Lake View v. Letz, 212. Lamb v. Cecil, 91. Lamb, Powder River, etc. Co. v., 74, 75. Lambert, Thompson v., 96. Lamm v. Deposit Association, 194, xliv TABLE OF OASES CITED. Eeferences are to sections. Lamont, Thompson v., 84. Lampkin, Nebraska City v., 303. Lamson, Boom Co. v., 3. Lancaster, Miller, etc. R Co. v., 144. Lancaster, Savanna R Co. v., 96. Lancaster, Steck v., 200. Land v. Coffmann, 81. Land Credit Co. v. Lord Fermoy, 158. Land Corporation of Ireland, Gun- hiss v., 55, 56. Land & Improvement Co., Bridge Co. v., 8. Lane's Case, 110. Langstone v. S. C. R. Co., 135. Lanier, Southern Ins. Co. v., 14, 74. Lansing v. Toolan, 203. Laramie Co. v. Albany Co., 186. Larned, Randolph, v., 141. Larue, Minturn v., 170, 199. Larwell v. Hanover Savings Bank, 96. Lathrop, Commercial Bank v., 81. Lathrop v. Kneeland, 109. Laughton v. Hughes, 71. Lauman v. Lebanon V. R. Co., 137, 142, 144, 147. Law v. People, 196, 197, 231. Lawrence v. Killam, 188. Lawrence, Morrison v., 213, 222. Layten, Osgood v., 108. Lead Co., Mechanics' Association v., 100. Leasure v. Life Insurance Co., 166. . Leavenworth, Keller v., 230. Leavenworth v. Miller, 225. Leavitt, Curtis v., 13, 74, 96, 98, 100. Leavitt v. Palmer, 74. Leazure v. Hillegas, 81. Lebanon Co., Currier v., 120, 137, 142, 144. Lebanon V. R. Co., Lauman v., 137, 142, 144, 147. Leckey, Gunter v., 69. Le Claire, Springfield v., 220. Le Couteulx v. Buffalo, 185. Lee, Morris v., 157, 158. Lee, Thompson v., 238. Leech, Waters v., 176. Le Fevre, Carr v., 135. Legg, Board of Commissioners v_ 210. Leggett v. Banking Co., 84 Leggett v. New Jersey Mfg. Co, 8, 13. Lehigh Canal Co., Brown v., 124. Lehigh Water Co.'s Appeal, 216. Lehman v. Tallassee Mfg. Co.. 105, 135. Leland v. Hayden, 120. Leo v. Union Pacific R. Co., 105. Leonard v. Canton, 170. Lessee, etc, Runyan v., 81. Leslie v. St. Louis, 86. Le Sueur Mill Co., Auerbach v., 81. Letz, Lake View v., 212. Levy, Life Association v., 166. Levy, Mayor v., 213. Lewis v. Bank of Kentucky, 167. Lewis v. Clarendon, 237. Lewis, Commauche Co. v., 228. Lewis County Bank, Donnell v., 96. Lewistown Inst, etc., Franklin Co. v., 9, 34, 53, 55, 70, 121. Lex, Whitman v., 95. Lexington v. Butler, 228. Life Association, Boogher v., 162. Life Association, Hascall v., 100. Life Association v. Levy, 166. Life Association, Twiss v., 74. Life, etc. Insurance Co., Gorrell v., 96. Life Insurance Co. v. Insurance Co., 162. Life Insurance Co., Leasure v., 166. Light. Co., Gas Co. v., 199. Lightner v. Boston, etc. R Co., 146. Lincoln, Fulton v., 170. Lincoln Co., U. P. R. Co. v., 235. Lincoln, etc. R. Co., Peters v., 137. Lincoln Savings Bank v. Ewing, 92. Lionberger v. Broadway Bank, 91. Lime Co., Denike v., 143. Litchfield v. Ballou, 233. Litchfield, Buchanan v., 196, 224, 228, 232. Litchfield, Dubuque, etc. Co. v., 9. Little v. O'Brien, 74, 75. TABLE OF CASES CITED. xlv References are to sections. Little Rock, Vance v., 170. Littlewort v. Davis, 70. Livingston County v. Weider, 235. Livingstone v. Temperance So- ciety, 120. Liverpool, etc. Co. v. Insurance Co., 9. Llanelly Ey. v. London, etc. R. Co., 130. Lloyd v. Bank, 160. Loan Association v. Topeka, 179, 181, 224, 225, 238. Loan Co., Marchaud v., 79. Lock Co. v. Railroad Co., 129. Lockhart v. Van Alstyne, 134. Lockport, Hines v., 202. Lockwood, Peck v., 212. Lockwood, Railroad Co. v., 9. Lockwood v. St. Louis, 177. Logan City v. Buck, 170. Logan County Bank v. Town- send, 74 Lombard, School District v., 230. London v. Goldsmith, 205. London, Stuart v., 77. London Bldg. Soc, Collerne v., 120. London Omnibus Co., Green v., 162. London, etc R. Co., Hare v., 130. London, etc. R Co., In re, 120. London, etc. R. Co., Llanelly Ry. v., 130. . Long, Cowgill v., 238. Long, Humboldt v., 53. Longstreet, Crawford v., 81. Lookout Water Co., Foster v., 219 Lord v.' Oconto, 170, 173. Lord Fermoy, Credit Co. v., 158. Los Angeles, Og v., 219. Los Angeles, etc. R. Co., Smith v., 146. Log Angeles "Water Co. v. Los An- geles, 217. Louisiana v. New Orleans, 204, 233. Louisiana v. Wood, 191, 233. Louisiana Light Co., New Orleans G. L. Co. v., 216. Louisiana Ry., Richmond Ry. v.,8. Louisiana State Bank v. Orleans Nav. Co., 47, 170. Louisville v. Bank, 215. Louisville v. Commissioners, 185. Louisville, Greenwood v., 219. Louisville, Murphy v., 201. Louisville, Pollock v., 219. Louisville v. University, 185. Louisville v. Weible, 216. Louisville, etc. R. Co. v. Boney, 146. Louisville, etc. R Co. v. Caldwell, 100. Louisville, etc. R. Co. v. Flem- ming, 163. Louisville, etc. R. Co. v. Kelly, 163. Louisville, eta R. Co. v. Louis- ville, 215. Lovette v. Sawmill Association, 89. Loving, Brannen v., 159. Low v. Central Pac. R. Co., 9, 136. Low, Smith v., 96. Lowell v. Boston, 69, 179, 181, 225. Lowell, Bridenbecker v., 161. Lowell, Drake v., 204. Lowell, Heland v., 171, 173. Lowell, Hildreth v., 86. Lowell, Proprietors, etc. v., 213. Lucas v. Pitney, 96, 100. Lucas v. White Line Transp. Co., 4, 9, 38, 52, 70. Ludlow, Ferris v., 109. Lumbard v. Aldrich, 81. Lumber Co., Tenney v., 88. Lumsden v. Cross, 225. Luthe v. Farmers' Ins. Co., 53. Lyde v. East Bengal R. Co., 53. Lynch v. Eastern, etc. R. Co., 235. Lynch v. New York, 208, 211. Lynch, Sheidley v., 177. Lynchburg, Peters v., 170. Lynn, Hood v.. 175. Lyons County, Clark v., 194. M. M. & P. R. Co., Bryan v., 129. Mabel, Titus v., 131. Mabry, Shea v„ 156. Mackay v. Bank, 163. xlvi TABLE OE OASES CITED. References are to sections. Maddox, Pollard v., 141. Mad River R. Co., Weeden v., 77. Madison, Bearden v., 172. Madison, State v., 81, 185. Madison, Weis v., 211. Madison, etc. P. Ed. Co. v. Water- town, etc. Co., 9, 99. 136. Madison, etc. E. Co., Pearce v., 9, 30, 52, 53, 70, 143, 148. Magee v. Mokelumne, etc. Co., 96, 98, 100. Magnay, Great Luxemburg R. Co. v., 153. Maher v. Chicago, 74, 191. Mahoney v. Mining Co., 168. I Mahoney v. State, 3. Mahoney Min. Co. v. Anglo-Cal. Bank, 96, 98. Maine Cent. E Co. v. Maine, 144, 146, 148. Mallett v. Simpson, 81. Mallory v. Hannauer Oil Works, 53, 70, 148. Maloney, Dubuque v., 213. Manchester v. Hartford, 205. Manchester, Ray v., 204. Manchester, etc. Co., Cass v., 53. Manchester Canal Co., Cunliffe v., 53. Manchester, etc. E. Co., Chambers v., 70, 134. Manchester, etc. E. Co. v. Con- cord, etc. E. Co., 130. Manchester Water Co., Brough- ton v., 50. Manderchid v. Dubuque, 200. Manhattan Beach Co. v. Harned, 127. Mankato, Phelps v., 200. Mansfield v. Moore, 205. Mansfield, State v.. 81. Manufacturing Co., Gas Co. v., 144. Manufacturing Co., Eailroad Co. v., 129. Manufacturing Co., Smith v., 156. Manufacturing Co., White v., 79. Marble Co. v. Harvey, 136. March v. Eastern, etc. E. Co., 124. Marchand v. Loan Co., 79. Marcy, Elwood Township v., 238. Marcy v. Oswego, 53. Marcy, Sumner v., 123. Mariaville, Emery v., 230. Marietta, etc. R. Co., Atkinson v., 9. Marietta, etc. R. Co., Campbell v.,. 137. Marietta, etc. R. Co. v. Elliott, 9. Marine Bank. Ballston Bank v., 161. , Marion Co., State v., 170. Markham, Comm. v., 183. Marks v. Purdue University, 225.. Marquette v. Cleary, 202. Marseilles. Chicago, etc. R Co. v., 120. Marseilles, etc. Co., In re, 120. Marsh v. Callender, 203. Marsh v. Fulton County, 190, 191,. • 193, 194, 201, 224. 233. Marsh v. N. Y. etc. R Co., 146. Marshall, Downing v., 82. Marshall, Forbes v., 96. Marshall, Turquand v., 158. Marshalltown, Bellmeyer v., 9. Martin v. Mayor, 215. Martin v. Mobile, etc. E Co., 166. Martin, Rochester Ins. Co. v., 9. Martin, State v., 195. Martin v. Webb, 160. Marvin Safe Co. v. Ward, 219. Maryland, Phil. etc. R. Co. v., 146,. 148. Mason, Greenville v., 186. Mason v. M. E. Church, 93. Mason v. Shawnee, 172. Mason City, Noyes v., 203. Massey v. Building Association, 101. Mather v. Ottawa, 170, 225. Mathes v. Cameron, 230. Mathews v. Alexander, 173. Mathews, National Bank v., 53, 67. Mathews v. Skinner, 9. Maude, Ex parte, 117. Mauldin v. Greenville, 231. Maund v. Monmouthshire Co., 162. Maupin v. Franklin Co., 190. Maw hood, Smith v., 55. May, People v., 196. Maybard, Hitchins Bros, v., 211. Mayer, Western Union Ins. Co. v., 166. May ham, Kinmundy v., 173. TABLE OF CASES CITED. xlvii References are to sections. Maynard v. Insurance Co., 163. Mayo, Hovey v., 177. Mayor v. Baltimore, etc. R. Co., 138. Mayor, Bateman v., 50, 188. Mayor v. Beasley, 176. Mayor, Bigler v., 189. Mayor, Blake v., 170. Mayor, Bradford v., 304, 306. Mayor, Brady v., 70, 194, 301. Mayor, Brieswick v., 171. Mayor, Brown v., 194. Mayor v. Comak, 177. Mayor v. Cunliffe, 190, 333. Mayor, Davenport v., 304. Mayor, Davis v., 199. Mayor v. Elliott, 95. Mayor, Fish v., 301. Mayor v. Gill, 177. Mayor, Halstead v., 175. Mayor v. Henry, 330. Mayor v. Herley, 163. Mayor, Hovey v., 303. Mayor, Humes v., 303, 304. Mayor, Hutson v., 304. Mayor, Kelly v., 96, 100. Mayor, Kipp v., 176. Mayor, Levy v., 313. Mayor, Martin v., 315. Mayor, Maximilian v., 319. Mayor, McDonald v., 190, 194 Mayor, McSpeden v., 191. Mayor v. Moag. 170. Mayor, Nichol v., 170. Mayor, O'Meara v., 319. Mayor, Paterson v., 185, 194 Mayor, People v., 335. Mayor, Presbyterian Church v., 315. Mayor, Radcliffe's Ex'rs v., 308. Mayor, Eae v., 188. Mavor v. Railroad Co., 315. Mayor v. Ray, 14, 119, 330, 337. Mayor, Reinhard v., 305. Mayor v. Reynolds, 190. Mayor, Russell v., 330. Mayor, Schanck v., 177. '* Mayor, Scott v., 330. Mayor v. Second Ave. R. Co., 183. Mayor, Sharpless v., 334. Mayor v. Sheffield. 300, 206. Mayor, Smoot v., 220. Mayor, State v., 176, 323. Mayor, Stuyvesant v., 315. Mayor, Tone v., 320. Mayor, West v., 178. Mayor, Whitney v., 178. Mayor, Whyte v., 213. Mayor v. Winfleld, 176. Maysfield, Stack v., 177. Mazet v. Pittsburg, 189. Mead, Holmes v., 83. Mead v. Keeler, 100. Mead v. New Haven, 233. Mead v. N. Y. etc. R. Co., 143. Mechanics' Association v. Lead Co., 100. Mechanics' Bank v. Bank of Col- orado, 161. Mechanics' Bank v. Meriden Co., 131. Mechanics' Bank v. N. Y. etc. R. Co., 109. Mechanics' Ins. Co., Barker v., 100. Medical College Case, 3. Medomak Bank v. Curtis, 77. Meeker v. Winthrop Ins. Co., 139. Meeks, Kelly v., 170. Mehaffey, San Antonio v., 63, 68, 337. McKellar v. Detroit, 205. Memphis v. Dean, 53. Memphis, Hill v., 223, 230, 337. Memphis, Trigally v., 171. Memphis v. Water Co., 216. Memphis, etc. R Co. v. Dow, 96. Memphis, etc. R. Co., People's R. R. v., 215. Memphis, etc. R. Co. v. Railroad Commissioner, 141, 144. Menard Co., West v., 90. Menser v. Risdon, 173. Mercantile Bank, Iowa M Bank v., 162. Mercer v. Pittsburg, etc. Co., 183. Merchants' Bank v. Bergen Co., 336, 339. Merchants' Bank v. Central Bank, 77. Merchants' Bank v. Randolph, 161. Merchants' Bank v. State Bank, 160, 163. Merchants' Exchange, Barry v., 37, 83, 84, 96, 100, 106, 134 xlviii TABLE OF CASES CITED. References are to sections. Merchants' Nat. Bank v. Hanson, 53. Meredith, Cast-plate Co. v., 203. Meredith, Clearwater v., 144, 147, 148. Meredith, Eastman v., 219. Meredith, Ferguson v., 144. Meridan Agency Co., Mutual Association v., 122. Meriden Co., Savings Bank v., 121. Merrick v. Amherst, 225. Merrick v. Bank, 91. Merrick v. Reynolds Eng. Co., 51, 168. Merrick v. Van Santford, 166. Merrill v. Monticello, 223, 224, 230. Merrill v. Plainfleld, 198. Merrill v. Portland, 204. Merrimack, etc. R. Co.. Richards v., 84, 100, 141. Merri weather, Hardy v., 100. Mersey Docks v. Gibbs, 220. Metealf, Beardstown, etc. Co. v., 84. Methodist Episcopal Church, Bai- ley v., 53. Methodist Episcopal Church, Ma- son v., 92. Metropolitan Bank v. Godfrey, 85. Metropolitan, etc. Co. v. Abbey, 139. Metropolitan, etc. Co. v. Byron, 98. Metz, Bridge Co. v., 145. Metzker, Petersburgh v., 47, 170. Meyer v. Johnston, 142. Meyer v. Porter, 235. Miami County, Moran v., 227, 228. Michener v. Philadelphia, 207. Michigan, etc. R. Co., Bissell v., 31, 38, 55, 61. Michigan, etc. R. Co., Swartout v., 168. Michigan, etc. R. Co., Williston v., 124. Middleport v. Mtna, Ins. Co., 240. Middlesex R. Co. v. Boston, etc. R. Co., 137. Middlesex R. Co., Feital v., 129. Middleton, Ohio, etc. R. Co. v., 77. Middleton, Gas Co. v., 199. Midland, etc. Ry. Co., Edwards v., 162. Midland R. Co. v. Great Western R. Co., 130. Migner, Doyle v., 3. Migret v. Supervisors, 238. Milan, Kelley v., 223. Milbank v. N. Y. etc. R. Co., 121. Milbourne, Cowan v., 69. Milhan v. Sharp, 215. Mill Co., Auerbach v., 100. Miller v. American Ins. Co., 74. Miller v. Ammon, 69. Miller, Blazier v., 171. Miller v. Burch, 212. Miller v. Burlington, eta R. Co., 163, 164. Miller, Gottfried v., 91. Miller, Leavenworth v., 225. Miller v. Milwaukee, 188. Miller, National Trust Co. v., 70, 72, 78, 137. Miller v. Newberg Coal Co., 168. Miller v. Norristown, 203. Miller v. St. Paul, 205. Miller & Miss. R. Co. v. Lancas- ter, 144. Milliard v. St. Francis, etc. Acad- emy, 100. Mills v. Brooklyn, 202, 208. Mills v. Gleason, 194. Mills v. Northern R, Co., 53. Mills County v. Burlington, 195. Milne v. Davidson, 172. Milnor v. N. Y. etc. R. Co., 167. Milwaukee, Brodhead v., 225. Milwaukee, Clason v., 176. Milwaukee, Cook v., 205. Milwaukee, Dart v., 203. Milwaukee,' Hasbrouck v., 235. Milwaukee, Kelly v., 177. Milwaukee Kneeland v., 189. Milwaukee, Miller v., 188. Milwaukee, Owens v., 203. Milwaukee, Schultz v., 204. Milwaukee, Tyson v., 203. Milwaukee, Yates v., 112. Milwaukee Gas Light Co., State v., 216. Miner v. N. Y. etc. R. Co., 9. Miners' Ditch Co. v. Zellerbach, 9, 33, 83, 87. Mining Co., Mahoney v., 168. Minneapolis, Alden v., 203. Minneapolis, Henckes v., 215. TABLE OF CASES CITED. xlix References are to sections. Minneapolis, etc. R Co., Snell v., 53. Minnesota, etc. E. Co., Freeman v., 137. Minor v. Bank, 160. Minturn v. Larue, 170, 199. Mississippi, etc. R. Co. v. Cam- den, 237. Mississippi, etc. R. Co. v. Lancas- ter, 144. Missouri, etc. R. Co., Gillette v., 164. Mitchell v. Rome, 203. Mitchell, St. Andrew's Bay Co. v., 52. Mitford, Day v., 204. Moag, Mayor v., 170. Mobile v. Watson, 233. Mobile v. Yuelle, 212. Mobile Bank, Reed v., 135. Mobile, etc. R Co., Martin v., 166. Mobile, etc. R. Co. v. Tallman, 96. Mobile, etc R. Co., Warren v., 146. Moffitt, Chicago, etc. R Co. v., 144, 146. Mohawk Bridge Co. v. Utica, etc. Co., 8, 216. Mokelumne, etc. Co., Magee v., 96, 98. 100. Monmouth, Parsons v., 194. Monmouthshire Co., Maund v., 162. Monroe Co., Wall v., 230. Monument Nat. Bank v. Globe Works, 9, 32, 74, 100, 104, 162. Montague v. School District, 100. Montauk Gas Co., Boyce v., 52. Montgomery, Campbell v.. 202, 220. Montgomery, Capital City W. W. Co. v., 217. Montgomery, Davis v., 313, 219. Montgomery v. Montgomery, etc., 53. Montgomery, State v., 235. Montgomery, Studebaker v., 168. Montgomery Co. v. Barber, 188. Montgomery Co., House v., 204. Monticello, Merrill v., 223, 224, 230. Montpelier v. East Montpelier, 92. D Moore, Fitchburg R Co. v., 162. Moore v. Hoffman, 178. Moore, Mansfield v., 205. Moore v. New York, 191, 193. Moore, Rapho v., 206, 210. Moor's Heirs v. Moor's Devisees, 81, 82. . Moran v. Commissioners, 193. Moran v. Miami Co., 227, 228. Morch v. Abel, 71. Morgan, Staten v., 141. Morris, Glasby v., 207. Morris v. Kiel, 87. Morris v. Lee, 157, 158. Morris Canal Co. v. Central R. Co., 8. Morris Canal Co. v. Fisher, 135. Morris, etc. R. Co. v. Barclay Coal Co.. 131. Morris, etc. R. Co.' v. Sussex, eta R. Co., 8, 10, 130. 131. Morrison v. Gold Mountain Co., 79. Morrison v. Inhabitants, etc., 174. Morrison v. Lawrence, 213, 222. Morrison, McMahon v., 144 Morrow v. Nashville, 115. Morse v. Brainerd, 129. Morse, Smith v., 215. Moses v. Ocoee Bank, 109. Moss v. Academy, 96. Moss v. Averill, 56, 100. Moss, McCullough v., 78, 100. Moss v. Oakley, 100. Moss v. Rossie L. Min. Co., 77. Mott v. Hicks, 96, 100. Mott v. Ice Co., 163. Mott, Shotwell v., 95. Moulton, Wheelock v., 90. Moultrie Co. v. Bank, 197. Moundeville, Ohio Iron Works v., 225. Mounsey, Australia, etc. Co. v., 96, 98. Mount Heimon School, Nims v., 162. Mount Pleasant v. Beckwith, 186, 187. Mount Sterling, Curry v., 86. Mount Washington, etc. Co., Downing v., 9, 47. Mount Washington, etc. Co., In re, 86. TABLE OF CASES CITED. References are to sections. Mowrey v. Indiana, etc. R. Co., 144. Mueller, Seeger v., 192. Mulford, Camden v., 173, 174 Mullen, Selma v., 170. Mulligan v. Railway Co., 129. Mumford v. Insurance Co., 100. Mundy, Austin v., 175. Munn v. The Commission, 96, 100. Munson v. Railroad Co., 79. Murdock, McDonough v., 93. Murphey v. Louisville, 201. Murphy v. Jacksonville, 175. Murphy v. Peoria, 202. Murphy, Sullivan v., 100. Murphy's Flushing Co., Union Water Co. v., 64. Murray, Ottawa R. Co. v., 77. Murray, People v., 233. Musgrove, Baltimore v., 190. Musser v. Johnson v., 87. Mutual, etc. Ass'n v. Meridan Agency Co., 122. Mutual Life Ins. Co. v. McElway, 109. McAlpine v. Union Packing Co., 146. McAuley v. Columbus R. Co., 143. McBride v. Grand Rapids, 189. McCann, State v., 225. McCartee v. Orphans' Asylum, 81, 82, 95. McCarthey, Railway Co. v., 62, ,63,64,68. McCaslin v. State, 190. McClintock, Johnson Co. v., 235. McClure v. Oxford Township, 229, 235. McClurken, Allegheny City v., 70,74. McCombs v. Akron, 220. McConnell v. Hamrn, 181. McConnell, Jacksonville v.,' 47. McConvill v. Jersey City, 175. McCoy v. Briant, 170. McCracken v. San Francisco, 170, 191, 194. McCray v. Junction R Co., 53, 147. McCreery, People v., 181. McCullough v. Moss, 78, 100. McCullough v. Talldega Ins. Co., 77, 168. McCune, People v., 238. McCurdy v. Rogers, 190. McDermott v. Board, 172. McDermott, Evening Journal As- sociation v., 162. McDonald, Bank v., 168. McDonald, Burr v., 88, 96. McDonald v. Mayor, 190, 194 ' McDonough v. Bank, 79. McDonough v. Murdock, 93. McElway, Mutual Life Ins. Co. v., 109. McEwin, Heck v., 3. McGee, Gooch v., 86. McGinnity v. New York, 206. McGirr, Richmond v., 177. McGiven, Chicago v., 205. McGraw, Chicago v., 222. McGregor v. Dover & D. R. Co., 9, 55, 56, 70. McGregor v. Erie, etc. R. Co., 145. 167. McGregor, Harris v., 3. McGuire v. Rapid City, 201. Mclnnis, Champaign v., 205. Mclhtire v. McLain Ditch Co., 3. McKnight v. New Orleans, 217. McLain Ditch Co., Mclntire v., 3.. McLaughlin, Hamilton v., 87. McLennan v. File Works, 136. McMahon v. Morrison, 144. McMasters v. Reed, 47, 100. McMillan v. Railroad Co., 129, 137. McNab, Eufaula v., 185, 224. McPherson v. Foster, 231, 232. McQuade, Van Dyke v., 156. McSpeden v. Mayor, 191. isr. Nagle, Wright v., 199. Nahant Bank, Atlas Bank v., 74. Nancy, City of Flora v., 205. Narragansett Bank v. Silk Co., 100. Nash v. St. Paul, 194. Nashua, etc. R. Co., Smith v., 128. Nashua Savings Bank, Greeley v., 53. Nashville, Morrow v., 115. Nason v. Boston, 205. Nason v. King Mountain M. Co.. 87. TABLE OF CASES CITED. References are to sections. Nassau Co., Petersborough R. Co. v., 50. National Bank, Gold Min. Co. v., 76. National Bank v. Graham, 162. National Bank v. Mathews, 53, 67. National Bank v. Whitney, 53. National Bank v. Young, 104 National, etc. Co. v. Clarkin, 81. National Docks v. Railroad Co., 168. National Exchange Co. v. Drew, 162. National Iron Co. v. Bowman, 101. National Park Bank v. German, etc. Co., 136. National Trust Co. v. Miller, 70, 72, 78, 137. Naugatuck R. Co. v. Button Co., 53. Nauvoo v. Ritter, 227. Navigation Co., Louisiana Bank v., 170. Nebraska, Campbell v., 220. Nebraska City v. Lampkin, 203. Nebraska Dist. Co., State v., 55. Needles, Farmers' Bank v., 101. Nelson, East Tenn. etc. R. Co. v., 129. Nelson v. Eaton, 96. Nesbit v. Riverside District, 228. Neuse River, Barrington v., 86. Nevada Cent. R. Co., George v., 137. New Albany v. Burke, 115. New Albany, Duckwall v., 175. New Bedford, Hafford v., 219. New Bedford, Haskell v., 208. New Bedford, Pierce v., 204. New Bedford, Wilson v., 211. New Bedford, etc. R. Co. v. Old Colony R. Co., 146. New Brunswick, Parker v., 173. New Brunswick Ry. Co. v. Cony- beare, 162. New Decatur v. Berry, 214 New Haven, Barritt v., 203. New Haven, Boucher v., 205. New Haven. Cemetery Associa- tion v., 183. New Haven, Heurson v., 213. New Haven, Hewison v., 204 New Haven, Jewett v., 219. New Haven, Jones v., 220. New Haven, Mead v., 222. New Haven E. L. Co., Edison, etc. Co. v., 144 New Jersey, Williams v., 180. New Jersey Mfg. Co., Leggett v., 8, 13. New Jersey, etc. R. Co., Brokaw v., 162, 164 New Jersey, etc. R Co. v. Strait, 146. New London v. Brainerd, 170, 175. New Orleans, Bonner v., 135. New Orleans, Crescent City Ins. Co. v., 219. New Orleans, Fox v., 190. New Orleans, Inhabitants v., 177. New Orleans, Louisiana v., 204, 233. New Orleans, McKnight v., 217. New Orleans v. Phillipi, 212. New Orleans, Seibrecht v., 50, 188, 190. New Orleans v. Southern Bank, 194 New Orleans, United States v., 179. New Orleans v. Water Co., 180. New Orleans Bank, Fortier v., 53. New Orleans, etc. Co. v. Delamon, 141. New Orleans, etc. Co. v. Dunn, 177. New Orleans, etc. Co. v. Dry Docks Co., 122. New Orleans G. L. Co., Crescent City, etc. Co. v., 216. New Orleans G. L. Co. v. Louisi- ana L. Co.,^216. New Orleans, etc. R. Co. v. Harnes, 137. New Orleans Water Co. v. Rivers, 216. New Orleans Water Works, Con- ery v., 177. New Orleans Water Works, Tam- any Water Works v., 216. New York, Brady v., 189. 190. New York, Griffin v., 206. New York, Lynch v., 208, 211. New York, McGinnity v., 206. New York, Moore v., 191, 193. lii TABLE OF OASES CITED. References are to sections. New York, Peterson v., 77. New York, Reinhard v., 172. New York, Wiggins v., 177. New York, etc. Canal Co. v. Ful- ton Bank, 148. New York Inst. v. Howe, 95. New York, etc. Ins. Co. v. Ely, 13. New York, etc. Ins. Co. v. Sturges, 23. New York, etc. E. Co., Boston, etc. R. Co. v., 137. New York, etc. R. Co., Bradlev v., a New York, etc. R. Co., Buffet v., 1 3. New York, etc. R. Co., City of Ohio v., 124. New York, etc. R. Co., Duncomb v., 105. New York, etc. R. Co., Fisher v., 146. New York, etc. R. Co., Hood v., 13. 29, 53. New York, etc. R. Co. v. Ketchum, 79. New York, etc. R. Co. v. Kip, 86. New York, etc. R. Co., Marsh v., 146. New York, etc. R. Co., Mead v., 143. New York, etc. R. Co., Mechanics' Bank v., 109. New York, etc. R Co., Milbank v., 121. New York, etc. R. Co., Milnor v., 167. New York, etc. R. Co., Minor v., 9. New York, etc. R Co. v. Nickals. 124. New York, etc. R. Co. v. Schuy- ler, 109. New York, etc. R. Co. v. Wi- nans, 9. New South Wales Coal Co., Payne v., 79. Newark, State v., 81. Newark, Stoudinger v., 207. Newburg, Emerson v., 194. Newburg, Smith v., 170, 194. Newburg Coal Co., Miller v., 168. Newburg Petroleum Co. v. Weare, 166. Newcastle R Co., Charleston v., 143. Newcastle R. Co., Hamilton v., 96, 100, 128. Newcastle R. Co. v. Simpson, 119. Newchester, Bristol v., 186. Newell v. Smith, 129. Newmarket, Gage v., 70. Newport Bridge Co. v. Foote, 203. Newport Co., Widrig v., 158. Newport Mfg. Co., Commercial Bank v., 96, 100. Niagara County Bank v. Baker, 103. Niantic Savings Bank v. Doug- las, 146. Nichol v. Insurance Co., 160. Nichol v. Mayor, 170. Nichols, Ernest v., 120. Nickals, N. Y. etc. R. Co., v. 124. Nickerson v. Hydraulic Co., 219. Niles, Bank of Michigan v., 81, 857. Niles Water Works x. Niles, 189, 196. Nims v. Mount Hermon School, 162. Nisbet, Hill v., 121. Nist, Canton v. 172. Noble, Fay v., 96, 100. Norfolk R. Co., Hussey v., 162. Norfolk R. Co., Norwich v., 52, 55, 56, 70. Norfolk R. Co. v. Shaw, 141. Normand v. Otoe Co., 198. Norristown, Miller v., 203. Norristown v. Thayer, 204, 210. North, Silver Lake Bank v., 166, 167. North American Coal Co., Tal- mage v., 47, 52. North American Min. Co., Ar- desco Oil Co. v., 83, 91. North Carolina Gold Co., Coit v., 108, 115. North Hempsted v. Hempsted, 187. North Hudson Co. v. Hoboken, 182. North River, etc. Co., People v., 137, 148. North River, etc. Co., Wylde v., 129. North Side Ry. v. Worthington, 7. ' ' TABLE OF OASES CITED. liii References are to sections. North Stafford Ry., Earl. etc. v., 70, 79. North Yarmouth v. Skillings, 186. Northern Bank v. Johnson, 161. Northern Bank v. Porter, 326. Northern Bank v. Trustees, 328. Northern Cent. R Co. v. Drew, 146. Northern Coal M. Co., In re, 120. Northern Liberties, Carr v., 202, 203. Northern Liberties, Pray v., 224. Northern Mo. E. Co., Powell v., 146. Northern T. Co. v. Chicago, 81. Northwestern Cement Co., Ba- telle v., 79. Northwestern Pack. Co. v. Shaw, 53, 74 Northwestern Ey., Shrewsbury Ey. v., 55, 70, 128, 137. Norton v. Bank, 74. Norton v. City of Nevada, 233. Norton, Commercial Bank v., 160. Norton v. Dyersburg, 223, 230. Norwich v. Norfolk E. Co., 52, 55, 56, 70. Norwich Gas Co. v. City Gas Co., 216, 218. Norwich Transp. Co., Converse v., 53. Noyes v. Mason City, 203. Noyes v. Eailroad Co., 129. Nugent v. Supervisors, 143, 146. Nunnemacher, Ohio Ins. Co. v., 9. Nutt v. Danville Seminary, 7. Nutting v. Eailroad Co., 129. o. Oakland v. Carpentier, 215. Oakland Bank v. Wilcox, 159. Oakley, Moss v., 100. Oakwood, Hyde Park v., 183. Oberlin, Bronson v., 175. O'Brien, Little v., 74, 75. O'Brien v. St. Paul, 211. Occum Co. v. Sprague Mfg. Co., 9, 137. Ocean Dry Dock Co., New Orleans Co. v., 133. Ocoee Bank, Moses v., 109. O'Connor v. Pittsburg, 203. Oconto, Lord v., 170, 173. O'Donnell, Alexander v., 69. Og v. Lansing, 219. Ogden v. Daviess County, 229. Ogdensburg, Urquhart v., 202. Ogdensburg, etc. E. Co. v. Ver- mont, etc. E. Co., 9. Ogilvie v. Knox Ins. Co., 108. Ogle, Eoberts v., 212. Ohio, Shields v., 143, 144. Ohio Candle Co., Emery v., 148. Ohio Iron Works v. Moundeville, 225. Ohio, etc. Ins. Co. v. Nunne- macher, 9. Ohio, etc. Ins. Co. v. Trust Co., 74 Ohio, etc. E. Co., Dimpfell v., 78. Ohio, etc. E. Co. v. Ind. etc. B. Co., 137. Ohio, etc. E. Co. v. Middleton, 77. Ohio. etc. E. Co. v. Wheeler, 145. Oil Co., Buffalo Oil Co. v., 162. Oil Co. v. Eailway Co., 81. Oil Creek E. Co., Kersey Oil Co. v., 139. Oil Creek E. Co., Eoot v., 146. Olcott, Sutherland v., 109, 113. Olcott v. Tioga E. Co., 100. Old Colony E. Co., Davis v., 9, 36, 47, 53. Old Colony E. Co., New Bedford, etc. Co., 146. Oliver v. Krightly, 198. Olney v. Chadsey, 159. Omaha, Hurford v., 170. Omaha R. Co., Clark v., 137. Omaha Smelting Co., Abbott v., 3. O'Meara v. Mayor, 319. Oneida Bank v. Ontario Bank, 74, 119. Onstott v. People, 238. Ontario Bank, Barnes v., 96, 98, 160, 161. Ontario Bank, Oneida Bank v., 74 119. Ontario, etc. R. Co., Eome, etc. E. Co. v., 146. Ooregum G. Min. Co. v. Eoper, 117. Opinions of Judges, 181. Oregon Ey. v. Oregonian Ey., 3, 8, 9, 10, 12, 53, 69, 72, 78, 137, 138. liv TABLE OF CASES CITED. References are to sections. Orleans v. Pratt, 228. Orleans Navigation Co., Louisi- ana State Bank v., 47. Orphans' Asylum, McCartee v., 81, 82, 95. Orr v. Lacey, 70. Orton, Southern Pac. Co. v., 81. Osawkie Township, State v., 325. Osborne, Toll Bridge Co. v., 9. Osborne v. Tunis, 90. Osgood v. Layten, 108. Oshkosh, Hayes v., 219. Ossepee Mfg. Co. v. Canney, 74, 75, 81. Oswego, Marcy v., 53. Otoe County, Deyo v., 237. Otoe County, Normand v., 198. Ottawa v. Carey, 170, 225. Ottawa, Derinzy v., 203. Ottawa, Hackett v., 227, 229. Ottawa, Mather v., 170, 225. Ottawa R. Co. v. Murray, 77. Ouachita Co. v. Woloott, 230. Overend & Gurney Co. v. Gibbs, 154, 156. Overseers v. Overseers, 186. Owen County, Browning v., 222. Owens, Bank of U. S. v., 69. Owens v. Milwaukee, 203. Oxford Ins. Co. v. Spradley, 96, 100. Oxford, etc R. Co., Rogers v., 53. Oxford Township, McClure v., 229, 235. Pacific Nat. Bank, Eaton v., 127. Pacific Postal Tel. Co. v. Western Union, etc., 53. Pacific R. Co. v. Seeley, 85. Packer v. Railway Co., 8, 9. Packet Co., Abbott v., 70. Paddock, Aurora Ag'l Soc. v., 77, 84. Page v. Allen, 198. Page, Bryan v., 191, 194. Page v. Heinberg, 81. Page v. St. Louis, 177. Paine v. Lake Erie, etc. Co., 144, 146. Paine v. Spratley, 170. Palmer, Durant v., 206. Palmer, Leavitt v., 74. Palmer, Pritts v., 81. Palmer, Railroad Co. v., 144 Pangborn v. Westlake, 69. Paquet, Hedges v., 156. Paret v. Bayonne, 195. Paris, Hall v., 53, 74. Paris Rink Co., Spiller v., 79. Parish, Cumberland, etc. Co. v., 153. Parish v. Wheeler, 129. Parker v. Bernal, 122. Parker v. Donnally, 159. Parker, Ind. Car Co. v., 210. Parker v. New Brunswick, 173. Parker, Wetmore v., 93. Parker, Williams v., 116. Parkersburg v. Brown, 74 181, 224 Parkersburg Gas Co. v. Parkers- burg, etc. Co., 170, 199, 216. Parks, People v., 181. Parnably, Canal Co. v., 220. Parr v. Greenbush, 190. Parsons v. Monmouth, 194. Partridge v. Badger, 83, 96, 100. Passaic, State v., 170. Patapsco Guano Co., Peebles v., 162. Patchett, Gregory v., 70. Patchin Bank, Bank of Gennes- see v., 9. Paterson, Bank of Columbia v., 76, 77, 188. Paterson, Boom Co. v., 86, 183. Paterson v. Bowers, 198. Paterson, King v., 124, 126. Paterson, Kip v., 176. Paterson v. Mayor, 185, 194 Paterson, Rye v., 212. Paterson. State v., 173, 235. Patrons' Merc. Ass'n, Humphrey v., 77, 168. Paul, Corser v., 161. Paul v. Kenosha, 74, 191. Payne v. N. S. W. Coal Co., 79. Payson v. Stoever, 110. Pay son, Turnbull v., 127. Peacock, Talldega Ins. Co. v., 100. Pearce v. Madison, etc. R. Co., 9, 30, 52, 53, 70, 143, 148. TABLE OF CASES CITED. It Eeferences are to sections. Pearson v. Concord, etc. E. Co., 122. Peaslee. Trustees v., 15, 93. Peay, Whitney v., 74. Peck, Carter v., 129. Peck v. Chicago, etc. R. Co., 145. Peck v. Lockwood, 212. Pedrick v. Bailey, 176. Peebles v. Patapsco Guano Co., 163. Peet v. Railway Co., 129. Pell, Talmage v., 121. Pelton, Coggeshell v., 95. Pendleton v. Amy, 227. Pendleton, Durango v., 201. Peninsular Bank v. Hanmer, 77. Peninsular S. Co., Bennett v., 129. Penn v. Bornman, 69. Pennington, Town of Durango v., 189. Pennock v. Coe, 8. Pennsylvania v. Erie R. Co., 124 Pennsylvania Coal Co., Del. Canal Co. v., 77. Pennsylvania Match Co. v. Hap- good, 79. Pennsylvania R. Co. v. Canal Commissioners, 8, 12. Pennsylvania R. Co. v. St. Louis, etc. R. Co., 9, 53, 72, 74, 136, 137, 138. Pennsylvania R. Co., Central R. Co. v., 121. Pennsylvania R. Co. v. Perry, 129. Penobscot Boom Co. v. Lamson, 3. Pensacola, Broughton v., 233. Pensacola TeL Co. v. Western Union Co., 166. People v. Albany, 212. People v. Bank, 170. People v. Brighton, 86. People v. Chicago Gas Trust Co., 55, 131, 122, 137, 148. People v. Chicago, etc. R Co., 129. People v. Commissioners, 189. People v. Coon, 195. People v. County, 230. People, Darst v., 212. People, Dingley v., 215. People, English v., 181. People, Flagg v., 201. People, Greeley v., 185. People v. Harris, 185. People, Hensley v., 235. People, Horn v., 171. People, Law v., 196, 197, 231. People v. May, 190. People v. Mayor, 225. People v. McCreery, 181. People v. McCune, 238. People v. Murray. 233. People v. Onstott, 238. People v. Parks, 181. People v. Ragg, 225. People v. San Francisco, 195, 201. People v. Selfridge, 3. People v. Smith, 183. People v. Special Sessions, 171. People, St. Louis Bridge Co. v., 207. People v. Sugar Refining Co., 137, 148. People v. Swift, 194. People v. Troop, 176. People v. Trustees, 186. People, Turnpike Co. v., 9. People v. Utica Ins. Co., 9, 12, 22. People v. Weber, 170. People's Association, Hagie v., 120. People's Railroad v. Memphis, etc. R. R. Co., 215. Peoria, Murphy v., 202. Peoria, etc. R. Co. v. Coal Valley Co., 9. Peoria, etc. R. Co. v. Thompson, 131. Perin v. Carey, 93, 185. Perkins, City Bank v., 161. Perkins v. Railroad Co., 129. Perkins, South Ottawa v., 224. Perkinson v. St. Louis, 190. Perley v. Georgetown, 222. Perrine v. Ches. & Del. Ry., 8, 12, 28, 81. Perry, Penn. R. Co. v., 129. Perry v. Waterproof Co., 77. Perry's Case, 158. Peru, Wilkinson v., 235. Peters v. Lincoln, etc. R. Co., 137. Peters v. Lynchburg, 170. Petersborough R. Co. v. Nassau Co., 50. Petersburg v. Metzker, 47, 170. Peterson, Clapp v., 120. Peterson v. New York, 77. hi TABLE OF CASES CITED. Eeferences are to sections. Phelps v. Farmers' Bank, 124 Phelps, Kennedy v., 212. Phelps v. Mankato, 200. Philadelphia, Bryson v., 215. Philadelphia, Elliott v., 219. Philadelphia, Hague v., 194. Philadelphia, Hammett v., 225. Philadelphia, Johnson v., 215. Philadelphia, Michener v., 207. Philadelphia, Reilly v., 194. Philadelphia v. Ridge Ave. etc. Co., 146. Philadelphia, Savings Fund v., 215. Philadelphia, Sharpless v., 181. Philadelphia, Sower v., 171. Philadelphia, etc. R. Co. v. Mary- land, 146, 148. Philadelphia, etc. R. Co. v. Quig- ley, 162. Philadelphia, etc. R. Co., Taylor v., 98. Phillipi, New Orleans v., 212. | Phillips v. Allen, 212. Phillips, Clinton v., 176. Phillips, Drake v., 198. Phillips v. Railroad Co., 129. Phillips Academy v. King, 92. Phoenix Co., In re, 74. Phoenix Glass Co., Beers v., 96. Picard v. Pullman Car Co., 9. Pickering v. Stephenson, 53, 154. Piedmont Co., Curtis v., 74. Pierce v. Crampton, 167. Pierce v. Emery, 83, 91, 100. Pierce v. New Bedford, 204 Pieri v. Shieldsbofo, 212. Pierson, First Nat. Bank v., 103. Pike Co., Foote v., 227. Pilgrim Society, Haywood v., 77. Pilkin, Belding v., 69. Pimental v. San Francisco, 191. Pine Grove Township v. Talcott, 238. Pipes, St. Louis, etc. R. Co. v., 129. Pinto Co. Case, 137. Pitney, Lucas v., 96, 100. Pittsburg, Commonwealth v., 100. Pittsburg v. Green, 220. Pittsburg, Mazet v., 189. Pittsburg, O'Connor v., 203. Pittsburg, etc. Co., Mercer v., 183. Pittsburg, etc. R. Co. v. Keokuk, etc. Co., 9, 47, 52, 53, 54, 69,74, 76. Pittsburg, etc. R. Co., Shawmut's Bank v., 129. Pittsford, Taft v., 9, 70, 201. Pitzman v. Freeberg, 237. Placerville, Douglas v., 198. Plainfield, Merrill v., 198. Plank Road Co., City Council v., 9,70. Plank Road Co., Jackson's- Adm'rs v., 124. Planters' Bank v. Sharp, 77. Planters' Bank v. Whittle, 91. Planters' Press, Greenville Com- press v., 72, 74, 143. Piatt, Central G. Min. Co. v. r 83 Piatt v. Union Pac. R. Co., 105. Plattsburg, etc. R. Co., Hoyle v., 153. Plattsmouth, Read v., 224. Plume Co., Union Hardware Co, v., 74. Plymouth B. Co. v. Berry, 76. Poitiaux, The Banks v., 81, 83. Police Jury v. Britton, 100, 223, 237. Pollard v. Maddox, 141. Pollock v. Louisville, 219. Pomeroy v. Bank, 144. Pontiac v. Carter, 203. Poole, Bard v., 166, 167. Poole v. "West Point, etc. Ass'n, 110. ' Poor. European, etc. R. Co. v., 153. Pope v. Capitol Bank, 103. Port Huron, Ashley v., 211. Port Huron, Thomas v., 74 Portage, James v., 200. Porter, Meyer v., 235. Porter, Northern Bank v., 226. Portland, Coulson v., 231. Portland, Franklin Wharf Co. v.,. 208, 213. Portland, Merrill v., 204 Portland v. Richardson, 206. Portland L. & M. Co. v. East Port- land, 201. Portland, etc. R. Co. v. Hartford* 235. TABLE OF CASES CITED. lvii References are to sections. Post, County of Randolph v., 227. Post, Kendall Co. v.. 190. Potter v. Bank, 100. Potter, Chaffee Co. v., 53. Potter v. Commissioners, 228. Poughkeepsie, Dickinson v., 191. Powder River, etc. Co. v. Lamb, 74, 75. Powell, Columbus, etc.. R. Co. v., 146. Powell v. Northern Mo. R. Co., 146. Powers v. Council Bluffs, 220. Powers, Hodgson v., 53; Poyer v. Des Plaines, 178. Pratt, Bott v., 172. Pratt, Orleans v., 228. Pratt v. Pratt, 53. Pratt v. Railroad Co., 129. Pratt v. Short, 74 Pratt v. Topeka Bank, 161. Presbyterian Church v. Mayor, etc., 215. Prescott, Buckley v., 205. Preston, Gordon v., 84. Preston v. Railroad Co., 77. Price v. Quincy, 196. Price v. St. Louis Ins. Co., 137. Priest v. Hat Co., 168. Pritts v. Palmer, 81. Proctor, Rutland, etc. R. Co. v., 129. Proprietors, etc. v. Gordon, 77. Proprietors, etc., Lowell v., 213. Proprietors, etc., Royce v., 81. Proprietors, etc., Woodbridge v., 77. Prout v. Inhabitants, etc., 195. Providence, Simmons v., 203. Providence Bank v. Bellings, 8. Providence Ins. Co., Head v., 21, 28, 37, 47, 50, 70, 170. Pullman v. Upton, 112. Pullman Co., Heinrich v., 163. Pullman Car Co., Central Trans. Co. v., 9, 10, 12, 37, 52, 53, 54, 55, 68, 70, 72, 74, 78, 137, 138. Pullman Southern Car Co., Pick- ard v., 9. Purdue University, Marks v., 225. Putnam, Smith v., 155. Pyle Works, In re, 125. Q. Quebrada Ry., In re, 114. Quicksilver Min. Co., Kent v., 96. 106, 124, 127. Quigley, Dayton v., 176. Quigley, Philadelphia, etc. R. Co. v., 162, 222. Quin v. City of Baltimore, 201. Quincy v. Jones, 203. Quincy, Price v., 196. Quincy Bridge Co. v. Adams County, 145. E. Rabb, Trenton, etc. Co. v., 203. Rade v. Dunlap, 137. Racine, Teegarden v., 177. Racine R. Co. v. Farmers' L. & T. Co., 144, 145. Radcliff's Ex'rs v. Mayor, 208. Radecke, Baltimore v., 176, 178, 212. Rae v. Mayor, 188. Ragg, People v., 225. Railroad Association, Crawford v., 129. Railroad Commissioners, Rail- road Co. v., 144. Railroad Co., Allison v., 235. Railroad Co. v. Berry, 144. Railroad Co., Bound v., 235. Railroad Co., Brainerd v., 135. Railroad Co., Bridgeport v., 170, 177, 201. Railroad Co., Brintnall v., 129. Railroad Co., Burroughs v., 129. Railroad Co., Darling v., 129. Railroad Co., Davis v., 136, 1'37. Railroad Co., Fogg v., 162. Railroad Co. v. Georgia, 141, 143, 144. Railroad Co., Gifford v., 198. Railroad Co., Hill Mfg. Co. v., 129. Railroad Co., Hood v., 129, 164. Railroad Co. v. Howard, 9. Railroad Co., Ind. Roll M Co. v., 159. Railroad Co., Irish v., 129. Railroad Co., Krulevitz v., 162. Railroad Co., Kyle v., 129. Iviii TABLE OF CASES CITED. References are to sections. Railroad Co., Lock Co. v., 129. Railroad Co. v. Lockwood, 9. Railroad Co. v. Manufacturing Co., 129. Railroad Co. v. Mayor, 215. Railroad Co., McMillan v., 129, 137. Railroad Co., Mohawk Bridge Co. v., 216. Railroad Co., Mulligan v., 129. Railroad Co., Munson v., 79. Railroad Co., National Docks v., 168. Railroad Co., Noyes v., 129. Railroad Co., Nutting v., 129. Railroad Co., Oil Co. v., 81. Railroad Co. v. Palmes, 144. Railroad Co., Peet v., 129. Railroad Co., Perkins v., 129. Railroad Co., Phillips v., 129. Railroad Co., Pratt v., 129. Railroad Co., Preston v., 177. Railroad Co. v. Quigley, 222. Railroad Co. v. Railway Co., 199. Railroad Co., Ranger v., 162. Railroad Co., Richards v.. 84, 100. Railroad Co., Ryan v., 156. Railroad Co., Salem v., 212. Railroad Co., State v., 144. Railroad Co., State Board v., 191. Railroad Co., Stevens v., 198. Railroad Co., Tench v., 162. Railroad Co., Thomas v., 35, 47, 52, 53, 55, 69, 70, 71, 72, 78, 119, 128, 137. Railroad Co., Titus v., 159. Railroad Co., Transportation Co. v., 129. Railroad Co., Tucker Canal Co. v., 216. Railroad Co. v. Union R. Co., 64. Railroad Co. v. Vance, 9. Railroad Co., Walker v., 162. Railroad Co., West Guillimbury v., 198. Railroad Co., Whitfield v., 162. Railroad Co., Whitney v., 224. Railroad Co., Woodward v., 129. Railroad Co., Wright v., 172. Railway Co. v. Allerton, 109, 110. Railway Co., Coleman v., 136. Railway Co., Commissioners v., 96. Railway Co., Great Northern R. Co. v., 137. Railway Co. v. McCarthey, 62, 64, 68. Railway Co., Railroad Co. v., 199. Railway Co. v. Redmond, 7. Raleigh, Tucker v., 96. Ramsay County, Goodwin v., 230. Ramsey v. Insurance Co., 168. Randall, Tqppenden v., 69. Randall v. Van Veohten, 77, 158. Randolph, Bigelow v., 219. Randolph v. Larned, 141. Randolph County v. Post, 227. Ranger v. Railroad Co., 162. Rapho v. Moore, 206, 210. Rapid City, McGuire v., 201. Rattle, Burt v., 84. Ray v. Ind. Ins. Co., 101. Ray v. Manchester, 204. Ray, Mayor v., 74, 119, 230, 237. Read v. Plattsmouth, 225. Redd v Henry County, 235. Reddish, Cottage Co. "v., 100. Redmond, Railway Co. v., 7. Redmond, South Wales R. Co. v., 128, 130. Reed, Bank of Pennsylvania v., 161. Reed, Emmett v., 77. Reed v. Hoyt, 91. Reed, Laing v., 98. Reed, McMasters v., 47, 100. Reed v. Mobile Bank, 135. Reed v. Richmond, 3. Reed v. Savings Bank, 162. Reese v. Bank, 124. Reeves v. Wood Co., 86. Regents Canal Co., Ware v., 53. Ruichwold v. Commercial Hotel, 83, 91. Reilly v. Philadelphia, 194. Re International Ins. Co., 96. Reinhard v. Mayor, 204. Reinhard v. New York, 172. Relfe, Alexander v., 163. Rensselaer & Saratoga R. Co. v. Davis, 8. Republic Ins. Co. v. Swigert, 120. Requa v. Rochester, 204, 206, 220. Rex v. Amery, 3. Reynolds v. Commissioners, 83. Reynolds, Mayor, etc. v., 190. Reynolds v. Shreveport, 203. Reynolds v. Stark Co., 81. TABLE OF CASES CITED. lix References are to sections. Reynolds Eng. Co., Merrick v., 51, 168. Rhodes v. Cleveland, 311. Rice, Exchange Bank v., 219. Rich v. Erral, 74, 75. Rich v. Southern Pac. Co. 135. Rich v. State Nat. Bank, 77. Richards v. Clarksburg, 170. Richards v. Merrimack R. Co., 84, 100, 141. Richards v. Supervisors of Lyon Co., 196. Richards v. Warren Co., 190. Richardson v. Buhl, 148. Richardson, Portland v., 206. Richardson v. Sibley, 9, 53, 137. Richardson Co. v. Grant, 191. Riche, Ashbury R. Co. v., 9, 41, 42, 43, 44, 45, 52, 53, 72, 78, 137. Richmond, Jones v., 188. Richmond v. McGirr, 177. Richmond, Reed v., 3. Richmond, Thomas v., 73, 138, 172, 190. Richmond, Wade v., 198. Richmond Factory Co. v. Alex- ander, 3. Richmond, etc. Co., Gordon's Ex'rs v., 119. Richmond, etc. R. Co. v. Louisi- ana, etc. R. Co., 8. Richmond, etc. R. Co. v. Snead, 100. Ridge Avenue, etc. R. Co. v. Phil- adelphia, 146. Ridgway v. Bank, 96, 100. Ridley v. Plymouth Baking Co., 77. Ringas v. Biscoe, 91. Risdon, Menser v., 173. Ritchie, Fraser v., 120. Ritter, Nauvoo v., 227. Rivanna Nav. Co. v. Dawson, 81, 95. River Dee, etc. Co., Baroness Wenlock v., 44. Rivers, New Orleans Water Co. v., 216. Riverside District, Nesbit v., 228. Robbins v. Chicago, 206, 220. Robbins. Cleveland R. Co. v., 126. Roberts v. Deming Co., 74. Roberts v. Ogle, 212. Roberts v. Van Buskirk, 129. Robertson v. Bullions, 92. Robertson v. Rockford, 144. Robeson, Ewing v., 51. Robie v. Sedgwick, 81. Robinson v. Beale, 120. Robinson v. Bland, 75. Robinson, Booth v., 96, 98, 122. Robinson, Comm. v., 176. Robinson, Concord v., 223, 228, 230, 237. Robinson, Ewing v., 168. Robinson v. Smith, 156, 158. Robinson v. St. Louis, 188. Rochester, Requa v., 204, 206, 220. Rochester, Smith v., 219, 222. Rochester Ins. Co. v. Martin, 9. Rochester Sav. Bank v. Aver- hill, 9. Rock River Bank v. Sherwood, 9. Rockford, Robertson v., 144. Rockford, etc. Co., Harding v., 223 Rockford R. R. Co. v. Sage, 79. Rockhold v. Canton Masonic So- ciety, 7. Rockwell v. Elkhorn Bank, 96, 100, 134, Rockwell, Hartridge v., 120. Rocky Mountain National Bank, Union G. M. Co. v., 77. Roddy v. Finnegan, 172. Rogers v. Burlington, 225. Rogers, Carr v., 61. Rogers, Covert v., 91. Rogers, East Tenn. R. Co. v., 129. Rogers, Konrad v., 185. Rogers, McCurdy v., 190. Rogers v. Oxford, etc. R Co., 53. Rogers. St. Joseph Township v., 228, 238. Rogers, Tapsham v., 194. Rogers Locomotive Works v. Southern R. Ass'n, 136. Rome v. Cabot, 188, 217. Rome, Mitchell v., 203. Rome, etc. R. Co. v. Ontario, etc. Co., 146. Roome, Adriance v., 52. Root v. Goddard, 70. Root v. Great Western R. Co., 129. Root v. Oil Creek, etc. Co., 146. Roper, Ooregum M. Co. v., 117. lx TABLE OF CASES CITED. References are to sections. Ropes, Salem Mill-dam Co. v., 109, 113. Rosenthal, Cincinnati Co. v., 71. Ross v. Clinton, 211. Rossie L. M. Co., Moss v., 77. Rouede v. Jersey City, 227. Rouse. Glasgow v., 181. Routerberg, Banking Co. v., 99. Rowell v. Williams. 220. Royal Bank v. Turquand, 160. Rovce, Proprietors Claremont Bridge v., 81. Roylston v. Roylston, etc. Co., 188. Roylston Market v. Boston Asso- ciation, 170. Ruckman. Davenport v., 220. Rudolph, Merchants' Bank v., 161. Rufford, Beman v., 137. Ruggles v. Collier, 9. Runnels, Harris v., 69. Runyan v. Lessee, etc., 81. Rush v. Steamboat Co., 51, 168. Rushout, Great Western R. Co. v., 53. Rusk v. Walsh, 69. Russell v. De Grand, 71. Russell, Kirkham v., 170, 176. Russell v. Mayor, 220. Russell, St. Louis v., 186. Russell v. Tapping, 81, 85. Rutland, etc. R. Co., Chaffee v., 124. Rutland, etc. R. Co. v. Proctor, 129. Rutland, etc. R. Co., Stevens v., 9, 129. Rutland, etc. R. Co. v. Thrall, 118. Ryan v. Dunlap, 161. Ryan v. Railroad Co., 156. Rye v. Paterson, 212. S. S. & F. Ry. Co., Whiting v., 224. Sacchi, Aspinwall v., 106. Safford v. Wycoff, 100. Safety Dep. L. Co. v. Smith. 79. Sage v. Lake Shore, etc. R. Co., 145. Sage, Rockford R. Co. v., 79. Sage, Welch v., 135. Saginaw, Gas Light Co. v., 199; 216. Sailor, Savings Association v., 161. Salem v. Railroad Co., 212. Salem Mill-dam Co. v. Ropes, 109, 113. Salem Mills, First Nat. Bank v., 120. Salem Nat. Bank v. Almy, 51, 168. Salisbury Mfg. Co., Treadwell v., 83, 133. Salt Lake City v. Hollister, 9, 53, 74,163,222,233. San Antonio, Bolton v., 235. San Antonio v. Mehaffey, 62, 63, 68, 227. Sanford Tool Co. v. Howe, Brown & Co., 84. San Francisco. Argenti v., 188, 190, 191, 192. San Francisco, De Witt v., 185. San Francisco, Gas Co. v., 171, 191. San Francisco, Holland v., 9, 14, San Francisco, Howard v., 219. San Francisco, McCracken v., 170, 191, 194. San Francisco, People v., 195, 201. San Francisco, Pimental v., 191. San Francisco, Water Works v., 218. San Francisco, Wheeler v., 129. San Francisco, Zottman v., 201. San Francisco Dock Co., Vandell v., 9. San Francisco R. Co., Harris v., 126. Sangamon Co. v. Springfield, 191. Sanger v. Upton, 107, 112. Sankey Brook Coal Co., In re, 125. Santa Ana Township, Anderson v., 238. Santa Clara Female Academy v, Sullivan, 166. Santwood v. St. John, 129. Saratoga, etc. R. Co., Beekman, v., 86. Saratoga, etc R. Co., Weed v., 129. Sargent v. Webster, 83, 91. Sattirlee, Chambers v., 203. Satterthwaite v. Beaufort Co 177. * TABLE OF CASES CITED. lxi References are to sections. Saulsbury v. Ithica, 205. Sault Ste. Marie R, Co. v. Van Duzen. 194. Savage v. Ball, 100. Savanna v. Speers, 208. Savanna R. Co., Hazelhurst v., 53, 121. Savanna R. Co. v. Lancaster, 96. Savings Association v. Sailor, 161. Savings Association v. Topeka, 237. Savings Bank v. Bates, 91. Savings Bank v. Reed, 162. Savings Fund v. Philadelphia, 215. Sawmill Association, Lovett v., 89. Sawyer v. Coose, 220. Sawyer v. Hoag, 108. Schammel, Fanning v., 238. Schank v. Mayor, 177. Schenck, Supervisors v., 227. Schenley v. Commissioners, 173. Schnell v. Chicago, 192. School District, Clark v., 100. School District, Hewitt v., 223. School District, Keyser v., 77. School District v. Lombard, 230. School District, Montague v., 100. School District, Williams v., 225. School District, Wilson v., 194. Schrauber, Treadway v., 170, 192. Schultz v. Milwaukee, 204. Schumaker, Baltimore, etc. R. Co. v., 129. Schuyler. New York, etc. R. Go. v., 109. Schuylkill Bank, Bank of Ken- tucky v., 77, 160. Schwingle, Erie v., 220. Scott, Indianapolis v., 210. Scott v. Mayor, 220. Scott. Utica Ins. Co. v., 74, 75. Seoville v. Thayer, 109, 110. Scranton, Torrey v., 203. Screw Co., Hodges v., 83, 122, 154, 156. Scroggs, Keokuk v., 170. Scudder v. Trenton, etc. Co., 183. Scully, Fowler v., 69. Sea Foam Ins. Co., In re, 74. Second Ave. R. Co., Mayor v., 182. Sedalia, Hellen v., 219. Sedgwick, Robie v., 81. Seeger v. Mueller, 192. Seele v. Deering, 213. Seeley, Pacific R. Co. v., 85. Seibrecht v. New Orleans, 50. Seignouret v. Home Ins. Co., 113. Seip, Slayden v., 155. Selfridge, People v., 3. Selma v. Mullen, 170. Selma, etc. R. Co., Blackburne v., 81. Senney v. East Warren, eta L. Co., 87. Sewell v. Cahous, 200. Sewell v. St. Paul, 222. Sewell's Case, 110. Shaffner v. St. Louis, 183. Shallcross v. Jeffersonville, 175. Sharon, Terrett v., 198. Sharon Canal Co. v. Fulton Bank, 143, 148. Sharp, Milhan v., 215. Sharpe, Planters' Bank v., 77. Sharpe v. Teese, 69. Sharpless v. Mayor, etc., 224. Sharpless v. Philadelphia, 181. Shaver v. Bear River M. Co., 77. Shaw v. Boston, 176. Shaw v. Crocker, 203. Shaw v. Norfolk Ry., 141. Shaw v. Packet Co., 53, 74, Shawmut's Bank v. Pittsburg, etc. R. Co., 129. Shawnee, Mason v., 172. Shawnee Bank, West St. Louis Bank v., 160. Shawneetown v. Baker, 195. Shea v. Mabry, 156. Shea, Southern Exp. Co. v., 129. Sheffield, Mayor v., 200, 206. Sheidley v. Lynch, 177. Sheldon v. Kalamazoo, 162. Sheldon Hat Co. v. Fickmeyer, 83, 106. Sheridan v. Colvin, 177. Sherlock v. Winnetka, 185. Sherman v. Carr, 170. Sherman, Farmers', etc. Bank v., 77. Sherman, State v., 144 Sherwood v. Alvis, 53, 70. Sherwood, Rock River Bank v., 9. Shetucket Co., Stoddard v., 126. She ward v. Citizens' Water Co., 218. lxii TABLE OF CASES CITED. Keferences are to sections. Shields v. Ohio, 143, 144. Shields, St. Louis v., 101. Shieldsboro, Pieri v., 212. Shiras v. Ewing, 218. Shirley, Houston, etc. E. Co. v., 142, 144. Shockley v. Fisher, 91. Shore v. Wilson, 94. Short, Pratt v., 74. Shotwell v. Mott, 95. Shreveport, Reynolds v., 203. Shrewsbury v. Brown, 191. Shrewsbury, etc. Ry., Johnson v., 71, 137. Shrewsbury, etc. Ry. v. North- western Ry., 55, 70, 128, 137. Sibley, Exchange Bank v., 157, 158. Sibley, Richardson v., 9, 53, 137. Siebrecht v. New Orleans, 188, 190. Silk Co., Narragansett Bank v., 100. Silliman, Wiley v., 223. Silver Lake Bank v. North, 166, 167. Simmons v. Camden, 203. Simmons v. Providence, 203. Simmons v. Troy Iron Works, 53, 70. Simpson v. Denison, 130. Simpson, Mallett v., 81. Simpson, Newcastle Ry. v., 119. Simpson v. Westminster Co., 137. Sims, Visalia, etc. Gas Co. v., 137. Singer v. St. Louis R. Co., 134. Skillings, North Yarmouth v., 186. Skinker, Mathews v., 9. Skinner, East Oakland v., 190, 224, 238. Skinner v. Hall, 129. Skinner, White v., 158. Slaughter, Brooklyn Bridge Co. v., 9. Slaughter, Gravel Co. v., 50. Slayden v. Seip, 155. Slee v. Bloom, 107. Slidell v. Grand jean, 9. Small v. Danville, 213. Small v. Smith, 43. Smead v. Ind. etc. R. Co., 9, 96. Smelser v. Turnpike Co., 168. Smith v. Alexander, etc. Co., 53. Smith v. Anderson, 153. Smith v. Bank, 161. Smith v. Birmingham Gas Co., 162. Smith v. Bromley, 69. Smith, Carroll Co. v., 190. Smith, Central Ry. Co. v., 163. Smith v. Chesire, 230. Smith, Childs v., 3. Smith, Comm. v., 83, 133, 134, 137. Smith v. Eau Claire, 203. Smith, Eldridge v., 141. Smith v. Eureka Flour Mills, 47 r 96. 100. Smith, Exchange Bank v., 103. Smith v. Goldworthy, 113. Smith v. Hall Glass Co., 77. Smith v. Insurance Co., 70. Smith v. Ives, 131. Smith v. Los Angeles, etc. R Co., 146. Smith v. Low, 96. Smith v. Manufacturing Co., 156. Smith v. Mawhood, 55. Smith v. Morse, 215. Smith v. Nashua, etc. R. Co., 128. Smith v. Newburg, 170, 194. Smith, Newell v., 129. Smith, People v., 183. Smith v. Putnam, 155. Smith, Robinson v., 156, 158. Smith v. Rochester, 219, 222. Smith, Safety Dep. Co. v., 79. Smith, Small v.. 43. Smith v. State, 77. Smith v. St. Louis Ins. Co., 137. Smith, Van Co. v., 160. Smith v. Washington, 201, 203. Smith, Western, etc. Co. v., 146. Smith Bridge Co., Fort Worth City R. Co. v., 9. Smoot v. Mayor, 220. Smyth v. Bangor, 205. Snead, Richmond, etc. R. Co. v., 100. Snell v. Minneapolis, etc. R. Co., 53. Snyder v. Studebaker, 101. Society, etc. v. Abbott, 107. Society, etc. v. Comm., 3. Solomons v. Laing, 53, 121. Somerset Co., Cory v., 189. Somerville v. Dickerman, 170, 195, TABLE OF CASES CITED. lxiii Keferences are to sections. Soper v. Buffalo R. Co., 154. South Ottawa v. Perkins, 224. South Carolina Phos. Co., Brad- ley v., 8. South, etc R Co., Claffln v., 132. Suuth, eta R. Co., Gilliam v., 163. Sleuth, etc. R Co. v. Great Mt. Ry. Co., 55, 70, 137. South, etc. R. Co., Langstone v., 135. South, etc. R. Co. v. Redmond, 128, 130. Southall v. Insurance Co., 143. Southern Bank, New Orleans v., 194. Southern Exp. Co. v. Shea, 129. ^Southern Life Ins. Co. v. Lanier, 14,74, Southern Pac. Co. v. Orton, 81. Southern Pac. Co., Rice v., 135. Southern Pac. Co., Tex. Pac. R Co. v., 131. Southern R Ass'n, Locomotive Works v., 136. Sower v. Philadelphia, 171. Spaulding, Briggs v., 154, 156, 157, 158. Spears, Savanna v., 208. Special Sessions, People v., 171. Spering's Appeal, 147, 153, 154, 156, 158. Spiller v. Paris Rink Co., 79. Spiral Springs Co., Day v., 74. Spohr v. Farmers' Bank, 12, 168. Spradley, Oxford Ins. Co. v., 96, 100. Sprague v. Hartford Ins. Co., 145. Sprague Mfg. Co., Occum Co. v., 9, 137. Spratley, Paine v., 170. Spring Co., Cowell v., 166. Spring Co. v. Knowlton, 69, 73, 138 Springfield v. Edwards, 196, 235. Springfield v. Le Claire, 220. Springfield, Sangamon County v., 191. Springfield. Stanton v., 205. Spring Valley Township, Bissell v., 226. Spring Valley Water Works v. Bartlett, 235. Spring Valley Water Works v. San Francisco, 218. Stace & Worth's Case, 109. Stack v. Maysville, 177. Standard Oil Co., State v., 12, 148. Standi fer v. Swann, 88. Stanton v. Springfield, 205. Stark v. United States Pottery Co., 77. Stark Co., Reynolds v., 81. Starr v. Burlington, 172. State, Aicardi, v., 8. State, Atlantic, etc. R. Co. v., 144. State v. Bailey, 142, 143, 147. State v. Baltimore, etc. R. Co., 146. State v. Bank, 83. State v. Bank of Maryland, 100. State v. Bell, 173. State v. Bevers, 190. State, Board of Education v., 225. State v. Boston, etc. R. Co., 81. Sta'te v. Brown, 185. State'v. City of Palestine, 235. State v. Clark, 171, 176, 181. State v. Cleveland, 172. State v. Coke Co., 199. State v. College, 83. State v. Commissioners, 148, 185. State v. Fisk, 173. State v. Freeman, 176. State v. Gas Co., 215, 216, 218. State v. Gaslight Co., 218. State v. Green Co., 143, 146. State v. Hanser, 173. State v. Hammonton, 188. State, Harrison v., 199. State v. Hoboken, 182. State v. Jersey City, 173, 174, 176, 235 State v. Keokuk, etc. R. Co., 144. State v. Madison, 81, 185. State, Mahoney v., 3. State v. Mansfield, 81. State v. Marion Co., 170. State v. Martin, 195. State v. Mayor, 176. State v. Milwaukee G. L. Co., 216. State v. Montgomery, 235. State v. McCann, 225. State, McCaslin v., 190. State v. Nebraska Dis. Co., 55. State v. Newark, 81, 173. Lxiv TABLE OF OASES CITED. Keferences are to sections. State v. Osawkie Township, 225. State v. Passaic, 170. State v. Paterson, 173. State v. Railroad Co., 144. State v. Sherman, 144. State v. Smith, 77. State v. Standard Oil Co., 12, 148. State v. Stebbins, 47. State v. Swearingen, 177. State v. Trenton, 173. State v. Tryon, 172. State v. White, 175. State v. Williams, 172. State, Zimmer v., 144. State Bank v. Fox, 120. State Bank, Merchants' Bank v., 160, 163. State Bank v. Wheeler, 161, 162. State Board, etc. v. Citizens' Ey. Co., 9, 191. State National Bank, Rich v., 77. Staten v. Morgan, 141. Steam Navigation Co. v. Dan- dridge, 201. Steamboat Co. v. Brown, 129. Steamboat Co., Rush \l, 51, 168. Stearns, Chicago v., 205. Stebbins, State v., 47. Steck v. Lancaster, 200. Stecket v. East Saginaw, 201. Steele v. Boston, 204. Steffee, Comm. v., 176. Stein v. Howard, 115. Stephenson, Pickering v., 53, 154. Sterling, Church v., 77, 128. Sterling v. Thomas, 206. Stevens, Attorney-General v., 168. Stevens v. Railroad Co., 9, 198. Stewart v. Brooklyn R. Co., 162. Stewart, Council Bluffs v., 196. Stewart, Empire Mfg. Co. v.. 167. Stewart v. Erie, etc. R. Co., 9, 53, 129, 130. Stewart v. Jones, 141. Stillwater, Bangor Savings Bank v., 233. Stimson, Thomaston Bank v., 85. Stockdale v. Wayland School District, 231. Stockford v. St. Louis, 203. Stockton v. Central Ry. Co., 137. Stockton, etc. R. Co. v. City Coun- cil, 181. Stoddard v. Foundry Co., 124. Stoddard v. Shetucket Co., 126. Stoever, Payson v., 110. Stone v. Hubbardston, 205. Stoudinger v. Newark, 207. Stoutmore v. Clark, 101, 168. Stowe v. Flagg, 3, 12. Strait, New Jersey, etc. Ry. Co. v., 146. Straus, Hammond v., 51, 168. Strauss v. Eagle Ins. Co., 9, 47, 50. Striplen, Glidden v., 61. Stuart v. London, etc. R. Co., 77. Studebaker v. Montgomery, 168. Studebaker, Snyder v., 1, 118. Sturge v. Eastern, etc. R. Co., 118. Sturges v. Bank, 161. Sturges, Firemen's Ins. Co. v., 23. Sturtevant v. Alton, 188, 201. Stutz, Handley v., 107, 109, 110, 112, 117. Stuyvesant v. Mayor, 215. Sugar Ref. Co., People v., 137, 148. Sullivan v. Murphy, 100. Sullivan, Santa Clara Academy v., 81, 166. Sumner v. Marcy, 122. Sunbury & Erie Ry., Packer v., 8, 9. Supervisors, Kennicutt v., 228. Supervisors, Migret v., 238. Supervisors, Nugent v., 143, 146. Supervisors v. Schenck, 227. Supervisors, Wells v., 237. Supervisors of Lyon County, Rich- ards v., 196. Susquehanna Bridge Co. v. Insur- ance Co., 84. Susquehanna Canal Co. v. Bon- ham, 141. Sussex, etc. R. Co. v. Morris, etc. R. Co., 8, 10, 130, 131. Sutherland v. Olcott, 109, 113. Sutliff v. Lake Co., 53. Sutton v. Clark, 203. Swackhamer, Hackettstown v., 96. Swann, Standifer v., 88. Swansea, Hull v., 74. Swanson, Hopkins v., 172. Swartout v. Michigan, etc. R. Co., 168. Swearingen, Scott v., 177. TABLE OF CASES CITED. lxv References are to sections. Sweet v. Wabash. 175. Swift, People v., 194. Swigert, Republic Ins. Co. v., 120. Syracuse, Weston v., 196. St. Andrews Bay Co. v. Mitchell, 52. St. Anne, Chicago, etc. R Co. v., 240. St. Charles R Co., Canal, etc. R. Co. v., 52. St. Clair County Turnpike Co. v. People, 9. St. Clara Academy v. Sullivan, 81. St. Francis Academy, Milliard v., 100. St. John, Bank v., 156. St. John, East St. Louis v., 86. St. John, Santwood v., 129. St. Joseph, Thurston v., 211. St. Joseph, etc. R Co., Farmers' L. & T. Co. v., 74, 131. St. Joseph Township v. Amy, 227. St. Joseph Township v. Rogers, 228, 238. St. Louis v. Armstrong, 194. St. Louis v. Bank, 171. St. Louis v. Bell Tel. Co., 170. St. Louis v. Bentz, 212. St. Louis v. Buffinger, 177. St. Louis, Chambers v., 81. St. Louis v. Gurno, 203. St. Louis Illinois Canal Co. v,, 215. St. Louis, Jay v., 128, 146. St. Louis v. Kaime, 172. St. Louis, Leslie v., 86. St. Louis, Lockwood v., 177. St Louis, Page v., 177. St. Louis, Perkins v., 190. St. Louis, Robinson v., 188. St. Louis, Russell v., 186. St. Louis, Shaffner v., 183. St. Louis v. Shields, 101. St. Louis, Stockford v., 203. St. Louis v. Webber, 9. St. Louis Bridge Co. v. People, 207. St. Louis Carriage Co. v. Hilbert, 120. St. Louis Gas Light Co. v. St. Louis, 168. St. Louis Ins. Co., Price v., 137. St. Louis Ins. Co., Smith v., 137. St. Louis, etc. R. Co. v. Bellville, 192. St. Louis, etc. R. Co., Eakin v., 137. St. Louis, etc. R. Co., Penn. etc. R. Co. v., 9, 53, 72, 74, 136, 137, 138. St. Louis, etc. R. Co. v. Pipes, 129. St. Louis, etc. R Co., Singer v., 134. St. Louis, etc. R. Co. v. Terre Haute, etc. R. Co., 53, 73, 138. St. Louis Stone ware Co., Lafay- ette Bank v., 9. St. Paul, Cleveland v., 206. St. Paul v. Coulter, 171, 212. St. Paul, Darling v., 173. St. Paul, Furnell v., 205. St Paul, Hennesy v., 53. St Paul, Kaist v., 203. St. Paul, Miller v., 205. St. Paul, Nash v., 194. St Paul, O'Brien v.. 211. St. Paul, Sewell v., 222. St. Paul v. Traeger, 170. St Paul, etc. Ass'n, Bergman v., 53. St. Peter's Church, De Ruyter v., 83. St. Tamany Water Works v. New Orleans Water Works, 216. Taft v. Pittsford, 9, 70, 201. Tainter v. Worcester, 219. Talcott, Pine Grove Township v., 238. Talldega Ins. Co.. McCullough v., 77. Talldega Ins. Co. v. Peacock, 100. Tallassee Mfg. Co., Lehman v., 105, 135. Tallman, Western Bank v., 128. Talmage v. North American Coal Co., 47, 52. Talmage v. Pell, 121. Talman, Mobile, etc. R. Co. v., 96. Tash v. Adams, 175. Tate, Indianapolis v., 211. Taxpayer v. Tenn. etc. R Co., 237. Taylor v. Agricultural Associa- tion, 96. lxvi TABLE OF CASES CITED. Keferences are to sections. Taylor v. Carondelet, 212. Taylor v. Chichester, etc. R. Co., ' 52, 55, 56, 70. Taylor v. Earle, 123. Taylor v. Export Co., 120. Taylor v. Formholz, 74, 75. Taylor v. Phil. etc. R. Co., 98. Taylor v. Yonkers, 205. Taylor Mfg. Co., American Pres. Trust v., 69, 148. Teachout v. Des Moines, etc. R. Co., 53. Teegarden v. Racine, 177. Teese, Sharpe v., 69. Temperance Society, Livingstone v., 120. Tench v. Railroad Co., 162. Tennessee v. Whitworth, 148. Tennessee, etc. R Co., Taxpayer v., 237. Tennessee, etc. R. Co., Winston v., 235. Tenney v. Lumber Co., 88. Terre Haute v. Lake, 201. Terre Haute, etc. R. Co., Archer v., 9. Terre Haute, etc. R Co., Jones v., 124. Terre Haute, etc. R. Co., St. Louis, etc. R. Co. v., 53, 73, 138. Terrett v. Sharon, 198. Texas & Pac. R. Co. v. Southern Pac. Co., 131. Thayer v. Boston, 162, 222. Thayer, Commissioners v., 227. Thayer, Norristown v., 204, 210. Thayer, Scoville v., 109, 110. The Banks v. Poiteaux, 81. The Commission, Munn v., 96, 100. The Hartford Bridge Co. v. East Hartford, 187. The Liberty Bell, 175. Thomas, County of Scotland v., 146. Thomas v. Port Huron, 74. Thomas v. Railroad Co., 35, 47, 52, 55, 69, 70, 71, 72, 78, 119, 128, 137,138. Thomas v. Richmond, 73, 138, 172, 190. Thomas, Sterling v., 205. Thomaston Bank v. Stimpson, 83. Thompson v. Abbott, 144, 146, 186. Thompson, Horton v., 194. Thompson, Hoyt v., 159. Thompson v. Lambert, 96. Thompson v. Lamont, 84. Thompson v. Lee, 238. Thompson, Peoria, etc. R. Co. v., 131. Thompson v. Waters, 9, 81. Thornton, Hightower v., 106. Thornton v. Howe, 94. Thrall, Rutland Ry. v., 118. Thurston v. St. Joseph, 211. Tioga R Co., Olcott v., 100. Tippecanoe Co. v. Lafayette R. Co., 53, 78. Tippets v. Walker, 158. Titcomb, Clark v., 83, 96. Titus v. Mabee, 131. Titus v. Railroad Co., 159. Todd, Dean v., 177. Todd v. Troy, 210. Toledo v. Case, 220. Toledo, Harbeck v., 183. Toledo Ins. Co., White's Bank v., 9, 47, 100. Toll Bridge Co. v. Osborn, 9. Tolleston Club, Alexander v., 81. Tombigbee v. Kneeland, 165, 166. Tomlinson v. Branch, 146, 148. Tone v. Mayor, 220. Toolan, Lansing v., 203. Tooley, Athenseum, etc. Co. v., 74. Topeka, Citizens' Savings, eta v., 181, 237. Topeka v. Huntoon, 177. Topeka, Loan Association v., 179, 181, 224, 225, 238. Topeka Bank, Pratt v., 161. Tappenden v. Randall, 69. Topping, Russell v., 81, 85. Topsham v. Rogers, 194. Torrey v. Scranton, 203. Touche v. Warehousing Co., 79. Town Council, Albright v., 188. Town of Depere v. Bellevue, 186. Town of Durango v. Pendleton, 201. Town of Durango v. Pennington, 189. Town of Lake, Drexel v., 207. Town of Middleport v. iEtna Ins. Co., 240. TABLE OF CASES CITED. lxvii References are to sections. Townsend v. Brown, 8. Townsend, Logan Co. Bank v., 74. Tracy v. Guthrie Co., 76. Traeger, St. Paul v., 170. Transportation Co., Bank v., 130. Transportation Co. v. Chicago, 203. Transportation Co., Farmers' Bank v., 129. Transportation Co., Railroad Co. v., 129. Trapshagen v. Jersey City, 207. Treadway v. Schrauber, 170, 190. Treadwell v. Salisbury Mfg. Co., 83, 133. Trenton, State v., 173. Trenton, etc. Co., Scudder v., 183. Trevor v. Whitworth, 45, 117, 120. Trigally v. Memphis, 171. Trinity Church, Bogardus v., 81. Tripp, Aldrich v., 222. Tripp, Inman v., 211. Troop, People v., 176. Trott v. Warren, 194. Trotter, Chicago v., 176. Troupe's Case, 77. Troy, Francis v., 170. Troy, Todd v., 210. Troy Iron Works, Simmons v., 53, 70. Troy, etc. R. Co. v. Boston, etc. R. Co., 9. Troy, etc. R. Co., Buffet v., 13, 128. Troy, etc. R. Co. v. Kerr, 137. Trumpler v. Bernerly, 86. Trust Co., Ohio Ins. Co. v., 74. Trustees, Congregational Church v., 94. Trustees v. King, 95. Trustees, Northern Bank v., 228. Trustees v. Peaslee, 15, 93. Trustee, People v., 186. Trustees, Walsh v., 3. Tryon, State v., 172. Tuckahoe Canal Co. v. Railroad Co., 216. Tucker v. City of Raleigh, 96. Tucker, Fry v., 128. Tuckerman v. Brown, 108. Tugman v. Chicago, 176. Tullis, Cook v., 77. Tunis, Osborn v., 90. Turnbull v. Payson, 127. Turner, Vrooman v., 219. Turner, Webster v., 83. Turnpike Co. v. Illinois, 8. Turnpike Co., Smelser v., 168. Turquand v. Marshall, 158. Turquand, Royal Bank v., 160. Twiss v. Life Association, 74. Tyler v. Beacher, 181, 225. Tyson v. Milwaukee, 203. IT. Ulery, Greiner v., 101. Underwood v. Green, 212. Union Bank v. Elliott, 91. Union Bank, Irvine v., 76. Union Bank v. Jacobs, 96, 98, 100. Union Gold Min. Co. v. Rocky Mountain Nat. Bank, 77. Union Hardware Co. v. Plume Co., 74. Union Min. Co. v. Bank, 96. Union Pac. R. Co. v. Cheyenne, 177. Union Pac. R. Co., Chicago, etc R^ Co. v., 19, 71. Union Pac. R. Co., Leo v., 105. Union Pac. R. Co. v. Lincoln Co. 235. Union Pac. R. Co., McAlpine v, 146. Union Pac. R. Co., Piatt v., 105 Union Pac. R. Co., Whipple v. 146. Union Plate Glass Co., In re, 114. Union R. Co. v. Railroad Co., 64. Union Steamboat Co., Green Bay, etc. R. Co. v., 9, 47, 53, 129, 136, 137. Union Tool Co., Utley v., 3. Union Township, Gibonnev v., 194, Union Trust Co. v. 111. etc. Co., 138. Union Trust Co., Whiting v., 77. Union Water Co. v. Memphis, etc. Co., 64. United Companies, Black v., 8. United Gas Co., Gas Light Co. v., 74, 137. Union Service Co., In re, 120. United States, Dickson v., 82. Ixviii TABLE OF CASES CITED. References are to sections. United States v. Ft. Scott, 196. United States, International Co. v., 77. United States v. New Orleans, 179. United States Bank v. Hoth, 83, 100. United States Pat. Co., Stark v., 77. Unity Ins. Co. v. Cram, 3. University, Louisville v., 185. University v. Yarrow, 94. Upton, Chubb v., 106, 112. Upton v. Hansborough, 51, 168. Upton, Pullman v., 112. Upton, Sanger v., 107, 112. Upton v. Tribilcook, 113. Upton, Webster v., 106, 112. Upton, Whittenton Mills v., 9, 53, 148. Urquhart v. Ogdensburg, 202. Utica Ins. Co. v. Bloodgood, 75. Utioa Ins. Co. v. Caldwell, 75. Utica Ins. Co. v. Kep, 69. Utica Ins. Co., People v., 9, 12, 22. Utica. etc. Co., Mohawk Bridge Co. v., 8. Utica Water Works, Johnson v., 86. Utley v. Union Tool Co., 3. V. Vail v. Hamilton. 9. Valentine, Champlain E. Co. v., 81. Valette, Canal Co. v., 83, 91, 96, 100. Valley District, Barker District v., 186. Valley Railroad Co. v. Insurance Co.. 121. Valparaiso v. Adams, 203. Van Alstyne, Lockhart v., 123. Van Buskirk, Roberts v., 129. Van Co., Smith v., 160. Van Duzen, Sault Ste. Marie R. Co. v., 194. Van Dyke v. McQuade, 156. Van Horn v. Des Moines, 219. Van Houton v. Dutch Church, 94. Van Pelt v. Davenport, 209, 211. Van Reuth, Kean v., 168. Van Santford, Merrick v., 166. Van Vechten, Randall v., 77, 158. Vance v. Erie, etc. R. Co., 162. Vance v. Insurance Co.. 156. Vance v. Little Rook, 170. Vance, Railroad Co. v., 9. Vandall v. San Francisco D. Co., 9. Vaughan, Eastern Plank Road Co. v., 3. Vermont, etc. R. Co., Chapin v., 135. Vermont, etc. R Co. v. Clayers, 3. Vermont, etc. R. Co., Ogdensburg. etc. R. Co. v., 9. Vermont, etc. R Co., White v., 135. Vernon, Hanson v., 181, 224 Vicksburg, Craig v., 135. Vidal v. Cirard, 92, 93, 94. Vinalhaven, Brown v., 213. Vincent, Walker v., 87. Viner, Bartlett v., 55. Virginia City, Douglas v., 50, 188. Visalia, etc. Gas Co. v. Sims, 137. Vrooman v. Turner, 219. w. Wabash, Sweet v., 175. Wabash, St. Louis, etc. R. Co. v. Ham, 144. Waddill v. Alabama R. Co.. 53. Waddill, Grand Lodge v., 70. Wade v. American, etc. Society, 99 Wade'v. Richmond, 198. Wahl v. Holt, 129. Wakeman v. Dalley, 158. Walker, Blount v., 81. Walker v. Chapman, 69. Walker v. Cincinnati, 70. Walker v. Railroad Co., 163. Walker v. Tippets, 158. Walker v. Vincent, 87. Wall v. Monroe County, 230. Wallis, Birmington v., 69. Walsh, Aubert v., 69. Walsh v. Augusta, 196. Walsh, Rusk v., 69. Walsh v. Trustees, 3. Walworth v. Holt, 107. TABLE OF CASES CITED. lxix References are to sections. Ward v. Davidson, 158. Ward v. Griswoldville, 107. Ward v. Johnson, 96, 100. Ward, Marvin Safe Co. v., 219. Ware v. Grand Junction, etc. Co., 53. Ware v. Regents Canal Co., 53. Wareham, Dill v., 119. Warehousing Co., Touche v., 79. Warner, Blanchard's Factory v., 81. Warner, Whitewell v., 77, 91. Warren, Bank of Virgennes v., 160. Warren v. Henley, 181. Warren v. King, 119. Warren v. Mobile, etc. R. Co., 146. Warren, Trott v., 194. Warren Bridge, Charles River Bridge Co. v., 8, 9, 28. Warren County, Richards v., 190. Washington, Smith v., 201, 203. Washington, Weightman v., 220. Washington Avenue, In re, 225. Washington, etc. R Co., Gruber v., 162, 163. Wasmer v. Delaware, etc. R. Co., 137. Waterbury Button Co., Nauga- tuck R Co. v., 53. Water Co., Brenham v., 170, 188. Water Co., Goundie v., 81. Water Co., Memphis v., 216. Water Power Co., Dupee v., 83, 120. Waterproof Co., Perry v., 77. Waters v. Leech, 171. Waters, Thompson v., 9, 81. Watertown, etc. Co., Madison, etc. Co. v., 9. Watertown, etc. Co., Plank Road Co. v., 96, 136. Water Works, New Orleans v., 180. Watson v. Bennett, 161. Watson, Mobile v., 233. Watts' Appeal, 84, 100. Wayland School District, Stock- dale v., 231. Weare v. Fitchburg, 205. Weare, Petroleum Co. v., 166. Webb v. Heme Bay. 134. Webb, Martin v., 160.. Webber, St. Louis v., 9. Weber, People v., 170. Webster, Buffalo Ius. Co. v., 52. Webster, Burnham v., 160. Webster v. Harrington, 198. Webster v. Howe Machine Co., 104. Webster, Sargent v., 83, 91. Webster v. Turner, 83. Webster v. Upton, 106, 112. Weckler v. First National Bank, 9,50. Weed, Combination Trust Co. v., 105. Weed v. Saratoga, etc. R. Co., 129. Weeden v. Mad River, etc. Co., 77. Weet v. Brockport, 219. Wehrung, East St. Louis v., 173. Weible, Louisville v., 216. Weider, Livingston Co. v., 235. Weightman v. Washington, 220. Weirv. Bell, 158. Weis v. Madison, 211. Weismer v. Douglas, 181, 237. Weissgerber, Eyser v., 74. 75. Weith v. Wilmington, 170. Welch v. Sage, 135. Wells v. Atlanta, 177, 188, 217. Wells v. Burnham, 189. Wells, Gilham v., 176. Wells v. Supervisors, 237. West, Aurora v., 135. 237. West Chester By. Co., Everhardt v., 118. West Guillimbury v. Railroad Co., 198. West v. Mayor, 178. West v. Menard Co., 90. West Orange, Field v., 203. West Point, etc. Ass'n, Poole v., ' 110. West River, etc. Co. v. Dix, 183. West St. Louis Bank v. Shawnee Bank, 160. West Troy, Cowan v., 189, 194. Western Bank v. Tallman, 128. Western College v. Cleveland, 170, 202, 219. Western Cottage Co. v. Reddish, 100. Western News Co. v. Wilmarth, 162. Western Screw Co. v. Cousley, 79. lxx TABLE OF CASES CITED. References are to sections. Western Union Tel. Co., Bell v., 139. Western Union Tel. Co., Com- pagnie Francaise v., 121. Western Union Tel. Co. v. Mayer, 166. Western Union Tel. Co., Pacific P. Tel. Co. v., 53. Western Union Tel. Co., Pensa- cola, etc. Co. v., 166. Western Union Tel. Co. v. Smith, 146. Western Union Tel. Co., Will- iams v., 124. Westiughouse Mach. Co. v. Wil- kinson, 7, 9. Westlake, Pangborn v., 69. Westminster Board, Aukland v., 53. Westminster Co., Simpson v., 137. Weston v. Syracuse, 196. Wetherell v. Jones, 55. Wetmore v. Parker, 93. Weymouth Packet Co.. In re, 117. Wheeler v. Chicago, 191. Wheeler v. Cincinnati, 170, 219. Wheeler, Ohio, etc. E. Co. v., 145. Wheeler, Parish v., 129. Wheeler v. San Francisco, 129. Wheeler, State Bank v., 161, 163. Wheeler, etc. Mfg. Co. v. Boyce, 163. Wheelock v. Moulton, 00. Whipple, Curtis v., 224. Whipple v. Union Pac. E. Co., 146. White v. Bass, 69. White v. Franklin Bank, 69, 74, 75, 119. White v. Howard, 82. White v. Manufacturing Co., 79. White v. Skinner, 158. White, State v., 175. White v. Vermont, etc. R Co., 135. White v. Yazoo City, 202, 203. White Line Trans. Co., Lucas v., 4, 9, 38, 52, 70. White's Bank v. Toledo Ins. Co., 9, 47, 100. Whitewater Valley, etc. Co. v. Valette, 83. 91, 96, 100. Whitewell v. Warner, 91. Whitfield v. Railroad Co., 162. Whiting v. S. & F. R. Co., 224. Whiting v. Union Trust Co., 77. Whitman M. Co. v. Baker, 47, 81. Whitney v. Mayor, 178. Whitney, National Bank v., 53. Whitney v. Peay, 74. Whitney v. Wyman, 51, 56, 79, 168. Whitney Arms Co. v. Barlow, 55, 56, 58, 61, 63, 64, 66, 68. Whittenton Mills v. Upton, 9, 53, 148. Whittle v. Derby Fish Co., 15. Whittle, Planters' Bank v., 91. Whitwell v. Warner, 77. Whitworth, Tennessee v., 148. Whitworth, Trevor v., 45, 117, 120. Whyte v. Mayor, 212. Widrig v. Newport Co., 158. Wilcox, Oakland Bank v., 159. Wild v. Bank, 160. Wiggins v. New York, 177. Wiggins Ferry Co. v. Railroad Co., 129. Wiley v. Silliman, 223. Wilkes v. Georgia, etc. R. Co., 53. Wilkins v. Detroit, 189. Wilkinson v, Bauerle, 91. Wilkinson, Cohen v., 53. Wilkinson v. Peru, 235. Wilkinson, Westinghouse Mach. Co. v., 7, 9. Willamette Co. v. Bank, 9, 53. Willey v. Greenbush, 230. Williams, Ex parte, 135. Williams v. Augusta, 212. Williams v. Bank, 7 *. Williams v. Creswell, 166. Williams v. Davidson, 170, 172. ' Williams v. Hedley, 69. Williams, Helfrich v., 164. Williams v. Insurance Co., 162. Williams, Kernaghan v., 53. Williams v. New Jersey, 180. Williams v. Parker, 116. Williams, Rowell v., 220. Williams v. School District, 225. Williams, State v., 172. Williams v. Western Union Co., 124. Williams College v. Cleveland, 220. Williamson, Ex parte, 98. Williamsport v. Comm., 188. TABLE OF CASES CITED. lxxi References are to sections. Williston v. Michigan R. Co., 124. Wilmington, Weith v., 170. Wilson, Adams Exp. Co. v., 129. Wilson, Attorney-General v., 153. Wilson v. Charlotte, 177. Wilson, Danbury, etc. R. Co. v., 9. Wilson v. New Bedford, 211. Wilson v. School District, 194. Wilson, Shore v., 94. Winans, York, etc. R. Co. v., 9, 128, 137. Winchester v. Birkshire, etc. R. Co., 137. Windsor Mfg. Co., Beckwith v., 88 Winegar, Grand Chute v., 228. Winfleld, Mayor v., 176. Winnetka, Sherlock v.. 185. Winston, Tenn. etc. R Co. v., 235 Winter, Bates Co. v., 190. Winter v. City Council, 239. Winters v. Armstrong, 109, 111. Winthelm v. Cedar Co., 194. Winthrop Ins. Co., Meeker v., 139. Wiegand, Citizens' Bank v., 159. Wisconsin Cent. R. Co., Bound v., 197. Wiswall v. Greenville, etc. Co., 9. Wittee v. Derby Fishing Co.. 15. Wolcott, Ouachita Co. v., 230. Wood v. Dummer, 107. Wood County, Reeves v., 86. Wood Hydraulic Co. v. King, 166. Wood, Louisiana v., 191, 233. Woodbridge v. Proprietors, etc., 77. Woodcock v. Calais, 213. Woodruff v. Erie R Co., 9. Woodward, Dartmouth College v., 9, 21, 28, 50. Woolsey, Dodge v., 53. Worcester, Commissioners v., 176, 212. Worcester, Tainter v., 219. Workingmen's Banking Co. v. Routerberg, 99. Worthington, North Side Ry. Co. v., 7. Wright v. Augusta, 219. Wright v. Bishop, 235. Wright v. Carter, 8. Wright v. Nagle, 199. Wright v. Railroad Co., 172. Wulfekehlen, German Savings Bank v., 120. Wyandotte v. Zeitz, 188. Wycoff, Safford v., 100. Wylde v. North River, etc. Co., 129. Wyman, Whitney v., 51, 56, 79, 168. X. Xenia, Bloom v., 170. Yancey v. Hopkins, 190. Yarrow, University v., 94. Yates, Berry v., 121. Yates v. Milwaukee, 212. Yazoo City, White v., 203, 203. Yonkers, Taylor v., 205. York, etc R Co. v. Hudson. 153. York, etc. R Co. v. Winans, 128, 137. Young v. Clarendon Township, 223, 230, 237. Young, Davidson v., 192. Young v. Gaslight Co., 53. Young, National -Bank of Repub- lic v., 104. Yount, American Christian Union v., 81, 166. Zabriskie v. Cleveland, etc. R. Co., 9. 53, 76, 135. Zabriskie, Crompton v., 198. Zeitz, Wyandotte v., 188. Zellerbach, Miners' Ditch Co. v., 9, 33, 83, 87. Zimmer v. State, 144. Zottman v. San Francisco, 201. Zulueta's Case, 120. THE DOCTRINE OF ULTEA YIEES IN THE LAW OF COKPORATIONS. CHAPTER L CREATION AND CONSTRUCTION OF CORPORATE CHAR- TERS. Pabt I. OEEATION OF CHABTEBS. § 1. Introductory. 2. A corporation a legal entity. 3. Creation of chartered corporations. 4. What acceptance of charter implies. 5. Distinction between natural and artificial persons. 6. Distinction between corporation and partnership. 7. Distinction between corporations under general and special act. § 1. Introductory. — As the doctrine of ultra vires can be legitimately applied only to the acts of a corporation as such, acting by and through its authorized agents or representatives, it might be well to here state, upon the threshold of the subject, the position taken in these pages regarding the general character and attributes of this much anathematized creature of the law, which has oc- casioned so much legal investigation and has called forth at times such vigorous judicial condemnation. 1 2 CREATION AND CONSTRUCTION. [§;$ 2, 3. §2. A corporation a legal entity. — It will be assumed,, in the examination of the doctrine to be hereafter dis- cussed, that a corporation, both under. the common law and as now organized and created under our state laws,, is a legal entity, separate and distinct from the members- who compose it; that in the corporation — the creature of the law — is vested all the property and powers of the company ; that it can only be affected by such acts and agreements as are done or executed on its behalf by its- corporate agencies, acting within the legitimate scope of its chartered powers; and that no acts or contracts by the officers or agents of the company beyond the scope of its powers, as prescribed and designated in its charter or ar- ticles of association, can be ascribed to the corporation — the legal entity — though done and concurred .in by each and all of the stockholders. It would seem from a care- ful examination of the authorities and adjudications that the foregoing propositions as to the nature of a corpora- tion would go unchallenged ; but; unfortunately, there is now in this country a newer growth of corporation law- yers and authors, fostered and fashioned in the same school, who would confuse the subject by regarding the rights, duties and powers of a corporation as identical with the rights, duties and powers of the individuals com- posing it. To recognize such an anomalous position would clearly nullify, in a great measure, the whole doctrine of ultra vires. § 3. Creation of chartered corporations. — Corporations can now be created and exist only by virtue of legislative enactment. 1 And to create a corporation by legisla- tive act no express words are requisite; any words de- i Stowe v. Flagg, 72 111. 397; Hadley v. Commissioners, 105 Mass. 526; Franklin Bridge Co. v. Wood, 14 Ga. 80. § 3.] CREATION OF CHAETEES. 3 scriptive of the legislative purpose are sufficient. 1 The manner in which/ private corporations may be organized is now usually prescribed by most of the states of the Union by general laws, the constitutions, with perhaps few exceptions, prohibiting special acts of incorporation. But the authority to organize corporations under general laws rather than by special act of the legislature is not intended to Avork any material change in their nature or character. The legislatures of the respective states have prescribed methods for the creation of corporations which were unknown to the common law, endowing them with special powers of management and limitations as to lia- bility, and providing at the same time that all the world should have notice who were the persons authorized to manage and control the corporation and bind all the stockholders thereof by requiring the charter to be re- corded, certified by the directors and made accessible to all. Under general incorporation law, when the instru- ment specifying the objects, conditions and name of the association, and whatever else the law may require, has been approved by the proper officers and enrolled accord- ing to law, the persons so associating become a corpora- tion according to the objects and conditions and vested with the powers and privileges contained and specified in the instrument. These become their charter, and have the same force and effect in law as if they were specific- ally granted by special act. 2 Powers and privileges speci- fied in such instrument, however, which contravene or are beyond the provisions of the statute are null and iRex v. Araery, 1 Term Rep. 575; Conservators v. Ash, 10 B. & 0. 349; Grangers' Ins. Co. v. Kamper, 73 Ala. 325; Mahoney v. State Bank, 4 Ark. 620; Denton v. Jackson, 2 John. Ch. 325; Walsh v. Trust- ees, etc., 96 N. Y. 427. 2 Society, etc. v. Commonwealth, 52 Pa. St. 125. 4 CKEATI0N AND CONSTRUCTION. [§ 3. void, 1 and all acts done in pursuance of such provisions will be void. 2 But whatever be the mode prescribed by the act under which incorporation is had, substantial compliance with all its provisions is required before the corporation can be said to be in esse? A corporation created according to the rules of the common law must be governed by it in its mode of organization, in the man- ner of exercising its powers and in the use of the capacities conferred; when created in disregard of those rules, how- ever, the existence, powers, capacities, and the mode of exercising them, must depend upon the law of its creation. 4 The charter and not the organization under it creates the subscribers a corporation, at least so far as to render con- tracts for or against the corporation valid. 5 A corpora- tion, being an artificial creation, is the very thing it is made by the statute which brought it into being, and nothing more. 6 In Ghrangeri Life db Health Insurance Company v. Kamjper, supra, the court, in discussing the manner of organizing corporations under statutory enact- ments, said : " The mode of incorporation the statutes have iHeck v. McEwin, 76 Tenn. 97; Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546; Grangers', etc. Ins. Co. v. Kamper, 73 Ala. 325; Medical College Case, 3 Whart. (Pa.) 445. 2 Eastern Plank Road Co. v. Vaughan, supra, 3 Harris v. McGregor, 29 Cal. 124; People v. Selfridge, 52 Cal. 331; Mclntire v. McLain Ditching Co., 40 Ind. 104; Indianapolis, etc. Mini Co. v. Herkimer, 46 id. 142; Reed v. Richmond St. Ry. Co., 50 id. 342; Richmond Factory Co. v. Alexander, 61 Me. 351; Grangers' Life, etc. Asso. v. Kamper, 73 Ala. 325; Oregon Ry. v. Oregonian Ry., 130 U. S. 1; Utley v. Union Tool Co., 11 Gray (Mass.), 139; Doyle v. Miz- ner, 42 Mich. 332; Abbott v. Omaha Smelt. Co., 4 Neb. 416; Unity Ins. Co. v. Cram, 43 N. H. 636; Childs. v. Smith, 55 Barb. (N. Y.) 45,53. 4 Penobscot Boom Co. v. Lamson, 16 Me. 224. s Vermont Ry. Co. v. Clayes, 21 Vt. 30. 6 Oregon Ry. Co. v. Oregonian Ry., Co., supra. § 3.] CEEATI0N OF CHAETEES. 5 carefully prescribed. The persons proposing to be incor- porated must file and cause to be recorded in a designated public office a declaration in writing stating the name of the corporation, the objects for -which it was formed, the amount of capital stock, the number of shares into which it is divided, the names of the stockholders, and the num- ber of shares each may hold. The office and effect of the declaration the statutes do not leave in doubt; when re- corded, the persons signing it and their successors become a body corporate by the name stated therein and with the powers conferred by law. It is an acceptance by the corporators, under the name designated, for the objects expressed, of the corporate powers and capacity the law confers, and a statement of the principal constituents of the corporation — the amount of the capital stock, the names of the stockholders and the quantity of interest each has in the capital stock. There is no authority of law for introducing more into it, and if more be intro- duced it is mere surplusage, not adding to or detracting from the force of the declaration. A controlling purpose, it may be supposed, in authorizing or compelling the creation of private corporations under general law, is to secure uniformity and equality of corporate powers, func- tions and privileges; that all corporations of the same class, formed for like purposes, should possess the same capacities and properties, and exercise and enjoy the same franchises and privileges. Unless it was intended to work a radical change in the nature and character of these arti- ficial beings, the mere creatures of the law, and to sub- vert the whole theory which has prevailed in reference to them, it cannot have been contemplated that they should for themselves create powers and privileges by declaration or reservation, whether the declaration or reservation is expressed in the articles of incorporation, or in the constitution or by-laws ordained by the corpora- 6 0KEATI0N AND CONSTRUCTION. [§ 3. tors for their government. Such declarations or reserva- tions would soon become more liberal and diverse than was the liberality and diversity of the grants of corporate powers by special legislative enactment — the evil it was intended to remove. Of every corporation formed under the general law, the law itself becomes the charter, de- fines and enumerates the powers which are to be exer- cised, the nature and extent of corporate franchises and privileges. The declaration of incorporation, the consti- tution and by-laws adopted by corporate government, do not form the charter or define or enumerate the corporate powers. These are the acts of the corporators. The charter is the grant from the sovereign power of the state, and by that source only can be varied or enlarged. The expression in a declaration of incorporation that it is the intention and privilege to increase the capital stock or the number of shares, or to invest the corporators with any other powers not enumerated in the statute, whenever deemed proper and expedient, is vain and nu- gatory ; it does not authorize an increase of capital at the mere will of the company in such mode as it elects. The power must be found in the law from which corporate existence is derived, or must be conferred by a subsequent law, the provisions of which must be observed in the ex- ercise of the power. The implied or incidental powers corporations may rightfully exercise never have been ex- tended to changes in the constitution or membership of the corporate body, or changes of the purposes for which the corporation was created. They have been confined to such powers as would enable the corporation to exer- cise properly its express powers." 1 i In Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 1, Mr. Justice Miller, in speaking of the organization of modern corporations, said: " A corporation in this country, whatever it may have been in § 4.] CEEATION OF CHAETEES. 7 § 4. What acceptance of charter implies. — A corpora- tion, as we have seen, 1 exists and exercises its franchises only by virtue of a grant from the legislative power. " The granting and acceptance of a charter in the case of England at the time when the crown exercised the right of creat- ing such bodies, can only have an existence under the express law of the state or sovereignty by which it is created. And these pow- ers, where they do not relate to municipal corporations exercising authority conferred solely for the benefit of the public, and in some sense parts of the body politic of the state, have in this country, until within recent years, always been conferred by special acts of the legislative body under which they claim to exist. But the rapid growth of corporations which have come to take a part in all or nearly all of the business operations of the country, and espe- cially in enterprises requiring large aggregations of capital and in- dividual energy, as well as their success in meeting the needs of a vast number of most important commercial relations, have de- manded the serious attention and consideration of law makers. And while valuable services have been rendered to the public by this class of organizations, which have stimulated their formation by numerous special acts, it came at last to be perceived that they were attended by many evils in their operation as well as much good, and that the hasty manner in which they were created by the legislatures, sometimes with exclusive privileges, often without due consideration and under 1 the influence of improper motives, frequently led to bad results." " Whether it was this consideration, or merely the desire to fix some more universal rule by which the rights and powers of pri- vate corporations, or those for pecuniary profit, should come into existence, it is certain that-not many years ago state constitutions which were formed or remodeled came to have in them provisions for the formation of corporations under general laws, and prohibit- ing such creations by special enactment." " Outside of the powers conferred and the privileges granted to those organizations by the statutes under which they exist, they are, in all the states' of the Union which have the common law as the foundation of their jurisprudence, governed by that common law; and it is the established rule of the federal court, and, with i 3. 8 CEBATION AND CONSTKTTCTION. [§ 5. private corporations for pecuniary profit are based on the theory that the prosecution of the business proposed will be a benefit to the public, and that the investment of capital therein will result in pecuniary profit to the stock- holders ; and it is an undertaking on the part of the cor- poration and all of its stockholders that, in consideration of the grant of power, the capital shall be used for the prosecution of the purpose named in the charter, and no other. There is also an undertaking on the part of the corporation with each stockholder that the capital he in- vests shall be put to no other use, and subject to no other hazard, than that contemplated by the powers expressed in the charter, and that those things which are within the scope or objects of the corporation shall be done in the manner pointed out in the charter and the laws governing its action." § 5. Distinction "between a natural and artificial per- son. — The distinction between a natural person and one of statutory creation — an artificial person — maybe said some exceptions, in the states in which that common law prevails, as well as of Great Britain, from which it is derived, that such a cor- poration can exercise no power or authority which is not granted to it by the charter under which it exists or by some other act of the legislature which granted that charter. "Any authority for the exercise of corporate powers, derived from the general laws of a state, must be in accordance with the constitution of that state and its statutes upon that subject A constitutional provision that corporations shall not be created by special laws, but may be formed under general laws, implies that no private corporation can be created thereafter until such general law has been enacted, and that it thereupon became the funda- mental law of the state in regard to all corporations formed under it. It is idle to say, therefore, as has been contended, that any cor- poration couid assume to itself powers of action by the mere decla- ration in its articles or memorandum that it possessed them." 1 Lucas v. White Line Trans. Co., 70 Iowa, 541. § 6.] CREATION OF CHABTEKS. 9 to be this : A natural person is not confined in the exer- cise of his capacities to any particular acts or business, but may do any act or enter into any contract not pro- hibited by law. An artificial person may do no acts nor enter into any contracts except such as are authorized by law; the one's powers being inherent whilst the powers of the other are conferred. In the transaction of business enterprises a natural person's powers are unlimited in re- gard to the mode of their exercise, and he may also em- bark in any occupation deemed advisable or advantageous ; whilst an artifical person is necessarily restricted to the business and the mode of its exercise prescribed in the charter or laws of its creation. Much of the conflict en- countered in the opinions of judges and text-writers may be directly traced to a disregard of this irreconcilable dis- tinction, which no amount of specious argument can suc- cessfully overcome. That this distinction is technical and based, in a measure, on the fictitious character of the arti- ficial person created by the legislature, in no wise changes the rule of construction regarding the respective powers of each. The natural person is born with inherent pow- ers — the artificial person has its powers to achieve; and, having so achieved them through the aid of the law, it is entitled to protection by the law and held to the obeyance of the law. § 6. Distinction between corporations and partnerships. The principles of the law upon which the liability of cor- porations and joint-stock companies is founded are very clear and well settled, though not always in practice steadily kept in view. The law in ordinary partnerships, so far as relates to the power of one partner to bind the others, is a branch of the law of principal and agent. It is elementary that each member of a complete partner- 10 CREATION AND CONSTRUCTION. [§ 7. ship is liable for himself, and, as agent for the rest, binds them upon all contracts made in the course of the ordi- nary scope of the partnership business. Any restrictions upon the authority of each partner imposed by mutual agreement among themselves could not affect third per- sons, unless such persons had notice of them; then they could take nothing by contract which those restrictions forbade. A corporation by common law could only bind itself by contract under the common seal. It is obvious that the law governing ordinary partnerships would be inapplicable to a company consisting of a great num- ber of individuals who contribute to the common stock. To allow each one to bind the other by any contract which he thought fit to enter into, even within the scope of the corporate business, would soon lead to the utter ruin of the contributors. § 7. As to distinction between corporations organized under general laws and special acts. — In ascertaining the scope of the powers of corporations, the only difference between one organized under general law and one created by special statute is that in the former the court will look to the certificate of the promoters or incorporators, while in the latter but to the special statute. The rule, how- ever, in construing the instrument is necessarily the same. 1 In both kinds of private corporations their pow- ers are such as are specifically enumerated and such others as are incidental or necessary to carry the express powers into effect. They may not exercise any other powers than these. 3 iRookhold v. Canton Masonic, etc. Soc, 129 111. 440; Nutt v. Dan- ville Seminary, 129 111. 403. 2 Westinghouse Machine Co. v. Wilkinson, 79 Ala. 312; North Side Railway Co. v. Worthington, 30 S. W. Rep. 1058 (Tex., 1895); and see § 7.] CREATION OF CHARTERS. 11 cases cited in § 9, post. In North Side Ry. Co. v. Worthington, supra, the court, in discussing the difference between corporations created under general and special acts, said: "It occurs to us that in deter- mining the powers of a corporation a distinction should be observed between such as are created by special charters and such as come into existence by virtue of authority conferred by a general law. A charter is in the nature of a contract, and it may be that in con- struing a special charter we should construe it in the light of the spe- cial circumstances attending the enterprise which was intended to be promoted ; as, in case of a railroad, its connection with other lines of transportation whether by water or land, or its terminus at a seaport. The last-mentioned circumstance seems to have had •a controlling influence upon the court in the case of Railway Co. v. Redmond, 10 C. B. (N. S.) 675, already cited. For pxample, if the legislature had the power to grant and had granted a special char- ter to the City Company, and it had appeared that a street railway was necessary to the success of the corporation, and that this fact was known, it may be the power to construct or at least to aid the ■construction of the street railway would have been implied. But this corporation having been created under a general law, we do riot see that it can claim the right, by reason of its peculiar surroundings, to exercise a power which another like corporation could not exer- cise by reason of different circumstances. Our constitution pro- vides that corporations shall be created only by general laws, and it would seem that one purpose of the provision was to prevent the legislature from granting to one company special powers or special privileges. At all events the general law, as we think, should be construed as a general rule, conferring upon each member of each particular class of corporations precisely the same powers." 12 CREATION AND CONSTEUCTION. [§ 8. Paet IT. CONSTEUCTION OF CHARTERS. § 8. General rule of construction. 9. Corporations have only powers given by charter. 10. Rule peculiarly applicable to corporations organized under general laws. 11. Ultra vires questions decided by law of organization. 12. Province of court in construing corporate powers. 13. Powers construed as incidental to those expressly given. 14. Discretion of corporations. 15. Miscellaneous — Incidental powers. § 8. General rule of construction. — In all cases of leg- islative grants to private corporations the well-established rule of construction is this : That grants to private cor- porations shall be construed strictly against the grantees ; and to prevail they must be express and clear beyond a doubt ; a doubt defeats the power. "What is not granted in clear and unequivocal language is withheld. 1 The ob- ject is to protect the public against improvident grants and grants made by implication without clear intention. They will not be sustained by doubtful words ; ambiguity vitiates them. Eut this rule is qualified by another: That such grant, and the statute making it, must receive 1 2 Dwarris on Stat. 750; 2 Redf. Rys. 445, 446; C. & A. Ry. Co. v. Briggs, 2 Zabr. (N. J.) 623, 641, 647; Townsend v. Brown, 4 Zabr. (N. J.) 80, 87; Leggett v. New Jersey Mfg. Co.,1 N. J. Eq. 541; Bridge Co. v. Land & Imp. Co., 13 N. J. Eq. 81, 94; Joint Co. v. R & Del. Bay Ry. Co., 1 C. E. Green (N. J.), 321; Morris Canal Co. v. Central Ry. Co., 16 N. J. Eq. 419; Morris & Essex Ry. Co. v. Sussex Ry. Co. r 20 N. J» Eq. 542; Packer v. Sunbury, etc. L. Co., 19 Pa. St. 211; Bank of Penn. [v. Comm., 19 Pa. St. 144; Penn. Ry. Co. v. Canal Comm'rs, 21 Pa. St. 9; Comm. v. Franklin Canal Co., 21 Pa. St. 125; Comm. v. Erie Ry. Co., 27 Pa. St. 339; Beaty v. Knowler, 4 Pet. 168. § 9.] CONSTRUCTION OF CHARTERS. 13 a reasonable construction, and not be so construed as to defeat the intention of the legislature, and that the am- biguity must be such as is not removed by the settled rules of construction. 1 § 9. Corporations have only powers given "by charter. — A corporation has, therefore, according to the foregoing rule of construction, no powers whatever except those given by its charter or law under which it is incorpo- rated, either directly or as incidental to its purposes and existence. 2 This rule is very clearly stated by Mr. Justice i Black v. United Cos., 7 C. E. Green (N. J.), 130; s. C, 9 C. E. Green (N. J.), 445; Providence Bank v. Billings, 4 Pet. (U. S.) 514; Charles River Bridge Co. v. "Warren Bridge, 11 Pet. (U. S.) 430; Bank of Augusta v. Earle, 13 Pet. (IT. S.) 519; Perrine v. Ches. & Del. Ry. Co., 9 How. (U. S.) 172; Richmond Ry. Co. v. Louisiana Ry. Co., 13 How. (U. S.) 71; Pennock v. Cpe, 23 How. (IT. S.) 117; Rice v. Railroad Co., 1 Black (IT. S.), 858; Delaware Tax Case, 18 Wall. ers ; the interest of the stockholders not to be subjected * to risks which they have never undertaken; and, above' all, the interest of the public that the corporation shall' not transcend the powers conferred upon it by law. A j corporation cannot, without the consent of the legislature, , transfer its franchises to another corporation, and abne- 1 gate the performance of the duties to the public imposed upon it by its charter as the consideration for the grant of its franchise. Neither the grant of a franchise to transport passengers, nor a general authority to sell and dispose of property, empowers the grantee, while it con- tinues to exist as a corporation, to sell or to lease its* entire property and franchises to another corporation. These principles apply equally to companies incorporated by special charter from the legislature and to those formed by articles of association under general laws. . . . " A contract of a corporation which is ultra vires in the proper sense, that is to say, outside the objects of its cre- ation as defined in the law of its organization, and there- fore beyond the powers conferred upon it by the legisla- ture, is not voidable only, but wholly void and of no legal effect. The objection to the contract is not merely that; • the corporation ought not to have made it, but that it could not make it. The contract cannot be ratified by either party because it could not have been authorized ^ by either. No performance on either side can give the unlawful contract any validity, or be the foundation of any right of action upon it. " When a corporation is acting within the general scope \ of its powers conferred upon it by the legislature, the corporation, as well as the persons contracting with it, 4 50 THE DOCTRINE GENERALLY. [§ 37. may be estopped to deny that it has complied with the legal formalities which were prerequisites to its existence or to its action, because such requisites might in fact have been complied with. But when the contract is beyond f the powers conferred upon it by existing laws, neither the corporation nor the other party to the contract can be estopped by assenting to it, or by acting upon it to show that it was prohibited by those laws. " A contract ultra vvres being unlawful and void, not because it is in itself immoral, but because the corporation, r by the law of its creation, is incapdbU of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice be- tween the parties, so far as could be done consistently with adherence to law, by permitting property or money, parted with on good faith of the unlawful contract, to be recovered back or compensation to be made for it. "In such case, however, the action is not maintained , upon the unlawful contract, nor according to its terms; but on an implied contract of the defendant to return, or failing to do that, to make compensation for, property or money which it has no right to retain. To maintain such action is not to affirm, but to disaffirm, the unlawful con- tract. " The ground and the limits of the rule concerning the remedy, in the case of a contract ultra vires, which has been partly performed, and under which property has passed, can hardly be summed up better than they were by Mr. Justice Miller in a passage already quoted, where he said that the rule ' stands upon the broad ground that the contract itself is void, and that nothing which has been done under it, nor the action of the court, can in- fuse any vitality into it ; ' and that ' where the parties have so far acted under such a contract that they cannot § 38.] THE DOOTKINE GENERALLY. 51 be restored to their original condition, the court inquires j if relief can be given independently of the contract, or whether it will refuse to interfere as the matter stands.' 118 U. S. 317." § 38. Lucas v. The White Line Transportation Co., 70 Iowa, 6^1. — This was an action to recover contribution as co-surety on a bond. The defendant was a corporation organized for the purpose of engaging in the " general freight and transfer business." By its secretary it joined the plaintiff in executing a bond of suretyship for L. and M. to the B. Co. Afterwards L. and M. failed, but they executed their note to plaintiff and defendant for the amount of the bond, in consideration of the payers as- suming that amount of their indebtedness to the B. Co. ( Thereupon the defendant, by its president, joined plaint- iff in a letter to the B. Co., assuming liability for the in- debtedness of L. and M. to that amount. It also, by its officers and attorneys, joined plaintiff in an action on said note against L. and ]M. which was aided by attach- ment. Defendant refused to pay to the B. Co. any por- . tion of the indebtedness thus assumed, and plaintiff paid the whole of it, and sought to recover contribution from the defendant company as a co-surety. It was held that defendant's original contract of suretyship was ultra vires, ' as was also its assumption of indebtedness by the letter signed by its president, and that the other acts of defend- ant's officers did not estop it from insisting on that fact as a defense, and that no recovery could be had. Both- rock, J., in delivering the opinion of the court, among other things, says : i " The corporation defendant is acting under the gen- eral incorporation laws of the state, and from the provis- ions of its articles and the statute it derives its powers. 52 THE DOCTKINE GENERALLY. [§ 38. I A corporation exists and exercises its franchises only by virtue of a grant from the legislative power. The grant- ing and acceptance of a charter in the case of private corporations for pecuniary profit are based on the theory that the prosecution of the business will be a benefit to the public, and that the investment of capital therein will result in pecuniary profit to the stockholders, and that it is an undertaking on the part of the corporation and all of its stockholders that, in consideration of the grant of power, the capital shall be used for the prosecution of the purpose named in the charter, and no other. There is also an under- ir taking on the part of the corporation with each stockholder that the capital he invests shall be put to no other use and subject to no other hazard than that contemplated by the powers expressed in the charter, and that those things which are within the scope or object of the corpo- ration shall be done in the manner pointed out in the charter and the laws governing its action. But corpora- tions and their officers do not always keep within their powers, and the application of the doctrine of ultra vires is often attended with very perplexing questions. By ' the application of a few plain rules, however, we may readily reach the proper answer to the question involved fin this case. (1) Every person dealing with a corpora- tion is charged with knowledge of its powers as set. out in its recorded articles of incorporation. (2) Where a I corporation exercises powers not given by its charter it violates the law of its organization, and may be proceeded against by the state, through its attorney-general, as pro- vided by the statute, and the unanimous consent of all the stockholders cannot make illegal acts valid. The I state has the right to interfere in such case. (3) Where a third party makes with the officers of a corporation an illegal contract beyond the powers of the corporation as § 38.] THE DOCTRINE GENERALLY. 53 shown by its charter, such third party cannot recover, because he acts with knowledge that the officers have ex- ceeded their power, and between him and the corpora- tion or its stockholders no amount of ratification by those unauthorized to make the contract will make it valid. * (4) When the officers of a corporation make a contract with third parties in regard to matters apparently within their corporate powers, but which upon the proof of ex- trinsic facts (of which such parties had no notice) lie beyond their powers, the corporation must be held, unless it may avoid liability by taking timely steps to prevent loss or damage to such third parties ; for in such cases the third party is innocent, and the corporation or stockhold- ers less innocent for having selected officers not worthy of the trust reposed in them. ... (6) When the cor- poration has permitted its officers to engage in ultra vires transactions, and in the prosecution of such transactions the officers commit a wrong or tortious act without the fault of the injured party, the corporation is estopped from taking advantage of the ultra vires character of the original undertaking. These rules do not cover all cases, but are sufficient to guide us in the determination of the question in this case. " The case of Bissell v. Michigan Southern <& JV. I. E. Co., 22 K T. 258, is relied upon by appellees as authority for holding corporations on ultra vires contracts. It is true that the opinion of Oomstock, J., in that case, ap- pears not to he in accord with the well-established doctrine of ultra vires as applied to corporations; but he says. (page 272), ' I do not deny the validity of this excuse in many cases — I may say in all cases where it can be re- ceived without doing great injustice to others. If the per- son dealing with a corporation knows of the wrong done Or contemplated, and he cannot show the acquiescence 54 THE DOOTKINE GENERALLY. [§ 38. of the shareholder, he ought not to complain if he cannot enforce the contract. Aside from the law of corpora- tions, agreements which involve or propose a violation of trust will not be enforced by the courts where no greater equities demand it.' In that case the defendant had con- structed a railroad not authorized by their charter, and for some years had been operating the same, and made a contract to carry plaintiff over the road. He was injured in a collision occasioned by the negligence of defendant's employees. The plaintiff's cause of action did not arise out of the ultra vires contract to carry him, but out of the wrong done on the way, and to which wrong he was not a contributing party. This view is consistent with the sixth proposition above, and is the one in which Selden, J., sustained the right of recovery in a very able opinion in the same case, and certaMy m line with well- established authorities, and in support of the doctrine of ultra vires. ISTone of the other judges sustained the views of Comstock, J. ; but all, except Denio, J., sustained the right of recovery. A different question would have been presented in that case if the plaintiff had sued to recover for failure of defendant to transport him according to agreement. " In the case now before us the plaintiff seeks to re- cover contribution from the corporation as co-surety on the bond to the brewing company, and claims (1) that the contract of suretyship was within the defendant's corporate powers; and (2) that, if it were not within de- fendant's corporate powers, it had so acted on the con- tract as to now estop it from pleading ultra vires. It is claimed that the language of the articles of incorporation, defining the business to be 'the general freight and transfer business, and such other business as may not be inconsistent therewith,' is of such a general character as § 39.] THE DOCTRINE GENEEALLT. 55 to cover almost any kind of business. This position, it seems to us, is not tenable, for the language itself implies that there may be business inconsistent with the general freight and transfer business. The name of the corpora- tion indicated its principal business, and the language is equivalent to saying it may do such other business as is consistent with the freight and transfer business. ' Con- sistent ' means standing together, or in agreement with. If the capital of the company is diverted into some other line of business entirely foreign to the freight and trans- fer business, it would be to the detriment of, and there- fore not consistent with, the latter. But, whatever mean- K ing may be attached to the language of the articles, it is quite certain it cannot include the contract of suretyship in question. The simple act of going security for another > is out of the line of the prosecution of any business. It is a mere accommodation, and it cannot be assumed that the articles gave the officers of defendant any power to jeopardize its capital in any such venture. . . . j " It seems to us clear that the corporation defendant /had no power to make the contract of suretyship in ques- tion; and, for the same reason, it is just as clear that the officers of the corporation had no power to sign the let- ter of May 27, purporting to assume the payment of the amount stipulated in the bond. Both instruments, so far as the defendant was concerned, were illegal and void, and no attempted ratification by parties having no power to make the original contract could make it valid, no matter how often such attempts were made." § 39. The doctrine as construed oy English cowrts — dolman v. Eastern Counties By. Co., 10 Beav. 1 {1846). The first reported case touching the application of the doctrine of ultra vvres in England was the case of Col- 56 THE DOCTRINE GENERALLY. [§ 39. •man v. Eastern Counties My. Co., supra, where the ques- tion arose on a motion to dissolve a special injunction. The directors of a railway company, for the purpose of increasing the traffic, proposed to guaranty certain profits and to secure the capital of an intended steam packet company, who were to act in connection with the rail- way. It was held that such a transaction was not within their powers, and they were restrained and the injunc- tion made perpetual. The Master of the Eolls, in his opin- ion, said: " Joint-stock companies have funds so extensively large and exercise powers so extensive and so materially affect- ing the rights and interests of other persons and rights which the public or the subjects which her majesty have been accustomed to enjoy under the protection of the laws established in this kingdom, that to look upon a railway company in the light of a common partnership,, and as subject to no greater vigilance than common part- nerships are, would, I think, be greatly to mistake the functions which they perform, and the powers which they exercise of interference not only with the public, but the private rights of all individuals in this realm. "We are to look upon these powers as given them in con- sideration for the benefit which, notwithstanding all other sacrifices, it is to be presumed and hoped, on the whole, will be obtained by the public. But it being to the in- terest of the public to protect the private rights of all individuals, and to defend them from all liabilities be- yond those necessarily occasioned by the powers given by the several acts, those powers must always be care- fully looked to; and I am clearly of opinion that the powers which are given by acts of parliament, like that now in question, extend no further than is expressly stated in the act, or is necessarily or properly required § 40.] THE DOOTKINE GENERALLY. 57 for carrying into effect the undertaking and works which the act has expressly sanctioned. ... It has been stated that these things, to a small extent, have frequently been done since the establishment of railways ; but, un- less the acts so done can be proved to be in conformity with the powers given by the special acts of parliament under which these acts are done, they furnish no au- thority. To suppose that the acquiescence of railway shareholders for the last fifteen years, in any transaction conducted by a railway company, is any evidence what- ever of their having a lawful right to enter into it, is, I think, wholly to forget the sort of frenzy which, during that period, the country has been in. ... I must, in the absence of any legal decision, say that I consider that the acquiescence of the shareholders in such transactions affords no ground whatever for the presumption of their legality." § 40. East Anglian By. Co. v. Eastern Counties By. Co., 11 G. B. 775 {1852). — The question arose in this case on an action of covenant wherein the defendant, by an indenture under their common seal between themselves and the plaintiff, agreed to take a lease of their railways upon certain terms mentioned in the indenture, and to find the capital necessary for the construction of the ex- tensions, branches and works authorized to be constructed by the bills then pending in parliament, and to pay the costs of preparing and promoting such bills, whether the same should pass into a law or not. The declaration fur- ther stated that the bills were proceeded with, and two. were passed, and that the cost of the bills, amounting to a large sum, had not been paid by the defendants to the plaintiffs. It was held that it was not competent for the directors to enter into a contract with another railway 58 THE DOCTRINE GENERALLY. [§ 41. company to take a lease of their line, and to pay the 'costs incurred by them in the soliciting and promoting of bills in parliament for the enterprise and improvement | of such other line of railway, even though such extension and improvement would benefit their own company ; and that such a contract, if entered into, was illegal and void, ' -and could not be enforced in a court of law. Chief Jus- tice Jervis, in delivering judgment, said : . " This act (6 and 7 "W. 4, ch. cvi) is a public act, acces- sible to all, and supposed to be known to all, and the plaintiffs must therefore be presumed to have dealt with the defendants with a full knowledge of their respective rights, whatever those rights may be. . . . Every proprietor when he takes shares has a right to expect that the conditions upon which the act was obtained will be performed, and it is no sufficient answer to a share- holder, expecting his dividend, that the money has been expended upon an undertaking which, at some remote period, may prove highly beneficial to the line. . . . If the contract is illegal, as being contrary to the act of parliament, it is unnecessary to consider the effect of dis- sentiate shareholders; for if the company is a corporation only for a limited purpose, and a contract like that under discussion is not within their authority, the assent of all the shareholders to such a contract, though it may make |them all personally liable to perform such contract, would not bind them in their corporate capacity or render liable their corporate funds. . . It is not within the scope 1 authorized by the company as a corporation and is there- fore void." § 41. Aslibwy By. Co. v. Biche, 7 H. L. 653 (1875).— The case, however, most frequently quoted, and the one wherein the doctrine of ultra vires is most exhaustively § 41.] THE DOCTKINE GENERALLY. 59 considered and discussed and the question finally set at rest in England, came before the House of Lords on appeal from the Court of Exchequer in 1875. That was the cele- brated case of Ashbury By. Co. v. Riche. The facts in that case were about these : A company was registered under the Joint-stock Companies Act of 1862. Its ob- jects, as stated in the memorandum of association, were : " To make and sell, or lend on hire, railway carriages and wagons, and all kinds of railway plant, fittings, ma- chinery and rolling-stock; to carry on the business of mechanical engineers and general contractors; to pur- chase, work, lease and sell mines, minerals, land and build- ings; to purchase and sell, as merchants, timber, coal, metals or other materials, and to buy and sell any such materials on commission or as agents." The directors agreed to purchase a concession for making a railway in a foreign country, and afterwards (on account of difficul- ties existing by the law of that country) agreed to con- sign the concession to a societe anonyme formed in that country, which societe was to supply the materials for the construction of the railway, and to receive periodical pay- ments from the English company. It was held that this contract, being of a nature not included in the memo- / randum of association, was ultra vires not only of the ' directors but of the whole company, so that even the sub- sequent assent of the whole body of shareholders would have no power to ratify it. . As this is the principal case and the leading decision upon which is founded the doctrine of ultra vires in Eng- land, it is considered of sufficient importance to take up some space in freely quoting from the opinions there de- livered. The Lord Chancellor (Lord Cairns), in the course of his elaborate opinion, said : " The provisions under which that 60 THE DOCTEINE GENERALLY. [§ 41. system of limiting liability was inaugurated were pro- visions not merely, perhaps I might say not mainly, for t the benefit of the shareholders for the time being in the company, but were enactments intended also to provide for the interests of two other very important bodies ; in the first place, those who might become shareholders in succession to the persons who were shareholders for the A time; and secondly, the outside public, and more par- ticularly those who might be creditors of companies of this kind. And I will ask your lordships to observe, as I refer to some of the clauses, the marked and entire dif- ference between the two documents which form the title deeds of companies of this description. I mean the memorandum of association on the one hand and the articles of association on the other hand. "With regard to the memorandum of association, your lordships will find, as has often already been pointed out, although it appears somewhat to have been overlooked in the present case, that that is, as it were, the charter, and defines the limitations of the powers of a company to be established under the act. With regard to the articles of association,, those articles play a part subsidiary to the memorandum of association. They accept the memorandum of associa- tion as the charter of incorporation of the company, and, so accepting it, the articles proceed to define the duties, the rights and the powers of the governing body as he- tween themselves and the company at large, and the mode and form in which changes in the internal regula- tion of the company may from time to time be made. ifWith regard, therefore, to the memorandum of associa- tion, if you find anything which goes beyond their memo- randum, or is not warranted by it, the question will arise whether that which is so done is ultra vires not only of the directors of the company, but of the company itself. § 41. J THE DOCTRINE GENERALLY. 61 With regard to the articles of association, if you find any- thing which, still keeping within the memorandum of association, is a violation of the articles of association, or in excess of them, the question will arise whether that is anything more than an act extra vires the directors, but intra vires the company. In a case such as that which your lordships have now to deal with, it is not a question whether the contract sued upon involves that which is malum prohibitum or malum in se, or is a contract con- trary to public policy and illegal in itself. I assume the contract in itself to be perfectly legal, to have nothing in it obnoxious to the doctrine involved in the expressions which I have used. The question is not as to the legality ' of the contract; the question is as to the competency and power of the company to make the contract. Now I am clearly of opinion that this contract was entirely, as , I have said, beyond the objects in the memorandum of association. If so, it was thereby placed beyond thei powers of the company to make the contract. If so, my lords, it is not a question whether the contract ever was ratified or was not ratified. If it was a contract void at the beginning, it was void because the company could not make the contract. If every shareholder of the com- pany had been in the room, and every shareholder of the' company had said : ' That is a contract which we desire to make, which we authorize the directors to make, to which we sanction the placing the seal of the company,' the case would not have stood in any different position from that in which it stands now. The shareholders would thereby, by unanimous consent, have been attempt- ing to do the very thing which, by the act of parliament, they were prohibited from doing." ' And Lord Chelmsford, in the same case, in delivering his opinion, used the following language: "Now, the incor- 62 THE DOCTRINE GENERALLY. [§ 41. uporation of a company with limited liability is entirely a creature of the statute. It was necessary not only for the protection of those who might join such companies, ( but also of persons who might enter into contracts with them, that the privilege of creating them should only be obtained upon certain conditions which should be made known to the public. The legislature, therefore, required that the objects for which the proposed company was to be established should be contained in the memorandum of association, which, when signed and registered, is to establish the incorporated company. . . . " The real description of the contract entered into by the company is an engagement to supply the contractors for the construction of a foreign railway with the funds necessary to enable them to execute their contract. This is clearly not within any of the objects described in the memorandum of association, and the contract was ultra vires, and therefore not voidable merely, but absolutely void. The learned counsel for defendant in error, after arguing against the conclusion that the contract was ultra vires, contended that the contract having been in part performed, and the money of the company having been paid in respect of it, the shareholders, in order to have the. benefit of their money so misapplied, had a right to abstain from objecting to the contract which might then be enforced against the directors. ' Because,' he said, ' the Companies Act, though it prohibits the contract being entered into, does not say, if the directors have made such a prohibited contract, what the stockholders may do with it.' "This argument is really directed to the question whether the contract was capable of being ratified by the shareholders. . . . I have already observed that the contract entered into by the company with Messrs. Eiche $ 41.] .THE DOCTRINE GENERALLY. 63 was not a voidable contract merely, but, being in viola- tion of the prohibition contained in the Companies Act, was absolutely void. " It is exactly in the same condition as if no contract at all had been made, and therefore a ratification of it is not possible. If there had been an actual ratification it could not have given life to a contract which had no existence in itself; but at the utmost it would have amounted to a sanction by the shareholders to the act of the directors, which, if given before the contract was en- tered into, would not have made it valid, as it does not relate to an object within the scope of the memorandum of association." And says Lord O'Hagan in the same case : " Having, therefore, no doubt that the action of this company was ultra vires, I confess I have as little that there was no valid ratification of the impeached contract. Again, we must keep in mind the purpose of the legislation with which we are dealing. It was, as I have said, to give a privilege upon a condition ; and the privilege was to be enjoyed upon the terms and with the limitations indicated in the memorandum of association. The memorandum,, 'when put on record, was to be for contractors, for cred- itors, and for all the world, a reliable description of the exact character, purposes and powers of the company described in it. And the admission of an authority in ' shareholders to warrant anything inconsistent with that charter, antagonistic to those purposes and beyond those powers (and in this case it was so undoubtedly), would seem to encourage evasion of the statute to abrogate the condition whilst continuing the privilege, and so to give the benefit without the burden. By the memorandum , the general community is to judge of the association ; but how can that be so if shareholders, proposing to bind the 64 THE DOOTEINE GENERALLY. [§ 42, i corporation by resolution, perhaps effective between the shareholders themselves, altogether ignore that memo- randum, and authorize dealings quite beyond the scope of its contemplation? It is plain that if the ratification for which the defendant in error contends could validly affirm the contract on which he relies, there is no amount of divergence from the original object of the company which might not have been approved, no extension of the limits prescribed by the memorandum which might not have been effected by a single resolution of all the stock- holders. And if this be so, I cannot think that a conclu- sion pregnant with consequences so very serious can prop- erly be sustained. It is not warranted by the statute, which equally condemns it by affirmative and negative provisions; and any such ratification, if relied on, being I in clear contravention of the purpose and the letter of the law, should, in my opinion, be held void and illegal." § 42. Attorney-General v. Great Eastern By. Co.,5 App. Cos. 4.73 {1880). — Extracts from this and the following English cases are made for the purpose of showing that the rule of construction adopted in the Riche Case, supra, relative to the doctrine of ultra vires, has been, strictly adhered to, and is the accepted application of the doctrine in that country. In this case the Lord Chancellor (Lord Selborne) says, among other things : " I assume that your lordships will not now recede from anything that was determined in Ashbury Ry. Co. v. Riche: it appears to me to be important that the doctrine of ultra vires as it was explained in that case should be maintained. But I agree with Lord Justice James that this doctrine ought to be reasonably and not unreasonably understood and applied, and that whatever may be fairly regarded as in- cidental to or consequential upon those things whioh the §§ 43, 44'.] THE DOCTRINE GENERALLY. 65 legislature has authorized ought not (unless expressly pro- hibited) be held by judicial construction to be ultra vires." And Lord Blackburn, in the same case, said : " That case appears to me to decide at all events this: that where there is an act of parliament creating a corporation for a particular purpose, and giving it powers for that particu-f lar purpose, what it does not expressly or impliedly au- thorize is to be taken as prohibited. . . . Those things | which are incident to and may reasonably and properly be done under the main purpose, though they may not be- literally within it, would not be prohibited." § 43. Small et al. v. Smith et al, 10 App. Cm. 119 (1884). In this case the Earl of Selborne, L. C, observed: " Now I entirely adhere to what was said in this House in the case of Attorney- General v. Great Eastern Ey. Co., 5 App. Cas. 473, that when you have got a main purpose ex- pressed and ample authority given to effect that main purpose, things which are incidental to it and which may reasonably and properly be done, and against which no express prohibition is found, may and ought prima facie to follow from the authority for effectuating the main purpose by proper and general means. I think it quite right to notify your lordships to apply that principle to -the present case. In order to see how it applies we must ascertain first of all what the main purpose here is, then what are the general powers of the directors, then what are the special powers, and then, supposing that this is not within the natural meaning of these general powers ■or of these special powers, whether it can be brought in as incidental to the main purpose, and a thing reasonably to be done for effectuating it." ' § 44. Baroness Wenloclc, etc. v. The Ewer Dee, 10 App. 439. 2 Davis v. Old Colony R. Co., 131 Mass. 258; Pratt v. Pratt, 33 Conn. 446; Belmont v. Erie R. Co., 52 Barb. (N. Y.) 637; Black v. Delaware, etc. Canal Co., 22 N. J. Eq. 130; Tippecanoe Co. v. Lafayette R. Co., 50 Ind. 85; Teachout v. Des Moines, etc. R. Co., 75 Iowa, 722; Chicago v. Cameron, 120 111. 447; Bliss v. Anderson, 31 Ala. 612; Bergman v. St. Paul, etc. Ass'n, 29 Minn. 275; Cass v. Manchester, etc. Co., 9 Fed. Rep. 640; Zabriskie v. Hackensack, etc. Co., 18 N. J. Eq. 178; Zabris- kie v. Cleveland, etc. R Co., 23 How. (TJ. S.) 381; Memphis v. Dean, 8 Wall. (U. S.) 64; Bronson v. La Crosse R. Co., 2 Wall. (U. S.) 283; Dodge v. Woolsey, 18 How. (U. S.) 331; Heath v. Erie R. Co., 8 Blatch. (U. S.) 347; Rogers v. Oxford, etc. R. Co., 2 De G. & J. 662; Kernaghan v. Williams, L. R 6 Eq. 228; Hodgson v. Powis, 1 De G., M. & G. 6; Cohen v. Wilkinson, 1 Macn. & G. 481; Ware v. Regents Canal Co., 3 De G. & J. 212; Pickering v. Stevenson, L. R. 14 Eq. 322; Mills v. Northern R. Co., L. R. 5 Ch. Div. 621; Aukland v. West- 1 minster Board, L. R. 7 Ch. Div. 597; Bagshaw v. Eastern Counties Ry. Co., 7 Hare, 114; Ware v. Grand Junction Water-works Cp., 2 Russ. & Mylne, 470.; Cunliffe v. Manchester, etc. Canal Co., 2 id. 480, n.; Great Western R. Co. v. Rushout, 5 De G. & S. 290; Bird v. Bird's Pat. Co., L. R 9 Ch. Div. 358; Solomons v. Lang, 12 Beav. 339; Lyde v. Eastern Bengal R. Co., 36 Beav. 13; Snell v. Minneapolis, etc. R. Co., 45 Minn. 264; Young v. Gaslight Coi, 15 N. Y. Sup. 443; McCray v. Junction R. Co., 9 Ind. 358; Stewart v. Erie, etc. Trans.' Co., 17 Minn. 348. § 05.~\ CONTRACTS OF COEPOBATIONS. 77 powers granted; second, the interest of the stockholders that the capital stock shall not be subjected to the risk of enterprises not contemplated by the charter, and there- fore not authorized by the stockholders in subscribing for the stock ; and third, the obligation of every one entering into a contract with a corporation to take notice of the legal limits of its powers. 1 § 55. As to distinction oetween ultra vires and illegal contracts. — It has been confidently asserted in a certain class of cases, and the position is restated and adopted by a very able author, 2 that when acts of corporations are spoken of as ultra vires it is not intended that they are unlawful, or even such as the corporation cannot per- form, but merely those that are not within the powers conferred upon the corporation by the act of its creation, and are in violation of the trust reposed in the managing board by the shareholders that the affairs shall be man- aged, and the funds applied solely, for carrying out the objects for which the corporation was created; and that whether a contract as originally made was ultra vires is not a very important inquiry. 3 The learned judges and law writers who have adopted the views promulgated by Chief Justice Comstock in the Bissell Case, and to the same effect in the Whitney Arms Company Case, seem to have taken the position and involved the subject in more or less confusion by assuming that no act or contract can be unlawful or illegal unless it be infected with the taint of moral turpitude, or fruitful of fraud and felony. This is certainly an exaggerated idea of an illegal transaction 1 Railway Oo. v. Keokuk Bridge Co., 131 XT. S. 384; Pearoe v. Madi- son, etc. Ry. Co., 21 How. (U. S.) 441; Central Trans. Co. v. Pullman Co., 139 U. S. 24, and cases cited in preceding note. 2 Beach on Priv. Corp., § 422. 3 Whitney Arms Co. v. Barlow, 63 N. Y. 62. 78 CONTRACTS OF CORPORATIONS. [§ 55. ■when considered in connection with corporate undertak- ings. An act or contract may be illegal or unlawful be- cause expressly or impliedly prohibited by law, and yet be for some benevolent and worthy purpose. Such transac- tions are made unlawful or illegal because prohibited by and contrary to law. The proposition that when acts of corporations are spoken of as ultra vires it is not intended that they are such as the corporation cannot perform is directly refuted by a long line of cases in the United States supreme court, and notably in the case of Central Transportation Co. v. Pullman Car Co., 139 TJ. S. 24, where Mr. Justice Gray, delivering the opinion of the court, says: "A contract of a corporation which is ultra vires in the proper sense, that is to say, outside the ob- jects of creation as denned in the law of its organization, and therefore beyond the powers conferred upon it by the legislature, is not voidable only, but wholly void and of no legal effect. The objection to the contract is, not merehj that the corporation ought not to have made it, but that it could not make it. . . . JVo performance on either side can give the unlawful contract any validity or be the foundation of any right of action upon it." So in People v. Chicago Gas. Trust Co., 130JU1. 286, the court, in discussing this phase of the subject, say: " The word ' unlawful ' as applied to corporations is not used exclusively in the sense of malum in se or malum prohibitum. It is also used to designate powers which they are not authorized to make, or acts which they are not authorized to do ; or, in other words, such acts, pow- ers and contracts as are ultra vires." 1 1 And to the same effect are Pittsburg, etc. By. Co. v. Keokuk Bridge Co., 131 U. S. 371, 389; Mayor of Norwich v. Norfolk Ey., 4 El. & Bl. (Q. B.) 397; McGregor v. Railway Co., 18 Q. B. 457; Gunness v. Land Corp. of Ireland, 22 Ch. Div. 341; Taylor v. Chichester, etc. § 36.] OONTEAOTS OF COEPOKATIONS. 19 § 56. Prohibited contracts regarded as illegal and void. It is the accepted doctrine of the courts of this country 'and England that a contract of a corporation which is prohibited by its charter or laws under which it is cre- ated, either expressly or by necessary implication, is con- sidered as illegal and void, and that in passing upon such By. Co., L. E. 2 Ex. 356; Wetherell v. Jones, 3 B. & A. 221; Bartlett v. Viner, Carth. 252; Smith v. Mawhood, 14. M. & W. 452; South Ey. etc. Co. v. Great Northern Ey, 9 Exch. 75. 84; Shrewsbury, etc. Ey. Co. v. Northwestern Ey. Co., 6 H. L. 113; Thomas v. Eailroad Co., 101 U. S. 82; State v. Nebraska Distilling Co., 29 Neb. 700; Franklin Co. v. Lewiston Inst, etc., 68 Me. 43. In State v. Nebraska Distilling Co., supra, the court say: "A cor- poration, therefore, can only be organized under our laws for a lawful purpose, and any acts done by such a corporation for the ac- complishment of a purpose not lawful is unauthorized, in excess of its powers, and therefore illegal and void. The acts of a corporation to be unlawful need not necessarily be mala prohibita or malum in se, although such acts are illegal in all cases; but every act of a corporation which, by the terms of its charter, it is not authorized to do, is in excess of its charter, and therefore unlawful." So in Franklin Co. v. Lewiston Inst., supra, the court say: "The agreement was that the Franklin Company should pay for the stock for which the trustee of the bank had subscribed, and take the stock and hold it as security. We thus see that by the very terms of the agreement the money was to be applied to a specific purpose, and that purpose an illegal one. We use the word 'illegal,' not in the sense of malum in se nor malum prohibitum, but in the sense in which it is used to describe the unauthorized acts of corporations — acts and contracts ultra vires." And Selden, J., in Bissell v. Michigan, etc. Co., 22 N. Y. 258, says: " The contracts of corporations which are not authorized by their charters are illegal because they are made in contravention of pub- lic policy. . . . Although the unauthorized contract may be neither malum in se nor malum prohibitum, but, on the contrary, may be for some benevolent or worthy object — as to build an almshouse or a college, or to purchase and distribute tracts or books of instruc- tion, — yet, if it is a violation of public policy for corporations to exer- cise powers which have never been granted to them, such contracts, notwithstanding their praiseworthy nature, are illegal and void." 80 CONTRACTS OF OOEPOEATIONS. [§ 57. contracts the courts have construed the meaning of the words " illegal " and " ultra vires " as identical. 1 In Taylor v. Chichester & Midhurst Ry. Co., supra, Mellor, J., said : " I think that the statutes by which the defend- ants were incorporated did constitute them a company created for particular purposes, with special powers, and that the application of the funds to be raised under them is limited to prescribed and definite objects; and that by reasonable inference from the provisions of the statute, the bargain now under consideration is prohib- ited, and that its performance by the defendants would amount, not merely to a breach of trust, the remedy for which would be in equity, out that the contract itself, being ultra vires and illegal because prohibited, the defense is properly raised in a court of law." So, in Mayor of Nor- wich v. Norfolk By., above cited, the court say : " It re- mains to be considered whether this contract was illegal, as not authorized by the > act incorporating the defendant company, and therefore prohibited by that act. ... So a contract for a purpose unconnected with the purpose of incorporation is, or may result in, an application of the funds to a purpose unconnected with the purpose of in- corporation, and is therefore held to be prohibited and void." § 57. Unauthorized contracts none the less illegal be- cause statutes ignored by courts. — It has been contended by a very learned author that a contract is not necessarily void and not to be enforced because it is prohibited by statute, by showing that courts have ignored such pro- visions in the statute as though they were not in exist- 1 Taylor v. Chichester, etc. Ry. Co., L. R. 2 Ex. 356; Gunness v. Land Corp. of Ireland, 22 Ch. Div. 349; McGregor v. Railway Co., 18 Ad. & El. (Q. B.) 457; Mayor of Norwich v. Norfolk Ry., 4 El. & Bl. sort of sophistrj T has a pleasing sound to the ear of equity, but is delusive and without merit when urged in support of the enforcement of ultra vires contracts of corporations. In all transactions with r corporations as now created, innocence may be said to I be analogous to negligence, and no one can be allowed to § 61.] EXECUTED CONTRACTS. 87 plead his own laches as a defense. All persons who deal with a corporation are deemed by the law to know its powers and the limits imposed upon its acts and under- takings. The act by which a corporation obtains its powers is a public act open to all the world, and misrep- resentations by officers or agents of a corporation regard- ing its powers or capacities can have no proper bearing in arriving at its liability. The charter is of record and open to inspection. There is no reason why a person should place greater trust and confidence in corporations than iu individuals ; and if he chooses to enter into agree- ments or business transactions with corporations without investigating as to its powers or liability, and involves himself in loss and hardship, he has no reasonable cause for complaint, because he is not deceived — it is his own fault. He in fact stands in the situation of a wrong-doer. 1 Even positive acts of encouragement that sometimes op- erate to estop one sui juris will not affect one under a legal disability. 2 No person who is considered as having any reasonable amount of business sagacity will blindly enter into an undertaking with another, and expend money and labor on such undertaking, without first in- vestigating as to the responsibility of the person with whom such business venture is contemplated. "Why, then, should he relax his vigilance, fling reason to the winds and tax his credulity when coming in contact with a legal creature which requires the combined watchfulness of the courts, the public and its creator to keep it within the legitimate confines of its prescribed powers and privi- leges? The charter or act of incorporation is supposed to be in his mind when he enters into the unauthorized agreement. He elects to go on and accept the conse- 1 Carr v. Rogers, 7 Watts (Pa.), 394. 2 Glidden v. Striplen, 52 Pa. St. 400. 88 EXECUTED CONTRACTS. [§ 61- quences and run the risk of being confronted with the; defense of want of power in the corporation. "When so confronted, and he brings suit for specific performance,, can it be said that he comes into court with clean hands? Is it not more to the purpose and in the cause of truth to say : " You have gone on and performed this act in the light of a public statute. Tou knew the risks you were running and the probable consequences of your act. The court cannot help you in enforcing this contract. Tour act was, in fact, a fraud upon the stockholders in attempt- ing to subject the funds of the corporation, in which they all have an interest, to a purpose beyond the scope of the- corporate business and to entail on them risks they never assumed or agreed to." Is there any room for a plea of " good faith " on the part of one who has performed his side of a contract which he knew the corporation, for want of power, was unable to carry out? Is there any room for a plea of fraud or deceit when, at the time the- officer or agent of the corporation may have been misrep- resenting the corporate powers, he knew or was bound to- know that such representation was in fact false ? Laws. are not enacted for one person to obey and another to (Violate. Honesty of purpose is no excuse for one who- I contravenes the law. In plain "English," ignorance, os- tensible or bona fide, cuts no figure when the provisions-, of a statute have been violated. He is presumed to know them ; and if he do not, if allowed to suffer the conse- quences of disregarding them, it may so develop his dis- cretion that future violation of such enactments will be avoided. It is indeed an anomalous procedure to ask the- aid of the Jaw to assist one in the violation of its very provisions. If the comforting arm of equity is to be ex- tended, it may be done in a proper proceeding, and it § 62.] EXECUTED CONTKACTS. 89 1 should not support those who seek its aid to its own un- doing. 1 § 6*2. Position of United States supreme court on al- leged rule. — This alleged rule, that a corporation cannot evoke the defense of ultra vires when the other party has 1 The doctrine alleged to be established by the "Whitney Arms Company Case, the Bissell Case, and others, is so thoroughly ex- ploded and the position there taken so learnedly combated by Mr. Taylor in his excellent work on Corporations, that it is deemed ad- visable and profitable to quote his views rather fully. The learned author says: " The rules which this case (Bissell v. Michigan Southern & N. Ind. R. R. Co., 22 N. Y. 64) and sundry others in New York and else- where have tended to establish may be considered here. If the cor- poration has performed the contract on its side, the other contract- ing party cannot plead that the corporation was not authorized to- make such a contract. This is held by Whitney Arms Co. v. Bar- low, and even in the absence of all authority would seem clear, ' One who has received from a corporation the full consideration of his engagement to pay money . . . cannot avail himself of the objection that the contract thus fully performed by the corporation was ultra vires and not within its chartered privileges and powers.' (Whitney Arms Co. v. Barlow, 63 N. Y. 70.) Such a person having- himself made the contract and received its benefit is clearly estopped from making any such allegation. " The converse of this proposition is also said to be law. If the other contracting party has performed his side of the contract, the corporation cannot plead that its charter gave it no power to enter into the contract, at least if the corporate property has been bene- fited by the performance. It is submitted that this last proposition involves a fallacy. If the other contracting party had contracted through an agent whose instructions were contained in a written instrument which the corporation knew to contain all the authority which the agent possessed, and if the contract in question was un- authorized by this instrument, could any one maintain that the principal would be bound because the corporation had performed its- side of the contract? Yet in reality it is in analogy with this to- hold the corporation bound because the other contracting party has performed. "To illustrate, let us imagine that B. is a land-owner, A. his agent 90 EXECUTED CONTRACTS. [§ 62. wholly or in part performed his side of the contract, is sought to be invested with added dignity by a citation of several cases in the federal supreme court where this position is asserted to have been vindicated and adopted. and C. a manufacturer of fertilizers. If C, knowing that A. has no authority from B. to purchase fertilizers, sells a large amount of them to be applied on B.'s lands, and they are so applied, but with- out A.'s knowledge, C. has executed the contract on his side and B.'s lands have had the benefit. Yet it is clear that G. has no valid claim against B. Apply this to the case of a corporation. Let B. be the shareholders and creditors; let A. be the board of directors and C. the other contracting party. A. makes a contract with C. beyond the powers of the corporation — beyond A.'s power to repre- sent the corporate interests. In legal intendment C. knows this contract to be beyond A.'s authority, but nevertheless performs his «ide of it, and the results of his performance are applied to the benefit of the corporate enterprise, but without the knowledge of the shareholders or creditors. Here the interests of the sharehold- ers and creditors have been benefited, but through no voluntary action or acquiescence on their part, and through acts which C. knew they had not authorized. It is again clear that C. by his per- formance acquires no rights which can affect the interests of share- holders and creditors. And the same reasoning would apply even if the corporation, by a vote in corporate meeting, ratified the con- tract; the rights of absent or dissenting shareholders would not thereby be affected, provided they were guilty of no laches in as- serting their rights. Undoubtedly, if the shareholders know that ultra vires contracts are being entered into and performed, and that the proceeds are being applied to the corporate enterprise, they can- not with honesty stand quietly by, but must do all in their power to prevent such application. Therefore, through acquiescence after they know, or, if they have been at all observant of corporate af- fairs, would have known, of the contracts, they would be estopped from objecting. And so. perhaps, might creditors estop themselves. "The preceding argument leads to this unavoidable conclusion: The mere facts that the other contracting party has executed his ■side of the ultra vires contract, and that the corporate property has thereby been benefited, do nbt affect the rights of persons who have done nothing from which assent to the contract can in any way be inferred. " If one examines with care the cases which are regarded as au- § 63.] EXECUTED CONTRACTS. 91 These cases are, among others, San Antonio v. Mehaffy, 96 IT. S. 312; Railway Co. v. McOarthey, 96 U. S. 258, and Hitchcock v. Galveston, 96 U. S. 341. § 63. San Antonio v. Mehaffy, 96 U. S. 312.— In this case the only reference to the doctrine of ultra vires was made in a casual observation, purely dictum, by Mr. Jus- thority for this alleged general rule that sounds so just — if the other contracting party has performed, and by his performance benefited the property of the corporation, the latter cannot plead ultra vires — it will appear that the recovery of the other party really does not rest on the fact that he has performed, nor on the fact that his per- formance has benefited the corporate property, though undoubtedly he would not have had the same cause of action had he not per- formed; and that corporate interests were benefited may very likely have been a material point in establishing his case. It is submitted that in these cases the plaintiff's recovery rests on the circum- stances that all the persons who would have been entitled to object to the contract allowed the plaintiff to go on and perform under the reasonable assumption on his part of general acquiescence in the contract. To be sure the shareholders are not supposed to be continually exercising an actual supervision over the affairs of the •corporation. But they have a right to inspect the books, and, if they choose, may keep themselves acquainted with what is being done by the corporate management. At any rate, unless they keep a watch over the course of corporate affairs, they will not be entitled on a plea of their own ignorance to come forward at their pleasure and cause the repudiation of corporate obligations. Shareholders wishing to prevent illegal or ultra vires acts, or to absolve the cor- poration from responsibility for them, must be vigilant and swift. " Darst v. Gale, 83 111. 186, is another case frequently cited in sup- port of the alleged rule — which is indeed stated in so many words in the opinion of the court — 'that a private corporation cannot avail itself of the defense of ultra vires where the contract has in good faith been fully performed by the other party, and the corpo- ration has had the benefit of the contract and the performance.' But in this case the defense was not set up by or on behalf of the corpo- ration, nor on behalf of any person interested in it. A subsequent grantee of premises belonging to the corporation attempted to have a prior deed of trust covering the same property set aside, on the 92 EXECUTED CONTRACTS. [§ 63, tiee Swayne, who used the following language: " The doc- trine of ultra vires, whether invoked for or against a corporation, is not favored in the law. It should never be applied where it will defeat the ends of justice, if such result can be avoided." And citing only Whitney Arms Co. v. Barlow, 63 N. Y. 62. The doctrine of ultra vires was not " invoked " in this case, and the learned sugges- tion of the justice was wholly gratuitous, nor was its ap- ground that such deed was ultra vires the corporation; he having bought with full notice of the prior deed. The ultra vires nature- of the prior deed had injured no right of his; and, consequently, he had no standing in court to interpose the plea of ultra vires. " The decision, if not the reasoning, in this case points to an im- portant principle respecting the plea of ultra vires. As we have seen, the plea cannot be interposed by the party contracting witli the corporation when the corporation has performed; and the rea- son for this lies not only in the estoppel in which, under the circum- stances, such a person is affected, but in the following reasons as well: That the transaction was ultra vires infringes none of his. rights; he cannot, therefore, interpose the defense. This is a plain principle which is not only law, but patent common sense. With a few special exceptions no one can represent another before the courts or elsewhere, without authority, express or implied, to do so. To an action brought against himself a man cannot ordinarily plead that the rights of another, whom he is not authorized to represent, will be affected by the prosecution of the suit. If the court con- sider that hardship and injustice will result unless the interests of each outside person are regarded, the court — at least a court of equity — may require him to be made a party to the suit, in order to afford him opportunity to protect his interests. Accordingly, when a contract ultra vires is entered into, it is not competent for persons whose rights are not infringed, any more than for those who by their actions have estopped themselves from complaining, would restrain the fulfillment of the contract on the ground that the inter- ests of others, which they are not authorized to represent, will be injured. It may therefore be stated as a rule that a person whose rights are in no way infringed by the fact that a given act is ultra vires a corporation can found no action or defense on that fact." Taylor on Corp., §§ 275-281. § 64.] EXECUTED OONTKACTS. 93 plication required in the decision of the case, and the ■case cited shows very clearly that the learned justice had given the subject little thought and less investigation. § 64. Railway Co. v. McCarthey, 96 U. 8. 258.— In this case, which has been quite frequently cited as bear- ing out the alleged rule heretofore referred to, it was de- cided that, unless forbidden by its charter, a railroad com- pany may contract for a shipment over connecting lines; and having done so is liable in all respects upon them as upon its own lines ; also that where such a contract is not, on its face, necessarily beyond the scope of the powers of the corporation, it will, in the absence of proof to the contrary, be presumed to be valid. All of which propo- sitions are universally conceded and are too clear to call for argument or authority. 'No reference is made to the defense of ultra vires by a person who has received the benefit of a contract executed by one party or the other ; the same justice who delivered the opinion of the court in the San Antonio case also speaking for the court in this case. In the course of this opinion he says : " The doctrine of ultra vires, when invoked for or against a cor- poration, should not be allowed to prevail when it would defeat the ends of justice or work a legal wrong; " citing on this occasion, Union Water Co. v. Murphy's Flat Flush- ing Co. et. al., 22 Cal. 620 ; Union Bailroad Co. v. Bail- road Co., 29 1ST. J. Eq. 542 ; and the old standby, Whitney Arms Co. v. Barlow, 63 K". Y. 62. From the cases here cited it would seem that the learned justice had widened the field of his investigation somewhat, but from the language used it is evident that he clung to the same opinion still. The latter part of the sentence last quoted has a lulling sound for those who prefer axioms to au- thority. Though often quoted, it has never been clearly explained what is meant by " working a legal wrong." 94 EXECUTED CONTRACTS. [§ 65. A legal wrong means, if it means anything at all, a wrong against the law, and it certainly cannot be considered as a legal wrong to see that the provisions of the law are vindicated and its terms complied with, in holding cor- porations strictly within their statutory powers and priv- ileges. "Whether it is " defeating the ends of justice" to allow corporations to repudiate the unauthorized and illegal acts of their officers and agents is also a proposi- tion we will spend no time in vindicating. § 65. Hitchcock v. Galveston, 96 U. S. 341.— We now come to the bulwark behind which the adherents to the alleged rule under discussion confidently repose them- selves — the case of Hitchcock v. Galveston, — which seems to call for a more extended examination to show its in- applicability. The facts in that case were, briefly stated, these : The city of Galveston, under an ordinance, had, through its mayor and chairman of the committee on streets and alleys, entered into a contract with Hitchcock and another for paving the sidewalks of said city, for which work the city agreed to pay, and the contractors agreed to accept, a specified sum per square yard, payable in bonds of the city. "While the ordinance of the city em- powered the mayor and the said chairman " to enter into and make contracts with proper and responsible parties to fill up, grade, curb and pave the said sidewalks," the city had no power or authority to issue bonds in payment t of such work. Under this agreement Hitchcock made contracts for labor and materials, performed a large amount of work, completed the curbing and filling of some sidewalks, and was going on in earnest to finish the entire work, when, at the expiration of some forty-six days, he was compelled by force and by authority of the city to abandon the work without any fault of his own. After- wards the city council declared the contract null and void, § 65.] EXECUTED CONTRACTS. 95 and directed the mayor to notify the contractors to that effect, which he did. Accordingly suit was brought to recover damages for the breach of the contract. Mr. Justice Stone, in delivering the opinion of the court, said: " If it were conceded that the city had no lawful author- ity to issue the bonds described in the ordinance and mentioned in the contract, it does not follow that the con- tract was wholly illegal and void, or that the plaintiffs- have no rights under it. They are not suing upon the bonds, and it is not necessary to their success that they should assert the validity of those instruments. It is enough for them that the city council have power to enter mto a contract for the improvement of the sidewalks ; that such a contract was made with them ; that under it they have proceeded to furnish materials and do work as well as to assume liabilities ; that the city has secured and now enjoys the benefit of what they have done and furnished ; that for these things the city promised to pay, and that after having received the benefit of the contract the city has broken it. It matters not that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds because their issue is ultra vires, it Would be sanctioning rank injustice to hold that pay- ment need not be made at all. Such is not the law. The contract between the parties is in force so far as it is law- ful. . . . The promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at farthest, only ultra vires, and in such a case, though specific performance of an engagement to do a thing trans- gressive of its corporate powers may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to per- form what it promised in return, in the mode in which it promised to perform." ■96 EXECUTED CONTRACTS. [§ 65. There was no question in this case as to the power of the city to make the contract for paving the sidewalks. How- payment should be made was, at most, only incidental to the authority to make the contract. Had it been decided that the city was devoid of power to make the contract, it would have raised altogether a different phase of the question. When a corporation has the power to make certain contracts, it cannot plead its own irregularity in performing them. If it has power to make the contract at all, it is liable on it. " Though specific performance of an engagement to do a thing transgressive of its cor- porate powers may not he enforced, the corporation can be held liable on its contract." By this proposition is meant that the corporation may be held liable on its im- plied contract to pay for what it has received the benefit of, as on a quantum meruit. No other construction can be put upon it with any reason. To say that specific per- formance of an agreement may not be enforced, yet the corporation can be held liable under the specific terms of that agreement, is decidedly absurd. It is quite apparent that these statements were made by the learned justice having in mind the circumstances connected with this particular case. Does the decision in this case sustain the proposition laid down in the Whitney jirms Com- pany Case that a corporation, having received benefits under a contract which it had no power to make, if exe- cuted by the other party, cannot avail itself of the defense of ultra vires in an action on that contract? It holds de- cidedly the reverse, and while admitting that the contract cannot oe enforced against the corporation in the manner iu which it agreed to perform it, yet it must be held lia- ble for the benefits received by the performance of the other party to the contract. In other words, it is liable as for money had and received — a clear repudiation of the §§ 66, 67.] EXECUTED CONTRACTS. 97 contract, and all that it is claimed a corporation has a right to do. § 66. Jones v. Guaranty Co., 101 U. 8. 622. — Jones v. Guaranty Co., supra, is another case which has been cited in support of the rule alleged in the Whitney Arms Com- pany Case. The nearest approach to the proposition in that case was made in the following language of Mr. Jus- tice Swain, who delivered the opinion of the court: " Where money has been obtained by a corporation upon its securities which were irregular and ultra vires, but the money was applied for the benefit of the company with the knowledge and acquiescence of the stockholders, the company and the stockholders were estopped from deny- ing the liability of the company to repay it. And the same result follows when such securities are issued with the knowledge of the shareholders, so far as the money thus raised is applied for the benefit of the company." If this case sustains the alleged rule it is difficult to under- stand the reasoning of its application. § 67. National Bank v. Mathews, 98 TJ. 8. 621.— An- other case which has been cited with some frequency in this connection is that of National Bank v. Mathews. The only question raised in that case was whether or not a bank which had parted with its money in good faith could be allowed to enforce a trust deed taken as security for the debt, when the other party who had received the bank's money set up the plea that such a transaction by the bank was ultra vires and illegal ; and it was held that such a defense could not be allowed. This decision, like a great many others frequently cited, applies to the party contracting with the corporation and not to the corpora- tion ; the reasons why such a defense are not allowed in such cases being fully considered and explained by Mr. Taylor, quoted in note to section 61. 7 98 EXECUTED CONTRACTS. [§ 68. § 68. Central Transportation Co. v. PuUman Car Co., 139 Z7". S. 2b — The further consideration of this branch of the subject will be dismissed with a quotation from the recent case of Central Transportation Co. v. PuUman Car Co., supra, wherein Mr. Justice Gray expressly repudiates the alleged rule enunciated in the Whitney Arms Case. In the course of his able opinion he says : " It was argued in behalf of the plaintiff that, having been fully performed on the part of the plaintiff, and the benefit of it received by the defendant for the period covered by the declara- tion, the defendant was estopped to set up the invalidity of the contract as a defense to this action to recover the compensation agreed on for that period. "But this argument, though sustained by the decisions of some of the states, finds no support in the judgments of this court. The passages cited by the plaintiff from Railway Co. v. McCarthey, 96 U. S. 258, 267, and San Antonio v. Mehaffy, 96 IT. S. 315, are no more than a passing remark that ' the doctrine of ultra vires, when in- voked for or against a corporation, should not be allowed to prevail when it would defeat the ends of justice or work a legal wrong,' and a repetition in substance of the same remark, adding, ' if such a result can be avoided.' " ' i Mr. Morawetz, in his admirable treatise on Corporations, at page 551, section 581, says: " In some of the cases it has been said that, while the general rule is that acts and contracts in excess of the charter of a corporation are ultra vires, and therefore not binding on a company, yet, after a corporation has enjoyed the benefit of an act or contract per- formed in its behalf, it will be estopped, when charged with respon- sibility on account of the act or contract, from setting up as a defense that the transaction was ultra vires. " This statement of the law is certainly inaccurate. It has never been denied that the principles of the law of agency apply to cor- porations and to individuals alike, and it is certain that, according to the elementary principles of the law of agency, a person does not become responsible for acts performed in his name merely because § 68.] EXECUTED CONTRACTS. 99 the acts have accrued to his benefit A person may become respon- sible for an unauthorized act performed in his behalf by ratifying the act; but ratification would imply an intention to adopt the un- authorized act. Eatification by a corporation of an act in excess of its charter means ratification by the entire body of shareholders; no agent of a corporation has authority to ratify an act which he had not original authority to do. . . . "Statements may be found in some of the authorities to the effect that 'a plea of ultra vires' should not prevail when it would 'ac- complish a legal wrong.' These statements, however, refer merely to the effect of the legal prohibition against unauthorized corporate acts; they mean that the fact that a transaction is in excess of the charter of the corporation should not be a defense if there would be a liability according to the general principles of law applicable to unincorporated companies. It certainly cannot be maintained that the application of the established principles of the law of agency would 'accomplish a legal wrong.' " The learned author then quotes the remarks made by Bramwell, B., in the case of Bateman v. Mayor of Ashton, 3 H. & N. 340, in the court of Exchequer Chamber, where the learned baron used the fol- lowing language: "I cannot help adding an observation on the ob- jection made to the honesty of a defense of this description. It is said that the company lias contracted, and the company repudiates its contract. There cannot be a more perfect fallacy. 'Persons without authority have affected to contract for the company, and the company repudiates the act,' is the true expression. A., B. and C. are in partnership as hatters. A. buys boots in the name of the firm, and the seller sues A., B. and C, who say they did not contract. It may be wrong in A, but are B. and C. to blame? I do not say the corporation cases are cases of partnership, but the principle is the same." So the observation made by Lord Wensleydale in Ernest v. Nich- olls, 6 H. L. 400, would seem appropriate in this- connection. He there says: "It is a captivating argument for a jury, and jury- men are very often misled by it in these cases of joint-stock com- panies, that the company has had the benefit of the plaintiff's goods, or service, or money, whereas, for the purposes of contract, the com- pany exists only in the directors and officers, acting by and according' to the deed." The learned lord might also truly have added that courts likewise are often captivated and misled by the same specious plea, losing sight altogether of the true issue involved and resting their decis- ions on the doubtful consideration of individual hardship. CHAPTER Y. ACTIONS ON ULTEA VIRES CONTRACTS. § 69. General rule as to actions on illegal contracts. 70. Ultra vires as defense to action — General rule. 71. Court must be satisfied of legality of contract. 72. Actions on executed ultra vires contracts. 73. Actions on ultra vires contracts in courts of equity and at law. 74. Quantum meruit — Relief on ultra vires contracts. 75. Relief on contracts ultra vires and under statute of frauds. § 69. General rule as to actions on illegal contracts.— It is a general rule of law that a contract made in viola- tion of a statute is void ; and that when a plaintiff cannot establish his cause of action without relying upon an ille- gal contract he cannot recover. 1 It is likewise well settled by the authorities that any promise, contract or under- taking, the performance of which would tend to promote, advance or carry into effect any object or purpose which is unlawful, is in itself void, and will not maintain an action. The law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect, and in this respect the law gives no countenance to the old distinction between malwm m se and malum prohibitum. That which the law prohibits either in terms, or by affixing a penalty to it, is unlawful; and it bollock's Prin. of Cont, pp. 253-265; Penn v. Bornman, 102 111. 523; Alexander v. O'Donnell, 12 Kan. 608; Gunter v. Leckey, 30 Ala. 591; Kennedy v. Cochran, 65 Me. 594; Bank of U. S. v. Owens, 2 Pet. (U. S.) 527, 539; Pangborn v. Westlake, 36 Iowa, 546; Harris v. Run- nells, 12 How. (U. 8.) 79; Miller v. Amnion, 145 U. S. 426; American Pres. Trust Co. v. Taylor Mfg. Co., 46 Fed. Rep. 155. § 69.] ACTIONS ON CONTRACTS. 101 will not promote in one form that which it declares wrong in another. So the rule is declared as general that all contracts or agreements which have for their objects any- thing which is repugnant to the general policy of the law, or contrary to the provisions of any statute, are void and not to be enforced. 1 It is a principle too' salutary and well established to be in any measure infringed, and courts of justice ought not to assist an illegal transaction in any respect. 2 Though the objection that a contract is illegal or ultra vires may sound at all times very ill in the mouth of a defendant, it is not for his sake that the objection is ever allowed, but it is founded in general principles of policy; and whenever from the plaintiff's own stating, or otherwise, the cause of action appears to arise from the transgression of a positive law of the country, he has no right to be assisted. 3 Nor will courts, even with the consent of the parties, enforce a contract which is in vio- lation of a statute, although not otherwise declared void.* " There is a great difference where a party comes to over- turn an illegal contract and to be relieved against it. He shall not be relieved if he come to take the benefit of an illegal contract ; there he never shall be relieved, because, to relieve him, the court must affirm the contract." 6 So 1 White v. Bass, 3 Cush. (Mass.) 448; 1 Comyn, Cont. 30; Hunt v. Knickerbocker, 5 John. (N. Y.) 326; Guenther v. Dewein, 11 Iowa, 133; Craig v. Andreas, 7 Iowa, 17; Pittsburg v. Keokuk Bridge, 131 U. S. 371; Oregon Ey. v. Oregonian Ry.,130 IT. S. 1; Thomas v. Rail- way Co., 101 U. S. 71; Central Trans. Co. v. Pullman Co., 139 U. S. 24; Spring Co. v. Knowlton, 103 U. S. 49. 2 Belding v. Pitkin, 2 Caines (N. Y.), 149. 8 Lord Mansfield in Holmes v. Johnson, Cowp. 343. 4 Fowler v. Scully, 72 Pa. St. 456. 'Walker v. Chapman, Lofft, 342; Toppenden v. Randall, 2 Bos. & Pull. 467; Chitty, Cont. 533; White v. Franklin Bank, 22 Pick. (Mass.) 184; Aubert v. Walsh, 3 Taunt. 277; Busk v. Wash, 4 id, 290; Will- iams v. Hedley, 8 East, 380, n.; Hastelow v. Jackson, 8 B. & C. 224; 102 ACTIONS ON CONTRACTS. [§ 70. when a contract is tainted with illegality the law will not lend its aid to either party for the enforcement of such contract ; and neither a court of law nor of equity will interpose to grant any relief to the parties, but will leave them where it finds them, if they have been equally cog- nizant of the illegality. 1 "The attempt to contravene the policy of a public statute is illegal. Nor is it neces- sary to render it so that the statute should contain an ex- press prohibition of such attempt. It always contains an implied prohibition ; and to such attempts the principles of the common law are invariably and deadly hostile, not always by an interference between the parties themselves; or by enabling the one to recall to the other, where in pari delicto, what may have been obtained; but by at all times refusing the aid of the law to carry into effect or enforce any contract which may be the result of such in- tended contravention." 2 § 70. Ultra vires as defense to action — General rule.— It is upon the principles stated in the next preceding sec- tion that it has been so frequently held that a contract, made by the officers or agents of a corporation which is outside the pale of the corporate power confers no rights; and the making of such contract does not estop the cor- poration, in an action on it, from invoking the defense of tdtra vires. 3 Accordingly the rule may be declared as Utica Ins. Co. v. Kip, 8 Cow. (N. T.) 20; Fowler v. Scully, 73 Pa. St. 456. 1 7 "Wait, Act. & Def. 64; Smith v. Bromley, 2 Doug. 696; Birming- ton v. Wallis, 4 B. & Aid. 650; Cowan v. Milburn, 2 Exch. 230; Low- ell v. Boston, etc. R. Co., 23 Pick. (Mass.) 32; Barker v. Hoflf, 7 Hun (N. Y.), 284; Blasdell v. Fowler, 120 Mass. 447. zSharpe v. Teese, 9 N. J. L. 352. 3 Sherwood v. Alvis, 83 Ala. 115; Smith v. Insurance Co., 4 Ala. 558; City Council v. Plank Road Co., 31 Ala. 76; Chewacla Lime Works v.Dismukes, 87 Ala. 347; Abbott v. Packet Co., 1 Md. Ch. § 70.] ACTIONS ON CONTEACTS. 103 general, that any contract made by a corporation not necessary and proper, directly or indirectly, to enable it to answer the purpose of its creation, is void, and neither a court of law or of equity can enforce it. 1 No perform- ance by the corporation of such a contract can give it any validity, or be the foundation of any right of action upon it. 2 So, where a third party makes with the officers of a corporation an illegal contract — beyond the powers of the corporation as shown by its charter, — such third party cannot recover on the contract, because he acts with knowledge that the officers have exceeded their powers and the powers of the corporation, and between him and the corporation or its stockholders no amount of ratifica- tion by those unauthorized to make the contract will make it valid. 3 542; Brady v. Mayor, 20 N. Y. 312; Taft v. Pittsford, 28 Vt. 386 Franklin Co. v. Lewiston Inst., 68 Me. 43; Root v. Goddard, 3 Mc Lean (U. S.), 102; Ex parte Williamson, 5 Ch. Div. 309; South York shire Ey. v. Great Northern Ry. Co., 9 Exoh. 55; Bateman v. Ash ton-under-Lynn, 3H.&N. 323; Norwich v. Norfolk Ry., 4 El. & Bl. 397; Taylor v. Chichester, etc. Ry., L. R 2 Exch. 356; East Anglian Ry. v. Eastern Counties Ry., 11 C. B. 775; MacGregor v. Dover & D, Ry., 18 Q. B. 618; Bagshaw v. Eastern Union Ry., 2 Macn. & G. 389 Earl of Shrewsbury v. North Staf . Ry. Co. , 1 Eq. Rep. 593 ; Chambers v, Manchester, etc. Ry. Co., 5 B. & S. 588; In re Building Society, 5 Ch, App. 309; Gregory v. Patchett, 33 Beav. 595; Shrewsbury, etc. Ry. v. Northwestern Ry., 6 H. L. Cas. 113; Gage v. Newmarket Ry., 18 Q. B. 457; Caledonia Ry. Co. v. Helensburgh, 2 Macq. 391; Pearce v. Madison Ry. Co., 21 How. (U. S.) 441; Thomas v. Railroad Co., 101 U. S. 71; Head v. Providence Ins. Co., 2 Cranch (U. S.), 127; Central Trans. Co. v. Pullman Co., 139 U. S. 24, and cases cited to §§ 9, 53. 1 Alabama Ins. Co. v. Central Ass'n, 54 Ala. 73; Grand Lodge v. Waddell, 36 Ala. 313; Chambers v. Falkner, 65 Ala. 448; Sherwood v. Alvis, 83 Ala. 117; Simmons v. Troy Works, 92 Ala. 427, and cases cited in preceding note. 2 Central Trans. Co. v. Pullman Co., 139 TJ. S. 24; Thomas v. Rail- way Co., 101 U. S. 71; Orr v. Lacey, 2 Doug. (Mich.) 230; Littlewort v. Davis, 50 Miss. 403. 'Allegheny City v. McClurkan, 14 Pa. St. 81; Holdsworth v. Evans, 104: ACTIONS ON CONTRACTS. [§ 71. § Ti. Court must le satisfied of legality of contract— Before the court can act in the exercise of its peculiar jurisdiction to enforce specific performance of an agree- ment, it must be satisfied that there is not a reasonable ground for contending that the agreement is illegal or against the policy of the law ; 1 and in the next place that the agreement is one ascribable to a class in which the court has been accustomed or has certainly jurisdiction to interfere. 2 In Hunt v. Knickerbocker, 6 Johns. 377, Mr. Justice Thompson, speaking for the court, said: "No case, I believe, can be found where an action can be sus- tained which goes in affirmance of an illegal contract, and when the object of it is to enforce the performance of an engagement prohibited by law. Wherever an ac- tion has been sustained against a party to prevent him from retaining the benefit derived from an unlawful act, the action proceeds in disaffirmance of the contract, and, instead of endeavoring to enforce it, presumes it to be void." So also, in Union Pacific By. Co. v. Chicago, 3 H. L. 263; Ex parte Grady, 9 Jur. (N. S.) 631; Lucas v. White Line Tr. Co., 70 Iowa, 541 ; National Trust Co. v. Miller, 33 N. J. Eq. 155; Black v. Del. & R Canal Co., 24 N. J. Eq. 455 ; Thomas v. Railway Co., 101 U. S. 71; Mallory v. Hanauer Oil Co., 86 Tenn. 598. 'Johnson v. Shrewsbury, etc. Co., 3 De G., M & G. 913; Hunt v. Knickerbocker, 5 Johns. (N. Y.) 326; Union Pac. Ey. Co. v. C, E. L & P. Ey., 51 Fed. Eep. 309; Laughton v. Hughes, 1 Mau. & Selw. 593; Holmes v. Johnson, Cowp. 343; Morch v. Abel, 3 B. & P. 35; Eussell v. De Grand, 15 Mass. 39; Shiffner v. Gordon, 12 East, 304; Cincin- nati Co. v. Rosenthal, 55 III. 85; Thomas v. Eailway Co., 101 U. S.71. 2 Johnson v. Shrewsbury, etc. Ey. Co., 3 De G., M & G. 913. In Laughton v. Hughes, supra, Lord Ellenborough said: "It may be taken as a general rule that what is done in contravention of the provisions of an act of parliament cannot be made the subject-mat- ter of an action." And Le Blanc, J., in same case, said: "It is an established princi- ple that the court will not lend its aid in order to enforce a contract entered into with a view of carrying into effect anything which is prohibited by law." § 72.] ACTIONS ON CONTRACTS. 105 Rock Island eft Pacific Ry. Co., 51 Fed. Eep. 309, which was a suit to compel specific performance of a con- tract for joint use and occupancy of a bridge across the Missouri river, and which was held not be ultra vires and that such joint use would not interfere with the present or prospective use thereof by the lessor, or with the dis- charge of the duties it owed to the government under the provisions of its charter, Sanborn, 0. J., delivering the opinion of the court, said: "Corporations created under statutory authority are the creatures of the stat- ute. By it their powers are measured. Beyond the limit of the powers there granted, and those fairly incidental thereto, they may not act ; they may not agree to act. Their contracts for the just exercise of these powers are binding and enforceable ; but their contracts beyond the scope of these granted powers are null — as though they had not been. They are void as against the state, be- cause they are unlawful usurpations of power reserved by the. state. They are void as against other parties to the contract, because they are bound to take notice of the law of the limits of corporate powers there found; and no formal assent of corporations or officers, no alleged estoppel, can give validity to such contracts, or induce the cowrts to enforce them against the objection of the citizen or the state." § 72. Actions on executed ultra vvres contracts. — It is the generally accepted doctrine of the courts of England and a large majority of the courts of this country, where the subject has been well considered, that a contract be- yond the scope of the powers conferred on the corpora- tion cannot, by any partial performance, become the foundation of any right of action. 1 The reason for this 1 Thomas v. Railway Co., 101 TJ. S. 71; Oregon Ry. v. Oregonian Ry., 130 U. S. 1; Central Trans. Co. v. Pullman Co., 139 IT. S. 24- 106 ACTIONS ON CONTRACTS. [§ 72. rule is forcibly stated by Mr. Justice Miller in Thomas v. Railroad Co., a leading case: "It remains to consider the suggestion that the contract, having been executed, the doctrine of ulfra vires is inapplicable to the case. There can be no question that, in many instances, where an invalid contract, which the party to it might have avoided or refused to perform, has been fully performed on loth sides, whereby money has been paid or property has changed hands, the courts have refused to sustain an action for the recovery of the property or the money so transferred. . . . Having entered into the agree- ment, it was the duty of the company to rescind or aban- don it at the earliest moment. . . . Though they delayed for several years, it was nevertheless a rightful act when it was done. Can this performance of a legal duty, a duty both to stockholders and the company and to the public, give to plaintiffs a right of action? Can they found such a right on an agreement void for want of corporate authority and forbidden by the policy of the law ? To hold that they can is, in our opinion, to hold that an act performed in executing a void contract makes all its parts valid, and that the more that is done wider a contract forbidden by law the stronger is the claim to its enforcement by the courts." x Pennsylvania Co. v. St. Louis Ry. Co., 118 U. S. 810; Greenville Com- press v. Planters' Press, 70 Miss. 669; Ashbury Ry. Co. v. Eiohe, 7 H. L. 653; East Anglian Ry. v. Eastern Counties Ry. Co., 11 C. B.. 775; National Trust Co. v. Miller, 33 N. J. Eq. 155; Black v. Dela- ware, etc. Co., 24 N. J. Eq. 455; Buckeye Marble Co. v. Harvey, 92 Tenn. 115. 1 So Cooper, J., in Greenville Compress v. Planters' Press, 70 Miss. 669, says: "The agreement between the directors of the respective companies was clearly beyond the corporate powers of either com- pany to make, and it had not been fully executed when the appel- lant withdrew from it. There are some decisions which proceed on the apparent postulate that an ultra vires agreement, executed § 73.] ACTIONS ON CONTRACTS. 107 § 73. Actions on ultra vires contracts in courts of equity and at law. — The general rule, in equity as at law, is in pari delicto potior est conditio defendentis; and therefore neither party to an illegal contract will be aided by the fully by one of the corporations, or so far executed that the status quo cannot be restored, may be made the basis of an action. But in many of these cases it will be found that the measure of recov- ery would be the same, whether the injury done to the plaintiff by the failure of the defendant to perform, or the benefit received by the defendant under the agreement, is taken as the standard. Cases of this sort may therefore be well assigned to that other and far more numerous class, in which the right of recovery is not rested upon the invalid agreement, but is recognized to exist notwith- standing the agreement, upon the principle that the defendant may not repudiate the contract and yet retain the benefit which has been derived under it. "The decided weight of authority in England and America is that no action lies upon the void contract; that no decree can be made by a court of equity for its specific performance, nor a recov- ery had at law for its breach ; but that, by proceeding in the proper court, the plaintiff may recover to the extent of the benefit received by the defendant from the execution of the agreement by the plaintiff." And see Union Pac. Ry. Co. v. C, E. I. & P. Ry. Co., 51 Fed. Rep. 309; Laughton v. Hughes, 1 Mau. & Sel. 593; Holman v. Johnson, Cowp. 343; Morck v. Abel, 3 B. & P. 35; Russell v. De Grand, 15 Mass. 39; Sheffner v. Gordon, 12 East, 304; Selwyn, Nisi Prius, 69; Mayor v. Norfolk Ry., 4 El. & Bl. 397; Cincinnati Co. v. Rosen- thal, 55 111. 85; Greenville Compress v. Planters' Press, 70 Miss. 669; Buckeye Marble Co. v. Harvey, 92 Tenn. 115. In Buckeye Marble Co. v. Harvey, supra, in the supreme court of Tennessee, 1892, Lurton, J., in speaking of the defense of ultra vires where the contract had been executed, said: " But it has been insisted very earnestly by the able and learned counsel for complainant, that, when the contract had been fully executed by the plaintiff, the defendants should not be permitted to invoke such defense in a suit brought to compel performance; that to permit such a defense would work injustice, and enable defendant to repudiate his liability while holding on to the price he has received. There are cases where, the contract being fully executed on both sides, the court, in the interest of justice, has re- fused to aid either in obtaining a rescission. Arms Co. v. Barlow, 63 108 ACTIONS ON CONTBAOTS. [§ 73. court, whether to enforce it or to set it aside. If the contract is illegal, affirmative relief against it will not be granted, at law or in equity, unless the contract remains executory, or unless the parties are not considered in N. Y. 62, is one of this class. So there are cases where the defense of ultra vires has not been entertained when the defect was in the mode of executing the contract or in the power of the agent. So there are many cases holding the party relying upon the defense of ultra vires to an accountability for the benefit received. Green's Brice's Ultra Vires, 717, and note at end of chapter. Again there are cases when the courts have refused to entertain suits to recover property from corporations which is held in excess of charter capac- ity. In such cases the courts have held that the defect in the power could not be set up in a collateral way, and that the state could only complain of such violation. To this effect were our own cases of Barrow v. Turnpike Co., 9 Humph. 303, and Heiskell v. Lodge, 87 Tenn. 668. The question here is not like any of these. The com- plainant sues upon its contract, and in affirmance of it seeks to have the defendant perform an agreement which sprung from and was collateral to it. It has received the shares it purchased and holds onto them. It simply asks that the defendant be further compelled to perform its contract by contributing, in accordance with his agreement, his proportion of the liability paid off by complainant in protection of the property of the McMillan Marble Company. The suit is clearly in furtherance of the original unlawful and void con- tract. That the contract has been executed by the plaintiff does not make it lawful or entitle it to an enforcement of it. This prop- osition was very plainly put in Pittsburg, C. & St. L. Ey. Co. v. Keo- kuk & H. Bridge Co., where it was stated as a result of all the pre- vious discussions of that court upon this subject, that 'a contract made by a corporation, which is unlawful and void because beyond the scope of its corporate powers, does not, by being carried into effect, become lawful and valid; but the proper remedy for the party aggrieved is by disaffirming the contract and suing to recover as on a quantum meruit the value of what the defendant has actu- ally received.' 131 U. S. 389. The case of Central Transportation Co. v. Pullman Car Co. is an exceedingly interesting case, as it in- volves a consideration of the circumstances under which a defend- ant may interpose the defense of ultra vires, notwithstanding full performance by the plaintiff. In that case the Central Transportation Company had leased and transferred all its property of every kind to § 73.] ACTIONS ON OONTEAOTS. 109 equal fault, or where the law violated is intended for the coercion of the one party and the protection of the other, or where there has been fraud or oppression on the part of the defendant. 1 The difference, however, between the defendant company, which was engaged in a similar and compet- itive business. The lessee company undertook to pay all the debts of the lessor company, and to pay it annually the sum of $264,000 for a term of ninety-nine years. Possession was taken, and the instal- ments paid for a number of years. The suit was for a part of the instalment for the last year before suit. The defense of ultra vires was interposed and sustained. The court held that the sale was un- authorized and in excess of the powers of the selling company. It was urged for the plaintiffs, as in this case, that even if the contract was void because ultra vires and against public policy, yet that hav- ing been fully executed on the part of the plaintiff, and the benefits of it received by the defendant for the period covered by its dura- tion, the defendant was estopped to set up the invalidity of the con- tract as a defense to an action to recover the compensation agreed on for that period. After reviewing its own decisions on this branch of the case the court said: 'The view which the court has taken of the question presented by this branch of the case, and the only view which appears to us consistent with legal principles, is as follows: A contract of a corporation which is ultra vires in the proper sense, that is to say, outside the objects of its creation as defined in the law of its organization, and therefore beyond the powers conferred upon it by the legislature, is not voidable only, but wholly void, and of no legal effect. The objection to the contract is not merely that the corporation ought not to have made it, but that it could not make it. The contract cannot be ratified by either party because it could not have been authorized by either. No performance on either side can give the unlawful contract any validity, or be the founda- tion of any right of action upon it. When a corporation is acting within the general scope of the powers conferred upon it by the legislature, the corporation, as well as persons contracting with it, may be estopped to deny that it has complied with the legal formal- ities which are prerequisite to its existence or to its action, because such requisites might in fact have been complied with. But when the contract is beyond the power conferred upon it by the existing 1 St. Louis Ry. v. T. H. R. R, 145 U. S. 407; Thomas v. Richmond, 12 Wall. (U. S.) 349;- Spring Co. v. Knowlton, 103 U. S. 49. 110 ACTIONS ON CONTRACTS. [§ 73. courts of law and those of equity in respect of such con- tracts is mainly one of forms and remedies, rather than in the matter of absolute rights and obligations. If a contract be pronounced absolutely void in a court of law, law, neither the corporation nor the other party to the contract can be estopped by assenting to it, or by acting upon it, to show that it was prohibited by those laws. ... A contract ultra vires being unlawful and void, not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the un- lawful contract, have always striven to do justice between the par- ties, so far as could be done consistently with adherence to law, by permitting money or property parted with on the faith of the un- lawful contract to be recovered back or compensation to be made for it. In such case, howevei - , the action is not maintained upon the unlawful contract, nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for property or money which it has no right to retain. To maintain such an action is not to affirm but to disaffirm the unlawful contract.' 139 U. S. 60. This seems to us to fully and clearly state the rule. The passage cited by counsel from Railway Co. v. McCarthey, 96 U. S. 267, 'that the doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to pre- vail when it would defeat the ends of justice or work a legal wrong,' is misleading, and, if literally construed, would result in an errone- ous practical extension of the powers of corporations. We do not understand that a result required by adherence to the law would be either unjust or a legal wrong. The learned judge doubtless in- tended to be understood that the defense should be a legal wrong only when the law did not require its consideration by the court. " This passage, and one of similar character in San Antonio v.. Mehaffy, 96 U. S. 313, was uncalled for in the case in which it was- used, and in Central Transportation Co. v. Pullman Car Co., supra, characterized as a mere passing remark. To sustain the suit as now presented would be in affirmance and furtherance of an unlawful and void contract. It is in no sense a suit in disaffirmance. Whether complainant could tender back the shares recovered, and maintain a suit to recover the money paid for the shares upon an implied agreement to return money which the defendant had no right to retain, is a question not presented upon this record;" To the same effect is Mayor of Norwich v. Norfolk Ry., supra. § 73.] ACTIONS ON OONTEAOTS. Ill it must expect and should receive the same denunciation in a court of equity. Courts of equity, like those of law, must accept contracts as they are made, and have no power to make contracts for parties. If the contracts where the court gay: "Where a corporation has been created for the purpose of carrying on a particular trade, or making a rail- way from one place to another, and it attempts to substitute an- other trade, or to make the railway to another place, the objection is to its entire want of power for the new purpose; its life and functions are the creation of the legislature, and they do not exist for any other than the specified purpose ; for any other, the mem- bers are merely unincorporated individuals. ... A transgres- sion of the law cannot be the foundation of an action. The cove- nant being illegal, the covenanteee can as little maintain an action for breach of it as he can file a bill in equity for a specific perform- ance of it." In Cincinnati Co. v. Rosenthal, 55 111. 85, the court say: "When the legislature prohibits an act, or declares that it shall be unlaw- ful to perform it, every rule of interpretation must say that the leg- islature intended to interpose its power to prevent the act, and, as one of the means of its prevention, that the courts shall hold it void. This is as manifest as if the statute had declared that it should be void. To hold otherwise would give the person, or corpo- ration, or individual, the same rights in enforcing prohibited con- tracts as the good citizen who respects and conforms to the law. To permit such a contract to be enforced, if not offering a premium to violate a law, it certainly withdraws a large portion of the fear that deters men from defying the law. To do so, places the person who violates the law on an equal footing with those who strictly observe its requirements." Van Vlete, V. C, in National Trust Co. v. Miller, 6 Stew. (N. J.) 155,. says: "Nor can the powers of a corporation be in the slightest de- gree enlarged or extended by the assent of its stockholders, or by any action they may take. . . . And the supreme court of the United States has recently declared, following a judgment of the House of Lords, in which the present Lord Chancellor (Selborne) and the late Lord Chancellor (Cairns) and Lords Chelmsford, Hath- erly and O'Hagan concurred, that the broad doctrine is now es- tablished that a contract not within the scope of the powers con- ferred on a corporation cannot be made valid by the consent of every one of the stockholders, nor can it, by any partial perform- ance, become the foundation of any right of action. (Thomas v. 112 ACTIONS ON CONTRACTS. [§ 73. which parties attempt to make are void because in defi- ance of some statute, they are void alike in either court, and neither court can change a void into a valid contract. 1 As Mr. Justice Brewer, in Hedges v. Dixon County, supra, said: "This court can make no contract for the parties. It must take the contract which they make. That con- tract was one which the county was not authorized to West Jersey E. R. Co., 101 U. S. 71.) While it must be admitted that this doctrine has not received the sanction of every eminent judge who has been called to enforce it, yet I think it is now vouched for by such august authority, and is so manifestly supported by sound reason and the highest considerations of policy, that it must here- after be accepted universally as expressing the true rule of judg- ment in such cases.'' In the light of the foregoing decisions and extracts, the following suggestion of Mr. Wood in his work on Railroads (ed. 1894 P- 570) is almost nonsensical: "It has never been contended that a con- tract ultra vires could be set up by the corporation which made it, and whose want of power is the ground of the invalidity of the con- tract. A corporation is bound to know the extent of its own powers, and if it makes a contract in excess of them and is worsted it cannot be held to complain. It is the other contracting party that is pro- tected. . . . The doctrine that a corporation when sued upon a contract by it cannot plead the defense of ultra vires, but is estopped, except where the contract is void as opposed to public policy or for other reasons — that is to say, that the mere fact that the contract was beyond the powers of the corporation renders it invalid only— has been long recognized and acquiesced in by courts of every juris- diction." This is almost as radical a position (but in the opposite direction) as that taken by a wise justice of the peace at Buffalo. It is reported that some years ago a farmer sued an orphan asylum at that place for injury to his sheep by a dog kept at the asylum. The case was tried in the justice's court, and the judge held as fol- lows: "I have carefully looked over the defendant's charter, and I find it is not authorized to keep anything but orphans — keeping a dog was therefore ultra vires, and it is not liable in this action."— Green Bag. 1 Hedges v. Dixon County, 37 Fed. Rep. 304; In re Cork & Youghal Ry„ 4 Ch. 748; S. C, 9 Ex. 262. § 74.] ACTIONS ON CONTRACTS. 113 make. The bonds were void as adjudged in a court of law, void iu whole and in part, and they must be so ad- judged in a court of equity." § 74. Quantum meruit — Belief on ultra vires contract. Though courts acting under proper construction of the law will sustain no action on contracts made by corpora- tions which are beyond the scope of their powers, and therefore unlawful and void, yet relief may be had by the party aggrieved by disaffirming the contract and suing to recover as on a quantum meruit the value of what the defendant has actually received the benefit of. 1 1 Railway Co. v. Keokuk Bridge Co., 131 U. S. 387; Parkersburg v. Brown, 106 U. S. 487; Central Trans. Co. v. Pullman Car Co., 139 IT. S. 24; Chapman v. Douglas Co., 107 U. S. 348; Salt Lake City v. Hol- lister, 118 U. S. 256; Pennsylvania R. Co. v. St. Louis, etc. Co., 118 U. S. 290; Mayor v. Ray, 19 "Wall. (U. S.) 468; Allegheny City v. Mc- Clurkin, 14 Pa. St. 81; In re Cork, etc., 4 Ch. Div. 748; Atlas Bank v. Nahant Bank, 4 Met. (Mass.) 581; Curtis v. Leavitt, 15 N. Y. 297 Leavitt v. Palmer, 3 Comst. (N. Y.) 19; Pratt v. Short, 79 N Y. 437 Norton v. Bank, 61 N. H. 589; Greenville Compress v. Planters' Press, 70 Miss. 669; Ohio Life Ins. Co. v. Trust Co., 11 Humph. (Tenn.) 1 Williams v. Bank, 71 Miss. 858; Marble Co. v. Harvey, 92 Tenn. 115 Powder River Live Stock Co. v. Lamb, 38 Neb. 353; Eyser v. Weiss gerber, 2 Iowa, 463; Freher v. Geiseka, 5 Iowa, 472; Formholz v. Tay- lor, 13 Iowa, 500; Imhoff v. House, 36 Neb. 28; Ossippee Mfg. Co. v. Canney, 54 N. H. 295; White v. Franklin Bank, 22 Pick (Mass.) 181 Howson v. Hancock, 8 T. R. 577; Utica Ins. Co. v. Scott, 19 John, (N. Y.) 1; Little v. O'Brien, 9 Mass. 423; Rich v. Errol, 51 N. H. 361 National Bank v. Globe Works, 101 Mass. 57; Gas Light Co. v. United Gas Co., 85 Me. 541; Twiss v. Life Association, 87 Iowa, 733; Day v. Spiral Spring Co., 57 Mich. 146; Union Hardware Co. v. Plume Co., 58 Conn. 219; Miller v. American Ins. Co., 21 S. W. Rep. 39 (Tenn., " 1893); Farmers' L & T. Co. v. St. Joseph R. Co., 1 McCrary (U. S.), 247; Carey v. East Saginaw, 79 Mich. 73; Paul v. Kenosha, 22 Wis. 266; Hull v. Swansea, 5 Q. B. 526; Athenaeum, etc. Co. v. Pooley, 3 De G. & J. 294; In re Phoenix Co., 2 J. & H 441; In re Sea Foam, etc. Ins. Co., 5 De G, M. & G. 465; Logan Co. Bank v. Townsend, 139 U. S. 67; Northwestern Pack. Co. v. Shaw, 37 Wis. 655; Oneida Bank v. 8 114 ACTIONS ON CONTRACTS. [§ 74, As was said by the court in Pratt v. Short, supra: "It is no doubt the general rule that no right of action can spring out of an illegal contract. And the rule that an illegal contract cannot be enforced applies as well to con- tracts malum prohibitum as to contracts malum in se. But it does not necessarily follow that all the conse- quences attending a contract which is contrary to public morals, or founded on an immoral consideration, attend and affect a contract malum prohibitum merely. The law in the former case will not undertake to relieve parties from the position in which they have placed themselves, or to adjust the equities between them. But in the lat- ter case, while the law will not enforce the prohibited contract, it will take notice of the circumstances, and if justice and equity require a restoration of money or prop- erty secured by either party thereunder, it will, and in many cases has, given relief. So also a prohibitory stat- ute may itself point out the consequences of its violation, and if, on a consideration of the whole statute, it appears that the legislature intended to define such consequences, and to exclude every other penalty or forfeiture than such as is declared in the statute itself, no other will be enforced, and if an action can be maintained on the trans- action of which the prohibited transaction was a part without sanctioning the illegality, such action will be en- tertained." Accordingly, in Day v. Spiral Spring Oo., supra, plaintiff contracted to sell to defendant corpora- tion one hundred and seventy -four tons of excelsior, not to be used by defendant in its business, but to be resold by it on speculation, as plaintiff was fully advised. After de- Ontario Bank, 21 N. Y. 490; Southern Ins. Co. v. Lanier, 5 Fla. 110; Hall v. Paris, 59 N. H. 71; Whitney v. Peay, 24 Ark. 22; Roberts v. Deining Co., Ill N. C. 432; Curtis v. Piedmont Co., 109 N. C. 401; Maher v. Chicago, 38 111. 266; Thomas v. Port Huron, 27 Mich. 323. § 74.] ACTIONS ON CONTBAOTS. 115 livering a considerable quantity plaintiff refused to deliver more, and defendant refused to pay for what had been delivered unless the whole amount was delivered as agreed ; whereupon plaintiff sued for the value of the excelsior delivered, and defendant set up as a counter-claim dam- ages resulting from a failure by plaintiff to fully perform the contract. It was held, Chief Justice Oooley deliver- ing the opinion of the court, that plaintiff was entitled to recover for the excelsior actually delivered, although the contract was ultra vires, and that defendant was not en- titled to recoup the damages arising from the breach thereof. So a corporation agreed with plaintiff to sell goods of their manufacture on commission at a price to be fixed by plaintiff, and to account for all sales. The goods were received and sold by the corporation for less than the price fixed, and the money received for them ac- counted for to the plaintiff. It was held, on suit brought, to recover the balance, that the corporation could not set up in defense that the undertaking was ultra vires, and that plaintiffs were entitled to recover the balance of the price agreed on, deducting the defendant's commission on the same. 1 1 Union Hardware Co. v. Plume, etc. Co., 58 Conn. 269. In Ohio Life Ins. Co. v. Merchants' Ins. & Trust Co., 11 Humph. (Tenn.) 1, the defendant, a corporation created under the laws of the state of Tennessee, had entered into a contract beyond its corporate powers, and had received benefits therefrom. Being sued in equity, it defended upon the ground that it had no power to make the con- tract. The court held that while the defendant was not liable on the contract, relief should be afforded to the complainant outside of it, saying: "We are of opinion, therefore, that the complainant is not repelled by reason of the illegality relied upon in -defense, but is- entitled to relief, and that in granting it the court will promote both the claims of private justice and the ends of public policy. It is to be observed, however, that the relief is against the contract and not upon the contract; for we have seen that, in the nature of things, 116 ACTIONS ON C0NTBA0TS. [§ 75. § 75. Belief on contract ultra vires and under statute of frauds.— It will be noticed that there is a striking similarity in the principles controlling relief granted on ultra vires contracts, and recovery had when a contract the law cannot enforce an illegal contract, although the parties be not in pari delicto. But it is consistent with itself that the law shall annul such contracts, and place the parties in all respects in statu quo." So in Gas Light Co. v. United Gas Co., 85 Me. 541, the court say: " But it is claimed that, inasmuch as the defendant company took and held possession of the plaintiff company's works by virtue of the lease, ultra vires is no defense to an action to recover the agreed rent. We do not doubt that the plaintiff company is entitled to recover a reasonable rent for the time the defendant company act- ually occupied the works; but do not think the amount can be meas- ured by the ultra vires agreement. We think that in such a case the recovery must be had upon an implied agreement to pay a reason- able rent; and that while the ultra vires agreement may be used in evidence in the nature of an admission of what is a reasonable rent, it cannot be allowed to govern or control the amount. It seems to us that it would be absurd to hold that the ultra vires lease is void and at the same time hold that it governs the rights of the parties with respect of the amount of rent to be recovered. A void instrument governs nothing. We think the correct rule is the one stated by Mr. Justice Gray in a recent case in the United States supreme court. He said that a contract made by a corporation which is un- lawful and void because beyond the scope of its corporate powers does not, by being carried into execution, become lawful and valid; and that the proper remedy of the aggrieved party is to disaffirm the contract and sue to recover as on a quantum meruit the value of what the defendant has actually received the benefit of. Pitts- burgh, etc. Co. v. Keokuk, etc. Co., 131 U. S. 371. We think this is the correct rule." Another leading case, which might be noticed in this connection, is that of Miller v. Insurance Co., 21 S. W. Rep. 39, where this branch of the subject is pretty thoroughly discussed. The court there said: " We recognize a diversity of opinion in the courts of America as to the right of either party to rely upon the defense of ultra vires, when the contract is not expressly prohibited, and is not immoral, and has been fully executed upon one side. The theory upon which . the cases rest which hold that the defense is not to be entertained § 75.] ACTIONS ON CONTRACTS. 117 is void under the statute of frauds. Thus, where a con- tract for the sale of personal property is void under the statute of frauds, and there has been a delivery of the thing sold to the purchaser and an acceptance thereof by when the act is one merely in excess of express authority seems to be that such a contract should be regarded as a mere breach of duty by the agents of the corporation, and that the state has ample rem- edy for such abuse, or for a usurpation of power, in a proceeding to annul the charter; that to permit such a defense is of no service to the state in preventing corporate usurpation or in promoting the public interests, and only operates to encourage dishonesty and promote injustice. Resting upon one or more of these arguments many cases might be cited. There are, then, a class of cases, which make a distinction between acts merely in excess of authority and those which, in addition, are affirmatively forbidden, or immoral, or in contravention of some principle of public policy. It seems to us that the true foundation of the doctrine of ultra vires lies in the proposition that every act of a corporation in excess of its powers is an act in contravention of public policy, and, for that reason, to be held null and void. The ground upon which corporate privileges are conferred is that the public interests may be thereby subserved. If this is not so, then all such concessions are mere acts of legisla- tive favoritism, and contravene the foundation upon which gov- ernment is supposed to rest,— that all are to be protected in the enjoyment of equal rights and privileges. Charters must be sup- posed to be, therefore, granted upon the supposition that some pub- lic interest is thereby advanced. 'The legislature is therefore presumed,' says Judge Selden in Bissell v. Railroad Co., 22 N. Y. 285, 'to have granted just so much power, and so many peculiar priv- ileges, as those interests are supposed to require.' It must be, there- fore, that any act in excess of these granted powers is an act con- trary to public policy, and, upon that ground, illegal and void. Any other view by which such acts are to be supported because executed would operate as an enormous practical extension of the power of corporations. The view this court has taken has therefore been that ' all acts outside the objects of its creation, as defined in the law of organization, and therefore beyond the powers conferred upon it,' are acts not voidable only but wholly void. Marble Co. v. Harvey, 92 Tenn. 115; Elevator Co. v. Memphis & C. R. Co., 85 Tenn. 705; Mallory v. Oil Works, 86 Tenn. 598. The rule and the founda- tion upon which it rests, as held by the English courts, are identical 118 ACTIONS ON CONTBAOTS. [§ 75. him, the plaintiff may recover the reasonable value of the property, if his petition is so framed ; but a party cannot recover on a quantum meruit where he pleads and relies solely upon a special contract. 1 with our own. . . . The Tennessee rule is in accord with the holding of many of the American courts. Pittsburg, etc. R. Co. v. Keokuk & Hamilton Bridge Co., 131 U. S. 389; Central Trans. Co. v. Pullman's Car Co., 139 XJ. S. 60; Davis v. Eailroad Co., 131 Mass. 258; Chambers v. Falkner, 65 Ala. 448; Bank v. Dunkin, 54 Ala. 471. The remedy in case one of the parties has received a benefit under such a contract, which ex aequo et bono, it ought not to retain, is a suit in disaffirmance and for an accounting. Marble Co. v. Harvey, supra. The plaintiff's suit is upon the contract, and in affirmance of it, and, if there be nothing else in the case, could not be main- tained." 1 Powder River Live Stock Co. v. Lamb, 38 Neb. 353; Eyser v. Weissgerber, 2 Iowa, 463; Freher v. Geiseka, 5 Iowa, 472; Formholz v. Taylor, 13 id. 500; Imhoff v. House, 36 Neb. 28; Rich v. Errol, 51 N. H. 361; Little v. O'Brien, 9 Mass. 423; White v. Franklin Bank, 22 Pick. (Mass.) 181; Howson v. Hancock, 8 T. R. 577; Robinson v. Bland, 2 Burr. 1077; Utica Ins. Co. v. Scott, 19 Johns. (N. Y.) 1; Same v. Cad well, 3 Wend. (N. Y.) 296; Same v. Bloodgood, 4 Wend. (N. Y.) 652; Ossipee Mfg. Co. v. Canney, 54 N. H. 295. CHAPTER YI. ADOPTION AND RATIFICATION OF CONTRACTS. § 76. General doctrine of ratification stated. 77. Nature and effect of ratification. 78. Ultra vires contracts of corporations cannot be ratified. 79. Ratification by corporation of acts of promoters. § 76. General doctrine of ratification stated. — It is the general rule that when a contract is made or an act per- formed by any officer or agent of a corporation in its be- half and for a purpose authorized by its charter, and the corporation receives the benefit of the act or contract without objection, it may be presumed to have authorized and adopted or ratified the act of such agent. 1 In such case the maxim omnis ratihabitio retro trahitur et mcmdato priori ceguiparatiir applies. This proposition is but an application of the doctrine of the law of agency, that Avhen a person ratifies the unauthorized act of another who has purported to act on his behalf, the legal effect of the act will be the same as if it had been authorized before it was done. The ratification, to be binding on a corporation, however, must be the act or acquiescence of some corporate agency which itself would have the power to do or authorize the act committed ; for a ratification cannot arise from the action either of the officers who did 1 Pittsburg, etc. R. Co. v. Keokuk, etc. Bridge Co., 131 U. S. 371; Pneumatic Gas Co. v. Berry, 113 U. S. 322; Gold Mining Co. v. Na- tional Bank, 96 U. S. 640; Zabrieskie v. Cleveland, etc. R. Co., 23 How. (U. S.) 381; Bank of U. S. v. Dandridge, 12 Wheat. (U. S.) 64; Bank of Columbia v. Patterson, 7 Cranch (U. S.), 279. 120 ADOPTION AND KATIFICATION OF CONTKACTS. [§ 77. the unauthorized acts or of those who would have had no authority to do them. 1 § 77. Nature and effect of ratification.— The general nature and effect of ratification is stated by Mr. Justice Field as follows : " The general rule as to the effect of a ratification by one of the unauthorized act of another re- specting the property of the former is well settled. The ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made." 2 Al- though this reasoning was adduced in discussing the law of agency, yet the same principle is involved in applying the doctrine of ratification by corporations to unauthor- ized acts of their officers or agents, such ratification being equivalent to antecedent authority. 8 Accordingly, if a person assuming to act as agent of a corporation, but without legal authority, or an agent in excess of his proper authority, make a contract, and the corporation knowingly receive and retain the benefit of it, this will be ratification of the contract, and render the corporation liable as a party to it ; provided, of course, such contract be within the scope of the corporate powers. 4 1 Taylor, Priv. Corp., § 311; Tracy v. Guthrie County Agl. Soo., 47 Iowa, 127; Crunis' Appeal, 66 Pa. St. 474; Beach on Priv. Corp., §196. 2 Cook v. Tullis, 18 WalL 332. 3 Taylor, Priv. Corp., § 211; First National Bank v. Fricke, 75 Mo. 178; Planters' Bank v. Sharp, 12 Miss. 75; Fleckner v. Bank of United States, 8 Wheat. 338, 363. * Bank of Kentucky v. Schuylkill Bank, 1 Par. Sel. Cas. (N. Y.) 180; Merchants' Bank v. Centra) Bank, 1 Ga. 418; Proprietors, eta § 78.] ADOPTION AND RATIFICATION OF CONTRACTS. 121 § 78. Ultra vires contracts of corporation cannot be ratified. — The foregoing rule must not be confounded, however, with the well-settled doctrine that a corpora- tion cannot ratify an act or contract beyond the scope of its chartered powers ; for it is a well-established principle in the law of corporations that an act or contract ultra vires a corporation is void, and cannot be made valid by v. Gordon, 1 Pick. (Mass.) 297; Randall v. Van Vechten, 19 John. (N. Y.) 60; Moss v. Rossie Lead Min. Co., 5 Hill (N. Y.), 137; Episcopal Soc. v. Episcopal Church, 1 Pick. (Mass.) 372; Haywood v. Pilgrim Soc, 21 Pick. (Mass.) 270; Ohio, etc. R. Co. v. Middleton, 20 111. 629; Corn Exch. Bank v. Cumberland Coal Co., 1 Bosw. (N. Y.) 436; Key- ser v. School Dist., 35 N. H. 477; McCullough v. Talladega Ins. Co., 46 Ala. 376; Durar v. Hudson County Ins. Co., 22 N. J. L. 171; Hooker v. Eagle Bank, 30 N. Y. 83; Whiting v. Union Trust Co., 65 N. Y. 576; Conant v. Canal Co., 29 Vt 263; Shaver v. Bear River Min. Co., 10 Cal. 396; Dispatch Line v. Bellamy Man. Co., 12 N. H. 205; Bank of Lyons v. Demon, Lalor, 398; Germantown Ins. Co. v. Dhein, 43 Wis. 420: State v. Smith, 48 Vt. 266; Stark Bank v. United States Pottery Co., 34 Vt. 144; Whitwell v. Warner, 20 Vt. 424; Aurora Agl. Soc. v. Paddock, 80 111. 263; Ottowa R. Co. v. Murray, 15 111. 336; Houghton v. Dodge, 5 Bosw. (N. Y.) 326; Farmers', etc. Bank v. Sher- man, 6 Bosw. (N. Y.) 181; Woodbridge v. Addison, 6 Vt. 204; Bank of Columbia v. Patterson's Adm'rs, 7 Cranch (U. S.), 299; Peterson v. New York, 17 N.Y. 449; Davidson v. Bridgeport, 8 Conn. 472; Church v. Sterling, 16 Conn. 389; Medomak Bank v. Curtis, 24 Me. 36; Emmet v. Reed, 8 N. Y. 312; Alexander v. Brown, 9 Hun (N. Y), 641; City Bank v. Baltimore, 7 Har. & J. (Md.) 104; Weeden v. Mad River R. Co., 14 Ohio, 563; Perry v. Waterproof Co., 37 Conn. 520; Union Gold f Min. Co. v. Rocky Mountain Nat. Bank, 1 Colo. 531; S. C, 2 Colo. 248; S. C, 96 U. S. 640; Rich v. State Nat. Bank, 7 Neb. 201; Peninsular Bank v. Hanmer, 14 Mich. 208; Humphrey v. Patrons' Merc. Ass'n, 50 Iowa, 607; Fishkill Sav. Inst. v. Bostwick, 19 Hun (N. Y), 354; International, etc' Co. v. United States, 13 Ct. of CI. 209; Delaware Canal Co. v. Pennsylvania Coal Co., 21 Pa. St. 131; Ridley v. Plymouth Grinding Co., 2 Exch. 711; Stuart v. London, etc. R. Co., 15 Beav. 513; Smith v. Hull Gas Co., 11 C. B. 897; Ex parte Scholbred, 28 Week. Rep. 339; Troup's Case, 29 Beav. 353; Edwards v. Grand June. R. Co., 1 Myl. & Cr. 650; Preston v. Railroad Co., 1 Sim. (N. S.) 586; S. C, 7 Eng. L & Eq. 124. 122 ADOPTION AND BATTFIOATION OF 00NTBACTS. [§ 78. any subsequent act of the corporation purporting to ratify the same, because there is no residuary power to confirm it. "What they could not make they cannot ratify. Nor can a void act or contract become valid, merely be- cause it remains unquestioned. A ratification is in law treated as equivalent to a previous authority, and it fol- lows that, as a general rule, a person or body of persons, or a corporation, not competent to authorize an act, can- not give it validity by ratifying it. 1 This rule is stated by a learned author thus : " An act which is in excess of the charter of a corporation involves an unauthorized ex- ercise of corporate power on the part of the company ; and this objection cannot be obviated by any subsequent ratification, either by the agents or by the shareholders of the corporation. So it is clear that, if an act per- formed by an agent on behalf of a corporation is prohib- ited by statute or by the charter of the company, or by some general rule of the common law, no ratification by either agents or the shareholders of the corporation can cure the illegality of the act. Ratification of an act has no greater effect than a previous grant of authority to do the act ; it merely obviates the objection that the princi- pal did not authorize the act to be done." 2 1 Tippecanoe Co. v. Lafayette, etc. R. Co., 50 Ind. 86, 112; Irvine v. Union Bank, 2 App. Cas. 366; Dimpfel v. Ohio By. Co., 110 U. S. 209; Green's Brice's Ultra Vires, ch. VI; Dillon, Munic. Corp., §§ 385, 386 (3d ed.); Christian University v. Jordon, 29 Mo. 68; Ang. & Ames, § 304; MoCullough v. Moss, 5 Denio (N. Y.), 567; Ashbury Ry. Co. v. Riche, 7 H. L. 653, 673; S. C. (below), 9 Exch. 224, 262; Bird v. Bird's Patent Co., 9 Ch. 358; National Trust Co. v. Miller, 33 N. J. Eq. 155; Thomas v. Railway Co., 101 U. S. 73; Oregon Ry. v. Oregonian Ry., 130 U. S. 22; Central Transp. Co. v. Pullman's Car Co., 139 U. S. 24. *Mor. Priv. Corp., § 619. In Ashbury Ry. Co. v. Riche, supra, the Lord Chancellor said: "Now, I am clearly of opinion that this contract was entirely, as I have said, beyond the objects of the memorandum of association. § 79.] ADOPTION AND RATIFICATION OF CONTRACTS. 123 § 79. Batification oy corporation of acts of promoters. The promoters, or individuals organizing a corporation, are not, of course, the corporation. The legal body, as has been shown, is distinct from the individuals compos- ing it. The statutes confer no authority upon the pro- moters of a corporation, as a general rule, to enter into preliminary contracts binding the corporation when it shall come into existence. Such contracts may, however, bind the individuals who make them. If ratified and adopted by the corporation, and they are within the cor- If so, it was thereby placed beyond the powers of the company to make the contract. If so, my lords, it is not a question whether the contract ever was ratified or was not ratified. If it was a con- tract void at its beginning, it was void because the company could not make the contract. If every shareholder of the company had said: ' That is the contract which we desire to make, to which we sanction the placing the seal of the company,' the case would not have stood in any different position from that in which it stands now. The shareholders would thereby, by unanimous consent, have attempted to do the very thing which, by the act of parliament, they were prohibited from doing. But, my lords, if the sharehold- ers of the company could not ab ante have authorized a contract of this kind to be made, how could they subsequently sanction the contract after it had, in point of fact, been made? I endeavored to follow, as accurately as I could, the very able argument of Mr. Ben- jamin at your lordships' bar, on this point; but it appeared to me that this was a difficulty with which he was entirely unable to grapple. He endeavored to contend that when the shareholders had found that something had been done by the directors which ought not to have been done they might be authorized to make the best they could of a difficulty into which they had thus been thrown, and therefore might be deemed to possess power to sanction the contract being proceeded with. My lords, I am unable to adopt that suggestion. It appears to me that it would be perfectly fatal to the whole scheme of legislation to which I have referred if you were to hold that, in the first place, directors might do that which even the whole company could not do, and that then, the sharehold- ers rinding out what had been done, could sanction, subsequently, what they could not antecedently have authorized." 124 ADOPTION AND RATIFICATION OF CONTRACTS.. [§ 7&. porate powers, and are not otherwise subject to objection, they may become the contracts of the corporation and enforceable as such. 1 - In respect of contracts of promot- ers, Judge Eedfield says : " The promoters are in no sense identical with the corporation, nor do they repre- sent it in any relation of agency, and their contracts could, of course, only bind the company so far as they should be subsequently adopted by it, as their successors." * Such a contract must derive its vitality from the meeting of minds when both parties are in existence ; until then, it can be nothing more than an offer by one party. 3 And iMunson v. Bailroad Co., 103 N. Y. 58; Eookford R. Co. v. Sage, 65111. 328; Safety Dep. Life Co. v. Smith, id. 309; Western Screw Co. v. Cousley, 72 111. 531 ; Franklin Ins. Co. v. Hart, 31 Md. 59; N. Y. R. Co. v. Ketchum, 27 Conn. 170; Marohand v. Loan Co., 26 La. Ann. 389; Frost v. Belmont, 6 Allen (Mass.), 152; White v. Manufacturing Co., 1 Pick. (Mass.) 215; Earl of Shrewsbury v. North Staf. Ry. Co., 1 Eq. 593; Bell's Gap Ry. Co. v. Christy, 79 Pa. St. 54; Frankfort Co. v. Churchill, 6 T. B. Mon. (Ky.) 427; Caledonian Ry. Co. v. Helens- burgh, 2 Macq. 391; Payne v. New South Wales Coal Co., 10 Ex. 283; Pennsylvania Match Co. v. Hapgood, 141 Mass. 145; Touche v. Ware- housing Co., 6 Ch. App. 671; Spiller v. Paris Rink Co.,7 Ch. Div. 368; Whitney v. Wyman, 101 U. S. 392; McDonough v. Bank, 34 Tex. 309; Morrison v. Gold Mountain Co., 52 Cal. 307. 2 1 Redf. on Rys., § 9. In Bell's Gap Railroad Co. v. Christy, supra, an action was brought against a railroad company to recover the value of services per- formed before the incorporation, in procuring the charter, making surveys, etc. It was held that the plaintiff could not recover in the absence of proof that a majority of the incorporators or promoters- of the corporation authorized the service. In Morrison v. Gold Mountain Co., supra, an agreement was made among parties owning a mine, and who expected to incorporate themselves but did not then do so, that a person was entitled to two thousand five hundred shares of the stock of the company. It was held not to be the agreement of the corporation; that the mere ac- ceptance of the benefit of a contract does not imply a promise on. the part of the company to adopt and perform it. 3 Pennsylvania Matoh Co. v. Hapgood, 141 Mass. 145. § 79.] ADOPTION AND RATIFICATION OF CONTRACTS. 125 a contract made by the promoters, to become binding on the corporation, should be adopted in the same way that its own contracts are made. Formal action by the board of directors is necessary in the former case only if it would be so in the latter. 1 As contracts of promoters are peculiarly adapted to companies formed under the acts of parliament and the Companies Act of England, the subject is not deemed of sufficient importance in this country to require further consideration here. i Batelle v. Northwestern Cement Co., 37 Minn. 89. CHAPTER TIL THE DOCTRINE APPLIED TO INCIDENTAL POWERS OF CORPORATIONS. § 80. Introductory. 81. Power to acquire real property. 82. Devises to corporations. 83. Jus disponendi in corporations. 84 Power to sell implies power to mortgage. 85. Power of bank to hold real estate. 86. Power to acquire by eminent domain. 87. Alienation by deed. 88. Conveyances by agent. 89. Acknowledgment to corporate deeds. 90. Affixing seal to deeds. 91. Assignment for benefit of creditors. 92. Power to act as trustee. 93. Trust must be within scope of corporate purposes. 94 Cannot be compelled to execute repugnant trust. 95. Power to take by bequest. 96. Power to borrow money. 97. Test to determine if transaction is borrowing. 98. Instances of implied power to borrow. 99. Power to loan money. 100. Power as to negotiable notes. 101. Power as indorsee. 102. Power of savings bank to make negotiable paper; 103. Power as to discount and purchase. 104. Liability on accommodation paper. 105. Power to pledge securities. § 80. Introductory. — In addition to the powers usually granted to a corporation by its charter or the laws under which it is organized and created, there are certain other powers, which a long line of adjudications have estab- lished, that are now generally regarded as incidental to § 81.] INCIDENTAL P0WEES OF OOBPOBATIONS. 127 those specially conferred; and it has usually been in the application of the doctrine of ultra vires to these inci- dental powers that so much conflict in judicial opinion has occurred. In the succeeding sections of this chapter will be set forth such powers as have been declared by the great weight of authority as incidental to those spe- cially enumerated. § 81. Power to acquire real property. — At common law, unless in a case where a corporation purchases and undertakes to hold real property for purposes wholly out- side and foreign to the objects of its creation, or unless restricted by its charter or by statute, a corporation generally had the legal capacity to take title in fee to real property. 1 And even under modern statutes, if the objects for which the corporation is formed cannot be accomplished without acquiring and holding title to real estate, then such power may be implied. 2 In modern times, however, and more especially in this country, the 11 Bl. Com. 478; 2 Kent, Com. 281; 1 Wash. Real Prop. (4th ed.) 75; Beach, Priv. Corp., § 377; Boone, Corp., § 40; Natoma, etc. Co. v. Clarkin, 14 Cal. 544; Hayward v. Davidson, 41 Ind. 212; Lathrop v. Commercial Bank, 8 Dana (Ky.), 114; Inhabitants of Sutton Parish v. Cole, 3 Pick. (Mass.) 232; Thompson v. Waters, 25 Mich. 214; Cal- loway M. Co. v. Clark, 32 Mo. 305; McCartee v. Orphan Asylum, 9 Cow. (N. Y.) 437; Champlain E. Co. v. Valentine, 19 Barb. (N. Y.> 484; Robie v. Sedgwick, 35 Barb. (N. Y.) 319; Reynolds v. Stark Co., 5 Ohio, 204; Leazure v. Hillegas, 7 Serg. & Rawle (Pa.), 313; The Banks v. Poitiaux, 3 Rand. (Va.) 136; Revanna Nav. Co. v. Dawson, 3 Grat. (Va.) 19; Page v. Heineberg, 40 Vt. 81; Auerbach v. Le Sueur Mill. Co., 28 Minn. 291; Ossipee, etc. Co. v. Canney, 54 N. H. 295; Ashville Division, etc. v. Aston, 92 N. C. 578; State v. Madison, 7 Wis. 688; Blanchard's Factory v. Warner, 1 Blatch. (U. S.) 258; Dry Dock Co. v. Hicks, 3 McL. 115. 2 Crawford v. Longstreet, 43 N. J. L. 326; State v. Mansfield, 23 N. J. L. 510; State v. Newark, 1 Dutch. (N. J.) 315; 2 Kent, Com. 282^ Blackburn v. Selma, etc. R. Co., 2 Flip. (U. S.) 525. 128 INCIDENTAL POWEES OF COEPOEATIONS. [§ 81. legislature generally prescribes some limits to the powers of corporations to purchase and hold real property, the charter and law under which it is organized and created being the source to which we must go to ascertain whether a corporation possesses such power. 1 But cor- porations created for a specific object have no power to take and hold real estate for purposes wholly foreign to that object. 2 So where the charter of a corporation pre- scribed that " the lands, tenements and hereditaments which it shall be lawful for the said corporation to hold shall be only such as shall be required for its accommo- dation in relation to the convenient transacting of its business, or such as shall have been bona fide mortgaged to it by way of security, or conveyed to it in satisfaction of debts previously contracted in the course of its deal- ings, or purchased at sales upon judgments which shall have been obtained for such debts," it was held that the corporation was prohibited from buying or selling or be- coming a speculator in real estate. 3 But it has been held in many cases that where a corporation has purchased or is holding more land than it is authorized to acquire or hold, it still has the right to hold it against all others ex- cept the state.* In JVatoma W. & M. Co. v. Clarjam, 14 i Russell v. Topping, 5 McL. (U. S.) 194; Perrine v. Canal Co., 9 How. (IT. S.) 172; Moor's Heirs v. Moor's Devisees, 4 Dana, 354; Lath- rop v. Commercial Bank, 8 Dana (N. Y.), 114; Chambers v. St. Louis, 29 Mo. 543; Revanna Nav. Co. v. Dawson, 3 Grat. (Va.) 19; Case v. Kelly, 133 IT. S. 21; Fritts v. Palmer. 132 IT. S. 293. inhabitants of Sutton Parish v. Cole, 3 Pick. (Mass.) 232. 3 Bank of Michigan v. Niles, 1 Doug. (Mich.) 401. 4 Natoma, etc. Co. v. Clarkin, 14 Cal. 543; Hough v. Cook County, etc. Co., 73 111. 23; Hay ward v. Davidson, 41 Ind. 212; Land v. Coff- man, 50 Mo. 243; Whitman M. Co. v. Baker, 3 Nev. 386; De Camp v. Dobbins, 29 N. J. Eq. 36; Bogardus v. Trinity Church, 4 Sand. Ch. (N. Y.) 633; Farmers' T. & T. Co. v. Curtis, 7 N. Y. 466; Mallett v. Simpson, 94 N. C. 37; Leazure v. Hillegas, 7 S. & R. (Pa.) 313; Baird § 81.J INCIDENTAL P0WEES OE COEPOEATIONS. 129 Cal. 552, Mr. Justice Field, in discussing this subject, said: " Whether or not the premises in controversy are neces- sary for these purposes it is not material to inquire; that is a matter between the government and the corporation, and is no concern of the defendants. It would lead to infinite inconvenience and embarrassments if, in the suits by corporations to recover the possession of their prop- erty, inquiries were permitted as to the necessity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity." And in Mallett v. Simpson, 94 H". 0. 37, Ashe, J., in de- livering the opinion of the court, used language to the same effect, namely : " The authorities go to the extent that even when the right to acquire real property is lim- ited by the charter, and the corporation transcends its power in that respect, and for that reason is incompetent to take title to real estate, a conveyance to it is not void, but only the sovereign (here the state) can object. It is valid until assailed in a direct proceeding instituted by the sovereign for that purpose." So in Southern Pacific R. Co. v. Orion, supra, it was held that where a cor- poration authorized to receive grants of land for the purpose of the corporation brings an action against a trespasser to recover possession of lands granted to it, such trespasser will not be heard to question the title of the corporation on the ground that it had no authority to take them ; that that was a question between the state and the corporation. And where a corporation is authorized t. Bank, If id. 411; ©oundie v. Water Co., 7 Pa. St. 233; Blunt v. Walker, 11 Wis. 334; Southern Pao. E. Co. v. Orton, 6 Saw. (C. C. U. S.) 157; Runyan v. Lessee, etc., 13 Pet. (U. S.) 122; Cornell v. Col- orado Springs, 100 XT. S. 55; Jones v. Habersham, 107 U. S. 174; Oil •Co. v. Railway Co., 33 Fed. Rep. 22; Alexander v. Tolleston Club, 110 111. 65. 9 130 INCIDENTAL POWEES OF COEPOEATIONS. [§ 81. to receive conveyances of and hold title to real estate, but is prohibited from so doing for any but specified pur- poses, the question as to the validity of the title to the real estate conveyed to it cannot be made to depend upon proof as to whether the land is held for such specified purpose or not. The title will vest in the corporation, and the question as to whether the corporation has ex- ceeded its powers can be raised only by the state or by a stockholder. 1 And corporations chartered in one state, and not forbidden by the laws of its creation, may ac- quire and hold lands in another state, unless prohibited from so doing either by direct enactments of the latter 1 Hough v. Cook County L. Co., 73 111. 23. In Case v. Kelly, supra, the court say: "A corporation, in order to be entitled to buy and sell, to receive and hold, the title to rear estate, must have some statutory authority of the state in which such lands lie, to enable it to do so, and the absence of such provis- ion in the law of its incorporation does not create any general stat- ute which authorizes any such right. The enumeration of the pur- poses for which the corporation could acquire title to real estate must necessarily be held exclusive of all other purposes." And in Fritts v. Palmer, 133 U. S. 293, Mr. Justice Miller, speak- ing of the general powers of corporations to acquire and transfer real estate, in his masterly dissenting opinion says: "It has been the recognized doctrine of this court for a great many years, per- haps a century, that the transfer of title to real estate, whether by inheritance, by purchase and sale, or by any other mode by which title to property is acquired, is rightfully governed by the laws of the state in which the land is situated. The policy of permitting, corporations to hold real estate has always been a restricted one. Corporate bodies, whether for public use or private purposes, have always been subjects of limitation on this right to hold real estate. It may be prohibited altogether. It may be allowed with distinct limitations as to amount either in quantity or in value. I can con- ceive of cases where corporations have been authorized to acquire a limited amount of real estate such as the legislature may conceive to be useful and necessary to the purpose for which they are organ- ized, or to take property for specific uses, in which the question as to whether they have exceeded that amount or perverted the use may be one for the state alone, and not of any private person." §§ 82, 83.]. INCIDENTAL POWERS OF OOEPOEATIONS. 131 state or by its public policy, to be deduced from settled adjudications of its courts. 1 § 82. Devises to corporations. — Generally, corporations may not take lands by devise unless specially authorized so to do, this manner of acquiring real estate being regu- lated by statute or by the provisions of its charter. In New York corporations have been held incapable of tak- ing lands by devise unless so authorized by statute or by charter, 8 whilst in Massachusetts 3 and Kentucky 4 no such limitations as to devises to corporations existed. And where the provisions in the charter of a corporation per- mitted it to acquire^ land " by direct purchase or other- wise," it was held to have the power to acquire by devise. 5 § 83. Jus disponendi in corporations. — The power to acquire real or personal property in a corporation as in an individual implies absolute jus disponendi, unless such power be restrained by statute- or by considerations of public policy. 6 It is a necessary incident to ownership, 1 American, etc. Union v. Yount, 101 IT. S. 352; Thompson v. Wat- ers, 25 Mich. 214; Whitman Min. Co. v. Baker, 3 Nev. 386; Luinbard v. Aldrich, 8 N. H. 31; State v. Boston, etc. R. Co., 25 Vt. 433; Props. Claremont Bridge v. Eoyce, 42 id. 730; Northern T. Co. v. Chicago, 7 Biss. (C. C.) 45; S. c, 99 IT. S. 635; Carroll v. East St. Louis, 67 111. 568; Santa Clara Academy v. Sullivan, 116 111. 375. 2 McCartee v. Orphan Asylum, 9 Cow. (N. Y.) 437; Downing v. Marshall, 23 N. Y. 366; White v. Howard, 46 N. Y. 144; Holmes v. Mead, 52 N. Y. 332. 3 Dickson v. United States, 125 Mass. 311. 4 Moor's Heirs v. Moor's Devisees, 4 Dana (N. Y.), 354 5 Downing v. Marshall, 23 N. Y. 366. 6 2 Kent, Com. 281; Burton's Appeal, 57 Pa. St. 213; Reichwald v. Commercial Hotel, 106 111. 439; Binney's Case, 2 Bland (Mo.), 97; Ar- desco Oil Co. v. N. A. Min. etc. Co., 66 Pa. St. 375, 382; State v. Col- lege, 38 Cal. 161; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543; Canal Co. v. Vallette, 21 How. (U. S.) 424; Partridge v. Badger, 25 Barb. 132 INCIDENTAL F0WEES OF COEFOKATIONS. [§ 83. and has the power without any express grant. A corpo- ration may therefore, in the absence of any such restraint, sell whatever it has the right to own. So it may sell all its corporate property for a corporate or lawful purpose. 1 Thus, where a corporation, organized for the purpose of creating a water-power, finds that it can no longer profit- ably use its privileges, and its waterTpower has been ex- tinguished by contract with the state, it may sell its lands and receive payment therefor in its own stock. 2 So, a corporation organized for the purpose of owning ditches for the conveyance and sale of water has power to sell and convey all its corporate property, provided the sale is made for corporate purposes, and strangers taking a conveyance are entitled to assume, as against the corpo- ration, that the sale was for a lawful purpose. 8 The fore- going rules apply more particularly to strictly private corporations, established solely for trading or manufact- uring purposes, and in the management of which neither the public nor the state has any direct concern. 4 (N. Y.) 146; Barry v. Merchants' Exchange, 1 Sandf. Ch. (N. Y.) 280; Burr v. Glass Co., 14 Barb. (N. Y.) 358; Dater v. Bank, 5 Watts & S. (Pa.) 323; Frazier v. Wilcox, 4 Rob. 517; United States Bank v. Huth, 4 B. Mon. (Ky.) 423; State v. Bank, 6 Gill & J. (Md.) 323; Pierce v. Emery, 32 N. H. 484; Reynolds v. Commissioners, 5 Ohio, 205; De Ruyter v. St. Peter's Oh., 3 N. Y. 238; Clark v. Titcomb, 42 Barb. (N. Y.) 122; Central Gold M. Co. v. Piatt, 3 Daly (N. Y), 263; Banks v. Poitiaux, 3 Rand. (Va.) 136. i Miners' Ditch Co. v. Zellerbach, 37 Cal. 543; Sargent v. Webster, 13 Met. (Mass.) 498; Treadwell v. Salisbury Mfg. Co., 7 Gray (Mass.), 393; Hodges v. Screw Co., 1 R. I. 322, 3 R. I. 9; Dupee v. Boston Water-power Co., 114 Mass. 37. 2 Dupee v. Boston Water-power Co., 114 Mass. 37. s Miners' Ditch Co. v. Zellerbach, 37 Cal. 543. 4 State v. College, 38 Cal. 166; Commonwealth v. Smith, 10 Allen (Mass.), 448; Webster v. Turner, 12 Hun (N. Y). 264; Hancock v. Holbrook, 4 Woods (U. S. C. C), 52; Sheldon Hat Co. v. Eickemeyer, etc. Co., 90 N. Y. 613; Dupee v. Boston Water-power Co., 114 Mass. 37; Buford v. Keokuk Packet Co., 3 Mo. App. 159. § 84.] INCIDENTAL POWERS OF COKPOEATIONS. 133 § 84. Power to sell and convey implies power to mort- gage. — Power in a corporation to alienate its real prop- erty absolutely, clearly carries with it the implied power to mortgage for corporate purposes. It may therefore, in the absence of any prohibition in its charter or the law of its organization, borrow money for the purpose of carrying out the legitimate objects of its incorporation, and mortgage its realty to secure the same. 1 And it has lately been held that a corporation, acting in good faith and without any purpose of defrauding its creditors, but with the sole object of continuing a business which prom- ises to be successful, may give a mortgage to directors who have lent their credit to it, in order to induce a con- tinuance of that credit, and to obtain renewals of matur- ing paper at a time when the corporation, although it may not be then in fact possessed of assets equal at cash prices to its indebtedness, is in fact a going concern, and is intending and expecting to continue in business. 2 And it has been held that a corporation, authorized by its charter to purchase, hold and convey such real estate as was requisite and necessary for the transaction of the business for which it was created, or such as had been mortgaged or conveyed to it for the security or payment of debts, due it, might mortgage such realty to secure a debt owing by it. 3 So an agricultural society may mort- gage its fair grounds to raise money to advance the ob- 1 Aurora Agl. Soc. v. Paddock, 80 111. 263; Thompson v. Lambert, 44 Iowa, 239; Beardstown, etc. R Co. v. Metcalf,4 Met. (Mass.) 199; Susquehanna Bridge Co. v. Insurance Co., 3 Md. 305; Richards v. Railroad Co., 44 N. H. 135; Jackson ex dem. People v. Brown, 5 Wend. (N. Y.) 590; Barry v. Merchants' Exch., 1 Sandf. Ch. (N. Y.) 280; Burt v. Rattle, 31 Ohio St. 116; Gordon v. Preston, 1 "Watts (Pa.), 385; Watts' Appeal, 78 Pa. St. 370; Leggett v. Banking Co., 1 Sax. Ch. (N. J.) 541; s. C, 23 Am. Dec. 728. ^Sanford Tool Co. v. Howe, Brown & Co., 157 U. S. 312. 3 Jackson ex dem. People v. Brown, 5 Wend, (N. Y.) 590. I"34 INCIDENTAL P0WEES OE COEPOEATIONS. [§ 85. jects of its creation. 1 And a corporation created for the purpose of building a public exchange building may mort- gage its realty to carry out that object. 2 §85. Power of lank to hold and sell real estate. — A bank is usually authorized by its charter to acquire, hold and sell real estate that may be necessary for its banking purposes, or conveyed to it in satisfaction of a debt con- tracted in the course of its dealings, or purchased by it at a sale under a mortgage held by the bank.' But holding, acquiring and selling to any greater extent or for any other purpose than is set forth in its charter is illegal.* So the power to convey real estate includes the power to mortgage it; and power to purchase includes power to sell. 6 1 Thompson v. Lambert, 45 Iowa, 239. 2 Barry v. Merchants' Exchange, 1 Sandf. Ch. (N. Y.) 280. 3 Thomaston Bank v. Stimpson, 21 Me. 195; Jackson v. Brown, 5 Wend. (N. Y.) 590. 4 Metropolitan Bank v. Godfrey, 23 111. 579; Bank of Michigan v. Niles, 1 Doug. (Mich.) 401; Pacific R. Co. v. Seeley, 45 Mo. 211; Chap- man v. Colby, 47 Mich. 51; Case v. Kelly, 133 U. S. 21; Eussell v. Topping, 5 McLean (U. S.), 194. 8 Jackson v. Brown, supra. In Russell v. Topping, supra, the lines are rather finely drawn. In that, case a bank under its charter had power to purchase, hold and convey real estate as follows: "First, such as shall be required for its immediate accommodation in the transaction of its business, or such as shall have been mortgaged to it in good faith by way of security for loans previously contracted for money due; or second, such as shall have been conveyed to it in satisfaction of debts previ- ously contracted in the course of its dealings; or third, such as shall have been purchased at sales upon judgments, decrees or mortgages obtained or made for such debts; and said bank shall not purchase, hold or convey real estate in any other case, or for any other pur- pose," etc. The facts are stated by the court as follows: It appears that a man by the name of Howard, being indebted to the plantiff, gave him a mortgage on some real property to secure the debt, § 86.] INCIDENTAL POWERS OF COEPOKATIONS. 135 § 86. Power to acquire real property % right of emi- nent domain. — Corporations of a jwasi-public character have been authorized to take private property for the pur- pose of making public highways, turnpike roads and canals, of erecting wharves and basins, of establishing ferries, of draining swamps and marshes, and of bringing water to cities and villages. 1 But statutes delegating the right of which included the tract in question. The plaintiff foreclosed his mortgage by a proceeding on the equity side of this court. The State Bank of Illinois was made a party defendant, and filed an answer to the bill, alleging that Howard was largely indebted to the bank, for which indebtedness a mortgage had been given by Howard, but subsequent to that of the plaintiff, and which included several parcels of land conveyed by the plaintiff's prior mortgage, but not the lot in controversy. At this time Howard was insolvent, and the bank asked that the lands not included in this mortgage should first be sold to pay the plaintiff's debt, and that the lands included in the mortgage of the bank (and which were also in the plaintiff's mortgage) should be sold only in the event of the other lands not being sufficient to pay the plaintiff's debt. The court decreed ac- cordingly, and ordered that, unless the plaintiff's debt be paid within twenty days, the land should be sold by a commission. It was sold in pursuance of the decree. At the sale the bank purchased the tract in controversy, and a deed was made to the bank by the com- missioners. The defendants claim through the bank. The plaint- iff received the purchase money paid by the bank. Howard being liable to the plaintiff for other indebtedness, suit was brought against him by the plaintiff, judgment recovered, execution issued, and the tract in question levied on and sold. At that sale the plaintiff was the purchaser, and he now holds a deed for the premises. Both parties claiming through Howard, his title is not questioned. After a thorough examination of the subject it was held by the court that such purchase by the bank was ultra vires; that the receipt of the purchase price of such property from the bank did not estop the persons receiving it from disputing the power of the bank to pur- chase the property, and that its grantee in possession of such prop- erty could be ejected. i Beekman v. Saratoga R. Co., 3 Paige (N. Y), 44; Johnson v. Utica Water- works, 67 Barb. (N. Y.) 415; Inhabitants of Way land v. Com- missioners, 4 Gray (Mass.), 500; In re Mt. Washington R. Co., 35 136 INCIDENTAL P0WEES OF COEPOEATIONS. [§ 87. eminent domain to corporations are not to be extended by implication and must be strictly complied with. 1 The real estate acquired by a public corporation in the exer- cise of a delegated right of eminent domain and necessary for uses in which the public is concerned cannot be sold under execution apart from the franchise and its inci- dents so as to give the purchaser a title to the property divested of all the duties and obligations assumed by the company. 2 § 87. Alienation T>y deed. — The right of alienation is, as we have seen, 3 an incident of ownership, and belongs to a corporation as well as to an individual, when no re- straint is imposed in the charter. 4 As a general rule, deeds- of conveyance by a corporation must be executed in the corporate name and under the corporate seal. 5 It is also, a general principle that a conveyance of property by a corporation may be executed like a conveyance by an in- dividual through any agent having authority to represent the company for that purpose. 6 N. H. 134; Hildreth v. Lowell, 11 Gray (Mass.), 345; Reeves v. Wood Co., 8 Ohio St. 333; Barrington v. Neuse River, 69 N. C. 165; Curry v. Mt. Sterling, 15 111. 320; East St. Louis v. St. John, 47 111. 463; Pat- terson v. Boom Co., 3 Dill. (U. S.) 465; Re Corporation of Hadders- fleld, 10 Ch. App. 92. i Trumpler v. Bernerly, 39 Cal. 490; N. Y. etc. R. Co. v. Kip, 46. N. Y. 546; Iron R. R. Co. v. Ironton, 19 Ohio St. 299; People v.. Brighton, 10 Mich. 57; Leslie v. St. Louis, 47 Mo. 474. 2 Gooch v. McGee, 83 N. C. 59. » §83. 4 Burton's Appeal, 57 Pa. St. 213; Dana v. Bank, 5 W. & S. (Pa.> 243; Walker v. Vincent, 19 Pa. St. 369. 5 Boone, Corp., § 54; Hatch v. Barr, 1 Ohio, 390; Miners' Ditch Co. v. Zellerbach, 37 Cal. 543; Hutchins v. Byrnes, 9 Gray (Mass.), 367; Flint v. Clinton Co., 12 N. H. 430; Tenney v. E. Warren L. Co., 4a id. 343. 6 Musser v. Johnson, 42 Mo. 74; Morris v. Kiel, 20 Minn. 531; Nason. §§ 88, 89.] INCIDENTAL POWEKS OF CORPORATIONS. 137 § 88. Conveyance of corporate lands oy agent. — A cor- poration cannot appoint an agent to convey lands except by vote of its directors or other managing board, in whom the power to sell is reposed by charter or by the general laws; and without legal proof of such corporate act a deed purporting to be executed in its name by an agent is not evidence of title, though it may operate as color of title. 1 If the corporation be held to have ratified the acts of one assuming to act as its agent in selling and con- veying lands, by its knowledge of the fact that he was so acting, such a ratification would only operate as an equitable estoppel, of which courts of law cannot take cognizance in an action involving the legal title. 2 The authority of the agent need not be under seal. 3 § 89. Acknowledgment of corporate deeds. — The certifi- cate to the deed of a corporation should state the minis- terial position of the officer who affixes the corporate seal, the authority under which he acts, that he knows the corporate seal, and that the same is affixed to the conveyance by the order of the board of directors or other trustees of the corporation, and that he subscribes his name thereto as a witness to the execution thereof.* v. King Mountain M. Co., 90 N. C. 417; Hutchins v. Byrnes, 9 Gray (Mass.), 367; Blaokshire v. Homestead Co., 39 Iowa, 624; Hamilton v. McLaughlin, 13 N. E. Eep. (Mass., 1887) 434; Haven v. Adams, 4 Allen (Mass.), 80. 1 Standifer v. Swann, 78 Ala. 88; Tenney v. Lumber Co., 43 N. H. 343; Burr v. McDonald, 3 Grat. (Va.) 215; Hopkins v. Gallatin Turn- pike Co., 4 Humph. (Tenn.) 403. 2 Standifer v. Swann, 78 Ala. 80. » Hopkins v. Gallatin Turnpike Co., 4 Humph. (Tenn.) 403, 4 Am. & Eng. Ency. Law, 240; Beckwith v. Windsor Mfg. Co., 14 Conn. 594. * 4 Am. & Eng. Ency. Law, 242; Lovett v. Sawmill Ass'n, 6 Paige (N. Y.), 54. 138 INCIDENTAL POWERS OF CORPORATIONS. [§§ 90, 91. If no particular mode of acknowledgment of deeds of corporations is directed by statute, and a deed is ac- knowledged by the officer who affixes the seal thereto, it is a sufficient compliance with general laws requiring a deed to be acknowledged by the " grantor." 1 § 90. Affixing corporate seal to deeds. — The corporate name should be used and the corporate seal must be af- fixed, though a seal adopted for the occasion has been permitted. 2 A deed of trust executed by officers of a corporation in their own names by mistake, but intended as the deed of the corporation, was held capable of being reformed iu equity. 3 Where the president or other offi- cer of the corporation executes a deed in his own name and under his own seal, it is invalid, because not the deed of the company. 4 The deed of the corporation can be proved only by proving that the seal affixed is the seal of the corporation, or that it was affixed as the corporate seal by an officer of the corporation or other person thereto duly authorized. 5 § 91. Assignment of property for oenefit of creditors. — Another mode of alienation by a corporation of its prop- erty is by assignment for benefit of creditors ; and, unless there be some provision in the statute under which the in- corporation takes place prohibiting it, a corporation may make an assignment of its property for the benefit of creditors. 6 So an insolvent corporation, it has been held, i Boone on Corp., § 54; Kelly v. Calhoun, 95 U. S. 710. 2 Hutohins v. Byrnes, 9 Gray (Mass.), 867. 3 West v. Madison Co. Ag. Board, 82 111. 205. 4 Wheelock v. Moulton, 15 Vt. 519; Isham v. Bennington Iron Co., 19 Vt. 230; Hatch v. Barr, 1 Ohio, 390. « Osborne v. Tunis, 25 N. J. L. 633. 6 Lamb v. Cecil, 25 W. Va. 288; Planters' Bank v. "Whittle, 78 Va» 737; Whitwell v. Warner, 20 Vt. 425; Dabney v. Bank, 3 S. C. 124; § 92.] INCIDENTAL POWERS OF CORPORATIONS. 139 may sell and transfer its property, and may prefer its creditors, unless prohibited by law. 1 But corporations and their officers may not divert the corporate property from the payment of debts. 2 An assignment which pur- ports on its face to be the contract of the company, and is signed by the president for the company, is the com- pany's contract. 3 And it has been held that shares of stock of a corporation owned by it may be assigned to a creditor in satisfaction of a debt, though the creditor may have been a trustee, and took part in the proceedings au- thorizing the assignment, if the proceedings were after- ward ratified by the corporation. 4 § 92. Power to act as trustee. — It is now well estab- lished, and may be laid down as a general rule, that a corporation with legal capacity to hold property may take and hold it in trust, in the same manner and to the same extent as a private individual may do. 6 As the court Ardesco Oil Co. v. North Am. Co., 66 Pa. St. 375; Coates v. Donnell, 94 N. Y. 168; Arthur v. Bank, 17 Miss. 394; Pierce v. Emery, 32 N. H. 484; Lionberger v. Broadway Bank, 10 Mo. App. 499; Shockley v. Fisher, 75 Mo. 498; Covert v. Rogers, 38 Mich. 363; Merrick v. Bank, 8 Gill (Mo.), 59; Union Bank v. Elliott, 6 Gill & J. (Md.) 363; Sargent v. Webster, 13 Met. (Mass.) 497; Reich wald v. Hotel Co., 106 111. 439; De Camp v. Alward, 52 Ind. 468; Savings Bank v. Bates, 8 Conn. 23; Ringo v. Biscoe, 13 Ark. 563; Canal Co. v. Vallette, 21 How. (U. S.) 414 i Bergen v. Fishing Co., 42 N. J. Eq. 397, 41 N. J. Eq. 238; Wilkin- son v. Bauerle, 41 N. J. Eq. 635. 2 Wilkinson v. Bauerle, supra. » Gottfried v. Miller, 104 U. S. 521. *Reed v. Hoyt, 51 N. Y. Sup. Ct. 121. svidal v. Girard, 2 How. (U. S.) 127; First Cong. Soc. v. Atwater, 23 Conn. 34; Phillips Acad. v. King, 12 Mass. 546; First Parish, etc. v. Cole, 3 Pick. (Mass.) 232; Wade v. American, etc. Soc, 7 Sm. & M. (Miss.) 663; Robertson v. Bullions, 11 N. Y. 243; Farmers,' etc. Co. v. Insurance Co., 51 Barb. (N. Y.) 33; Lincoln Sav. Bank v. Ewing, 12 Lea (Tenn.), 518; Utontpelier v. East Montpelier, 29 Vt. 12. 140 INCIDENTAL POWEES OF COEPOEATIONS. [§§ 93, 94. say in Vidal v. Girard, supra: "Although it was in early times held that a corporation could not take and hold real or personal estate in trust, upon the ground that there was a defect of one of the requisites to create a good trustee, namely, the want of confidence in the per- son, yet that doctrine has long since been exploded as too artificial; and it is now held that where a corporation has a legal capacity to take real and personal estate, it may take and hold it upon trust in the same manner and to the same extent as a private individual may do." § 93. Trust must be within scope of corporate purposes. But a corporation cannot be a trustee unless the objects and purposes which the trust is intended to accomplish are within the general scope of the purposes of the cor- poration, and the trust relates to matters which will pro- mote and aid its general purposes. 1 So a corporation may hold and execute" a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have authority itself to establish or to spend its corporate funds for. 2 But where property is de- vised to a corporation, partly for its own use and partly in trust for others, the power to take the property for its own use carries with it the power to execute the trust in favor of others. 3 § 94. Cannot be compelled to execute repugnant trust. — If the trust be repugnant or inconsistent with the proper i Trustees v. Peaslee, 15 N. H. 317; Mason v. Methodist Episcopal Church, 27 N. J. Eq, 47. 2 Jones v. Habersham, 107 U. S. 174; Vidal v. Girard, 3 How. (U. S.) 27; McDonough v. Murdock, 15 How. 367; Perin v, Carey, 24 How. 465. 8 In re Howe, 1 Paige (N. Y.), 214; Wetmore v. Parker, 52 N. Y. 450. § 95.] INCIDENTAL POWEES OF COEPOEATTONS. 141 purposes for which the corporation was created, it cannot be compelled to execute the trust; 1 but iu proper cases, the performance of the trusts confided to corporations may be enforced.? And a corporation which expressly accepts a donation upon the trusts and for the purposes for which it was given cannot afterwards renounce it, but may be compelled to apply it to those purposes. 3 § 95. Power to take by bequest. — In the absence of any statutory restriction, corporations may take bequests of personal property the same as individuals. 4 So it has been held that a bequest to a corporation of its own stock is valid. 5 The following bequests have been sustained: of money to a church to be laid out in bread, annually, for ten years for the poor of the congregation, and of another sum for the education of students for the min- istry ; 6 a bequest to a city of money to purchase a lot and erect thereon a hospital for the indigent blind and lame ; 7 of money for the relief of such indigent residents as the town trustees should select ; 8 of money to a town to buy land and erect a town hall thereon. 9 1 Vidal v. Girard, supra. 2 Chambers v. Baptist Soc, 1 B. Mon. (Ky.) 215; Hadden v. Chora, 8 id. 70; Van Houten v. Dutch Church, 17 N. J. Eq. 126; Congrega- tional Church v. Trustees, 19 Pick. (Mass.) 492; University v. Yarrow, 23 Beas. (N. J.) 159; Thornton v. Howe, 31 Beas. (N. J.) 14; Shore v. Wilson, 9 CL & F. 355. 8 Amer. Acad. v. Howard Co., 12 Gray (Mass;), 582; Drury v. In- habitants, 10 Allen (Mass.), 169. * Boone, Corp., § 52; McCartee v. Orphan Asylum, 9 Cow. (N. Y> 437; Trustees v. King, 12 Mass. 546; Dutch Church v. Brandow, 52 Barb. (N. Y.) 228; New York Inst. v. Howe, 10 N. Y. 84. 5 Revanna Nav. Co. v. Dawson, 3 Grat. (Va.) 19. e Whitman v. Lex, 17 S. & R. (Pa.) 88. 'Mayor v. Elliott, 3 Rawle (Pa.), 170. BShotwell v. Mott, 2 Sand. Ch. (N. Y.) 46. 9Coggeshell v. Pelton, 7 John. Ch. (N. Y.) 292. 142 INCIDENTAL POWERS OF CORPORATIONS. [§ 96. § 96. Power to borrow money.— At the present time it seems to be generally conceded that private corporations organized for the purpose of pecuniary profit have, un- less specially restricted in this particular, the implied power to borrow money. 1 This power would seem nec- i Memphis, etc. Ry. Co. v. Dow, 120 U. S. 287; Mahoney Min. Co. v. Anglo-Cal. Bank, 104 U. S. 192; Gorrell v. Life Ins. Co., 63 Fed. Rep. 371; Chicago, etc. R. Co. v. Howard, 7 Wall. (U. S.) 392; Canal Co. v. Vallette, 21 How. 414; Partridge v. Badger, 25 Barb. (N. Y.) 14G; Barry v. Merchants' Exchange, 1 Sandf. Ch. (N. Y.) 280; Farnum v. Blackstone Canal, 1 Sumn. (U. S.) 46; Lucas v. Pitney, 27 N. J. L. 221; Munn v. The Commission, 15 John. (N. Y.) 44; Mott v. Hicks, 1 Cow. (N. Y.) 513; Kelly v. Mayor, etc.. 4 Hill (N. Y), 263; Hacketts- town v. Swackhamer, 8 Vroom (N. J.), 191; Beers v. Phoenix Glass Co., 14 Barb. (N. Y) 358; Clark v. Titcomb, 42 Barb. (N. Y.) 122; Commissioners v. Railway, 77 N. C. 289: Tucker v. City of Raleigh, 75 N. C. 267; Barnes v. Ontario Bank, 19 N. Y. 152; Smith v. Law, 21 N. Y 296; Nelson v. Eaton, 26 N. Y. 410; Bradley v. Ballard, 55 111. 413; Mobile, etc. Ry. v. Talman, 15 Ala. 474; Moss v. Academy, 7 Heisk. (Tenn.) 283; Oxford Ins. Co. v. Spradley, 46 Ala. 98; Alabama, etc. Co. v. Central Association, 54 Ala. 73; Bank v. Chillicothe, 7 Ohio, 415; Ridgway v. Bank, 12 S. & R. (Pa.) 256; Magee v. Moke- lumne, etc. Co., 5 Cal. 258; Hamilton v. New Castle Ry., 9 Ind. 359; Rockwell v. Elkhorn Bank, 13 Wis. 653; Fay v. Noble, 12 Cush. (Mass.) 188; Commercial Bank v. Newport Mfg. Co., 1 B. Mon. (Ky.) 13; Holbrook v. Bassett, 5 Bosw. (N. Y.) 147; Furniss v. Gilchrist, 1 Sandf. Sup. Ct. (N. Y.) 53; Forbes v. Marshall, L. R. 11 Ex. 166; Re International Ins. Co., 10 Eq. 312; Australian, etc. Co. v. Mounsey, 4 K. & J. 733; In re German M. Co., 4 De G., M. & G. 19;'Taylor v. Agl. Ass'n, 68 Ala. 229; Savanna, etc. R. Co. v. Lancaster, 62 Ala. 555; Smith v. Eureka F. Mills, 6 Cal. 1; Union Min. Co. v. Bank, 2 Colo. 248; Ward v. Johnson, 95 111. 215; Smead v. Indianapolis, etc. R. Co, 11 Ind. 104; Thompson v. Lambert, 44 Iowa, 239; Booth v. Robinson, 55 Md. 419; England v. Dearborn, 141 Mass. 590; Donnell v. Lewis Co. Bank, 80 Mo. 165; Connecticut R. Sav. Bank v. Fiske, 60 N. H. 363; Kent v. Quicksilver M. Co., 78 N. Y. 159; Curtis v. Leavitt, 15 N. Y. 9; Larwell v. Hanover Sav. Soc, 40 Ohio St. 274; Union Bank v. Jacobs, 6 Humph. (Tenn.) 515; Burr v. McDonald, 3 Grat. (Va.) 215; Gibbs' Case, L. R. 10 Eq. 312; Bank of Australasia v. Breilat, 6 Moore, P. C. 152; 4 Am. & Eng. Enc. Law, 222. In Hackettstown v. Swackhamer, supra, the court say: "This § 96.] INCIDENTAL POWEES OF OOEPOEATIONS. 143 essarily incident to every corporation whose business in- volved the expenditure of large sums of money, and often upon sudden and unforeseen contingencies. Bat when there is an express prohibition against borrowing, it must be obeyed, and in a case of a company or society consti- tuted for special purposes, no borrowing can be permitted without express authority, unless it be properly incident to the course and conduct of the business for its proper purposes. 1 result is the appropriate product of the principle that corpo- rate powers which are the necessary accompaniments of powers conferred will be implied. In these instances the ability to borrow money is so essential that without it the business authorized could not be conducted with reasonable efficiency; and, as it cannot be supposed that it was the legislative intent to leave the company in so imperfect a condition, the inference is properly drawn that the power to raise money in this mode is inherent in the very constitu- tion of such corporate bodies. Such a deduction is simply, in effect, a conclusion that the law-maker designed to authorize the use of the means fitted to accomplish the purpose in view. It has been often said that the means which can thus be raised up by implica- tion must be necessary to the successful prosecution of the enter- prise, and that the circumstance that they are convenient will not legalize their introduction. But the necessity here spoken of does not denote absolute indispensableness, but that the power in ques- tion is so essential that its non-existence would render the privileges granted practically inoperative or incomplete. It is, consequently, obvious that a presumption resting on such a basis as this must spring up in favor of almost the entire mass of commercial and manufacturing corporations, for, without the franchise to effect loans, the chartered business could be but imperfectly transacted. And yet, even in such instances, the usual inference that such an implied power exists may be repelled by the language of the par- ticular charter or the peculiar circumstances of the case. In a word, the rule of law in question is nothing but the discovery, by the courts, of the legislative intent, such intent having been ascer- tained by a construction of charters, as applied to the subject-mat- ter." iBlackburne Bldg. Soc. v. Cunliffe, Brooks & Co., 29 Ch. Div. 902; Record & Q. R. Co., 4 Ch. Div. 748; Davis' Case, L. R 12 Eq. 516. 144: INCIDENTAL POWERS OF COEPOEATIONS. [§§ 97, 98. § 97. Test to determine if transaction is borrowing. — In Blackhurne Building Society v. Cunliffe, Brooks & Co., supra, the test as to whether a given transaction was a borrowing or not was said to be this: "Has the transac- tion really added to the liabilities of the company? If the amount of the company's liabilities remain in sub- stance unchanged, but there is, merely for the convenience of payment, a change of the creditor, there is no sub- stantial borrowing in the result, so far as relates to the position of the company. Eegarded in that light it is ■consistent with the general principles of equity that those who pay legitimate demands, which they are bound in some way or other to meet, and have had the benefit of other people's money advanced to them for that purpose, shall not retain that benefit so as, in substance, to make those other people pay their debts. I take that to be a prin- ciple sufficiently sound in equity; and if the result is that by the transaction, which assumes the shape of an advance or loan, nothing "is really added to the liabilities of the company, there has been no real transgression of the prin- ciple on which they are prohibited from borrowing." § 98. Instances as to implied power to 'borrow. — Banks have implied power to borrow money, when necessary in the prosecution of their business, and may issue the usual evidences of debt therefor. 1 A railroad company, under an authority to borrow money, has no right to raise money by the issue of irredeemable bonds entitling the holder merely to a share of the earnings after the payment of a certain dividend to the stockholders. 2 But a benefit society has no power to borrow money unless 1 Curtis v. Leavitt, 15 N. Y. 9; Barnes v, Ontario Bank, 19 N. Y. 153; Bank of Australasia v. Breilat, 6 Moore's P. C. 152, 194; Magee v. Mokelumne, eto. Co., 5 Cal. 258. 2 Taylor v. Philadelphia, eto. R. Co., 7 Fed. Rep. 386. ■§ 98.] _ INCIDENTAL POWERS OF CORPORATIONS. 145 its rules specifically authorize it to do so. The directors of a benefit building society, the rules of which gave no power to borrow money, borrowed a sum of money for the purpose of advancing it to their members on the se- curity of their shares. The lender of the money after- wards presented a petition for an order to wind up the company. It was held by the court that the transaction was ultra vires and that the petitioner had no legal or equitable debt against the company, and the petition was dismissed. 1 Where a mining company, among others, had the power to " enter into any obligation or contract essential to the transaction of its ordinary affairs, or for the purposes for which it was created," it was held that the board had authority not only to designate the bank- ing institution in which the money of the company should be deposited, but to prescribe the mode in which, and the officers by whom, it should be withdrawn, from time to time, for the use of the company ; that it was equally clear that the board had, as incident to the general pow- ers conferred by law upon the company, power to bor- row money for the purposes of the corporation, and to invest certain officers with authority to negotiate loans, to execute notes, and to sign checks against its bank ac- count. 2 So a corporation created for the purpose of con- structing a road has the power to borrow money as one of the implied means necessary to carry into effect the specified powers; and this is so though the charter di- rects that the funds shall be raised by subscription. 3 Though there be no express power given to a corpora- tion in its charter to borrow money on mortgage, but lEx parte Williamson, L. R 5 Ch. 309; Laing v. Reed, L. R. 5 Ch. 4. 2 Mining Co. v. Anglo-California Bank, 104 U. S. 192. ' Union Bank v. Jacobs, 6 Humph. (Tenn.) 515. 10 146 INCIDENTAL POWEKS OE CORPORATIONS. [§ 99. power is conferred on the directors to make all necessary contracts, and to sell or otherwise dispose of any portion of its property, whenever in their judgment it shall be found to the interest of the company, the exercise of the power to borrow, and to secure the loan by mortgage from the company, has been held valid. 1 So the raising money by debentures in the case of a trading company simply established for the conveyance of passengers and luggage by omnibuses was held within the powers of the company, although there was no express authority con- ferred either by the memorandum or articles of associa- tion for borrowing. 3 And a shipping company without any express powers in the memorandum or articles of association has power to borrow money for the purposes of the company. 3 § 99. Power to loan money. — A corporation has no power to loan money unless there is a special clause to that effect in its charter. The rule is declared to be that if the means employed are necessarily adapted to the ends for which the corporation was created, they come within the implied or incidental powers, though they may not be specifically designated by the act of incorporation. 4 So where a corporation had no express grant of power to lend money, no such power could be implied from the declared purposes and objects for which the charter was granted; on the contrary, such power was held to be ex- cluded by the declaration that the corporation was not created for pecuniary profit. 8 So, also, it has been held 1 Booth v. Robinson, 55 Md. 419. 2 Byron v. Metropolitan Co., 3 De G. & J. 123. 3 Australian Steam Clipper Co. v. Mounsey, 4 K. & J. 733. 4 Madison Plank Road Co. v. Watertown R. Co., 5 Wis. 173; Cham- bers v. Falkner, 65 Ala. 448; Workingmen's Banking Co. v. Routen- berg, 103 I1L 460; S. C, 43 Am. Rep. 26. 5 Chambers v. Falkner, supra. § 100.] INCIDENTAL POWERS OE COEPORATIONS. 147 that where a director, while indebted to his bank for an amount greater than seventy-five per cent, of the stock held by him, obtained a loan for a farther amount, giving his note therefor, guarantied by A., when the charter of the bank prohibited its lending to a director more than seventy-five per cent, of the amount of his stock, the note was void, and could be enforced neither against the di- rector nor against the guarantor. 1 § 100. Powers as to negotiable instruments. — It is now the well-established rule that corporations authorized gen- erally to engage in a particular business have, as an inci- dent to such authority, the power to contract debts in the legitimate transactions of such business, unless they are restrained by their charters from so doing. 2 It is likewise an equally acknowledged rule, that the right to contract debts carries with it the power to give nego- tiable notes or bills in payment or security for such debts, unless the corporations are in like manner prohibited. It may therefore be laid down as a general rule, that a corporation not prohibited by law from so doing, and without any express power in its charter for that pur- pose, may make a negotiable promissory note, payable either at a future day or on demand, when such note is given for any of the legitimate purposes for which the company was incorporated. 3 And it has been repeatedly 1 Workingmen's Banking Co. v. Eoutenberg, supra. 2 See cases cited to § 96. « Moss v. Averell, 10 N. Y. 449; Rockwell v. Elkhorn Bank, 13 "Wis. 653; Barker v. Mechanics' Ins. Co., 3 Wend. (N. Y.) 94; Moss v. Oak- ley, 3 Hill (N. Y.), 265; Safford v. Wyckoff, 4 Hill (N. Y), 442; White- water Valley Co. v. Vallette, 21 How. (N. Y.) 414; Partridge v. Badger, 25 Barb. (N. Y.) 146; Barry v. Merchants' Exchange, 1 Sandf. Ch. (N. Y.) 280; Burr v. Glass Co., 14 Barb. (N. Y.) 358; United States. Bank v. Hoth, 4 B. Mon. (Ky.) 423; State v. Bank of Maryland, 6 G. & J. (Md.) 205; Pierce v. Emery, 32 N. H. 484; Conn. Mut. Ins. Co. v. 148 INCIDENTAL POWEES OF COBPOBATIONS. [§ 100. held that a law forbidding certain corporations from issu- ing commercial paper as a circulating medium, or from dealing in commercial paper, will not be construed as prohibiting such corporations from issuing and receiving such commercial paper in the course of their ordinary business. 1 Cleveland R. Co., 41 Barb. (N. Y) 9; Monument Nat. Bank v. Globe Works, 101 Mass. 57; Fay v. Noble, 12 Cush. (Mass.) 1; Narragansett Bank v. Silk Co., 3 Met. (Mass.) 282; Smith v. Flour Co., 6 Cal. 1; "Union Bank v. Jacobs, 6 Humph. (Tenn.) 515; Richmond, etc. B. Co. v. Snead, 19 Grat. (Va.) 354; Oxford Iron Co. v. Spradley, 46 Ala. 98; Caine v. Brigham, 39 Me. 35; Lucas v. Pitney, 27 N. J. L. 221; Clarke v. School District, 3 B. I. 199; Ward v. Johnson, 95 111. 215; Olcott v. Tioga R. Co., 40 Barb. (N. Y.) 179; s. 0., 27 N. Y. 546; Clark v. Farm- ers' Mfg. Co., 15 Wend. (N. Y.) 256; Mead v. Keeler, 24 Barb. (N. Y.) 20; Mechanics' Ass'n v. Lead Co., 35 N. Y. 505; Munn v. Commission Co., 15 Johns. (N. Y.) 44; Auerbach v. Mill Co., 28 Minn. 291; Ham. ilton v. Railroad Co., 9 Ind. 359; McMasters v. Reed, 1 Grant Cas. (Pa.) 36; Hardy v. Merriweather, 14 Ind. 203; Buckley v. Briggs, 30 Mo. 452; Commercial Bank v. Newport Mfg. Co., 1 B. Mon. (Ky.) 13; Ridg- way v. Farmers' Bank, 12 S. & R. (Pa.) 256; Butts v. Cuthberson, 6 Ga. 166; Richards v. Merrimac, etc. R. Co., 44 N. H. 127; Harvey v. Chase, 38 N. H. 278; Montague v. School District, 34 N. J. L. 218; Curtis v. Leavitt, 15 N. Y. 9; McCullough v. Moss, 5 Denio (N. Y.), 567; Donnelly v. Church, 26 La. Ann. 738; Brode v. Firemen's Ins. Co., 8 Rob. (La.) 244; Magee v. Mokelumne, etc. Co., 5 pal. 258; Ketchum v. Buffalo, 14 N. Y. 356; Savage v. Ball, 17 N. J. Eq. 142; Milliard v. St. Francis, etc. Academy, 8 111. App. 341 ; Hascall v. Life Ass'n, 5 Hun (N. Y), 151; Louisville, etc. R. Co. v. Caldwell, 98 Ind. 245; Talladega Ins. Co. v. Peacock, 67 Ala. 253; Sullivan v. Murphy, 23 Minn. 6; Attorney-General v. Insurance Co., 9 Paige (N. Y), 470; Mott v. Hicks, 1 Cow. (N. Y.) 513; Kelley v. Brooklyn, 4 Hill (N. Y), .263; Police Jury v. Britton, 15 Wall. (U. S.) 566; Watts' Appeal, 78 Pa. St. 370; Comm. v. Pittsburg, 41 Pa. St. 278. 1 Blair v. Insurance Co., 10 Mo. 561; Buckley v. Briggs, 30 Mo. 452; Western Cottage Co. v. Reddish, 51 Iowa, 55; Smith v. Eureka Flour Mills, 6 Cal. 1 ; Attorney-General v. Insurance Co., 9 Paige (N. Y), 470; Partridge v. Badger, 25 Barb. (N. Y.) 146; White's Bank v. To- ledo Ins. Co., 12 Ohio St. 601; Mumford v. Insurance Co., 4 N. Y. 463; Potter v. Bank, 28 N. Y. 641. §§ 101-103.] INCIDENTAL POWEKS OF OOBPOBATIONS. 149 § 101. Power of corporation as indorsee. — "Whenever a corporation exceeds its powers in taking commercial paper as payee or indorsee, the parties liable on the paper cannot take advantage of that fact as a defense to the action on the paper by the corporation ; for, having made the paper payable to the corporation, and received its funds as a consideration therefor, the maker, drawer, ac- ceptor or indorser, as the case might be, is estopped from denying the capacity of the corporation to take the paper. 1 § 102. Power of savings lank to make negotiable paper. A savings bank incorporated by special charter has the implied power, inherent in corporations created for busi- ness purposes, of borrowing money required in the course of its business, and of making negotiable paper or a pledge of its securities as a means of borrowing ; and a purchaser of such paper before maturity from a third person, in whose hands it is apparently as business paper, has a right to act on the assumption that it was made for a purpose which gives validity to the paper and to the pledge of securities therewith. 2 § 103. Power to discount does not include power to pur- chase. — A bank empowered to discount negotiable notes, it has been held, has no power to purchase such notes. 8 In iTied. Com. Paper, § 118; Farmers,' etc. Co. v. Needles, 53 Mo. 17; National Ins. Co. v. Bowman, 60 Mo. 252; St. Louis v. Shields, 62 Mo. 247; Stoutimore v. Clark, 70 Mo. 471; John v. Farmers' Bank, 2 Blackf. (Ind.) 367; Snyder v. Studebaker, 19 Ind. 462; Ray v. Indian- apolis Ins. Co., 39 Ind. 290; Greiner v. Ulery, 20 Iowa, 266; Massey v. Building Ass'n, 22 Kan. 624. 2 Fifth Ward Sav. Bank v. First Nat. Bank, 48 N. J. L. 513, and cases cited. 8 Bank of Augusta v. Earle, 13 Pet. (IT. S.) 519; Farmers' & Mer- chants' Bank v. Baldwin, 23 Minn. 198; First Nat. Bank v. Pierson, 24 Minn. 140; s. C, 16 Alb. Law Jour. 319; Niagara County Bank v. Baker, 15 Ohio St. 68. 150 INCIDENTAL POWEBS OF COKPOBATIONS. [§ 103. Farmers' & Merchants? Bank v. Baldwin, supra, the bank was authorized "to carry on the business of banking by discounting bills, notes and other evidences of debt, by re- ceiving deposits, by buying and selling gold and silver bull- ion, foreign coin and foreign and inland bills of exchange, by loaning money on real and personal security, and by exercising such incidental powers as may be necessary to carry on such business." In a suit by the bank upon a promissory note, the defense was that the bank had no title to the note, since it had purchased it outright in- stead of discounting it. It was held by the court that the bank had no capacity to purchase promissory notes, and the attempted act of purchase was ultra vires and conferred no right whatever. The court distinguish be- tween purchasing and discounting' and say : " The power to carry on the business of banking, by discounting notes, bills and other evidences of debt, is only an authority to loan money thereon, with the right to deduct the legal rate of interest in advance. This right can be fully en- joyed with the possession of the unrestricted power of buying and dealing in such securities as choses in action and personal property. Though, as is urged by the plaintiff, the bank acquires a title to discounted paper, and hence may, in a certain sense, be said to have pur- chased it, yet it is a purchase by discount — which is per- mitted, — and does not inv.olve the exercise of a power of purchase in any other way than by discount." The term " discounting " has, however, in other cases, been held to include purchase as well as loan, and the purchase of ne- gotiable paper by a bank empowered to discount notes has been sustained. 1 1 Pope v. Capitol Bank of Topeka, 20 Kan. 440; Smith v. Exchange Bank, 26 Ohio St. 141; Fleokner v. Bank of United States, 8 Wheat. (U. S.) 338. §§ 104, 105.] INCIDENTAL POWEES OF OOEPOEATIONS. 151 § 104. Liability on accommodation paper. — The note of a corporation in the hands of a holder in good faith, for value, who took it before maturity and without knowledge that the maker had not received full consider- ation, can be enforced against the corporation, although it was made as an accommodation note. 1 Notice which would put a prudent man on inquiry, and lead to discov- ery of fraud, will not vitiate the corporation's negotiable paper. 2 § 105. Power to pledge securities. — Where a corpora- tion has power to contract a debt, it may lawfully pledge its securities for its payment. 3 Accordingly, a corpora- tion may pledge its bonds and stock issued by itself for its own debts. 4 In Leo v. Union Pacific It. Go., s-wpra, the court say : " The purpose to raise money to meet debts or for other corporate uses, by pledge of these securities, seems to be clearly within the scope of the cor- porate powers, and lawful and proper. The corporation has these securities not yet due. ... It owes debts, and was created with the expectation that it would owe them, and has implied power to raise money to pay them. It is not disputed that it could sell these securities to raise money to pay its debts, and the power to pledge them is included fairly in the power to sell for the same pur- pose." i Monument National Bank v. Globe Works, 101 Mass. 57; Web- ster v. Howe Machine Co., 54 Conn. 394; National Bank of Republic v. Young, 41 N. J. Eq. 531. 2 National Bank v. Young, 7 AtL Rep. 488; Webster v. Howe Ma- chine Co., 8 AtL Rep. 483; 54 Conn. 394. s Leo v. Union Pac. R. Co., 17 Fed. Rep. 273; Piatt v. Union Pac. R. Co., 99 U. S. 48. < Combination Trust Co. v. Weed, 2 Fed. Rep. 24; Mor. Corp., § 349; Lehman v. Tallasse Mfg. Co., 64 Ala. 567; Androscoggin R. Co. v. Auburn Bank, 48 Me. 335; Duncomb v. N. Y. etc. R. Co., 84 N. Y. 190; Chouteau v. Allen, 70 Mo. 290. CHAPTEE VIII. POWERS AND LIABILITIES AS TO CAPITAL STOCK. § 106. Introductory — Nature and purpose of capital stock. 107. Capital stock as a trust fund. 108. Limitation on doctrine that capital stock a trust fund. 109. Power to increase capital stock. 110. Consent of stockholders necessary to increase capital stock, 111. Power of national bank to increase capital stock 112. Irregularity in exercising power as affecting stockholders. 113. Power to reduce capital stock 114. Reduction of capital stock in England. 115. Power to issue new stock 116. Powers as to special stock. 117. Power to issue shares at discount 118. Power to issue preferred stock. 119. Liability on ultra vires issue of preferred stock. 120. Power to deal in own stock. 121. Power to purchase stock of other corporations. 122. Instances where power denied. 123. Power of foreign corporation to purchase stock of domestic company. 124 Power to declare dividends. 125. Power to pledge future calls. 126. Liability on dividends declared. 127. Liability on illegal issue of stock §106. Introductory — Nature and purpose of capital stock. — The capital stock of a corporation has been de- fined to be the aggregate amount of the funds of a corpo- ration, which are combined together under a charter, for the attainment of some common object of public conven- ience or private utility. 1 This amount is usually fixed in 1 Barry v. Merchants Exch., 1 Sandf. Ch. 305; Hightower v. Thorn- ton, 8 Ga. 486; Webster v. Upton, 91 U. S. 65; Chubb v. Upton, 5 § 107.] CAPITAL STOCK. 153 the charter or articles of incorporation, and a limit placed on its increase by statutory enactment. This limit is fixed in deference to the convenience, information and security of the public at large, as well as to the conven- ience of the intended corporation. To the corporators it prescribes the amount and subdivisions of their respective contributions to the common fund, the voice which each shall have in its control and management, and the appor- tionment of the profits of the enterprise. To the com- munity it announces the extent of the means contributed and forming the basis of the dealings of the corporate body, and enables every man to judge of its ability to meet its engagements and perform what it undertakes. And when the statute requires the stock to be paid in be- fore the corporation can transact business, security to those contracting with it is thereby superadded to the in- formation of its resources. 1 § 107. Capital stoclc as a trust fund. — The capital stock of an incorporated company is also said to be a trust fund set apart for the payment of its debts ; that it is a substitute for the personal liability which subsists in pri- vate copartnerships; that when debts are incurred, a contract arises with the creditors that it shall not be with- drawn or applied otherwise than upon their demands, until such demands are satisfied; that the creditors have a lien upon it in equity, and, if diverted, they may follow it as far as it can be traced and subject it to the payment of their claims, except as against holders who have taken it bona fide for a valuable consideration and without no- tice;" and that it is publicly pledged to those who deal Otto (U. S.), 665; Eaton v. Aspinwall, 19 N. Y. 119; Aspinwall v. Sac- chi, 57 N. Y. 331; Kent v. Quicksilver, etc. Co., 78 N. Y. 159; Sheldon Co. v. Eickemeyer Co., 90 N. Y. 613. 1 See cases cited in preceding section. 154: CAPITAL STOCK. [§ 107. with the corporation for their security. 1 " Unpaid stock is as much a part of this pledge and as much a part of the assets of the company as the cash which has been paid in upon it. Creditors have the same right to insist upon its payment as upon the payment of any other debt due to the company. And, as regards creditors, there is no distinction between such a demand and any other asset which may form a part of the property and effects of the corporation." 2 These objects for the public benefit are sometimes defeated by fraud and deception, but they are such as the legislature have in view in limiting the amount of capital stock and requiring a specified sum or proportion to be paid in. As was said in Handler/ v. Stutz, supra: " The stock of a corporation is supposed to stand in the place of actual property of substantial value, and as being a convenient method of representing the in- terest of each stockholder in such property, and to the extent to which it fails to represent such value it is either a deception and fraud upon the public or an evidence that the original value of the corporate property has be- come depreciated. The market value of such shares rises with an increase in the value of the corporate assets, and falls in the case of loss or misfortune, whereby thq value of such assets is impaired. And the increase of value of such stock is taken to represent either an appreciation in value of the company's property beyond the par value of original shares, or so much money paid to the corpora- tion as is represented by such shares. The law implies a i Sanger v. Upton, 91 U. S. 60; Curran v. Arkansas, 15 How. (U. S.) 304; Wood v.Dummer, 3 Mason (U. S.), 308; Slee v. Bloom, 19 Johns. § 116. Powers as to special stock. — In Massachusetts they have what is termed " special stock," the character- !See New Albany v. Burke, 11 Wall. (U. S.) 96; Coit v. Gold Co., 119 U. S. 345; Clark v. Bever, 139 tl. S. 96; Fogg v. Blair, id. 118; Morrow v. Nashville, etc. Co., 87 Term. 263, which hold that the gen- eral rule that holders of stock in favor of creditors must respond for its par value is subject to exceptions where the transaction is not a mere cover for an illegal increase. See, also, Stein v. Howard, 65 Cal. 616. § H7.] CAPITAL STOCK. 163 istics of which are that it is limited in amount to two- fifths of the actual capital; it is subject to redemption by the corporation at par after a fixed time, to be expressed in the certificates; the corporation is bound to pay a fixed half-yearly sum or dividend upon it as a debt; the holders of it are in no extent liable for the debts of the corporation beyond their stock, and the issue of special stock makes all the special stockholders liable for all debts and contracts of the corporation until the special stock is fully redeemed. 1 § 117. Power to issue sliares at a discount. — As a gen- eral rule, a company limited by shares under the act of its creation has no power to issue shares at a discount so as to render the shareholder liable for a smaller sum than that fixed for the value of the shares by the charter or memorandum of association. 2 Such an act would be IMass. Stat. 1855, ch. 290; 1870, ch. 224, §§ 25, 39, el. 4; Pub. Stat., ch. 106, §§ 42, 61, el. 3; Williams v. Parker, 136 Mass. 204; American Tube Works v. Boston Machine Co., 139 Mass. 5. 2 In re Almada & Tirito Co., 38 Ch. Div. 415; Trevor v. Whitworth, 12 App. Cas. 409; In re Addlestone Co., 37 Ch. Div. 191; In re Wey- mouth Packet Co., 1 Ch. Div. 66; The Ooregum G. Min. Co. v. Roper, 61 L. J. (N. S.) 337, 66 L. J. (N. S.) 427 (1892). The decision in Handley v. Stutz, supra, has called forth from the legal profession, generally, a vast deal of adverse criticism. A posi- tion directly opposite has been taken by the House of Lords in the case of Ooregum Gold Mining Co. v. Roper, supra. The question in that case was whether it was or was not competent for a company limited by shares to issue shares at a discount so as to relieve per- sons taking shares so issued from liability to pay up their amount in full. The House of Lords expressly held that where a corporation puts its new stock on the market and sells it for the best price it can get, — in that case for double what the old stock was selling for,— the purchasers are liable for the difference between what they paid and the par value of the stock, not only to the creditors of the cor- poration, but also to the corporation itself. It must be admitted that both the logic and the law would seem 164 CAPITAL STOCK. [§ 118. ultra vires, and such issue would be invalid, although the contract with the shareholders under which the shares were issued had been registered under the act regulating such transactions. There is no practical distinction, it has been held, between issuing shares at a discount and returning to the shareholder a portion of the capital to which the creditors have a right to look as that out of which they are to be paid. 1 § 118. Power to issue preferred stock. — The question as to whether a corporation has or has not power to issue shares of stock to which a preferential dividend shall be attached has been the subject of much legal controversy. "When such power is expressly granted in the charter by which the company is incorporated, then, of course, there is no question as to the legality of the issue. 3 It seems pretty well settled by the weight of authority, however, that a corporation has no implied power, either at the time of its organization or at any subsequent time, to issue preferred stock. The power can exist only when expressly conferred by the charter or by statute. 8 In to be with the House of Lords on this particular question, and it is doubtful whether the Handley v. Stutz case will be generally ac- cepted as a final disposition of this important question. f ! In re Almada, etc. Co., 38 Ch. Div. 415; Trevor v. Whitworth, 12 App. Cas. 409; In re Addlestone Co., 37 Ch. Div. 191; In re Wey- mouth Packet Co., 1 Ch. Div. 66 (1890); Ex parte Maude, L. R. 6 Ch. 51; Birch v. Cropper, 14 App. Cas. 525; Ooregum Gold M. Co. v. Roper, 61 L. J. (N. S.) 337, 66 L. J. (N. S.) 427 (1892); s. C, 28 Am. L. Rev. 861. 2 Cook, Stock & Stockholders, § 268; Everhardt v. West Chester Ry. Co., 28 Pa. St. 339; Rutland, etc. Ry. v. Thrall, 35 Vt. 536; Tay- lor, Corp., §§ 571, 572. 3 Hutton v. Scarborough Co., 4 De G„ J. & S. 672 ; Sturge v. Eastern, etcRy. Co., 7 De G., M. & G. 158; Guiness v. Corporation of Ireland, 22 Ch. Div. 349; Hoole v. Great Western Ry. Co., L. R. 3 Ch. App. 262. § 119.] CAPITAL STOCK. 165 American Tube Works v. Boston Machine Co., supra, the court say: "Corporations have sometimes, no doubt, at the outset of their organization, assumed the authority to divide their capital stock into two classes, preferred and common ; and when such stockholder subscribes for and takes his shares of common stock with fall knowl- edge and consent, there is perhaps no legal objection to this course. The question is a different one whether a corporation, with an existing capital stock all subscribed for and taken, can increase its capital by the issue of further shares which shall be preferred, and if so, under what circumstances this may be done, and whether by a mere majority or only by a unanimous vote of the exist- ing stockholders." A company may, however, when it is authorized to issue preferred stock, contract with the pre- ferred stockholders that they shall be entitled to a pref- erence not only in the payment of dividends, but also in the distribution of the company's assets. 1 § 119. Liability on ultra vires issue of preferred stock. In the light of what has heretofore been shown in pre- ceding sections as to the power of corporations to issue preferred stock, the general rule may be declared to be that, if a corporation issue preference shares of stock without authority so to do either in its charter or the law urider which it is organized, such issue is ultra vires and void, and no liability attaches to the company on such stock; but an action may be maintained against the com- pany to recover the money paid for such illegal issue. 2 iln re Bangor & Slate Co., L. R. 20 Eq. 59. 2 Anthony v. Household Machine Co., 16 R. I. 571. And see 2 Mor. Corp., §§ 721, 722; Dill v. Wareham, 7 Met. (Mass.) 438; Congress, etof Co. v. Knowlton, 103 IT. S. 49; Mayor, etc. v. Ray, 19 Wall. (U. S.) 468; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Thomas v. Railway, 101 U. 8. 71; New Castle Ry. v. Simpson, 21 Fed. Rep. 533; "White v. Franklin Bank, 22 Pick. (Mass.) 181 ; 2 Pars. Cont. 746; Gordon's Ex'rs 166 CAPITAL STOCK. [§ 119. But it has been held that although a corporation issues preferred stock without express authority, yet a pur- chaser, who voluntarily subscribes and pays for it, for the purpose of promoting the scheme under which it was issued, eannot hold it for over two years after the condi- tion upon which it was issued has been fulfilled, and then, on the insolvency of the company, assert the invalidity of the stock, and recover back the money paid for it. 1 !Nor is one's right to recover money paid on an ultra vires issue of such stock impaired by reason of a subsequent enactment of a statute authorizing the corporation to issue preferred stock. 3 v. Richmond, etc. Co., 78 Va. 501, 81 Va. 621; Warren v. King, 108 U. S. 389; Burt v. Rattle, 31 Ohio St. 116. 1 Bard v. Banigan, 39 Fed. Rep. 13. In Anthony v. Household Sewing Machine Co., supra, the plaintiff was one of several persons who lent a large amount of money to the defendant corporation, under agreement with the corporation that they were to be repaid in preferred stock, to be subsequently issued by it. It was supposed when the money was lent that the corpora- tion had power to issue such stock in discharge of the agreement, but it was afterwards discovered that as a matter of law it did not have power, and therefore the plaintiff demanded a return of the money which he had lent, and, upon failure of the company to re- turn it, brought an action to recover it. Chief Justice Durfee, in delivering the opinion of the court, said: " The agreement was not an agreement to repay the loan in pre- ferred stock, but an agreement absolutely to repay it in that form. It was an agreement by the corporation to do something which it had no power to do. It was therefore void, and the plaintiff was en- titled to treat it as void and to reclaim the money. Where money has been advanced under such a contract, it can be recovered back by the party advancing it so long as the contract remains wholly •unperformed by the other party, the recovery being had, not under the contract but in disaffirmance of it, on a promise implied inde- pendent of it." 2 In re Bridgewater Nav. Co., 39 Ch. Div. 1; Congress Spring Co. v. Knowlton, 103 U. S. 49; Anthony v. Household Sewing Machine Co., 16 R. I. 571. § 120.] CAPITAL STOCK. 167 § 120. Power of corporation to deal in its own stock.— It has been held in some of the states of the Union that the shares of capital stock of a corporation are the lawful subjects of purchase and sale, may be bought and sold in the market, and, in the absence of statutory provisions to the contrary, a corporation, if it acts in good faith, may buy such shares for its own benefit from owners of them upon such terms as may be agreed on, subject to the •rights of its creditors in proper cases to -resort to its capi- tal stock, paid and unpaid, as a trust fund out of which they may be entitled to have these debts paid. 1 In many of the states, however, this power is regulated by direct statutory enactment, but in those states where no such statutory provisions exist, such power is left to the deter- mination of the courts. The true rule is perhaps laid down by the court in Olapp v. Peterson, supra, where it is said : " Corporations may purchase their own stock in exchange for money or other property, and hold, reissue or retire the same, provided such act is had in entire good faith, in an exchange of equal value, and is free from all fraud, actual or constructive ; this implying that the cor- poration is neither insolvent nor in process of dissolution, and that the rights of creditors are not thereby injuri- iCook, Stockholders, §§ 311, 312; Blalook v. Kernesville Mfg. Co., 110 N. C. 99; First Nat. Bank v. Salem Mills, 39 Fed. Rep. 89; Bank, •etc. v. Bruce, 17 N. T. 510; Taylor v. Export Co., 6 Ohio, 176; In re Ins. Co., 3 Biss. (U. S.) 452; Bank v. Transportation Co., 18 Vt. 138; ■Clapp v. Peterson, 104 111. 26; Dupee v. "Water Power Co., 114 Mass. 457; Republic Ins. Co. v. Swigert, 135 111. 150; Chicago, etc. R. Co. v. Marseilles, 84 111. 145; Chetlain v. Insurance Co., 86 111. 220; Fraser t. Ritchie, 8111. App. 554; Eggeman v. Blanke, 46 Mo. App. 318; Le- land v. Hayden, 102 Mass. 542; Eby v. Guest, 94 Pa. St. 160; Early's Appeal, 89 Pa. St. 160; Coleman v. Columbus Oil Co., 51 Pa. St. 74; Iowa Lumber Co. v. Foster, 49 Iowa, 25; State Bank v. Fox, 3Blatch. from it to the other roads until the agreed proportion is restored. A money pool is an agreement whereby the money received by all the combining roads for transporta- tion is brought together into one total and divided among the roads in certain fixed percentages, which do not nec- essarily correspond to the proportion of the freight act- ually carried by each road. 1 Whether or not pooling contracts are illegal and void would seem to depend upon the laws of the state under which the company was or- ganized. For instance, in New Jersey, such contracts have been recognized by the courts as valid ; 2 while in Louisiana it has been quite recently held that pools are not enforceable, as contrary to public policy. 3 But in New York it has been decided that a pooling combina- tion for dividing certain territory between parallel rail- roads is not contrary to public policy. 4 The railroad commission of that state, however, has declared pooling contracts invalid. 5 And in Pennsylvania a pool formed for the division of a coal district, whereby the committee were to fix prices of coal, rates of freight, etc., was held to be both against the statute of New York — where the contract was made — and also against the public policy of the state, wherein the coal district was situated. 6 So in Indiana combinations between common carriers to pre- vent competition are regarded as prima facie illegal, and in order to establish the legality of any pool the burden is on the carrier to show that the pool was formed to prevent ruinous competition, and that it does not establish 1 The Railways of the Republic, Hudson, 197. 2 Sussex R. Co. v. Morris, etc. Co., 19 N. J. Eq. 13, 20 N. J. Eq. 543 ; Elkins v. Camden, etc. R. Co., 36 N. J. Eq. 241. 8 Tex. & Pac. R. Co. v. Southern Pac. R Co., 41 La. AnD. 970. * Ives v. Smith, 3 N. Y. Supp. 645; affirmed, 55 Hun (N. T.), 606. 5 1 N. Y. Railroad Com. Rep. (1885), 77. « Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 186. 180 EAILEOAD COEPOBATIONS. [§ 132. unreasonable rates, unjust discrimination or oppressive regulations. 1 The regulation of rates and freight charges between railroad corporations is now, in many of the states, intrusted to the wise discretion of a railroad com- mission, these officers usually being men with little or no railroad experience, and whose resplendent abilities to- ward confusing seemingly plain business transactions is strikingly exemplified in the number of suits brought in the United States courts praying relief from the heavy hand of these political blunderers. It must be added, in concluding this branch of the subject, that interstate com- merce pooling has been forbidden by act of congress. 8 § 132. Railroad oonds — Definition. — Kailroad bonds are instruments under seal containing an acknowledg- ment of certain debts and an agreement to pay the same upon the terms stated. They are a kind of public funds put on the market and dealt in as such. Coupons, or in- terest certificates for each instalment of interest accruing during the time the bonds have to run, are attached to them and form a part of the original bonds. 3 The mort- gage provides for the security of the particular bonds it describes, and the company puts the bonds out from time to time as occasion requires. When thus put upon the market they are treated as current until past due or act- ually retired. The security is considered a continuing one, and the bonds negotiable by the company so as to carry the mortgage security until they have become com- 1 Cleveland, etc. R. Co. v. Closser, 126 Ind. 348. And see Denver, etc. Co. v. Atchison, etc. R Co., 110 U. S. 667. 2 Interstate Commeroe Act, 24 Stat, at L. 380. s 19 Am. & Eng. Ency. Law, 719 ; Cooper v. Corbin, 105 111. 224; Peoria, etc. R Co. v. Thompson, 103 111. 187; Harmock v. Farmers' L. & T. Co., 105 U. S. 77; Farmers' L. & T. Co. v. St. Joseph, etc. R Co., 3 Dill. 412, 2 Fed. Rep. 117; Titus v. Mabee, 25 111. 257. §§ 133, 134 J KAXLKOAD COEPOEATIOlirS. 181 mercially dishonored, or something else has been done to deprive the company of its power of floating them. 1 § 133. Power to issue ootids. — The power of a railroad corporation to issue bonds for the purpose of raising money for its extension, maintenance and operation is now so well established that it would almost seem a work of supererogation to cite authorities to support the prop- osition. This is one of the incidental powers necessary for its very existence. A bond is merely an obligation under seal; and such corporation having the right to make contracts under which it may incur debts, and the right to make and use a common seal, a contract under seal is not only within the scope of its powers, but was originally the usual and peculiarly appropriate form of corporate agreement. 2 This power, however, is usually given by charter or by general statute. § 134. Formalities prescribed must be strictly pursued. "When the statute under which the corporation was or- ganized prescribes certain formalities to be followed in the issuance of bonds, they must be strictly complied with by the officers of the company, or they will be void as against the corporation, even though such bonds be in the hands of lona fide holders. 3 So where the statutes pre- scribed that such bonds should be certified across their face, and further required them to be registered, bonds 1 Claffln v. South Carolina, etc. E. Co., 8 Fed. Eep. 118, 4 Hughes, 12, 4 Am. & Eng. Ry. Cases, 231, 19 Am. & Eng. Ency. Law, 719. 2Comm. v. Smith, 10 Allen (Mass.), 448; Tread well v. Salisbury Mfg. Co., 7 Gray (Mass.), 393. SHackensack Water Co. v. De Kay, 36 N. J. Eq. 548; Singer v. St. Louis R Co., 6 Mo. App. 427; Webb v. Heme Bay, L. R. 5 Q. B. 642; Chambers v. Manchester, etc. R. Co., 5 Best & S. 588; Comm. v. Smith, 10 Allen (Mass.), 448; Rockwell v. Elkhorn Bank, 13 Wis. 653; Morrison v. Inhabitants, etc., 7 Vroom (N. J.), 219. 182 RAILROAD CORPOEATIONS. [§ 135. that were issued without these formalities were held to he void. 1 As was said by the court in Hackensaeh Water Co. v. De Kay, supra: " Persons taking securities of this character are chargeable with knowledge of the power to make them as conferred by the charter. If the power granted by the charter is subject to a condition, relating either to the form in which the security shall be made in order to be valid, or to some preliminary proceeding extraneous to the acts of the corporation or its officers, securities issued not in the prescribed form, or without the preliminary proceedings had, are subject to defenses in consequence thereof even in the hands of bona fide holders." § 135. Negotiability of railroad bonds. — Coupon bonds of a railroad company, issued under special legislative au- thority and designed for the purpose of raising money on a credit, if they contain words of negotiability, are ne- gotiable instruments the same as ordinary commercial paper, and the same immunity from defenses in the hands of bona fide holders applies to mortgages securing such bonds as to the bonds themselves. 2 Railroad bonds are usually made payable to the trustee named in the mort- gage or the bearer, and pass by delivery from hand to hand with all the ordinary properties of negotiable in- struments.' Under the law merchant such bonds are not 1 Morrison v. Inhabitants of Bernards, 7 Vroom (N. J.), 219. 2 Hackensack Water Co. v. De Kay, 36 N. J. Eq. 548, and cases cited. 3 White v. Vermont, etc. E. Co., 21 How. (U. S.) 575; Clark v. Iowa City, 20 Wall. (U. S.) 583; Gelpcke v. Dubuque, 1 Wall. (U. S.) 175; Aurora City v. West, 7 Wall. (IT. S.) 82; Haven v. Grand Junction, etc. Co., 109 Mass. 88; Connecticut Life Ins. Co. v. Cleveland R. Co., 41 Barb. (N. Y.) 9; Reed v. Mobile Bank, 70 Ala. 199; Lehman v. Tal- lahassee Mfg. Co., 64 Ala. 567 : Morris Canal Co. v. Fisher, 9 N. J. Eq, § 136.] BAILEOAD COEPOEATIONS. 183 regarded so strictly negotiable as are promissory notes or bills of exchange ; but being expressly designated to pass from hand to hand, they are by common usage act- ually transferred and capable of passing by delivery so as to enable the holder to maintain an action on them in his own name. 1 § 136. Power to guaranty oonds of another company. — Unless express authority be given by charter -or by stat- ute, a railroad company has no power or authority to guaranty the bonds of or lend its credit to another corpo- ration. 2 But it has been held that on sufficient consider- ation such corporation may guaranty the payment of the bonds of another company, eve,n if there is no authority conferred upon them by charter or by statute. 3 So it has been held that a railroad corporation which has power by its charter to issue its bonds has power to guaranty the bonds of another, which it receives in payment of a debt 667; Carr v. Le Fevre, 27 Pa. St. 413; Chapin v. Vermont, etc. R. Co., 8 Gray (Mass.), 575; Langstone v. Southern Carolina R. Co., 2 S. C. 248; Ex parte Williams, 18 S. C. 299; Bonner v. New Orleans, 2 Woods City of Camden v. Mulford, 26 N. J. L. 49; Bergen v. Clark- son, 1 Halst. (N. J.) 352; State v. Jersey City, 5 Dutch. (N. J.) 175. 2 The Liberty Bell, 23 Fed. Eep. 843; Dill. Mun. Corp., § 52; Hood v. Lynn, 1 Allen (Mass.), 103; Tash v. Adams, 10 Cush. (Mass.) 252; Claflin v. Hopkinton, 4 Gray (Mass.), 502; Murphy v. Jacksonville, 18 Fla. 318; Grant Co. v. Bradford, 72 Ind. 455; Henderson v. Cov- ington, 14 Bush (Ky.), 312; Cornell v. Guilford, 1 Denio (N. Y.), 510; Halstead v. Mayor, etc., 3 N. Y. 433; New London v. Brainerd, 22 Conn. 552. *§ 176.] MUKICIPAL C0EF0RATI0NS. 237 ■by the city council of New Orleans appropriating $5,000 to pay the expenses incurred in transporting from Phila- delphia to said city and return the " Liberty Bell " ob- tained for exhibition at the " World's Industrial and Cotton Centennial Exposition, " and also for paying the expenses of a "junketing expedition" to go to Philadel- phia, ostensibly in charge of said bell, though patriotic and praiseworthy, was held illegal and void. 1 So an or- dinance of a city that declares it unlawful for any person, society, association or organization, under whatsoever name, to parade any public street, avenue or alley of the city, shouting, singing or beating drums or tamborines» or playing upon any other musical instrument, etc., without first having obtained in writing the consent of persons named in the ordinance, is illegal and void. 2 § 176. Ordinances must be reasonable. — Ordinances to be valid must be reasonable. 3 An unreasonable ordinance is void. 4 And where a charter expressly grants a power, i The Liberty Bell, supra. 2 Anderson v. City, 10 Pao. Rep. 719 ; Frazee's Case, 30 N. W. Rep. 72 ; Sweet v. Wabash, 41 Ind. 7; McConvill v. Jersey City, 39 N. J. L. 38; Bronson v. Oberlin, 41 Ohio St. 476; Austin v. Mundy, 16 Pick. (Mass.) 121- Duckwall v. New Albany, 25 Ind. 283; Shallcross v. Jefferson- ville, 26 Ind. 193; State v. White (N. H.), 5 Atl. Rep. 828. a State v. Clark, 54 Mo. 17; Coal Float v. Jeffersonville, 112 Ind. 19; Chamberlain v. Evansville, 79 Ind. 542; Corrigan v. Gage, 68 Mo. 541; Kirkham v. Russell, 76 Va. 956; Baltimore v. Radecke, 49 Md. 217; Boston v. Shaw, 1 Met. (Mass.) 130; Comm. v. Worcester, 3 Pick. § 189. The mode prescribed must le strictly pursued. — Where the mode of procedure in respect to contracts of municipal corporations is. prescribed by law, such mode kept distinctly separate and well defined to avoid confusion and to carry out the purposes of the founders of our system of government. "I, however, do not understand the main opinion to sanction or indorse this doctrine, but it refers to cases and text-books that do as- sert it, and I feel constrained to avoid even the semblance of its indorsement, as I regard the question of more than ordinary impor- tance. The past generation has been prolific in creating these arti-i ficial bodies, and their number and extent are vast, and thus this question assumes importance. " The courts have held that private or business corporations are artificial persons, endowed with rights that are entitled to the same protection as those of natural persons, and if natural persons under disabilities cannot bind or estop themselves, it may be asked why corporate bodies under like disabilities should not receive like pro- tection? This is not a question of policy, but of right. But if it were, it is not for the courts, but the legislature, to inaugurate the policy." iKetchum v. Buffalo, 14 N. Y. 356; Douglas v. Virginia City, 5 Nev. 148; Indianapolis v. Ind. etc. Co., 66 Ind. 396; Goodrich v. De-< troit, 12 Mich. 279; Chaffee v. Granger, 6 Mich. 51; Rae v. Mayory etc., 51 Mich. 526; Bank of Columbia v. Patterson, 7 Cranch (U. S.), 299; Montgomery County v. Barber, 45 Ala. 245; Siebrecht v. New Orleans, 12 La. Ann. 412; Albright v. Town Council, 9 Rich. L. (S. C.) 399; Bateman v. Mayor, etc., 3 H. & N. 322; Williamsport v. Comm.; 84 Pa. St. 487; Wells v. Atlanta, 43 Ga. 67; Rome v. Cabot, 28 Ga. 50;. Lawrence v. Killam, 11 Kan. 512; Wyandotte v. Zeitz, 21 Kan. 649;. Jones v. Richmond, 18 Grat. (Va.) 517; Miller v. Milwaukee, 14 Wis. 642;. Brenham v. Water Co., 67 Tex; 542; Sturtevant v. Alton, 3 McLean (U. S.),393; Robinson v. St. Louis, 28 Mo. 488; Royalton v. Royalton, etc. Co., 14 Vt. 311; Gregory v. Bridgeport, 41 Conn. 76; State v. Hammonton, 38 N. J. L. 430; Argenti v. San Francisco, 16 CaL 255; Dill. Mun. Corp., § 443. § 189.] MUNICIPAL CONTRACTS. 253 must be strictly pursued by the corporation iu relation to the awarding and making of contracts or their subse- quent ratification. If it is not done the contract will be void. 1 And this is so although the contract entered into relates to a subject-matter with respect to which the cor- porate authorities have capacity to contract. If the pro- visions of the charter as to the mode of entering upon such contracts be violated, the contract is void. 2 Illustra- tions of this doctrine are to be found in those cases in which it is required of the corporate body to put out the public work to the lowest bidder; for, as such a requisi- tion is a circumscription of the power of the corporation, it has invariably been held that any other method of .contracting is illegal, and consequently cannot be subse- quently validated by a ratification. 3 Accordingly, where it is provided by statute that city contracts for work or material shall be given to the "lowest responsible bidder, under such regulations as shall be prescribed by ordi- nance," it is essential that an ordinance providing for the awarding of a contract should designate certain plans and specifications on which to bid, as otherwise there can be no competitive bidding. 4 So a contract let under an ordinance directing the paving of a street, without speci- 'Town of Durango v. Pennington, 8 Colo. 257; MoBride v. Grand Eapids, 56 Mich. 95; Niles Water Works v. Niles, 59 Mich. 811; Kee- ney v. Jersey City, 47 N. J. L. 449. 2 Gregory v. Jersey City, 34 N. J. L. 397; Brady v. City of New York, 20 N. Y. 312; Christopher v. Same, 13 Barb. (N. Y.) 557; Cowan v. West Troy, 43 Barb. (N. Y.) 48. 3 Cory v. County of Somerset, 45 N. J. L. 445, and cases cited. *Mazet v. Pittsburg, 137 Pa. St. 548; Wilkins v. Detroit, 46 Mich. 120; Detroit v. Hosmer, 79 Mich. 384; People v. Commissioners, 4 Neb. 150; Wells v. Burnham, 20 Wis. 112; Kneeland v. Milwaukee, 18 Wis. 411; Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22; Same v. Gogreve, 41 La. Ann. 251 ; Ely v: Grand Eapids, 84 Mich. 336; Cough- lin v. Gleason, 121 N. Y. 631. 254 MUNICIPAL CONTRACTS. [§ 190. fying the kind of paving to be done, is illegal and void when no specifications for the kind of pavement con- tracted for were prepared, and the advertisement invit- ing bids referred bidders to specifications on file in a cer- tain office, all of which related to other kinds of paving. 1 And again, where by statute the making and filing of plans and specifications of the work to be done are con- ditions precedent to the power of the commissioners to advertise for proposals and award contracts for such work,, the due filing of full specifications of the work will not render such contracts valid, if the plans have not been made and filed as required by statute. 2 So where a mu- nicipal charter provides that contracts for work shall be let to the lowest responsible bidder, the officials author- ized to let a contract may not arbitrarily reject the lowest bid and accept a higher, without any facts justifying it.* § 190. Ultra vires contracts by officers. — The officers, agents, or even city council, of a municipal corporation cannot bind it by any act or contract which transcends their lawful or legitimate power; and the municipal cor- poration may set up the plea of ultra vires or its own want of power under its charter, or statute under which it was organized, to enter into a given contract, or to do a given act in excess of its corporate power and author- ity. 4 A person contracting with public officers must take 1 Mazet v. Pittsburg, supra. SKneeland v. Milwaukee, 20 Wis. 437; Walls v. Burnham, 20 Wis. 113. 8 Coughlin v. Gleason, 121 N. Y. 631; Bigler v. Mayor, etc., 5 Abb. N. Cas. (N. Y.) 51. 4 Dill. Mun. Corp., § 457; Mayor, etc. v. Cunlifle, 2 Comst. (N. Y.) 175; Marsh v. Fulton County, 10 Wall. (IT. S.) 676; Thomas v. Rich- mond, 13 Wall. (U. S.) 349; Hayes v. Holly Springs, 114 U. S. 120; Knox County v. Aspinwall, 21 How. (U. S.) 539; East Oakland v. Skinner, 94 U. S. 255; Post v. Kendall Co., 105 U. S. 667; Bates Co. § 190.] MUNICIPAL CONTRACTS. 255 notice of their powers; and he is charged with a knowl- edge of the law, and makes a contract in violation of the- law at his own risk. 1 So where the law commands pub- lic officers, before entering into contracts, to advertise^, and contract with the lowest bidder, a contract made without advertising and without competition is wholly void, and imposes no obligation upon the public body as- sumed to be represented. 2 So an offer of a reward for the arrest and conviction of thieves who robbed the treas- ury of the county and for the recovery of the money, made "by order of the board of supervisors, H. D. Lucas, chairman," is ultra vires of the county commissioners and void, nor are the commissioners themselves personally liable. 9 v. Winter, 97 U. S. 83; Daviess Co. v. Dickenson, 117 TT. S. 657; Car- roll Co. v. Smith, 111 U. S. 556; Dixon Co. v. Field, 111 U. S. 83;: Burrill v. Boston, 2 Cliff. (IT. S.) 590; Seibreicht v. New Orleans, 13 La. Ann. 496; Fox v. New Orleans, id. 154; Mayor, eta v. Reynolds, 20 Md. 1; Baltimore v. Eschbach, 18 Md. 276; Baltimore v. Mus- grove, 48 Md. 272; Maupin v. Franklin Co., 67 Mo. 327; Perkinson v. St Louis, 4 Mo. App. 322; Cheeney v. Brookfield, 60 Mo. 53; Mc- Caslin v. State, 99 Ind. 428; Commissioners v. Cox, 6 Ind. 403; State- v. Beyers, 86 N. C. 588; Yancey v. Hopkins, 1 Munf. (Va.) 419. 1 Parr v. Greenbush, 72 N. Y. 463; Brady v. New York, 20 N. Y. 312 r McDonald v. Mayor, etc., 68 N. Y. 23; Argenti v. San Francisco, 16 Cal. 255. 2 Parr v. Greenbush, 73 N. Y. 463. 'Huthsing v. Bousquet, 2 McCrary (IT. S.), 152, 156; Treadway v. Schnauber, 1 Dak. Ty. 236. In Huthsing v. Bousquet, supra, the court say: "When an agent makes a contract in the name of his principal, but without author- ity, he binds himself, for the reason that if he (the agent) is not bound there is no one to respond to the third contracting party. If in such case the agent were not bound, his act in representing him- self to have authority would operate as a fraud upon the other con- tracting party. But if in such case the agent were to tell the third contracting party that he had no authority to bind the principal, it would be the folly of the other contracting party to enter into such 256 MUNICIPAL CONTBAOTS. [§ 191. § 191. Implied municipal contracts. — Although it is a well-settled principle that ultra vires contracts of mu- nicipal corporations are void, and that those who have dealt with such corporation under a misapprehension have no standing to demand the fulfillment of such contracts, there are occasions when this principle is modified ; the modification being spoken of as the " doctrine of implied municipal liability." l This doctrine applies to cases where money or other property of a party has been re- ceived under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same; that , a contract, and he could not claim to be defrauded. Neither could he count upon a contract against the agent, because that would be contrary to the very terms of the manifest intent of the contract. He would have to lie upon the bed which he had made for himself with his eyes open. The law aims to relieve a party against the consequences of his own folly. The case before us stands upon this principle. The board of supervisors had no authority by law to make the contract on which the plaintiff relies in this action. The plaint- iff was bound to know the law, and we must proceed, therefore, upon the assumption that he did, when he accepted the offer and performed the services, know that the board had no authority to offer the reward. The offer was ultra vires; the plaintiff knew it; it was his own folly to accept such an offer, and the court cannot relieve him." And see McCurdy v. Rogers, 21 Wis. 197; Richards v. Warren Co., 31 Iowa, 389; Boardman v. Hayne, 29 Iowa, 339. 1 Wheeler v. Chicago, 24 111. 105; Sangamon Co. v. Springfield, 63 111. 66; Moore v. New York, 73 N. Y. 238; State Board, eta v. Railway Co., 47 Ind. 407; Louisiana v. Wood, 102 U. S. 294; Gas Co. v. San Francisco, 9 CaL 453; Paul v. Kenosha, 22 Wis. 266; Bridge Co. v. Frankfort, 18 B. Mon. (Ky.) 41; Marsh v. Fulton Co., 10 Wall. (U. S.) 676; Adams v. Farnsworth, 15 Gray (Mass.), 423; Shrewsbury v. Brown, 25 Vt. 197; Gassett v. Andover, 25 Vt. 342; Maher v. Chicago, 38 I1L 266; Bryan v. Page, 51 Tex. 532; State Board v. Aberdeen, 56 Miss. 518; McSpeden v. Mayor, etc., 7 Bosw. (N. Y.) 601; McCracken v. San Francisco, 16 Cal. 591; Pimental v. San Francisco, 21 Cal. 351; Dickinson v. Poughkeepsie, 75 N. Y. 65; Richardson v. Grant Co., 27 Fed. Rep. 495; Argenti v. San Francisco, 16 Cal. 255. § 192.] MUNICIPAL CONTRACTS. 257 if the city obtains money of another by mistake or with- out authority of law, it is her duty to refund it, not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all per- sons, whether natural or artificial; and that if the city obtains other property which does not belong to her, it is her duty to restore it, or, if used by her, to render an equivalent to the true owner from the like general obli- gation. 1 § 192. When estoppel not applicable to municipal corpo- rations. — It is of the essence of an estoppel in pais that the party having the authority to act in the matter shall have knowingly done an act to influence the conduct of another, and that the other must have acted in the faith of that act. 2 A person having no authority to act can- not by his conduct estop others not responsible for his conduct. Accordingly, no estoppel can ordinarily arise from the act of a municipal corporation or officer done in violation of or without authority of law. 3 Every person is presumed to know the nature and extent of the powers of municipal officers, and therefore cannot be deemed to have been deceived or misled by acts done without legal authority. 4 So a city will not be estopped by the acts or promises of a committee of the city council, or the acts of the city attorney, such committee being known to have no power to do the act which is sought to be effected by estoppel.' i Field, J., in Argenti v. San Francisco, supra. 2 St. Louis, etc. R. Co. v. Belleville, 123 111. 376; Davidson v. Young, 38 111. 145; Schnell v. Chicago, 38 111. 382; Blgelow on Estoppel, 480. s Bigelow on Estoppel, 480. « Seeger v. Mueller, 133 111. 86. *St. Louis, etc. R. Co. v. Belleville, 123 111. 376. 17 258 MUNICIPAL COSTTr-ACTS. [§§ 193, 194. § 193. When estopped to deny irregularity. — Although, as has been shown, a municipal corporation may set up as a defense to an action upon a contract alleged to have been made by it, its own want of power to contract, yet it may be estopped from availing itself of irregularities in the exercise of powers conferred. 1 Acts of the general governing body of a municipal corporation, within their general powers, which were published, represented and held out as valid, with invitations to individuals to enter into engagements and expend money and labor on the faith of them, may be assumed by those dealing with the municipal authorities to be as represented ; and the corpo- ration having received the fruits of contracts entered into' on the faith of such representations will be estopped from alleging a mere irregularity, not of the substance of the power or jurisdictional in its character, to avoid them. 2 § 194. Ratification of ultra vires contracts. — As a mu- nicipal corporation has no authority to contract in excess of its chartered powers, therefore no ratification by it could validate such contracts; nor will ratification validate an abuse of authority by an officer where his act goes be- yond the charter powers. An act which does not follow the requirements of a statutory enactment, under no cir- cumstances binds the corporation. 3 So where the charter or statute binding upon the corporation has committed a i Moore v. New York, 73 N. Y. 238; Knox County v. Aspinwall, 21 How. (IT. S.) 539; Moran v. Commissioners, 2 Black (U. S.), 722; Bis- .sell v. Jefferson ville, 24 How. (U. S.) 287; Marsh v. Fulton County,. 10 Wall. (U. S.) 676. 2 Moore v. New York, supra; Hitchcock v. Galveston, 96 U. S. 341; Dill. Mun. Corp., § 457. 3 Paterson v. Mayor, 17 N. Y. 449; Brady v. Mayor, 17 N. Y. 312; Hodges v. Buffalo, 2 Denio (N. Y.), 110; Gates v. Hancock, 45 N. H. 528; Eeilly v. Philadelphia, 60 Pa. St. 467; Withelm v. Cedar County, 50 Iowa, 524; Smith v. Newburgh, 77 N. Y. 130. § 195.] MUNICIPAL CONTRACTS. 259 class of acts to particular officers or agents other than the governing body, or where it has prescribed certain formalities as conditions to the performance of any de- scription of corporate business, the proper functionaries must act and the designated forms must be observed, and generally no act of recognition or ratification can supply a defect in these respects. 1 Persons dealing with a municipal corporation are bound to know the extent of its authority, and when the charter has not been complied with they are not in a position to set up a rati- fication. 2 While ratification is equivalent to previous authority, the assent of the municipality must be shown. So ratification may be inferred from acquiescence after knowledge of all the material facts, or where the acts of the corporation are inconsistent with any other supposi- tion. 3 § 195. Contracts of compromise and arbitration. — It is well settled that a municipal corporation has power to 1 Paterson v. Mayor, supra. 2 Marsh v. Fulton County, 10 Wall. (U. S.) 676; Cowen v. West Troy, 43 Barb. (N. T.) 48; Brown v. Mayor, 63 N. Y. 239; McDonald v. Mayor, 68 N. Y. 23; Horton v. Thompson, 71 N. Y. 513; Hague v. Philadelphia, 48 Pa. St. 528; Green v. Cape May, 41 N. J. L 45; Sault Ste. Marie County v. Van Duzen, 40 Mich. 429; Jefferson County v. Arrighi, 54 Miss. 668; Nash v. St. Paul, 11 Minn. 174; Mc- Cracken v. San Francisco, 16 Cal. 591; Alexander v. Caldwell, 83 N. Y. 480; Union Township v. Gibboney, 94 Pa. St. 534; Parsons v. Monmouth, 70 Me. 262; Bryan v. Page, 51 Tex. 532. 3 Wilson v. School District, 32 N. H. 118; People v. Swift, 31 Cal. 26; Blen v. Bear River County, 20 Cal. 602; Clark v. Lyons County, 8 Nev. 181; Howe v. Keeler, 27 Conn. 538; Emerson v. Newburgh, 13 Pick. (Mass.) 377; Mills v. Gleason, 11 Wis. 470; Backman v. Charles- ton, 42 N. H. 125; Trott v. Warren, 2 Fairf. (11 Me.) 227; Topsham v. Rogers, 42 Vt. 199; St. Louis v. Armstrong, 56 Mo. 298; Lamm v. Deposit Association, 40 Md. 233; Chouteau v. Allen, 70 Mo. 290; New Orleans v. South Bank, 31 La. Ann. 560. 260 MUNICIPAL CONTEACTS. [§ 196. effect the compromise of claims held against it. 1 So a city council has authority to compromise with a party against whom the city holds a judgment, by accepting, before the expiration of the time for appeal, one-half of such judgment and costs as payment in full. 2 And where a judgment had been obtained against a fire district for injuries resulting from the conducting of electricity into a house by means of one of the wires in the district's elec- tric fire-alarm system, it was held that a settlement of the claim by compromise was not ultra vires or without consideration. 3 So, also, a municipal corporation, unless disabled by positive law, can submit to arbitration all un- settled claims, with the same liability to perform the award as would rest upon a natural person; but such power must be exercised by ordinance or resolution of the corporate authorities. 4 But where a way was laid out under what was termed the " betterment law," for determining the amount of the damages of the land- owners by the laying out of a street under such law, an agreement by which a city undertook with the owners of land taken for a street to submit the assessment of dam- ages and betterments to arbitration was held ultra vires and void, and the city could not maintain an action to enforce the award made under such submission. 8 § 196. Limitation on contracting indebtedness. — Con- stitutional provisions exist in many of the states of the •People v. San Francisco, 37 CaL 655; People v. Coon, 25 Cal. 648; Grimes v. Hamilton Co., 37 Iowa, 290; Mills Co. v. Burlington, 47 Iowa, 66; State v. Martin, 43 N. W. Rep. 244; Bean v. Joy, 23 Me. 117, 2 Agnew v. Brail, 124 111. 312. 3 Prout v. Inhabitants, etc., 28 N. E. Rep. 679. 4 Shawneetown v. Baker, 85 111. 563; Kane v. Fond du Lac, 40 Wis. 495; Dill. Mun. Corp., § 478; Dix v. Dummerston, 19 Vt 263; Paret v. Bayonne, 39 N. J. L. 559. 6 Somerville v. Dicker man, 127 Mass. 272. § 196.] MUNICIPAL CONTRACTS.. 261 Union prohibiting municipal corporations from increas- ing their indebtedness beyond certain designated limits, the limit usually being fixed by reference to some speci- fied per centum of the taxable property of the munici- pality. Therefore, where a city or other municipal cor- poration is so prohibited, when such municipality shall have reached the limit prescribed by the constitution it is prohibited from making any contract whereby an in- debtedness is created, even for the necessary current ex- penses in the administration of the affairs and govern- ment of the corporation. 1 Such constitutional provisions cannot be evaded by contracting indebtedness to be dis- charged in the future out of taxes which are to be levied in the future, nor can a city by any device actually in- crease its indebtedness, — such increase above the limit fixed being illegal. 2 So if a contract is void because it creates a liability in excess of the limit of indebtedness, the municipality has no power to make any appropria- tion therefor, or to levy a tax to pay interest. 3 And if an action be brought against the municipal authorities to compel them to levy a tax for the payment of an in- debtedness in excess of the constitutional limit, a tax- payer is entitled to intervene and defend if the munici- pal authorities refuse to set up the defense. 4 All persons 1 Price v. Quinoy, 105 111. 138; Baltimore v. Gill, 31 Md. 375; Spring- field v. Edwards, 84 111. 77; "Weston v. Syracuse, 17 N. Y. 110; Hitch- cock v. Galveston, 96 U.S. 341; United States v. Ft. Scott, 99 U. S. 152; French v. Burlington, 42 Iowa, 614; Council Bluffs v. Stewart, 51 Iowa, 385; Appeal of City of Erie, 91 Pa. St. 398; Buchanan v. Litchfield, 102 U. S. 278; Walsh v. Augusta, 67 Ga. 293. ^Springfield v. Edwards, 84 I1L 626; Law v. People, 87 III. 385; Fuller v. Chicago, 89 111. 282; Fuller v. Heath, 89 III 296; Garrison v. Chicago, 7 Biss. 480. » Law v. People, supra. * Richards v. Supervisors of Lyon County, 69 Iowa, 612. 262 MUNICIPAL CONTRACTS. [§ 197. are chargeable with notice of the constitutional limita- tion on the power of municipal corporations to become indebted. 1 § 197. Instances where increase denied. — If the munic- ipal indebtedness has reached the constitutional limit, a city cannot enter into an agreement to pay a stated sum as rent for a market-house, if its annual revenues are in- sufficient, over and above the interest of its indebtedness and the ordinary expenses of the city, to meet the rent proposed to be paid. 2 In order to bring the indebtedness within the constitutional limit, however, it is not neces- sary that the debt contracted should be actually payable. Thus, where a city contracted for the construction of water-works, it was held that it became indebted at the time of making the contract, and not merely upon com- pletion and acceptance of the work. 3 But a constitutional provision limiting the amount of indebtedness does not affect contracts made before the adoption of the provis- ion. 4 It has been held in Iowa that a contract made by i People v. May, 9 Colo. 404; Law v. People, 87 111. 385; French v. Burlington, 42 Iowa, 614. In People v. May, supra, the court say: "The hardships and in- conveniencies resulting from this construction are urged upon our attention. To such appeals the language of the courts is uniform. The province of the judiciary is not to make the law, but to con- strue it. The meaning of a constitutional provision being plain, it must stand, be recognized and obeyed as the supreme law of the land. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the court may take that office upon themselves, or under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of the government." 2 Appeal of City of Erie, 91 Pa. St. 398. sCulbertson v. Fulton, 127 111. 30; Law v. People, 87 111. 385. * County of Moultrie v. Bank, 92 U. S. 631; Davenport, etc. Co. v. § 198.] MUNICIPAL CONTRACTS. 263 a city whose indebtedness has already reached the con- stitutional limit, by which a contractor agrees to construct a sewer, and to accept in payment of the contract price certificates assessing the benefits against the property benefited, does not create any liability on the part of the municipality, and is not within the constitutional pro- hibition. 1 Where the charter of a municipal corporation provided that the common council should have no power " to contract debts, incur liabilities, or make expenditures in any one year which shall exceed the revenue for the same year," a contract entered into without submitting the question to the tax-payers, for a supply of water for a term of years at a cost per year which would not exceed any such percentage as could be allowed in any one year, was held void, and there could be no recovery thereon for any water that had been furnished thereunder. 3 §198. Equity will enjoin illegal, creation of debt — A municipal corporation will not be permitted to dispose illegally of corporate money or to illegally create a debt, and may be prevented by an application of resident tax- payers for an injunction. 3 " Of the right of resident tax- Davenport, 13 Iowa, 229; Bound v. "Wisconsin Cent. E. Co., 45 Wis. 543. 1 Davis v. Des Moines, 71 Iowa, 500. 2 Niles Water-works v. Niles, 59 Mich. 311. 3 Crampton v. Zabriskie, 101 U. S. 601; Gifford v. Railroad Co., 10 N.J. Eq. 171; Baltimore v. Gill, 31 Md. 375; Wade v. Richmond, 18 Grat. (Va.) 583; Page v. Allen, 58 Pa. St. 338; Stevens v. Railroad Co., 29 Vt. 546; Webster v. Harrington, 32 Conn. 131; Terrett v. Sharon, 34 Conn. 105; Merrill v. Plainfield, 45 N. H. 126; Normand v. Otoe Co., 8 Neb. 18; Oliver v. Krightley, 24 Ind. 514; Drake v. Phillips, 40 111. 388; Grant v. Davenport, 36 Iowa, 396; Hooper v. Ely, 46 Mo. 505; Douglass v. Placerville, 18 Cal. 643; Patterson v. Bowes, 4 Grant (Canada), 170; West Guillimbury v. Railroad Co., 23 Grat. (Va.) 383. 264 MUNICIPAL CONTRACTS. [§ 198. payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious ques- tion. The right has been recognized by the state courts in numerous cases, and from the nature of the powers exercised by municipal corporations, the great danger of their* abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the tax-payers of a county to prevent the consummation of a wrong, in excess of their power, to create burdens upon property holders. Certainly in the absence of legislation restricting the right to interfere in such cases to public officers of the state and county, there would seem to be no substantial reason why a bill by or on behalf of individual tax-payers should not be entertained to prevent the mis- use of corporate powers." * 1 Field, J., in Crampton v. Zabriskie, 101 U. S. 601. CHAPTER XV. PARTICULAR POWERS AND LIABILITIES OF MUNICIPAL CORPORATIONS. § 199. Exclusive control over streets. 200. "When estopped to deny existence of street. 201. Power to grade and improve. 202. Discretionary powers as to improvement 203. Liability for consequential damages. 204. Liability for accidents upon streets. 205. Instances of liability for defective streets. 206. Notice to authorities required. 207. Sewers — General powers as to. 208. Discretion in selecting sewer system. 209. Duty to provide sewer outlet. 210. City not insurer of condition of sewer. 211. Liability for injury from defective sewer. 212. Power to abate nuisances. 213. Liability as to nuisances. 214. Powers as to quarantine regulations, 215. Powers as to public wharves. 216. Exclusive privileges to gas or water companies. 217. Contracts as to gas and water supply. 218. Power to regulate rates. 219. Liability for damages owing to inadequate water supply. 220. Doctrine of respondeat superior. 221. Distinction between public gwasi-corporations and municipal corporations. 222. Not liable for damages arising from ultra vires acts of officers. § 199. Exclusive control over streets. — When the charter of a city does not confer upon it in express terms the ex- clusive power over its streets, it has not the control of them to the exclusion of the sovereign power of the state. 1 1 Grand Rapids Electric Co. v. Gas Co., 21 Am. & Eng. Corp. Cas. 270; Dill. Mun. Corp., § 547; State v. Coke Co., 18 Ohio St. 262; Gas 266 STEEETS, SEWERS, ETC. [§§ 200, 201. Nothing short of the whole sovereign power of the state can confer exclusive rights and privileges in public streets dedicated or acquired for public use, and which are held in trust for the public at large. It is the general doctrine that municipalities, under the power of exclusive control over their streets, may allow any use of them consistent with the public objects for which they are held. 1 § 200. Wlien estopped to deny existence of street. — If the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and an individual is injured in con- sequence of the negligence and carelessness with which this is done, the corporation cannot, when it is sued for such injury, throw the party upon an inquiry into theTegu- . larity of the proceedings by which the land became a street or into the authority by which the street was origi- nally established. 2 § 201. Power to grade, improve and alter streets. — If the authorities of a municipal corporation are authorized by an act of the legislature to grade, improve, alter or Co. v. Light Co., 115 U. S. 659; Cooley, Const. Lim. 38, 207, 208; Gas Light Co. v. Gas Co., 25 Conn. 19; Gas Light Co. v. Saginaw, 28 Fed. Eep. 529; Gas Co. v. Middleton, 59 N. Y. 228; East Hartford v. Bridge Co., 10 How. (U. S.) 511; Minturn v. Larue, 23 How. (U. S.) 435; Har- rison v. State, 9 Mo. 530; "Wright v. Nagle, 101 U. S. 796; Davis v. Mayor, 14 N. Y. 506; Railroad Co. v. Railway Co., 10 Wall. (U. S.) 52; Same v. Same, 12 Fed. Rep. 308; Parkersburg Gas Co. v. Parkers- burg, 4 S. E. Rep. (W. Va.) 650. 1 Grand Rapids Electric Light Co. v. Grand Rapids, etc. Gas Co., supra. 2 Mayor v. Sheffield, 4 Wall. (U. S.) 189; James v. Portage, 48 Wis. 677; Bishop v. Centralia, 49 Wis. 609'; Coates v. Canaan, 51 Vt. 131; Sewell v. Cahous, 75 N. Y. 45; Steck v. Lancaster, 57 N. H. 88; Man- derchid v. Dubuque, 25 Iowa, 108; Aurora v. Cobshire, 55 Ind. 484; Phelps v. Mankato, 23 Minn. 277. § 201.] STREETS, SEWERS, ETC. 267 re-lay streets, such authority extends only to public streets or highways, and will not give authority to alter any road owned by other persons. 1 As a municipal corpora- tion cannot contract in any other mode than is author- ized by its charter, if the preliminaries to be observed, and the manner in which a contract for a local improve- ment shall be entered into, are prescribed by a manda- tory charter provision or law, its directions must be com- plied with. 2 And if such contract be invalid when made for a failure to comply with the statutory requirements, its subsequent ratification by the corporation requires the observance of the same formalities and provisions neces- sary to be complied with in the making of a valid contract. 3 A general power to lay out and open streets in a city im- plies power to establish the grade of such streets; 4 and power to grade streets includes power to make contracts relating to the same, with respect to the work to be done and compensation to be paid. 5 Accordingly, when to make a contract for the improvement of a street, and to provide the funds to pay for it, the charter prescribed iQuin v. City of Paterson, 27 N. J. L. 35; McGuire v. Rapid City, 43 N. W. Rep. 706. STerre Haute v. Lake, 43 Ind. 480; People v. San Francisco, 36 Cal. 595; Butler v. Charleston, 7 Gray (Mass.), 12; Zottman v. San Francisco, 20 Cal. 96; Brady v. Mayor, 20 N. Y. 312; Murphey v. Louisville, 9 Bush (Ky.),189; Stecket v. East Saginaw, 22 Mich. 104; Taft v. Pittsford, 28 Vt. 286; Dill v. Inhabitants, 7 Met. (Mass.) 438; Bridgeport v. Railroad Co., 15 Conn. 475; Marsh v. Fulton Co., 10 Wall. (IT. S.) 676; Horn v. Baltimore, 30 Md. 218; Steam Nav. Co. v. Dandridge, 8 Gill & J. (Md.) 248; Baltimore v. Eschbach, 18 Md. 276; Haynes v. Covington, 13 Sm. & M. 408. 3 Town of Durango v. Pendleton, 8 Colo. 257. * Smith v. Washington, 20 How. (U. S.) 135: Himmelmann v. Hoad- ley, 44 Cal. 213; Fish v. Mayor, 6 Paige (N. Y.), 268; Creal v. Keokuk, 4 Greene (Iowa), 47. s Sturtevant v. Alton, 3 McLean (U. S.), 393; People v. Flagg, 17 N. Y. 584 268 STEEETS, SEWEKS, ETC. [§ 202. that it should only be done by local assessments on abut- ting property, this amounts to a direct inhibition against making any contract for such improvement only as such mode is pursued, and the failure or omission of the city to create the fund from the sources indicated to pay for such improvement, when made, will not subject the city to any general liability therefor. 1 § 202. Discretionary power as to improvement. — "Where a city, by special charter or otherwise, is vested with the exclusive control of its streets and with power to regu- late or improve the same, the manner in which they may ■ 1 Portland L. & M. Co. v. East Portland, 18 Oreg.'21. In Portland, etc. Co. v. East Portland, supra, Lord, J., in discuss- ing this question, said: "The reason is plain. As the city is -without any general power to contract for and provide the funds to pay for such improvements except by way of local assessment, it necessarily results that it can- not be subject to any general liability. To subject the city to a general liability there must be some general power under which it would be authorized to raise the funds to pay for such improve- ments. But when such general power is conferred, and an improve- ment is projected to be paid for out of funds to be derived from local assessments, and the city authorities upon whom is devolved the duty neglect or fail to take the requisite proceedings to create the lien which is to supply the funds to pay for such improvement, the improvement being within the scope of the general power of the corporation independent of the special mode by local assessments, such neglect or omission after the improvement is made will subject the city to a general liability to pay therefor. . . .1 . "A general liability is based upon the general power conferred to make such improvements and to defray the expenses thereof out of the general fund; for if the city has not such general power, but is confined exclusively in making and defraying the expenses of such improvements to the fund derived from local assessments upon abutting property, there would be no authority even though there was a failure to perform all the required acts intended to provide such fund, and to subject the acts to a general liability. It would be ultra vires." § 203.] STREETS, SEWEES, ETC. 269 be improved must, in a large measure, be left to the dis- cretion of the authorities ; but when the discretion has been exercised and the street or improvement made, the duty of keeping it in repair is ministerial, and for neglect to perform such duty an action will lie. 1 So the authori- ties of a city may rightfully cause a street to be graded, and when the entire width is not needed for travel they may cause a strip in the center thereof to be sodded, in- stead of graveling the entire street, and provide for the payment of the cost thereof by special assessment upon the property benefited thereby. 2 § 203. Liability for consequential damages caused by improvement. — It is the general doctrine that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages if they act within their jurisdiction and with care and skill. 3 Accordingly, a municipal corporation is not liable for consequential damages where the act complained of was done by it or its officers under and pursuant to au- thority conferred by a valid act of the legislature, and 1 Urquhart v. Ogdensburg, 91 N. Y. 67; Hines v. Lookport, 50 N. Y. 238; Mills v. Brooklyn, 33 N. Y. 489; Lansing v. Toolan, 37 Mich. 152; Marquette v. Cleary, id. 296; Darling v. Bangor, 68 Ma 113; Davis v. City Council, 51 Ala. 139; Campbell v. Montgomery, 53 id. 527; White v. Yazoo City, 27 Miss. 357; Hill v. Charlotte, 72 N. C. 55; Dewey v. Detroit, 15 Mich. 307; Carr v. Northern Liberties, 36 Pa. St. 334; Grant v. Erie, 69 Pa. St. 430; Western College v. Cleveland, 12 Ohio St. 375. 2 Murphy v. Peoria, 119 111. 509. 3 Transportation Co. v. Chicago, 99 TJ. S. 641; British Cast-plate Co. v. Meredith, 4 Durnf. & E. 794; Sutton v. Clarke, 6 Taunt. 28; Boul- ton v. Crowther, 2 Barn. & Cres. 703; Green v. Borough of Reading, 9 Watts (Pa.), 382; O'Connor v. Pittsburg, 18 Pa. St. 187; Callendar v. Marsh, 1 Pick. (Mass.) 418; Smith v. Washington, 20 How. (U. S.). 135. i 270 STREETS, SEWERS, ETC. [§ 203. there had been no want of reasonable care or want of reasonable skill in the execution of the power. 1 So a municipal corporation authorized by law to improve a street by building on the line thereof a bridge over or a tunnel under a navigable river where it crosses the street incurs no liability for the damages unavoidably caused to adjoining property by obstructing the streets or the river, unless such liability be imposed by statute. 2 Nor is a municipal corporation liable for consequential injury to abutting lots owing to a change in the grade of a street where such change is made under authority of law and with due care. 3 And if in the process of repairing or grading a street the walls of a dwelling-house or other building lose their support and in consequence fall, the owner cannot recover damages, provided due care has been used. 4 Where, however, the city, in grading the streets 1 Dill. Mun. Corp., § 987; Transportation Co. v. Chicago, 99 U. S. 635; Smith v. Washington, 20 How. (U. S.) 135; Goszler v. George- town, 6 Wheat. (U. &.) 593; Tyson v. Milwaukee, 50 Wis. 78; Owens v. Milwaukee, 47 Wis. 461; Humes v. Mayor, 1 Humph. (Tenn.) 403; Nebraska City v. Lampkin, 6 Neb. 27; Stookford v. St. Louis, 4 Mo. App. 564; Hunt v. Boonville, 65 Mo. 620; White v. Yazoo City, 27 Miss. 357; Alden v. Minneapolis, 24 Minn. 254; Kaist v. St. Paul R. Co., 22 Minn. 118; Pontiao v. Carter, 32 Mich. 164; Reynolds v. Shreve- port, 13 La. Ann. 426; Newport Bridge Co. v. Foote, 9 Bush (Ky.), 264; Noyes v. Mason City, 53 Iowa, 418; Quincy v. Jones, 76 111. 231; Fulla v. Atlanta, 66 Ga. 80; Dorman v. Jacksonville, 13 Fla. 538; Simmons v. Camden, 26 Ark. 276; Shaw v. Crocker, 42 Cal. 435; Tren- ton, etc. Co. v. Rabb, 36 N. J. L. 335; Carr v. Northern Liberties, 35 Pa. St. 324; Barritt v. New Haven, 42 Conn. 174; Simmons v. Provi- dence, 12 R. L 8; Hovey v. Mayor, 43 Me. 322. 2 Transportation Co. v. Chicago, 99 U. S. 635. 'Smith v. City of Eau Claire, 78 Wis. 457; Dore v. Milwaukee, 42 Wis. 108; Dill. Mun. Corp., §§ 988, 990. « Mitchell v. Rome, 49 Ga. 19; St. Louis v. Gurno, 12 Mo. 414; Pon- tiac v. Carter, 32 Mich. 164; Quincy v., Jones, 76 111. 231; Chambers v. Satterlee, 40 Cal. 297; Crossett v. Janesville, 28 Wis. 420. § 204.] STREETS, SEWERS, ETC. 271 and making public improvements, fails to exercise proper care and skill in the selection of a plan, and by reason thereof an injury to the owner of private property occurs, which by the exercise of reasonable care and skill could have been avoided, the city is liable for such injury. 1 No responsibility attaches, it has been held, for damages done by the diversion of surface water, where the diver- sion is merely incidental to and occasioned by the making or alteration of street grades. 2 But it has been held, on the other hand, that where a municipal corporation puts into execution a scheme of improvement by which sur- face water, collected from a large area, is prevented from following the grades of the street, and is carried by arti- ficial means from where it would otherwise be discharged and made to flow onto the land of one person in ease of the lands of others, there an actionable wrong is commit- ted. 3 And where the quantity of surface water sent to the point of discharge is increased by an enlargement of the area of drainage, but such enlargement results en- tirely from making the grade of the streets conform to the grade established by the proper authority, any injury resulting from the increase in the quantity of water dis- charged at that point is regarded in law as damnum absque, injuria.* § 204. Liability for accidents upon streets.— A munici- pal corporation is not an insurer against accidents upon its streets and sidewalks, as seems to be quite generally supposed by the community at large, nor is every defect i City of Valparaiso v. Adams, 123 Ind. 250; Derinzy v. Ottawa, 15 Ont. Rep. 712. 2 Miller v. Norristown, 47 N. J. Eq. 62. 3 Miller v. Norristown, supra; Field v. West Orange, 36 N. J. Eq. 118, 37 id. 600; Torrey v. Scranton, 133 Pa. St. 173. 4 Miller v. Norristown, supra. 272 STREETS, SEWERS, ETC. [§ 204. therein, though it may cause the injury sued for, action- able. It is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day. 1 Accordingly, a city is not liable for injuries caused to a person by others while using the public streets for coasting. 2 Nor to a person injured by the discharge of a cannon by a crowd collected together for the purpose of firing the cannon for their amusement. 8 Nor for injury caused by the fall of snow and ice from a roof overhanging the sidewalk. 4 Nor by the fall of a weight attached to a flag suspended across the street. 5 But it has been held that where a city permits a wooden awning or roofing to be constructed over the sidewalk, it is liable for an injury occasioned by a defect therein, although it is not apparently in bad repair. 6 Nor is a city liable for injury done to property by a mob, unless it is so specially provided by statute. 7 But when it is shown that the city officers had actual knowledge of the defect, the city is liable for injuries sustained by a person falling into a sewer, owing to the displacement of a man- 1 Dill. Mun. Corp., §789. 2 Faulkner v. Aurora, 3 Am. & Eng. Corp. Cas. 520; Pi§rce v. New Bedford, 129 Mass. 534; Ray v. Manchester, 46 N. H. 59; Schultz v. Milwaukee, 49 Wis. 254; Hutchinson v. Concord, 41 Vt. 271; Steele v. Boston, 128 Mass. 583. 'Borough, etc. v. Fitzpatrick, 94 Pa. St. 121. Ind. 491; Angell on Highways, § 216; Dill. Mun. Corp., §§ 656, 688. 278 STREETS, SEWERS, ETC. [§ 211. such negligence. This care and skill requires the mu- nicipality to take notice of the liability of timbers to decay from time and use, and to take such measures as ordinary care and skill dictate to guard against a sewer becoming unsafe because of the decay of the materials used in its construction. 1 § 211. Liability for injuries from defective sewer. — Though a sewer is constructed with care and skill, a mu- nicipal corporation is liable for injuries for negligently fail- ing to keep it in repair, and where it is suffered to remain out of repair for such a length of time as that it was the duty of the corporate authority to take notice of its condi- tion, the law will charge the corporate officers with notice of its condition. 2 And though a city is not responsible be- cause of any failure to provide proper sewerage, yet if the effect of the construction of one of its public works shall be to collect water and cast it upon the land of an individual where it would not overflow, the city is lia- ble. 3 And where the property of private persons is flooded, either directly by water being set back, when this is the result of the negligent execution of the plan 1 Indianapolis v. Scott, 73 Ind. 196; Board of Com'rs v. Legg, 93 Ind. 523; Indiana Car Co. v. Parker, 100 Ind. 181; Rapho v. Moore, 68 Pa. St. 404; Norristown v. Thayer, 67 Pa. St. 335; Todd v. Troy, 61 N. Y. 506. 2 Fort Wayne v. Coombs, 107 Ind. 75; City of Madison v. Baker, 103 Ind. 41; Dill. Mun. Corp., § 1025. SBuford v. Grand Rapids, 53 Mich. 98; Ashley v. Port Huron, 35 Mich. 296; Dixon v. Baker, 65 I1L 518; Weis v. Madison, 75 Ind. 241; Indianapolis v. Tate, 39 Ind. 282; Ross v. Clinton, 46 Iowa, 606; Van Pelt v. Davenport, 42 Iowa, 308; Wilson v. New Bedford, 108 Mass. 261; O'Brien v. St. Paul, 25 Minn. 333; Thurston v. St. Joseph, 51 Mo. 510; Byrnes v. Cohoes, 67 N. Y. 204; Rhodes v. Cleveland, 10 Ohio, 159; Inman v. Tripp, 11 R. I. 520; Gillison v. Charleston, 16 W. Va. 282. § 212.] STREETS, SEWEES, ETC. 279 adopted for the construction of sewers, or of the neg- ligent failure to keep the same in repair and free from obstructions, the municipality is liable, and this whether the land injured is below grade of street or not. 1 And it has been held that if a city constructs a sewer in such a manner that an additional flow of surface water into a lot is caused thereby, in other words, if the sewer gathered other than surface water, the owner of such lot may recover such damages as may have been caused by such increased flow. 2 § 212. Power to abate nuisances. — The power to abate nuisances is a portion of police authority necessarily vested in all municipal corporations and populous towns ; and the legislature may invest a municipal corporation with power to abate nuisances summarily, without re- quiring resort to legal proceedings. 3 The power so con- ferred is for the public good and not for any private ad- vantage, and for failure of its officers to properly exercise the power the municipality is not liable. 4 But, in the absence of authority, neither the board of health nor the city council of a city has any power to erect a dam on a ■ person's land without his consent for the purpose of abat- ing a nuisance existing on adjacent land. 5 But where a municipal corporation, however, is authorized by its char- ter or general laws to remove and prevent nuisances, 1 Hutchins Bros. v. Mayor of Hurlburg, 20 Am. & Eng. Corp. Cas. (Md., 1887) 400; Lynch v. Mayor, 76 N. Y. 60; O'Brien v. St. Paul, 25 Minn. 333; Inhabs. W. Orange v. Field, 37 N. J. Eq. 600; Ashley v. Port Huron, 35 Mich. 296. 2 Arn v. City of Kansas, 4 McCrary (U. S.), 558. 3 Baumgartner v. Hasty, 100 Ind. 575; King v. Davenport, 98 I1L -305; Kennedy v. Phelps, 10 La. Ann. 227; Dill. Mun. Corp., § 374 * Armstrong v. Brunswick, 79 Mo. 319. 5 Cavanagh v. Boston, 139 Mass. 426. 280 STREETS, SEWEKS, ETC. [§ 213„ the only restriction upon that right is that what is done-, shall clearly be done for the public health, safety and convenience. 1 The mere declaration by the city coun- cil that a certain structure is an encroachment or ob- struction does not make it so, nor can such declaration make it a nuisance unless in fact it has that character.. That which is authorized by legislative authority cannot be declared a nuisance by a city corporation. " It is a doctrine not to be tolerated in this country that a mu- nicipal corporation, without any general laws either of the city or of the state within which a given structure can be shown to be a nuisance, can, by the mere declara- tion that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business and all the prop- erty in the city at the uncontrolled will of the temporary local authorities." 2 § 213. Liability as to nuisances. — It is the duty of a municipal corporation to provide wholesome laws within its sphere for the protection of the persons and property, of its citzens, but it cannot guaranty them against the- 1 Dubuque v. Maloney, 9 Iowa, 450; Commissioners v. Worcester, S Pick. (Mass.) 462; Roberts v. Ogle, 30 111. 459; Commissioners v. Gas- Co., 12 Pa. St. 318; Salem v. Railroad Co., 92 Mass. 431; Dingley v. Boston, 100 Mass. 544; Lake View v. Letz, 44 111. 81; Commissioners.. v. Goodrich, 13 Allen (Mass.), 546; Whyte v. Mayor, 2 Swan (Tenn.), 864; People v. Albany, 11 Wend. (N. Y.) 539; St. Paul v. Coulter, 12 Minn. 51; Williams v. Augusta, 4 Ga. 509; St. Louis v. Bentz, 11 Mo. 611; Collins v. Hatch, 18 Ohio, 523; New Orleans v. Phillipi, 9 La. Ann. 44; Peck v. Lookwood, 5 Day, 22; Taylor v. Carondelet, 22 Mo.. 105; Phillips v. Allen, 41 Pa. St. 481; Mobile v. Yuelle, 3 Ala. 137? Baltimore v. Radecke, 49 Md. 217. 2 Yates v. Milwaukee, 10 Wall (U. S.) 497; Pieri v. Shieldsboro, 42. Miss. 393; Underwood v. Green, 42 N. Y. 140; Darst v. People, 50 111. 286; Miller v. Buroh, 82 Tex. 209; Everett v. Council Bluffs, 46 Iowa, 66; Rye v. Paterson, 45 Tex. 312; Chicago v. Laflin, 49 111. 172. § 213.] STEEETS, SEWEES, ETC. 281 infringement of such laws. 1 Accordingly, a municipal corporation is not liable in damages for a failure to abate a nuisance existing upon private property when not cre- ated by its agents, though such nuisance exists in viola- tion of its ordinances. 2 JSTor is a town liable for an act which results in creating a nuisance to tbe property of one of its citizens, when the act complained of is not within the scope of its corporate powers. 3 iLevy v. Mayor, 1 Sandf. (N. Y.) 465. 2 Kansas City v. Kiley, 13 Am. & Eng. Corp. Cas. (Mo., 1885) 446; Davis v, Montgomery, 51 Ala. 139; Levy v. New York, 1 Sandf. (N. Y.) 465; Heurson v.. New Haven, 37 Conn. 475; Armstrong v. Brunswick, 79 Mo. 319. 3 Seele v. Deering (Me.), 10 Atl. Rep. 45. In Seele v. Deering, supra, which was an action for damages for injuries to plaintiff's mill-pond, caused by the highway surveyor of the defendant town digging a ditch which turned the drainage from a tripe factory into the pond, thereby rendering the water unfit for use, the court say: " To create a liability on the part of the town not connected with its private advantage, the act complained of must be within the scope of its corporate powers as defined by statute. If the partic- ular act relied on as the cause of action be wholly outside the gen- eral powers conferred on towns, they can in no event be liable there- for, whether the performance of the act be expressly directed by a majority vote, or was subsequently ratified. . . . "It is quite evident that a town, independent of any statutory authority, has no corporate authority to dig ditches across another's land. Such an act is ultra vires; and any express majority vote, based on a proper article in a warrant calling a meeting of the de- fendants, directing such acts, would create no liability on the part of the town. Cushing v. Bedford, 125 Mass. 526; Lemon v. Newton, 134 Mass. 476." See, also, Morrison v. Lawrence, 98 Mass. 219; Brown v. Vinal- haven, 65 Me. 402; Small v. Danville, 51 Me. 359; Woodcock v. Ca- lais, 66 Me. 234; Anthony v. Adams, 1 Met. (Mass.) 284; Estes v. China, 56 Me. 407; Franklin Wharf Co. v. Portland, 67 Me. 46; Pro- prietors, etc. v. Lowell, 7 Gray (Mass.), 223. 282 STREETS, SEWERS, ETC. [§ 214. § 214. Powers as to quarantine regulations. — It has been held that a town organized under general laws with the usual and ordinary powers has no power to establish, a quarantine against property and persons, and a con- tract for services to be rendered in connection therewith is ultra vires and void. 1 In New Decatur v. Berry, supra, the court say : " How the power to prohibit persons from coming into the town under any circumstances can in any just sense be said to be incident to any one of the powers enumerated, we are unable to see. Every power •conferred may be fully exercised and effected without the exercise of the power here claimed. No power conferred would in the slightest degree be aided by the exercise of the power claimed here. The power claimed is not ex- pressly granted ; it is not implied in or incident to any power granted ; it is not essential to the declared objects and purposes of the corporation ; it does not exist. The employment of the appellee by the corporate authorities as ' chief of the quarantine guard ' cannot find justifica- tion or authorization under the power ' to establish night and day watches and patrols, and to appoint captains thereof.' The watches and patrols thus provided for are for the ordinary police of the town, charged with the conservation of the peace and good order and the en- forcement of authorized ordinances of the municipal gov- ernment. None of these duties were to be performed by the alleged quarantine guard, or the appellee as chief of that guard. He was employed, if. at all, solely for the purpose of discharging functions with which the munici- pality had no power to clothe him, and rendering serv- ices which were not in furtherance of any municipal ob- ject or purpose." iNew Decatur v. Berry, 90 Ala. 432; DilL Mun. Corp., §§ 89, 463-465. § 215.] STEEETS, SEWEES, ETC. 2S& § 215. Powers as to puolic wharves. — In the absence of any special statutory authority a city has no power to lease a public wharf to private persons. "When it under takes to confer on a private individual such a right in streets or wharves as will produce a conflict between the public and the private use, the act is ultra vires} So an ordinance giving to private persons the right to occupy a portion of the public wharf with a grain elevator for fifty years, without reserving the right to resume pdssession and regulate the charges, is void. 2 The use and control of public highways, such as streets and wharves, belong- ing to the city, cannot be surrendered by contract to a private individual to the exclusion of the public. Such highways are public property, intended for public use, and placed under the control of the city government for the benefit of the public; and any other disposition of such property, without special authority conferred by the law-making power, must be disregarded. 3 It is a doctrine which has often been decided and is settled law that a municipal corporation mast at all times retain the full possession of its legislative powers so as at all times to be able to discharge its public duties. 4 JBateman v. Covington, 14 S. W. Eep. 361 (Ky., 1890); City of Louisville v. Bank, 3 B. Mon. (Ky.) 138; Dill. Mun. Corp., §§ 659-661. 2 Illinois Canal Co. v. St. Louis, 2 Dill. C. C. 70. 3 Bateman v. Covington, supra. 4 Gale v. Kalamazoo, 23 Mich. 344; People's R. R. v. Memphis R. R., 10 Wall. (U. S.) 38,50; Louisville Ry. v. Louisville, 8 Bush (Ky.), 415; Brooklyn v. City R. R., 47 N. Y. 475; Milhan v. Sharp, 27 N. Y. 611; Presbyterian Church v. Mayor, etc., 5 Cow. (N. Y.) 538; Smith v. Morse, 2 Cal. 524; Stuyvesant v. Mayor, 7 Cow. (N. Y.) 588; Saving Fund v. Philadelphia, 31 Pa. St. 175; Ex parte Mayor, etc., 23 Wend.