CONTRACTS-Continued.

relief against its terms; and where it is executory it will not enforce it. Wheelock v. Bank. 622

A contract based upon suppression of criminal proceedings is illegal and parties entering into it for that purpose are in pari delicto, and neither can have relief against the other. Ib. Where the condition or position of two contracting parties is glaringly unequal, and the mind of one is overborne by the other, they are not on an equality of guilt, and the rule of pari delicto will not apply. Ib. CORPORA

TIONS.

See also MUNICIPAL

The true principle upon which the legal owner, as distinguished from the equitable owner, of shares of stock in a corporation is held liable to creditors, is based upon the ground of estoppel. Where persons permit their names to appear upon the books of the company as the legal owners, the law will presume that creditors dealt with the corporation upon the faith of the individual responsibility of the stockholders who so appeared as the legal owners of the stock. Ib.

The foregoing rule does not apply where stock in a corporation is held in a trust or fiduciary capacity

and the fact that it is thus held is disclosed by the stock books of the company. In such cases the creditor must be charged with notice of the fact that the party whose name appears upon the registry is not the real owner. Ib.

A party who subscribed for shares of stock in the Union Banner Brewing Co. cannot be held for stock in the Banner Brewing Co. where it appears that upon discovering the fact he entered into a verbal agree ment to take merchandise for the sum subscribed, from which it is fair to infer that the stock was to be canceled. Ib.

A corporation whose assets are only one-fifth of its liabilities is insolvent. Carter Cattle Co. v. McGillin. 146

A probate court in this state has power to appoint a trustee of an insolvent corporation, provided such insolvent has property within the state. Ib.

Where such an insolvent corporation attempts to prefer creditors by giving notes, which notes are reduced to judgment, such judgments are conclusive and fraudulent and can be attacked in a collateral proceeding. Ib.

Under sec. 3239, Rev. Stat., relating to the organization of carporations, there is no power conferred to convey property beyond the requirements of the corporation to effect the objects of its incorporation.

Ib.

Where certain creditors of an insolvent corporation bring an action to set aside judgments based upon notes given by such corporation to prefer creditors, the adjudication of such issue cannot affect the rights of other creditors who had no Ib. part therein.

Where the disability of an insolvent corporation to prefer creditors, is organic, it has no power in another state to prefer creditors, although its property is locat ed there, and such preference is not forbidden by the laws of such other state. Ib.

The disability of an Ohio corporation to prefer creditors after it be comes insolvent and ceases to prosecute the objects of its creation, is organic; and from the moment of such insolvency all power to convey its property ceases, and all its prop

erty becomes a trust fund, held by the directors as trustees: first, for the creditors; second, for the shareholders. And the claim of creditors will be enforced by converting all persons, except bona fide purchasers for value, into trustees, and compelling them to account for the property. Ib.

General legislation of the sovereignty creating a corporation is not determinative of the power or capacity of a corporation, but the language of its charter is so determinative. Therefore, in determining whether a corporation has a given capacity, reference must be had to its organic form, as evidenced by its charter. Ib.

Where a petition for the dissolution of a corporation, on the ground that it is for the best interests of the stockholders, and for an order under sec. 5672, Rev. Stat., requiring directors to file inventories, accounts and statements, is opposed by other stockholders, denying the allegations of the petition, the court should give the parties an opportunity to be heard before making any order. Fitch v. Carriage Co. 341

The renewal of notes by a corporation after the sale or transfer of stock by a stockholder do not release the stockholder from liability thereon, although the renewals were made without his knowledge or consent. Hauenschild v. Coffin Co. 536

A petition in an action by stockholders against a corporation to restrain it from certain acts and for the appointment of a receiver to wind up its affairs, alleging that there was no officer, director or stockholder to whom plaintiffs could go to secure redress is sufficient, without showing that a request to have their rights.adjusted was first made to the corporation. Kuhn v. Woolson Spice Co. 292

The registered owner of a share of stock in a corporation, which he holds as trustee for the real owner, is a proper party plaintiff under sec. 5005, Rev. Stat., in an equitable action against such corporation, the officers and directors thereof, and another corporation, for the appointment of a receiver for the first corporation, to wind up its affairs and to restrain a sale of the stock of the first corporation to the officers of the second corporation although the

Equity will not entertain a bill by stockholders in a corporation asking aid to one monopoly as against another, or interfere with the laws of trade, permitting one party to drive another party out of business by underselling him. Ib.

A corporation organized solely for the purposes of a charity hospital, having no capital stock and declaring no dividends, and using its income, derived from voluntary contributions, except in certain cases where a reasonable amount is charged for board, room and nursing to those who are able to pay, in the management of the hospital, is not liable for injuries to a pay patient through the negligence of a nurse, where it does not appear that the corporation was negligent in the selection of its servants. Sisters of St. Francis.

COSTS AND FEES

Conner V. 86

A defendant in a criminal case, whose conviction in the court of common pleas was reversed by the circuit court, is entitled to recover of the county, as costs, fees which he was required to pay to the official stenographer for a transcript of the evidence on the trial in common pleas, in order to secure same in time to get his case into the circuit court. Martin v. Clinton Co. 287

COUNTY SURVEYOR—

See OFFICES AND OFFICERS.

COURTS

It is not the province of courts to relieve against the mistakes or omissions of the legislature, however unwise or unjust may be the consequence. Therefore, if a reasonable intention can not be fairly inferred from any language used in the statute, the courts must construe accord131 ingly. Gorham v. Steinau.

A nisi prius judge will not disregard the holding of the Supreme Court that "a judgment of dismissal without prejudice is not a judgment from which an appeal may be taken under sec. 3 of the justice act," notwithstanding the claim that so far as the subject of appeals is concerned that declaration is an obiter. Strauss v. Jacobs. 132

If there is any relaxation of the rule as to magistrates generally, it is as to matters of form only. The charge, whether in affidavit or indictment, must allege in some form, with reasonable certainty, every material fact necessary to be proven to procure a conviction, which includes every fact essentially necessary to a description of the offense. Ib.

In criminal prosecutions for using or uttering obscene or licentious language or for libel or profane swearing, enough of the language should be set forth and such other proper allegations as are necessary to show that a crime has been committed. Any thing less than this renders an affidavit or an indictment fatally defective.

Ib.

Where in a trial upon a charge of a criminal offense, it becomes material to prove upon the part of the state that a conspiracy existed between two or more persons, one of whom is being tried for the offense, evidence that the same persons were, shortly prior to or shortly after the alleged crime, engaged in a conspiracy to commit crimes of a like character, is competent. State v. Jacobs. 252

DAMAGES

The measures of damages in an action for personal injuries includes compensation for loss of time, phy. sician's fees, reasonable expenses incurred, to effect a cure, necessary expenses for nursing, an allowance for physical suffering or pain sustained and endured by reason of the injury and also compensation for loss of earnings by reason of the permanency of his injury. Connors v. Golding. 614

DEBTORS AND CREDITORS

A

debt, without special provision in regard to payment, is payable at any place; and, hence, may be attached at the domicile of the debtor, although the creditor's domicile may be elsewhere. Barbour v. Boyce.

428

In proceedings by a judgment creditor to reach assets of the debtor, the burden of proof is on the plaintiff to show that the assets mentioned are the property of the judgment debtor. Carter Cattle Co. v. McGillin. 146

Renewals of notes, or changes in the form of the evidence of a precedent debt, do not create a new debt or operate as a discharge or satisfaction of the old debt, unless it is so expressly agreed between the parties. Hauenschild v. Coffin Co. 536 See INSOLVENCY.

DEEDS

The voluntary execution by plaintiff of a deed of her lands to the holder of paper forged by her husband and father and brother for the purpose of stifling a criminal prosecution against them, is not duress for which the conveyance will be set aside where it appears that the conveyance was made by procurement of the wife, under advice of counsel and upon due deliberation and with

on one of such members, saves the proceeding in error as to the other members not served, but the other partners should be served before the case is heard. Ib.

Section 4987, Rev. Stat., providing that an action shall be deemed commenced as to each defendant, at the date of the summons which is served on him or on a codefendant who is united in interest with him, is applicable, by analogy, to petitions in error. Ib.

All the parties to a joint judgment are necessary parties to a petition in error by one of them; and while omitted parties may be brought in by, amendment, such parties must nevertheless be brought in within the period for filing petitions in error or the reviewing court will have no jurisdiction. Loewenstein v. Rheinstrom Bros.

Neither the payment into the city treasury of the purchase price of the outside part of the plant, nor the resolution of the council directing the gas trustees to deliver the property to the purchasers, constitutes a defense to an action, under sec. 1777, Rev. Stat., prosecuted for the benefit of tax-payers, proceeding upon the theory that the city is abusing its corporate powers, or is about to execute a contract in violation of law; until the property is delivered to the company the transaction is not completed and if the

The rate of speed is a fact to be established like any other fact. The statement of a witness that the train was "fast," without testimony as to the usual rate of speed, is not such evidence as furnishes data by which the judgment of a jury can be applied and the rate of speed determined as a basis for the charge of negligence, even if there are other facts connected with the case which might properly be submitted to the jury. Watson v. Railroad Co. 454

It is not sufficient to merely introduce a document required by law to be attested, and then rest, when objection is made; the defendant is entitled to proof of the execution of the document; and failure to require such proof constitutes reversible error. Schaupp v. Jones. 597

See also FRAUD AND FRAUDULENT CONVEYANCES.

EXECUTION

The sheriff is entitled to the possession of goods and chattels taken on execution previous to the debtor's assignment thereof for benefit of creditors, and to sell so much thereof as may be necessary to pay the amount due on the execution. Mack v. Steinau. 701

A person holding an equitable lien on real estate cannot enjoin a sheriff from proceeding to sell the property upon a judgment and execution against the owner of the fee, the judgment creditor not being made a party to such proceeding. Schubert v. Taylor.

EXECUTORS TORS

585

AND ADMINISTRA

Where an administrator made a wrong distribution of an estate, upon a finding that there were no such children as those designated in the will, and notice of the petition in the probate court was advertis

ed but five weeks, when it should have been advertised for six weeks, the order is void for want of jurisdiction and the administrator and sureties on his bond are liable to the rightful distributees. Sate v. Pease.

722

The probate court may refuse the application of the widow to be appointed administratrix of her hus band's estate when it appears that such appointment would cause friction and unpleasant relations between her and the next of kin, and would interfere seriously with the best interests of the estate. Administratrix, In re. 731

Failure of an administrator to properly administer an estate does not of itself afford reason for not allowing him compensation. In matter of Est.

Craig, 733 investing

An administrator funds of the estate so as to bear interest, is chargeable with the amount earned by the interest bearing fund. Ib.