INDEX.

THE mode of citation of the volumes of the American and English Railroad
Cases will be as follows:

7 Am. and Eng. R. R. Cas.

ADMINISTRATOR, HAS NO POWERS BEYOND JURISDICTION OF STATE, 23.
See PLEADING AND PRACTICE, 1, 2.

AGENCY.

1. Each of the corporations, viz., the N. and C. Bridge Co., established by
the laws of Ohio, and the same company, established by the statute of Ken-
tucky, are agents for each other, and each is bound by the act of the other
in the transaction of their common business. Newport, etc., Br. Co. v. Woolley,

18.

2. An employment by the Kentucky corporation of appellee as an attorney
binds the Ohio corporation for the payment of a reasonable fee for his ser-
vices. Id.

AGENT CANNOT MAKE AFFIDAVIT for Change of VenUE, 69.

See PLEADING AND PRACTICE, 7.

GOVERNOR'S POWER AS AGENT OF STATE, 147.
See CONSTITUTIONAL LAW, 4, 5.

DECLARATIONS OF, AS EVIDENCE AGAINST PRINCIPAL, 414.
See PLEADING AND PRACTICE, 21, 22.

ANIMALS.

1. Plaintiff proved the killing of a horse by the railroad. The railroad com-
pany admitted the killing and proved that it was unavoidable, and that the com.
pany's servants were not guilty of negligence. Jury found for plaintiff. On
appeal the verdict was set aside. Chicago, etc., R. R. Co. v. Packwood, 583.

2. Under statute declaring that the killing or damaging of stock by the cars
of a railroad company shall be prima-facie evidence of negligence, the uncon-
tradicted and unimpeached testimony of such employees of the company as are
presumed to know the facts that there was no negligence, overcomes the prima-
facie case of the plaintiff, and he cannot recover. Kentucky, etc., R. R. Co. v.
Talbot, 585.

3. In an action to recover damages for killing live stock, the plaintiff must
prove affirmatively that want of ordinary care on the part of the company or
its employees caused the injury. P. C. and St. L. R. R. Co. v. McMillan, 588.
4. Such inference does not arise from the mere fact that the animal was
killed. Id.

5. Where evidence against a railroad for negligently killing plaintiff's bull
was very slight-barely sufficient to justify the court in submitting the case to
the jury, and the court, at the request of the plaintiff, had instructed the jury
that negligence need not be proved by positive and direct evidence, but that it
would be sufficient, if the jury were satisfied of its existence from all the facts
and circumstances of the case; Held, that it was error to refuse the defendant
7 A. & E. R. Cas.-41

ANIMALS-Continued.

an instruction to the effect that negligence on its part could not be inferred from
the mere fact that the train struck and killed the animal. McKissock v. St.
Louis, etc., R. R. Co., 590.

6. In an action for negligently killing the stock of the plaintiff by its train be-
ing run at too great speed, the testimony of witnesses as to the sound heard by
them while in the vicinity of the moving train is admissible on the question of
the speed of such train. The weight of such evidence is for the jury to de-
termine. Where plaintiff, without excuse or justification, allowed her horses to
be exposed to accidents from passing railroad trains, a town ordinance prohibit-
ing stock to run at large should have been admitted in evidence. Van Horn .
Burlington, etc., R. R. Co. 590.

7. The evidence of witnesses who are familiar with stock of a description
similar to that which was killed is competent. It is immaterial whether they
have seen the identical stock for which the action is brought or not. Smith v
Indianapolis, etc., R. R. Co. 582.

ASSESSMENT.

See CARRIER, 1-3. FENCES, 4-10, 13-16.

FORM OF CERTIFICATE, 362.

See TAX.

See TAX, 50.

ROLL, FAILURE TO RETURN, WITHIN TIME FIXED BY STATUTE, 847.
See TAX, 47.

1. The object of sec. 13, art. 11, of the Illinois constitution, in providing that
"no railroad corporation shall issue any stock or bonds, except for money, labor,
or property actually received and applied to the purposes for which such corpo-
ration was created," and that "all stocks, dividends, and other fictitious increase
of the capital stock or indebtedness of such corporation shall be void," was to
prevent speculators, under the guise or pretence of building a railroad, or of ac-
complishing some other legitimate corporate purpose, from fraudulently issuing
and putting upon the market bonds or stocks that do not, and are not intended
to, represent money or property of any kind, either in possession or in expec-
tancy, the stock or bonds in such case being entirely fictitious. Peoria, etc.,
R. R. Co. v. Thompson, 101.

2. But it was not intended by that provision to interfere with the usual and
customary methods of raising funds by railroad companies, by the issue of its
stocks or bonds, for the purpose of building their roads, or of accomplishing
other legitimate corporate purposes. Under that provision of the constitution,
railroad companies have no right to lend, give away, or sell on credit, their
bonds or stock, nor have they the right to dispose of either, except for a present
consideration, and for a corporate purpose. But if, upon a sale of its stock or
bonds by a railroad company for a present consideration, it should subsequently

BOND-Continued.

divert the proceeds to other than corporate purposes, the purchaser of such stock
or bonds, who has acted in good faith in the matter, or his assignee, cannot be
affected by the subsequent misappropriation by the company. Id.

3. In short, where one for a present consideration, in good faith, purchases
bonds or stocks in the regular course of business from a railroad company, and
such consideration is accepted by the proper officer of the company, and nothing
appears to show that it is to be used or applied to other than legitimate corporate
purposes, such bonds or stocks, when thus issued, will be regarded as having
been issued for money, labor, or property "actually received and applied,"
within the meaning of the constitutional provision. Id.

4. It was held in Olds v. Cummings, 31 Ill. 188, that the holder of commer-
cial paper, seeking to enforce in equity a mortgage security therefor, was sub-
ject to any defence which would have been good against the mortgage in the
hands of the mortgagee himself, although such a holder may have purchased the
paper in good faith, and before its maturity. Id.

5. But this doctrine has no application to deeds of trust given to secure rail-
road coupon bonds intended to be thrown upon the market and circulated as
commercial paper, and to be used as securities for permanent investments. Id.

6. So where such railroad bonds, secured by deed of trust for the benefit of
the holders thereof, had been issued and delivered to contractors engaged in
the construction of the road, and by them disposed of in the market to innocent
purchasers, on bill by the trustee to foreclose the deed of trust for the benefit
of the bondholders, it was held, the unsettled equities and matters of account
between the company and contractors could not be interposed in defence against
the bill. Id.

7. A part of the reasoning of the court in Chicago, etc., Ry. Co. v. Loewenthal,
93 Ill. 433, is not to be reconciled with the rule here announced. But what
appears in the opinion relating to the question here mentioned was said in argu-
ment, and after the case had been decided upon another distinct ground and
without any argument of the question except upon one side. Under these cir-
cumstances it is considered that what was there said ought not to be and is
not regarded as conclusive of the question, and the court is satisfied the view
now presented is the correct one. Id.

8. While it is the general principle that negotiable securities issued by a cor-
poration without authority of law, or in express violation of a statute, are in-
operative and void even in the hands of innocent holders, yet there is another
rule of law equally well settled-that although a contract entered into by the
agents or officers of a private corporation is ultra vires, and therefore not bind-
ing on the company so long as it remains executory, yet if the company in such
case knowingly permits the other contracting party, without objection, to go on
and perform the contract on his part, and thereby obtains and appropriates to
its own use money, property, or labor in furtherance of some legitimate cor-
porate purpose, it will be estopped from denying its liability on such contract.
Id.

9. Where a railroad, its appurtenances and franchises, are mortgaged as a
whole, there is no power or authority to sell them separately, and such property,
taken as a whole, not being, strictly speaking, either real or personal estate,
when sold on a decree of foreclosure, is properly sold without any right
of redemption. The rule is founded partly upon considerations of public
policy. Id.

10. Under the provisions of the act approved February 21st, 1870 (Sess. Acts
1869-70, pp. 149-57), authorizing the indorsement by the governor, in the name
of the State, of the bonds of railroad companies, although no indorsement could
be made until twenty continuous miles of road had been finished, completed and
equipped, and subsequent indorsements were authorized only as sections of five
continuous miles were finished, completed and equipped; yet the statutory lien
given to the State, on account of such indorsements was not limited or restricted
to the portions of the road then finished, nor to the property then owned by the
railroad company, but extended to the entire road, its franchises, and all prop-
erty then belonging to it, or afterwards acquired; and this lien, by the express

BOND-Continued.

words of the statute, was declared prior and superior to all liens or incum-
brances created by the railroad company, and all other claims existing or to exist
against it. Colt v. Barnes, 129.

11. This statutory lien is declared to be "for the payment by said company of
said bonds, with the interest thereon, as the same becomes due," and a railroad
company having executed a mortgage, or deed of trust, for the benefit of all its
bondholders, and afterwards made default and become bankrupt, the holders of
the indorsed bonds are entitled to be subrogated to the statutory lien of the
State, on bill filed by the trustees to foreclose the deed of trust, and are entitled
to be first paid out of the proceeds of sale of the property. Id.

12. Under a bill to foreclose a mortgage or deed of trust executed by a rail-
road company for the benefit of all its bondholders, filed by the trustees against
the purchasers of the equity of redemption at a sale in bankruptcy; all the bond-
holders having come in and proved their claims before the register under a refer-
ence, and his report disclosing the fact that some of the bonds had been indorsed
by the State under the provisions of the act of February 21st, 1870; the chan-
cellor must of necessity determine the order in which the clains shall be paid;
and since no motion or petition was necessary for that purpose, it is immaterial
that the holders of the indorsed bonds asserted their right of priority by petition-
and that the chancellor acted on it without notice. ld.

13. Under the provisions of the act approved November 17, 1868, relating to
the Wills Valley R. R. Co. and the North-east and South-west R. R. Co., it was
made the duty of the governor to indorse, in the name of the State, the bonds of
the company owning the franchises of the corporation last named, whenever it
should appear to him, "by satisfactory proof," that particular sections of the
road had been finished, completed, and equipped; and he was required by the
act approved February 19, 1867, to make such indorsements on bonds, on the
affidavits of the president and chief engineer, and a resolution of the board of
directors, showing and promising compliance with the conditions of the act.
Under these statutory provisions, if satisfactory proof was made to the governor
of the completion and equipment of a specified number of miles of the road, and
the affidavits and resolution required by the statute were made and presented to
him, it was his duty, not having reason to doubt the truth of the facts as stated
and certified, to indorse the bonds of the company to the amount thereby shown
to be proper; and such indorsements would be a valid exercise of his statutory
power, and would be binding on the State, although it might be made to appear,
in a subsequent controversy between individual bondholders, that the affidavits
were false, and that he had in fact indorsed more bonds than the company was
entitled to receive. State, ex rel. Plock v. Cobb, 147.

14. The statute itself contains provisions intended to protect the State against
indorsements obtained by fraud or mistake, or bonds sold by the company at
less than ninety cents on the dollar; and exact conformity between the amount
of bonds indorsed and the actual length of the road, at the rate of $16,000 per
mile, is not a "term, condition, or requirement of the statute," on which de-
pended the power and duty of the governor to make the indorsements. Id.

15. The object and purpose of the indorsement of these railroad bonds by the
State, under the statutes above mentioned, was to improve their credit, and to
facilitate their currency. On their face, they are negotiable instruments by the
general commercial law, which must be presumed to be of force in Boston,
where they are made payable, and are capable of transfer by delivery; and the
State is liable as the indorser of such paper. Id.

16. The bonds being negotiable, regular on their face, and reciting in the in-
dorsement a compliance by the company with the conditions of the statute, an
innocent holder for value is not affected by any fraud or mistake in their over-
issue; and the dishonor of the unpaid interest coupons would not charge him
with notice of any defect in them. Id.

17. The statutes do not require that the bonds shall be numbered, nor that
they shall be indorsed in numerical order, nor that they shall be sold or nego-
tiated by the company in any particular order; and the numbers on the several

BOND-Continued.

bonds do not indicate anything as to the time when they were issued or nego-
tiated. Id.

18. The act of Governor Lindsay, in 1871, in refusing to pay interest on the
bonds numbered above 4720, if held to be the act of the State, was strictly ex
parte, and cannot affect the rights of the holders of those bonds. Id.

19. The act approved February 23, 1876, authorizing the retirement of the
bonds of the Alabama and Chattanooga R. R. Co., which had been indorsed by
the governor in the name of the State, and the substitution of new bonds in their
stead (Sess. Acts 1875–6, pp. 130-49), embraces and applies to all the indorsed
bonds bearing date in 1869, and makes no distinction between those regularly
issued and those reported by the "State debt commissioners" as "over-issue.'
Id.

20. The municipal authorities of Statesville were authorized by the act of 1861,
ch. 176, subject to a vote of the qualified voters of the town, to issue certain
coupon bonds, with a provision that they shall be signed by the town magistrate,
treasurer and commissioners thereof. After a vote approving the same, the
bonds were issued, but signed only by the town magistrate and treasurer; Held,
that the act was directory, and the omission of the commissioners to sign the
bonds was not fatal to a recovery upon them. Bank of Statesville v. Statesville,
178.

21. In a suit on certain coupon bonds of a county, to which the defence was
made that the county had issued more bonds than was allowed by law, held, on
the facts, that the class known as donation bonds were first authorized, and
were valid, even conceding that the alleged limit in amount was exceeded by the
class known as subscription bonds. County of Moultry v. Fairfield, 194.

22. Inasmuch as the bonds showed their regularity on their face and the au-
thority under which they were issued, the bona-fide holder was not bound to
look further and inquire whether the limit in amount had been exceeded. Id.

23. One section of the charter of a railroad provided that the counties along
its line might make subscriptions or donations to the railroad after a popular
vote authorizing it; and another section provided that a particular county might,
by its board of supervisors, make a subscription of a certain amount, and did
not require a popular vote; Held, that the two sections were not inconsistent,
and that a donation might be made under one and a subscription under the
other. Id.

24. It appearing that the donation was authorized in 1869, the bonds were not
invalidated by the amended Constitution of Illinois of 1870, but come within
the proviso of the first additional section of the same. Id.

25. The mere transposition of two of the words of the name of the railroad to
which the aid was to be voted in the petition for and notice of the election au-
thorizing the subscription, did not avoid the donation nor the election, it being
evident what railroad was intended. Id.

26. It is no defence to a suit on the bonds that the payment of the same will
require the levy of a tax greater than the State Constitution allows, even if the
constitutional limit applies to the case at bar; as to which the court expresses
no opinion. Id.

27. Limitation under the statutes of Wisconsin to actions upon coupons of
municipal bonds, issued in 1857, payable twenty years after date. The cause of
action upon a coupon, whether detached from the bond or not, held to accrue,
and limitation to commence, from its maturity. Town of Koshkonong v. Bur-
ton, 203.

28. It is within the constitutional power of the Legislature to require, as to
existing causes of action, that suits for their enforcement shall be barred unless
brought within a less period than that prescribed when the contract was make,
or the liability incurred, from which the cause of action arose. The exertion of
this power is, therefore, subject to the fundamental condition that a reasonable
time, taking all the circumstances into consideration, be given by the new law
before the bar takes effect. Id.

29. If interest upon interest, whether arising upon express or implied agree-
ment, is allowed by the local law at the time of the contract, that right cannot