1.

RENT.

2. A tenant may recoup damages for a
breach of the landlord's covenant to re-

1. Where the complaint states a cause of
action which, if true, would entitle the
plaintiff to recover back moneys paid by
him to the defendants (upon their re-
presentations that certain steps had been
taken by them toward the completion of
a contract), upon the ground that the
defendants never entered upon a per-
formance of the contract, and the de-
fendants, by answer, interpose a counter-
claim, the trial of which requires the ex-
amination of a long account, the action
is referable, notwithstanding the com-
plaint, by farther averments, charges 4.
that said representations were false and
fraudulent, and such reference is not in
violation of the provisions of the consti-
tution guaranteeing trial by jury.
Townsend v. Hendricks.

REMOVAL OF CAUSES.

503

3.

pair.

There being no covenant by the land-
lord to repair, a parol promise to repair,
being without consideration, is void. 10.

Where a tenant, to secure the payment
of the rent, gave a chattel mortgage upon
furniture-held, no ground for an in-
junction to restrain a foreclosure of the
mortgage, that the premises were out of
repair, and therefore no rent due.

5. The old principle or rule, that the ac-
ceptance of rent under a lease, after a
forfeiture, is a waiver of the forfeiture,”
reasserted, and the leading cases rê-
viewed. Ireland v. Nichols.
289

6.

The Christie case, and the opinion of
Chief Justice Robertson (5 Robertson,
169), reviewed and considered as not
being antagonistic to the current of an-
thorities that support the above rule,
and as being in accordance with many
cases cited, that hold substantially,
"that rent may be paid and received
under circumstances that clearly show
that it was paid and received without
the knowledge or supposition of either
party that thereby the forfeiture was
waived; or that it was paid and received
as a compensation for the use and profits
of the land, and the intention of waiv-
ing the lease expressly negatived by both
parties."

4. A court of equity, in the enforcement
of a specific performance of a contract,
where it appears there was a slight defi-
ciency in the estate, or a variance in the
description, or an incumbrance that can
and should be the subject of compensa-
tion, must consider and provide for the
same in the decree. Compensation fol-
lows as a matter of right, and must be
provided for in the decree in all proper

5. When specific performance of a contract
is decreed, and it appears from the evi-
dence that compensation should have been

given, a failure of the court or referee
to take evidence relating to the compen-
sation, and the amount thereof, and to
consider or provide for the same in the
decree or report, is error.
ib.

6. There are certain conditions or circum-
stances attendant upon every case of
compensation-First, the deficiency, de-
fect, or whatever is complained of, must
be one of that character that can be 4.
made the subject of compensation or of
consideration as damages; and second,
in such a case compensation can be and
should be decreed by the court, provided
that it is also a case where he concludes
that the purchaser would not have de-
clined the contract had he known of the
defect at time of purchase.

STATUTE OF LIMITATION.

ib.

2. Such liability may be solely a creature

3.

In a case where the liability is by stat-
ute solely, or where a particular remedy
for the enforcement of the liability is
provided by the act, differing from the
ordinary common-law remedies, and ex-
clusive in its nature, the liability can be
enforced only in the courts of the State
where the corporation exists, and in the
manner provided by the act. il.

In cases where the act of incorporation
can be construed as merely affirmative
of the common law, leaving each stock-
holder liable for the debts of the com-
pany in the same manner as if not incor-
porated, and no particular or exclusive
remedy is prescribed, then the ler fori
prevails, and the liability may be en-
forced in the courts of any State or ter-
ritory where the person of the stock-
holder may be found.

5. So when an act of incorporation charges
the "property," but not the person, of
the stockholder with the payment of
debts of the corporation, and provides a
remedy in the nature of a proceeding in
rem for the enforcement of such charge,
no personal liability exists against the
stockholder, nor can any personal action
be maintained against him for any debts
ib.
of the corporation.

6. The stockholders of the "North-west-
ern Bank of Georgia" are not personally
liable for the debts of that bank; nor
can a personal action be maintained in
the courts of this State against either of
them for any such indebtedness.

SURROGATE COURTS.

1. The mere recital of jurisdictional facts
in an order made by a surrogate revok-
ing letters testamentary, is not sufficient
to show such jurisdiction. The People
576
ex rel. Meyer v. Hartman.

2. Surrogate courts are courts of limited
jurisdiction, and jurisdiction must in all
cases be shown, and cannot be intended.
is.

3. If a proceeding before a surrogate is
not an original proceeding, but of a
matter over which he had already ac-
quired jurisdiction, then such jurisdic-
tion will continue. But if the proceed-
ing is original, then everything required
by the statute to confer jurisdiction
must appear.

of the act of incorporation, or may arise 4. A power to remove an executor is wholly

out of the contract of indebtedness be-
tween the creditor and the corporation,
depending entirely upon the language of
the statute and the facts of each par-
ticular case.

ib.

independent of any other power given to
surrogates; and to show its valid exer-
cise, it is necessary to show that all
things required by the statute had been
done.

ib.

matter of law upon this evidence, and to
charge the jury in effect, that ANY accept-
ance or approval of the work done under
the sub-contract by plaintiffs' engi-
neer, no matter in what capacity or in
what manner or for what purpose, re-
lieved the sureties, although it did not
relieve the principal contractors from
their obligation that, when completed,
the entire machinery should successfully
perform the stipulated service, and that
this was so, if the acceptance took place
for the principal contractors only, under
authority derived solely from them, and
not for the plaintiffs. That a contractor
cannot appoint an agent and by that
agent do an act which would release his
own sureties and destroy plaintiff's right
of action. The Board of Water Com-
missioners v. Burr.

25

2. Where sureties have bound themselves
by the provisions of their bond, that the
contractors will perform and abide by
any alterations which the parties to the
contract may make therein, a direction
to the jury contained in the general charge
of the court, that if they come to the
conclusion that material alterations have
been made in the contract by the parties
thereto, without the knowledge and con-
sent of the sureties, or that there was any
interference on the part of the plaintiff's
without the consent of the sureties, to
stop there and find a verdict for the de-
fendants, without any qualification of
the language at the time, although the
court, prior to the general charge, had,
on plaintiffs' motion, laid down a propo-
sition containing the true rule of law-
held, that the general charge, if not
erroneous, was at least calculated to mis-
lead the jury, and that a new trial should
be granted upon that ground.

1. Where a contract for certain engines,
pumps, and boilers provided that plain-
tiffs' engineer should be at liberty at all
times to require the rejection of any work
which he should deem inferior, and of
any material which he might deem of im-
proper or inferior quality or strength,
and to require the substitution of other
work and materials, and the contract
further provided for the payment of ad-
vances, as the work progressed, based
upon the relative amount of the work
furnished to the whole sum, and the
principal contractors thereupon made a
sub-contract through plaintiffs' engineer
with other parties, as to part of the work,
according to drawings approved by plain-
tiffs' engineer, and such work was subse-
quently accepted by said engineer as
satisfactory; but where the contract
also provided that, when completed, the
said engines, pumps, and boilers should
perform a stipulated duty; and where
upon the trial of an action brought
against the sureties of the principal con-
tractors for the general non-performance
of the contract, a conflict of evidence
arose upon the following points:-1.
Whether or not the principal contractors
were improperly influenced by plaintiffs'
engineer in the award of the sub-contract
to the sub-contractors; 2. Whether or
not plaintiffs' engineer, in order to bring
about this award, agreed to be responsible
that the sub-contractors would perform
their work perfectly. and in full com-
pliance with and satisfaction of the
original contract; 3. Whether or not 4. Upon conflicting evidence the court will
plaintiffs' engineer, in all which he did in
regard to the sub-contract, acted as the
agent of the principal contractors; 4.
Whether or not an interference took
place by plaintiffs' engineer with the sub-
contractors without the acquiescence of
the principal contractors; and 5. Whe-
ther the acceptance of the work done
under the sub-contract by plaintiffs' en-
gineer was an acceptance on behalf of
the principal contractors, or on behalf of
the plaintiffs, and if on behalf of the
latter, whether it was an absolute one or
made for the sole purpose of making it
the basis for an estimate for advances to
be made under the original contract:
Held, that by such conflict of evidence,
clear issues of fact were raised for the
determination of the jury under proper
instruction from the court. That it was
error for the court below to determine as

3.

ib.

Where there is a general verdict, the
court will assume that the jury has found
it upon all the facts in the case. Van Pelt
v. Otter.

not disturb a verdict.

202

ib.

5. An instrument, although purporting to
be an absolute sale, may be shown by
parol to have been intended as a security
only.
ib.

6.

Where the evidence of the defendant's
negligence is conflicting, it is error to
take it from the jury, and to determine
as a matter of law that there is negli-
gence. Belton v. Baxter.

339

7. Where the evidence before the jury is
sufficient, if credited, to authorize them
to find a verdict for plaintiff, it is error
to direct a verdict for defendant.
Schanck v. Morris.
464

8.

The contents of every writing are to be
proved by the paper itself and by that
alone, if the paper be in existence.
Therefore, in cross-examining a witness,

a party will not be allowed to represent
in a question the supposed contents of a
written deposition, or examination, and
then ask the witness if he had testified
thus. Speyer v. Stern.
516

9. A party may exhibit the writing to the
witness, and by pertinent questions call
his attention specifically to the same or
any part thereof, and inquire as to his
signature or the execution of the same
by him, etc.

ib.
10. If the execution is admitted, the party
may at a proper time read the same in
evidence, or if its execution is denied, it
may be proved and read in evidence at
the proper time for the purpose of con-
tradicting the testimony of the witness
given at the trial. The proper time, as
a general rule, is when the party offering
the same in evidence is conducting the
case, and not upon the cross-examina-
tion.

ib.

11. At no time, however, can a party com-
pel a witness to answer a question, nor
upon objection be permitted to have one
answered, which contains or sets forth
substantially any portion of the subject-
matter of the writing. The writing
itself is higher evidence of its contents
than the statements of the witness in
relation thereto.
ib.

12. After a party has rested his case,
whether for the prosecution or the de-
fense, he cannot "de jure" introduce
any testimony afterwards except what is
clearly in answer or rebuttal of evidence
introduced by the opposite party, before
the party offering the testimony had re-
sumed the case.
ib.

13. A defendant, to avail himself of an
exception to the refusal of the court to
allow him to introduce certain testimony
offered, must have offered the same be-
fore he rested the defense, or it must
clearly appear that the testimony offered
was in answer or rebuttal to the evidence
of the plaintiff introduced after he
(plaintiff) had resumed the case.

TRUSTEES.

8.

5.

6.

7.

4. The recovery of a judgment against
such company is conclusive evidence of
a debt against the company, and is open
to attack by others only for fraad or
collusion.

When it is shown that a person had
been elected a trustee of a corporation,
his acceptance will be presumed.

Corporations are not dissolved by inso!-
vency or non-user. Those are grounds
for judicially declaring them dissolved.
Dissolutions can be effected only in the
manner prescribed by statute. id.

The liability of a trustee for the omis
sion of a corporation to make an annual
report, is in the nature of a penalty, and
within the three years' limitation of
action for penalties or forfeitures. ib.
A trustee in office at the time a corpors-
tion fails to make its annual report,
liable for all the existing debts of the
company, and such as may thereafter be
contracted, until the report is filed i
9. And such liability attaches upon each
default of the company, so long as the
trustee remains in office. So that al-
though there have been several successive
defaults of the company, and the first
of which was more than three years be-
fore suit brought, but the last was within
three years, the action is maintainable
upon the last default, and the statute of
limitations is not a bar.

10. A new and original liability is created
on each default, and if any of the de-
faults is within three years, it may be
made the foundation of the action; and
the creditor is not bound to confine him-
self to the first default.

ib.

11. A trustee of a corporation, created
ib.
under the general act for the incorpera-
tion of manufacturing and mining com
panies, being made liable, upon the
default of the company to file an annual
report, for the existing debts of the
company, is liable for such debts, al-
though they were contracted before he
became a trustee. Nimmons v. Hennion.

1. The liability imposed by statute upon
trustees of manufacturing companies for
neglecting to make and file an annual
report, is in the nature of a penalty for
misconduct in office. The penalty im-
posed is the debt of the corporation.
Dabney v. Stevens.

415