by the President by virtue of the provisions of § 1745 of the Revised
Statutes. United States v. Mosby, 273.
2. Fees collected by a consul for the examination of Chinese émigrants
going to the United States on foreign vessels; and fees for certificates
of shipment of merchandise in transit through the United States to
other countries; and fees for recording instruments which are not
official documents recorded in the record books required to be kept by
the consul, but relate to private transactions for individuals, not re-
quiring the use of the consul's title or seal of office; and fees for
cattle-disease certificates; and fees for acknowledgments and authen-
tications of instruments certifying the official character and signature
of notaries public; and fees for settling private estates; and fees for
shipping and discharging seamen on foreign-built vessels sailing on
the China coast under the United States flag; are not moneys which
he is required to account for to the United States. lb.
3. Fees collected by him for certifying extra copies of quadruplicate
invoices of goods shipped to the United States; and money received
for interest on public moreys deposited in bank; and fees collected
for certificates of shipments or extra invoices; and fees for certifying
invoices for free goods imported into the United States; are moneys
which he is required to account for to the United States. Ib.
4. The practice of consuls to do acts which are not official is recognized
by the statutes and the consular regulations. 16.
5. The claimant had a judgment in the Court of Claims against the
United States for $13,839.21. Both parties appealed. The items of
the disallowance of which the claimant complained did not amount to
more than $3000. But it was held that he could avail himself of
anything in the case which properly showed that the judgment was
not for too large a sum; and this court, disallowing one of the items
allowed to him, allowed one of the items disallowed, and rendered a
judgment in his favor for a less amount than that rendered below. Ib.
1. The city of Galesburg, Illinois, by an ordinance, granted to one Shelton,
and his assigns, in May, 1883, a franchise for thirty years, to construct
and maintain water works for supplying the city and its inhabitants
with water for public and private uses, the city to pay a specified rent
for fire hydrants, and a tariff being fixed for charges for water to con-
sumers. In December, 1883, the water works were completed by a
water company to which Shelton had assigned the franchise, and
a test required by the ordinance was satisfactorily made, and the city,
by a resolution, accepted the works. The water furnished by the
company for nine months was unfit for domestic purposes. After
November, 1884, the supply of water was inadequate for the protection
of the city from fire, and its quality was no better than before.
During eighteen months after December, 1883, the company had ample
time to comply with the contract. The city, by a resolution passed
June 1, 1885, repealed the ordinance, and then gave notice to the
company that it claimed title to certain old water mains which it had
conditionally agreed to sell to Shelton, and of which the company
had taken possession. The city then took possession of the old mains,
and, in June, 1885, filed a bill in equity against the water company to
set aside the contract contained in the ordinance and the agreement
for the sale of the old mains. In August, 1883, the company executed
a mortgage to a trustee on the franchise and works, to secure sundry
bonds, which were sold to various purchasers in 1884 and 1885. The
interest on them being in default, the trustee foreclosed the mortgage
by a suit brought in November, 1885, and the property was bought by
a committee of the bondholders, in November, 1886. In February,
1886, the trustee had been made a party to the suit of the city. After
their purchase, the members of the committee were also made parties
and they filed a cross-bill, praying for a decree for the amount due by
the city for water rents, and for the restoration to them of the old
mains, and for an injunction against the city from interfering with the
operation of the works. After issue, proofs were taken; Held, (1)
The supply of water was not in compliance with the contract, in
quantity or quality; (2) The taking possession by the city of the old
mains was necessary for the protection of the city from fire; (3) The
contract of the city for the sale of the old mains was conditional and
was not executed; (4) The city was not estopped, as against the
bondholders, from refusing to pay the rent for the hydrants, which,
by the mortgage, was to be applied to pay the interest on the bonds,
or from having the contract cancelled; (5) The obligation of Shelton
and his assigns was a continuing one, and their right to the continued
enjoyment of the consideration for it was dependent on their cou-
tinuing to perform it; (6) The bondholders were bound to take
notice of the contents of the ordinance before purchasing their bonds,
and purchased and held them subject to the continuing compliance
of the company with the terms of the ordinance; (7) In regard to the
old mains, the lien of the mortgage was subject to the conditions of
the agreement for the sale of them by the city to Shelton; (8) A suit
by the city for a specific performance of the contract, or one to recover
damages for its non-performance would be a wholly inadequate remedy
in the case; (9) A decree was proper annulling the ordinance and the
agreement; dismissing the cross-bill; directing the city to pay into
court, for the use of the cross-plaintiffs, $3000, as the value of the use
of the water by the city from December, 1883, to June, 1885; and
dividing the costs of the suit equally between the city and the cross-
plaintiffs. Farmer's Loan and Trust Co. v. Galesburg, 156.
Where the subject matter of a contraet relates to the construction of a
railroad in Massachusetts, and the defendant resides there, and the
contract was made there, and a suit on the contract is brought there,
the law of Massachusetts is to govern in expounding and enforcing
the contract, and in determining the rule of damages for a breach of
it. Mills v. Dow, 423.
3. Where a contract states that the purchasing price of its subject matter
is $15,000, and that that sum has been "this day advanced and paid "
therefor, it is competent for the vendor, in a suit by him on the cou-
tract, to show that only $10,000 was paid, with a view to recover the
remaining $5000. Ib.
4. The language of the contract is ambiguous and does not show actual
prior or simultaneous payment. Ib.
5. Evidence of a promise by the defendant, as a part of the consideration
of the contract, to pay certain debts mentioned in it which the plaintiff
owed, is admissible; and the refusal of the defendant to pay those
debts on demand was a breach of the contract.
6. An agreement to "assume" a prior contract, and to save the plaintiff
harmless from "all liability " by reason of certain other contracts, is
broken by a failure to pay the parties to whom the plaintiff was liable,
and it is not necessary to a breach that the plaintiff should show that
he had first paid those parties. Ib.
7. The agreement is not merely one to indemnify the plaintiff from dam
age arising out of his liability, but is an agreement to assume his
contracts and to discharge him from his liability. 1b.
8. Such agreement was a personal one on the part of the defendant. 16.
9. Where losses have been made in an illegal transaction, a person who
lends money to the loser, with which to pay the debt, can recover the
loan, notwithstanding his knowledge of the fact that the money was
to be so used. Armsirong v. American Exchange Bank, 433.
10. An obligation will be enforced, though indirectly connected with an
illegal transaction, if it is supported by an independent consideration,
so that the plaintiff does not require the aid of the illegal transaction
to make out his case. Ib.
11. It does not appear that the plaintiff had knowledge or notice that the
paper in suit was delivered to it to be used through it by K. & Co. in
connection with an attempt to corner the market. 1b.
12. In an action brought against one party to a contract by an assignee
seeking to charge him by virtue of a contract of assignment from the
other party and other facts, a complaint stating the same facts, not
under, oath, and signed by attorney only, in an action by the assignee
against his assignor, is incompetent evidence of an admission by the
plaintiff that he had no cause of action against this defendant. Dela-
ware Co. Commissioners v. Diebold Safe & Lock Co., 473.
13. By a contract for the construction of a jail, under the statute of Indi-
ana, (which requires all such contracts to be let to the lowest responsi
ble bidder, taking a bond from him for the faithful performance of
the work,) the contractors agreed to construct the jail and to provide
all the materials therefor within a certain time for the sum of $20,000,
which the county commissioners agreed to pay, partly in monthly pay-
ments on their architect's certificate, and the rest on the completion
and acceptance of the building; and it was agreed that the county
should not in any manner be answerable or accountable for any ma-
terial used in the work and that, if the contractors should fail to finish
the work by the time agreed, they should pay $25 as liquidated damages
for every day it should remain unfinished. The contractors assigned
to a third person the obligation to do the iron work upon the jail, as
if it had been awarded directly to him, and the right to recover therefor
from the commissioners $7700 at the times mentioned in the original
contract. The assignee did the work to the satisfaction of the com-
missioners, and to the value of $7700, but not within the time stipu-
lated in the original contract; Held, that the assignments, though
notified to the commissioners, if not assented to by them, did not
make them liable to the assignee, or prevent them from making a set-
tlement in good faith with the original contractors. 1b.
1. In the absence of an enabling statute, either general or special, a rail-
road or other corporation cannot purchase and hold real estate indefi-
nitely, without regard to the uses to be made of it. Case v. Kelly, 21.
2. The rule that the limitation of the power of a corporation in a State
to receive and hold real estate concerns the State alone does not apply
when the corporation, as plaintiff, seeks to acquire real estate which
it is not authorized by law to acquire. Ib.
3. While the relations of a party towards a corporation, as a director and
officer, or as its principal stockholder, do not preclude him from enter-
ing into contracts with it, from making loans to it, and from taking
its bonds as collateral security, a court of equity will refuse to lend its
aid to their enforcement unless satisfied that the transaction was
entered into in good faith, with a view to the benefit of the company
as well as of its creditors, and not solely with a view to his own bene-
fit. Richardson's Executor v. Green, 30.
4. In the case of a corporation, as in that of a natural person, any convey-
ance of its property, without authority of law, in fraud of its credi-
tors, is void as to them. Ib.
5. The capital stock of a corporation, when it becomes insolvent, is, in
law, part of its assets, to be appropriated to the payment of its debts,
and if any part of it has been issued without being fully paid up,
court of equity may require it to be paid up. lb.
6 On the dissolution of a corporation at the expiration of the term of its
corporate existence, each stockholder has the right, as a general rule,
and in the absence of a special agreement to the contrary, to have the
partnership property converted in so money, whether such a sale be
necessary for the payment of debts, or not. Mason v. Pewabic Mining
Co., 50.
7. Directors of a corporation, conducting its business and receiving moneys
belonging to it after the expiration of the term for which it was in-
corporated, will be held to an account on the dissolution and the
final liquidation of the affairs of the corporation in a court of equity.
Ib.
8. When a legislature has full power to create corporations, its act recog-
nizing as valid a de facto corporation, whether private or municipal,
operates to cure all defects in steps leading up to an organization,
and makes a de jure out of what was before only a de facto corpor
tion. Comanche County v. Lewis, 198.
At the last term of court motions to dismiss Nelson v. Green and Nelson
et al. v. Green were argued at the same time with a motion to dismiss
this case, and the motion was granted as to those cases, and denied as
to this case. After the entry of judgment counsel in those cases
moved on behalf of the appellants that the sum of $450 which had
been deposited with the clerk for copies of the record should be re-
funded; Held, (the judgment being announced in delivering the opin-
ion and announcing the judgment in this case,) that $200 of that
amount should be refunded. Richardson's Executor v. Green, 30.
COUNSEL FEES.
See DISTRICT ATTORNEY;
RECEIVER.
COURT AND JURY.
See MASTER and Servant, 1, 4.
1. Bigamy and polygamy are crimes by the laws of the United States, by
the laws of Idaho, and by the laws of all civilized and Christian
countries; and to call their advocacy a tenet of religion is to offend
the common sense of mankind. Davis v. Beason, 333.
2. A crime is none the less so, nor less odious, because sanctioned by what
any particular sect may designate as religion. Ib.
3. The second subdivision of § 504, Rev. Stats. Idaho, requiring every
person desiring to have his name registered as a voter to take an oath
that he does not belong to an order that advises a disregard of the
criminal law of the Territory, is not open to any valid legal objec-
tion.
4. The act of Congress of March 22, 1882, 22 Stat. 31, c. 47, "to amend
|