months' further time, in case the installments from the shareholders shall not have been received. The obvious meaning of this is, that the directors are to pay in twelve months, in case the subscriptions shall have been received in the interval, but that they shall pay in eighteen months at all events, whether subscriptions shall have been received or not. The advantage or disadvantage of such a contract to the directors is a question for them to consider, and not the court.
PARK, J.—The cases cited only show that instruments made rayable out of a particular fund are not negotiable, and do not apply to the case before the court. I am clearly of opinion, that upon this agreement the defendants are liable. It is stipulated, indeed, that the £4,500 is to be paid by installments, and that the time of payment is to vary according to circumstances; but no intention is intimated to leave the plaintiffs remediless in case of failure of any subscription fund; the object, on the contrary, of the six months further time must have been to enable the defendants to pay out of their own pockets, in case of the subscriptions failing.
The rest of the court concurring,
Judgment was given for the plaintiffs.
ABANDONMENT-See PARTNERSHIP, 29, 31.
1. Venue.-A bill for an account of the produce of an oil well must be filed in the county where the well is situate. Thompson v. Noble, 137 2. Services of expert accountant.—In a suit for an accounting, an al- lowance was properly made for a reasonable sum paid by complainant to a competent accountant for the purpose of arriving at an adjustment, the services being necessary and of use to all parties and therefore a common charge on them. Godfrey v. White, 562
3. Accounting, as an incident.-When a proceeding for partition of realty is had in a court of equity, the court will not only proceed to divide the land but will, in a proper case, direct an accounting, and do equity in the case by making parties account for rents, etc. Dall v. Confidence M. Co.,
See Costs, 1; EQUITY, 1; LACHES, 1; PARTITION, 19, 20; PARTNER-
1. Admissions by corporate officer.-Evidence of declarations of the president of the company that the cost of repair would not exceed $500 was admissible for the purpose of showing that the parties did not intend an iron bottom, which would cost several thousand dollars. Ardesco Oil Co. v. Richardson, 131
2. Presence of officer.--Evidence that the president was present whilst the repairs were going on, and expressed his satisfaction with them, was admissible. Id.
3. Evidence-Admissions of agent.-In a suit against copartners for wages, the declaration of a party in the employ of the defendants as to the intention of one of the defendants to pay in a few days is not competent evidence unless his agency for that purpose is first established. LeFevre v. Castagnio,
See PARTNERSHIP, 19; PLEADING, 17; STATUTE OF LIMITATIONS, 3. ADVERSE CLAIM.
1. Statute of Limitations.-The Statute of Limitations of Nevala constitutes a part of the local laws, by which the right between an appli- cant for patent and an adverse claimant are to be determined. 420 Min- ing Co. v. Bullion Mining Co.,
1. Adverse possession generates new title.—Adverse possession for the time limited by the Statute of Limitations, not only bars the remedy but extinguishes the right and vests a perfect title in the adverse holder. 420 M. Co. v. Bullion Co.,
See STATUTE OF LIMITATIONS.
1. Annual hiring. A written contract by which a party is employed "to act as agent or salesman for stock," etc., of a coal company, to be paid $3.000 "in equal quarterly payments," is a hiring for a year. Kirk v. Hartman,
2. Agent to purchase may repudiate his agency.-If one who is clearly an agent for another to purchase property, repudiate the agency and act for himself, using his own funds, he can not be declared a trustee for his princi- pal, although the latter may have been misled by the former. First Nat. Bank v. Bissell, 547 See EVIDENCE, 4; PARTNERSHIP, 87, 88; MASTER AND SERVANT, 1. AGRICULTURAL LANDS-See PATENT, 6.
1. Improvements on group of locations constituting one claim.-Im- provements on one of a group of locations, constituting a consolidated claim, or work done at a distance from the claim, as in the case of opera- tions to lead water to, or carry tailings from the claim, apply as labor un- der the mining acts. St. Louis Smelting Co. v. Kemp, 673 APPEAL.
1. Jurisdiction on appeal-How determined.-Where a plaintiff ap- peals against a judgment for the defendant, the jurisdiction of the Supreme Court, as to amount, is determined by the complaint. Where the plaintiff appeals from a judgment in his favor, then it is the differ- ence between the judgment and the sun claimed. Where the defendant appeals from a judgment in his favor, the amount in dispute is the differ- ence between the judgment and the counter-claim.
2. Appeal can only be dismissed by appellate court.-The District Court of the United States having granted an appeal to the Supreme Court, his no power to set its order aside. The jurisdiction of the Supreme Court attaches upon the appeal being granted, and only on appli- cation to the Supreme Court could the appeal be dismissed. McGarrahan v. New Idria Co.,
ASSESSMENT-See PARTNERSHIP, 84, 85. ASSIGNMENT.
1. Judgment and assignment distinguished.—A judgment is not an assignment. One is the act of the party, the other the act of the law. A judgment by confession can have no tendency to defeat a statute which provides for an equal distribution among all creditors in cases of assign ments, for the statute does not apply to such a case. Breading v. Boggs, 296
2. Assignment of account by partner.—Where a partner can not sue the company at law, nor maintain attachment, his assignee is in no better situation than the assignor before the assignment. Bullard v. Kinney,
See PARTIES, 2; PARTNERSHIP, 58. BILLS AND NOTES.
1. Note reciting contract annexed-No contract found.-In an action on a promissory note, the note purported to be "For value received in Pennance shares, pursuant to annexed contract." No contract was in fact annexed. Held, that this special description of the consideration for the note did not render it incumbent on the plaintiff to put in any contract or other document besides the note itself, in order to establish his case. v. Frith,
Where the note of the mining firm is sued on, the plaintiff must prove that the person executing the same had authority to subscribe the company's name. Skillman v. Lachman,
3. Verbal agreement to vary note.-In a suit by one partner upon a note executed by his copartner the defense was that the plaintiff agreed, at the time of the making of the note, to provide for and pay one third thereof, if the company should not be in funds for that purpose when it became due: Held, that the facts if proved would not constitute a de- fense; that it would be incompetent for the defendant to vary the terms of the not, or relieve himself from liability thereon, by evidence of a verbal agreement made before or at the time of making the instrument. Crater v. Bininger,
4. Request to indorse implied.—The knowledge and acquiescence of a defendant in the indorsement of its paper by a third party, to the benefit of defendant's credit, is evidence from which a request to indorse may be inferred. Flint v. Eureka Co., 588
See DITCH, 3; PARTNERSHIP, 15, 16, 20, 36, 39, 94. BOUNDARIES.
1. Boundary along a meandering stream.-Where land adjoining a creek was described in a patent as bounded on the side of the creek by a line meandering from a point in its center down the center a certain dis- tance to a station on the bank, and thence a further distance to another station, and so on from station to station on the bank, to a point where the line left the creek. it was held, that the creek constituted the boundary of the land, and that the courses between the stations only indicated the general direction of the stream, being points fixed by the surveyor to enable him to compute the amount lying between the creek and the other boundaries. Quicksilver Co. v. Hicks, 98
2. A traditional survey agreed at one time to have been made and supposed to have been at that time made, but never satisfactorily proved and a subject of continued contention, can not be treated by courts as binding upon the parties, although they have attempted to fix it by subse- quent survey. Blewett v. Coleman,
COLLIERY-See PARTITION, 11; PARTNERSHIP, 4; RECEIVER, 1.
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