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denounces conspiracies to commit offenses created by any of the statutes of the United States.

—Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id................... 84 C. C. A. 477

A defendant may be prosecuted under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], for a conspiracy to violate a criminal or penal statute of the United States, notwithstanding the fact that the punishment prescribed for the offense created by such statute is less than that prescribed for conspiracy; the conspiracy in itself being a distinct and substantive offense.

-Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id..... 84 C. C. A. 477

A conspiracy to induce the giving or receiving of rebates in violation of the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]), is punishable under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], where the persons charged are not limited to the giver and receiver of the rebate alone.

-Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id..... 84 C. C. A. 477 One who comes into a conspiracy after it has been formed, with knowledge of its existence, and with a purpose of forwarding its designs, is equally as guilty as though he had participated in its original formation. -Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id..... 84 C. C. A. 477

In an indictment under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], for a conspiracy to commit an offense against the United States, all facts necessary to constitute the conspiracy, including the overt act, must be averred with all the particularity required in criminal pleadings, but no high degree of particularity is required in describing the offense to which the conspiracy relates which is necessarily defined by the statute. So, where an indictment charged a conspiracy to induce a shipper to receive rebates from railroad companies in violation of the federal statute, it was not essential to aver the names of such railroad companies which were not known to the grand jury.

-Thomas v. United States, 156 Fed. 897; Taggart v. Same, Id...... 84 C. C. A. 477 The same rules of law and evidence govern the trial and decision of the issue whether or not a defendant jointly with others consented or agreed to the existence of a former conspiracy within the three years and the subsequent execution of it, which control the issue whether or not the conspiracy was originally formed, where that is the crucial issue.

-Ware v. United States, 154 Fed. 577....

....84 C. C. A. 503


Provisions relating to particular subjects.

See "Commerce," § 1; "Corporations," §§ 2, 3; "Counties," § 2.

§ 1. Retrospective and ex post facto laws.

The amendment of such section of the statute by Act Feb. 26, 1903 (Laws 1903, p. 45, c. 32), which merely changed the time when the report is required to be filed, does not render it a retrospective law, within the prohibition of Const. Mont. art. 15, § 13, as applied to debts of a corporation contracted before its enactment.

-Nelson v. Bank of Fergus County, 157 Fed. 161....84 C. C. A. 609

See "Trusts," § 1.



Violation of injunction, see "Injunction," § 2.

§ 1. Power to punish and proceedings therefor.

Where a party charged with contempt appears and goes to trial without objection to the sufficiency of the information and affidavits by appropriate motion, such objection is waived.

-Aaron v. United States, 155 Fed. 833..

......84 C. C. A. 67

The information in a proceeding for contempt is sufficient, if it clearly apprises the defendant of the nature of the charge against him, and no particular form is essential.

-Aaron v. United States, 155 Fed. 833....

..84 C. C. A. 67


Agreements within statute of frauds, see "Frauds, Statute of."
Cancellation, see "Cancellation of Instruments."
Damages for breach as claim against bankrupt, see "Bankruptcy," § 4.
Parol or extrinsic evidence, see "Evidence," § 4.
Subrogation to rights or remedies of creditors, see "Subrogation."

Contracts of particular classes of persons. See "Master and Servant."

Contracts relating to particular subjects.

See "Mines and Minerals," § 2.
Sale of logs, see "Logs and Logging."

See "Release."

Particular classes of express contracts.

See "Bailment"; "Depositaries"; "Insurance"; "Mortgages"; "Partnership"; "Sales."

Charter parties, see "Shipping," § 1.
Employment, see "Master and Servant."
Leases, see "Landlord and Tenant."

Particular modes of discharging contracts.

1. Requisites and validity.

There is want of mutuality, necessary for a valid contract, where plaintiff, the manufacturer of a certain cigar, offered to sell in the future to defendant, a cigar dealer, as many of such brand as he might desire for his wants, and to continue to do so during the life of the brand, as long as defendant cared to sell them.

-A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719.

84 C. C. A. 145

An agreement to procure qualified citizens to enter lands under the general homestead law and to grant their use to another until they should make final proof or dispose of their holdings, without the reservation of any part of this use for the residence thereon or the cultivation thereof by the entrymen, is inconsistent with the purpose and spirit and violative of the terms of the law, although no contract is made regarding the disposition of the title which may be obtained.

-Ware v. United States, 154 Fed. 577...

.84 C. O. A. 503

§ 2. Construction and operation.

When a contract is fairly open to two constructions, it is legitimate to adopt the one which equity would favor.

-Christian v. First Nat. Bank of Deadwood, S. D., 155 Fed. 705....
84 C. C. A. 53

If there be doubt as to the true meaning of a written contract, and one of the parties be responsible for the terms employed, it is both just and reasonable that it should be construed most strongly against that party. -Christian v. First Nat. Bank of Deadwood, S. D., 155 Fed. 705.... 84 C. C. A. 53

As a general proposition, where the issue is one of fact as to the performance of a contract, it is the province of the jury to pass upon it; but, before the question of compliance or noncompliance arises, there must be a determination of the terms of the contract itself, and where it is in writing showing the whole of the agreement, and its terms are capable of intelligent interpretation, its construction is for the court, and not for the jury.

-Lydia Cotton Mills v. Prairie Cotton Co., 156 Fed. 225....

The question whether the performance of a stipulation in a contract is a condition precedent to the performance of other stipulations in it depends upon the order in which the parties intend the several stipulations to be performed. The calling of a provision or stipulation a condition is not conclusive, and if from the contract or other circumstances it is seen that it was not the intention of the parties that its performance should be a condition precedent it will not be held to be such.

-Quinlan v. Green County, Ky., 157 Fed. 33........84 C. C. A. 537


§ 3. Performance or breach.

Defendant and others, as members of a syndicate, contemplating the formation of a corporation to sell an enamel paint, entered into a contract with plaintiff to manufacture the same. The contract recited that it was assumed that the product could be made with the plant and equipment then in use by plaintiff, but provided that, if the development of the business showed that additional equipment and machinery were required, the members of the syndicate should provide satisfactory security for the necessary outlay. After the enamel company was formed and the syndicate merged therein, it was found that a new plant would be required to make the enamel, and plaintiff entered into a contract with the company to erect the plant at the company's cost. Held, that the money expended in such erection was not under the syndicate contract, but under that with the corporation, and that defendant could not be held liable therefor.

-Patton Paint Co. v. Lloyd, 156 Fed. 770...... .84 C. C. A. 350

84 C. C. A. 129

As question for jury, see "Negligence," § 2.

Of person killed by operation of railroad, see "Railroads," §§ 1, 2.

Of servant, see "Master and Servant," §§ 4, 5.


See "Mortgages."

By or to receivers, see "Receivers," § 1.

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See "Literary Property."

§ 1. Nature and acquisition.

But a single valid copyright can be obtained upon the same subjectmatter; and an artist by depositing the name and description of a painting in the prescribed office did not acquire a copyright thereon, where he had previously deposited a photograph of the same painting under a different name and description for the purpose of obtaining a copyright. unless it is shown by proof that such prior deposit was inoperative. -Caliga v. Inter Ocean Newspaper Co., 157 Fed. 186...

84 C. C. A. 634

§ 2. Infringement.

Strict construction and proof are required in an action under Rev. St. $4965 [U. S. Comp. St. 1901, p. 3414], to recover the penalty thereby authorized for infringement of a copyright.

-Caliga v. Inter Ocean Newspaper Co., 157 Fed. 186. .84 C. C. A. 634


Burden of proof in action by corporation against agent, see "Evidence," § 1.
Exercise of power of eminent domain, see "Eminent Domain," § 1.
Pleading in suit against corporation to cancel release, see "Equity," § 3.
Regulation of corporations engaged in interstate commerce, see "Commerce,"
§§ 1, 2.

Right of corporations to maintain suits in United States courts, see "Courts," § 2.

Right of corporations to remove suits to United States court, see "Removal of Causes," § 1.

Particular classes of corporations.

See "Municipal Corporations"; "Railroads."
Insurance companies, see "Insurance."

§ 1. Capital, stock, and dividends.

The acceptance by defendant of a written offer by plaintiffs, who were brokers, to sell certain stock and bonds of a railroad company, which offer was expressly stated therein to be made by authority of a third person named who controlled such stock and bonds, did not create a contract of sale between plaintiff's and defendant which would support an action by plaintiffs on defendant's refusal to accept and pay for the securities from them, and its purchase of the same direct from their principal.

-Mason v. Chicago, B. & Q. Ry. Co., 156 Fed. 959....84 C. C. A. 459

§ 2. Insolvency and receivers.

Limitation does not begin to run in favor of a stockholder against un action to enforce an assessment made against him under such constitutional provision until the entry of the decree fixing the amount of such assessment.

-Goss v. Carter, 156 Fed. 746......

......84 C. C. A. 402

Under Neb. Const. art. 11b, § 7, which provides that every stockholder in a banking corporation shall be individually liable to its creditors over and above the amount of his stock to an amount equal to his stock, which, as construed by the Supreme Court of the state, is self-executing and enforceable only after the assets of the corporation have been exhausted, by means of a suit in equity in behalf of all creditors against the corporation and its stockholders, in which all equities shall be adjusted, the total liabilities of the corporation ascertained, and a receiver or trustee appointed to collect from each stockholder his pro rata share of such liabilities,

the amount due from the stockholders when so ascertained constitutes a trust fund, the legal title to which is vested in the receiver or trustee appointed, and he may maintain an action to recover the amount due from a stockholder in a foreign jurisdiction.

-Goss v. Carter, 156 Fed. 746......

...84 C. C. A. 402

In such an equity suit, each stockholder is represented by the corporation, having contracted with reference thereto, and is bound by the decree therein, although a nonresident of the state and not personally served with process.

-Goss v. Carter, 156 Fed. 746....

.84 O. C. A. 402

3. Foreign corporations.

Where a New Jersey corporation entered into a factorage contract with a corporation in Colorado, the Colorado corporation ordering, receiving, storing, and selling merchandise of the New Jersey corporation at its own expense in consideration of the factorage secured to it by the contract, the New Jersey corporation was not doing business in Colorado within the meaning of the Constitution and statutes of that state.

-Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1.... 84 C. C. A. 167

A foreign corporation, which has no warehouse, office, or place of business, and which neither incurs nor pays any of the expenses of receiving, handling, storing, or selling its goods, in a state to which it consigns them to its factor, who conducts all the business there, assumes and pays all the expenses of receiving, selling, handling, and storing the goods, is not doing business in the latter state within the true meaning of the statutes relative to the admission of foreign corporations.

-Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1.... 84 C. C. A. 167

Const. Colo. art. 15, & 10, 1 Mills' Ann. St. §§ 499, 500, Sess. Laws 1901, p. 121, c. 52, § 10, and Sess. Laws 1902, p. 73, c. 31, § 64, prohibit every foreign corporation from doing any business or exercising any corporate powers, or prosecuting or defending any suits except by payment of an annual license fee, and provide that failure to pay the same shall be a defense to all actions brought in any court within the state on a transaction growing out of such business. Held, that as a literal interpretation of this legislation would render it unconstitutional in so far as it prohibits or conditions the exercise by a foreign corporation of its right to carry on interstate commerce in Colorado, or limits the exercise in that state by a foreign corporation of its right to institute and defend in the federal courts suits arising out of that commerce, the true construction of the legislation is that it was intended to govern intrastate commerce and suits in the state courts in Colorado only, and was inapplicable to interstate commerce in that state and to the right of a foreign corporation to institute and defend suits in the federal courts.

-Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1.... 84 C. C. A. 167

Civ. Code Mont. § 451, as amended by Act Feb. 26, 1903 (Laws 1903, p. 45, c. 32) providing that "every corporation having a capital stock" shall annually, and within 20 days from and after the 31st day of December, make a report, which shall state the amount of its authorized capital, and what portion has been paid, and the amount of its debts, and that, if any such corporation shall fail to make such report, its directors shall be jointly and severally liable for all debts of the corporation then existing or which may be thereafter contracted until such report shall be made and filed, being general in its language and having been changed into its present form after the adoption of the state Constitution, article 15, § 11, of which provides that no foreign corporation "shall have or be allowed to exercise or enjoy within this state any greater rights or privileges" than those possessed or enjoyed by domestic corporations, applies alike to domestic and foreign corporations doing business within the state, and the failure of such a foreign corporation to make the required

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