5 An election of a stockholder as trustee will
not invest him with the office so as to charge
him with its duties and responsibilities, with-
out an acceptance on his part.
Id.

6 In ascertaining whether the requisite num-
ber of stockholders in a corporation organized
under the Act of 1848 have joined in a consent
to the execution of a bond and mortgage by
the corporation, the amount of stock actually
issued and owned at the time is to be regarded
as the amount of the capital stock. The
Greenpoint Sugar Co. v. Whiton.

186

7 Where the consent filed is defective in not
setting forth the amount which the bond and
mortgage are to be given to secure, such de-
fect may be remedied by proof of the debt
owing to the mortgagee.
Id.

8 To sustain the service of a summons upon a
non-resident corporation, where the summons
was served upon a director, upon the ground
that the defendant then had property within
this State, it must appear that the defendant
had property within this State of substantial
value. Barnes et al. v. The M. & N. W. RR.

9 The unissued bonds of a railroad corporation
in the hands of its agents for sale are not
property.
Id.

10 Parties dealing with a corporation, although
retaining advantage from the transaction, are
not estopped from setting up that the corpora-
tion exceeded its powers, where such act or
transaction in excess of its powers was in
direct violation of legal enactment. The N.
Y. State L. & T. Co. v. Helmer et al.
197
11 Where articles of association for the forma-
tion of a corporation, under the law of 1848,
were signed, and a copy thereof filed in the
office of the Secretary of State, but the origi-
nal was not filed in the County Clerk's office,
and certificates of stock were issued and de-
livered, but before any capital was paid in or
officers elected the project was abandoned on
discovery of fraud in the representations on
which the whole proceeding was based, and
the certificates of stock returned, no business
having been done at that time, and thereupon
other parties attempted, without authority, to
act for the corporation. Held, That there was
no such user of the corporate franchise as
would cure the defect in the organization, or
any facts that would estop a party sued as
trustee from denying it. De Witt et al. v. Has-
tings.
225

12 A company without authority contained in
its charter or other legal enactment, and in
the absence of a combined consent of the di-
rectors and stockholders, cannot by resolution
of the directors create preferred stock or give
to certain stockholders rights to the exclusion
of others. Kent v. The Quicksilver Mining
Co.
230

13 All stockholders are entitled to share equal-
ly in the net earnings of the company. Id.

14 A cause of forfeiture cannot be taken ad-
vantage of, or enforced against a corporation
collaterally or incidentally, but only in a di-
rect proceeding instituted against it for that
purpose by the government creating such cor-
poration. In re Petition of the N. Y. Elevated
RR. Co.
243

15 Where the property of a corporation is sold
by a unanimous vote of those present at a
meeting of stockholders, and a resolution is
adopted at said meeting declaring the corpora-
tion dissolved, such acts of the stockholders
are equivalent to a surrender of its corporate
rights. Webster v. Turner et al.
260

16 Where no fraud is shown, the acts done at
a meeting of stockholders are binding upon a
stockholder who voted for them by proxy. Id.
17 An equitable action for contribution by a
stockholder of a corporation organized under
the General Act of 1848, must be brought
against all the stockholders. Clark v. Myers.

271

18 The relation of such stockholders in regard
to debts owing laborers is substantially that of
partners.
Id.

19 The title to certificates of stock in a corpo-
ration cannot be transferred by a person who
fraudulently obtains possession of them. Win-
ter v. The Belmont Mining Co.
329

20 In such case the omission by the true owner,
who held them by a blank indorsement. to
cause the stock to be transferred on the books
of the company, is not such negligence as to
oblige him to bear the loss.
Id.

21 An action brought by a creditor of a corpo-
ration organized under the act for the forma-
tion of manufacturing, &c., and other cor-
porations against a trustee, to enforce the
liability created by such act for failure to file
an annual report, is a personal action to en-
force a penalty and does not survive. Rey-
nolds v. Mason.

338

22 Where, at a meeting of a board of directors
of a corporation, a settlement is authorized
and directed to be made with an employee of
his claim for services, an omission to make an
entry thereof in the minutes will not invali-
date the authority. Courter v. The A. & S.
RR. Co.
350

23 An action to collect a debt due to a corpora-
tion cannot be maintained by a stockholder
unless the complaint shows that the corpora-
tion has been applied to to bring the action and
has refused to do so. Wilkie v. The Roch. &
St. L. RR.

352

25 Where the name of an individual appears
upon the stock-book of a corporation as a
stockholder, the prima facie presumption is
that he is the owner of the stock, and in an

action against him as such stockholder the
burden of rebutting such presumption is upon
him. Turnbull, Jr., v. Payson, assignee. 405

26 The defendants were stockholders of a cor-
poration organized under an act (Chap. 63,
Laws of 1863) the second section of which
provided that the corporation should be sub-
ject to the obligations and entitled to the bene-
fits of the General Act of 1848, relating to
mining, &c., corporations. Held, That the
stockholders were individually liable to ser-
vants and laborers for services rendered to the
corporation, although the Act of 1863 did not
in terms express such a liability. Wakefield
v. Davidson et al.
454

27 In proceedings for voluntary dissolution of a
corporation the Court cannot incorporate in
the order to show cause, granted in the first
instance, an injunction against creditors. In
the matter of the French Mfg. Co.
481
See AGENCY, 16; APPEAL TO COUNTY COURT,
2; INJUNCTION, 1; SERVICE.

6 On an appeal to the Court of Appeals from
a judgment of General Term, affirming a de-
cision at Special Term as to construction of a
will, costs in the appellate court will not be
awarded to all parties payable out of the es-
tate. McLean v. Freeman.
324

7 Where, upon appeal to General Term, a new
trial is ordered, costs to abide event, the event
upon which the costs of appeal depend is an
event which shall entitle the successful party
to costs by law. Snyder v. Collins. 391

8 Where upon such new trial the plaintiff re-
covers less than $50 he is not entitled to costs
of the appeal.
ld.

433

Laws of 1869, when the recovery is less than
9 In an action for a penalty under Chap. 563,
$50, the defendant, and not the plaintiff, is
entitled to costs. Avery et al. v. Hyde.
10 Where an appeal was in terms from the
judgment, as well as from an order, although
it was not intended thereby to review the par-
ticulars of the judgment, but only the right
to any personal judgment against the appel-
lant, the costs of such appeal are allowable.

Wilson v. Palmer.

507

12 In determining the question of costs on ap-
peal from a justice's judgment, the interest
recovered on the claim is not to be considered.
Pearce v. The N. C. R. Co.
566

13 Where on the trial in the County Court the
judgment is more favorable to appellant than
the offer of respondent by more than $10, the
appellant is entitled to costs.
Id.

See ATTACHMENT, 4; DIVORCE, 1; HA-
BEAS CORPUS, 1; PRACTICE, 44; SURRO-
GATES, 3, 4, 5.

inal damages should be given. Where the
agreement was to purchase if defendants were
satisfied, they are to decide whether they are
satisfied, and it should not be left to a jury to
decide whether they ought to have been satis-
fied. Gray et al. v. The Central RR. Co. of
N. J.
19

2 The rule of law is that the measure of dam-
ages, in an action by the owner of property
to recover damages for a seizure and sale of
property on an execution against a third party,
when on such sale the property is purchased
by the owner, is the price paid, with interest.
De Luce v. Kelly.
32

3 The plaintiff was forcibly ejected from de-
fendant's cars. The evidence showed that his
hand and side were slightly hurt, and a felon
came upon his finger, which was claimed to be
a result of the force used to eject him. A
verdict for $3,000, under this state of facts,
held excessive. Cox v. The N. Y. C. RR. Co.
228

See ATTACHMENT, 1; CIVIL DAMAGE ACT,
3, 5; CONTRACTS, 17; COVENANTS, 2; EVI-
DENCE, 2; LEASE, 13, 14; MARINE COLLI-
SION, 6, 11; SHERIFFS, 1, 2, 4; SLANDER, 5, 6.

DEBTOR AND CREDITOR.

1 The question as to when a debt becomes
due, where a credit of "a few days" has
been given, is one of fact. Fonda v. Vischer.
412
2 Where a justice of the peace rendered a
judgment in favor of such a claim, where it
would have been barred by the Statute of
Limitations, unless such credit extended the
time forty-one days, it will be assumed, in
support of the judgment, that the justice
found that it did so extend it.

Id.

3 An agreement by a creditor to discharge his
debtor from all legal obligations to pay the
debt, on the debtor giving his moral obliga-
tion to pay when able, is not an absolute dis-
charge, but only a suspension of the legal
liability until the condition of the debtor is
such that a moral obligation to pay would
fairly exist. Dambmann v. Schulting. 534

4 The utmost good faith is required of a
debtor seeking a discharge from his debt for
less than its full amount, and he has no right
to permit his creditor to act upon the faith of
previous representations which have become
untrue by reason of changes in the debtor's
affairs.

DEEDS.

Id.

representatives, heirs or devisees of the grant-
or, or by any person claiming under him. ld.
3 Recitals in a sheriff's deed are conclusive as
against third parties.
Id.

4 In a conveyance, visible location calls con-
trol in preference to quantity, course or dis-
tance. Robinson et al. v. Kime.
41

5 Where the words "Johnson boundary" are
used in a deed, they must be construed as in
the nature of a monument, and parol evi-

dence is admissible to establish its location.

7 A sheriff's deed of lands sold on execution,
recorded before a prior deed executed by the
judgment debtor, passes the title as against
the grantee under such prior deed. Hetzell v.
Barber.
141

8 Where an absolute deed in blank, with con-
dition that grantee is to assume a mortgage on
the premises, is given, a person who consents
to the insertion of his name as grantee, and
accepts the deed, becomes liable for the pay-
ment of such mortgage. No agreement made
by him with the party from whom he received
it will impair the rights of the holders of the
181
mortgage. Campbell v. Smith.

9 The delivery of a deed of land will be pre-
sumed, in the absence of evidence, from the
concurrent acts of the parties recognizing a
transfer of the title. Gould v. Day.

188

11 He may recover the costs of the foreclosure
suit paid by him, although the grantee was
not made a party thereto.
Id.

12 Under the 1244th Section of the Code of
Civil Procedure the ordinary deed is the prop-
er one. Randel v. Von Ellert.
253

13 Where a grant of lots under water provides
that the grantees shall pay certain quit-rents
annually, and also that if at any time it shall
appear that the grantees were not, at the date
of the deed, seized in fee simple of the prem-
ises on the easterly side of high water, and ad-
joining the lots conveyed, or should make
default in performing their covenants, the
grant should be void, and the grantors be
forthwith seized of the same, the grantees take
a present estate in fee simple liable to be de-
feated by a subsequent event. Toule v. Rem

sen.

321