separately to convey to a third party. The deed executed by Mrs. Bram to the plaintiff conveyed no title and he could not maintain an action for partition. The exceptions to the conclusions of the referee to the contrary are well taken and require a reversal of the judgment. It is unnecessary to discuss the extraneous questions raised in the respondent's points as to the circumstances attending the purchase of the property. Zorntlein v. Bram. Opinion by Rapallo, J. [Decided Oct. 6, 1885.]

UNITED STATES SUPREME COURT ABSTRACT.*

PUBLIC LANDS-GRANT TO STATE-JURISDICTION OF GOVERNMENT OFFICERS CALIFORNIA LANDS-SURVEYS UNDER ACT OF JULY 23, 1866–LISTS OF LANDS CERTIFIED TO STATE-TITLE.-(1) In adjusting Congressional grants of lands to a State, the only questions for consideration by the officers of the general government are whether the State possessed the right to claim the land under her grant, and whether the land was subject to selection by her agents. Those officers have no jurisdiction to review transactions between the State and her purchasers, nor between the State and her locating agents, and determine whether such purchasers or locating agents complied with the provisions of her laws relating to the sale of the lands. (2) Surveys under the eighth section of the act of July 23, 1866, "to quiet land titles in California," become operative by approval of the United States surveyorgeneral for the State, and his filing in the local land office of the township plats. Upon such approval of a survey and filing of the township plats, lands thereby excluded from a confirmed private land claim become subject to State selections, and other modes of disposal of public lands. Previous approval of the survey by the commissioner of the general land office is not necessary. (3) Lists of lands certified to the State by the commissioner of the general landoffice, and the secretary of the interior, convey as complete a title as patents; and lands embraced therein are not thereafter open to settlement and preemption. Frasher v. O'Connor. Opinion by Field, J. [Decided May 4, 1885.]

REMOVAL OF CAUSE-CITIZENSHIP -ACTION BY STOCKHOLDERS AGAINST CORPORATION.-A suit in equity brought by C., a citizen of one State, against a corporation of the same State, and T., a citizen of another State, and W., to obtain a decree that C. owns shares of the stock of the corporation standing in the name of W., but sold by him to T., and that the corporation cancel on its books the shares standing in the name of W., and issues to C. certificates therefor, cannot be removed by T. into the Circuit Court of the United States, under section 2 of the act of March 3, 1875 (18 Stat. 470), because the corporation is an indispensable party to the suit, and is a citizen of the same State with C. This case falls distinctly within a series of rulings made by this court. Blake v. McKim, 103 U. S. 336; Hyde v. Ruble, 104 id. 407; Winchester v. Loud, 108 id. 130; Shainwald v. Lewis, id. 158; Ayres v. Wiswall, 112 id. 187; Hancock v. Holbrook, id. 229; Thayer v. Life Ass'n, id. 717; New Jersey Cent. R. Co. v. Mills, 113 id. 249; Sully v. Drennan, id. 287; Louisville & N. R. Co. v. Ide, 114 id. 52; St. Louis & S. F. Ry. Co. v. Wilson, id. 60; Putnam v. Ingraham, id. 57; Pirie v. Tvedt, 115 id. 41. Crump v. Thurber. Opinion by Blatchford, J. [Decided May 4, 1885.]

EXTRADITION-FUGITIVE FROM JUSTICE-OFFENSE -PROCEDURE BY STATE-DUTY OF EXECUTIVE-DIS

*Appearing in 5 Sup. Ct. Rep.

CHARGE.-The statute requiring the surrender of a fugitive from justice, found in one of the Territories, to the State in which he stands charged with treason, felony or other crime, embraces every offense known to the laws of the demanding State, including misdemeanors. It was declared in Kentucky v. Dennison, 24 How. 99, that the words "treason, felony or other crime," in section 2 of article 1 of the Constitution, include every offense, from the highest to the lowest, known to the law of the State from which the accused had fled, including misdemeanors. It was there said by Chief Justice Taney, speaking for the whole court, that looking to the words of the Constitution, "to the obvious policy and necessity of this provision to preserve harmony between the States and order and law within their respective borders, and to its early adoption by the colonies, and then by the confederated States whose mutual interest it was to give each other aid and support whenever it was needed, the conclusion is irresistible that this compact ingrafted in the Constitution included, and was intended to include, every offense made punishable by the law of the State in which it was committed." It is within the power of each State, except as her authority may be limited by the Constitution of the United States, to declare what shall be offenses against her laws; and citizens of other States, when within her jurisdiction, are subject to those laws. In recognition of this right, so reserved to the States, the words of the clause in reference to fugitives from justice were made sufficiently comprehensive to include every offense against the laws of the demanding State, without exception as to the nature of the crime. Each State has the right to prescribe the forms of pleading and process to be observed in her courts, in both civil and criminal cases, subject only to those provisions of the National Constitution designed for the protection of life, liberty and property in all the States of the Union; consequently in a case involving the surrender, under the act of Congress, of a fugitive from justice, it may not be objected that the indictment is not framed according to the technical rules of criminal pleading, if it conforms substantially to the laws of the demanding State. (3) Upon the executive of the State or Territory in which the accused is found rests the responsibility of determining whether he is a fugitive from the justice of the demanding State. But the act of Congress does not direct or authorize his surrender, unless it is made to appear that he is in fact a fugitive from justice. (4) If the determination of that fact, upon proof before the executive of the State where the alleged fugitive is found, is subject to judicial review upon habeas corpus, the accused, being in custody under his warrant-which recites the requisition of the demanding State, accompanied by an authentic indictment, charging him substantially as required by her laws, with a specific crime committed within her jurisdiction-should not be discharged because in the judgment of the court, the proof showing that he was a fugitive from justice may not be as full as might properly have been required. Matter of heggell. Opinion by Harlan, J. [Decided May 4, 1885.]

fringed by the enforcing of a rule made in his absence by a majority of the directors, cannot obtain from a court of equity aid to restrain a director from attending a meeting of the directors, and voting for the enforcement of such a rule. Grant v. Parker. Opinion by Waite, C. J.

[Decided May 4, 1885.]

CUSTOM DUTIES-VALUE OF FOREIGN COINS-WHO TO JUDGE FINALLY.-The value of foreign coins, as ascertained by the estimate of the director of the mint and proclaimed by the secretary of the treasury, is conclusive upon custom-house officers and importers. No errors alleged to exist in the estimate, resulting from any cause, can be shown in a judicial proceeding, to affect the rights of the government or individuals. There is no value, and can be none, in such coins, except as thus ascertained; and the duty of ascertaining and declaring their value, cast upon the treasury department, is the performance of an executive function requiring skill, and the exercise of judgment and discretion, which precludes judicial inquiry into the correctness of the decision. If any error, in adopting a wrong standard, rule, or mode of computation, or in any other way, is alleged to have been committed, there is but one method of correction. That is to appeal to the department itself. To permit judicial inquiry in any case is to open a matter for repeated decision, which the statute evidently intended should be annually settled by public authority; and there is not, as is assumed by the plaintiff in error, any such positive and peremptory rule of valuation prescribed in the statute, as serves to limit the discretion of the treasury department in making its published estimate, or would enable a court to correct an alleged mistake or miscalculation. The whole subject is confided by the law exclusively to the jurisdiction of the executive officers charged with the duty; and their action cannot be otherwise questioned. Such was the principle announced in the case of Cramer v. Arthur, 102 U. S. 612. It was there said (p. 616): "That valuation, so long as it remained unchanged, was binding on the collector and on the importers-just as binding as if it had been in a permanent statute, like the statute of 1846, for example. Parties cannot be permitted to go behind the proclamation, any more than they would have been permitted to go behind the statute for the purpose of proving, by parol or by financial quotations in gazettes, that its valuations are inaccurate. The government gets at the truth as near as it can, and proclaims it. Importers and collectors must abide by the rule as proclaimed. It would be a constant source of confusion and uncertainty if every importer could on every invoice raise the question of the value of foreign moneys and coins. *" Page 619. "If existing regulations are found to be insufficient, if they lead to inaccurate results, the only remedy is to apply to the president, through the treasury department, to change the regulations." Hadden v. Merritt. Opinion by Matthews, J. [Decided May 4, 1885.]

*

*

CONSTITUTIONAL LAW-STATUTE OF LIMITATIONSSTATES IN SECESSION-ACT JUNE 11, 1864.-It is well settled in Louisiana that when a claim against a succession has been formally acknowledged by the executor or administrator, no suit should be brought upon it, and no suit or other proceeding is necessary to prevent prescription as long as the property of the succession remains in the hands of the executor or adminis

fore the acknowledgment of Mrs. Winn, executrix, made in January, 1866, was made before the notes were prescribed, prescription has been suspended ever since, for the succession of Winn is still under administration. The notes were all barred in November and December, 1865, by the prescription of five years established by article 3540 of the Civil Code of Louisiana, unless prescription was suspended by the act of Congress above cited. The case therefore turned in the Supreme Court of Louisiana upon the question whether the act of Congress was applicable. That court decided that it was not, and denied to the appellant the right set up and claimed by him under that statute. If the decision of the Supreme Court of Louisiana was wrong upon this point, this court has jurisdiction to review and reverse its judgment. Rev. Stat., § 709. The facts of the case, as shown by the record, bring it within the terms of the act of Congress. The parish of Rapides was within the Confederate lines during the entire period of the civil war, except for a few weeks, when it was occupied by the Federal troops. The authority of the United States was re-established over the city of New Orleans on May 1, 1862. The payees of the notes were shown to have been domiciled in the city at that time, and as there is no evidence that they afterward changed their domicile, the presumption is that it continued unchanged. Desmare v. U. S., 93 U. S. 605. Mayfield is shown to have been a resident in New Orleans. It appears therefore that the executrix of the succession of Winn was within the Confederate lines, and the payees and the indorsee of the notes within the Federal lines. Under these circumstances they would not lawfully institute proceedings against the succession of Winn, in the parish of Rapides, to enforce the payment of the notes, for intercourse across the military lines was forbidden by law. Moreover while the prescription of five years was running, the courts of the parish, which alone had jurisdiction of the succession of Winn, were closed for more than a year, a period well described by Lord Coke: "So when by invasion, insurrection, rebellion, or such like, the peaceable course of justice is disturbed and stopped, so as the courts of justice be, as it were, shut up et silent leges inter arma, then it is said to be time of war." Co. Litt. 249b. The case therefore falls within the letter of the act of Congress; and if that act applies to and governs cases in the courts of the States, the judgment of the Supreme Court of Louisiana is erroneous. The question thus raised was expressly decided by this court in the case of Stewart v. Kahn, 11 Wall. 493 where it was held that the act applied to cases in the courts of the States as well as of the United States, and that thus construed the act was constitutional. We are satisfied with the judgment of the court by that case, and are unwilling to question or re-examine it. The decision in Stewart v. Kahn was followed by the Supreme Court of Louisiana in Aby v. Brigham, 28 La. Ann. 840. These cases are conclusive of the present controversy, and adhering to the ruling made in them, we are of opinion that the notes held by Mayfield were not prescribed, and that the judgment of the Supreme Court of Louisiana should therefore be reversed, and the cause remanded to that court, with directions to enter judgment that the claim of Mayfield, based on the nine notes of Walter O. Winu, is a legal and valid debt due from his succession, and that it was properly placed in the provisional account of the dative testamentary executor as an ordinary claim; and it is so ordered. Mayfield v. Richards. Opinion by Woods, J. [Decided May 4, 1885.]

United States in August, 1861. Having been promoted from time to time, he was commissioned prior to March 27, 1865, as captain and assistant quartermaster of volunteers. His service was continuous from August, 1861, to March 27, 1865, on which day he was, by order of President Lincoln, dismissed the service. But on June 9, 1865, an order was issued by President Johnson revoking the order of dismissal, and restoring him to his former position. By an order issued from the war department under date of June 19, 1865, he was assigned to duty as division quartermaster of the First division, First army corps, with the temporary rank, pay and emolument of major in the quartermaster's department, under the act of July 4, 1864. He held the latter position until October 7, 1875, when he was honorably mustered out of the service of the United States. It does not appear that there was any attempt between March 27, 1865, and June 9, 1865, to fill the vacancy by another appointment. In Blake v. U. S., 103 U. S. 231, it was said that "from the organization of the government, under the present Constitution, to the commencement of the recent war for the suppression of the rebellion, the power of the president, in the absence of statutory regulations, to dismiss from the service an officer of the army or navy was not questioned in any adjudged case or by any department of the government." See also McElrath v. U. S., 102 U. S. 426; Keyes v. U. S.,

109 id. 339. But the seventeenth section of the act of July 27, 1862, ch. 200 (12 Stat. 596), authorized and requested the president to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, any officer for any cause which in his judgment either rendered such officer unsuitable for, or whose dismission would promote, the public service. In accordance with these decisions it must be held that that act, if not simply declaratory of the long-established law, invested the president with authority to make the order of March 27, 1865, dismissing appellee from the service of the United States. No restriction or limitation was imposed upon his authority in that regard, until the passage of the act of July 13, 1866, ch. 176 (14 Stat. 92), repealing the seventeenth section of the act of July 17, 1862, and which also it has declared that "no officer in the military or naval service shall, in time of peace, be dismissed from the service, except upon and in pursuance of a sentence of a court-martial to that effect, or in commutation thereof." That act did not go into effective operation throughout the whole of the United States until August 20, 1866; for not until that day was the war against the rebellion recognized by the president and Congress as having finally ceased in every part of the Union. McElrath v. U. S., 102 U. S. 438. In view of these adjudications, it is not to be doubted that the effect of the order of March 27, 1865, dismissing appellee from the service, was to sever his relations with the army. Thenceforward and until in some lawful way again appointed, he was disconnected from that branch of the public service as completely as if he had never been an officer of the army. So that his right to pay as captain and assistant quartermaster of volunteers, from the date of his dismissal from the service by President Lincoln to the date of the order of President Johnson, depends entirely upon the question whether an officer of the army, once lawfully dismissed from the service, can regain his position and become entitled to its emoluments by means of a subsequent order revoking the order of dismissal, and restoring him to his former position. This question must be answered in the negative, upon the authority of Mimmack v. U. S., 97 U. S. 436. The death of the incumbent could not more certainly have made a vacancy than was created by President Lincoln's order of dis

missal from the service. And such vacancy could only have been filled by a new and original appointment, to which, by the Constitution, the advice and consent of the Senate were necessary; unless the vacancy occurred in the recess of that body, in which case the president could have granted a commission, to expire at the end of the next succeeding session. Const., art. 2, § 2. It results, that as the appellee was dismissed from the army during the recent war, by a valid order of the president, and as he was not reappointed in the mode prescribed by law, he was not entitled, as an officer of the army, to the pay allowed by statute for the period in question. United States v. Corson. Opinion by Harlan, J.

[Decided May 4, 1885.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

STATUTE OF LIMITATIONS-ABSENCE FROM STATECODE CIVIL PROC. N. Y., §§ 380, 401.-A. executed a note that fell due, with grace, on January 4, 1874, and being unpaid, suit was brought against him in New York, where he resided, on February 16, 1884. From the time he executed the note to December, 1877, he stayed with his uncle in New Jersey, when he came to the New York Hotel in New York city. He was a gentleman of leisure, and until 1882 an unmarried man, without a permanent home or place or business. Between December, 1877, and the commencement of the suit, he was not continuously absent from the State for the space of one year, but he spent his summers in New Jersey and a part of one winter in Washington, D. C. Held, that the action was not barred by the statute of limitations prescribed by Code Civil Proc. N. Y., §§ 380, 401. When he left New York and went to Washington, he does not appear to have left any home or place of abode to return to in New York. When at Washington his home and domicile was there, because he had none elsewhere, so far as appears. As said by Lord Thurlow, in Bruce v. Bruce, 2 Bos. & P. 231, note: "A person being at a place is prima facie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence." The defendant does not show enough to make a residence in New York while he was at Washington or Mendham. Atty-Gen. v. Dunn, 6 Mees. & W. 511; Jamaica v. Townshend, 19 Vt. 267; Bell v. Pierce, 51 N. Y. 12. So when he went to Washington in February, 1881, he departed from and commenced to reside without the State of New York, and continued to reside without the State until he returned late in 1881. The time of his residence without the State, taken from the six years and two or three months between the time when the statute began to run and the commencement of the action, will leave less than six years to be reckoned toward the statute bar. The statute is not understood to mean, as has been assumed in argument, that residence without the State must continue for a year, not to be a part of the time limited; but that if the person departs from the State and resides without it for any length of time, that time is to be taken out, although absence for less than a year not accompanied by residence without the State is not. If this were not so the first alternative would be useless, for residing without the State would be included in absence from it. And there is good reason for the distinction. Service might be made if his resi

dence was within the State during his absence from the State, while it could not if his residence was without the State. Therefore it might well be provided that no mere absence of less than a year should be de*Appearing in 24 Federal Reporter.

ducted, but that any permanent residence without the State should be. Cir. Ct., S. D. N. Y., Aug. 4, 1885. Satterthwaite v. Abercrombie. Opinion by Wheeler, J. MUNICIPAL BONDS - BONA FIDE PURCHASER KNOWLEDGE OF ATTORNEY AS TO INVALIDITY.-M. and her agent having acquired certain town bonds, with knowledge of facts which made them invalid, placed them in the hands of her attorney, MacV., who sold them to C. It appeared that at the time of the purchase by C., MacV. was his legal adviser, and was one of the attorneys retained by him in the prosecution of the suit on the bonds against the town. Held, that C. was not a bona fide purchaser of the bonds, and could not recover. Citing Ottawa v. Carey, 108 U. S. 110; Hackett v. Ottawa, 99 id. 86. Cir. Ct., N. D. Ill., July 22, 1885. Carter v. Town of Ottawa. Opinion by Gresham, J.

BROKERS

COMMISSIONS- EXPRESS AGREEMENTCOMPROMISE.-Plaintiffs, brokers in railway supplies, knowing of a party who wanted rails and fastenings, telegraphed to defendant, a manufacturer and seller of a railway iron, for prices, to cover them one per cent on rails and two and one-half per cent on fastenings. Defendant gave prices, and a contract was made for the sale and delivery of the iron at an agreed price,on that basis as to plaintiffs' commission, but the contract fell through by default of the purchaser, and no rails were delivered or paid for under it. Afterward, plaintiffs, in consideration of $1,000, cancelled a contract with the purchaser, and waived all claim or interest in certain contracts, among them this contract with defendant. In an action to recover commissions, held, that a verdict was properly directed for defendant. Thurman v. Wild, 11 Ad. & El. 453; Bevins v. Ramsey, 15 How. 179. Cir. Ct., S. D. N. Y., Aug. 14, 1885. Colwell v. Springfield Iron Co. Opinion by Wheeler, J.

CONSTITUTIONAL LAW - EXEMPTING CORPORATION FROM TAXATION - PURCHASE AT JUDICIAL SALE OF

FRANCHISE.-The power of a Legislature under our system, when unrestrained by some constitutional limitation, to contract in an act creating a corporation for an exemption of its property from taxation, has been too long established to be now called in question. The Supreme Court, in the Binghamton Bridge case, 3 Wall. 73, say that the question has been "settled by an unbroken course of decisions," both in the "Federal and State courts;" that "all courts are estopped from questioning the doctrine;" that "the security of property rests upon it;" and that "a departure from it now would involve dangers to society that cannot be foreseen, shock the sense of justice of the country, unhinge its business interests, and weaken, if it did not destroy, the respect which has always been felt for the judicial department." In Humphry v. Pegues, 16 Wall. 249, the same court reiterates the doctrine, and among other things, say: "Another question is raised, to-wit, that a Legislature does not possess the power to grant to a corporation a perpetual exemption from taxation; that it is not competent for one Legislature. by binding another, to compass the death of the State, It is too late to raise this question in this court. has been held that the Legislature has the power to bind the State in relinquishing its power to tax a corporation. It has been held that such a provision in a charter of incorporation constitutes a contract, which the State may not subsequently impair. These doctrines have been reaffirmed and reiterated so recently as 1871, in an opinion of Mr. Justice Davis in the case of the Wilmington R. v. Reid, 13 Wall. 264. They must be considered as settled." These rulings have been adopted and applied in numerous cases in Tennessee. See Knoxville & O. R. Co. v. Hicks, 9 Baxt. 442. Ordinarily no such immunity will pass to a pur

It

chaser as an incident to the acquisition of the property exempt. Morgan v. Louisiana, 93 U. S. 217; Wilson v. Gaines, 103 id. 417; and Louisville & N. R. Co. v. Palmes, 109 id. 244. But such an immunity may pass to a purchaser if it is authorized by law. Memphis R. Co. v. Commissioners, 112 id. 617. The Legislature of Tennessee had constitutional authority, after 1870, to provide by law a remedy whereby an outstanding vested franchise, including, among other privileges, an immunity from taxation, could be subjected to a judicial sale for the payment of the just debts of its owner, and for the transfer of the same, in connection with a conveyance of the property, to which it was appurtenant, to a purchaser. Cir. Ct., E. D. Tenn., May, 1885. East Tenn., etc., R. Co. v. Pickerd. Opinion by Baxter, J.

SHIP AND SHIPPING-CHARTER-PARTY-CONSTRUCTION "THE SEASON OF 1882"-PRIOR CONTRACT BY TELEGRAMS EVIDENCE.-Where a complete contract for the charter of a vessel was made by telegram "for the season of 1882, ending October 31st," and the vessel made one voyage under the contract at lower rates than for single voyages, and a formal charter was then drawn up, and was signed by the captain, in the charterer's office, for "the season of 1882," omitting the words ending October 31st," and the evidence showed that no new or different contract was intended from that already partly executed, held, that the prior contract by telegram was competent evidence of the intention of the parties, and of the meaning of the phrase "season of 1882,"although in the absence of such evidence, the expression by custom would bind the vessel until navigation was closed by ice; accordingly held, that the captain was justified in refusing to run under the charter after October 31st. This was an action for damages on a charter-party, for the vessel's refusal to continue her trips after October 31st until the actual close of navigation, some six weeks subsequent. A perfect contract between the libellants and the master of the Calabria had been made by telegrams. After a series of negotiations the libellants definitely accepted, by telegram, the offer of the Calabria, at a definite price, "for the season ending October 31st." The Calabria made one voyage under this contract, and in part fulfillment of it, at less rates than for single voyages; and then, in the libellants' office, a more formal charter-party was drawn up, chartering the vessel "for the season of 1882," without repeating the words of the telegram, "ending October 31st." In interpreting the meaning of the ambiguous phrase, "the season of 1882," in this charter, the prior telegrams were competent evidence, and must be taken into con. sideration. Merriam v. U. S., 107 U. S. 437; Brawley v. U. S., 96 id. 168; Rhodes v. Cleveland R. M. Co., 17 Fed. Rep. 426; Knowles v. Toone, 96 N. Y. 534. They control and limit the meaning of the phrase, "the season of 1882," and prove beyond controversy the sense in which that phrase was used and the intent of the parties. That intent is controlling. In the case of The Miantinomi, 3 Wall. Jr. 46, the word “ton" was thus shown to be intended to be 2,240 pounds, and not the statutory ton of 2,000 pounds. The contract by telegram in this case was a binding contract. It was made after somewhat prolonged negotiations. It was partly executed, and could not be changed except by some subsequent contract intended to vary it, upon which the minds of the parties met. The evidence satisfies me beyond doubt, that in the execution of the more formal charter, no change in the previous contract was intended, at least on the captain's part. His testimony is explicit that it was stated by him at the time that the season was to end as agreed on by the telegrams. There was no conceivable motive for the captain's receding from this part of the

existing contract. The object of the meeting at the libellants' office was not to make a new contract. The contract was already fixed and certain. The object was merely to put the existing contract into more formal shape. In fixing the meaning of the phrase," the season of 1882," the informal contract by telegram must be read with the formal contract afterward drawn up, as explanatory of it. The telegrams make certain the intention of the parties, unless there be evidence of a common intention to make a new contract; and there clearly was no such common intent. If the indorsement on the charter by Mr. Wooster was intended to hold the captain to any thing different, it is clear that the captain did not assent to it. The captain did not sign it; and it is no part of the charter itself. Mr. Wooster's testimony also shows that the season was to close on the 31st of October, "if the captain wished, or had any offer, to carry deals off shore." In that conversation it appears that the only point spoken of by Mr. Wooster as material to him was that the captain should not, after the 31st of October, enter the service of the libellants' rivals and competitors in business. The captain stated that he had no wish to do so; and after the 31st of October he did not do so. I cannot find therefore that the libellants have either a legal or a meritorious cause of complaint; and the libel should therefore be dismissed, with costs. Dist. Ct., S. D. N. Y., July 3, 1885. The Calabria. Opinion by Brown, J.

PLEDGE-FRAUD-EQUITABLE RELIEF.-A., having borrowed $1,000 from B., delivered his trotting horse to him as security for the loan, under a contract providing for the return of the horse on payment of the loan and expenses of keepiug, etc. C. induced A., by falsely representing that B. was inimical to him, to execute an order for the delivery of the horse, reciting that C. had purchased it. No consideration passed from C. to A., but A. executed a receipt for $3,000 in full for the horse. Held, that A. was entitled in equity to have the receipt or bill of sale set aside, and to a decree directing that the horse be returned to him, or that he be paid the value thereof, if the horse could not be returned, upon the payment of whatever was due under the contract for the expense of keeping him. Although the case is sui generis, I cannot doubt that the court has jurisdiction. An action at law could not afford the relief which the complainant seeks. When the suit was commenced in the State court, the horse was in the possession of the defendant, Throop. The legal title was in him. The chattel, which is the subject of the action, had no fixed market price. The horse had a peculiar worth, hardly capable of estimation in damages. He was valuable not only for what he bad done in the past, but for what he might do in the future. The complaint demands relief as follows: First, for a construction of the contract of October 7th; second, for an accounting; third, for a specific performance; and fourth (though not in terms demanded), that the receipt and order of February 13 be set aside as having been obtained by trickery and fraud. All these are matters of equitable cognizance. Mechanics' Bank v. Seton, 1 Pet. 299, 305; Johnson v. Brooks, 93 N. Y. 337, 343; Cushman v. Thayer Manuf'g Co., 76 id. 365: Mitchell v. Great Works M. & M. Co., 2 Story, 649; Bischoffsheim v. Baltzer, 22 Blatchf. 281; S. C., 20 Fed. Rep. 890; Pacific R. Co. v. Atlantic & P. R. Co., id. 277; Story Eq. Jur., 88 716-726. The value of fast-trotting horses depends upon SO many contingencies, is SO theoretical, uncertain, and speculative that it is thought the court would not be justified in fixing the value here at a greater sum than $8,000. The record does not furnish all the evidence necessary to enable the court to state the account correctly. The defendant was not re

quired to anticipate that an account would be required, and it would be an anomalous proceeding, against his objection, to make a final adjudication upon this branch of the case. Unless therefore the parties can agree upon the amount, there must be a reference to a master for an accounting. Whether "a reasonable recompense" should be allowed depends somewhat upon the profits already received under the contract. This question is also referred to the master for his opinion, and can be finally determined upon the coming in of his report. There should therefore be a decree in favor of complainant for a return of the horse, or for $8,000, his value, in case a return cannot be had, upon payment to defendant of whatever sum may be found due upon the accounting. If however it should be found that the defendant is indebted to the complainant upon the account, the sum so found due should be added to the judgment in complainant's favor. Cir. Ct., N. D. N. Y., July 25, 1885. Herrick v. Throop. Opinion by Coxe, J.

CORPORATION-STOCKHOLDER'S LIABILITY -- CAPITAL STOCK NOT ALL PAID IN.-There is no liability on a subscription to the stock of a corporation, the amount of whose capital stock is fixed, until the whole amount of the stock is subscribed. Stoneham R. Co. v. Gould, 2 Gray, 277; Proprietors Newburyport Bridge v. Story, 6 Pick. 45, note; Burt v. Farrar, 24 Barb. 518; New Hampshire Cent. R. Co. v. Johnson, 30 N. H. 390; Allman v. Havana, Rantoul and Eastern R. Co., 88 Ill. 521. In the last named case, Mr. Justice Breese, speaking for this court, says: "The question is, and it is the important question in the case, was it in the power of these directors to make this call, the full amount of the capital stock rot having been subscribed? This question is to be decided by authority. On reference to a leading work on railways (1 Redf. Law of Railroads, 176) we find it is there said that it is an essential condition to making calls in these companies, when the number of shares and the amount of

capital is fixed, that the whole stock shall be subscribed before any call can lawfully be made. Reference is made in support of the text to Stoneham Branch R. Co. v. Gould, 2 Gray, 277, in which Shaw, C. J., uses this emphatic language: 'It is a rule of law too well settled to be now questioned that when the capital stock and number of shares are fixed by the act of incorporation (in this case by the articles filed and recorded), or by any vote or by-law passed conformedly to the act of incorporation, no assessment can lawfully be made on the share of any subscriber until the whole number of shares has been taken. This was held in Salem Mill Dam v. Ropes, 6 Pick. 23, and 9 id. 187; Cabot and West Springfield Bridge v. Chapin, 6 Cush. 50; Worcester & Nashua R. Co. v. Hinds, 8 id. 110.' * * * By the articles of incorporation filed and recorded a corporation was created as efficient for all the contemplated purposes as if its power had been conferred by a special charter. The capital stock was fixed definitely at $1,000,000, to be divided into 10,000 shares, of $100 each, and that amount must have been subscribed before the corporation could have a legal existence. It was a condition precedent to the legal existence of the company. There is nothing in the articles' or in the statute which authorizes the corporation to commence operations when a less amount is subscribed" See also Somerset & Kennebec R. Co. v. Cushing, 45 Me. 524. Temple v. Lemon. Opinion by Dickey, J.

*To appear in 112 Ilinois Reports.