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Olv. App. 12, 21 §. W. 692, holding initial carrier liable under its contract for loss of animals on connecting line; Gulf, etc., R. R. Co. v. Cole, 8 Tex. Civ. App. 640, 28 S. W. 394, finding through contract and first carrier liable for personal injuries; dissenting opinion in Piedmont Mfg. Co. v. Columbia, etc., R. R. Co., 19 S. C. 379, majority holding charge erroneous fixing liability on initial carrier. See note, 72 Am. Dec. 242.

Distinguished in Harris v. Grand Trunk, 15 R. I. 373, 5 Atl. 307, holding shipper bound by bill of lading and not entitled to recover from first carrier.

Carriers are under duty to furnish suitable vehicles for transportation, and if unfit, carrier is not relieved by fact that shipper knew them to be defective and used them, p. 133.

Cited and indorsed as the correct rule in St. Louis, etc., R. R. Co. v. Lesser, 46 Ark. 241, holding carrier at fault in providing unsafe car; Union Pac. R. R. Co. v. Rainey, 19 Colo. 228, 230, 34 Pac. 987, 988, holding similarly where cars were unsuitable for shipping horses; Beard v. Illinois, etc., R. R. Co., 79 Iowa, 521, 18 Am. St. Rep. 384, 44 N. W. 801, 7 L. R. A. 282, holding carrier liable for transporting butter in ordinary cars; State v. Cincinnati, etc., R. R. Co., 47 Ohio St. 140, 23 N. E. 931, 7 L. R. A. 322, and n., compelling railroad to supply equal facilities to all for transportation of oil; G., C. & S. F. R. R. Co. v. Wilhelm, 3 Tex. App. Civ. 560, where sheep were lost from use of defective cars. See valuable note, 63 Am. St. Rep. 566.

Carriers cannot stipulate for unreasonable exemptions from liability, as, for negligence of themselves or their servants, p. 134.

Doctrine approved and cited as follows: Liverpool, etc., S. S. Co. v. Phenix Ins. Co., 129 U. S. 442, 32 L. 792, 9 S. Ct. 472, affirming S. C., 22 Blatchf. 397, 22 Fed. 728, holding stipulation against loss by perils of sea arising from negligence, invalid; Voight v. Baltimore, etc., R. R. Co., 79 Fed. 563, holding railroad could not contract with express messenger to exempt itself from liability for negligence; Pierce v. Southern Pac. Co., 120 Cal. 165, 47 Pac. 876, 40 L. R. A. 353, holding railroad liable for negligence in shipping orange trees by northern route; Union Pac. R. R. Co. v. Rainey, 19 Colo. 231, 34 Pac. 988, and Armstrong v. Missouri, etc., R. R. Co., 17 Mo. App. 402, where railroad furnished unsuitable cars for live stock; Missouri, etc., R. R. Co. v. Carter, 9 Tex. Civ. App. 689, 29 S. W. 570, holding contract requiring statements and notices of condition of cattle unreasonable, and not binding; Davis v. Chicago, etc., R. R. Co., 93 Wis. 481, 57 Am. St. Rep. 939, 67 N. W. 19, 33 L. R. A. 658, reviewing cases, and holding provision for immunity for negligence, void.

The following cases approve the rule, but hold stipulations reasonable and valid: Hart v. Pennsylvania R. R. Co., 112 U. S. 338.

Cited in Lamar v. Browne, 92 U. S. 194, 23 L. 653, holding agents of government not liable for retention of captured cotton; Young v. United States, 97 U. S. 58, 24 L. 997, holding cotton, belonging to foreigner, who aided Rebellion, subject to confiscation. See notes, 87 Am. Dec. 509, and 91 Am. Dec. 280.

War.- Pardoned enemy, as well as loyal enemy, could avail himself of benefits of captured and abandoned property act, if he sued in time prescribed by that act, p. 96.

Court of Claims has no jurisdiction of action, commenced two years after suppression of Rebellion, by one who gave it aid and comfort, to recover money in treasury, arising from sale of captured property, p. 98.

Affirmed in Rice v. United States, 122 U. S. 616, 620, 7 S. Ct. 1384, 1385, holding claim, under act of 1877, barred by lapse of time; Lane v. United States, 154 U. S. 616, 22 L. 743, 14 S. Ct. 1204, holding claim barred by two years' lapse; Austin v. United States, 155 U. S. 426, 39 L. 209, 15 S. Ct. 171, holding claimant not entitled to recover under special act of March 3, 1883, for want of loyalty.

Actions. Where right and remedy are created by same statute, the remedy provided is exclusive of all others; hence, two years' limitation only applies to action for restoration of captured property, p. 98.

22 Wall. 99-104, 22 L. 816, UNITED STATES v. INSURANCE COS.

Pleading. Plea of general issue admits capacity of plaintiff corporation to sue, as does going to trial upon the merits, p. 101.

Followed in Imperial Ref. Co. v. Wyman, 38 Fed. 576, 3 L. R. A. 505, and n., holding, under general denial, incorporation of plaintiff could not be questioned; Emerson Co. v. Nimocks, 88 Fed. 281, holding objection to plaintiff's corporate existence waived by an

swer.

States.- Officers acting under color of office illegally, are de facto officers, and their acts are valid as concerns third parties and the public; hence, enactments of de facto legislatures in rebel States, during the war, by which corporations were created, were valid, p. 103.

Cited in Joseph v. Cawthorn, 74 Ala. 415, holding attachment proceedings not affected by failure of clerk to take oath of office; dissenting opinion in Penny wit v. Foote, 27 Ohio St. 638, majority holding judgment of court connected with insurrectionary government of Arkansas, not binding on non-resident.

Distinguished in Bragg v. Tuffts, 49 Ark. 562, 6 S. W. 161, holding ordinance of Arkansas convention, for revenue, being a war measure and hostile to Union, void.

Courts.- Corporations can sue in Court of Claims as any other individual, for restoration of property, under captured and abandoned property act of 1863, p. 104.

22 Wall. 105-115, 22 L. 713. MARYLAND v. RAILROAD CO.

Tender. Implication that undertaking in contract is to pay in gold, must be found in language of contract, and undertaking cannot be presumed from expectation of parties, p. 111.

Cited with approval in Woodruff v. Mississippi, 162 U. S. 303, 40 L. 977, 16 S. Ct. 824, holding bonds valid and payable in legaltender notes; Heirs of Watrous v. McKie, 54 Tex. 71, holding partles bound by written contract to abide by a judgment, construction not being dependent upon expectations, etc., of parties. Cited generally, without applying rule, in dissenting opinion in Woodruff v. Mississippi, 162 U. S. 311, 40 L. 980, 16 S. Ct. 827.

Contracts. Reference to surrounding circumstances is allowed to ascertain subject-matter of contract or to aid construction, but not for purpose of adding new and distinct undertaking, p. 113.

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Cited as authority and followed in Reed v. Insurance Co., 95 U. S. 31, construing clause in marine insurance policy by aid of circumstances; United States v. Peck, 102 U. S. 65, 26 L. 47, admitting parol evidence to prove that parties contracted for hay, to be gathered in a particular region; Mellen v. Ford, 28 Fed. 646, construing meaning of “plastering and stucco-work," in contract, without aid of parol testimony; Chicago, etc., R. R. Co. v. Pyne, 30 Fed. 88, construing ambiguous contract by its language, where there were no extraneous circumstances of value to assist the court; Sorensen v. Keyser, 51 Fed. 32, 2 U. S. App. 177, excluding paro: evidence to show meaning of word drought," as used in contract; Union Stock-Yards v. Western, etc., Co., 59 Fed. 57, 18 U. S. App. 438, rejecting evidence offered to change effect of contract for bail ment of cattle; Shipman v. Saltsburg Coal Co., 62 Fed. 148, 17 C S. App. 625, holding contract, by its terms, did not require parties to take coal in monthly installments; Consolidated Coal, etc., Oo. v. Mercer, 16 Ind. App. 511, 44 N. E. 1007, holding contract for delivery of certain number of brick per month, did not require whole to be delivered on the first of each month; Tuxbury v. French, 41 Mich. 13, 1 N. W. 906, holding extrinsic evidence necessary to explain will; Bruce v. Fulton Nat. Bank, 79 N. Y. 165, 35 Am. Rep. 510, holding, where contract was silent, lessee could not be held bound to renew lease by implication; Heirs of Watrous v. McKie, 54 Tex. 71, holding parties bound by written contract to abide by a certain judgment in a similar controversy; Talbott v. Richmond, etc., R. R. Co., 31 Gratt. 689, holding, with reference to deed and surrounding circumstances, that there was no dedication to public; Bank of Old Dom. v. McVeigh, 32 Gratt. 538, interpreting contract

28 L. 720, 5 S. Ct. 154, and Brown v. Wabash, etc., R. R. Co., 18 Mo. App. 574, limitation of liability in bill of lading as to value of live stock; Phoenix Ins. Co. v. Erie Transp. Co., 117 U. S. 322, 29 L. 879, 6 S. Ct. 754, stipulation giving carrier benefit of any insurance effected upon goods; Kansas City, etc., R. R. Co. v. Sharp, 64 Ark. 118, 40 S. 782, limitation of liability to that of warehouseman upon arrival of goods at station of delivery; Ballou v. Earle, 17 R. I. 448, 33 Am. St. Rep. 888, 22 Atl. 1115, 14 L. R. A. 437, and n., limitation upon value of packages; Houston, etc., R. R. Co. v. Park, 1 Tex. App. Civ. 143, limitation of liability to carrier's own line. Cited in notes, 32 Am. Dec. 500, and 13 Am. St. Rep. 783.

Appeal and error.- - Judgment will not be reversed for error clearly producing no injury, p. 135.

Cited in Runkle v. Burnham, 153 U. S. 224, 38 L. 697, 14 S. Ct. 840, holding rejection of telegrams, being immaterial, not reversible

error.

Miscellaneous.- Miscited in Pickett v. Merchants, etc., Bank, 32 Ark. 370.

22 Wall. 136-150, 22 L. 743, ST. JOHN v. ERIE RY. CO.

Corporations.-"Net earnings," as used in agreement for divi dends upon preferred stock, are those which remain after deduc tion of all charges or outlay, as net profits, p. 148.

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Citing as authority Mobile, etc., R. R. Co. v. Tennessee, 153 U. 8. 497, 38 L. 797, 14 S. Ct. 972, defining word dividend' " under statute exempting corporation from taxation; Southern Pac. Co. v. Board of Commrs., 78 Fed. 266, defining "expenditures" in arriving at net earnings of road; Terre Haute v. Hudnut, 112 Ind. 551, 13 N. E. 690, holding witness properly used term "net earnings" to mean profits; Belfast, etc., R. R. v. Belfast, 77 Me. 458, 1 Atl. 366, holding annual contribution to sinking fund payable out of earnings; McLean v. Plate-Glass Co., 159 Pa. St. 118, 28 Atl. 212, holding part of standing indebtedness properly deducted as a charge; Commonwealth v. Phila., etc., R. R. Co., 164 Pa. St. 261, 30 Atl. 146, holding rent for rolling-stock an operating expense. See note, 99 Am. Dec. 762.

Corporations. Preferred stockholders cannot select a part of a business and say that net earnings specified in the stipulation for their preferred dividends, must be a predicate of that part and of none other, p. 149.

Cited and applied in Mackintosh v. Flint, etc., R. R. Co., 34 Fed. 605, holding revenue from land assets as applicable to payment of dividends as that from any other source; People v. St. Louis, etc., R. R. Co., 176 Ill. 531, 532, 52 N. E. 298, 35 L. R. A. 661, where net earnings were ascertained from accounts of entire system;

Schmidt v. Louisville, etc., R. R. Co., 95 Ky. 299, 25 S. W. 496, arriving at expenses of leased road by proportion of total operating expenses.

Distinguished in Nickals v. New York, etc., R. R. Co., 21 Blatchf. 181, 15 Fed. 579, where there was net profit over all expenses of all operations, stockholders held entitled to dividends.

Corporations.- Creditors of railroad becoming preferred stockholders under reorganization contract with right to receive dividends "out of net earnings of road," are not entitled to dividends until rents accruing under leases and interest upon bonds are paid, p. 150.

Cited and followed in Warren v. King, 108 U. S. 400, 27 L. 773, 2 S. Ct. 798, holding preferred stockholders had no priority over subsequent mortgagees; New York, etc., R. R. Co. v. Nickals, 119 U. S. 307, 30 L. 368, 7 S. Ct. 214, holding preferred stockholder could not enforce payment from net earnings applied to make double track; Mercantile Trust Co. v. Baltimore, etc., R. R., 82 Fed. 370, applying earnings to payment of interest in preference to div idends; People v. St. Louis, etc., R. R. Co., 176 Ill. 531, 532, 52 N. E. 298, 35 L. R. A. 661, holding indebtedness on preferred stock could not be regarded a liability; Field v. Lamson, etc., Co., 162 Mass. 390, 38 N. E. 1127, 27 L. R. A. 143, and n., collecting cases, holding that owner of preferred stock should be regarded as stockholder, and not as creditor; Miller v. Ratterman, 47 Ohio St. 159, 24 N. E. 500, holding dividends on preferred stock payable only out of net earnings; McLean v. Plate-Glass Co., 159 Pa. St. 118, 28 Atl. 212, holding part of permanent indebtedness properly paid before dividends on preferred stock; Emerson v. New York, etc., R. R. Co., 14 R. I. 558, holding preferred stockholder had no pri ority over other creditors; State v. C. & C. R. R. Co., 16 S. C. 532, holding holder of preferred stock a shareholder; Chaffee v. Rutland R. R. Co., 55 Vt. 126, holding floating indebtedness payable before interest on preferred stock.

22 Wall. 150-157, 22 L. 832, SLOAN v. LEWIS.

Bankruptcy.- Accrued interest constitutes part of a debt provable against estate of bankrupt, and, therefore, is part of debt which may be used to uphold involuntary proceedings, p. 156.

Distinguished in Woodard, etc., Co. v. Milnes, 101 Wis. 332, 77 N. W. 164, holding costs of suits incurred thirty days before act of insolvency could not be added to give required amount.

Judgments.- Where record shows jurisdiction, an adjudication of bankruptcy can only be assailed by a direct proceeding in a competent court, p. 157.

Cited and applied in Wald v. Wehl, 18 Blatchf. 501. 6 Fed. 169, holding determination by Bankruptcy Court of existence and au

VOL. VIII-33

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