poration for damages caused, as charged in the complaints and recited
in the judgments by its negligence. On foreclosure of the outstanding
mortgages the holders of these judgments were given priority over the
mortgagees, notwithstanding the contention of the latter that the
property-owners had no contractual relations with, or right to main-
tain these actions against, the water company, that the judgments
were not conclusive, the mortgagees not being parties thereto, and
that only the equity acquired by the new company was subject to any
judgment lien. In affirming the decision, held, that:
Under the statute the mortgagees agreed to accept the judgments as con-
clusive of the amounts due. And the record, showing that negligence
was alleged in the complaints and adjudged by the state court, dis-
closes judgments in actions of tort.
One may by contract acquire an opportunity for acts and conduct in
which parties other than those with whom the contracts are interested
and for negligence in which he is liable to such other parties.
While a citizen may have no individual claim against a company con-
tracting to supply water to a city for its failure to do anything under the
contract, he may have a claim against it, after it has entered upon a
contract and is engaged in supplying the city with water, for damages
resulting from negligence and in such a case the action is not for breach
of contract but for a tort.
Section 1255 is not a penal statute, but remedial, and should be liberally
construed to give effect to the intent of the legislature to make the
property of corporations security against its torts, and imposes upon
the plant of a corporation responsibility for torts which cannot be
avoided by a conveyance to a new corporation. Guardian Trust Co.
v. Fisher, 57.
Porto Rico. Contracts; medium of payment-Foraker Act-Res judicata.
A Porto Rican contracted, in 1894, to pay a certain amount of pesos
in money current in the commerce, whatever may be the coinage in
circulation at the rate of one hundred centavos of the money in cir-
culation for each peso. Section 11 of the Foraker Act, passed April 12,
1900, provided for the retiring of Porto Rican coin and the substitution
thereof of United States coin and for the payment of debts at the rate
of sixty cents per peso-and thereafter the debtor offered to pay the
obligation at that rate but the Supreme Court of Porto Rico held that
he was entitled under the contract to one hundred cents for each peso.
The creditor also claimed the matter was res judicata under a judg
ment which had been obtained for an instalment of interest. In re-
versing this judgment held, that:
Appellant having claimed, and been denied, the right to pay the indebted-
ness at the rate fixed by § 11 of the act of April 12, 1900, this court has
jurisdiction under § 35 of that act to review the judgment on appeal.
Under Article 1477 of the Porto Rico Code of Civil Procedure judg-
ments rendered in executory actions are not res judicata.
The contract only contemplated such change in coin as might occur while
Porto Rico was under the same political power, and a strict and literal
construction of the contract will not be entertained where it does not
convey the real meaning of the parties.
The indebtedness should be paid at the rate of sixty cents per peso as
fixed by the statute, and neither the provisions of the statute, making
United States coin the circulating medium, nor the terms of the contract
should be construed as making a centavo (the one-hundredth part of
a peso) the equivalent of a cent in United States money. Serralles v.
Esbri, 103.
Foraker Act of April 12, 1900 (see Jurisdiction, A 13). Ib.
MASTER AND SERVANT.
See NEGLIGENCE.
MISTAKE.
See REAL PROPERTY.
See LOCAL LAW (PORTO RICO).
MORTGAGE AND DEED OF TRUST.
1. Easement of light and air created by.
An owner of two adjoining parcels obtained on one of them a building loan
and erected an apartment house so near the line of the property mort-
gaged that ten feet of his adjoining parcel was absolutely necessary
for properly conducting the apartment. During the erection of the
building, and after it was evident that such ten feet adjoining was
essential thereto, he obtained money for its completion on a second
mortgage; subsequently he conveyed both parcels subject to the two
mortgages on the parcel built on and also to a separate mortgage on the
adjoining vacant parcel. The mortgages conveyed the property,
together with the improvements, ways, easements, rights, privileges
and appurtenances appertaining thereto. On foreclosure of the mort-
gages held, that although an easement for light and air may not have
been created by implication, still, under the wording of the convey-
ances and the circumstances of the case, an easement was created in
favor of the mortgagees of the parcel built on against the original
owner, and also against his grantee who took with notice, in the ten-
foot strip adjoining the parcel on which the building was erected.
Warner v. Grayson, 257.
It was not necessary that both parcels should be sold as an entirety, but,
adequate proportionate protection as to the easement being provided
for the mortgagee of the vacant plot, the plot with the building should
be sold together with the easement on the ten feet adjoining as one
parcel, and the vacant parcel subject to the easement, as another
parcel, separately. Ib.
See JURISDICTION, B 5;
LOCAL LAW (N. C.).
1. Streets; power to grade.
The power to grade streets given by a statute is not necessarily exhausted
by one exercise thereof. Mead v. Portland, 148.
2. Maladministration affecting National Government.
Maladministration of its local affairs by a city's constituted authorities
cannot rightfully concern the National Government, unless it in-
volves the infringement of some Federal right. Waterworks Company
v. Owensboro, 38.
See CONSTITUTIONAL LAW, 1, 2,
7, 8, 15;
CORPORATIONS, 4;
JURISDICTION, B 1; C 1;
PRACTICE AND PROCEDURE, 2.
1. Powers of-Ultra vires acts; taking stock in corporation organized for
speculative business.
A Minnesota manufacturing corporation having failed, the creditors, a
national bank among them, organized a new corporation under the
laws of Minnesota for the purchase of the capital stock, evidences of
indebtedness and assets of the corporation and for the manufacture
of the same articles that it had manufactured. The bank and other
creditors exchanged their claims against the old corporation for stock
in the new corporation. After the incorporation, and prior to the
failure of the new corporation the laws of Minnesota imposing double
liability on stockholders of certain corporations were amended and a
new method of procedure for enforcing them was provided. Stock-
holders of corporations organized exclusively for manufacturing pur-
poses are not subject to double liability. Proceedings having been
taken under the statute to enforce the double liability of the stock-
holders, a receiver was appointed, an assessment determined, and a
judgment for the pro rata amount obtained against the national bank,
which denied liability, claiming that the corporation was organized
for manufacturing purposes only, and therefore the stockholders were
exempt from double liability; that the provisions in the statute pro-
viding for enforcing double liability were unconstitutional under the
impairment of obligation clause of the Federal Constitution; and that
the original taking of the stock by it as a national bank was ultra
vires. Held, that a national bank has no power to engage in or promote
a purely speculative business or to take stock in a corporation organ-
ized for that purpose, nor can the power to take such stock as a means
of protecting itself from loss on preëxisting indebtedness be inferred
from the right to accept it as security for a present loan. First Na-
tional Bank v. Converse, 425.
2. Defense of ultra vires in action to subject bank to liability as stockholder
not affected by its subscription.
Notwithstanding its subscription, a national bank, taking stock in a cor-
poration organized for purely speculative purposes, may plead its
want of authority so to do as a defense to the claim of a receiver of
such corporation for the double liability imposed by a state statute
on the stockholders thereof. Ib.
Burden of proof in action for—Inference of negligence from fact of injury.
In an action for damages for personal injuries while the defendant has the
burden of proof of contributory negligence, the plaintiff must estab-
lish the grounds of defendant's liability; and to hold a master re-
sponsible a servant must show by substantive proof that the appliances
furnished were defective, and knowledge of the defect or some omission
in regard thereto. Negligence of defendant will not be inferred from
the mere fact that the injury occurred, or from the presumption of
care on the part of the plaintiff. There is equally a presumption that
the defendant performed his duty. Looney v. Metropolitan R. R. Co.,
480.
See LOCAL LAW (N. C.);
REMOVAL OF CAUSES, 2.
1. Prescription for public nuisance as between States.
The reasons on which prescription for a public nuisance is denied or granted
to individuals against the sovereign power to which he is subject have
no application to an independent State; but it would be contradicting
a fundamental principle of human nature not to allow effect to the lapse
of time. The fixing of a definite time, however, is usually for the
legislature and not for the courts. Missouri v. Illinois, 496.
2. Unlawful structure; drainage canal as.
The mere fact that the drainage canal, constructed by authority of Illinois
and also under authority of an act of Congress, brought water from the
Lake Michigan watershed into the watershed of the Mississippi does
not, in the absence of proof of the deleterious effects of such water,
render the canal an unlawful structure, the use whereof should be
enjoined at the instance of another State in the Mississippi watershed.
Ib.
OPTIONS.
See CONTRACTS, 4.
PATENT FOR LAND.
See PUBLIC LANDS.
Payment of an illegal demand with full knowledge of the facts rendering
it illegal, without an immediate and urgent necessity therefor, or unless
to release or prevent immediate seizure of person or property, is a
voluntary payment and not one under duress. United States v. Cuba
Mail S. S. Co., 488.
See LOCAL LAW (PORTO RICO);
See UNLAWFUL COMBINATIONS.
PLEADING.
See CORPORATIONS, 3;
JURISDICTION, B 2, 3, 5.
POLICE POWER.
See CONSTITUTIONAL LAW, 4;
POLLUTION OF WATERS.
See JURISDICTION, A;
NUISANCE.
POOLING OF FREIGHTS.
See INTERSTATE COMMERCE, 2.
PORTO RICO.
See JURISDICTION, A 13;
LOCAL LAW.
POWERS OF CONGRESS.
See INTERSTATE COMMERCE, 1.
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