1. Burden of proof.—The burden of proof rests upon the party caus-
ing the mixture. He must show clearly to what portion he is entitled.
The enforcement of his right must leave the opposite party in the use of
the full quantity to which he was originally entitled. Butte Canal & D. Co.
v. Vaughn,
552
CONSPIRACY-See CRIMES, 1, 2.
CONSTITUTIONAL LAW-See CORPORATIONS, 12.
1. Cheating by oversizing the measure for weight wagons.-Upon bill
to redeem a colliery which had been first leased and then mortgaged, plaint-
iff alleged: 1. That defendant had not left sufficient pillars; and, 2.
That he, having to pay by the ton, made his wagons of a larger size. The
court left him to his remedy in damages upon the first item, but as to the
oversize of the wagons, directed an issue at law. Brandling v. Owen, 129
2. Proviso deferring right to suit after breach.-Where there is a
covenant to pay money by a certain day, with a proviso that no action
shall be brought till after the expiration of a month, the action is prema-
ture if brought within the month. Foley v. Fletcher,
130
3. Contract to pay royalty-Affidavit of defense-Practice.-Articles
of agreement in which a party agreed to mine on the land of the other
party and take out 8,000 tons per annum, and pay therefor fifteen cents
per ton, is not "an instrument of writing for the payment of money" re-
quiring an affidavit of defense, where the action is covenant for damages
for non-performance; otherwise, if the suit had been for the agreed rate
for any certain number of tons mined. Eshelman v. Thompson,
146
4. Evidence of condition of shaft.-In suit on contract for sinking a
shaft, it appeared that the shaft was finished on the 20th of November.
Evidence was offered by defendant to show the condition of the shaft in
January following, the shaft meanwhile being full of water. Held, that
the evidence was properly rejected. Eureka Coal Co. v. Braidwood, 148
5. Formal acceptance not nece·sary.—If a shaft be sunk according to
contract, it is the duty of the party procuring the work to accept it, and
the party sinking can not be prejudiced by the neglect of a formal accept-
ance thereof. Id.
6. Reasonable time for examination.-Where work is to be accepted
or rejected, the examination should be made when the work is tendered
or within a reasonable time thereafter. Id.
7. Mining statute-Special contract.-The statute of Wisconsin gov-
erning the rights of miners, applies only where there is no special contract
or lease fixing the rights of the parties. Sobey v. Thomas,
360
8. Ratification defined.—The term "ratified," when used in reference
to a contract, is applicable only to contracts made by a party acting or as-
suming to act for another; it implies the relations of principal and agent.
Ellison v. Jackson Water Co.,
559
9. Contract to pay in water.-Defendant employed plaintiff to build a
ditch, at the rate of $3 per rod, one third payable in money at the comple-
tion of each mile and two thirds by the delivery of water, the company
having the right to pay all cash instead of partly in water if they pre-
ferred. Held, that if they elected to pay such two thirds in cash it did not
become due in installments, like the one third, but upon the completion of
the ditch. Myers v. South Feather River W. Co.,
566
10. Idem. The payments in water could not be claimed before the
ditch was completed, and the cash can not be required sooner. Id.
See CORPORATION, 1; DELIVERY; AGENT, 4.
1. Notice of covenant in title papers.-The law conclusively charges
the purchaser of lands with knowledge of a covenant in the deeds, which
constitute the muniments of his title, that no marl should be sold from
off such premises. Brewer v. Marshall,
2. Rights incident to land enforced against purchaser with knowl-
edge.-Cases reviewed, illustrating the principle of preventing the alienee
of lands, having knowledge of the just rights of another, from defeating
such rights, aside from the existence of an easement or covenant adhering
to the title. Id.
3. A proviso in the same deed with the covenant qualifies and controls
the covenant. Foley v. Fletcher,
130
4. Separate location on same lode-Conveyance of lode held under
different names.-Plaintiff derived title to the premises in controversy
from D., to whom defendant had conveyed by deed containing the follow-
ing description: "All that portion of the claim known as the Ward
Beecher, commencing at the south side and east end of a long cut running
easterly and westerly, generally known as the Ward Beecher Cut. Also
all my right, title and interest in the Montrose, Colfax and Barris &
Sproul lodes, lying south of a due east and west line drawn from the
south side and east end of the above mentioned cut," etc. The plaintiff
conceded that nothing was conveyed by the deed under the name Ward
Beecher, on account of incurable defects in that portion of the description,
but that the Colfax was the same as the Ward Beecher, and was suffi-
ciently described to convey the premises; the defendant disputed the
identity of the veins, but claimed that if the same, the Colfax location was
a nullity, and nothing passed by a conveyance under that name. Held,
that where two interfering claims have been made upon the same vein
and are held by the same party, the deed of the one will convey the other
to the extent of the ground covered by both locations, without regard to
their being located and known by separate names, and if it can be ascer-
tained what lode is intended to be conveyed, it makes no difference that
it has been called by a name illegitimately acquired. Philpotts v. Blas-
341
Deed-Statute of uses-Party plaintiff in ejectment.-A deed in
which R. grants, bargains, sells, remises, releases, conveys and quitclaims
the premises to P. for the use and benefit of the E. & A. M. Co. Held, to
be a deed of bargain and sale, and that the legal title remained in P.
because no use can be limited on a use, and when a man bargains and
sells his land for money, which raises a use by implication to the bar-
gainee, the limitation of a further use to another person is repugnant and
therefore void; but though not a use which the statute can execute, yet
still it is a trust in equity, which in conscience ought to be performed.
Held, also, that P. rather than the E. & A. M. Co. was the proper party
to bring ejectment for the premises conveyed. Id.
6. Conveyance not under seal-Eridence.-A mining claim may be
conveyed by bill of sale or instrument in writing not under seal as pro-
vided by statute in California, and such instrument is admissible in evi-
dence.
455
7. Bill of sale as evidence. It was objected to the introduction of a bill
of sale in evidence, that it purported to be executed by Jones, one of the
three grantors, by his attorney in fact, who, it was shown, had at the
time a written power, which was not produced at the trial. Held, that the
objections pertained, not to the admissibility of the bill of sale, but to its
effect when admitted; and that it was proper evidence to show a convey-
ance by the other grantors. Id.
8. Conveyance of water.--A water right is, under the law of Montana,
"such a species of realty as to require for its transfer the same form and
solemnity as the conveyance "of other real estate." Barkley v. Tieleke,
9. Void Deed-Abandonment—Appropriation.—Where the owner of
a ditch attempts to convey the same by a deed which is void, but plac s
the grantee in possession, who continues to use the ditch, it operates as an
abandonment of his appropriation by the grantor and as a new appropria-
tion by the grantee, dating from the change of possession. Id.
See DESCRIPTION; EASEMENT, 2; LOCATION CERTIFICATE; RELOCA-
TION, 1; TENANTS IN COMMON, 1.
1. Director may deal with corporation same as stranger-Deed of
trust.-A director or stockholder of a private corporation may trade with,
borrow from, or loan money to the company of which he is a member, on
the same terms and in like manner as other persons; but where a director
loans money to his corporation, taking a deed of trust to secure the same,
he must act fairly, and be free from all fraud and oppression, and if in
so doing he acts for the interest of the company, and imposes no unfair or
unreasonable terms, the security may be enforced the same as if given in
favor of any other person. Harts v. Brown,
2. Relation of director to company when purchasing its bonds or
property. The managers or directors of a private corporation are not
trustees of its property in such a sense as to disable them from purchasing
the property and stock belonging to it, with the same effect as though they
were not managers or directors. They have the right to purchase the bonds
or other indebtedness of the company. Id.
Idem-Purchase at foreclosure not in good faith, if company able
to redeem.-Where a corporation has money, or assets convertible into
money, the purchase of its bonds or lien indebtedness by directors as a
means of enforcing sale of its property would be in bad faith, and the title
thus acquired would not be sustained in equity. Id.
4. Duty of directors to dispose of remaining assets after loss of its
substantial property.-Where the essential and principal property of a
mining company is sold under a trust deed securing its bonds, the com-
pany still owing other debts, it becomes the duty of the directors to dispose
of the remaining property, and it may be so disposed of under the trust
deed after sufficient has been realized under its foreclosure to pay the bonds
secured. Id.
5. Proof of organization or charter.-To establish the existence of a cor-
poration de facto, a charter or some law under which the assumed powers
are claimed to be conferred, and user of the franchise thereby obtained,
must be shown. Abbott v. Omaha Co.,
6. Filing articles.—In Nebraska, the filing of articles of incorporation
with the county clerk is a condition precedent to the existence of any cor-
porate franchise. The law and articles so filed, taken together, are con-
sidered in the nature of a grant from the State, and constitute the char-
ter of the company. Id.
7. Distinction between liability for no report and false report.-As-
suming that, under the laws of New York, causes of action against the
trustees of a corporation for omission to file an annual report, and for
making and filing a false report, may be united in one complaint, and
that a false report may be regarded as no report, yet, to justify such union,
each cause of action must affect all the parties. For the omission, all the
trustees are liable. For the false report, only those are liable who do the
act. Bonnell v. Griswold,
15
8. Powers of board of directors.-When by the articles of incorpora-
tion it is provided that the board of directors shall have power to appoint
and remove the agents of the corporation, the power thus given is a trust
reposed in the directors alone, and they are not at liberty to enter into any
agreement by which such power is surrendered to a stranger. Flagstaff
M. Co. v. Patrick,
9. Ultra vires.—A corporation is not bound by an unauthorized con-
tract made by its board of directors; such contract can be treated as ultra
vires, and is not binding upon the corporation. Id.
10. Personal liability of stockholder.-Value of lands used to pay up
stock, inquired into.—In an action to charge the holder of stock of a cor-
poration, issued for the purchase of property, individually, with the debts
of the company under the laws of New York, it appeared that the entire
capital stock of the corporation, $300,000, was issued to H., one of the
trustees, in consideration of the assignment to the company of two exec-
utory contracts on which nothing had been paid--one for furnace property
at $30,000, and one for woodland at $10,000. H., without consideration,
reconveyed to the company 600 shares, the par value being $10) per share,
to be sold to pay the contract price of the furnace property, and 1.000
shares to be sold to raise working capital, of which defendant purchased
250 shares at forty cents on the dollar, he having participated in the
whole transaction as a trustee of the company. Held, that to justify a
recovery it is not sufficient to prove an error of judgment by the trustees
in the valuation of the property, but that it must be shown that the pur-
chase at the price agreed upon was in bad faith and to evade the statute;
and the facts in this case were sufficient to justify such a finding of fraud.
Held, also, that evidence of the value of the property purchased was
competent. Douglass v. Ireland,
11. Idem-Simultaneous action against trustees.-An action brought
against the trustees to charge them under the laws of New York with the
same debt, because of failure to make the annual report, is no bar to an
action against stockholders based on their personal liability. Id.
12. Constitutional law-Conditions imposed upon foreign corporations.
-Section 213, Gen. Laws, requiring foreign corporations, before they shall
be permitted to do business in Colorado, to file a certificate with the Secre-
tary of State, etc., is designed to enforce the provision of the State Con-
stitution requiring foreign corporations to have a known place of business,
and an authorized agent in the State, upon whom process may be served,
before doing business therein, and is not in conflict with the Constitution
of the United States. Utley v. Clark-Gardner M. Co.,
13. Foreign corporation may sue without filing certificate.—Upon suit
brought by a foreign corporation a special plea was filed setting up that
plaintiff had not complied with the foregoing provision, and a demurrer to
the plea was sustained. Defendants stood by their plea, and the Supreme
Court, affirming the judgment, held that a corporation is a creature of
local laws, and has no absolute right of recognition outside of the limits
of the sovereignty which created it; beyond such limits it is dependent
upon the comity of the several States, and its rights must be enforced un-
der such limitations as each State may think wise to prescribe; but that
the bringing of suit is the seeking to enforce rights springing from busi-
ness transactions, and is not the doing of business so as to require the
filing of the above certificate. Id.
14. Recovery by director for extra services.--A president or director
of a corporation rendering services to the corporation outside the scope of
his official duty and not required thereby, may recover compensation there-
for upon a promise implied from facts and circumstances. Santa Clara
Mining Ass. v. Meredith,
44
15. Preferred stock, when illegal.-By a special charter the Q. M. Co.
was granted authority to issue certificates of stock representing the value
of its property, in such form and subject to such regulations as it might
by its by-laws prescribe. Pursuant to this authority, the company adopted
the following by-law: "Certificates of stock amounting to $10,000,000
shall represent the value of the property of the corporation, and the capi-
tal stock shall be divided into 100,000 shares of $100 each." After the
stock had been issued, and at an annual meeting of the stockholders, by
vote of the majority of the stock, the above by-law was amended by add-
ing the words: “Certificates of stock upon which five dollars shall be paid,
shall be distinguished as preferred stock," and by other by-laws and reso-
lutions it was provided that preferred stock should be entitled to seven
per cent. out of the net earnings each year, and any surplus of earnings
should be divided pro rata among the holders of preferred and common
stock, and that the preferred stock should be issued to all holders of com-
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