erroneous instruction is not cured by another instruction on the same subject which is correct." See, also, Mackey v. People, 2 Col. 18; Rice v. Olin, 79 Pa. St. 391.

There is one feature of the instructions given that were it not so serious a matter would be ludicrous. The court told the jury: "And you find that one hundred dollars was obtained by the defendant in reliance upon the fact that defendant or Gilson or both had killed Mrs. Morris, and that the killing in fact had not taken place, and you further find that the one hundred dollars was obtained from Mrs. Wright by defendant by this fraud, deceit and trickery. The fraud in obtaining the possession of the money in such case, if shown, takes the place of trespass which is necessary to be shown, etc. *

*

It will be seen that the fraud, deceit and trickery referred to was the false representation of defendant that she had murdered Mrs. Morris, and the jury were then told that this fraud would supply the place of the trespass necessary to be shown to complete the crime of larceny.

In other words Mrs. Wright in paying over this blood money was imposed upon, in that she was induced to and Idid believe that it had been earned when it was not. If the court, as indicated by this instruction, wanted to give to the bargain between defendant and Mrs. Wright the dignity of a contract, the violation of which would be a wrong or constitute any element of crime-inasmuch as Mrs. Morris was still alive, and it was not shown to be beyond the power of defendant to perform the bargain, it would have been more in accord with ordinary judicial procedure to have given judgment for specific performance of the contract to kill, instead of convicting defendant of a crime that to my mind was not involved either in the performance or breach of the contract.

I think, for error in the charge of the court, the judgment below should have been reversed and a new trial

granted. I do not deem it necessary to enlarge upon the exceptions to the rejection of Terrell's testimony. It was admissible if the proper foundation was laid by asking Mrs. Wright whether she had made such offer to Terrell, as he was produced to prove.

PETER WILSON, APPELLANT, v. FRED J. KIESEL AND OTHERS, RESPONDENT.

PETER WILSON, RESPONDENT, v. FRANK J. CANNON AND OTHERS, APPELLANTS.

QUENT STOCKHOLDER.

· COUNTER-CLAIM.

CORPORATIONS.---CREDITORS' BILL.-UNPAID SUBSCRIPTION.-DELIN- A delinquent subscriber to capital stock of a corporation, who is also a creditor of the corporation, can, after issuance of execution upon his claim reduced to judgment, maintain an action against the corporation and delinquent subscribers to capital stock, but he must suffer a deduction from his claim, proportioned to the amount delinquent on his own stock.

CREDITORS' BILL.-JUDGMENT.— DEFENSE OF FRAUD.- Where it appears that a claim against a corporation has been reduced to judgment by consent of the attorneys for the corporation, acting under instructions from the pres dent of the corporation, who is the real owner of the claim, and that the claim for which judgment was admitted was exorbitant, and that the stockholders never had an opportunity to contest the claim over whose validity there is a real contention; held, that a judgment upon the creditors' bill against the stockholders should be reversed in order to permit the stockholders to contest the claim before the lower court.

CORPORATIONS.— JUDGMENT.-STOCKHOLDERS. In the absence of fraud or mistake in obtaining a judgment against a corporation, the judgment is conclusive upon the stockholders, but otherwise if fraud or mistake is alleged, which defense belongs to stockholders sued upon delinquent subscriptions, and not to the corporation alone, and may be set up by cross-bill to a creditors' bill upon the judgment.

ASSIGNMENT

an

OF CONTRACT.- DELIVERY.— AGENCY.- Where assignment of a claim is made to B. who is taking the assignment for himself and other parties but in his own name, and the assignment is afterwards delivered to one of those other parties, under circumstances showing that B. must have known of such delivery and must have consented thereto, such delivery is good as to B.

ACTION.

REAL PARTY IN INTEREST.-ASSIGNMENT.-Where a claim has been assigned after suit brought the assignee has the right to continue the suit in the name of his assignor, but when judgment is recovered thereon, a creditor's bill based upon that judgment must be brought in the name of the assignee, and when brought in the name of the assignor, no amendment as to parties can cure the defect, but the suit must be dismissed.

CROSS-APPEALS from a judgment of the district court of the fourth district and from an order refusing a new trial, Hon. James A. Miner, judge. The opinion states the facts, but the following details are noticed.

The complaint alleged the incorporation of the Ogden Power Company, the amount of its capital stock, the subscriptions of defendants thereto, the insolvency of the corporation, the recovery of the judgment, the issue of execution, the return thereon and the delinquent subscriptions as its sole assets.

The answer denied the delinquency of the defendants, the insolvency of the corporation, alleged payment of subscriptions, that plaintiff was delinquent himself, that he was not the real party in interest.

Kiesel, Carnahan and Anderson, by way of cross-complaint, alleged that the entry of the judgment against the

corporation was unauthorized by the board of directors, but was under the direction of H. H. Henderson, who had no authority so to do, and that shortly afterward Henderson and his partner Brinker purchased said judgment from said Wilson and that they were still the owners thereof, and that neither of said defendants filing the cross-complaint were ever officers of said corporation, and that if the action of Wilson against the corporation had been defended upon its merits, no greater sum than $2,000 would have been awarded against it, that Henderson consented to said judgment expecting shortly to purchase it, knowing that no more than $2,000 was due Wilson, and for the purpose of secretely defrauding the stockholders, which fraudulent purpose was well known to Wilson, that a majority of the directors were absent from the Territory, and prayer was for cancellation of the judgment.

The answer to the cross-complaint denied each and every of its allegations. The cause was referred to a referee, who tried the cause and made his findings. The findings were adopted by the court, and were as follows:

They set out the judgment and execution against the corporation, the incorporation and capital stock and number of shares of the corporation, the signing of the articles of agreement by the various defendants, that the only asset of the corporation was the unpaid subscriptions, that Kiesel, Carnahan and Anderson had fully paid, that Wilson was a subscriber for 25 shares and a balance of $2,259 was due on his subscription which he agreed should be credited on the judgment, that plaintiff agreed to a reduction of about $9,000 on the judgment, that pending the action of Wilson against the corporation Wilson executed a written assignment of his claim to Brinker, which was never delivered, and it was understood that said claims should not pass to Brinker until the amount named therein had been fully

paid to Wilson and only $3,000 of that consideration had been paid, that in consenting to the judgment Henderson the president and the counsel for the corporation after diligent inquiry acted in good faith, and Henderson and Wilson never agreed in any way that said judgment should be entered for the benefit of Henderson or Brinker and that neither Brinker nor Henderson had any interest in the claim or to the indebtedness which was the subject of the judgment.

The next findings referred to the deed of Kiesel, Carnahan and Anderson to the corporation, the issuing of fully paid up stock therefor, the giving of the mortgage back, the foreclosure of the mortgage, the value of the land, that Wilson, the plaintiff, was a subscriber and had only paid 10 per cent. of his subscription, that Kiesel, Carnahan and Anderson had never been officers of the company, that there was nothing in the articles of incorporation that either of the subscribers should pay in anything other than money, that plaintiff never waived any unpaid subscription. The next findings referred to the taking of the judgment, which was a consent judgment for a valid claim, and was taken in good faith and execution issued thereon with the return of nulla bona, but the board of directors never authorized Henderson to consent thereto, and he instructed the regular attorneys of the company to consent. The next findings made an examination of the claim of Wilson and went into an examination of the validity of the various items, a waiver being made by plaintiff of about $9,000, and fixed the true amount due Wilson. The next findings set out the assignment mentioned in the opinion and found that two payments had been made thereon, that the assignment was negotiated by Henderson for himself, Garretson, Bigelow and Brinker, who had gotten a majority of the stock and