mon stock who surrendered the same, share for share, upon the payment
of five dollars per share. 42,913 shares were so surrendered and preferred
stock issued in lieu thereof, and for four years both preferred and common
stock were quoted in the public prints and sold at the stock exchange, the
former bringing the highest price. At the expiration of this period
actions were brought to have a judicial declaration that the creation of the
preferred stock was unauthorized. Held, that the by-law quoted, when
adopted, was as much the law of the corporation as if it had been a pro-
vision of the charter, and it entered into the compact between the corpo-
ration and every taker of a share, so that a division of the stock into the
two classes could not be male without the consent or acquiescence of the
owners, but that in this case, the owners were chargeable with notice of
the issuance of the preferred stock, and having acquiesced therein, they
were bound by it, at least as against purchasers of stock in the open
market; and as it was impracticable to cancel a portion of such shares
without canceling all, none of it would be so treated. Kent v. Quicksilver
Mining Co.,

47

16. Stockholders, how affected by acts ultra vires.-Acts of a corpora-
tion which are not malum in se but which are ultra vires, affecting, how-
ever, only the interests of the stockholders, may be made good by the as-
sent of the stockholders, so that strangers to them dealing in good faith
with the corporation will be protected in a reliance on such acts. Id.

17. Sale of corporate bonds by agent-Application of purchase money.
-Where a corporation places its bonds before maturity in the hands of an
agent with power to negotiate them, a purchaser may presume that the
agent is acting within the scope of his authority, and is not bound to in-
quire into the application made by the agent of the proceeds of the sale.
But if the purchaser is informed or has notice of intended misapplication
before purchase, he buys at his peril. Chew v. Henrietta M. Co.,

67

18. Validity of incorporation—Omission in certificate.—As a general
rule it is quite well settled that the validity of the existence of a corpora-
tion can not be questioned collaterally. The omission from the certificate
of incorporation of the latter clause in section ninety-three of the incorpo-
ration act, as to the assessability of the stock of a mining corporation, can
not, in the absence of fraud, be regarded as essential to the corporate ex-
istence in an action by one against the individual members upon a contract
with the company. Humphreys v. Mooney,
76

19. Individual liability of incorporators.-No provision is made by
which individual liability attaches to members of a corporation by reason
of any omission to organize in the manner prescribed by the incorporation
act. Id.

20. Non-resident incorporators-Filing certificate.-The statute does
not require that the incorporators or officers shall be residents of the State,
nor that the certificate of incorporation be executed within the limits of
the State; nor does the statute in terms require a meeting of the incorpo-
rators prior to the execution of the certificate; such execution under the
statute is analogous to the execution of a deed of conveyance, and is of no
validity without delivery. It is the filing of the certificate that brings the
corporation into existence. Id.

CORPORATION. Continued.

21. Meeting of directors out of State.-Under the Colorado statute
meetings of directors may be held beyond the limits of the State, if pro-
vision therefor be made in the certificate of incorporation. Id.

22. Stockholders meeting out of State-Collateral attack.-The annual
meeting of the stockholders for the election of directors without the State,
although irregular and illegal, can not be taken advantage of in a collat-
eral proceeding by either the corporation, or one contracting with it as
such. Id.

23. Directors by operation of law. The persons who are named by
the corporators in the certificate as directors for the first year are created
such directors by operation of law, and not by election of the stockholders
after the corporation is formed. Id.

24. Failure to file duplicate certificate.-While a failure to record a
duplicate of the certificate of incorporation in the county where the opera-
tions of the company are carried on may be such a non-compliance with
the law as would authorize the people to sustain a writ of quo warranto
or scire facias, and to oust the corporation from the exercise of their
franchise, yet it does not follow that as to third persons it is not a corpo-
ration. Id.

25. Premature action of organizers.-The organizers of a corpora-
tion can not, by their action before the completion of the incorporation
and the election of directors, dispose of the future earnings of a corpora-
tion, or control the action of the directors to be elected. Coyote Gold &
Silver M. Co. v. Ruble,
88

26. Premature asssments.-Stock can not be assessed before the
election of the board of directors. Id.

27. Election of directors.-The election of directors is a condition
precedent to the perfect organization of a corporation (under Oregon
statute), but it may, before such election, become the holder of property.
Id.

28. Contracts of organizers.-Contracts of the organizers do not
bind the corporation unless adopted or ratified by it upon the perfection
of its organization. Id.

29. First existence of corporation.-A corporation exists as a legal en-
tity from the time of the filing of its articles. Id.

30. An agreement to subscribe for stock does not amount to a sub-
scription, nor does such agreement authorize the secretary of the com-
pany to place the signers' names among the list of stockholders. To bind
a party as a stockholder he must directly subscribe for stock or authorize
a subscription on his account. Id.

31. Placer claims worked by same water.-R., one of the prominent
organizers, purchased, with his own money, claims which were to be trans-
ferred to a mining company; and also other claims so situate as to pre-
vent the proper working of the company's claims. Held, that upon tender,
he must convey all such claims to the company even if he had not become
finally bound as a subscriber to the company. Id.

32. Bona fide stockholder-Void election.--At a meeting of stockhold
ers for the election of trustees, 1,000 shares were represented by a person to

CORPORATION. ́ Continued.

whom the stock had been issued as truste, without the consent or knowl-
edge of the owners. Without him a majority of the stock was not rep-
resented at the meeting. Held, that he was not a bona fide stockholder
within the meaning of § 312, Code of Civil Procedure, and that the election
was void. Stewart v. Mahoney Mining Co.,
106

33. Power of directors beyond limits of State.-The directors of a cor-
poration, unless forbidden by its charter, or the general laws of the State
from which it derives its existence, may perfo m all except strictly cor-
'porate acts outside of the limits of such State, as well as within them.
The directors of a Pennsylvania corporation at a meeting in the city of
New York may authorize the president and secretary to make a trust
deed and issue bonds. Bassett v. Monte Christo M. Co.,

108

34. Bonds issued to directors-Stranger can not complain.-Bonds
regular upon their face, issued by a corporation, but really for the benefit of
the directors who authorized their issuance, are not void, but only void-
able at the election of the corporation or its stockholders, and if they do
not complain, a stranger, a subsequent creditor, can not. Id.

See EVIDENCE, 1; INJUNCTION, 1; MORTGAGE, 1-3; PARTNERSHIP,
1-2.

COVENANT.

1. Incidents annexed to land--Contracts in restraint of trade.-A
covenant by the ven lor of real estate that neither he nor his assigns will
sell marl from off a tract adjoining the demised premises, will not be en-
forced in equity against the purchaser of such tract, because, 1. On the
same principle incidents could be annexed to the land, as multiform as
human caprice. 2. It is a plain contract against trade and traffic. Brew-
Marshall,

er v.

See CONVEYANCE, 1, 3; LEASE, 1, 5.

CRIMES.

119

1. Conspiracy to prevent work.-An indictment for conspiring "to
prevent the workmen of J. G. from continuing to work," does not require
evidence of conspiracy to prevent all the workme from continuing to
work. Rex v. Bykerdike,

161

2. Indictable offense.-A combination of workmen for the purpose of
dictating to masters what workmen they shall employ, is indictable. Id.
3. Violence against laborers accepting under-rate wages.-Every man
has the right to work for the best price he can get; but if others choose to
work for less than the usual price, the law will not permit violence to be
used against them or those by whom they are employed. Rex v. Batt,

162

4. Riot "Beginning to demolish "-A party of coal whippers, hav-
ing malice against a coal lumper who paid less than the usual wages, cre-
ated a nob, and riotously went to the inn where he kept his pay-table,
made threats against him, began to throw stones and break windows and
partitions, and continued this mischief against the house until he himself
had escaped. Held, that they might be convicted of "beginning to de-

CRIMES. Continued.

molish "the house if it was their intent to demolish it, even although
their principal object was to injure the lumper. Id.

5. Larceny-Taking ore from fellow miners' heaps.-It is not larceny
for miners employed to bring ore to the surface, and paid by the owners
according to the quantity produced, to remove from the heaps of other
miners, ore produced by them and add it to their own, in order to increase
their wages, the ore still remaining in the possession of the owners. Rex
v. Webb,
166

6. Closing airway under mas’er's orders.-Workmen stopping up an
airway into an adjoining colliery, by order of their employer claiming the
ownership and the right to close it, are not liable under the statute for
malicious mischief; otherwise would be the case of doing an act malum
in se, in which case the order would be no justification. Regina v. James,

168

7. Indictment for manslaughter must allege duty and breach.—
Where an engineer, who had charge of an engine which was worked for
the purpose of keeping up a supply of pure air in a mine, neglected his
duty so that the engine stopped and the mine thereby became charged
with foul air, which afterward exploded and killed one of the miners.
Held, that such engineer could not be convicted of manslaughter on an in-
dictment which did not allege a duty in him which he had neglected to
perform. Legina v. Barrett,

171

8. Manslaughter, by negligence.-If it be the duty of a person, as
ground bailiff of a mine, to cause the mine to be properly ventilated by
causing air headings to be put up where necessary, and by reason of his
onission in this respect another be killed by an explosion of fire damp,
such person is guilty of manslaughter, if by such his omission he was
guilty of a want of ordinary and reasonable precaution; and if it was his
plain and ordinary duty to have caused an air heading to have been made,
and a man using ordinary diligence would have done it. Regina v.
Haines,
174

9. Other parties negligent at same time.-It is no defense in a case
of manslaughter that the death was caused by the negligence of others
as well as of that of the prisoner. In such a case the prisoner and the
other parties are all guilty of manslaughter. Id.

10. Crime committed through second party.-If a man, by means of
an innocent agent, do an act which amounts to felony, the employer and
not the agent is accountable for that act. Regina v. Bleasdale, 177

11. Stealing coal from many owners by secret mining through com-
mon shaft.-Where a prisoner was indicted in one count for stealing
from the mine of one G., coal, the property of said G., and in the same
count for stealing from the mines of thirty other proprietors, and it ap-
peared that all the coal so alleged to have been stolen had been raised at
one shaft, it was held, 1. That the prosecutor could not be called upon
to elect on which charge he would go to the jury. 2. That although for
the sake of convenience in trying the prisoner, the judge might direct the
jury to confine their attention to one particular charge, yet that the prose-
cutor was entitled to give evidence in support of all the charges laid in

CRIMES. Continued.

the indictment. 3. That proof of each aided the other on the question
of felonious intent.

Id.

12. An act of omission, as well as of commission, may be so criminal
as to be the subject of an indictment for manslaughter. Regina v.
Lowe,
180

13. Manslaughter-Deserting the engine.-Where a man appointed
to superintend a steam engine in a colliery for the purpose of raising
colliers from the pits, left the engine in the charge of an incompetent per-
son, in consequence of which one of the colliers was thrown down the
shaft and killed. Held, that the man so leaving the engine was guilty of
manslaughter. Id.

14. Manslaughter, through neglect.-Deceased, with others, was
walling a shaft in a colliery. It was the duty of the prisoner to place a
stage on the mouth of the shaft, and the death was the direct consequence
of his negligent omission to perform such duty. Held, that defendant
was rightly convicted of manslaughter. Regina v. Hughes,
182

15. Elements of manslaughter, through negligence.-That which
constitutes murder, being by design and of malice prepense, constitutes
manslaughter when arising from culpable negligence. Regina v.
Hughes,
182

16. Larceny of ore-Time between severance and asportation.—The
severance and asportation of ore must be so separated as not to constitute
one continuous act, to constitute the crime of larceny. The time between
the act of severance and the act of asportation need not be “at least one
day," but there must be such an intervention of time as will constitute
them several transactions. People v. Williams,

*

185

17. Indictment for larceny of quartz-Duplicity-No implied sever-
ance. An indictment charging that the defendant "did unlawfully and
feloniously take, steal and carry away from the mining claim of the
B. M. Co. *
fifty-two pounds of gold-bearing quartz rock,
the personal property of said B. M. Co., of the value of four hundred dol-
lars," does not sufficiently imply a severance from the realty. It is capa-
ble of a double interpretation. The property taken should be so described
as to enable the court to decide for itself whether the property is "per-
sonal goods." Id.

18. Nugget.-A nugget of gold, separated from the vein by natural
causes and found loose upon the surface, is parcel of the realty, and when
taken and carried away by one continued act, it is not larceny. State v.
Burt,

190

19. Mail carrier embezzling bag of gold dust.—A defendant can not
be convicted under § 12, Act of 1864, when it is not charged that the gold
was contained in a letter or packet of letters, and there is no count aver-
ring that he secreted, embezzled or destroyed any bag of letters contain-
ing the gold dust. Under that section, he can not be convicted of a mere
embezzlement of gold dust. Farnum v. United States,
192

20. Trespass and larceny of ore distinguished—Lapse of time.—If
ore be severed from a ledge and feloniously removed without the interver-
tion of any time, there is no larceny, but one continuous act which consti-