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enforcement of payment of a claim against the government, the general laws which govern the Court of Claims may be resorted to for relief. Approved, arguendo, in Morley v. Thayer, 3 Fed. 749, Hale v. Hardon, 93 Fed. 767, and In re Foley, 76 Fed. 396.

Corporations. Under statute making stockholder liable for corporation debts in proportion to his stock, a single creditor cannot maintain an action against a stockholder to recover his debt to possible exclusion of other creditors; proper proceeding is in equity, where all parties may be heard and rights determined, p. 527.

Cited and principle relied upon in Carrol v. Green, 92 U. S. 512, 23 L. 739, and Harmon v. Page, 62 Cal. 463, in holding the remedy against stockholders for corporation debts is in equity; Hornor ▼. Henning, 93 U. S. 233, 23 L. 880, where demurrer to action at law was sustained, where single creditor sought to enforce personal liability of trustees of corporation; Terry v. Little, 101 U. S. 218, 25 L. 865, and Powell v. Oregonian Ry. Co., 13 Sawy. 543, 38 Fed. 187, 3 L. R. A. 201, reaffirm the rule; Andrews v. Bacon, 38 Fed. 778, Maine, etc., Trust Co. v. Loan Co., 92 Me. 450, 43 Atl. 25, Crown v. Brainerd, 57 Vt. 633, Wetherbee v. Baker, 35 N. J. Eq. 507, and Zang v. Wyant, 25 Colo. 555, 71 Am. St. Rep. 147, 56 Pac. 566, all holding proper form of action to enforce a statutory liability of stockholders for corporate debts, is by bill in equity; Rice v. Libbey, 83 Fed. 824, holding under similar Illinois statute, the proceedings should be in equity; Spence v. Shapard, 57 Ala. 600, holding bill lies to enforce such liability without averring the Insolvency of the corporation, and without previous suit against it; Farmers' Loan & Trust Co. v. Funk, 49 Neb. 361, 362, 68 N. W. 522, and Van Pelt v. Gardner, 54 Neb. 710, 75 N. W. 877, both holding action to render available the liability of a stockholder, under Nebraska statute, must be prosecuted for benefit of all creditors; to same effect is German Nat. Bank v. Farmers' Bank, 54 Neb. 598, 74 N. W. 1087, holding further, such actions come within the equity jurisdiction of the courts; Terry v. Martin, 10 S. C. 265, 268, Tradesman Pub. Co. v. Car-Wheel Co., 95 Tenn. 659, 49 Am. St. Rep. 957, 32 S. W. 1103, 31 L. R. A. 601, and Moulton v. Connell Co., 93 Tenn. 388, 27 S. W. 674, all reaffirm the rule in similar cases; Buist v. Melchers, 44 S. C. 63, 21 S. E. 456, holding action against successIve boards of directors for unliquidated damages for negligent omissions of duty, should be in equity. Approved in Wheelock v. Kost, 77 Ill. 300, Eads v. Orcutt, 79 Mo. App. 518, and McLaughlin v. O'Neill, Wyo. 51 Pac. 246, but without special application. Cited incidentally in Terry v. Tubman, 92 U. S. 161, 23 L. 539, and Godfrey v. Terry, 97 U. S. 177, 24 L. 946, without particular application; Cuykendall v. Miles, 10 Fed. 344, in reviewing opinions of Supreme Court as to mode by which the liability of stockholders is to be enforced; Allen v. Fairbanks, 40 Fed. 189, holding liability of stockholder to contribute towards debts of company, paid by

other stockholders, survives him; Jones v. Jarman, 34 Ark. 339, holding further as to mode of enforcing stockholders' liability when none is provided by statute; dissenting opinion in Tuttle v. Bank, 161 Ill. 610, 44 N. E. 988, 34 L. R. A. 757, the majority holding an individual creditor of an insolvent Kansas corporation cannot maintain an action in Illinois against an individual stockholder of the corporation, by virtue of Kansas laws; to same effect is Marshall v. Sherman, 148 N. Y. 27, 51 Am. St. Rep. 665, 42 N. E. 424, 34 L. R. A. 766, where similar action was brought in New York courts; Bank of Salem v. Almy, 117 Mass. 478, without special application. Cited in Bush v. Cartwright, 7 Or. 336, where it was held creditors cannot proceed in first instance against a stockholder upon his individual liability, without first having shown that he has exhausted his remedy against corporation. See note, 31 Am. Rep. 88, 90, and monographic note, 8 Am. St. Rep. 855, where authorities are reviewed.

Distinguished in Mills v. Scott, 99 U. S. 29, 25 L. 295, holding an action of debt will lie where amount of corporation's outstanding indebtedness is known and number of shares held by stockholder is also known; Hatch v. Dana, 101 U. S. 213, 25 L. 887, Flash v. Conn, 109 U. S. 380, 27 L. 970, 3 S. Ct. 269, McVickar v. Jones, 70 Fed. 756, 757, Hall & Co. v. Klinck, 25 S. C. 353, 354, 355, 60 Am. Rep. 509, 510, 311, and Nat. Park Bank v. Peavey, 64 Fed. 917, 919, where liability of each stockholder was fixed without regard to liability of others; Stanton v. Wilkeson, 8 Ben. 362, 363, F. C. 13,299, holding receiver of national bank may proceed by separate action, at law, against stockholders to collect assessment levied on them by comptroller of currency.

Miscellaneous.- Cited incidentally in Terry v. Bank, 20 Fed. 774, and Rosenberg v. Frank, 58 Cal. 405, for meaning of phrase, “pro rata; " Eames v. Savage, 77 Me. 219, 52 Am. Rep. 754, as authority for validity of similar legislation; Hutchings v. Lamson, 96 Fed. 721, not in point.

20 Wall. 528-543, 22 L. 406, PACKET CO. v. CLOUGH.

Courts.- Law of State having made a wife a competent witness in her own behalf, she must, under act of July 6, 1862, be so held in action to recover for personal injuries brought by herself and husband in Federal court, sitting in such State, p. 538.

Cited incidentally in Rice v. Martin, 7 Sawy. 340, 8 Fed. 478. Distinguished in Stephens v. Bernays, 42 Fed. 490, where Congress has enacted a law covering a particular case, such law must prevail in Federal courts, although it differs from State law.

Carrier is not relieved from his liability to a passenger by fact that passenger has not paid his fare at time an accident occurred, p. 539.

See monographic note, 61 Am. St. Rep. 87.

Husband and wife- Non-cohabitation does not disprove existence of marital relation, p. 439.

Evidence.- Declarations of an agent in regard to past occurrences to which he was not himself a party, are not to be received as admissions of his principals, hence, boat captain's admission two days after accident, that crew had been negligent is inadmissible in action against owners, p. 540.

Cited and principle applied in Insurance Co. v. Mahone, 21 Wall. 157, 22 L. 595, holding declaration of agent sent by insurance company to examine a claim that, in his opinion, it would be best for company to pay policy, is not competent on suit by holders of policy against company; Vicksburg, etc., Ry. Co. v. O'Brien, 119 U. S. 105, 30 L. 301, 7 S. Ct. 121, holding declarations of engineer of locomotive which met with an accident, as to rate engine was running, made between ten and thirty minutes after accident occurred, are not admissible against the company in action by passenger for injuries caused by accident; Louisville, etc., R. Co. v. Stewart, 56 Fed. 809, 9 U. S. App. 564, holding likewise in similar case; The Roman, 14 Fed. 62, holding no weight is to be attached to statement of member of crew of steamer, made after accident occurred, that he saw light of other steamer in time to avoid accident; Tuthill Co. v. Shaver Co., 35 Fed. 646, and Nat. Bank v. Ocean Bank, 60 N. Y. 297, 19 Am. Rep. 192, to declarations made by the president of a corporation; St. Louis, etc., Ry. Co. v. McLelland, 62 Fed. 118, 27 U. S. App. 71, to statement made by section foreman as to cause of an accident, made some time subsequent to time of accident, and not in the discharge of any duty; Brown v. Cranberry Coal Co., 72 Fed. 101, 25 U. S. App. 679, holding a declaration by an attorney in fact, that a certain conveyance made by him in behalf of his principal, conveyed the entire mineral interests in the land described in the deeds, do not estop his principal: Alabama, etc., Ry. Co. v. Hawk, 72 Ala. 118, 47 Am. Rep. 405, and Devlin v. Wabash, etc.. Ry. Co., 87 Mo. 549, both holding declarations to fall within principle of res gestæ, must be so nearly coincident in point of time with main issue as to grow out of that fact, to explain and elucidate it; Beasley v. San Jose Fruit-Packing Co., 92 Cal. 392, 28 Pac. 486, where declarations of a foreman, made subsequent to an accident in which a servant was injured, through carelessness of a fellow servant, relating to knowledge on part of principal of character of negligent servant. was held inadmissible: First Nat. Bank v. North, 6 Dak. Ter. 141, 41 N. W. 737, and the rank of the agent cannot affect the rule: Dietrich v. Baltimore, etc., Ry. Co., 58 Md. 356, where rule was applied to declarations made by car driver, as to cause of an accident; to same effect are Ruggles v. Fay, 31 Mich. 142, and Ryan v. Gilmer, 2 Mont. 520, 521. 25 Am. Rep. 746, 747, where in similar cases the holding was the same; Meyer v. Virginia, etc., Ry.

Co., 16 Nev. 351, where declarations of an agent in charge of a warehouse, at time goods of plaintiff stored therein, were destroyed by fire, as to cause of fire, were held inadmissible; Nebonne v. Concord Ry. Co., 67 N. H. 532, 38 Atl. 17, where declarations by conductor as to cause of accident, made two months after accident occurred, were held inadmissible in action against company, growing out of accident; American Steamship Co. v. Landreth, 102 Pa. St. 136, 48 Am. Rep. 198, a case very similar in facts to principal case; Short v. Elevator Co., 1 N. Dak. 163, 45 N. W. 707, and La Rue v. Elevator Co., 3 S. Dak. 643, 54 N. W. 808, where statements of agent of elevator company in regard to wheat previously purchased by him, were held, under circumstances, not binding on his principals; Randall v. Telegraph Co., 54 Wis. 144, 41 Am. Rep. 19, 11 N. W. 421, reaffirms rule in case of admissions made by agent of telegraph company; Hannan v. Greenfield, Or. - 58 Pac. 890, holding until agency has been established, acts and declarations of agent are inadmissible against principal. Cited, arguendo, in United States v. Lot of Jewelry, 13 Blatchf. 63, F. C. 15,626, the declarations of an agent, to be evidence, must constitute a part of the res gestæ. Approved, arguendo, in In re Beardsley, 37 Kan. 668, 16 Pac. 154, and County Commissioners v. Gantt, 78 Md. 293, 29 Atl. 611. See monographic notes, 53 Am. Dec. 776, 93 Am. Dec. 478, 58 Am. Rep. 565, where authorities are reviewed.

Distinguished in Richelieu Co. v. Boston Ins. Co., 26 Fed. 600. holding that statements made by a master at time a protest was drawn by a notary, as to matters therein, are admissible as part of the res gestæ; The S. S. Wilhelm. 59 Fed. 173. 16 U. S. App. 356. where testimony of a disinterested witness as to declarations made by master of wrecked vessel, day after accident occurred, as to cause of wreck, was admitted; Pierce v. Van Dusen, 78 Fed. 706, 47 U. S. App. 339, and O'Connor v. Chicago, etc., Ry. Co., 27 Minn. 169, 6 N. W. 482, where statements of the conductor of a train, made almost immediately after an accident occurred and pertaining to the cause thereof, were held admissible in action against company, by one injured by accident.

Appeal and error.- One complaining of rejection of evidence must show, by bill of exceptions, that its admission might have changed the result, p. 542.

Cited and relied on in Railroad Co. v. Smith, 21 Wall. 262. 22 L. 514, holding to render an exception available, it must affirmatively appear that the ruling excepted to affected or might have affected the decision; to same effect are, Thompson v. Bank, 111 U. S. 536, 28 L. 510. 4 S. Ct. 692, and Shauer v. Alterton, 151 U. S. 616. 617, 38 L. 289. 14 S. Ct. 444, the latter holding that an assignment of error, based upon the exclusion of an answer to a particular quesin in a deposition of a witness, would be disregarded, unless the

record sets forth the answer or its full substance; Ladd v. Mo. Coal Co., 66 Fed. 882, 32 U. S. App. 93.

Distinguished in Buckstaff v. Russell, 151 U. S. 636, 38 L. 296, 14 S. Ct. 451, holding where witness testifies in person, and question propounded to him is proper in form and so framed as to clearly admit of an answer favorable to claim of party producing him, the assignment of error need not state the substance of the evidence rejected.

20 Wall. 543-545, 22 L. 422, EXPRESS CO. v. WARE.

Appeal and error.— Supreme Court will not examine evidence to ascertain whether a jury was justified in finding as it did, upon issues of fact, p. 545.

Reaffirmed in New York, etc., Ry. Co. v. Estill, 147 U. S. 617, 37 L. 305, 13 S. Ct. 454, and Newcomb v. White, 5 N. Mex. 438, 23 Pac. 672, where it was held, finding of facts by court has same effect as verdict by jury.

Limitation of actions. If, in case of foreign corporation, service may be made on an agent in State, agent's absence from State prevents statute from running, p. 545.

Cited and principle applied in McCabe v. Illinois Cent. Ry. Co., 4 McCrary, 498, 13 Fed. 831, holding where foreign corporation can sue and be sued in State within which it comes on business, it will not be considered a non-resident; Huss v. Central Co., 66 Ala. 476, Turcott v. Railroad, 101 Tenn. 109, 70 Am. St. Rep. 664, 45 S. W. 1069, 40 L. R. A. 769, and Wall v. Chicago, etc., Ry. Co., 69 Iowa, 501, 29 N. W. 428, all holding, where foreign corporation has agent within State, upon whom process may be served, it may plead statute of limitations in like manner as domestic corporations. See note, 52 Am. Dec. 257.

20 Wall. 546-559, 22 L. 403, AMBLER ▼. WHIPPLE.

Partnership.-Contract for dissolution of partnership, containing mutual release, is not binding until signed by both partners, even though the signing partner accepted and carried away an unsigned copy, p. 556.

Cited and applied in Hennessy v. Bond, 77 Fed. 404, 48 U. S. App. 91, in holding plaintiffs could not recover on a certain agreement delivered to defendant, but never signed by him; Spinney v. Downing, 108 Cal. 668, 41 Pac. 798, holding contract containing reciprocal stipulations and covenants upon part of each party thereto, must be signed by both to be binding on either.

Partnership.- Bad character, drunkenness and dishonesty on part of one partner may be ground for dissolution, if not known at formation of partnership, p. 557.

See note, 98 Am. Dec. 262, 263.

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