ment entered upon a decision of the court is not obliged to prepare a "case" to be settled as required by § 997, but he may file exceptions to the findings of the trial court upon questions of law under § 994, and have his appeal heard upon those exceptions without any "case." (Schwarz v. Weber, 103 N. Y. 658.)

§ 999. The Court of Appeals can only review judgments and grant new trials for errors of law; and such errors must be pointed out by exceptions taken at the proper time. When it is alleged that a verdict is perverse, excessive in amount, and contrary to the law and the evidence, the judgment entered thereon cannot be reviewed in that court without an exception. But the General Term may, for such errors, grant a new trial in its discretion, though no exceptions were taken on the trial. (Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Pharis v. Gere, 107 N. Y. 231.)

§ 1001. See Kelsey v. Sargent, 104 N. Y. 663; Raynor v. Raynor, 94 N. Y. 248. § 1002. 41 Hun, 9; 38 Hun, 482. § 1003. See Post v. Mason, 91 N. Y. 539; Learned v. Tillotson, 97 N. Y. 1; Smith v. Lapham, 87 N. Y. 631.

§ 1005. Chapin v. Thompson, 80 N. Y. 275; S. C. 89 N. Y. 270.

§ 1009. These are not the only modes of waiver; other modes are sufficient which show that the party has relinquished the right, as by giving notice of trial at Special Term. (Mackellar v. Rogers, 109 N. Y. 468.)

§ 1013. The account to be examined must be the immediate object of the action or the ground of defense; it must be directly and not collaterally involved. (Camp v. Ingersoll, 86 N. Y. 433.)

An action for unliquidated damages on

contract does not involve an account, and a compulsory reference cannot be made if either party object; and this is so though there may be many items of damage and a bill of particulars thereof be given. If the counter-claim involves a long account, but not the complaint, the action is not referable; but after trial of the issue, a reference may be ordered as to such counter-claim. (Untermyer v. Beinhauer, 105 N. Y. 521.)

§ 1018. As to the right of a referee to allow amendments, see Price v. Brown, 98 N. Y. 388; Bullock v. Bemis, 40 Hun, 623.

§ 1019. To prevent a termination of a reference by notice, the report must be actually delivered to the attorney of one of the parties or filed with the clerk within sixty days from the time the cause was finally submitted. An offer by a referee to deliver his report to the successful party, on payment of his fees within the time limited, is not equivalent to a delivery. (Little v. Lynch, 99 N. Y. 112.)

§ 1021. Smith v. Rathbun, 88 N.Y. 660. § 1022. Where a referee's findings of fact are conflicting, the defeated party is entitled to those most favorable to him in aid of his exceptions to the conclusions of law. (Bonnell v. Griswold, 89 N. Y. 122.)

1023. Under this section and General Rule No. 32, the report of a referee cannot be sent back to him with instructions to make additional findings of fact or conclusions of law. (Gormerly v. McGlynn, 84 N. Y. 284.)

When, after a submission and decision of an action tried by the court, and upon settlement of a "case" therein, requests to find upon questions of fact were presented to the court, it was held that they

came too late and a refusal to find as requested was proper. (Wainman v. Hampton, 110 N. Y. 429; see also Redfield v. Redfield, 110 N. Y. 671.)

§ 1052. As to the uses of the three boxes, see People v. Kiernan, 101 N. Y. 618.

§ 1070. A foreign jury means one brought from another county.

§ 1180. The rejection of a competent juror is ground of error, although the jurors who actually try the case are competent. It is the right of a party to require that the range of selection shall not be limited by excluding without cause a competent juror from the panel. (Hildreth v. Troy, 101 N. Y. 234.)

A corporation is usually looked upon as an artificial person, and, according to Chief Justice Marshall, "is an artificial being, invisible, intangible, and existing only in contemplation of law." (Dartmouth College v. Woodward, 4 Wheat. 636.) The nature of a corporation has been considered by the Supreme Court of Ohio in a recent case where the court says: "The general proposition that a corporation is to be regarded as a legal entity, existing separate and apart from the natural persons composing it, is not disputed; but that the statement is a mere fiction, existing only in idea is well understood, and not controverted by any one who pretends to accurate knowledge upon the subject. It has been introduced for the convenience of the company in making contracts, in acquiring property for corporate purposes, in suing and being sued, and to preserve the limited liability of the stockholders, by distinguishing between the corporate debts and property of the company, and of the stockholders in their capacity as individuals. In brief, then, a corporation is a collection of many individuals united in one body under a special denomination, and vested by the policy of the law with the capacity of acting in several respects as an individual." (State v. Standard Oil Co., 49 Ohio St. 137, 177.)

In accordance with the above view there is a strong tendency shown on the part of the courts to disregard this fiction where

it would work injustice. (People v. N. R. S. R. Co., 121 N. Y. 582.) But where an adherence to the fiction would not have such a result, still the courts regard a corporation as an artificial person. (133 N. Y. 284.) The corporation and not the stockholders is the owner of all the corporate property. (45 Ohio St. 616; 126 N. Y. 433, 437; 142 U. S. 386.) Stockholders can not sue in their own name in a court of law to recover for goods sold to the corporation. (34 N. E. R. 376.) To render the knowledge of individual incorporators the knowledge of the corporation it must be the knowledge of all of them. (55 N. W. R. 825; 142 U. S. 436.) An instance where the word "person" in a statute includes a corporation. (87 Va. 110; 125 U. S. 181, 188.) A corporation organized in one State is not a “citizen" within the meaning of Art. 4, § 2, of the U. S. Constitution where it seeks to do business in another State. (Paul v. Virginia, 8 Wall. 168, 177; 132 U. S. 288; 131 N. Y. 64.) Classification of corporations. (Blackstone, 187, Chase's Ed., N. Y. Laws, 1892, Ch. 687, § 2.)

§ 56. In People v. Coleman, 133, N. Y. 279, a corporation is compared with a joint-stock company as follows: "The formation of the one involves the merging and destruction of the common-law liability of the members for the debts, and requires the substitution of a new, or retention of the old liability, by an affirmative enactment which avoids the

the inherent effect of the corporate creation; in the other, the common-law liability remains unchanged and unimpaired and needing no statutory intervention to preserve or restore it; the debt of the corporation is its debt and not that of its members, the debt of the jointstock-company is the debt of the associates however enforced; the creation of the corporation merges and drowns the liability of its corporators, the creation of the stock company leaves unharmed and unchanged the liability of the associates; the one derives its existence from the contract of individuals, the other from the sovereignty of the State. The two are alike, but not the same. More or less, they crowd upon and overlap each other, but without losing their identity; and so, while we cannot say that the joint-stock company is a corporation, we can say.. that a joint-stock company is a partnership with some of the powers of a corporation." See also Cook on Stocks and Stockholders, Ch. 29; 117 N. Y. 136; 61 N. Y. 542; 142 Pa. St. 569; 17 S. E. Reporter, 154; N. Y. Laws 1894, Ch. 235. § 82. Brewster v. Hatch, 122 N. Y. 349; 104 Mo. 572.

§ 90. There are different doctrines as to the right of a corporation to enforce a contract made for its benefit by promoters before its incorporation and one within the purpose for which the corporation was organized. It seems to be the rule in Massachusetts that "the corporation cannot after its organization become a party to the contract even by adoption or ratification of it." (150 Mass. 248, 252; 141 Mass. 145, 149.) Another view is that such a contract may be adopted by the corporation so as to take effect at the time of adoption, but not so as to relate

back to the time it was made by the promoters. (48 Minn. 653.) A third doctrine is that the contract can be ratified so as to make the contract in all respects what it would have been if the requisite power had existed when it was entered into. (59 Conn. 272.)

§ 120. The implied or incidental powers of a corporation are those which are. directly and necessarily appropriate to the execution of the express powers granted and not those that have merely some slight or remote relation to the express powers. These implied or incidental powers rest upon the presumption that in authorizing the accomplishment of a general ultimate purpose the legislature must have intended to authorize the use of the means essential and indispensable to such accomplishment. Such means to be so impliedly authorized must be not only convenient, but indispensable. (52 N. W. Reporter, 82; 130 Ill. 268; 130 U. S. 21; 131 U. S. 385.) "No corporation shall possess or exercise any corporate powers not expressly given by law or not necessary to the powers so given." (N. Y. Laws 1892, § 10.

§ 122. 141 U. S. 67; 128 Pa. 632.
N. Y. Laws 1892, Ch. 688, § 47.
Laws 1892, Ch. 688, § 2; 138 N.

§ 124. § 125. Y. 451.

NEGLIGENCE.

P. 659. Negligence may be defined, in its general sense, as the lack of such care and caution as should be exercised by a reasonable and prudent man under like circumstances. No action for negligence will lie unless there be a violation of some duty towards the plaintiff. Thus, where a boy between five and six years old was playing on a railway platform at a station and was struck by a projection on a car and injured, it was held that there was no duty towards him and he could not recover. (101 Pa. St. 258.) There may be said, in general, to be a broad general duty not to injure anybody by negligence. But sometimes there is a special duty to use care towards certain individuals and not towards others; thus the duty of care required of a carrier towards passengers is different from that required towards other persons. And sometimes the duty to use care only subsists in favor of a person with whom a contract is made which implies the exercise of care; thus where a man made a coach under contract for another and a third person was injured by its breaking down, the latter could not sue the coachmaker, since there was no duty on the latter's part towards the person injured. (Winterbottom v. Wright, 10 M. & W. 109; for the limitations of this doctrine, see Thomas v. Winchester, 6 N. Y. 397; Parry v. Smith, 4 C. P. D. 325.)

There is no responsibility in an action of tort for pure and inevitable accident. (See Austin v. N. J. Steamboat Co., 43 N. Y. 75.)

In general, the plaintiff has the burden of proof to establish the defendant's negligence by giving evidence of facts and circumstances tending to show the lack of proper care and caution. But sometimes it is sufficient to make a prima facie case, to show merely the fact of the injury; here it is said res ipsa loquitur. When a thing causing injury is under the control of the defendant and the accident is such as, in the ordinary course of business, would not happen if reasonable care were used, it affords, in the absence of explanation by the defendant, sufficient evidence that the accident arose from want of care on his part. (109 N. Y. 297.)

That a person is not necessarily debarred from recovery for negligence by being a trespasser, see Rounds v. Railroad Co., 64 N. Y. 129; Hydraulic Works v. Orr, 2 Norris (Pa.) 332.

one.

When scienter is proved against the owner of a dog, then the owner's duty to keep him from doing harm is an absolute The owner is bound to keep the animal secure at his peril, and if he does not, negligence is presumed. Negligence in the ordinary sense is not an ingredient in the action, nor is contributory negligence a defense. (Muller v. McKesson, 73