Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 71 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 71 of 73)
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Collateral attack: an action on official bond of clerk of court to recover pen.
alty *for an illegal fee taxed as costs and included in judgment does not
attack the judgment collaterally. State v, Stevens (Ind.). 184.

Collateral attack: payment of judgment in trial court no estoppel against at-
tacking judgment in appellate court against party not before that court.
Briggs V, Hinton et al, (Tenn.) 159.

Interest on judgment against defaulting county treasurer should bear interest
from first of year succeeding default. Simmons et al, v. County of Jack-
son (Tex.). 199.

Municipality: execution on judgment against, may be levied upon goods and
chattels of inhabitants; statute authorizing such levy not in conflict with
XlVth Amendment of U. S. Constitution. Eames v. Savage (Me.). 627.



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688 INDEX.

JUDGMENTS-Gw/iKK^^.

Official bond: judgment for amount of penalty; execution for amount of loss;
reference proper to ascertain amount of loss. Machiasport v. Small (Me.).
179.



JUDICIAL DISTRICT.



See Elsctions.



JUDICIAL NOTICE.

Of journals of legislature. People v, Thompson (Cal.). 47.

JURISDICTION.

See Certiorari; Justice of Pracb.

JURY AND JURY TRIAL.

Challenge to array sustainable where jury in eminent-domain proceeding are
all taken from one township, and that one is affected by the improvement.
Houghton Common Council v. Huron Copper Mining Co. (Mich.) 315.

Election, petition for: in mandamus proceedings issue whether petition has
proper signatures is not one of right triable by jury. Dutten v. Village of
Hanover (Ohio). 30.

Fine upon summary conviction, without jury, enforcible by imprisonment, for
violation of police regulation, or for immoral practice, is not an invasion
of constitutional right to jury trial (Ohio Const, art. i. ^ 5, 17), nor is
statute providing therefor unconstitutional. Inwood v. State (Ohio). 520.

Instruction directing a verdict: when improper. Miller v. White River School
Township (Ind.). 144.

Instruction to find specially on special issues of fact should be granted when
asked. Miller v. White River School Township (Ind.). 144.

Where court may properly direct a verdict, failure so to instruct is harm-
less error. Id.

Mandamus proceedings: jury trial in. 33 n.

Verdict, direction of, by court improper, when. Miller v. White River School
Township (Ind.). 144.

JUSTICE OF PEACE.
Commitment by, for offence as to which justice's jurisdiction is not to hear
and determine, but only to recognize with sureties: statute authorizing
such commitment contrary to bill of rights. State v, Ray (N. H.). 135.

KNOWLEDGE OF LAW.

Knowledge of unconstitutionality of statute not p^sumed. People v, Thomp-
son (Cal.). 47.

Power of: ratification of illegal expenditure by municipality and authorization
of tax to cover such expense is beyond legislative power. Carlton v.
Newman (Me;). 454.

LAND CONTRACT.

' See Specific Performance.



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INDEX. 689

LANDLORD AND TENANT.

Covenant running with land : harden of, in covenants not involving a grant.

never runs with land at law, except as between landlord and tenant.

Ausierberry v. Corporation of Oldham (Eng. Ch. D.). 323.
Intoxicating liquor: act requiring tenant to procure landlord's written consent

to sell liquor on the premises, in order to make sale lawful, required a

license, and violated constitutional 'provision against licensing liquor

traffic. Butzman v. Whitbeck (Ohio). 535.
Lessees of school lands taxable for their interest therein. Bentley v. Barton

(Ohio). 440.

LARCENY.

Disqualification for exercise of elective franchise under Const. 1875, art viii.
§ 3. Washington v. State (Ala.). 7.

LAYING ON TABLE.

See Parliamentary Law.

LEGISLATURE.

Legislative control over devises to municipal corporations. 116 if.

LIBERTY.

See Arrbst; Nuisance.

LICENSE. «\

• Liquor license. See Intoxicating Liquors.

LIMITATIONS, STATUTE OF.

Action on official bond to recover penalty for taking illegal fee is governed by
provision of statute of limitations for action on official bonds, and not by
provision for penalties. State v, Stevens (Ind.). 184.

State: doctrine that statute does not run against; statutes expressly running
against; note on. 595 n.

State, statute does not run against, except when expressly so provided.
Kansas v. School District (Kan.). 587.

Qu«re, where State acquired a claim or debt after statute began to run

against it. Kansas v. School District (Kan.). 587.

Writ of entry: bar of statute Md to have intervened against, on peculiar facts.
Bailcer et al, v. Barrows (Mass.). 208.



LIQUOR LAWS.



See Intoxicating Liquors.



LUNATICS.

Elective franchise: lunatics prohibited to exercise. Washington v. State
(Ala.). 7.
9 Cor. Cas. — ^44



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690 INDEX.

MAJORITY.
Majority of official board may exercise powers of board. People v. Police
Commissioners (N. Y.). 73.



MALFEASANCE IN OFFICE.
Disqualification for exercise of elective franchise under Const. 1875, art. yilL
g 3. Washington v. Sute (Ala.). 7.

MANDAMUS.

Applicant for, must show dear legal right to the relief sought. Klokke v.
Sunley(Ill.). 465.

Auditing of claims : averment of, in petition, ^A/ sufficient to show compliance
with statute. Jones v. Morgan (Cal.). 287.

Auditor of public accounts compellable by, to issue warrant for public money
in proper case. State ex, rel. Mainx. v Turpen (Ohio). 119.

Election: mandamus to compel council to order; issue whether petition for,,
had proper number of signatures is not an issue of right triable by jury.
Dutten V. Village of Hanover (Ohio). 30.

Fruitless exercise of power not indulged; mandamus not granted where it
would be of no avail to petitioner. Klokke v, Stanley (111.). 465.

Jury trial in mandamus proceedings: right to. 33 n.

Mistakes or omissions of petitioner not corrected by mandamus, Klokke v.
Stanley (lU.). 465.

Power to issue not fruitlessly exercised; mandamus not granted where it would
be of no avail to petitioner. Klokke v, Stanley (III.). 465.

Right to office not determinable on mandamus to compel payment of salary.
State V. John (Mo.). 238.

Second tax deed under same certificate of purchase as prior deed is not com-
pellable from county clerk by holder of first deed, where he has filed with
the clerk more perfect evidence of compliance with law as to notice of pur-
chase. Klokke V. Stanley (III). 465.

But where first tax deed is inoperative, through a mistake by clerk in

execution thereof, he is compellable by mandamus to correct the mistake,
and he may correct it without compulsion. Klokke v. Stanley (111.). 465.

To compel officer to perform his duty; his honest doubts as to extent of his
duty no reason for not issuing writ. State v» Turpen (Ohio). 119.

MANUFACTURER.

Ice-packer is not. Knickerbocker Ice Co. v. People (N. Y.). 418
Pork-packer taxable as. Engle v, Sohn & Co. (Ohio). 413.
Who is, and who is not. 421 n.

MINOR.
Elective franchise : minors prohibited to exercise. Washington 9. State (Ala.). 7.

MINORITY REPRESENTATION.

See ELEcriONS.



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INDEX. . 691

MISTAKE.

Tax deed: mistake in by clerk in executing it, rendering it inoperative, correc-
tion of is compellable by mandamus^ and clerk may correct it without com-
pulsion. Klokke V, Stanley (111.). 465*

MUNICIPAL BONDS.

See also School Bonds.

Authority to sell bonds at par does not authorize sale for less than par. 626 n.

Estoppel against municipality by recitals: recitals of conformity to law In all
respects necessary to give validity to bond, work estoppel, where made by
duly authorized officers of the municipality; otherwise not. Liebman v,
San Francisco (Cal.). 598.

Estoppel: municipality not estopped by affidavits of its officers, to effect that
lawful conditions for issuing bonds exist; e.g., that consent of majority of
taxpayers has been obtained. Ontario v. Hill (N. Y.). 636.

Interest coupon, severed from bond, being for a larger sum than bond names
as interest, holder must show purchase for value without notice of the
error, before maturity, to recover the sum named in coupon. Goodwin v.
Bath (Me.). 585.

Issue of, grounds for, and validity of, reviewable by certiorari or in equity.
Ontario v. Hill (N. Y.). 636.

Railway aid bonds: under Act authorizing same upon consent obtained of
majority of taxpayers, bonds are void unless such consent has actually
been given. Ontario v. Hill (N. Y.). 636.

Affidavits by town officers that such consent has been obtained not con-
clusive upon town. Ontario v. Hill (N. Y.). 636.

No action will lie on behalf of town against commissioners for damages

sustained by wrongful issue of bonds. Assessors' certificate, duly made,
is a justification to commissioners in issuing the bonds. Ontario v. Hill
(N. Y.). 636.

MUNICIPAL BOUNDARIES.
Fixed by whom. 4 n.

MUNICIPAL CORPORATIONS.

See County Commissioners; Towns.
Agency ;

Public agencies appointed to exercise public duties within the limits of a

municipality, not agents of the municipality, when. 622 n.
State cannot appoint officers or agents who are to have charge of local

municipal affairs. 625 n.
State may empower municipality to act as its special agent in the exercise of
a special public duty or function. 625 n.
Amendment of record: authority to keep record includes authority to amend

it at subsequent date. Town of Leominster v, Conant (Mass.). 39a
Annexation of territory to municipality: payment of previous debts. See

Taxes.
Boards: meeting of; when all members must be present. 579 n.
Majorities; powers of. 579 n.



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692 INDEX.

MUNICIPAL CORPORATIONS-C^/tWffA/.

Bonds of. Sec Municipal Bonds; Public Debt.

Bond: city may take from persons in business it is anthorized to license
and regulate, e.g,^ liquor-selling, to obey ordinances. In re Schneider
(Oreg.). 548.

^— Such bond may exceed in penalty amount of fine which city is author-
ized to impose, but must not be unreasonable in amount In re Schneider
(Oreg.). 548.

Bond calling for observance of *'all other ordinances" construed to mean all
other ordinances relating to drinking-shops. In re Schneider (Oreg.). 548.

Certificates of indebtedness; pledge of. See Pledge.

Change of organization: school property, how affected. Board of Education
V, Board of Education (Ohio). 211.

Charter power: "to license and regulate drinking-shops;" power authorizes
municipality to take bonds from keepers of such places to observe ordi-
nances. Bond with larger penalty than pecunikry limit of fine which
municipality can impose is valid. In re Schneider (Oreg.). 548.

— ^ Bond must not be for unreasonable amount. In re Schneider (Oreg.).
548.

^^ Such bond, calling for observance of "all other ordinances of said
city," construed to mean all other ordinances relating to drinking-shops.
In re Schneider (Oreg.). 548.

Contracts: promises by individual members of municipal board to pay existing
debts of the board without any joint action not binding on municipality.
Strong V, District of Columbia (D. C). 568.

Council proceedings on petition and order to open highway: two sets of pro-
ceedings, first laid over, second begun; order then made in first proceed-
ings held regular, and on certiorari to show no ground for order to quash.
Cornell v. Mayor and Aldermen of New Bedford (Mass.). 371.

Deed by municipality. See Deed.

Devises to municipal corporations. 114 n.

^^ Legislative control over. n6 n.

Election on surrender of municipal powers : petition for. In mandamus pro-
ceedings issue whether petition lias proper signature is not one of right
triable by jury. Dutten v. Village of Hanover (Ohio). 30.

Election, petition for : duty of council to see that it has proper signatures.
Dutten V, Village of Hanover (Ohio). 30.

Election, petition for: signers may withdraw their names while petition is
under consideration by municipal council; if such withdrawals reduce sig-
natures below necessary number, petition must be denied. Dutten v.
Village of Hanover (Ohio). 30.

Eminent domain exercisable by, beyond its own borders only by express grant
of power. Haughton Common Council v, Huron Copper Afining Co.
(Mich.). 315.

Execution against doctrine that it is enforceable by levy upon inhabitants'
property. Eames v. Savage (Me.). 627.

Execution against may, in Maine, be levied upon the goods and chattels of the
inhabitants: statute authorizing such levy not in conflict with XlVth
Amendment of U. S. Constitution. Eames v. Savage (Me.). 627.
Individual promises of members of municipal board not bindmg on corpora-
tion. Strong V, District of Columbia (D. C). 568.



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INDEX. 693

MUNICIPAL CORPORATlOliS-Qmtinufii.

Individual promises or acts of members of board canoot bind corporation,
though majority of members join in or ratify same. 577 n.

Instrumentalities of government: municipalities are, for levying taxes: lien of
their taxes is of same rank with those of State and county taxes. Justice
V. Logansport (Ind.). 451.

Meeting of municipal board: majority may act for board. 578 n.

Negligent construction of cistern in street: city liable for injury resulting from
lack of guard. Cirdeville v. Neuding (Ohio). 656.

Nuisances, power to abate, considered. 314 n.

Officers. See, under Municipal Corporations, Agency; and sec Agency.

Ordinances. See Ordinances.

Record : authority of selectmen to keep, includes authority to amend same at
subsequent date. Town of Leominster v. Conant (Mass.). 390.

Seal of municipality. See Seal.

Sewer: authority to construct not presumed an authority to create a nuisance
unless that is the necessary result; if the work can be done without, the
intention that it should be so done is presumed. But if extensive purify-
ing works would be necessary, it will not be implied that the end was to
be so obtained. Morse v, Worcester (Mass.). 642.

Sidewalks: duty of city to clear. Hayes v, Cambridge (Mass.). 664.

Sidewalks: suit for injury caused by snow upon; ordinance requiring owners
and tenants to remove snow held inadmissible in suit against city. Hayes
V. Cambridge (Mass.). 664.

Street lowered in order to be crossed by railway bridge: such lowered portion
is not part of ** approach" to bridge within statute thereon. Whitcher v.
Somerville (Mass.). 658.

Street: negligent construction of cistern in: city liable from injury from lack
of guard. Cirdeville v, Neuding (Ohio). 656.

Taxation of municipal property. See Taxes.

Taxes: municipal property not taxable. 434 n.

Taxes of liens of, are of equal rank with those of State and county taxes.
Justice V, Logansport (Ind.). 451.

NEGLIGENCE.

Independent contractor's liability for injuries from negligent conduct of work
limited to injuriescollateral to the work. Cirdeville v. Neuding (Ohio). 656.

Municipality liable for injury from lack of guard around cistern in construction
in street Cirdeville v. Neuding (Ohio). 656.

Street:' negligent construction of cistern in; city liable for injury from lack of
guard. Cirdeville v, Neuding (Ohio). 656.

NOTICE.

See County Commissioners.

By municipal body of intention to purchase lands, held not to extend to pur-
chase for children's home. State ex rel, Manix v, Turpen (Ohio). 119.

NUISANCE.
Abatement by attempted exercise of eminent domain: such acts are beyond
power of council, and city is not answerable therefor. Cavanagh v. City
of Boston (Mass.). 311.



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694 INDEX.

NUISANCE— C^^if !!/</.

Abatement of: appropriation of priTate property for, bj nnintdpaUtj without
owner's consent and without enabling act, unconstitntionaJ. Cavanagh
V, City of Boston (Mass.). 311.

Abatement of» by exercise of eminent domain considered. 314 it.

Authority to construct sewer, not presumed an authority to create a nuisance,
unless that is the necessary result; if the work can be done without, the
intention that it should be so done is presumed. But if extensive purify-
ing works would be necessary, it will not be implied that the end was to
be so attained. Morse r. Worcester (Mass.). 643.

Dangerous and noxious forms of industry, trade, and property: regulation and
inhibition of, by statute considered. 499 n.

Equal protection of laws; secured by Fourteenth Amendment of U. S. Consti-
tution ; application of, to laws affecting nuisances. Barthet v. New Orleans
(U. S. C. C. La.). 509.

Deprivation of such constitutional right would be an irreparable injury

and is ground for injunction. Id.

So slaughter-house ordinance A^ld to deprive owner of slaughter-house

of equal protection of laws, and to be unconstitutional. Id.

Above decision strongly disapproved. 514 n.

Highway: obstruction of, by easily removable fence prevented by injunction,
where continuance threatened. Burlington v. Schwarzman (Conn.).
653.

Town's liability for injuries therefrom gives it sufficient interest to main-
tain bill. Burlington v, Schwarzman (Conn.). 653.

Highway: obstruction of, by fence is. Burlington v. Schwarzman (Conn.).
652.

Municipal power to abate: note on. 314 it.

Noxious trades: regulation and inhibition of, by statute considered. 499 it.

Oleomargarine: absolute prohibition of manufacture of, unconstitutional under
U. S. Const., Fourteenth Amendment, and N. Y. Const., art. i, §§ i, 6.
P. V. Marx (N. Y.). 49r.

Oleomargarine: prohibition and regulation of manufacture of, by statute con-
sidered. 499 If.

Ordinance prescribing place for slaughter-houses: purchase and erection of
. slaughter-house there by complainant; amendmet to ordinance forbidding
maintenance of slaughter-house there except by permission of city council;
amendment i^/c/ unconstitutional under U. S. Const., Founeenth Amend-
ment, securing.

Power to abate: act conferring upon municipality or taxing district is not a
taxing of property or service for public use without compensation. Thei-
lan V. Porter (Tenn.). 486.

U. S. Const., Fourteenth Amendment, secures to every citizen a right to follow
any lawful industry. Absolute prohibition of any such industry, ^.^., man-
ufacture of oleomargarine, is unconstitutional. So also under Ni Yt
Const., art. i. §§ i, 6. P. v, Marx (N. Y.). 491.

OATH.

Judge of election of school trustees cannot administer oath to school trustees.

State V, Horton e/ al, (Nev.). 65.
Of office: act requiring oath *'tobe indorsed on certificate of appointment"



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INDEX. 695

OATH^ConHnued,

complied with by attaching oath to certificate. State v, Horton et al,
(Ncv.). 65.

OFFICE AND OFFICER.

Sec Appointment; Election; Malfeasance in Office.

Contested title to, triable in Missouri only by courts, except as to governor

and lieutenant-governor. State v, John (Mo.). 238.
Dg facto officer: a person declared elected and inducted into an office is a <^

facto officer, though not lawfully elected. State v. Megin (N. H.). 68.
De ^acto officer: assumption of office by. Attorney-General v, Crocker et aL

(Mass.). 57.
De fcuto officer: color of title not necessary to. Attorney-General v, Crocker

et al. (Mass.). 57.
De facto officer is one who has color of title and possession of the office.

Chowning v. Boger (Tex.). 91.
De facto officer : note on. 69 n.
Dejure officer entitled to recover the salary and emoluments of the office.

Chowning v. Boger (Tex.). 91.
Dejure officer is one who has the legal title. Chowning v, Boger (Tex.). 91.
Dejure officer, suspended, is not de facto officer. Chowning v, Boger (Tex.).

91.
Duties imposed upon offices by law to which no compensation is attached must

be performed gratuitously. Board of CommVs of Carroll Co v, Gresh-

am (Ind.). 224.
Ex officio officer: act making holder of one office ex officio holder of another

does not merge the offices. State v, Laughton (Nev.). 79.
Ex officio officer: constitution of Nevada does not prevent lieutenant-governor

from being ex officio State librarian. State v, Laughton (Nev.). 79.
Ex officio officer: so failure to file bond in subsidiary or secondary capacity

does not vacate office in principal capacity. State v, Laughton (Nev.).

79.
Possession and title to {de facto and dejure), considered respectively as affecting

right to compensation. 267 n.
Proof of official character: note on. 69 n.
Resignation of sheriff creates vacancy eo instanti, Chowning v, Boger (Tex.).

91.
Right to, not determinable on mandamus to obtain salary. State v, John

(Mo.). 238.

OFFICIAL BONDS.

See Sureties.
Action on official bond of clerk of court to recover penalty for an illegal fee

taxed as costs and included in judgmeift does not attack the judgment

collaterally. State v, Stevens (Ind.). 184.
Action on, to recover penalty for taking illegal fee is governed by provision

of statute of limitations for actions on official bonds, and not by provision

for penalties. State v. Stevens (Ind.). 184.
Change of statutory duties: effect of. on sureties' liability. 310 n.
Contribution and subrogation between sureties on sheriff*s bond held for de-



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696 INDEX.

OFFICIAL BONDS— Gw/^nffA/.*

fault of deputy sheriff, and sureties on deputy shenfTs bond. Briggs v,

Hinton et al. (Tcnn.). 159.
County treasurer's bond (in Texas) renders sureties liable for misappropriation

of school funds of any kind or description* without reference to their

sources. Simmons v. County of Jackson (Tex.). 199.
Damages on breach of, for jury. Mayor, etc., of New York v. Kelly (N.Y.).

303.

Delay in execution of bond: if bond is executed after entry ill to office, without
words of relation, sureties will be liable only for acts thereafter. State
V. Polk (Tenn.). 154.

Filing bond essential to office-holding, when. State v, Laughton (Nev.). 79.

Forfeiture of office by failure to file official bond. 89 n.

Judgment on, should be for the amount of the penalty. Machiasport vl Small
(Me.). 179.

Judgment for penalty may be reduced by court and execution issued for
amount of loss. Machiasport v. Small (Me.). 179.

Reference to auditor may be had to determine amount for which execu-
tion should issue. Id.

Majority of board may exercise powers of board. People v. Police Commis-
sioners (N. Y.). 73.

New duties laid on officer: liability of surety in case of. 309 if.

Notice by surety to release. State v, Laughton (Nev.). 79.

Public officers intrusted with public money, and required to give bonds for
faithful discharge of official duties, are not mere bailees of the money, re-
quired only to exercise ordinary care and diligence. They are liable for
money stolen ^without their fault or negligence. State v. Nevin (Nev.).
171.

Release of surety from: formalities considered. State v, Laughton (Nev.). 79.

State treasurer's bond is a joint and several bond. State v, Polk (Tenn.). 154.

But if bond is accepted, which binds his sureties only for aliquot parts of

the penalty, they cannot be charged for more. Id.

Suit on bond' sheriff alone appealing, sureties are not before appellate court;
and it cannot give judgment against them. Briggs v. Hinton et al,
(Tenn.). 159.

Suit on collector's bond: plea of performance; plaintiff has burden of showing
either actual collection, or duty and legal authority to collect certain
moneys, before defendant has burden of -proving performance in respect
thereto. Machiasport z/. Small (Me.). 179.

^— On such proof by plaintiff, defendant has burden of adducing evidence in
support of his plea. Machiasport v. Small (Me.). 179.

Sureties liable for defalcations of treasurer of money collected under color of
law but without warrant in law. Simmons et aL v. County of Jackson
(Tex.). 199.

Sureties not discharged by mere imposition of new duties on principal, which
are separable from those of office originally, and which do not impede the
•execution of such duties. Mayor, etc., of New Yorki^. Kelly (N. Y.), 303.

Sureties on, semble, not chargeable for derelictions of principal in new duties
laid upon him during term which are distinct and separable from the
duties of his office originally. Mayor, etc., of New York v. KeUy (N. Y.).
303.



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INDEX. 697

OFFICIAL REPORTS-

Appendices to, held admissible in evidence. Milford v, Greenbush (Me.). 17.



OLEOMARGARINE.

See Nuisance.

ORDINANCES.

Intoxicating liquors: ordinances in relation to. See also Intoxicating Liq-
uors.

Intoxicating liquors: ordinance prohibiting sale or gift of, with proviso for
sale by druggists for medicinal and mechanical purposes, without provision
for written permit to druggists, is a general permit to all druggists to sell



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 71 of 73)