EQUITY. See Laches; Parties; Partnership.
1. Capital stock or shares of a corporation-especially the unpaid sub- scriptions to such stock or shares-constitute a trust fund for the benefit of the general creditors of the corporation, and this trust can- not be defeated by a simulated payment of the stock subscription, nor by any device short of an actual payment in good faith. Sawyer v. Hoag, Assignee, 610.
2. Equity will not exercise its jurisdiction to reach the property of a debtor applicable to the payment of his debts, unless the debt be clear and undisputed, and there exist some special circumstances re- quiring the interposition of the court to obtain possession of, and apply the property. Board of Public Works v. Columbià College, 521. 3. A decree in, reversed, as made on evidence not competent and in the face of answers responsive to the bill. Moore v. Huntington, 417. 4. Where a cross-bill and answers are filed in a case, and the decree un- dertakes to dispose of the whole case, it should dispose of the issues raised in them. Ib.
ERROR. See Court and Jury; Practice, 11-14.
This subject largely investigated, and the nature and effect, extent and limits of estoppels, both legal and equitable, defined. Branson v. Worth, 32.
EVIDENCE. See Deposition; Estoppel; Judgment; Necessaries in a For- eign Port, 1; North Carolina, 1; Practice, 1, 3; Res Judicata, 2. 1. Conversations occurring during the negotiation of a loan, or other transaction, as well as the instruments given or received, being part of the res gesta, are original evidence and competent to show the nature of the transaction, and the parties for whose benefit it was made, where that fact is material. Bank v. Kennedy, 19.
2. Where the cashier of a bank effects a loan, and it becomes material to ascertain whether it was made for his own account or for the use of the bank, evidence of the negotiation and circumstances may be given for that purpose, whatever may be the form of the securities given or received, when the latter are introduced only collaterally in the Ib.
3. When papers or documents are introduced collaterally in the trial of a cause, the purpose and object for which they were made, and the rea- son why they were made in a particular form, may be explained by parol evidence. Ib.
4. The purpose or quality of an act may be stated by a witness who was present and cognizant of the whole transaction, as whether the de- livery of money by one man to another was by way of payment or otherwise. Ib.
5. Parol, how far received to explain a bill of lading. The Star of Hope,
6. Parol, inadmissible to show how all the parties in interest understood a long and rather intricate transaction, from its commencement to its
consummation; the same being all in writing. Bailey v. Kailroad Company, 96; and see Bank v. Kennedy, 19.
7. Evidence of fraud, not required to be more direct and positive than that of facts and circumstances tending to the conclusion that it has been practiced. Rea v. Missouri, 532.
8. A memorandum found upon the record of a patent and put there by some unknown person eight years after the patent had issued is inad- missible to contradict the record. Branson v. Worth, 32.
9. Evidence of a vendor of land, being positive, is sufficient to rebut a presumption, arising from taking a note with surety for the payment of the purchase-money of the land, that the vendor's lien had been displaced. Cordova v. Hood, 1.
10. A decree in equity reversed as made on evidence not competent and in the face of answers responsive to the bill. Moore v. Huntington, 417. 11. On a question by a creditor of A. of a fraudulent assertion by B., of ownership of goods levied on as A.'s, any statements made by B. in the absence of C., which are afterwards assented to by the latter or were part of the res gesta, are evidence. Rea v. Missouri, 532.
12. Ordinarily, a witness who testifies to an affirmative is entitled to credit in preference to one who testifies to a negative. Stitt v. Huide kopers, 384.
13. When one party gives notice to another to produce on trial a written instrument, and the party who so receives the notice produces and offers to verify it by his oath, the other party cannot refuse to use that paper and introduce a copy in the first instance, on the allegation that the first is not genuine, although he might show wherein it was erroneous or defective after it was once introduced. Ib. 14. Although a written agreement between persons not parties to the suit may, as a general rule, be contradicted or explained by oral testi- mony, this does not apply to an attempt to make good by parol evi- dence a contract which the law requires to be made in writing to make it valid. Ib.
15. In an action of ejectment, a letter of the plaintiff's grantor, written to the ancestor of the defendant, is not competent evidence to show that the ancestor entered into possession under the license of the plaintiff's grantor, without some evidence that such letter was received or acted on about the time of such entry, by the ancestor. Smiths v. Shoe- maker, 630.
16. The mere fact that the date found on the letter corresponds with the time of such entry, is not of itself sufficient to show that the letter was written at that time. Ib.
17. Where the purpose is to impeach a witness, the proper question is what is the general "reputation" for truth of the witness? rather than what is his general "character" for truth? Knode v. Williamson, 587. 18. The extent to which a cross-examination is carried not reviewable on error. Rea v. Missouri, 532.
FINAL DECREE. See Supersedeas.
The order of seizure and sale called "executory process," made in Louis-
FINAL DECREE (continued).
iana when the mortgage "imports a confession of judgment," is in substance a decree of foreclosure and sale, and therefore a "final de- cree;".especially when made after objections have been made and heard. Marin v. Lalley, 14.
FORECLOSURE. See Appeal, 1; Final Decree.
FOREIGN VESSEL. See Navigation Laws.
1. Evidence of it not required to be more direct and positive than facts and circumstances tending to the inference of it. Rea v. Missouri, 582. 2. Where a creditor of B. levied on certain goods as B.'s for which C. in- terposed a claim of ownership, held that an intimate personal and business relation between B. and C. having been shown, it was error to instruct the jury that it was immaterial as to the ownership of the goods how C. acquired his means, or whether his exhibit of them was correct or not. Ib.
A device to avoid the revenue acts, and whose operation does avoid them, is subject to no legal censure if the device be carried out by means of legal forms. United States v. Isham, 496.
FRAUDULENT CONVEYANCE. See Fraud.
Under the statute of frauds of Missouri, a sale of household furniture in a house occupied jointly by vendor and vendee, both using the furni- ture alike, and there being no other change of possession than that the vendor, after going around with the vendee and looking at the furni- ture and agreeing on the price, turned it over to the vendee and exe- cuted a bill of sale before a notary, both parties then, after the sale, occupying the house and using the furniture exactly as before, is void as against the vendor's creditors. Allen v. Massey, 352.
GOVERNMENT CONTRACTOR. See Contract, 2, 3, 5.
IMPEACHING WITNESS. See Witness, 1.
Where a person has unlawfully procured and sold securities belonging to another, the principal and interest of which is capable of being ascer- tained by computation, the owner from whom they have been taken, may waive the fraud in the conversion of the bonds, and claim as on an implied contract. Allen v. United States, 207.
INCOME TAX. See Internal Revenue, 3, 4.
INDIAN TRIBES. See Cherokees; Breach of Condition.
Capable of taking as owners in fee simple by purchase from the United States; and a sale to them is properly made by treaty. Holden v. Joy, 211.
Where a statute defining an offence contains an exception, in the enacting clause of the statute, which is so incorporated with the language defin-
ing the offence, that the ingredients of the offence cannot be accu- rately and clearly described if the exception is omitted, an indictment founded upon the statute must allege enough to show that the ac- cused is not within the exception. But if the language of the section defining the offence is so entirely separable from the exception, that the ingredients constituting the offence may be accurately and clearly defined without any reference to the exception, the indictment may omit any such reference. The matter contained in the exception is matter of defence, and to be shown by the accused. United States v. Cook, 168.
INDORSER. See Negotiable Paper.
Need not himself have been free from fault to entitle him to recover dam- ages resulting from the fault of another. Railroad Company v. Stout, 657.
INSOLVENT CORPORATION. See Equity, 1.
Where allowed, not under contract, but by way of damages, the rate must be according to the lex fori. Goddard v. Foster, 124.
INTERNAL REVENUE. See Trespass.
1. The words "memorandum, check," in that part of the schedule of in- struments required by the statute of June 30th, 1864 (13 Stat. at Large, p. 298, 158), to be stamped, which in the printed statute-books are printed with a comma between them, should read, "memorandum- check," with a hyphen instead of a comma. United States v. Isham,
2. In settling whether an instrument should be stamped or not, regard is to be had to its form, rather than to its operation. Though the form adopted may be a device to avoid the revenue acts, and though it may avoid them, yet if the device be carried out by means of legal forms it is subject to no legal censure.
3. Under the 116th, 119th, and 122d sections of the Internal Revenue Act of June 30th, 1864, as subsequently amended, the interest due or divi- dends declared by any railroad or canal company, &c., which accrued prior to the 1st of January, 1870, were taxable under the act, though payable on or after the date named. Barnes v. The Railroads, 294. 4. This tax is a tax on the creditor and not upon the corporation. United States v. Railroad Company, 322.
5. Under the 110th section of the internal revenue act of 1864, as amended by the act of July 13th, 1866, taxing deposits in banks, an entry made in the depositor's pass-book of a deposit or payment, is "a cer- tificate of deposit," or check," or "draft" within the meaning of the section. Oulton v. Savings Institution, 109.
6. Under the proviso to that section, savings banks are not exempt from taxation if they have a capital stock, or if they do any other business than receiving deposits to be lent or invested for the sole benefit of the person making such deposits. Ib.
INTERNAL REVENUE (continued).
7. The fact that, by an agreement between the savings bank and the de- positor, money deposited with the bank shall be reimbursed only out of the first disposable funds that shall come into the hands of the bank after demand, being a regulation adopted but for an emergency, and not such as essentially impairs the just claim of a depositor, does not change the case. Oulton v. Savings Institution, 109.
8. Under the 20th section of the act of July 20th, 1868, entitled "An act imposing taxes on distilled spirits," &c., in the absence of a dis- tiller's having appealed to the Commissioner of Internal Revenue (as under the 10th section of the act he may do), for the correction of any error made by the assessor in fixing the "true producing capacity" of his distillery, it is lawful for the government to assess and collect, as for a deficiency, the taxes upon the difference between the said "producing capacity" as estimated by the assessor and the amount of spirits actually produced by such distillery, even though the distiller have in good faith reported and paid taxes upon his whole produc- tion, and though such production have exceeded 80 per centum of the producing capacity aforesaid. The Collector v. Beggs, 182.
INTERPRETATION OF CONTRACT.
Not to be governed by what either party to the contract understood or be- lieved, unless such understanding or belief was induced by the con- duct or declarations of the other party. Bank v. Kennedy, 19; and see Bailey v. Railroad Company, 96.
INTERPRETATION OF LANGUAGE. See Construction, Rules of. JUDGMENT. See Appearance; Res Judicata.
On a note or contract operates as a merger of it; and when the judgment is binding personally it can be introduced in evidence, and relied on as a bar to a second suit on the note. Eldred v. Bank, 545.
JUDICIAL AUTHORITY. See Precedent, Value of.
JUDICIAL COMITY. See Rebellion, 2.
1. In the construction of the statutes of a State, and especially those affect- ing titles to real property, where no Federal question arises, this court follows the adjudications of the highest court of the State, whatever may be the opinion of this court of its soundness. Walker v. The State Harbor Commissioners, 648; and see Allen v. Massey, 351.
2. A personal judgment, rendered in one State against several parties jointly, upon service of process on some of them, or their voluntary appearance, and upon publication against the others, is not evidence outside of the State where rendered of any personal liability to the plaintiff of the parties proceeded against by publication. Board of Public Works v. Columbia College, 521.
JURISDICTION. See Appeal; Constitutional Law, 2, 3.
I. OF THE SUPREME COURT OF THE UNITED STATES.
1. Under the 25th section of the Judiciary Act, as well as under that of
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