that the defendant should not be allowed to elect whether it will
be bound by its by-laws, or its express agreement, as to the time
when its shares will mature. (Williamson v. Eastern Building
etc. Assn., 822)
1. BURDEN OF PROOF - MEANING — DEFINITION.-The
term "burden of proof" may have two meanings. It may be used to
indicate the burden which rests on every party to a cause of going
forward, if he be met by a traverse, and establishing the total
proposition or series of propositions which constitute his disputed
case. It may also be used to denote a duty cast by law upon one
party to meet and rebut the effect of some piece of evidence intro-
duced by the other. (Baxter v. Camp, 169.)
2. BURDEN OF PROOF-EXECUTION OF AND SIGNATURE
TO INSTRUMENT.-In a suit upon an instrument, which upon its
face shows that the signature had been crossed out, or that it had
been written over a line of crosses, or that it had been rewritten over
a previous signature which had been erased, the burden of estab-
lishing the execution of the instrument and its delivery to him,
bearing the defendant's signature, is on the plaintiff. (Baxter v.
Camp, 169.)
3. BURDEN OF PROOF.-A party is always and continuously
bound to prove his side of the case, if he is met by a traverse.
(Baxter v. Camp, 169.)
See Fraudulent Conveyances, 3; Negligence, 9; New Trial, 1; Rail-
roads, 7; Trusts, 4; Warehousemen, 1.
1. CARRIERS NEGLIGENT DELAY LOSS BY FIRE-
PROXIMATE AND REMOTE CAUSE.-If a carrier negligently de-
lays the transportation of goods, and they are destroyed by an
accidental fire not originating on the carrier's premises and for
which he is not responsible. he is not liable, as the fire is the proxi-
mate cause of loss, while the delay is only the remote cause. (Ya-
zoo etc. R. R. Co. v. Millsaps, 543.)
2. CARRIERS-NEGLIGENT DELAY-LOSS FROM UNFORE-
SEEN CAUSE.-Although a carrier, by negligent delay in trans-
portation, exposes goods to loss or injury by act of God, or other
cause for which he is not responsible and could not naturally fore-
see, he is not liable. (Yazoo etc. R. R. Co. v. Millsaps, 543.)
CARRIERS-PASSENGERS-TRANSFERS-NEGLIGENCE.
If a passenger is given a transfer ticket from one electric-car
to another to enable him to reach his destination, and, while
in the highway approaching and near to the proper car for him to
take under the terms of the transfer, he is struck by a piece of the
trolley pole, which breaks while it is being turned from one end
of the car to the other, and while the company or its servant is
not exercising extraordinary care toward the holder of the transfer,
he is entitled, as a passenger, to recover for the injury thus sus-
tained. (Keator v. Scranton Traction Co., 758.)
CAVEAT EMPTOR.
See Judicial Sales, 1, 2; Trusts, 8, 4.
1. CEMETERIES-REGULATION OF-NUISANCES PER SE.
While cemeteries are within the power of reasonable regulation by
cities, counties, and towns, they are not to be regarded as nuisances
per se, in measuring the extent of the police power to regulate them.
(Los Angeles County v. Hollywood etc. Assn., 75.)
CEMETERIES-ORDINANCE REGULATING
OPERATION-INVALIDITY.-A county ordinance which makes it
UNEQUAL
unlawful to establish, extend, or enlarge any cemetery within the
limits of the county without the permission of the supervisors, but
which impliedly permits burials in cemeteries already established,
without restriction, is invalid and not enforceable by the county.
It is unreasonable, because it makes the right to follow a lawful
occupation dependent upon the arbitrary will of the supervisors;
and it is unequal in its operation, because it discriminates in favor
of a class of persons within the same district; that is, it allows the
owners of cemeteries already established the right to exercise privi-
leges denied to those who have no permission; and whether the per-
mission may or may not be granted rests in the arbitrary power
of the supervisors. (Los Angeles County v. Hollywood etc. Assn.,
75.)
3. CEMETERIES
OF, BY CITIES
TOWNS, AND COUNTIES-REASONABLENESS-DISTINCTION.
An ordinance passed pursuant to the constitutional grant of power
to make police regulations concerning cemeteries may be reasonable.
when confined to the limits of a city or town, but entirely unreason-
able when put in operation in all parts of a large county, thinly
populated in many of its parts. (Los Angeles County v. Hollywood
etc. Assn., 75.)
CEMETERIES-ESTABLISHMENT AND MAINTENANCE
OF, AS A LAWFUL OCCUPATION-INJURIOUS TENDENCY.-
It is not unlawful to establish and conduct a cemetery for the
burial of the dead, deriving profit therefrom, as a business enter-
prise. It cannot even be presumed that the business of conduct-
ing a cemetery is an occupation which has an injurious tendency.
(Los Angeles County v. Hollywood etc. Assn., 75.)
1. CHATTEL MORTGAGES-REGISTRATION AS NOTICE.-
A recorded chattel mortgage, with power in the mortgagee to sell
on default, is notice of the rights of the mortgagee to a purchaser
from the mortgagor. (Avery v. Popper, 849.)
2. CHATTEL MORTGAGES DESCRIPTION-SELECTION
BY MORTGAGEE.-A chattel mortgage on a specified number of
cows and their calves, out of a designated herd containing a larger
number, with power to the mortgagee to sell on default, gives him
the right to select such cows and calves from the herd, provided
the selection is made while the calves are following the cows, but
if the selection is not made until the calves have ceased to follow
their dams, all right of selection as to the calves is lost. (Avery v.
Popper, 849.)
Bee Forgery, 1; Negotiable Instruments, 4
AM. ST. REP., VOL. LXXI.-62
CODES-CONSTRUCTION OF SECTIONS.-If a section of
the code of a state has been codified from a decision of its supreme
court, such section must be construed in the light of the source from
which it was taken, unless the language imperatively demands a
different construction. (Calhoun v. Little, 254.)
COLLATERAL ATTACK.
See Judgment, 8.
COMMERCIAL AGENCIES.
See Sales.
COMMUNITY PROPERTY.
See Husband and Wife, 4.
See Assignment for the Benefit of Creditors, 3, 4; Contracts, 17;
Insurance, 8; Telegraph Companies, 3.
See Fraudulent Conveyances, 2; Negotiable Instruments, 7-9;
Suretyship, 11.
CONSTITUTIONS.
1. CONSTITUTIONAL LAW.-RAILROAD
CORPORATIONS
ARE "PERSONS," within the meaning of constitutional provisions,
both state and federal, concerning equality of rights or equality
of laws. (Pittsburgh etc. Ry. Co. v. Montgomery, 301.)
2. CONSTITUTIONAL LAW-LIMITATIONS UPON COUNTY
INDEBTEDNESS.-Under the Wyoming constitution, if the indebt-
edness of a county is less than two per cent of the assessed value
of the taxable property therein, it cannot create any debt in excess
of the taxes of the current year, without first submitting the ques-
tion to a vote of the people, and thereby securing their approval,
and with such approval the county is authorized to create the ad-
ditional debt, if, together with existing indebtedness, it does not
exceed such two per cent; but, the absolute limit of lawful indebt-
edness being reached, it cannot be exceeded in any event. (Grand
Island etc. R. R. Co. v. Baker, 926.)
3. CONSTITUTIONAL LAW-LIMITATION UPON COUNTY
INDEBTEDNESS.-Under the Wyoming constitution, if the in-
debtedness of a county has reached or exceeds two per cent on
the assessed value of taxable property, such county is powerless
to create any debt in excess of it for the current year, either with
or without a submission of the matter to a vote of the people
or their approval thereof. (Grand Island etc. R. R. Co. v. Baker,
926.)
See Municipal Corporations, 13-15; Statutes, 17.
CONTEMPT.
See Depositions, 2.
1. CONTRACT IN RESTRAINT OF TRADE-WHEN VOID-
BUSINESS OF BILL POSTING-GOODWILL.-An agreement by
a vendor of stock in a corporation engaged in the business of bill
posting, and other methods of advertising, to abstain from carrying
on a similar business, in the same city, so long as the vendee, or his.
successor in interest, shall carry on a like business therein, is de-
clared by the statute of California to be void, as in restraint of
trade, and is, therefore, not enforceable. The element of goodwill
is not present in such a transaction. (Merchants' Ad-Sign Co. v.
Sterling, 94.)
2. CONTRACT IN RESTRAINT OF TRADE-WHEN VOID-
BUSINESS OF BILL POSTING.-Under a statute providing that
every contract by which any person is restrained from exercising
a lawful business of any kind is to that extent void, a contract not
to engage in the business of bill posting, which is a lawful busi-
ness, is an agreement in restraint of trade, and is therefore void.
(Merchants' Ad-Sign Co. v. Sterling, 94.)
3. CONTRACT FOR BENEFIT OF THIRD PARTY.-A third
person cannot maintain an action upon a simple contract merely
because he would receive a benefit from its performance. (Baxter
v. Camp, 169.)
CONTRACTS-ACTION UPON.-The general rule is, that an
action at law for the breach of a contract can only be brought by
a party thereto. (Baxter v. Camp, 169.)
5. CONTRACT FOR BENEFIT OF THIRD PARTY.-A third
person may maintain an action upon a contract made for his direct,
sole, and exclusive benefit, where it was part of the agreement that
its object should be communicated to him. (Baxter v. Camp, 169.)
6. CONTRACT FOR BENEFIT OF THIRD PARTY-PROM-
ISE OF HUSBAND TO WIFE TO PAY MONEY TO SON.-A
promise made by a husband to his wife to pay her son a certain sum
of money upon her death, if the son were then living, cannot be
regarded as a promise made for the direct, sole, and exclusive benefit
of the son. and the son can maintain no action for the breach
thereof. (Baxter v. Camp, 169.)
7. CONTRACT-WHO MAY SUE-EXECUTORS AND ADMIN-
ISTRATORS.-The personal representative of the deceased wife is
the only party who can sue at law for the failure to perform a
contract made by a husband with such wife to pay her son a certain
sum of money upon her death, if the son were then living. (Baxter
v. Camp, 169.)
8. CONTRACTS IN WRITING—EVIDENCE TO VARY.—Evi-
dence to vary the terms of an agreement in writing is not admissi-
ble, but evidence to show that there is not an agreement at all is
admissible. (Burns etc. Lumber Co. v. Doyle, 235.)
9. RELEASE-CONTRACT OF-WHAT
Under a statute which prohibits all contracts releasing corporations
from liability for personal injuries to their employés, a contract be-
tween a railroad company and an employé, whereby the latter
agrees that the acceptance of certain benefits shall operate as a
release of all claims for damages against the company, is a con-
ditional release of the company from liability, and is void under
such statute. (Pittsburgh etc. Ry. Co. v. Montgomery, 301.)
10. CONTRACTS OF A LUNATIC who has not been found by
an inquisition to be insane are not absolutely void, but merely void-
able. (Flach v. Gottschalk Co., 418.)
11. CONTRACTS OF LUNATICS.-A contract made with a luna-
tic, fairly and in good faith, when the other party is ignorant of
the disability, cannot be repudiated by the lunatic after he has had
the benefit of it, unless both parties, upon a rescission, can be re-
stored to the situation they originally occupied. (Flach v. Gotts-
chalk Co., 418.)
12. CONTRACTS OF LUNATICS-NOTICE.-An inquisition of
lunacy is notice, actual or constructive, to all parties dealing with
the lunatic, and after such inquisition a contract made with the
lunatic is void and unenforceable. (Flach v. Gottschalk Co., 418.)
13. CONTRACTS OF LUNATICS-COMPETENCY OF AGENT
AS WITNESS.-If a contract is made between an agent on behalf
of his corporation and a person subsequently declared insane, such
agent is not a party to the contract and is competent as a witness
in an action thereon, although the statute provides that one party
to a contract is incompetent to testify if the other party thereto
is insane. (Flach v. Gottschalk Co., 418.)
CONTRACTS-ENFORCEMENT OF UNLAWFUL.-Courts
cannot lend their aid to the enforcement of unlawful contracts.
(Swing v. Munson, 772.)
15. CONTRACTS-CONSTRUCTION-CIRCULAR OF BUILD-
ING AND LOAN ASSOCIATION.-The construction of a written
instrument is a question of law to be decided by the court. Hence,
it has the right to construe a circular of a building and loan asso-
ciation upon the faith of which stock has been bought in the con-
cern. (Williamson v. Eastern Building etc. Assn., 822.)
16. CONTRACTS-CONSTRUCTION-INTERPRETATION
PARTIES.-When the construction to be given a contract is ren-
dered doubtful by the language thereof, the interpretation of the
contract by the parties themselves is entitled to great weight.
(Williamson v. Eastern Building etc. Assn., 822.)
CONTRACTS-CONFLICT OF LAWS-PRESUMPTION.-
In an action on a contract made in another state, the law of that
state is presumed to be the same as that in which the action is
brought. (Burgess v. Western Union Tel. Co., 833.)
18. CONTRACTS - UNREASONABLE STIPULATIONS.—The
state legislature may, within just and reasonable bounds, declare
certain stipulations in specified contracts unreasonable and void.
(Burgess v. Western Union Tel. Co., 833.)
19. CONTRACTS-ILLEGAL.-Courts cannot aid in the enforce-
ment of contracts clearly illegal. (Wiggins v. Bisso, 837.)
CONTRACTS-CONSIDERATION-SETTLEMENT OF AC-
TION-DURESS.-The settlement of an action, either begun or
threatened, unless founded on a fraudulent or fictitious claim, is a
valid consideration for promises by a third party to pay the claim,
and the service, or threatened service, of an attachment in such
action is not duress. (Bolln v. Metcalf, 898.)
See Building and Loan Associations, 5, 7; Insurance, 6, 11-13; Judl-
cial Sales, 7; Pleading, 2; Suretyship, 10.
CONVEYANCES-COVENANTS RUNNING WITH LAND-
WATER POWER RIGHTS.-If a party owning a mill and elevator
situated upon adjoining tracts of land. the elevator being operated
by water power from the mill race conducted to the elevator by
machinery connected with and part of the mill tract, sells and con-
veys the elevator and tract of land on which it is situated, together
with a grant of perpetual water power to operate the elevator, and
a perpetual use of all machinery necessary to the successful appli-
cation of the water power to such purpose, such grant conveys not
only a license to use the water power, but the right to have that
power delivered so as to operate the elevator without further cost
than the purchase price paid. Such grant is a covenant running
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