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increased their par value, the shares would have been mere capital, and not income as to the shareholder, though increased in value by the application of the net income of the road to that purpose. So when they increase the number of shares, each share of all the stock in the corporation is in its nature capital. The new shares take their place among the old ones, and each of the old shares thereby becomes a less proportion of the whole stock than it was before, and is entitled to a less proportion of dividends declared than it was before. It may be that dividends are less per cent than they would otherwise have been, and in such case the old stock is diminished in value, and the interest of the remainder-man is injuriously affected. But, on the other hand, the effect may be by increasing the business of the road to increase the dividends and the market value of the old stock. But neither courts nor trustees can investigate such matters with accuracy, and in many cases no investigation can be made. A trustee needs some plain principle to guide him; and the cestuis que trust ought not to be subjected to the expense of going behind the action of the directors and investigating the concerns of the corporations, especially if it is out of our jurisdiction. A simple rule is to regard cash dividends, however large, as income; and stock dividends, however made, as capital. The court are of opinion that this rule is more in conformity with the legal and equitable rights of shareholders than any other that has been sug. gested. It is also in conformity with the decisions of the court, so far as the subject has been considered.”
LEGAL TENDER. — Bowditch v. Soltyk et al. This was a bill praying instructions of the court as to the execution of a trust under a will. The trust was declared by the testator, whose domicile was in this State, in the following terms: "To raise the sum of one hundred and fifty thousand francs (I say 150,000 francs, money of France), and to apply the same to the fulfilment of a certain marriage contract,” &c.; by which contract, executed at Geneva, the testator had, in the contingency of his death, and upon certain conditions, agreed to pay to his daughter, one of the parties contracting marriage, “a capital of one hundred and fifty thousand francs."
One of the questions involved in the case was the method of ascertaining the amount to be raised in dollars, in order to fulfil the testator's intent, and it was held that it must be an amount in treasury notes sufficient to buy 150,000 francs in this Commonwealth; or, in other words, that if the beneficiary was to be paid in depreciated paper, the amount to be paid must be increased in proportion to the depreciation.
The court (Gray, J.) says, “The more difficult question is, by what rule the amount of dollars is to be ascertained in the present state of the currency of this country. This question is not affected by the decision in Otis v. Coffin, 7 Gray, 511, for two reasons: becaụse in 1856, when that case was decided, as well as in 1839, when Admiral Coffin made his will and died, there was no lawful tender for the payment of debts here except gold and silver coin ; and because English and French coins were then current here by law as money. (U.S. Stats. 1843, c. 69; 1834, c. 96; 5 U.S. Stats. at L. 607; 4 do. 700.) But now no foreign money is a lawful tender in the United States, although the value of French and English and some other foreign coins, for some mercantile purposes, is regulated by government, in the absence of agreement. (U.S. Stats. 1857, c. 56; 11 U.S. Stats. at L. 163; Commonwealth v. Haupt, 10 Allen, 43, 47; Storrow v. Pfaff, ante, 135.) According to recent decisions of this court,
his departure from home, was filed, and he has been duly adjudged a bankrupt, and now petitions the court that his creditor be enjoined from longer detaining him in prison. Judge Lowell has dismissed the petition, on the ground that the petitioner's case does not come within sec. 26 of the Bankrupt Act, because the arrest was not made during the pendency of the bankruptcy proceedings. “The arrest was made on the writ, and the petitioner while out on bail was in the custody of his bail; and when he rendered himself in their discharge, he was theoretically and practically in arrest substantially, to all intents and purposes as if he had never been released on bail.”
The question of the effect on a foreign arrest of a discharge in bankruptcy here was therefore not considered.
Two cases have recently been decided in the Supreme Courts of Michigan and Wisconsin, in which the circumstances were almost identical, and the decisions diametrically opposite.
The Michigan case is Hobart v. Detroit, and the Wisconsin one Dean v. Charlton.
In each case the plaintiff sought to enjoin the collection of taxes levied on his real estate for the purpose of paying the expense of paving the street, on which his property abutted, with the Nicolson pavement.
One lived in Detroit, Mich., and the other in Madison, Wis., and in each city the charter required that all work should be done by contract made with the lowest bidder. In each, however, competition, though not absolutely impossible, was virtually so, because the right to lay the Nicolson pavement was owned by a single firm.
Under these circumstances, Mr. Justice Paine, speaking for a majority of the Supreme Court of Wisconsin, held, that the contract was beyond the scope and in violation of the city charter. He cited the case of Harlem Gas Co. v. The Mayor, &c., 33 N.Y. 309, where with the same provision in the city charter, the court held valid the contract with a gas company, which had the exclusive right to furnish gas in that locality; and he drew the distinction that since, in the New York case, a compliance with that clause in the charter was obviously impossible, such compliance could never have been intended by the legislature, and that the contract stood, not on that clause, but on the general corporate power of the city. But, said he, the city of Madison has no such power to contract, by virtue of its existence as a municipal corporation. Its power rests solely on the clause above referred to, which prescribes a certain mode in which contracts are to be made, and that mode must be strictly adhered to. If a contract cannot be made according to it, then the contract cannot be made at all.
The distinction which the learned judge draws between the case before him, and the New York case, is rather shadowy; and we are inclined to think that the opinion of the Michigan court in Hobart v. Detroit is the better law. In that, too, the court was not unanimous. Cooley, C.J., gave the opinion, and held the contract valid.
In reference to the impossibility of making such a contract, he says, “ The theory of the complainant is that more than one bid in this case was impossible.
Campbell v. Nicholls & Tompkins. — Suit on promissory note made in Newark by defendants, payable to their own order and indorsed by them. The note was delivered in Newark to a Mr. Howell to get the money on it for defendants. He took it to a note broker in New York to be disposed of, and on his return informed one of defend. ants what he had done with the note. The broker sold it at a discount of one and a half per cent per month to a Mr. Kirkland, representing to him that it had been given for value received and stock sold and delivered. Kirkland afterwards sold the note to the plaintiff in Newark.
A verdict for the plaintiff was taken, subject to the opinion of the court on the following points :
1. Whether the right of the plaintiff to recover on the note is affected by the usury laws of New York, where the note was first negotiated.
2. Whether the transaction was usurious under the laws of New Jersey. The case having been heard at bar, the court ruled,
1. That a contract, with respect to the interest to be paid under it, is, as a general thing, to be construed and governed by the law of the place in which the parties in good faith intend it shall be performed.
2. A note signed in this State, but passed away, and coming first into legal existence in New York, is, in contemplation of law, made in the latter jurisdiction; but such note, being by its terms payable in this State, must be regulated with respect to the law of interest by the statute of New Jersey.
3. A note, as long as it remains the property of the maker, is not vendible.
4. If a third party take such note at a deduction greater than legal interest, under a deceitful representation made by the agent of the maker that it was put into the market for value in the regular course of business, such a transaction is in law a loan of money, and not a sale of the note.
5. Such taker of the paper, on discovering the fraud, can repudiate the transaction, but he cannot allow it to stand, and insist that it is a sale.
6. If an agent, having in his possession a note, the property of the maker, falsely represents that such note has been passed and is absolutely in the market, and a third party, relying on such representation, takes the note for less than its face, the maker thereof, when sued upon it, cannot set up the falsity of the statements of his agent in order to defeat such action.
7. But such evidence is competent to prevent a recovery for any amount beyond the sum which has been lost by reason of the false representation which occasioned the plaintiff's damage.
8. The doctrine of estoppel in pais should not be applied except to the extent of preventing the party who has been misled from being defeated in a recovery of indemnification.
Servis v. Cooper. – On rule to show cause why a new trial should not be granted.
The plaintiff brought suit to recover eight hundred and fifty dollars, which defendant promised to pay him for two years' service as a substitute. The jury found that the agreement had been made and the service performed, and rendered a verdict accordingly.
On rule to show cause why the verdict should not be set aside, several grounds were taken:
1. That the plaintiff had deceived the officers in regard to his qualifications as a substitute, misstating his name, age, and place of birth. It being shown, however, that this was done at the instance of the defendant, and that the plaintiff was actually accepted as a substitute, and served as such from the 1st of September, 1864, until honorably discharged at the close of the war, in consequence of which the defendant