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Lacific Coast Law Journal.

VOL. 1.

JULY 20, 1878.

No. 21.

Current Topics.

THERE are about twenty-five cases only that have been submitted that remain undecided by the Supreme Court.

This is conclusive that the judges composing the present court have been performing great labor, and have not neglected any of their duties to the people.

Notwithstanding this, however, there remains a long calendar of cases waiting to be argued, and just here is where the present system is at fault. No more than from three to five cases can be argued before the court each day, and from this it will be seen that a large portion of the present term calendar will not be reached at this term. The trouble does not grow out of a neglect of duty, but from an absolute need of more courts and more judges.

A DRAFT of a constitution by E. D. Sawyer, Esq., of the San Francisco Bar, addressed to the members of the Constitutional Convention, has been received by us. It is a draft of a complete constitution, embracing all the branches of a republican government. Mr. Sawyer says: “I have examined all the constitutions of the several States, and drafted from the later ones many reformatory measures." We notice among the principal changes proposed a section making contracts void for the payment of more than one per cent. per month interest on money. Such a provision can never be classed among those of reform. Money, like any other property, should always be worth what it will bring. If Congress could pass a law on this subject fixing the same rate of interest for all the States, a low rate of interest would be a wise


and reformatory provision; but to establish a lower ratė in one State than another tends to drive all the surplus capital to those localities where the highest rates can be obtained.

We find, however, a large majority of those sections of proposed changes, such as should be embodied in all constitutions whose aim is to protect life and property and to establish society on the basis of virtue and honesty.

The plan for a judiciary has been taken from that of Hon. Sol. Heydenfeldt, which we have heretofore noticed.

If a person intentionally inflicts upon another a dangerous wound - one that is calculated to endanger and destroy life—and death ensues therefrom within a year and a day, it is sufficient proof of the offense either of manslaughter or murder, as the case may be; and he is none the less responsible for the result, although it may appear that the deceased might have recovered if he had taken proper care of himself, or that unskilled or improper treatment aggravated the wound and contributed to his death. This doctrine was announced after an examination of the old authorities by the Supreme Court of Errors of Connecticut, in State vs. Bantley (17 Am. Law Reg. 447). (See Roscoe Crim. Ev., 7th ed., 717; 1 Hale P. C. 428; 3 Greenleaf on Evidence, % 139; Rex vs. Rews Kelynge, 26.) In Regina vs. Holland (2 Mood. & Rob. 351), the deceased had been severely cut with an iron instrument across one of his fingers, and had refused to have it amputated, and at the end of a fortnight lock-jaw came on, and the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The surgeon expressed the opinion that early amputation would probably have saved his life. MAULE, J., held that a party inflicting a wound which ultimately becomes the cause of death, is guilty of murder, though life might have been preserved if the deceased had not refused to submit to a surgical operation. In Com. vs. Pike (3 Cush. 181), it was held that where a surgical operation is performed in a proper manner, and under circumstances which render it necessary, in the opinion of competent surgeons, upon one who has received a wound ap


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parently mortal, and such operation is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of the death, the party inflicting the wound will nevertheless be responsible for the consequences. In Rex vs. Johnson (1 Lewin C. C.), the deceased died from a blow received in a fight with the prisoner; a surgeon expressed an opinion that a blow on the stomach, in the state in which the deceased was, arising from passion and intoxication, was calculated to occasion death, but not so if the party had been sober. HULLOCK, B., directed an acquittal, observing that when the death was occasioned partly by a blow and partly by a predisposing circumstance, it was impossible to apportion the operation of the several causes and to say with certainty that the death was immediately occasioned by any one of them in particular. Of this case Roscoe remarks that it may be doubted how far this ruling of the learned judge was correct. (Roscoe's Crim. Ev. 7th ed. 718.) In Rex vs. Martin (5 Car. & P. 130), where the deceased at the time when the blow was given was in an infirm state of health, PARK, J., said to the jury: “It is said that the deceased was in a bad state of health, but that is perfectly immaterial, as, if the prisoner was so unfortunate as to accelerate her death, he must answer for it." In Commonwealth vs. Hackett (2 Allen, 136), it was held that one who has willfully inflicted upon another a dangerous wound with a deadly weapon, from which death ensued, is guilty of murder or manslaughter, as the evidence may prove, although through want of due care or skill the improper treatment of the wound by surgeons may have contributed to the death.

Supreme Court of California.


[No. 5,423.)

[Filed July 16, 1878.]





the corporation derives its being must be held to limit the power of the corporation so that it can bind as stockholders, as of the date of its filing, only those

named in the articles, and to the amounts therein mentioned. IDEM-CASE.-Defendant signed a preliminary agreement for $25,000 (250 shares) of

the capital stock of the railroad (plaintiff), but signed the articles of incorporation for (40 shares) $4,000 only. Held: in an action to recover $25,000, and that the defendant be adjudged a subscriber for 250 shares of said stock, and subject to all liabilities in consequence of said subscription, that the action could not be maintained.

Appeal from the Twentieth District Court, Santa Clara County.

The complaint alleges, in substance, that on February 26, 1874, the defendant, for and in consideration of the said railroad to be constructed as aforesaid, and for other good and valuable considerations, signed, executed, and delivered to the plaintiff an instrument in writing, and of that date, in these words and figures: “Whereas, it is proposed to construct a railroad from a point at or near the city of Monterey, county of Monterey, and State of California, to a point at or near Salinas City, in the Salinas Valley, we, the undersigned, for the purpose of incorporating a company to construct and operate such railroad, in consideration of the premises and other good and valuable considerations, do mutually promise and agree to and with each other that we will invest in the capital stock of a company to be incorporated by us for the purpose above mentioned the several amounts of

money set opposite our respective names, in gold coin of the United States.”

“SALINAS CITY, CALIFORNIA, February 26, 1874. David Jocks...

.$25,000 Thos. Hildreth ..



That the corporation was afterward formed (February 27, 1874) on the faith of such agreement, and that the defendant by various acts ratified the same.

That the defendant has failed and refused to pay any of the several assessments that have been made, and waiving all proceedings under chapter 2, bill 1, part 4, of the Civil Code of California, elects to recover the amount of each of said assessments by action against the defendant, and prays that the said defendant may be decreed and adjudged to pay to the plaintiff the sum of $25,000, and be adjudged to be the subscriber for 250 shares of the said railroad company, and be subject to all the liabilities in consequence of and upon said subscription.

The findings of the court below, which are admitted, show that the defendant signed the articles of incorporation which were filed subsequent to the preliminary subscription for only $4,000. It is contended by the plaintiff that the defendant is liable for the assessments upon shares of stock corresponding in value to the amount stated in the preliminary paper or agreement dated February 26, 1874.

The court below gave judgment for the defendant for costs. D. M. Delmas, for respondent.

A person can become a member of a statutory corporation only by pursuing some one of the methods designated by the statute. (28 Mich. 147; 18 Barb. 301.) The Code of this State expressly declares who are the corporators, members, and stockholders of corporations created under its provisions. They are those signing the articles of incorporation which are filed, their associates, and the assigns of such signers and their associates. (C. C. 296.)

The signing of a preliminary agreement like the one here sued on does not bring a party under any of the foregoing categories.

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