v. R. & T. A. Ennis Stationery Co., Tex., 16 S. W. Rep. 308. 78. PRACTICE-Service by Publication.- Under Code Iowa, § 2618, providing that service may be made by publication when an affidavit is filed that "personal services cannot be made on the defendant within this State," an affidavit that defendants are non-residents is insufficient to give the court jurisdiction.- Carnes v. Mitchell, Iowa, 48 N. W. Rep. 941.

79. PRACTICE-Service by Publication.- Where a notice of publication states the venue in a certain county, is entitled of the circuit court of that county, and states that a bil has been filed in said court, and a summons issued out of it, it sufficiently shows the place where the summons is returnable, within the requirement of section 12 of the Illinois chancery act.—Michael v. Michael, Ill., 27 N. E. Rep. 694.

80. PRINCIPAL AND SURETY-Administrator's Bond.Where the sureties of the administrator of an estate, which consisted entirely of partnership assets, settled a claim pending a suit against them in behalf of all the creditors for a sum less than the creditor would have been entitled to if the claim had been submitted to a pro rata adjustment with the other claims, after judg. ment against the sureties, the court in its decree prop. erly gave them credit only for the amount actually paid by them, and rendered judgment against them for the difference between that sum and the total amount of assets unaccounted for by the administrator.-Batsell v. Richards, Tex., 16 S. W. Rep. 313.

81. QUIETING TITLE-Equitable Jurisdiction. In the absence of statutory provisions as to quieting title chancery will afford such relief only to a complainant in possession holding the legal title when successive actions at law, all of which have failed, have been brought against him by a single person out of posses. sion, or when many persons assert equitable title against a complainant in possession holding the legal or an equitable title.-Ashurst v. McKenzie, Ala., 9 South. Rep. 262.

82. QUIETING TITLE Partnership. Where land is bought as partnership property, but title is taken in the name of the partner who advanced the money, and afterwards the land is sold by the firm to the other partner, and possession taken by him, though no deed is given, his grantee has a right to have his title quieted as against both the partner who took the title original. ly and his wife, since the real estate of a partnership is to be treated as personal property.-Dickey v. Shirk, Ind., 27 N. E. Rep. 733.

83. RAILROAD COMPANIES-Crossings.- Plaintiff's intestate stepped upon a railroad track in front of an ap proaching locomotive, and was struck and killed. His companion testified that they looked and listened be fore going on the track, but the evidence showed that the engine could have been seen two or three blocks off. It was a rainy afternoon, and both men carried umbrellas. Held, that plaintiff's intestate was guilty of contributory negligence.-Blight v. Camden & A. R. Co., Penn., 21 Atl. Rep. 995.

84. RAILROAD COMPANIES- Crossing. Where a boy stopped on a railroad track at a street crossing to await the passage of a train on another track, and did not look or listen for a train on the track on which he stood, it is error to charge that, though he did not exercise care according to his age and discretion, the company is liable if the bell of the engine by which he was struck was not sounded for the crossing, and the failure so to sound the bell directly caused the injury.-Dlauhi v. St Louis, I. M. & S. Ry. Co., Mo., 16 S. W. Rep. 281.

85. RAILROAD MORTGAGE-Lines- Priorities. Where an insolvent railroad company upon its own petition procures the appointment of receivers, to take possession of its road and leased lines, and in the same suit trustees of a mortgage upon the property ask and are denied an appointment of receivers or an extension of the receivership under their cross-bill, but obtain a decree of foreclosure and a sale of the property thereon, the rentals of the leased lines while in the possession of the receivers do not become a charge upon the corpus

of the property to be paid in preference to the mortgage debt.-Central Trust Co. v. Wabash, St. L. & P. Ry. Co., U. S. C. C. (Ind.), 46 Fed. Rep. 26.

86. RECEIVER-Assignment.-An assignment for the benefit of creditors, made by a corporation after service of process on it in a suit by a creditor for the appointment of a receiver, does not deprive the court of juris. diction to appoint such receiver.-Belmont Nail Co. v Columbia Iron & Steel Co., U. S. C. C. (Penn.), 46 Fed. Rep

8.

87. RECEIVERS-Conditional Sale.-An agreement for the sale of a stock of goods provided that the purchaser should not remove the same from the town, but should be allowed to sell the goods, and should turn ov er al money taken in therefrom until they were paid for: Held, that in the absence of an express stipulation that the sale was conditional, and title should not pass until the goods were paid for, the seller had no such interest in the property as would authorize the appointment of a receiver, though the purchaser was insolvent.-Steele v. Aspy, Ind., 27 N. E. Rep. 739.

88. RECEIVER'S BOND-Sureties.-An order of court, passed at the instance of one of the parties to a case in which a receiver has been appointed, requiring the receiver to give a new bond in the same amount, and conditioned as his existing bond, will not operate, after the new bond has been given, to discharge the surety on the old bond from liability for future defaults of the receiver, but he will continue liable for defaults, past and future, as though no additional bond had been required or given.-Stewart v. Johnston, Ga., 13 S. Е. Вер. 258.

89. RES JUDICATA-Attachment.-Where, in an attachment suit, defendant suffered default, and a special execution was issued against the property, and it does not appear that any proceedings whatever were had upon a petition of intervention which had been filed therein, or that the intervenors' claim was in any wise considered or adjudicated, the judgment in the attachment suit will not be a bar to further proceedings by the intervenors.-Kern v. Wilson, Iowa, 48 N. W. Rep. 919.

90. SCHOOL DISTRICTS-School Fund.-The territory of a school-district was detached from Arkansas county and added to Jefferson county: Held, that the children of the detached district having been included in the enumeration on which an apportior.ment was made to Jefferson county, the district must be included in the apportionment made by the county court of that county.-Merritt v. Merritt, Ark., 16 S. W. Rep. 287. 91. SCHOOLS Inspecting Teachers. The board of education of the city and county of San Francisco, under the authority given it by Act Cal. April 1, 1872, cannot appoint and employ "inspecting teachers" to perform duties imposed by the act on the board itself, and on the superintendent, consisting of visiting the schools, ascertaining their condition by oral examinations, observing the methods of the teachers, and giv. ing them advice and instructions in the methods of teaching.-Barry v. Goad, Cal., 26 Pac. Rep. 785.

92. SEDUCTION-Marriage.-Under an indictment for seduction it is error to instruct that the burden of showing defendant's subsequent refusal to marry the prosecutrix is upon the State, since an offer of marriage after seduction is not a bar to the prosecution, but only an actual marriage.-State v. Mackey, Iowa, 48 N. W. Rep. 918.

93. SPECIFIC PERFORMANCE-Statute of Frauds.-In an action for the specific performance of an oral contract for the sale of land, the only matter alleged in the com. plaint to take the case out of the statute of frauds was that defendant had executed a deed of the land, and had left the same with a third person, to be delivered to the plaintiff, but it did not state that the delivery to the third person was unconditional: Held, that the complaint was demurrable.-Luzader v. Richmond, Ind., 27 N. E. Rep. 736.

94. TAXATION-Exemption.-Where a literary corporation only uses its hall for six or eight lectures annu.

ally, and rents it to others the rest of the time for lectures, concerts, etc., such use is not within the meaning of Pub. St. Mass. ch. 11, § 5, cl. 3, exempting from taxation the real estate belonging to literary institutions, "occupied by them or their officers for the purposes for which they were incorporated," and it is immaterial how the income from rentals is expended.Salem Lyceum v. City of Salem, Mass., 27 N. E. Rep. 672.

95. TAXATION-Recovery of Illegal Taxes.-An action cannot be maintained against a tax collector to recover taxes claimed to have been illegally exacted and paid under protest, on the ground that the assessment was at too high a valuation, where the tax-roll was in due form, and the collector was acting within his authority. -Continental Land & Cattle Co. v. Board, Tex., 16 S. W. Rep. 312.

96. TAX LIEN-Foreclosure - Ditch Assessment.-The foreclosure of a tax-lien on land upon which a ditch assessment has been made does not extinguish the lien of such assessment, where the persons who are beneficially interested in the ditch are not made parties to the foreclosure.-McCollum v. Uhl, Ind., 27 N. E. Rep. 725.

97. TELEGRAPH COMPANY-Measure of Damages.-Remote, contingent, or speculative damages will not be allowed, but only such as naturally flow from the breach of the contract.-Cahn v. Western Union Tel. Co., U.S. C. C. (Miss.), 16 Fed. Rep. 40.

98. TRESPASS ON REAL PROPERTY.-In an action of trespass upon real estate as a portion of a government subdivision of land the defense that it was a platted subdivision of a city, and that defendant owned lots therein, and destroyed the plaintiff's fences for the protection of his own property, cannot be successfully maintained in the absence of evidence that a plat was filed by some one having title to the land, notwithstanding plaintiff's rights are confined to a mere pos. session of property. — Kimball v. Shoemaker, Iowa, 48 N. W. Rep. 925.

99. TRIAL-Verdict-Interest.-Where the jury find a verdict for the principal sum, and fix the rate of interest to be calculated thereon, and the date from which it is to run, leaving nothing uncertain, it is not error to make the necessary calculations, and enter upon judg. ment thereon.-Buchanan v. Townsend, Tex., 16 S. W. Rep. 315.

100. TRUST-Parent and Child.-A woman put her own earnings and those of her minor son into a fund with which she purchased a house and lot for a home for them. The deed was taken in the name of the son, without her knowledge or consent. She was an ignorant woman, unacquainted with legal forms. She lived in the house, and her son lived with her: Held, that the evidence showed a resulting trust in her for a half interest in the land, since her intention that the son should share the home with her constituted a waiver of her right to the entire title.-Watson v. Murray, Ark., 16 8. W. Rep. 293.

101. TRUSTEE-Trust Funds.-A trustee and another person bought land together. The trustee used trust funds in payment for the land, but his co-tenant paid more than half the purchase price. Afterwards the trustee's creditors levied on and sold his interest in the land: Held, that the trustee's successor could not, after such sale, subject any part of the land to the payment of the trust fund.—Hawkins v. Palmer, Ky., 16 S. W. Rep. 274.

102. VENDOR AND VENDEE-Assumption of Mortgage. -The father of defendant conveyed to him part of a tract of land in consideration of his assuming certain mortgages on the whole, and the balance went to defendant's mother by will. Defendant failing to pay the mortgages when due, the mother satisfied them by executing a new mortgage on her land, which the son agreed to pay, and she then died: Held, that the claim of her estate against defendant is one for purchase money of his land, and her administrator may maintain a suit to have it declared a lien thereon, though de

fendant agreed to satisfy it is not yet due.-Wilson v. Burgett, Ind., 27 N. E. Rep. 749.

103. VENDOR AND VENDEE-Equitable Title.-Where, by mutual mistake, a deed misdescribes the property to be conveyed, but the grantee takes possession of the proper land, and makes valuable and lasting improvements, thereon, a subsequent purchaser, with notice of the grantee's equitable title, takes the legal title subject thereto.-Warbritton v. Demorett, Ind., 27 N. E. Rep. 730. 104. VENDOR AND VENDEE-False Representations.Plaintiffs are entitled to recover for false representations, on which they relied, as to the quantity of land sold them by defendants, which land defendant's held under a contract of sale from other persons, where this contract was in defendants' possession, and plantiffs, though the tract was pointed out to them, did not know its boundaries, so as to inform them of its area.-Antle v. Sexton, Ill., 27 N. E. Rep. 691.

105. VENDOR'S LIEN-Assignment.-Where the owner of land contracts to convey it upon the payment of a certain price, for which he accepts notes, but the title is not to pass until the notes are paid, the land is by express contract, held in pledge for such payment, and the notes and contract are in the nature of a mortgage, and the lien will pass to the assignee of such a note, who, under Code Proc. Cal. § 538, requiring a plaintiff in attachment to state that his claim is without security, cannot maintain action by attachment therefor.-Gessner v. Palmater, Cal., 26 Pac. Rep. 789.

106. VERDICT-Findings.-Where, in an action to restrain the diversion of water claimed by plaintiffs by prior appropriation, one of the defendants is enjoined, and it is found that the others had a right to divert the water in the mode and to the extent they were diverting it, plaintiffs cannot complain of a failure to find that said defendants were threatening a further diversion, in the absence of evidence affecting the correctness of the former finding.-Dedmon v. Moffitt, Cal., 26 Pac. Rep. 800.

107. WATER RIGHTS-Adverse Possession.- Where in an action for obstructing plaintiff's water-right, it is conceded that the defendant's use of the water for more than 21 years had been peaceable, undisputed, notorious, and continuous, it is proper to leave to the jury the question whether such use was inconsistent with the use claimed by the plaintiff.-Horn v. Miller, Penn., 21 Atl. Rep. 994.

108. WILLS-Construction.-A devise of "all my estate, both real and personal, that I shall inherit as my por tion after my father's death, is sufficiently general to pass all the property of testatrix, and there is no in. testacy as to any part thereof. Affirming ante, 398.-Graham v. Knowles, Penn., 21 Atl. Rep. 985.

109. WILLS-Construction.-A testator, whose property consisted mostly of coal land, gave his executors power to sell or lease it, and directed that one-half the proceeds should be given to his daughter, and the other half should be reinvested by his executors for her benefit during her life, with remainder to other relatives. The will also provided that, if the land was leased, “the income thereof to go to [the] daughter in lieu of converting the same into cash and reinvesting for her benefit." Held, that the different provisions of the will were not inconsistent, and that the daughter should take half the royalties absolutely, and the other half only for life.-Jones v. Strong, Penn., 21 Atl. Rep. 981.

110. WILLS-Construction.-A will making final disposition of a trust fund consisted of both real and personal property, by directing that it be conveyed "in fee" to one or his heirs at law, will be construed to mean that the devisees are those who would be entitled to succeed to real estate in case of intestacy, though at the time of the conveyance the trustee may have made an authorized conversion of the real estate into personalty.-Proctor v. Clark, Mass., 27 N. E. Rep. 673.

The Central Law Journal.

ST. LOUIS, AUGUST 7, 1891.

The extraordinary proceedings described in recent dispatches, on the part of the Kansas judge, who was elected to that position by the farmers' organization, because he was not a lawyer and didn't know any law, appears to be a natural sequence of the election His actions of an ignoramus to the bench. would be ludicrous if they were not so serious in their results. The legal aspect of the matter is that he has defied the Supreme Court of the State of Kansas by setting aside its order in a foreclosure suit. To enforce his own order he has caused the arrest and imprisonment of the receiver of the property, for contempt of court in obeying the order of the higher tribunal, and has caused the arrest of the sheriff for releasing the receiver upon a writ of habeas corpus granted by the supreme court. He is reported to have refused to give any attention whatever to proceedings for the foreclosure of mortgages, stating, as his reason, that such actions are oppressive to the people. It was proposed, at the time of the election of this "freak," to send him to a law school before taking his seat on the bench. But the plan was abandoned, and doubtless with reason. It is plain to be seen from his antics that the man not only never knew any law, but that he is incapable of acquiring it. He lacks in a woeful degree that common sense which, in a judge, is as necessary as, and often passes for, legal learning. Even a jackass knows better than to try to impede the progress of a locomotive. But this Kansas species doesn't hesitate to antagonize the supreme court and public opinion as well. The overthrow of accepted legal procedure and the defiance of acknowledged authority may seem the proper thing to the jaundiced visions of fanatics, but it will hardly commend itself to civilized people. If the organization which elected this man and which it is claimed now uphold him, stands for dishonesty in the treatment of creditors and irregularity in the administration of justice, its early dissolution is to be hoped for. As for "Judge' McKay, his career should be VOL. 33-No. 6.

cut short by removal from the position he has disgraced.

The Supreme Court of the United States, in the recent case of Henderson v. Carbondale Coal Co., has taken occasion to adopt the rule, as laid down by some of the authorities, that the mailing a letter, properly addressed and stamped, to a person known to be doing business in a place where there is established a regular delivery of letters, is proof of the reception of the letter by the person to whom it is addressed. Such proof, however, is open to rebuttal, and ultimately the question of delivery will be decided on all the circumstances This presumption, as the court says, is not a presumption of law, but one of fact, and is based on the proposition that the post-office is a public agency, charged with the duty of transmitting letters, and on the assumption that what ordinarily results from the transmission of a letter through the postoffice probably resulted in the given case. But no such presumption arises unless it appears that the person addressed resided in the city or town to which the letter was addressed.

of the case.

NOTES OF RECENT DECISIONS.

CARRIERS OF PASSENGERS "CONTRACT TICKET"-EXEMPTION FROM LIABILITY-CONFLICT OF LAWS.-In Fonseca v. Cunard S. S. Co., 27 N. E. Rep. 665, decided by the Supreme Court of Massachusetts, it appeared that upon the face of a steamship ticket issued in England, entitled "contract ticket," appeared notice that the owners of the ship would not be responsible for loss or damage to baggage, and on the back was a stipulation to which attention was called on the face, that the company would not be liable for loss of or injury to luggage "arising from negligence of the company's servants." It contained also nearly two quarto pages of printed matter, minutely describing the rights and liabilities of the parties during the voyage. The court held that one who has traveled on such ticket, although he has not read or signed it, cannot recover for damage to his baggage by the negligence of the steamship's servants. Such contract being valid in England, where made, will be

enforced in Massachusetts, although, if made in the latter place, it would be void as against public policy. Knowlton, J., says:

It is not expressly stated in the report that the law of England was put in evidence as a fact in the case, but it seems to have been assumed at the trial, if not expressly agreed, that this law should be considered, and the argument before this court has proceeded on the same assumption. It is conceded that the presiding justice correctly found and ruled as follows: "That the contract was a British contract; that by the English law a carrier may by contract exempt himself from liability, even for loss caused by his negligence; that in this case, as the carrier has so attempted, and the terms are broad enough to exonerate him, the question remains of assent on the part of the plain'iff." That part of his ruling which is called in question by the defendant is as follows: "This has been decided in Massachusetts to be a question of evidence, in which the lex fori is to govern; that, although it has been decided that the law conclusively presumes that a con signor knows and assents to the terms of a bill of lading or a shipping receipt which he takes without dissent, yet a passenger ticket, even though it be called a 'contract ticket,' does not stand on the same footing; that in this case assent is not a conclusion of law, and is not proved as a matter of fact." The principal question before us is whether the plaintiff, by reason of his acceptance and use of his ticket, shall be conclusively held to have assented to its terms. It has often been decided that one who accepts a contract and proceeds to avail himself of its provisions is bound by the stipulations and conditions expressed in it, whether he reads them or not. Grace v. Adams, 100 Mass. 505; Insurance Co. v. Buffum, 115 Mass. 343; Rice v. Manufacturing Co., 2 Cush. 80; Hoadley v. Transportation Co., 115 Mass. 304; Insurance Co. v. Railroad Co., 72 N. Y. 90. This rule is as applicable to contracts for the carriage of persons or property as to contracts of any other kind. Grace v. Adams, ubi supra; Railroad Co. v. Chipman, 146 Mass. 107, 14 N. E. Rep. 940; Parker v. Railway Co., 2 C. P. Div. 416, 428; Harris v. Railway Co., 1 Q. B. Div. 515; York Co. v. Railroad Co., 3 Wall. 107; Hill v. Railroad Co., 73 N. Y. 351. The cases in which it is held that one who receives a ticket which appears to be a mere check showing the points between which he is entitled to be carried, and which contains conditions on its back which he does not read, is not bound by such conditions, do not fall within this rule. Brown v. Railway Co., 11 Cush. 97; Malone v. Railroad Corp., 12 Gray, 388; Henderson v. Stevenson, L. R. 2 H. L. Sc. 470; Quimby v. Vanderbilt, 17 N. Y. 306; Railway Co. v. Stevens, 95 U. S. 655. Such a ticket does not purport to be a contract which expressly states the rights of the parties, but only a check to indicate the route over which the passenger is to be carried, and he is not expected to examine it to see whether it contains any unusual stipulations. The precise question in the present case is whether the "contract ticket" was of such a kind that the passenger taking it should have understood that it was a contract containing stipulations which would determine the rights of the parties in reference to his carriage. If so, he would be expected to read it, and, if he failed to do so, he is bound by its stipulations. It covered with print and writing the greater part of two large quarto pages, and bore the signature of the defendant company, affixed by its agent, with a blank space for the signature of the passenger. The fact that it was not signed by the plaintiff is immaterial. Quimby v. Rail

road Co., 150 Mass. 365, 23 N. E. Rep. 205, and cases there cited. It contained elaborate provisions in regard to the rights of the passenger on the voyage, and even went into such detail as to give the bill of fare for each meal in the day for every day of the week. No one who could read could glance at it without seeing that it undertook expressly to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination. In that particular it was entirely unlike the paste-board tickets which are commonly sold to passengers on railroads. In reference to this question the same rules of law apply to a contract to carry a passenger as to a contract for the transportation of goods. There is no reason why a consignor who is bound by the provisions of a bill of lading which he accepts without reading should not be equally bound by the terms of a contract in similar form to receive and transport him as a passenger. In Henderson v. Stevenson, ubi supra, the ticket was for tranportation a short distance-from Dublin to Whitehaven,-and the passenger was held not bound to read the notice on the back because it did not purport to be a contract, but a mere check given as evidence of his right to carriage. In later English cases it is said that this decision went to the extreme limit of the law, and it has repeatedly been distinguished from cases where the ticket was in a different form. Parker v. Railway Co., 2 C. P. Div. 416, 428; Harris v. Railway Co., 1 Q. B. Div. 515; Burke v. Railway Co., 5 C. P. Div. 1. The passenger in the last-mentioned case had a coupon ticket, and it was held that he was bound to know what was printed as a part of the ticket. Steers v. Steam-ship Co., 57 N. Y. 1, is in its essential facts almost identical with the case at bar, and it was held that the passenger was bound by the conditions printed on the ticket. In Quimby v. Railroad Co., ubi supra, the same principle was applied to the case of a passenger traveling on a free pass, and no sound distinction can be made between that case and the case at bar. We are of opinion that the ticket delivered to the plaintiff purported to be a contract, and that the defendant corporation had a right to assume that he consented to its provisions. All these provisions are equally binding on him as if he had read them. The contract being valid in England, where it was made, and the plaintiff's acceptance of it under the circumstances being equivalent to an express assent to it, and it not being illegal or immoral, it will be enforced here, notwithstanding that a similar contract made in Massachusetts would be held void as against public policy. Greenwood v. Custis, 6 Mass. 358; Forepaugh v. Railroad Co., 128 Pa. St. 217, 18 Atl. Rep. 503, and cases cited; In re Missouri S. S. Co., 42 Ch. Div. 326, 327; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. Rep. 469.

CORPORATIONS DEFECTIVE ORGANIZATION -PARTNERSHIP.-The effect of failure on the part of promoters of a corporation to comply with the statutory requirements of organization is considered by the Supreme Court of Illinois, in Bushnell v. Consolidated Ice Machine Co., 27 N. E. Rep. 596, where it is held that the State alone can complain of the exercise by a corporation of its franchise beyond the period for which it was organized,

and that under the provisions of Rev. Stat. Ill. ch. 32, that the certificate of complete organization shall after its issue by the secretary of State be filed in the office of the recorder of deeds in the county where the company has its principal office, and that then the corporation shall be deemed fully organized, even if corporate existence de jure depends on such filing, still, it having taken all other necessary steps, and elected officers, and carried on business for several years, would be a de facto corporation, and one who took part in its organization, and was elected and acted as its secretary and general agent, cannot treat it as a partnership, and compel his fellow-corporators to account to him on that basis. Wilkin, J., says:

But, assuming that a corporate existence de jure depends upon the filing of the certificate of complete organization in the office of the recorder of deeds of the county in which its principal office is located, and that the bill properly avers that it was not done in the case of the corporation in question, it by no means follows that it did not become a corporation de facto, as between the complainant and defendants. From the facts set up in the bill it clearly appears that there was an honest attempt by the incorporators to organize a corporation authorized by the laws of this State. · The necessary steps to perfect that organization were all taken as required by the statute, except that the final certificate was not recorded. It is shown by the bill that upon the issuing of that certificate its directors elected the proper officers, and proceeded to the transaction of business as a corporation, and continued to act as such until the filing of this bill-a period of more than five years. That these facts established a corporation de facto is settled by numerous decisions of this court. President, etc. v. Thompson, 20 Ill. 198; Rice v. Railroad Co., 21 Ill. 93; Baker v. Administrator, etc., 32 Ill. 79; Ramsey v. Insurance Co., 55 Ill. 311: Cincinnati, L. F. & C. R. Co. v. Danville & V. R. Co. 75 Ill. 113; Railway Co. v. Shires, 108 Ill. 617; Hudson v. Seminary, 113 Ill. 618. That plaintiff in error, if he had been sued by the "Consolidated Ice-Machine Company" on his subscription to its capital stock, could not have questioned its corporate existence on the grounds alleged in his bill, is directly settled by several of the above cited decisions.. It is equally clear that if during the time he was a member of said corporation it had been sued as such, neither he or any other of its members could have been heard to say that no such corporation existed. The general rule is that one who deals with a corporation as existing de facto is estopped to deny as against it that it has been legally organized. It is the settled rule in this State that the legal existence of a corporation de facto cannot be questioned collaterally. See cases supra, and Renwick v. Hall, 84 Ill. 162; People v. Trustees, 111 Ill. 171; Keigwin v. Commissioners, 115 Ill. 347, 5 N. E. Rep. 575. It seems impossible to find a reason for placing the complainant in this bill in a more favorable position to deny the existence of the corporation in question than a mere subscriber to its capital stock, or one who as a third party had dealt with it as a corporation, and we are of the opinion that he could not do so in this collateral

proceeding. He, however, not only seeks to question the legal organization of the corporation, but to have the same changed into a copartnership between himself and the other incoporators, and to compel the defendants to account to him as his copartners. "A partnership is never created between parties by implication or operation of law apart from an express or implied intention and agreement to constitute the relation." 1 Bates, Partn. § 3. In Phillips v. Phillips, 49 Ill. 437, Caton, C. J., said: "A partnership can only exist in pursuance of an express or implied agreement to which the minds of the parties have assented." This rule will not prevent the enforcement of liability against persons as partners when sued by third parties. "Parties may so conduct themselves as to be liable to third persons as partners when in fact no. partnership exists as between themselves. The pub lic are authorized to judge from appearance and professions, and are not absolutely bound to know the real facts; while the certain proof is positively known to the alleged parties to a firm." Phillips v. Phillips, supra. On this latter ground parties who have attempted to organize a corporation, but have failed to comply with the law so as to perfect their incorporation, may be held liable as partners to creditors, as in Bigelow v. Gregory, 73 Ill. 197. This liability rests on the doctrine of estoppel. When, however, even a cred-itor has dealt with the corporation as such, partnership liability cannot be enforced even though the corporation has not been legally organized. Tarbell v. Page, 24 Ill. 46, It is wholly unnecessary, however, in this case to determine when and under what circumstances third parties may proceed against incor-porators acting under a defective or imperfect organization, as individuals or copartners.

In this case the complainant shows by his bill that he was not only one of the incorporators of the com-pany he now seeks to question, but that he was upon its complete organization, elected secretary and general agent, and acted as such for several months prior to his alleged disability, during which time he was actively engaged in assisting to carry on its corporate business, and that, upon his being restored to health,. he still recognized its corporate existence, and sought to be restored to his rights therein. If the recording of the certificate in question was essential to the organization of the corporation there is nothing in this bill to show that it was not as much his duty to have it done as that of either of the incorporators. We are unable to perceive, then, upon what principle he can now compel those who, for anything appearing in thisbill, honestly supposed they were incorporated during all the time the business mentioned in the bill was being carried on, to account to him, upon the theory that. they were his copartners. In fact, if the allegation as to his mental condition at the time his stock was sold was omitted from the bill, it would strike any one as too clear for argument that he has failed to state a case entitling him to equitable relief; and it must, we think, be held that whether that fact, together with the allegation that his stock was sold without notice, and he ousted from all participation in the business of the company, would entitle him to his action for that alleged wrong, or to be restored to his former rights as a member of said corporation or not, no legal ground is shown by this bill for holding defendants liable to him as partners. There is nothing in the case of Flagg v. Stowe, 85 Ill. 166, when the facts of that case are considered as they appear in that report, and in Stowe v. Flagg, 72 Ill. 397, contrary to the view here expected. We have examined the numerous cases cited by counsel for plaintiff in error as giving support to the