The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-07

whatever. In the second place, if there
had been, so far as this transac-
ton was concerned, and especially in view
of the decision of the Supreme Court of
the State itself on the Thurman and other
acts, quo ad hoe, this is not corporation
of the State of California. Furthermore,
that by the law of the State of California
this limitation and condition entered into
and was part of any contract which can
be brought out of it, so far as the stock
holders of the corporation of California
are concerned. If there was a liability at
all it accrued in the year 1863, in January.
That was the time when this statutory
liability, if it ever accrued, did accrue.
That liability cannot now be enforced by
any proceeding instituted in the year
1896"
Judge CARRIER stated that there was one
other proposition he wished to make and
that was that it was well settled that the
statutory liability of corporation may be
waived by an express written agreement,
by an oral agreement or by the conduct
of the parties.
"Right here, in this case" he continued,
"for the reasons l have already set forth,
there was ample evidence of the waiver on
the part of the United States of any liabil-
ity. The conduct of the parties demon
strates to the mind the utter absence of
any intention TO insist upon this liability,
| and the waiver and abandonment of it as
much as would the insertion of that in
| tention In the statute ITSELF
| In answer to a question by Judge Nc
! Kisick, Wilson Russell stated that all the
points which would be raised by the re-
spondent had been set forth by Judge Gar
Der.
A recess until o'clock was taken, when
Judge McKisick Immediately began his ar
gument for the Government against the
demurrer.
an IL l.
shall proceed TO argue the case upon my
theory of it, which is altogether different
in many respects from that of the gentle
man who has just addressed you; and dur
| ing the course of my argument l shall
attempt to answer all the points he has
| raised.
''The first question in my mind to be
settled here is as to whether we are to pro-
coed under the constitution of 1849 and
section II of the act of 1861, or under the
constitution of 1879 and section 800 of the
Civil Code. The second question is as to
whether there is case exclusively cogniza-
| BILE by law, or whether it is properly
brought by bill in equity.
The third question is. Ii properly
brought by bilf in equity, do the facts
alleged in the bill entitle the complainant
to any relief against the respondents
''The fourth question is, Do the facts
alleged in the bill constitute contract OF
Indebtedness by the corporation to the
| United States2
THE fifth question is, Is the remedy by
| forfeiture exclusive?
THE sixth question is. If the remedy by
forfeiture is not exclusive, had the com
plainants presented a case by their bill
which the court can enforce?
''The seventh question is, Are the com
plainants barred by laches2
| The eighth question is, Are they barred
by the statue of Iimitations2"
After this opening statement Judge Nc
\ Kisick unrolled a formidable looking
bunch of papers, the first few sheets Of
which contained in printed columns the
constitution of 1849 and 1879, section IL OF
the act of 1861 and section 322 of the Civil
Code. He asked permission of the co uri
to read these, which was granted, and fol
half an hour he plodded steadily through
the, almost endless procession of words
and after some uncomplimentary refer.