interstate commerce, does not exempt it from taxation by the state within whose limits it is permanently located. Id.

6. A city charter forbidding taxation of lands not divided into lots of 5 acres or less does not apply to a bridge erected over the Ohio river within the city limits. Id.

water stations, which is exempt from taxation within the territories of the United States under the act of Congress of July 27, 1866, does not mean the right of passage merely, but is real estate of corporeal quality, and the exemption includes all that is erected upon it. New Mexico v. United States Trust Co. 407 15. The exemption of the railroad right of

7. A stipulation in a grant to a bridge company by a city, that it shall not be construed as waiving the right of the city to col-way given by 2 of the act of Congress of lect taxes on the bridge itself and all appur- July 27, 1866, granting lands to the Atlantic tenances thereto, saves not only the right & Pacific Railroad Company, does not extend which the city then has to impose taxes, but to the right of way acquired under § 7, or any right that may subsequently be lawfully independently of that section from private conferred upon it. Id. owners. New Mexico v. United States Trust Co. 1079

On national banks.

8. A state tax nominally on the franchise of a national bank, but in reality upon all its intangible property, is in violation of U. S. Rev. Stat. § 5219, which allows a tax only on

the shares of stock in the names of share-
holders and the real estate of such a bank.
Owensboro Nat. Bank v. Owensboro,
Third Nat. Bank v. Stone,
Louisville v. Third Nat. Bank,
First Nat. Bank v. Louisville,


9. A statute which requires the shares of national banks and of other incorporated banks to be assessed at their true value in money, without any deduction of debts, but allows a deduction of debts existing in the business of an unincorporated bank, does not make a discrimination against national banks, as its debts are in fact considered in reaching the true value of its shares. First Nat. Bank v. Chapman, 669

17. Previous notice of a hearing before 850 officers who make an assessment for taxes is 1035 not necessary if there is notice of the decision, with a right to appeal to a court and 1037 be heard and offer evidence before the valua

tion of the property for taxation is finally fixed. Pittsburgh, C. C. & St. L. R. Co. v. Board of Public Works,


10. The increase of the value of national bank shares by reason of the bank franchises does not make the taxation of those shares at their true value amount to a discrimination in favor of unincorporated banks, which

have no franchise.


16. The designation of some railroad improvements by name and giving some of them a separate valuation does not invalidate their assessment as realty.






See also COMMERCE, 18.

A telephone company whose business is the electrical transmission of articulate speech between different points is not entitied to the benefit of the act of Congress of July 24, 1866 (U. S. Rev. Stat. §§ 52635268), respecting the use of post roads. Richmond v. Southern Bell Teleph. & Teleg. 1162


11. Credits consisting of claims for labor or services do not constitute "moneyed capital" within the meaning of U. S. Rev. Stat. § 5219, respecting discrimination against national banks. Id.

12. Moneyed capital, within the meaning of U. S. Rev. Stat. § 5219, prohibiting the taxation of national banks at higher rates than other moneyed capital in the hands of individuals, does not include capital which does not come into competition with the business of national banks. Id.

Land grants.

13. Lands included in the grant to the Northern Pacific Railroad Company by the act of Congress of July 2, 1864, are subject to state taxation for their value as agricultural lands, although they have not been patented to the railroad company and their mineral or nonmineral character is under investigation under the provisions of the act of Congress of February 26, 1895, chap. 131. Northern P. R. Co. v. Myers, 564


14. The right of way for 100 feet each side of a railroad, including all necessary grounds for station buildings, workshops, machine shops, switches, side tracks, turntables, and


See USURY, 1.






LAW, 26.


See CARRIERS, 3-5.


See PUBLIC LANDS, 11, 12.


See PUBLIC Lands, 8.



9. Contributory negligence of a person killed on a railroad crossing is so conclusively shown that there is no question for the jury, where the undisputed facts are that he was familiar with the crossing and could not have failed to see the train if he had looked for it while 40 feet distant from the track, but drove slowly upon the track without appearing to see or look for the train until just as it struck him. Northern P. B. Co. v. Freeman, Instructions.


1. Trial by jury under the Constitution means a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (ex-given his testimony is a question for the jury, does not improperly discriminate against him. Davis v. Coblens,

10. The modification of a requested instruction which assumes the credibility of a witness, by stating that the weight to be


cept on acquittal of a criminal charge) to
set aside their verdict, if, in his opinion, it
is against the law or the evidence. Capital

in a prosecution under U. S. Rev. Stat.
11. In answering a question of the jury

Traction Co. v. Hof,

5208, for unlawful certification of a check, when they come in after consultation and ask for the law as to certification when no money appears to the credit of the drawer and the court assumes to answer it by reference to that section, its failure to explain the meaning of "wilful violation" as used in § 13 of the act of Congress of 1882 when defendant's counsel requests it is error which is not cured by mere reference to the original charge. Spurr v. United States,




Question for Jury, see also ADVERSE



2. A trial by a jury of twelve men before justice of the peace, having been unknown in England or America before the Declaration of Independence, is not a trial by jury, within the meaning of U. S. Const. 7th Amend.


3. A common-law trial by jury in a court of record upon appeal from a judgment of a justce of the peace in a civil action after giving bond with surety to prosecute the appeal and to abide the judgment of the appellate court, is sufficient to satisfy the constitu-TROVER. tional right of trial by jury. Id.

4. The right of trial by jury is not unduly obstructed by enlarging the civil jurisdiction of justices of the peace to $300, and requiring every appellant to give security to pay and satisfy the judgment of the appellate court in order to obtain a trial by a common-law jury on appeal.


5. A statutory proceeding before a special tribunal, to determine claims against a city which has no legal obligation, is not a suit at common law, within the meaning of U. S. Const. 7th Amend. Guthrie Nat. Bank v. Guthrie, 796

7. The knowledge of local creditors who have accepted a deed of trust, that it is fraudulent, may be left to the jury, where the debtors are shown to have remained in practical control of the business, obtained credit on false representations to commercial agencies, and made large purchases of goods on credit just before an assignment, while the rumors of their insolvency could hardly have escaped the ears of such creditors. Id.

See also BANKS, 1; PUBLIC LANDS, 11.

defeat the right of the plaintiff in trover The rule that a mere trespasser cannot by showing a superior title in a third person, without showing himself in privity or connecting himself with such third person, has no application to cases wherein the plaintiff has shown no prima facie right to bring the action. United States v. Loughrey,



Questions for court or jury.

6. The question of the acceptance of a trust by creditors may be left to the jury, notwithstanding their positive oral testimony to the acceptance, where this question is closely connected with a question of their participation with the debtor in defrauding other creditors. Sonnentheil v. Christian UNSEAWORTHINESS. Moerlein Brew. Co. 492


TRIAL, 6; Waters, 6.


Claim against, see CLAIMS.



See also BILLS AND NOTES, 2; COURTS, 13.

1. One seeking the affirmative aid of equity for relief against an alleged usurious agreement must himself do equity by tendering or offering payment of what is justly due. Hubbard v. Tod,


8. The authority to act for another party is a question for the court to decide, if only one inference can be drawn from the evidence, and that is want of authority. Washington Gaslight Co. v. Lansden, 543

2. An offer to repay the money loaned is not necessary in order to obtain the cancelation of a contract for usury under Minn. Gen. Stat. 1894, § 2217, providing that such contracts shall be canceled and given up. Missouri, K. & T. Trust Co. v. Krumseig, 474

3. A contract under which $1,970 is ac- of waters in respect to which the United tually received by a borrower who gives ten States has jurisdiction, within the meaning notes of $360 each, payable in monthly in- of the prohibition of the act of Congress of stalments of $30 each, with a proviso that September 19, 1890, does not mean simply in case of his death all the debt remaining an obstruction in the navigable portion of unpaid shall be released if he is not then in the stream, but includes anything, wherever default,-is a scheme or colorable device to done or however done, which tends to destroy cover usury.

Id. the navigable capacity of one of the naviga ble waters of the United States.


Rights of public. See MINES, 4.

6. The dominion and propriety in the Po

tomac river and the soil under it passed to VERDICT.

Lord Baltimore by grant from Charles I. in See CBIMINAL LAW, 2; JUDGMENT, 10. 1632 as part of the prerogative rights an

nexed to the political powers conferred on VESTED RIGHTS.

him, and were intended to be held by him See APPEAL AND ERROR, 3.

in trust for the common use of the communi.

ty about to be established for navigation and WAGES.

fishery, and not as his private property to be See CONSTITUTIONAL LAW, 14, 22.

parceled out and sold for his individual

emolument. Morris v. United States, 946 WAIVER.

Land under water. See ACTION OR SUIT, 3.

7. Lands lying beneath the waters of the WAR.

Potomac and within the limits of the Dis. See BLOCKADE; GUARDIAN AND WARD.

trict of Columbia were not subject to sale

by the Land Department under the general WAREHOUSEMEN.

resolution of Congress of February 16, See CARRIERS, 1; CLOUD ON TTILE, 2.

1839, authorizing patents for vacant lands,

but providing that this should not affect WARRANT.

land oeded to or acquired by the United See EQUITY, 4. States for public purposes.


8. Subsequent recession of the waters of WAR REVENUE.

the Potomac from land under water at the See INTERNAL REVENUE, 2.

time of the passage of the general resolution

of Congress of February 18, 1839, providing WATER POWER.

for patents for vacant lands, will not bring See CANALS. suah lands within the scope of the statute.


Riparian rights. See also APPEAL AND ERROR, 4; BOUN.

9. Riparian rights do not attach to lands DARIES, 2, 3; CONSTITUTIONAL LAW, 24; acquired by the Chesapeake & Ohio Canal CONTRACTS, 11, 13; COURTS, 17; Dams; Company under acts of Congress authoriz EMINENT Domain, 2; EVIDENCE, 6, 9; ing the location of the canal along the bank INJUNCTION, 4; MUNICIPAL CORPORA of the Potomac river within the District of TIONS, 1; PLEADING, 2; STATUTES, 6. Columbia.

Id. 1. The mere fact that logs, poles, and Water power. rafts are floated down a stream occasionally 10. The right of the state to lease such and in times of high water does not make portion of the water power reserved as it it a navigable river. United States v. Rio does not require for the use of a penitentiary Grande Dam & I. Co.

1136 is included in the rights reserved to the state 2. A state cannot by its legislation de under S. C. act December 24, 1887, authorizstroy the right of the United States as the ing the transfer of a canal, but providing owner of lands bordering on a stream, to that the state shall be furnished, free of the continued flow of its waters, in the ab- charge, 500 horse-power of water power sence of specific authority from Congress. “for the use of the penitentiary and for

Id. other purposes," and declaring that "the 3. The power of the general government right of the state to the free use of the said to secure the uninterrupted navigability of 500 horse power shall be absolute." Columall navigable streams within the limits of bia Water Power Co. v. Columbia Electrie the United States is within the jurisdiction Street R. Co.

521 of the general government over interstate Water supply and rates. commerce and its natural water highways. 11. The inadequacy of the supply of water

Id. which renders a contract by a city with a 4. An appropriation of the entire unap: water company voidable does not justify propriated flow of a river above the point of the city in erecting waterworks of its own navigability so as seriously to affect its nav. in violation of the express terms of the conigability further down is not authorized by tract, without first having the contract anthe acts of Congress which permit appropri- nulled. Walla Walla v. Walla Walla Water ation of water aid of mining industries Co.

341 and for the reclamation of arid lands. Id.

12. An ordinance granting a right to a 5. Obstructions to the navigable capacity' water company for twenty-five years to lay

and maintain water pipes for the purpose WITNESSES.
of furnishing the inhabitants of a city with See also CRIMINAL LAW, 1.
water does not create a monopoly, or prevent
the granting of a similar franchise to an.

The extent and manner of the cross. other company, especially when there is an examination of a witness outside of the matexpress stipulation that the city shall not ter connected with his examination in chief erect waterworks of its own, but no stipula is within the discretion of the court. Davis tion against granting another franchise. v. Coblens,

1147 Id. 13. An opportunity to be heard upon the WRIT AND PROCESS. question of water rates fixed by ordinance See also GARNISHMENT, 1. is not denied where they are conferences between the officers of the corporation whose 1. A foreign insurance company availing rates are fixed and the municipal authori: itself of the permission to do business withties, although these officers are not allowed in the state under the provisions of Tenn. to be present at the final meeting when the act 1875, giving permission therefor on conordinance is passed. San Diego Land & T. dition that the company appoint the secreCo. v. National City,

1154 tary of state as its agent to receive process 14. The losses from distribution of water does not thereby create a contract with the to consumers outside of the city are not to state which will prevent the state from be considered in fixing the rates for con- thereafter passing another statute in regard sumers within the city by ordinance. Id. to the service of process, which will be ap

plicable to such company. Connecticut Mut.

L. Ins. Co. v. Spratley, WHARVES.

569 See also CARRIERS, 1, 2; CLOUD ON

2. Service of process upon an agent of a TITLE, 2; EMINENT DOMÁIN, 2; Evi foreign corporation doing business in a state DENCE, 9.

must be upon some agent so far representing 1. A wharfinger is bound to exercise rea

the corporation in the state that he may. sonable diligence in ascertaining the condi; such process in behalf of the corporation,

properly be held in law an agent to receive tion of the berths at his wharves, and, if but an express authority to receive process there is any dangerous obstruction therein, is not always necessary.

Id. to remove it or give due notice of its existence to vessels about to use the berths.

3. A nonresident agent of a foreign in. Smith v. Burnett,

756 surance company who comes into a state to 2. The right to erect and maintain per compromise it within stated terms, leaving

investigate a claim for a loss, with power to manent wharves could not be acquired under him a certain aiscretion as to the amount, Md. act December 19, 1791, authorizing li when he is not a mere special agent for that censes for wharves in the waters of the Potomac and the eastern branch to be given by

particular case but is employed generally, commissioners "until Congress shall exercise sufficiently represents the company for the

on a salary, to act in all cases of that kind, jurisdiction and government within said ter service of process in an action on the claim ritory.Morris v. United States, 946

he is investigating, where the company is doing business within the state.


4. A foreign insurance company which as1. A codicil which makes the testator's sumes to withdraw from a state in which it intent reasonably clear may be given effect has been issuing policies, and thereafter rethough it is not so free from ambiguity a3 fuses to take any new risks or issue any new the provisions of the will which are affected policies therein, but continues to collect by it. Home for Incurables v. Noble, premiums on its outstanding policies and

486 to pay losses arising thereunder, is still do2. A codicil revoking, a "bequest” to a ing business within the state within the home for incurables, and bequeathing to a meaning of a statute respecting service of friend "the $5,000 (heretofore in my will be process upon an agent.

Id. queated to said Home for Incurables)," does

7. Service of summons upon the general not roke the provision in the will by which all the residue and remainder of the estate, manager of a foreign corporation is sufficient of whatever kind, is given (using the words service upon the company, under Ariz. Code "devise and bequeath”) to the Home for In- Civ. Proc. g 704, as the provisions of 88 348, curables, but does revoke a bequest of 712, 713, providing specially for service on $5,000 to a certain hospital, which is the such corporations wnen they have ceased to only bequest of that amount in the will, do business in the state, or have no local or both these gifts being declared to be for the official agent appointed, are not intended to establishment of beds in memory of a son of be exclusive. Henrietta Min. & M. Co. v. the instatrix. Id. Johnson,


1269 MAR 3 - 1916

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