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interstate commerce, does not exempt it from water stations, which is exempt from taxataxation by the state within whose limits it tion within the territories of the United is permanently located.

Id. States under the act of Congress of July 27, 6. A city charter forbidding taxation of 1866, does not mean the right of passage lands not divided into lots of 5 acres or less merely, but is real estate of corporeal qual. does not apply to a bridge erected over the ity, and the exemption includes all that is Ohio river within the city limits.

Id.

erected upon it. New Mexico V. United States Trust Co.

407 7. A stipulation in a grant to a bridge company by a city, that it shall not be con. 15. The exemption of the railroad right of strued 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

16. The designation of some railroad imof a national bank, but in reality upon all its provements by name and giving some of intangible property, is in violation of U. S. them a separate valuation does not invalid.

Id. Rev. Štat. $ 5219, which allows a tax only on ate their assessment as realty. the shares of stock in the names of share- Assessment. holders and the real estate of such a bank. 17. Previous notice of a hearing before Owensboro Nat. Bank v. Owensboro, 850 officers who make an assessment for taxes is Third Nat. Bank v. Stone,

1035 not necessary if there is notice of the deLouisville v. Third Nat. Bank,

1037

cision, with a right to appeal to a court and

be heard and offer evidence before the valuaFirst Nat. Bank v. Louisville, 1038 tion of the property for taxation is finally

9. A statute which requires the shares of fixed. Pittsburgh, C. C. & St. L. R. Co. v. national banks and of other incorporated Board of Public Works,

354 banks to be assessed at their true value in money, without any deduction of debts, but TELEGRAPHS. allows a deduction of debts existing in the See COMMERCE, 18. business of an unincorporated bank, does not make a discrimination against national TELEPHONES. banks, as its debts are in fact considered in

See also COMMERCE, 18. reaching the true value of its shares. First Nat. Bank v. Chapman,

669 A telephone company whose business is 10. The increase of the value of national the electrical transmission of articulate bank shares by reason of the bank franchises tied to the benefit of the act of Congress of

speech between different points is not entidoes not make the taxation of those shares at their true value amount to a discrimina. July 24, 1866 (U. S. Rev. Stat. si 5263– tion in favor of unincorporated banks, which 5268), respecting the use of post roads.

Richmond v. Southern Bell Teleph. & Teleg. have no franchise.

Id.
Co.

1162 11. Credits consisting of claims for labor or services do not constitute “moneyed capi. TENDER. tal” within the meaning of U. S. Rev. Stat. See USURY, 1. § 5219, respecting discrimination against na. tional banks.

Id. TERRITORIES. 12. Moneyed capital, within the meaning See ATTACHMENT; BONDS, 1; MUNICIof U. S. Rev. Stat. & 5219, prohibiting the PAL CORPORATIONS, 2. taxation of national banks at higher rates than other moneyed capital in the hands of

THEFT. individuals, does not include capital which

See LARCENY. does not come into competition with the busi. ness of national banks.

Id.

THOUSAND-MILE TICKET. Land grants. 13. Lands included in the grant to the

See CARBIERS, 3-5; CONSTITUTIONAL Northern Pacific Railroad Company by the

LAW, 26. act of Congress of July 2, 1864, are subject to state taxation for their value as agricul. TICKETS. tural lands, although they have not been pat

See CARRIERS,

3-5. ented to the railroad company and their mineral or nonmineral character is under inves- TIMBER. tigation under the provisions of the act of See PUBLIO LANDS, 11, 12 Congress of February 26, 1895, chap. 131. Northern P. R. Co. v. Myers,

564

TOWN SITE. Exemptions. 14. The right of way for 100 feet each side

See PUBLIC LANDS, 8. of a railroad, including all necessary grounds for station buildings, workshops, machine TRAFFIC ASSOCIATION. shops, switches, side tracks, turntables, and See CONSPIRACY, 5.

9. Contributory negligence od • person See CONFISCATION, 3, 4; CONSTITUTIONkilled on a railroad crossing is so conclusively AL LAW, 1; EXTRADITION; PRIVATE shown that there is no question for the jury, LAND CLAD48, 8, 10.

where the undisputed facts are that he was

familiar with the crossing and could not TRIAL.

have failed to see the train if he had looked Question for Jury, see also ADVERSE for it while 40 feet distant from the track, POSSESSION.

but drove slowly upon the track without apSee also APPEAL AND ERROR, 2; CONSTI. pearing to see or look for the train until just TUTIONAL LAW, 10, 27; CRIMINAL LAW, as it struck him. Northern P. R. Co. v. 1; JUDGMENT, 10.

Freeman,

1014 Instructions. 1. Trial by jury under the Constitution means a trial bý a jury of twelve men in the struction which assumes the credibility of a

10. The modification of a requested inpresence and under the superintendence of witness, by stating that the weight to be a judge empowered to instruct them on the given his testimony is a question for the law and to advise them on the facts, and (ex: jury, does not improperly discriminate cept on acquittal of a criminal charge) to

1147 set aside their verdict, if, in his opinion, it against him. Davis v. Coblens, is against the law or the evidence. Capital in a prosecution under U. $. Rev. Stat..

11. In answering a question of the jury Traction Co. v. Hof,

873

5208, for unlawful certification of a check, 2. A trial by a jury of twelve men before when they come in after consultation and a justice of the peace, having been unknown ask for the law as to certification when no in England or America before the Declara money appears to the credit of the drawer tion of Independence, is not a trial by jury, and the court assumes to answer it by refwithin the meaning of U. S. Const. 7th erence to that section, its failure to explain Amend.

Id.

the meaning of "wilful violation" as used in 3. A common-law trial by jury in a court § 13 of the act of Congress of 1882 when deof record upon appeal from a judgment of a fendant's counsel requests it is error which justce of the peace in a civil action after giv: is not cured by mere reference to the original ing bond with surety to prosecute the appeal charge. Spurr v. United States, 1150 and to abide the judgment of the appellate court, is sutficient to satisfy the constitu- TROVER. tional right of trial by jury.

Ia.

See also BANKS, 1; PUBLIO LANDS, 11. 4. The right of trial by jury is not un

The rule that a mere trespasser cannot duly obstructed by enlarging the civil juris; defeat the right of the plaintiff in trover diction of justices of the peace to $300, and by showing a superior title in a third perrequiring every appellant to give security to pay and satisty the judgment of the appel: connecting himself with such third person,

son, without showing himself in privity or late court in order to obtain a trial by a has no application to cases wherein the common-law jury on appeal.

Id.

plaintiff has shown no prima facie right tu 5. A statutory proceeding before a spe bring the action. United States v. Loughcial tribunal, to determine claims against a rey,

420 city which has no legal obligation, is not a suit at common law, within the meaning of TRUSTS. U. S. Const. 7th Amend. Guthrie Nat. Bank See CORPORATIONS, 4; EQUITY, 2, 3; v. Guthrie,

796 TRIAL, 6; WATERS, 6. Questions for court or jury.

UNDUE INFLUENCE. 6. The question of the acceptance of a

See EVIDENCE, 8; GIFT. trust by creditors may be left to the jury, notwithstanding their positive oral testi- UNITED STATES. mony to the acceptance, where this question

Claim against, see CLAIMS. is closely connected with a question of their

See CANALS; Dams; WATERS, 2, 10. participation with the debtor in defrauding other creditors. Sonnentheil v. Christian UNSEAWORTHINESS. Moerlein Brew. Co.

492

See SHIPPING, 4. 7. The knowledge of local creditors who

USURY. have accepted a deed of trust, that it is

See also BILLS AND NOTES, 2; COURTS, fraudulent, may be left to the jury, where

13. the debtors are shown to have remained in practical control of the business, obtained 1. One seeking the affirmative aid of credit on false representations to commercial equity for relief against an alleged usurious agencies, and made large purchases of goods agreement must himself do equity by tenderon credit just before an assignment, while ing or_offering payment of what is justly the rumors of their insolvency could hardly due. Hubbard v. Tod,

246 have escaped the ears of such creditors. Id.

2. An offer to repay the money loaned is 8. The authority to act for another party not necessary in order to obtain the cancelais a question for the court to decide, if only tion of a contract for usury under Minn. Gen. one ínforence can be drawn from the evi. Stat. 1894, $ 2217, providing that such condence, and that is want of authority. Wash. tracts shall be canceled and given up. Misington Gaslight Co. v. Lansden, 543 | souri, 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.

Id VEIN.

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.

Id.

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.

Id WATERS.

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.

Id. WILLS.

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,

675

1269 MAR 3 - 1916

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