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posed upon the owner by the Harter act | SPECIFIC PERFORMANCE. (Feb. 13, 1893) as a condition precedent to Public policy precludes a decree for the the enjoyment of the benefits of that act specific performance of a covenant in a deed in limiting the owner's liability as provided of a railroad's right of way not to build or therein. Martin v. The Southwark, 65 establish a depot within 3 miles of the one

2. Stipulations in a bill of lading cannot therein stipulated for,--especially where the relieve a carrier from the discharge of his erection of the structure in dispute has been initial duty under the Harter act to use

ordered by the state railroad commission. due diligence to furnish a seaworthy vessel. Beasley v. Texas & P. R. Co.

274 Id. STAMP TAX. Master's duty to injured seaman.

Recovery Back of Illegal Taxes, see IN3. The master of a sailing vessel bound

TERNAL REVENUE, 6. for San Francisco is not chargeable with

As Direct Tax, see TAXES, 9. fault in failing to put back 480 miles from

STATE. the place of accident to Port Stanley, in the East Falkland islands, to secure surgical at

Regulation of Interstate Commerce, see

COMMERCE, 3-15. tendance for a seaman who was disabled by the accident while the vessel was rounding

Taxation of Property in Hands of Trus

tee in Bankruptcy, see TAXES, 3. Cape Horn, although, with the winds then

Taxation of Liquors in Bonded Ware. prevailing, it would have been possible to

houses, see Taxes, 4. reach that port in three or four days, where

Taxation of Imports, see Taxes, 4. the return from the port to the place of the Taxation of Personal Property of accident, in view of the head winds, might

Nonresident, see TAXES, 6–8. have taken as many weeks. The Iroquois,

Jurisdiction of Supreme Court over 955

Controversies between States, see 4. The obligation of the master of a sail

SUPREME COURT OF UNITED STATES. ing vessel bound for San Francisco, toward a seaman disabled by an accident while the

No waiver by the state of its constituship was rounding Cape Horn, does not re

tional immunity from a suit in a Federal quire him to stop at the Evangelist islands, court to set aside the title of the state to at the western end of the Straits of Magel- lands sold for unpaid taxes can be gathered lan, which could have been reached by sail from the provision of Mich. Pub. Acts 1899, ing one or two days out of the vessel's act No. 97, for making the auditor general course, where the only building there was a

a party defendant to all actions or proceedlighthouse from which a small steamer was

ings to set aside a sale for delinquent taxes accustomed to put out to passing vessels in on lands held as state tax lands, or which case a signal for relief was hoisted, and have been sold as such, or which have been nothing could be done there except, possibly, sold at annual tax sales, since the statute to place the injured man upon a steamer makes such requirements with reference to bound north to Valparaiso or east to Sandy procedure and costs as to indicate that the Point, near the middle of the straits. Id.

legislature had in mind only proceedings in

the state courts. Chandler v. Dix, 1129 5. The failure of the master of a sailing vessel bound for San Francisco to put into STATE COURTS. San Carlos or Ancud to secure surgical at- Review of Decisions of, in Federal Sutendance for a scaman who was disabled in

preme Court, see APPEAL AND ERan accident while the vessel was rounding

ROR, II. b, 2, 55, 63, 70–80, 85, 86. Cape Horn is not negligence, since these are Conclusiveness of Decisions of, in Fednot harbors at which vessels from the At

eral Courts, see APPEAL AND EBlantic and Pacific ports are in the habit of

ROB, 70–80; COURTS, 19–21. stopping, and while the master was apprised Change of Decision by, as Impairment by his charts of their existence, it might

of Obligation, see CONTRACTS, 4. well be that he was ignorant of their popu- Enjoining Proceedings in, see INJUNOlation and surgical facilities.


TION, 4.

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Contributory Negligence of Pedestrian,


As Fellow Servant of Fireman,


State Taxation of, as Affecting Inter-

state Commerce, see COMMERCE, 11,


Implied Repeal, see Navy, 2.
Validity of Territorial Legislation, seo

1. Contemporaneous construction is




'available aid in construing a statute only treaty with China of December 8, 1894 (28 where the language of such statute is ambig. Stat. at L. 1210), since art. 5 of that treaty uous, and susceptible of two reasonable in-contains an express reference to the requireterpretations. Houghton v. Payne, 888 ment of registration of the acts of 1892 and

2. The title of an act cannot be resorted to 1893, and states that the Chinese governin aid of its construction where the act is ment will not object to the enforcement of free from doubt or ambiguity. Cornell v.

those acts.

Id. Coyne,

504 3. The title of an amendatory state stat. STOCKHOLDERS. ute, which designates the particular sections Validity of Transfer of Shares of Na. of the Code of Civil Procedure which it pur

tional Bank Stock, see CORPORAports to amend, satisfies a constitutional re

TIONS, 2. quirement that every act shall embrace but Liability of Pledgee of Bank Stock 48, one subject, which subject shall be expressed

see CORPORATIONS, 4. in its title. Ross v. Aguire,

Limitation of Actions in Suit to En4. An invalid retrospective effect is not

force Liability of, see LIMITATION

OF ACTIONS, 1-3. given to the provision of the act of August 15, 1894 (28 Stat. at L. 286, 305, chap. 290), authorizing Indians claiming to be entitled STREET RAILWAYS. to an allotment of land to prosecute, in the Damages for Breach of Covenant to proper Federal circuit court, any action in

Run Cars, see DAMAGES, 3. relation to their right thereto, by construing Regulation of Rates as Impairment of such act to include a suit by an Indian to ob

Contract Obligation,

CONtain an allotment to which she claims she

TRACTS, 16; MUNICIPAL CORPORAwas, at the time of the passage of such act,

TIONS, 4. entitled, under the allotment act of March Injunction to Restrain Municipal Re3, 1885 (23 Stat. at L. 340, chap. 319), and

duction of Rates, see Equity, 1. to have canceled the alleged improper allot- Award of Franchise for, see MUNICIPAL ment of such land to another. Hy-Yu-Tse

CORPORATIONS, 3. Mil-Kin v. Smith,

1039 Renewal of Franchise, see MUNICIPAL

CORPORATIONS, 5. 5. No repeal of the provisions of the act

Instructions in Actions for Negligence of May 5, 1892 (27 Stat. at L. 25, chap. 60, U. S. Comp. Stat. 1901, p. 1319), § 3, ini

of, see TRIAL, 7. 8. posing on Chinese the burden of establishing

SUBCONTRACTOR. their right to remain in the United States, was effected by the act of April 29, 1902 (32

Validity of Legislation Giving Lien to, Stat. at L. 176, chap. 641), § 1, continuing

see CONSTITUTIONAL LAW, 9. all laws then in force so far as not incon. sistent with treaty obligations, on the theory

SUBPONA. that the former section was inconsistent Clerk's Charges for Issuing, see CLERKS, with the treaty with China of December 8,

3. 1894 (28 Stat. at L. 1210), art. 4, giving the Chinese the rights of citizens of the most SUGAR REFINING. favored nation, since the treaty itself in art. Excise Tax on, see INTERNAL REVENUE, 6 expressly refers to the act of 1892, as

1-3. amended by the act of November 3, 1893 (28 Stat. at L. 7, chap. 14, U. S. Comp. Stat. SUPREME COURT OF UNITED 1901, p. 1322), and states that the Chinese STATES. government will not object to the enforce

The original jurisdiction of the Federal ment of those acts. Ah How v. United Supreme Court, under U. S. Const. art. 3, § States,

6192, over "controversies between two or more 6. The provisions for Chinese registration states,” extends to a suit by the state of made by the act of May 5, 1892 (27 Stat. at South Dakota as the donee of the holders of L. 25, chap. 60, U. S. Comp. Stat. 1901, p. certain bonds issued by the state of North 1319), § 6, as amended by the act of Novem- Carolina, and secured by a mortgage of rail. ber 3, 1893 (28 Stat. at L. 7, chap. 14, U. S. road stock belonging to that state, to compel Comp. Stat. 1901, p. 1322), were not re-payment of the bonds and a subjection of the pealed by the act of April 29, 1902 (32 Stat. mortgaged property to the satisfaction of at L. 176, chap. 641), g 1, continuing all the debt. South Dakota v. North Carolina, laws then in force so far as not inconsistent

448 with treaty obligations, on the theory that SURETY. such section was inconsistent with the See PRINCIPAL AND SURETY.

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2. The Federal Constitution is not violat Lien of Terminal Carrier for Duties ed by regulations promulgated by the Secre Paid, see LIENS, 1, 2.

tary of the Interior for the enforcement and 1. The omission from the tariff act of collection of the annual privilege or permit 1897, 1 638 (30 Stat. at L. 200, chap. 11, u. tax on live stock owned or held by nonciti. 8. Comp. Stat. 1901, p. 1686), of the provi- zens within the territory of the Chickasaw sions of prior tariff acts for the free entry Nation, imposed by Chickasaw legislation of casts, was not intended to prevent the which had received the approval of the gove free entry of such casts as also come within ernor of such nation and the sanction of the the designation of "casts of sculpture” President of the United States, made by the which, under | 649, are entitled to free entry act of June 28, 1898, § 29 (30 Stat. at La where specially imported, in good faith, for 505, chap. 517), a condition of its validity. the use and by the order of any society in

Id. corporated or established solely for religious, What taxable generally. philosophical, scientific, educational, or lit. 3. Property in the hands of a trustee in erary purposes. Benziger v. United States, bankruptcy is not exempted from liability to

331 state taxation by the bankruptcy act of July 2. Plaster casts of clay models, though 1, 1898 (30 Stat. at L. 548, chap. 541, U. Š. painted and gilded and produced in unlimit-Comp. Stat. 1901, p. 3418). Swarts v. Ham.

1060 ed quantities, are "casts of sculpture” which, mer, under the tariff act of 1897, 1 649 (30 Stat. 4. The taxation of liquors in bonded ware at I.. 151, 201, chap. 11, U. S. Comp. Stat. houses within the state, provided for by Md. 1901, pp. 1626, 1687), are entitled to free Laws 1892, chap. 704, as amended by laws entry where specially imported, in good 1900, chap. 320, under which the proprietors faith, for the use and by the order of any of such warehouses were required to pay the society incorporated or established solely for taxes, and were given a lien on the property religious, philosophical, scientific, education therefor, is within the powers of the state, al, or literary purposes.

Id. despite the facts that there is no specific

provision giving the proprietor who pays the TAXES.

taxes a right to recover interest thereon, Appeal in Case Involving Question of, that, under Federal legislation, distilled

see APPEAL AND ERROR, 7, 33, 34, spirits may be left in a warehouse for sev. 38, 52

eral years, and that for spirits so in bond As Affecting Interstate Commerce, see negotiable warehouse receipts have been isCOMMERCE, 8-15. sued. Carstairs v. Cochran,

596 Excise on Sugar Refining, see INTERNAL

5. Goods brought into one state from an. REVENUE, 1-3. On Filled Cheese Manufactured for Ex- of U. S. Const. art. 1, § 10, 1 3, forbidding

other are not imported within the meaning port, see INTERNAL REVENUE, 4, 5.

state taxation of imports, and are, therefore, Discrimination in Merchants' Tax, see

though still in the original packages, subCONSTITUTIONAL LAW, 29.

ject to state taxation after they have Uniformity in Lincense Fees, see Ex- reached their destination and are held in the CISE.

state for sale. American Steel & W. Co. v. Contract Exemption from Taxation, see Speed,

538 CONTRACTS, 7, 8.

Property of nonresident.
Injunction against Illegal Taxation, see

6. The taxation of credits arising out of
Due Process of Law in Foreclosure of cal agent of a foreign corporation, who re-

loans on collateral security made by the loTax Lien, CONSTITUTIONAL

tains the collateral, and, as evidence of the LAW, 22.

indebtedness, takes the customer's so-called For Public Improvement, see PUBLIC

check, which is regarded as an overdraft, upIMPROVEMENTS.

on which the custoiner is charged interest, 1. Chickasaw legislation imposing an an- and which is finally sent to the home office, nual privilege or permit tax on live stock to which the money, when repaid, is remitowned or held by noncitizens within the lim- ted by an exchange transaction unless reits of the Chickasaw Nation, which has re-loaned by the local agent to other parties,-ceived the approval of the governor of such is authorized by the provision of La. Acts nation and the sanction of the President of 1898, No. 170, § 7, for the taxation of credthe United States, made by the act of June its arising from business done in the state 28, 1898, 29 (30 Stat. at L. 505, chap. at the business domicil of a nonresident own517), a condition of its validity, is not re- his agent or representative. State Board pugnant to the Federal Constitution. Mor- of Assessors v. Comptoir National D'Esris v. Hitchcock, 1030' compte de Paris,




7. A state ie not forbidden by the Federal | TERRITORIES. Constitution to tax credits arising out of Territorial Legislation for Discharge of loans on collateral security made by the local

Motion for New Trial as Legislaagent of a foreign corporation, who retains

tive Assumption of Judicial Functhe collateral, and, as evidence of the indebt

tion, see CONSTITUTIONAL LAW, 2. edness, takes the customer's so-called check,

The grant by Congress of common-law juwhich is regarded as an overdraft, upon risdiction to the Arizona courts, made by which the customer is charged interest, and U. S. Rev. Stat. $8 1868, 1908, did not prewhich is finally sent to the home office to vent the enactment of Ariz. Rev. Stat. 1887, which the money, when repaid, is remitted 1837, which discharges a motion for a new by an exchange transaction unless reloaned trial by operation of law if not acted upon by the local agent to other parties. Id.

at the same term, especially in view of the 8. Personal property owned by a nonresi- provision of U. S. Rev. Stat. § 1866, that dent express company and situated outside the jurisdiction given by $ 1908 “shall be the state cannot be taken into account in limited by law." James v. Appel, 377 fixing the value, for taxation, of its property within the state, on a mileage basis, TIMBER CULTURE ACT. on the theory that it gave the credit neces- See PUBLIC LANDS, 4. sary for carrying on the business in the state, where the resulting assessment is TITLE. greatly in excess of the value of the total As Aid in Construction of Statute, see good will of the company, measured by the

STATUTES, 2. difference between its tangible assets and Expression of Subject of Statute in, the total value of its stock. Fargo v. Hart,

see STATUTES, 3.

761 Direct tax.


Jurisdiction of Actions in, against Unit9. The stamp tax on a memorandum or

ed States, see COURT OF CLAIMS, 2. contract of sale of a certificate of stock, imposed by the act of Congress of June 13,

TRADEMARK. 1898 (30 Stat. at L. 448, chap. 448), is not

Appeal in Suit for Infringement, see unconstitutional as a direct tax on property,

APPEAL AND ERROR, 12. which, under U. S. Const. art. 1, § 2, cl. 3, must be apportioned according to the census,

The remedies afforded by the act of March but falls within the class of duties, imposts, 3, 1881 (21 Stat. at L. 502, chap. 138, U. S. and excises which, by $ 8, cl. 1, of that ar? Comp. Stat. 1901, p. 3401), 87, in case of ticle, are required to be uniform throughout the wrongful use” of a trademark registhe United States. Thomas v. United States, tered under that act as used in commerce


with foreign nations or with the Indian

tribes, are only available when the infringeTEA INSPECTION ACT.

ment of such trademark consists in the use Power of Congress to Enact, see Com- of a counterfeit or imitation on goods inMERCE, 2.

tended for such commerce. Warner v. As Delegation of Legislative Power, see Searle & H. Co.

145 CONSTITUTIONAL LAW, 1. As Affording Due Process of Law, see


Right to Exclusive Use of Word CONSTITUTIONAL LAW, 10, 20.

"Vichy" for Mineral Waters, see TELEGRAPH OPERATOR.

As Fellow Servant of Fireman, see MAS-

Unfair Competition in Use of, see UN-


Laches as Defense in Suit to Enforce TELEGRAPHS.

Exclusive Right, soe LIMITATION
Validity of State Tax on Poles and

Wires, see APPEAL AND ERROR, 86;


Appeal in Case Involving Construction TENDER.

of, see APPEAL AND ERROR, 18. As Prerequisite to Injunction against

Repeal of Statute by Inconsistent Illegal Taxation, see INJUNCTION,

Treaty, see STATUTES, 5, 6.

6, 7. ,

Appellate Jurisdiction over, see APPEAL


Entry of Placer Mining Location as, see

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charge of contributory negligence. Choctaw, Questions of law and facto

0. & G. R. Co. v. Holloway,

207 1. The question whether a railroad brake

5. The court need not charge the jury that man was killed as a result of a collision with an overhanging waterspout on a water an employer is bound to exercise reasonable

care to furnish its employees reasonably safe tank is for the jury, where there was evidence that when last seen he was signaling machinery, where the uncontradicted facts

show that it had not furnished such a mathe engineer from his post on a car of more than average height and width, where he chine, and there was no evidence that it would be likely to be struck by the spout in had exercised ordinary or reasonable care to passing, and that shortly thereafter he was do so, but, on the contrary, there was unex. missed from the train, his lantern found on plained and uncontradicted evidence to show the car, and his body discovered about 675 that it had not exercised such care. Id. feet beyond the tank, with injuries which 6. An instruction as to the effect of might have been produced by a collision closed gates at a railway crossing as a nowith the obstruction. Choctaw, 0. & G. R. tice of danger to a person attempting to Co. v. McDade,


cross the tracks is not erroneous, where it 2. There was sufficient evidence to demand tells the jury that if the gates were generthe submission to the jury of the question of ally kept down at night without regard to the liability of a railroad company for per the presence or absence of passing trains, sonal injuries sustained by a head brakeman and the pedestrian had knowledge of that of a freight train in attempting, at night, fact, then the circumstance that the gates to jump upon the pilot of the engine while were down when he was run over in attempt. it was moving very slowly in a newly con- ing to cross the tracks at night was not structed freight yard, and to sustain a ver of itself a warning to him of the presence dict in his favor, where there was testimony of danger, and that contributory negligence tending to show that in boarding the pilot the stirrup, which had long been defective, could not be imputed to him from that fact gave way, throwing his foot into one of the alone. Baltimore & P. R. Co. v. Landrigan,

262 un filled spaces between the ties, from which he could not extricate himself in time to 7. The court need not direct the jury to prevent injury; that his action was in the find for a street railway company, in an acproper discharge of his duties; that the on. tion to recover damages for the injuries susly company rule on the subject warned em- tained by a passenger in alighting from one pivyees not to jump on or off an engine run

of its cars, where there was evidence on bening at a high rate of speed; and that he half of the plaintiff of a substantial characwas without knowledge of the defect in the ter, bearing upon the general issue as to the stirrup or the condition of the track where carrier's negligence. City & S. R. Co. v. he was hurt. Choctaw, O. & G. R. Co. v.


935 Tennessee,

201 3. The issue whether a person attempting

8. The trial court is not bound to grant

an instruction which assumes that there is no to cross railway tracks was struck by a runaway car or an express train is properly evidence of negligence on the part of the submitted to the jury, where there was evi. conductor of a street car towards a passendence on the issue from which reasonable ger attempting to alight therefrom, and that men might draw different conclusions. Bal. the negligence, if any, was wholly that of the timore & P. R. Co. v. Landrigan, 262

motorman, where the whole case as to the

alleged negligence of the company was propInstructions. Error in, see APPEAL AND ERROR, 87, 88.

erly submitted to the jury, leaving them to

determine whether, under all the evidence, 4. A charge upon the subject of the knowledge by a fireman of the absence of brakes the injury was caused by the negligence of

its employees or any of them.

Id. on the engine on which he had ridden 50 or 60 miles is not erroneous, where it

9. The jury on a trial de novo upon an apamounts solely to a direction to the jury peal from an award of commissioners in conthat the man was bound to use his eyes, and demnation proceedings are properly inif, by their use, he could see the defect, he structed that they must be satisfied as to was bound thereby, even though he had not the value and damage by the testimony proobserved it; but that he was not bound to duced before them, without reference to any make a careful examination of every part | testimony produced before the commission

an engine upon which he was fireman, in ers, and that they must not be influenced by order to charge the railway company with the commissioners' report. Sharp v. United negligence, or exonerate himself from the States,


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