TARIFF.

Lien of Terminal Carrier for

Paid, see LIENS, 1, 2.

Duties

Nation, imposed by Chickasaw legislation which had received the approval of the gov ernor of such nation and the sanction of the President of the United States, made by the act of June 28, 1898, § 29 (30 Stat. at L 505, chap. 517), a condition of its validity.

What taxable generally.

Id.

2. The Federal Constitution is not violated by regulations promulgated by the Secre tary of the Interior for the enforcement and 1. The omission from the tariff act of collection of the annual privilege or permit 1897, ¶ 638 (30 Stat. at L. 200, chap. 11, U. tax on live stock owned or held by noncitiS. Comp. Stat. 1901, p. 1686), of the provi-zens within the territory of the Chickasaw sions of prior tariff acts for the free entry of casts, was not intended to prevent the free entry of such casts as also come within the designation of "casts of sculpture" which, under ¶ 649, are entitled to free entry where specially imported, in good faith, for the use and by the order of any society incorporated or established solely for religious, philosophical, scientific, educational, or literary purposes. Benziger v. United States, 331 2. Plaster casts of clay models, though painted and gilded and produced in unlimited quantities, are "casts of sculpture" which, under the tariff act of 1897, ¶ 649 (30 Stat. at L. 151, 201, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1687), are entitled to free entry where specially imported, in good faith, for the use and by the order of any society incorporated or established solely for religious, philosophical, scientific, educational, or literary purposes. Id.

TAXES.

Appeal in Case Involving Question of, see APPEAL AND ERROR, 7, 33, 34, 38, 52.

3. Property in the hands of a trustee in bankruptcy is not exempted from liability to state taxation by the bankruptcy act of July 1, 1898 (30 Stat. at L. 548, chap. 541, U. S. Comp. Stat. 1901, p. 3418). Swarts v. Ham

mer,

1060

4. The taxation of liquors in bonded warehouses within the state, provided for by Md. Laws 1892, chap. 704, as amended by laws 1900, chap. 320, under which the proprietors of such warehouses were required to pay the taxes, and were given a lien on the property therefor, is within the powers of the state, despite the facts that there is no specific provision giving the proprietor who pays the taxes a right to recover interest thereon, that, under Federal legislation, distilled spirits may be left in a warehouse for several years, and that for spirits so in bond

As Affecting Interstate Commerce, see negotiable warehouse receipts have been isCOMMERCE, 8-15.

Excise on Sugar Refining, see INTERNAL
REVENUE, 1-3.

sued. Carstairs v. Cochran,

596

5. Goods brought into one state from another are not imported within the meaning of U. S. Const. art. 1, § 10, ¶ 3, forbidding state taxation of imports, and are, therefore, though still in the original packages, subject to state taxation after they have Uniformity in Lincense Fees, see Ex-reached their destination and are held in the

On Filled Cheese Manufactured for Ex-
port, see INTERNAL REVENUE, 4, 5.
Discrimination in Merchants' Tax, see
CONSTITUTIONAL LAW, 29.

CISE.

Contract Exemption from Taxation, see
CONTRACTS, 7, 8.

Injunction against Illegal Taxation, see
INJUNCTION, 5-7.

state for sale. American Steel & W. Co. v. Speed,

Property of nonresident.

538

6. The taxation of credits arising out of Due Process of Law in Foreclosure of cal agent of a foreign corporation, who reloans on collateral security made by the loTax Lien, see CONSTITUTIONAL LAW, 22.

For Public Improvement, see PUBLIC
IMPROVEMENTS.

tains the collateral, and, as evidence of the indebtedness, takes the customer's so-called check, which is regarded as an overdraft, upon which the customer 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 the United States, made by the act of June 28, 1898, § 29 (30 Stat. at L. 505, chap. 517), a condition of its validity, is not repugnant to the Federal Constitution. Morris v. Hitchcock,

1898, No. 170, § 7, for the taxation of credits arising from business done in the state at the business domicil of a nonresident owner, his agent or representative. State Board of Assessors v. Comptoir National D'Es1030 compte de Paris,

232

Territorial Legislation for Discharge of

7. A state is not forbidden by the Federal | TERRITORIES. Constitution to tax credits arising out of loans on collateral security made by the local agent of a foreign corporation, who retains the collateral, and, as evidence of the indebtedness, takes the customer's so-called check, which is regarded as an overdraft, upon which the customer is charged interest, and which is finally sent to the home office to which the money, when repaid, is remitted by an exchange transaction unless reloaned by the local agent to other parties.

Id.

S. Personal property owned by a nonresident express company and situated outside the state cannot be taken into account in fixing the value, for taxation, of its property within the state, on a mileage basis, on the theory that it gave the credit necessary for carrying on the business in the state, where the resulting assessment is greatly in excess of the value of the total good will of the company, measured by the difference between its tangible assets and the total value of its stock. Fargo v. Hart,

Direct tax.

See also INTERNAL REVENUE, 1.

761

9. The stamp tax on a memorandum or contract of sale of a certificate of stock, im

posed by the act of Congress of June 13, 1898 (30 Stat. at L. 448, chap. 448), is not unconstitutional as a direct tax on property, which, under U. S. Const. art. 1, § 2, cl. 3, must be apportioned according to the census, but falls within the class of duties, imposts, and excises which, by § 8, cl. 1, of that article, are required to be uniform throughout the United States. Thomas v. United States,

TEA INSPECTION ACT.

481

Motion for New Trial as Legislative Assumption of Judicial Funetion, see CONSTITUTIONAL LAW, 2. The grant by Congress of common-law jurisdiction to the Arizona courts, made by U. S. Rev. Stat. §§ 1868, 1908, did not prevent the enactment of Ariz. Rev. Stat. 1887, 837, which discharges a motion for a new trial by operation of law if not acted upon at the same term, especially in view of the provision of U. S. Rev. Stat. § 1866, that the jurisdiction given by § 1908 "shall be limited by law." James v. Appel, 377 TIMBER CULTURE ACT. See PUBLIC LANDS, 4.

TRADEMARK.

Appeal in Suit for Infringement, see
APPEAL AND ERROR, 12.

The remedies afforded by the act of March 3, 1881 (21 Stat. at L. 502, chap. 138, U. S. Comp. Stat. 1901, p. 3401), § 7, in case of the "wrongful use" of a trademark registered under that act as used in commerce with foreign nations or with the Indian tribes, are only available when the infringement of such trademark consists in the use

Power of Congress to Enact, see COM- of a counterfeit or imitation on goods intended for such commerce. Warner v. Searle & H. Co.

MERCE, 2.

As Delegation of Legislative Power, see
CONSTITUTIONAL LAW, 1.

As Affording Due Process of Law, see
CONSTITUTIONAL LAW, 10, 20.

TELEGRAPH OPERATOR.

As Fellow Servant of Fireman, see MAS-
TER AND SERVANT, 3.

TELEGRAPHS.

Validity of State Tax on Poles and
Wires, see APPEAL AND ERROR, 86;
COMMERCE, 10.

TENDER.

As Prerequisite to Injunction against Illegal Taxation, see INJUNCTION, 6, 7..

TERRITORIAL COURTS.

Appellate Jurisdiction over, see APPEAL

AND ERROR, 65.

TRADE NAME.
Right to

145

Exclusive Use of Word "Vichy" for Mineral Waters, see EQUITY, 5.

Unfair Competition in Use of, see UN

FAIR COMPETITION.

Laches as Defense in Suit to Enforce
Exclusive Right, see LIMITATION
OF ACTIONS, 5, 6.

TREATY.

Appeal in Case Involving Construction
of, see APPEAL AND ERROR, 18.
Repeal of Statute by Inconsistent
Treaty, see Statutes, 5, 6.

TRESPASS.

Entry of Placer Mining Location as, see
MINES, 3.

TRIAL.

Questions of law and fact.

1. The question whether a railroad brakeman was killed as a result of a collision with an overhanging waterspout on a water tank is for the jury, where there was evidence that when last seen he was signaling the engineer from his post on a car of more than average height and width, where he would be likely to be struck by the spout in passing, and that shortly thereafter he was missed from the train, his lantern found on the car, and his body discovered about 675 feet beyond the tank, with injuries which might have been produced by a collision with the obstruction. Choctaw, O. & G. R. Co. v. McDade,

96

2. There was sufficient evidence to demand the submission to the jury of the question of the liability of a railroad company for personal injuries sustained by a head brakeman of a freight train in attempting, at night, to jump upon the pilot of the engine while it was moving very slowly in a newly constructed freight yard, and to sustain a verdict in his favor, where there was testimony tending to show that in boarding the pilot

5. The court need not charge the jury that an employer is bound to exercise reasonable care to furnish its employees reasonably safe machinery, where the uncontradicted facts

show that it had not furnished such a machine, and there was no evidence that it had exercised ordinary or reasonable care to do so, but, on the contrary, there was unexplained and uncontradicted evidence to show that it had not exercised such care. Id.

6. An instruction as to the effect of

closed gates at a railway crossing as a notice of danger to a person attempting to cross the tracks is not erroneous, where it tells the jury that if the gates were generally kept down at night without regard to the presence or absence of passing trains, and the pedestrian had knowledge of that fact, then the circumstance that the gates were down when he was run over in attempting to cross the tracks at night was not of danger, and that contributory negligence of itself a warning to him of the presence could not be imputed to him from that fact alone. Baltimore & P. R. Co. v. Landrigan,

262

the stirrup, which had long been defective, gave way, throwing his foot into one of the unfilled 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 pioyees 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 was without knowledge of the defect in the stirrup or the condition of the track where he was hurt. Choctaw, O. & G. R. Co. v. Tennessee, 201

3. The issue whether a person attempting to cross railway tracks was struck by a runaway car or an express train is properly submitted to the jury, where there was evidence on the issue from which reasonable men might draw different conclusions. Baltimore & P. R. Co. v. Landrigan, Instructions.

262

half of the plaintiff of a substantial character, bearing upon the general issue as to the carrier's negligence. City & S. R. Co. v.

Svedborg,

935

8. The trial court is not bound to grant an instruction which assumes that there is no

evidence of negligence on the part of the conductor of a street car towards a passenger attempting to alight therefrom, and that the negligence, if any, was wholly that of the motorman, where the whole case as to the alleged negligence of the company was properly submitted to the jury, leaving them to determine whether, under all the evidence, the injury was caused by the negligence of its employees or any of them.

Id.

Error in, see APPEAL AND ERROR, 87, 88. 4. A charge upon the subject of the knowledge by a fireman of the absence of brakes 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 commissionof an engine upon which he was fireman, iners, 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,

211

1. The Erie canal, which, though lying wholly within the state of New York, forms

Right of Lode Claimant to Follow Apex- a part of a continuous highway for inter

2. The power to regulate the rates at which water shall be furnished to consum

ers in a municipality, whether furnished by private persons or by the municipality itself, was included in the authority conferred by Ky. act of June 14, 1893, § 3290, on a city of the third class, to provide the city and its inhabitants with water service by contract or by works of its own, and to make regulations for the management thereof, and to fix and regulate the prices to consumers. Owensboro v. Owensboro Waterworks Co.

WILLS.

217

1. A holographic will of an illiterate tes-ulate commerce, as amended by the act of tatrix is not conditional, although beginning | February 11, 1893 (27 Stat. at L. 443, chap. "I am going on a journey and may not ever return. And if I do not, this is my last request," where the objects of her bounty were a church and her adopted son, and she concludes her will with the statement that all she has is her own hard earnings, which she proposes to leave to whom she pleases. Eaton v. Brown, 730

2. The children of the brothers of an illiterate testator take per capita, and not per stirpes, under the residuary clause of a will in which, after making a bequest to certain "nephews and nieces," the testator

83, U. S. Comp. Stat. 1901, p. 3173), from prosecution or forfeiture of estate because of testimony given in pursuance of the requirements of the law, satisfies the guaranty of the 5th Amendment of the Federal Constitution against compelling witnesses to furnish evidence against themselves. Interstate Commerce Commission v. Baird, 860

WOMEN.

MAR 3 - 1916
3-

Excluding Women from Saloons, see
CONSTITUTIONAL LAW, 38