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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 Assamption of Judicial Functhe collaterad, 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. 88 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 837, 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), § 7, 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 in

tended for such MERCE, 2.

Warner v.

As Delegation of Legislative Power, see Searle & H. Co.

As Affording Due Process of Law, see

Right to Exclusive Use of Word

“Vichy" for Mineral Waters, see TELEGRAPH OPERATOR.

As Fellow Servant of Fireman, see Mas-

Unfair Competition in Us of, see UN-


Laches as Defense in Suit to Enforce TELEGRAPHS.

Exclusive Right, see 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,



Burden of Proof in Action of, see Evi. Misrepresentations in Sale of Real

Property, see CONTRACTS, 2;
Prima Facie Case in Action of, for Cut-

ting Timber on Public Lands, see



Suits under, against United States, see


As Affected by Congressional RegulaUMATILLA RESERVATION.

tion of Imports, see COMMERCE, 2. Allotment to Residents in, see PUBLIC

LANDS, 6, 7.

Right to Exclusive Use of Word for

Mineral Waters, see EQUITY, 5. UNFAIR COMPETITION.

Right to Exclusive Use of

Laches as Defense in Suit to Enforce “Vichy" for Mineral Waters, see

Exclusive Right to Use of Word, EQUITY, 5.

see LIMITATION OF ACTIONS, 5, 6. Laches as Defense, see LIMITATION OF

Unfair Competition in Use of Word, see ACTIONS, 5, 6.

UNFAIR COMPETITION. The exclusive right to the use of the word VIRGINIA COMPACT. "Vichy," under which the waters of the Federal Question under, as Ground for springs of a commune in France of that

Writ of Error, see APPEAL AND EBname have been known for centuries, belongs to the owner of such springs as against As Affecting Jurisdiction of Indiana every one whose waters are not drawn there

Courts, see COUBTS, 1. from, or, at least, from the same hydro

VOTERS AND ELECTIONS. graphical region, which may be called gen.

Negroes as Electors, see APPEAL AND erally the basin of Vichy. La Republique Francaise v.

ERROR, 49, 50.
Saratoga Vichy Spring Co. 247

The Federal Constitution is not violated UNIPORMITY.

by the provision of Md. Laws 1902, chap. In License Fees, see EXCISE.

133, requiring persons coming into the state

to reside to make a declaration of their in. UNITED STATES.

tention of becoming citizens and residents As Necessary Party to Suit Concerning of the state before they can claim the right

Public Lands, see ACTION OR SUIT, to be registered as voters, as applied to per2.

sons who have moved into the state since Not Suable on Actions Sounding in the act went into effect. Pope v. Williams, Tort, see COURT OF CLAIMS, 2.


ROR, 47.

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WAIVER. A controversy respecting usurious in. By State, of Immunity from Suit, see terest paid on a note held by a national

STATE. bank, secured by collateral note and mortgage, which arises in a suit to foreclose the WAR REVENUE AOT. mortgage, is none the less governed by the

Appeal in Suit Arising under, see Ap. Federal law on the subject of usury by na

PEAL AND ERROR, 7. tional banks, as expressed in U. S. Rev. Stat.

Excise on Sugar Refining, ses INTERNAL $ 5198 (U. 8. Comp. Stat. 1901, p. 3493),

REVENUE, 1-3. affording the remedy of an independent ac

WATERS. tion to recover back the usurious

payments, because the collateral note and mort.

Meander Line as Boundary of Public

Land, see BOUNDARIES. gage were executed in favor of the bank

Regulation of Water Rates, see CONSTIpresident for the benefit of the bank, which

TUTIONAL LAW, 13; CONTRACTS, was prohibited by the Federal law from tak

10-12. ing real estate security for a debt coinci. dently contracted. Schuyler Nat. Bank v.

Fishing Right as Conveyed by Grant, Gadsden,

Bee GRANT. 258

1. The Erie canal, which, though lying VEINS.

wholly within the state of New York, forms Right of Lode Claimant to Follow Apex. a part of a continuous highway for intering Vein, see MINES, 2.

state and foreign commerce by connecting


Lake Erie with the Hudson river, is a navi- ! provides for an equal division of the regable water of the United States as contra- mainder "between my brothers Edwin and distinguished from a navigable water of the Charles children.” McIntire v. McIntire, state. Perry v. Haines, 73

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

WITNESSES. ers in a municipality, whether furnished by fense growing out of a transaction concern.

1. Exemption from prosecution for an ofprivate persons or by the municipality itself, was included in the authority conferred ing which a bankrupt testified before the ref. by Ky, act of June 14, 1893, § 3290, on a

eree in bankruptcy is not given by the pro city of the third class, to provide the city (30 Stat. at L. 548, chap. 541, U. S. Comp.

vision of the bankrupt act of July 1, 1898 and its inhabitants with water service by Stat. 1901, p. 3424), § 7, that "no testimony contract or by works of its own, and to make regulations for the management there given by him shall be offered in evidence

against him in any criminal proceeding.” of, and to fix and regulate the prices to con

Burrell v. Montana,

1122 Owensboro v. Owensboro Waterworks Co.

217 2. The immunity extended by the act of

February 4, 1887 (24 Stat, at L. 379, chap. WILLS.

104, U. S. Comp. Stat. 1901, p. 3154), to reg: 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 83, U. S. Comp. Stat. 1901, p. 3173), from ever return. And if I do not, this is my prosecution or forfeiture of estate because last request,” where the objeets of her boun. of testimony given in pursuance of the rety were a church and her adopted son, and quirements of the law, satisfies the guaran. she concludes her will with the statement ty of the 5th Amendment of the Federal that all she has is her own hard earnings, Constitution against compelling witnesses to which she proposes to leave to whom she furnish evidence against themselves. Inter. pleases. Eaton v. Brown,

730 state Commerce Commission v. Baird, 860 2. The children of the brothers of an illiterate testator take per capita, and not WOMEN. per stirpes, under the residuary clause of a Excluding Women from Saloons, 800 vill in which, after making a bequest to

CONSTITUTIONAL LAW, 38 carteua "nephews and nice," the testator




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