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dock, which happens purely by accident and without any fault or negligence on the part of anyone engaged in carrying or discharging the cargo, is the proximate cause of damage to cargo, which follows from the immediate inflow of sea water; and such damage is not occasioned by the perils of the sea, within exceptions in the bill of lading.

Id.

4. A ship sailing when the weather is fair is not unseaworthy because ports between decks, which are tightly closed with glass, are not also covered with inner covers or dummies of iron, when these have been provided for such purpose, and because the hatches are battened down, when these could be opened in two minutes by knocking out the wedges, and there is no cargo stowed against the ports, or anything else to prevent or embarrass access to them in case a change of weather should make it necessary proper to close the iron shutters. The Silvia,

or

241

Congress of 1870, is not done away with by implication by the act of May 24, 1874, which removes the restrictions imposed by U. S. Rev. Stat. §§ 1960, 1962, concerning the months during which seals may be taken and the number to be taken on or about each island respectively.

Id.

4. No reduction of the per capita amount to be paid for each sealskin taken and shipped by a lessee of the government can be made on account of the limitation by the Secretary of the Treasury of the number of seals that may be killed, although by U. S. Rev. Stat. § 1962, a proportionate reduction of the rents reserved may be made where the lease provides for an annual rental of $60,000 and in addition thereto for a certain sum for each skin taken and shipped, as this is in the nature of a bonus or addition to the stated consideration.

Id.

SECRETARY OF AGRICULTURE.
See APPEAL and Error, 46.

SECRETARY OF INTERIOR.
See COURTS, 4.

SECRETARY OF TREASURY.
See SEAL FISHERIES, 2.

SEQUESTRATION.

See APPEAL AND ERROR, 24.

SERVICE.

See WRIT AND PROCESS.

SET-OFF.

See also DAMAGES, 5; RECEIVERS, 3.

One half the rent paid to a receiver by one who took a lease from him rather than to be dispossessed, but who is subsequently adjudged to be the owner of one half the estate, may be set off against the rent thereafter accruing for the half that is subject to 430 the receiver. Grant v. Buckner,

SHAREHOLDERS.

See BANKS, 5, 6.

SHIPPING.

See also AVERAGE; BLOCKADE; DAMA-
GES, 5; EVIDENCE, 19, 20; PRIZE; SAL-
VAGE; WHARVES, 1.

1. Neglect in not closing iron covers of the ports of a ship is a fault or error in the navigation or in the management of the ship, within the meaning of the exemption from liability for errors in navigation or management, made by § 3 of the Harter act. The Silvia, 241

2. Damage to cargo, attributable, not to a peril of the sea, but to the explosion of a part of the cargo after the ship has ended her voyage and has been finally and intentionally moored at the dock, there to remain until her cargo is taken out of her, is not to be considered as "occasioned by accidents of navigation," within the meaning of a bill of lading. The G. R. Booth, 234

3. An explosion of a case of detonators, making a hole in the ship's side below the water, while a ship is being unladen at the

5. A schooner was in fault for excessive speed in case of a collision with a steamer, when she was sailing at a speed of 7 miles per hour, through a fog, in waters where other vessels were frequently met, and her fog horn was heard by the steamer but once, or possibly twice, while, if the vessels had been proceeding at the speed required by law, their signals would have been exchanged so many times that the locality and course of each would have been made clearly known to the other, and there would have been sufficient time to take proper steps for avoiding the collision. The Chattahoochee, 801

SINALOA.

See PRIVATE LAND CLAIMS, 7.

SINKING FUND.

See CONTRACTS, 12.

SLANDER.

See LIBEL AND SLANDER.

SMUGGLING.

See DUTIES, 12, 13; INDICTMENT,

SOLDIER.

See PUBLIC LANDS, 5.

SOLDIERS' HOME.
See FOOD.

SONORA.

See PRIVATE LAND CLAIMS, 7, 9.

SPECIAL LAWS.
See STATUTES, 1.

SPECIFIC PERFORMANCE.
See EQUITY, 4.

SPEED.

See SHIPPING, 5.
STAMPS.

See INDICTMENT, 2.

STAMP TAX.

See INTERNAL REVENUE, 2, 4.

STATE.

See also COUPONS; STATUTES, 4; WA-
TERS, 2, 10.

A suit to restrain officers of a state from taking any steps, by means of judicial proceedings, in execution of a state statute to which they do not hold any special relation, is really a suit against the state within the prohibition of the 11th Amendment of the Federal Constitution. Fitts v. McGhee, 535

STATUTE OF FRAUDS.
See EQUITY, 1.

STATUTE OF LIMITATIONS.
See LIMITATION OF ACTIONS.

STATUTES.

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2. An exclusive right of a street-railway company to use a street cannot be conferred by a city under the Michigan tram-railway act, providing that the corporations formed for such purposes shall have the exclusive right to use and operate any railways constructed, owned, or held by them, provided that they shall not construct a railway through the streets of any town or city with

See also ATTACHMENT, 3; COURTS, 5, 23; out the consent of the municipal authorities. REWARD, 3.

1. A statute creating a special tribunal for claims against a municipal corporation which have no legal, but only an equitable or moral, obligation, does not regulate practice in courts of justice, within the meaning of a provision restricting local or special laws. Guthrie Nat. Bank v. Guthrie,

796 2. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. Collins v. New Hampshire,

60

3. A statute taken from another state will be presumed to be taken with the meaning it had there. Henrietta Min. & M. Co. v. Gardner, 637

4. A statute authorizing state coupons to be received for all taxes is not altogether void because certain special taxes and dues are, by the existing state Constitution, required to be paid in cash. McCullough v. Virginia, 382 5. A rightful judgment against the state gives a vested right which cannot be taken away pending writ of error, by a repeal of the statute which authorized the state to be sued.

Id.

SUBMISSION OF CONTROVERSY.
See ARBITRATION, 2.

SUGAR BOUNTIES.
See BOUNTIES, 2.

SUMMONS.

See WRIT AND PROCESS.

SWAMP LAND.
See COURTS, 4.

TAXES.

Id.

See also APPEAL AND ERROR, 29; CONSTI-
TUTIONAL LAW, 16, 31, 32; CONTRACTS,
2, 3; COUPONS; EMINENT DOMAIN, 1;
ESTOPPEL; INJUNCTION, 5, 6; INTERNAL
REVENUE; JUDGMENT, 6, 7; STATUTES,

4.

1. The state may tax the average number of refrigerator cars used by railroads within the state but owned by a foreign corporation which has no office or place of business in the state, and employed as vehicles. of transportation in the interchange of interstate commerce. American Refrigerator Transit Co. v. Hall, On corporation.

899

6. A city charter authorizing a contract for a water supply, without providing for an 2. A franchise or business tax on the election to ratify it, although it does provide for such an election as a condition of the amount of capital stock employed by a corerection of waterworks by the city, super-poration within the state is not invalid besedes a general statute which requires such cause a portion of its business is the imporan election to ratify a contract for a water tation and sale of articles in original packsupply. Walla Walla v. Walla Walla Wa- ages. New York, Parke, D. & Co., v. Rob323 ter Co. 341 erts, 3. A tax on a corporation or its property is not a legal equivalent of a tax on the stock in the names of the stockholders. Owensboro Nat. Bank v. Owensboro, 850

STIPULATION.

See JUDGMENT, 8.

STOCK.

On bridge.

4. A bridge over the Ohio river between See CORPORATIONS; DAMAGES, 1; TAX- Indiana and Kentucky is subject to taxation ES, 2, 3, 10.

STOCK AND PRODUCE EXCHANGE.
See INTERNAL REVENUE, 4.

STOCKHOLDERS.

See CORPORATIONS.

in a Kentucky city, so far as it is within the city boundaries, although they extend to lowwater mark on the Indiana side. Henderson Bridge Co. v. Henderson, 823

5. The fact that a bridge over the Ohio river was erected under the authority or with the consent of Congress, and is used for

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,

1038

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,

354

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.

Id.

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

Id.

Assessment.

TELEGRAPHS.

See COMMERCE, 18.

TELEPHONES.

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

Co.

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

Exemptions.

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

TENDER.

See USURY, 1.

TERRITORIES.

See ATTACHMENT; BONDS, 1; MUNICI
PAL CORPORATIONS, 2.

THEFT.

See LARCENY.

THOUSAND-MILE TICKET.

See CARRIERS, 3-5; CONSTITUTIONAL
LAW, 26.

TICKETS.

See CARRIERS, 3-5.

TIMBER.

See PUBLIC LANDS, 11, 12.

TOWN SITE.

See PUBLIC Lands, 8.

TRAFFIC ASSOCIATION.
See CONSPIRACY, 5.

TREATIES.

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.

1014

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

1147

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,

1150

Bee CONFISCATION, 3, 4; CONSTITUTION-
AL LAW, 1; EXTRADITION; PRIVATE
LAND CLAIMS, 3, 10.

TRIAL.

Question for Jury, see also ADVERSE

POSSESSION.

See also APPEAL AND ERROR, 2; CONSTITUTIONAL LAW, 10, 27; CRIMINAL LAW, 1; JUDGMENT, 10.

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.

Id.

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.

Id.

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,

420

TRUSTS.

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

See SHIPPING, 4.

See CORPORATIONS, 4; EQUITY, 2, 3;
TRIAL, 6; Waters, 6.

UNDUE INFLUENCE.
See EVIDENCE, 8; GIFT.
UNITED STATES.

Claim against, see CLAIMS.

See CANALS; DAMS; WATERS, 2, 10.

USURY.

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,

246

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 actually received by a borrower who gives ten notes of $360 each, payable in monthly instalments of $30 each, with a proviso that in case of his death all the debt remaining unpaid shall be released if he is not then in default,—is a scheme or colorable device to cover usury.

Id.

VEIN.

See MINES, 4.

Rights of public.

6. The dominion and propriety in the Potomac river and the soil under it passed to Lord Baltimore by grant from Charles I. in

VERDICT.

See CRIMINAL LAW, 2; JUDGMENT, 10. 1632 as part of the prerogative rights an

nexed to the political powers conferred on him, and were intended to be held by him in trust for the common use of the community about to be established for navigation and fishery, and not as his private property to be parceled out and sold for his individual emolument. Morris v. United States, 946 Land under water.

VESTED RIGHTS.

See APPEAL And Error, 3.

WAGES.

See CONSTITUTIONAL LAW, 14, 22.

WAIVER.

See ACTION or Suit, 3.

WAR.

See BLOCKADE; GUARDIAN AND WARD. WAREHOUSEMEN.

See CARRIERS, 1; CLOUD ON TITLE, 2.

WARRANT.

See EQUITY, 4.

WAR REVENUE.

See INTERNAL REVENUE, 2.

WATER POWER.
See CANALS.

WATERS.

See also APPEAL AND ERROR, 4; BOUN-
DARIES, 2, 3; CONSTITUTIONAL LAW, 24;
CONTRACTS, 11, 13; COURTS, 17; DAMS;
EMINENT DOMAIN, 2; EVIDENCE, 6, 9;
INJUNCTION, 4; MUNICIPAL CORPORA
TIONS, 1; PLEADING, 2; STATUTES, 6.

Grande Dam & I. Co.

1. The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river. United States v. Rio 1136 2. A state cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream, to the continued flow of its waters, in the absence of specific authority from Congress. Id.

of waters in respect to which the United States has jurisdiction, within the meaning of the prohibition of the act of Congress of September 19, 1890, does not mean simply an obstruction in the navigable portion of the stream, but includes anything, wherever done or however done, which tends to destroy the navigable capacity of one of the navigable waters of the United States. Id.

3. The power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States is within the jurisdiction of the general government over interstate commerce and its natural water highways. Id. 4. An appropriation of the entire unappropriated flow of a river above the point of navigability so as seriously to affect its nav igability further down is not authorized by the acts of Congress which permit appropriation of water in aid of mining industries and for the reclamation of arid lands. Id. 5. Obstructions to the navigable capacity

7. Lands lying beneath the waters of the Potomac and within the limits of the District of Columbia were not subject to sale by the Land Department under the general resolution of Congress of February 16, 1839, authorizing patents for vacant lands, but providing that this should not affect land ceded to or acquired by the United Id. States for public purposes.

8. Subsequent recession of the waters of the Potomac from land under water at the time of the passage of the general resolution of Congress of February 16, 1839, providing for patents for vacant lands, will not bring such lands within the scope of the statute. Id.

Riparian rights.

9. Riparian rights do not attach to lands acquired by the Chesapeake & Ohio Canal Company under acts of Congress authorizing the location of the canal along the bank of the Potomac river within the District of Columbia. Id. Water power.

10. The right of the state to lease such portion of the water power reserved as it does not require for the use of a penitentiary is included in the rights reserved to the state under S. C. act December 24, 1887, authorizing the transfer of a canal, but providing that the state shall be furnished, free of charge, 500 horse-power of water power "for the use of the penitentiary and for other purposes," and declaring that "the right of the state to the free use of the said 500 horse power shall be absolute." Columbia Water Power Co. v. Columbia Electric Street R. Co. 521

Water supply and rates.

11. The inadequacy of the supply of water which renders a contract by a city with a water company voidable does not justify the city in erecting waterworks of its own in violation of the express terms of the contract, without first having the contract annulled. Walla Walla v. Walla Walla Water Co. 341 12. An ordinance granting a right to a water company for twenty-five years to lay

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