Imagens das páginas


4. In determining the situs of personal Comp. Stat. 1901, chap. 77, art. 1, $$ 39, 40,
property for taxation, the legislature must as existing prior to the revenue act of 1903
regard the constitutional requirement of (Cobbey's Anno. Stat. 1903, chap. 49), it is

Id. made the duty of the tax commissioner or
5. The valuation and assessment of the assessor of such city to accept the values
property of a railway company, by one

of the fractional part of such railroad prop-
assessing body, as an entirety, and the dis- erty situated in the municipality as the
tribution of the value thus ascertained upon

same is valued and assessed by the state
a mileage basis over the entire line of such board of equalization, and apportioned to
railway, as provided by statute, do not op- such city in accordance with the provi-
erate as a changing of the situs of the prop-

sions of said act.

erty assessed. State ex rel. Morton v. Back 10. The proportional share of railway

447 property as valued and assessed by the
6. In the assessment of railway property state board of equalization under a statute
for taxation, it is competent for the legis requiring railway property to be assessed
lature to classify such property, and pro-

as a unit, and the aggregate value to be
vide for the assessment of the same as per distributed to the different counties, cities,
sonalty, and to fix the situs of the property and towns through which the road runs, on
assessed by providing for the valuation of a mileage basis, belonging to and situated
the property as an entirety, and the dis- | in a city and subject to taxation for munic-
tribution of the total value to each taxing ipal purposes, may be equalized by the
district according to the number of miles of proper authorities of such city by lowering
main track located therein.

Id. or raising the values of the same as thus
Mode of assessment; valuation and ascertained, so as to bring about uniformity

of valuation in respect of all property sub-
Due Process in Assessing Railroad ject to taxation within the municipality.


LAW, 8.
See also supra, 5, 6.
7. The assessment, for municipal pur- gible personal property of domestic corpo-

Taxes; situs, for taxing purposes, of tan-
poscs, of railroad property according to the rations in the United States :-(I.) Scope
plan prescribed by a statute requiring the of note; (II.) essentials of jurisdiction;
valuation and assessment of railroad prop; (III.) localization of corporations; (IV.)
erty by one assessing body as a unit, and
the distribution of the aggregate value on

principal office as domicil: (a) in general;
a mileage basis for all purposes of taxation of incorporation on the question of domi-

,b) of railroads; (V.) effect of certificate
to the various counties, cities, and towns cil; (VI.) legislative power to fix the situs
through which the road runs, does not vio- of property for taxation; (VII.) personal
late the provisions of the fundamental law
requiring uniformity and equality in the property, physically present in the taxing
valuation and assessment of property for jurisdiction; (VIII.) tangible property out-
the purpose of taxation.


side the state; (IX.) particular classes of

property: (a) railroad rolling stock; (6)
8. It is competent for the legislature to water craft; (X.) conclusion.

provide for the valuation and assessment of
the property of railway companies, such as

Constitutional requirement of uniform-
is required to be listed and scheduled with ity; power of legislature to change rail-
the auditor of public accounts by Neb. road company's real estate into personalty
Comp. Stat. 1901, chap. 77, art. 1, $$ 39, 40,

and shift location for purposes of taxation;
by one assessing body, and for ascertaining

statute requiring assessment of railroad as
the value of the whole of such property of

a unit, and distribution on mileage basis to

any one railway corporation subject to tax- the various taxing districts.
ation in the state as a unit or as an en Levy of tax or assessment confined to pub-
tirety and for distributing the value as lic purpose; for public improvements. 807
thus found over the main line or track of Effect of tax sale to create encumbrance,
such railway company and to the different rather than to devest title.

taxing districts, municipalities, etc., on a TELEGRAPHS.
mileage basis.


Law Governing Contract and Damages
9. In the assessment for municipal pur-


poses of railway property situated in cities

LAWS, 1.
of the metropolitan class, such as is re Measure of Damages for Failure to De.
quired to be listed with and assessed by the

liver, see DAMAGES, 12.
state board of equalization for general rev Burden of Proving Loss from Delay in
enue purposes, under the provisions of Neb.

Delivering, see EvidENCE, 7.




the elements of advertence with that of in-
That a written tender is not kept good as advertence and ordinary negligence with
required by statute will not defeat a judg- gross negligence, and the attention of the
ment directing the repurchase of stock ac- | trial court is called thereto, though not in
cording to contract, if the shares were pro- the most approved manner, it should com-
duced in court at the trial, and filed with pel the plaintiff to proceed upon one theory
the clerk. Wisconsin Lumber Co. v. Greene or the other, if both theories can be reason-
& W. Teleph. Co. (Iowa)

968 ably spelled out of the pleadings, or give

such permissible construction to the plead-

ings as to confine plaintiff's claim to one
Tender; sufficiency of written tender species of wrongdoing. Rideout v. Winne-

where property not brought into court. 969: bago Traction Co. (Wis.)

Questions for jury.

Master's Liability for Injury by Un-
Admissibility of Evidence of, see Evi-

guarded Shaft, see MASTER AND
DENCE, 20.


Failure to Sound Warnings when Train

Approaches Trestle, see RAILROADS,
Excluding Sunday in Computing, see


2. The credibility and value of the tes-

timony of a lawyer of another state as to
Time; statutory limit of time for signing what the rule upon a certain subject is in
bills of exception; including or excluding that state may be submitted to the jury.
Sundays in computing.
909 Hancock v. Western U. Teleg. Co. (N. C.)

Of Statute, see STATUTES, 2–6.

3. Whether the end sought to be attained

by a taking of property by eminent do-

main is a public use is a question to be de-
Master's Liability for Servant's Torts, termined by the court. : Albright v. Sussex

see INNKEEPERS, 3–7; MASTER AND County L. & P. Com. (N. J. Err. & App.)


4. Whether a sum of money paid by a

railroad company to an injured brakeman

was paid in satisfaction of his damages, as

the company contended, or as a donation, as

the brakeman claimed, and whether a re-
Trade unions; right to stipulate that lease of the company from liability was
members shall not work for certain parties. executed by him for the purpose of dis-

charging the company, or was obtained by

fraud, are questions for the jury; and their
On Sidewalk; Punitive Damages for finding will not be disturbed. Schus v.

Cutting, see DAMAGES, 14.

Powers-Simpson Co. (Minn.)
In Highway, Right to Remove for Elec 5. The jury must decide whether or not,
tric Light Wires and Poles, see

under all the circumstances of the case, a

street car company is guilty of negligence
See also HighwAYS, NOTES AND BRIEFS. in approaching a street crossing at an un-

reasonable speed, which results in a col-

lision with a vehicle using the highway.
Duty to Sound Warnings when Train sarden v. Portsmouth, K. & Y. reet R.
Approaches, see RAILROADS, 2. Co. (Me.)


6. If the particular engine which caused
Excuse of Competent Juror, see Ap- a fire near a railroad track is not identified,

the jury may, in determining the question
Error in Remarks by Court or Counsel, of the negligence of the railroad company,

see APPEAL AND ERROR, 20-22. consider evidence that fires were set out at
Right to Proceed with Trial in Con- about the time the loss occurred, by engines

tempt of Court, see CONTEMPT. belonging to the defendant, which are not
New Trial for Insufficiency of Special claimed to have started the fire in question.
Verdict, see New TRIAL, 3.

Manchester Assur. Co. v. Oregon R. & Nav.
Election between different theories.

Co. (Or.)

1. Where a complaint is indefinite and 7. The questions of the provision of a
uncertain because of the pleader's confusing 'reasonably safe and accessible exit from a



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railroad terminal, and of the negligence of other party. Pittsburgh, C. C. & St. L. R.
a passenger injured by attempting to use Co. v. Montgomery (Ind.)

a stile over a wire fence for that purpose, 16. An instruction by the court that the
are for the jury, where the evidence shows jury must not consider tve failure of the
that there was an opening through the fence defendant to become a witness in his own
40 rods away, and another 400 or 500 feet behalf, in ar ng at a verdict, is not
away, not in sight, which might have been erroneous. State v. Currie (N. D.) 405
closed on the day of the accident. Cotant

17. A charge to the jury that in a de-
v. Boone Suburban R. Co. (Iowa) 982

cision on one branch of the case on trial
8. The question of the contributory negli- the supreme court had held that plaintiff's
gence of a brakeman injured in attempting petition set forth a cause of action is er-
to couple two cars loaded with lumber so

Central of Ga. R. Co. v. Augusta
placed that the ends projected over the Brokerage Co. (Ga.)

ends of the cars, so that he could not enter

18. Where a complaint has a double as-
between the cars in an erect position, but peet rendering it indefinite and uncertain,
was compelled to do in a stooping because it charges both gross negligence
position,-is for the jury. Schus v. Powers and ordinary negligence, it is error to sub-
Simpson Co. (Minn.)


mit the cause to the jury upon both as-
9. The court will not, as a matter of law, pects; and, in case error is committed in
say that it is negligence for one driving a that regard, resulting in a verdict in favor
team to attempt to cross a street car track of the plaintiff

' upon the ground of gross
at a public crossing, after looking along negligence and ordinary negligence as well,
the track 244 feet without seeing a it is error to render judgment thereon be-
when he is only 20 feet from the track; but cause of inconsistency in the findings.
the question is for the jury. Marden v. Rideout v. Winnebago Traction Co. (Wis.)
Portsmouth, K. & Y. Street R. Co. (Me.)


19. It is misleading to charge that mu-
10. Whether or not a savings bank is nicipal ordinances do not justify the shoot-
negligent in failing to preserve the signa- ing of a person by an officer in attempting
tures of depositors for comparison, in pay to arrest him for their violation, in con-
ing money on forged orders without com nection with a charge that the ordinances
paring the signatures, and in issuing a are admissible to prove the good faith of
duplicate book without requiring adequate the officer in attempting to effect the ar-
proof of the destruction of the original one, rest. State v. Coleman (Mo.)

are questions for the jury. Chase v. Water Direction of verdict.
bury Sav. Bank (Conn.)


20. It is error to direct a verdict for de.

fendant in an action by a servant against
11. An instruction contained in the gen his ma ter to recover damages for personal
eral charge need not, at the instance of the injuries, where there is some evidence tend-
parties, be repeated in special instructions. ing to show that the injury was caused
State v. Coleman (Mo.)

381 by defective machinery. Dill v. Marmon
12. A plea of guilty of the theft to com-


mit which a burglary is alleged to have Correcting verdict.
been committed does not, where the fact of 21. The court may properly refuse to re-
burglary itself depends on circumstantial quire the jury to return to their room and
evidence, relieve the court of the necessity insert specified facts in their special ver-
of instructing the jury as to the law gov. dict; but the remedy, if any, is by motion
erning convictions on circumstantial evi- for a new trial. Pittsburgh, C. C. & St. L.
dence. Beason v. State (Tex. Crim. App.) R. Co. v. Montgomery (Ind.)

13. The jury should not be instructed as

to the law upon abstract propositions

Trial; necessity of instruction as to law
wholly disconnected with the issues of fact

on circumstantial evidence:-(I.) Intro-
they are called on to determine. Central of
Ga. R. Co. v. Augusta Brokerage Co. (Ga.) circumstantial: (a) in general: (1) homi-

ductory; ; (II.) when evidence is entirely

cide; (2) larceny; (3) burglary; (4) other
14. Instructions predicated on facts which crimes; (b) possession of stolen property:
do not exist are properly refused. State v.

(III.) when the evidence of guilt of accused
Coleman (Mo.)


is direct: (a) by positive testimony: (1)
15. Instructing the jury not to consider homicide; (2) larceny; (3) robbery; (4)
evidence withdrawn by the party who of- rape; (5) other crimes; (b) by proof of the
fered it is proper, when requested by the confession of accused: (1) homicide; (2)



larceny; (3) burglary; (4) other crimes ; | trustee because of strained relations with
(c) plea of insanity; (IV.) where evidence cestui que trust; because of strained rela-
is both direct and circumstantial; (V.) tions with cotrustee; renunciation of trust;
where instruction, or request to charge, effect of election by widow named in will as
simply states abstract proposition; (VI.) trustee for benefit of testator's daughter to
testimony of accomplice; (VII.) necessity take dower rights in opposition to will; in-
of request for instruction; or exception; terference with testator's judgment in ap-
(VIII.) refusal of request, the substance of pointing trustee.

which is elsewhere charged; (IX.) accused
in juxtaposition to main or inculpatory USURY.
fact; (X.) as to question of intent; (XI.)

By Building and Loan Association, see
miscellaneous cases.


BUILDING AND Loan Associations,

Of criminal case; impropriety of prose-
cuting attorney or court appealing to VENDOR AND PURCHASER.
prejudice of jury to obtain conviction ;

Defect of Title as Defense Pro Tanto
court intimating opinion as to guilt;

to Purchase-Money Note, see BILLS
judge's duty to construct charge so as to

place burden of proof on state.


Measure of Damages for Breach of
Question of proximate cause for court or

Covenant of Seisin, see DAMAGES,


Question of due care of plaintiff in action Damages for Breach of Covenant to
for personal injury as one for jury; ques-

Convey, see DAMAGES, 7.
tion of negligence of defendant, and wheth Recovery for Improvements on Breach
er it was proximate cause of injury, for

of Covenant of Seisin, see IMPROVE-

Negligence of bank in making payment

Stay of Action Purchase-Money
to one who has stolen pass book as ques-

Note, see INJUNCTION, 5.
tion for jury.


Outstanding Contingent Remainder as

Breach of Covenant, see COVENANT.
Question whether or not a paper writing
constitutes a will, for jury.


Right to marketable title.
Question for jury as to safety of appli 1. A vendee is entitled to a title that is
ances furnished by master; where testi- marketable, as well as good in fact, under
mony is conflicting; duty to submit ques- a contract calling for a “good” title; and
tion of master's negligence to jury. 798 the rule is the same whether an action is

Question for jury as to negligence of en-brought by the vendor to compel specific
gineer in moving engine while coupling is performance, or by the vendee to recover
being made.

888 back his earnest money. Ladd v. Weiskopf
Propriety of motion to strike out answer


as method of testing sufficiency of mat-

2. A title is not unmarketable so as to
ters of defense presented.

969 entitle a vendee to rescind his contract and

recover back the earnest money paid, where

no question of fact involved, but only one
1. Mere unfriendliness of a cestui que of law, arising exclusively upon the con-
trust toward a trustee is not sufficient struction of a record muniment of title, and
ground for the removal of the latter. Polk all parties interested are before the court,
v. Linthicum (Md.)

so that its decision will be a final de-

2. The removal of the widow as trustee termination of the matter.

3. A doubt as to the construction of a
of a fund provided for the benefit of tes-
tator's daughter is required, where she decree of distribution by a probate court,
elected to take her dower rights in opposi- which is conclusive upon all parties inter-
tion to the will, thereby depleting the trust ested in the estate, does not render a title
estate, and destroying a very important unmarketable so as to entitle a vendee to
part of the scheme of the testator, remar- rescind his contract and recover back the
ried within a short time, became estranged

earnest money paid.

from the cestui que trust and her cotrustees 4. Payment of the money cannot be en-
so that no intercourse could subsist be forced under a contract to purchase real
tween them, and kept the estate in needless estate which stipulates that the property

Id. shall be clear of all encumbrances, if the

title has not been accepted, and there is an

existing right on the part of a municipality

to open a platted street over the property,
Trusts; duty of trustee; removal of which will destroy the buildings without

making compensation for them. Taylor v. Of Right to Have Paragraphs of An-
Evans (Pa.)


swer Stricken out, see PLEADING, 2.

Of Right of Privacy, see PRIVACY, 4.

Of Benefit of Condition in Conveyance

of Land, see REAL PROPERTY, 4, 5.
Vendor and purchaser; breach of cove-
nant as to title because of encumbrances;

The basis of waiver is estoppel, and where
duty of vendee to pay off encumbrances be there is no estoppel there is no waiver.
fore seeking relief.


Williams v. Neely (C. C. App. 8th C.)
Covenant of seisin; broken when vendor

has not good title; effect of vendee's obtain-
ing rescission of contract as restoration to

Waiver; of forfeiture of lease; by accep-
vendor; judgment after breach of covenant; tance of rent after; where landlord denies
as precluding vendee from asserting right intent to waive.

to property.

Right of vendee to title in fee simple WARRANTY.
absolute; right to marketable title; what is Parol Evidence as to, see EVIDENCE, 14.
marketable title.

785 Of Sale of Machine, see SALE.
Stipulation against encumbrances; what See also SALE, NOTES AND BRIEFS.
constitutes encumbrance; right of city to
open platted street through property as en- WASTE.
cumbrance; sufficiency of notice of encum-

By Life Tenant, see LIFE TENANTS, 1.


Of Trial for Crime Committed in Two Waste; by life tenants; what constitutes;
Counties, see Courts, 1, 2.
to what life estates doctrine applies.




Direction of, see TRIAL, 20.

Taking Right to Fish in Lake under
Correction of, see TRIAL, 21.

Power of Eminent Domain, see


Right of Recovery for Constructing
Of Indictment, see INDICTMENT AND


Mouth of

Cove, see EMINENT DOMAIN, 7-14.

Injunction to Protect Rights in, see

A statute permitting the use of a voting
machine which assures secrecy, free choice Surface water.
of candidates, a correct record of the vote,

1. Surface waters which by natural
and a correct record and announcement of drainage collect in a natural basin or de-
the total vote given for each candidate, does pression upon the premises of a dominant
not contravene a constitutional requirement tenement, and escape therefrom only by
that all votes at elections shall be given by percolation or evaporation, forming thereby
ballot. People ex rel. Detroit v. Board of a lake or pond permanent in its character,
Inspectors (Mich.)

184 when so collected and coming to rest lose

the character of surface water, and may

not by artificial means, other than that inci-

dent to the cultivation of the soil, be
Voters and elections; meaning of word drained to the damage of a servient tene-
"ballot” in Constitution requiring votes at ment, without liability in damages for such
election to be by ballot; validity of statute act. Davis v. Fry (Okla.)

permitting use of voting machines. 184

2. Owners of improved property located

adjacent to an adequate sewer or drainage

system in a city are required to connect
Constitutionality of Statute Permitting therewith the water gutters and spouts
Use of, see VOTERS AND ELECTIONS. upon their buildings, and not to permit the

rain water to collect and discharge at a

point in a public alley, where, by reason
Of Right to Have Entire Damages for of the volume and force thus attained; it

Taking of Land Assessed, see EMI enters adjoining premises, provided such

connection with the drainage system can
By Insurance Company, see INSURANCE, reasonably be made. Ginter v. St. Mark's
Church (Minn.)


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