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Comp. Stat. 1901, chap. 77, art. 1, §§ 39, 40.
as existing prior to the revenue act of 1903
(Cobbey's Anno. Stat. 1903, chap. 49), it is
made the duty of the tax commissioner or
assessor of such city to accept the values
of the fractional part of such railroad prop-

5. The valuation and assessment of the
property of a railway company, by one
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-
erty assessed. State ex rel. Morton v. Back
(Neb.)

sions of said act.

Id.

447

4. In determining the situs of personal
property for taxation, the legislature must
regard the constitutional requirement of
uniformity.

Id.

6. In the assessment of railway property
for taxation, it is competent for the legis-
lature to classify such property, and pro-
vide for the assessment of the same as per-
sonalty, and to fix the situs of the property
assessed by providing for the valuation of
the property as an entirety, and the dis-
tribution of the total value to each taxing
district according to the number of miles of
main track located therein.

Id.

Mode of assessment; valuation and
equalization.

Due Process in Assessing Railroad

see CONSTITUTIONAL

Property,
LAW, 8.

See also supra, 5, 6.

to the various counties, cities, and towns
through which the road runs, does not vio-
late the provisions of the fundamental law
requiring uniformity and equality in the
valuation and assessment of property for
the purpose of taxation.

Taxes; situs, for taxing purposes, of tan-
7. The assessment, for municipal pur-gible personal property of domestic corpo-
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
principal office as domicil: (a) in general;
the distribution of the aggregate value on
a mileage basis for all purposes of taxation) of railroads; (V.) effect of certificate
cil; (VI.) legislative power to fix the situs
of incorporation on the question of domi-
of property for taxation; (VII.) personal
property physically present in the taxing
side the state; (IX.) particular classes of
jurisdiction; (VIII.) tangible property out-
property: (a) railroad rolling stock; (b)
water craft; (X.) conclusion.
431

Id.

8. It is competent for the legislature
provide for the valuation and assessment of
the property of railway companies, such as
is required to be listed and scheduled with
the auditor of public accounts by Neb.
Comp. Stat. 1901, chap. 77, art. 1, §§ 39, 40,
by one assessing body, and for ascertaining
the value of the whole of such property of
any one railway corporation subject to tax-

ation in the state as a unit or as an en-
tirety and for distributing the value as
thus found over the main line or track of
such railway company and to the different
taxing districts, municipalities, etc., on a
mileage basis.
Id.

10. The proportional share of railway
property as valued and assessed by the
state board of equalization under a statute
requiring railway property to be assessed
as a unit, and the aggregate value to be
distributed to the different counties, cities,
and towns through which the road runs, on
a mileage basis, belonging to and situated
in a city and subject to taxation for munic-
ipal purposes, may be equalized by the
proper authorities of such city by lowering
or raising the values of the same as thus
ascertained, so as to bring about uniformity
of valuation in respect of all property sub-
ject to taxation within the municipality.

9. In the assessment for municipal pur-
poses of railway property situated in cities
of the metropolitan class, such as is re-
quired to be listed with and assessed by the
state board of equalization for general rev-
enue purposes, under the provisions of Neb.

NOTES AND BRIEFS.

Id.

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TRADE UNIONS.

NOTES AND BRIEFS.

Trade unions; right to stipulate that
members shall not work for certain parties.

91

TRESTLE.

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-
lease of the company from liability was
executed by him for the purpose of dis-
charging the company, or was obtained by
fraud, are questions for the jury; and their

TREES.

On Sidewalk; Punitive Damages for finding will not be disturbed. Schus v.
Cutting, see DAMAGES, 14.
Powers-Simpson Co. (Minn.)

887

In Highway, Right to Remove for Elec-
tric Light Wires and Poles, see
HIGHWAYS, 2.

See also HIGHWAYS, NOTES AND BRIEFS.

Duty to Sound Warnings when Train
Approaches, see RAILROADS, 2.

TRIAL.

the elements of advertence with that of in-
advertence and ordinary negligence with
gross negligence, and the attention of the
trial court is called thereto, though not in
the most approved manner, it should com-
pel the plaintiff to proceed upon one theory
or the other, if both theories can be reason-
ably spelled out of the pleadings, or give
such permissible construction to the plead-
ings as to confine plaintiff's claim to one
species of wrongdoing. Rideout v. Winne-
bago Traction Co. (Wis.)
Questions for jury.

601

Excuse of Competent Juror, see AP-
PEAL AND ERROR, 17.

Error in Remarks by Court or Counsel,
see APPEAL AND ERROR, 20-22.
Right to Proceed with Trial in Con-
tempt of Court, see CONTEMPT.
New Trial for Insufficiency of Special
Verdict, see NEW TRIAL, 3.
Election between different theories.
1. Where a complaint is indefinite and
uncertain because of the pleader's confusing

Master's Liability for Injury by Un-
guarded Shaft, see MASTER AND
SERVANT, 6.

Failure to Sound Warnings when Train
Approaches Trestle, see RAILROADS,

2.

2. The credibility and value of the tes-
timony of a lawyer of another state as to
what the rule upon a certain subject is in
that state may be submitted to the jury.
Hancock v. Western U. Teleg. Co. (N. C.)

403

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-
termined by the court. Albright v. Sussex
County L. & P. Com. (N. J. Err. & App.)

768

5. The jury must decide whether or not,
under all the circumstances of the case, a
street car company is guilty of negligence
in approaching a street crossing at an un-
reasonable speed, which results in a col-
lision with a vehicle using the highway.
Marden v. Portsmouth, K. & Y. Street R.
Co. (Me.)

300

6. If the particular engine which caused
a fire near a railroad track is not identified,
the jury may, in determining the question
of the negligence of the railroad company,
consider evidence that fires were set out at
about the time the less occurred, by engines
belonging to the defendant, which are not
claimed to have started the fire in question.
Manchester Assur. Co. v. Oregon R. & Nav.
Co. (Or.)
475

7. The questions of the provision of a
reasonably safe and accessible exit from a

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9. The court will not, as a matter of law,
say that it is negligence for one driving a
team to attempt to cross a street car track
at a public crossing, after looking along
the track 244 feet without seeing a car
when he is only 20 feet from the track; but
the question is for the jury. Marden v.
Portsmouth, K. & Y. Street R. Co. (Me.)
300

other party. Pittsburgh, C. C. & St. L. R.
875
Co. v. Montgomery (Ind.)

16. An instruction by the court that the
jury must not consider the failure of the
defendant to become a witness in his own
behalf, in arriving at a verdict, is not
erroneous. State v. Currie (N. D.) 405

14. Instructions predicated on facts which
do not exist are properly refused. State v.
Coleman (Mo.)
381

10. Whether or not a savings bank is
negligent in failing to preserve the signa-
tures of depositors for comparison, in pay-
ing money on forged orders without com-
paring the signatures, and in issuing a
duplicate book without requiring adequate
proof of the destruction of the original one,
are questions for the jury. Chase v. Water-
bury Sav. Bank (Conn.)
Instructions.

19. It is misleading to charge that mu-
nicipal ordinances do not justify the shoot-
ing of a person by an officer in attempting
to arrest him for their violation, in con-
nection with a charge that the ordinances
are admissible to prove the good faith of
the officer in attempting to effect the ar-
rest. State v. Coleman (Mo.)
381
Direction of verdict.

329

11. An instruction contained in the gen-
eral charge need not, at the instance of the
parties, be repeated in special instructions.
State v. Coleman (Mo.)
381

20. It is error to direct a verdict for de-
fendant in an action by a servant against
his master to recover damages for personal
injuries, where there is some evidence tend-
ing to show that the injury was caused
by defective machinery. Dill v. Marmon
(Ind.)
163
Correcting verdict.

12. A plea of guilty of the theft to com-
mit which a burglary is alleged to have
been committed does not, where the fact of
burglary itself depends on circumstantial
evidence, relieve the court of the necessity
of instructing the jury as to the law gov-
erning convictions on circumstantial evi-
dence. Beason v. State (Tex. Crim. App.)

21. The court may properly refuse to re-
quire the jury to return to their room and
insert specified facts in their special ver-
dict; but the remedy, if any, is by motion
for a new trial. Pittsburgh, C. C. & St. L.
R. Co. v. Montgomery (Ind.)
875

193

NOTES AND BRIEFS.

13. The jury should not be instructed as
to the law upon abstract propositions
wholly disconnected with the issues of fact
they are called on to determine. Central of
Ga. R. Co. v. Augusta Brokerage Co. (Ga.) ductory; (II.) when evidence is entirely

Trial; necessity of instruction as to law
on circumstantial evidence:- (I.) Intro-

119

circumstantial: (a) in general: (1) homi-
cide; (2) larceny; (3) burglary; (4) other
crimes; (b) possession of stolen property;
(III.) when the evidence of guilt of accused
is direct: (a) by positive testimony: (1)
homicide; (2) larceny; (3) robbery; (4)
rape; (5) other crimes; (b) by proof of the
confession of accused: (1) homicide; (2)

15. Instructing the jury not to consider
evidence withdrawn by the party who of
fered it is proper, when requested by the

17. A charge to the jury that in a de-
cision on one branch of the case on trial

the supreme court had held that plaintiff's
petition set forth a cause of action is er-
roneous. Central of Ga. R. Co. v. Augusta
Brokerage Co. (Ga.)
119

18. Where a complaint has a double as-
pect rendering it indefinite and uncertain,
because it charges both gross negligence
and ordinary negligence, it is error to sub-
mit the cause to the jury upon both as-
pects; and, in case error is committed in
that regard, resulting in a verdict in favor
of the plaintiff upon the ground of gross
negligence and ordinary negligence as well,
it is error to render judgment thereon be-
cause of inconsistency in the findings.
Rideout v. Winnebago Traction Co. (Wis.)
601

larceny; (3) burglary; (4) other crimes; I 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
fact; (X.) as to question of intent; (XI.)
miscellaneous cases.

920

193

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USURY.

By Building and Loan Association, see
BUILDING AND LOAN ASSOCIATIONS,

1.

VENDOR AND PURCHASER.

Defect of Title as Defense Pro Tanto
to Purchase-Money Note, see BILLS
AND NOTES, 3.

Measure of Damages for Breach of
Covenant of Seisin, see DAMAGES,
6.

Damages for Breach of Covenant to
Convey, see DAMAGES, 7.
Recovery for Improvements on Breach
of Covenant of Seisin, see IMPROVE-
MENTS.

Stay of Action

on

Purchase-Money
Note, see INJUNCTION, 5.
Outstanding Contingent Remainder as
Breach of Covenant, see Covenant.

Right to marketable title.

1. A vendee is entitled to a title that is
marketable, as well as good in fact, under
a contract calling for a "good" title; and
the rule is the same whether an action is

brought by the vendor to compel specific
performance, or by the vendee to recover
back his earnest money. Ladd v. Weiskopf
785
(Minn.)

2. A title is not unmarketable so as to
entitle a vendee to rescind his contract and
recover back the earnest money paid, where
no question of fact is involved, but only one
of law, arising exclusively upon the con-
struction of a record muniment of title, and
all parties interested are before the court,
so that its decision will be a final de-
Id.
termination of the matter.

3. A doubt as to the construction of a

decree of distribution by a probate court,
which is conclusive upon all parties inter-
ested in the estate, does not render a title
unmarketable so as to entitle a vendee to

rescind his contract and recover back the
earnest money paid.
Id.

4. Payment of the money cannot be en-
forced under a contract to purchase real
estate which stipulates that the property
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,
of which will destroy the buildings without

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VOTERS AND ELECTIONS.

A statute permitting the use of a voting
machine which assures secrecy, free choice
of candidates, a correct record of the vote,
and a correct record and announcement of
the total vote given for each candidate, does
not contravene a constitutional requirement
that all votes at elections shall be given by
ballot. People ex rel. Detroit v. Board of
Inspectors (Mich.)
184

NOTES AND BRIEFS.

Voters and elections; meaning of word
"ballot" in Constitution requiring votes at
election to be by ballot; validity of statute
permitting use of voting machines. 184

VOTING MACHINES.

Constitutionality of Statute Permitting
Use of, see VOTERS AND ELECTIONS.

Of Right to Have Paragraphs of An-
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.
The basis of waiver is estoppel, and where
there is no estoppel there is no waiver.
Williams v. Neely (C. C. App. 8th C.) 232

WAIVER.

Of Right to Have Entire Damages for
Taking of Land Assessed, see EMI-
NENT DOMAIN, 11.

6.

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By Insurance Company, see INSURANCE, reasonably be made.
Church (Minn.)

1. Surface waters

which by natural
drainage collect in a natural basin or de-
pression upon the premises of a dominant
tenement, and escape therefrom only by
percolation or evaporation, forming thereby
a lake or pond permanent in its character,
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
drained to the damage of a servient tene-
ment, without liability in damages for such
act. Davis v. Fry (Okla.)

460
2. Owners of improved property located
adjacent to an adequate sewer or drainage
system in a city are required to connect
therewith the water gutters and spouts
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 the volume and force thus attained, it
enters adjoining premises, provided such
connection with the drainage system can
Ginter v. St. Mark's

621

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