shares, if they have a market value, or, if not, | Exemptions. 15. The property of an express company distributed through different states constitutes a single plant united in a single specific use, so that for the taxation of that portion of it which is within any state the contracts for transportation facilities and the capital necessary to carry on the business, whether represented in tangible or intangible property, in the state, as well as its horses, wagons, safes, pouches, and furniture, may be included in the assessment. Adams Exp. Co. v. Ohio State Auditor, 683; American Exp. Co. v. Indiana, 707 16. Regarding the property of an interstate express company as a unit profit-producing plant at the value which it has as used and by reason of its use, for the purpose of fixing the value of that portion of the property in one state, and considering the value of its capital stock as an essential factor in, though not as a necessary equivalent of, the value of the entire property, do not amount to an assessment on property situated in other states, and for that reason constitute a taking of property without due process of law. Id. 17. The situs of the intangible property of an express company engaged in interstate busi ness is not, for the purpose of taxation, simply where its home office is, but such property is distributed wherever its tangible property is located and its work is done. Adams Exp. Co. V. Ohio State Auditor, 965 As affecting interstate commerce. 19. Estimating the property of an interstate express company as an entirety, and, after de ducting the value of all tangible property, assessing its intangible property within the state on the basis of the mileage of its lines within and without the state, is not in violation of the commerce clause or the 14th Amendment of the Federal Constitution. Adams Exp. Co. v. Kentucky, 960 22. No claim of exemption from taxation can be sustained unless within the express letter or the necessary scope of the exempting clause. Ford v. Delta & P. Land Co. 590 23. An exemption by the charter of a corporation from the taxation of capital stock and of property and effects of the company does not extend to property not necessary for its business, which is acquired under the authority of a subsequent act of the legislature contain ing no exemption clause. ld. 24. The exemption from taxation of the ball of the Grand Lodge "so long as it is occupied as a Grand Lodge of the F. & A. Masons," made by La. act 1855, which was passed after the property was acquired under pledges that charitable purposes, does not constitute a conthe total revenue should be applied to specified vision of the Constitution of 1879 exempting tract which can be protected against the prothe property of charitable institutions only when not used or leased for purposes of private or corporate profit or income." Lodge of the State of Louisiana v. New Orleans. Grand 951 25. The same necessity for a consideration exists for the purpose of a contract exempting property from taxation that there would be if it were a contract between private parties. Id. Inheritance tax. corporation "exempt by law from taxation" 26. The United States do not constitute a within the meaning of the inheritance tax to be exempt are only those created by the laws of New York, as the corporations intended state and are confined to those of a religious, educational, charitable, or reformatory purpose. United States v. Perkins, 287 27. An inheritance tax imposed upon a legacy to the United States by the laws of a state is not invalid as an attempt to tax the property of the United States since it is imposed upon the legacy before it reaches the hands of the government. Procedure; collection. ld. 28. Something more than an error of judg ment must be shown, something indicating fraud or misconduct, in order to defeat an assessment for taxes on the ground of a fraudu lent discrimination between taxpayers. Maish v. Arizona, 567 20. An unlawful burden upon interstate 29. Jurisdiction of the district court under commerce is not imposed by taxing property Ariz. Rev. Stat. 1887, SS 2684 et seq., in proof a telegraph company within the state accord-proceedings to collect delinquent taxes, is not ing to the proportion of its whole property, exclusive of real estate subject to local taxation, which the length of its lines within the state bears to the total length of its lines, and by taking the market value of shares of its stock in fixing the valuation of its entire property. Western U. Teleg. Co. v. Taggart, 49 ousted by continuing the proceedings for the hearing and determination of objections beyond the time prescribed by §§ 2685, 2693, for the sale of the property. ld. for nonpayment of taxes is in the discretion of 30. The amount of penalty to be imposed the legislature. Western U. Teleg. Co. v. Indi725 21. A state tax on the intangible property of ana, a company chartered by that state and maintaining a bridge over a river on the state bound-TELEGRAPHS. See TAXES, 14, 20. ary is not an unconstitutional burden on in terstate commerce, when the business carried TEXAS FEVER. on over the bridge is done by other persons and corporations which pay the bridge company tolls for the privilege of using the bridge. Henderson Bridge Co. v. Kentucky, See APPEAL AND ERROR, 97; EVIDENCE, 27-29. 953 TICKET. See CARRIERS. TOLLS. See also CONSTITUTIONAL LAW, 8, | TREASURY. 28; CORPORATIONS, 2, 3. See CERTIFICATES 1. The turnpike roads established by a TREATY. See INDIANS, 3-5. corporation under authority of law are public highways and the right to exact tolls from TRESPASS. See EVIDENCE, 16. 560 2. The interests of the public as well as of the owner of the property must be considered, with all the circumstances, in determining what is a just rate to be charged by a turnpike company as toll. Id. 3. The right of a corporation to realize a given per cent upon its capital stock cannot be claimed without reference to the interests of the public, in order to limit the power of the legislature to reduce its tolls on a turnpike. Id. TRADEMARKS. 1. One using the name of another which has become the generic name of a patented article on which the patent has expired must adopt such precautions as will protect the property of others and prevent injury to the public interest, if by so doing no substantial restriction is imposed on the right of freedom of use. Singer Mfg. Co. v. June Mfg. Co. 118 2. The right to use the generic name of a patented article in every form passes to the public with the dedication resulting from the expiration of the patent, even if the name is the surname of the patentee or original manufacturer. Id. 3. The lettering "New York S. M. Mfg. Co.." corresponding in size and style of letters with the lettering The Singer Mfg. Co." on the brass plates of the latter company, cannot law. fully be used on sewing machines similar to those of the Singer Company, by a company bearing the former name, although it does not employ the name "Singer," when the position and size, as well as the inscription found on the plate, are imitations of those used by the Singer Company, and are calculated to deceive the public. Singer Mfg. Co. v. Bent, 131 TRIAL. See also APPEAL AND ERROR, 93, 94, 116; MINES; SUNDAY. Jury. See also infra, 9, 39, 40. 1. The provision for the waiver of a jury, in Utah Code, § 3378, does not preclude a waiver of the right in another mode. Perego v. Dodge, 113 2. The offense of robbing a mail carrier and putting his life in jeopardy, in violation of U. S. Rev. Stat. § 5472, is a felony, on the prosecution of which the defendant is entitled to ten peremptory challenges under U. S. Rev. Stat. 819. Harrison v. United States, Consolidation of indictments. 104 3. Indictments for distinct felonies not prov. able by the same evidence, and in no sense resulting from the same series of acts, cannot be consolidated for trial. McElroy v. United States, 355 4. A consolidation for trial of indictments for assault with intent to murder, with other indictments against only part of the defendants for arson committed on the same day, as well as for indictments against all of them for arson committed two weeks later, when there is nothing to show a conspiracy or to connect the transactions together.-is erroneous. Questions for jury. Id. 7. The negligence of a member of a section crew in jumping from a train going about 4 miles per hour, to a station platform, in broad daylight, in obedience to the command of the conductor, who was his direct superior, and after fellow laborers had jumped and landed safely, is not so obvious as to be a necessary legal conclusion, but is a question for the jury Northern P. R. Co. v. Egeland, 82 4. An unlawful attempt to deceive the public in the sale of Singer sewing machines by inducing the belief that they were made by the Singer Manufacturing Company is shown where the shape, material, and place of position of the plate upon the machine, as well as the words upon it, were in imitation of the plate used by the Singer Company, while there was also a colorable imitation of the device cast 8. The negligence of one who was struck by in the legs of the machines, and the numbers used in the machines were taken in the mil-a train backing over a street crossing is a lions to convey the impression that they were the result of a long established manufacture, and in addition to this a tension screw on the machine of the Singer company, which was covered by a subsisting patent, was imitated by a dummy screw on the other machine, which served no mechanical purpose whatever. Singer Mfg. Co. v. June Mfg. Co. 118 TRAFFIC ASSOCIATION. See AP- question for the jury on proof that there was no light on the crossing or which indicated the approach of a train, and no bell ringing or whistle blowing, and that he, as he approached the crossing, slackened his pace, walked slowy, listened and looked, without seeing or hearing any train. Texas & P. R Co. v. Čody, 1132 9. Granting a nonsuit for want of sufficient evidence is not an infringement of the constitutional right of trial by jury. Coughran v. Bigelow, 442 11. A requested instruction is properly refused when all its propositions have been embraced in the charge given by the court. Rio Grande Western R. Co. v. Leak, 160; Agnew V. United States, 624 12. An instruction which singles out particular circumstances and omits all reference to others of importance may be refused. Rio Grande Western R. Co. v. Leak, 160 13. A charge that the jury should apply the same rules of good sense to the facts in evidence that they would apply to any other subject that comes under their consideration in life is not improper. Dunlop v. United States, 799 14. A charge that jurors should examine the questions submitted with candor and with a proper regard and deference to the opinions of each other, and decide the case, if they could conscientiously do so, is not improper. Allen v. United States, 528 15. A statement of fact based on uncontradicted testimony made in a recapitulation of the evidence by the judge is not error. Wiborg v. United States, 289 16. A charge to the jury that opinions of people to impeach the veracity of a witness 'must grow out of the dispassionate judgment of men who are honest men and good men,' ," and "not the judgment of bad people, the criminal element," is too narrow and restrictive, since the reputation for truth and veracity among one's neighbors is equally competent whether they are virtuous or immoral, or whether it is founded upon dispassionate judgment or upon warm admiration for constant truthfulness, or natural indignation at habitual falsehood. Brown v. United States, As to damages. 410 20. A sufficient charge as to negligence in driving so close to a railway as to be injured by passing cars is given by telling the jury to look at all the circumstances in determining whether the person acted with due care or was guilty of negligence and in approaching was bound to use care proportionate to the danger. Rio Grande Western R. Co. v. Leak, As to crimes. 160 21. After a court has charged the jury on the presumption of innocence it cannot be required to repeat the charge in a separate instruction at the request of the defendant. Allen v. United States, 528 22. An instruction that the presumption of defendant's innocence is stronger than the presumption that messengers or other postlice employees who deposited papers in boxes in the course of distributing the mails took them from the mails is properly refused. Dunlop v. United States, 799 23. A charge that the jury may consider defendant's good character and give it such weight as they see proper under all the evidence in the case, and that he is entitled to reasonable doubt, sufficiently states the fact of his good character, although toe court unneces sarily adds that the law presumes every de fendant to have a good character. White v. 365 United States, 24. An instruction that flight raises a presumption of guilt and is a silent admission that defendant is unable or unwilling to face the case against him is erroneous. Starr v. United States, 577 26. An instruction that insanity as a defense for crime is such a perverted and deranged 17. An instruction that if land of a railroad condition of the mental and moral faculties as company to be crossed by a proposed street to render a person incapable of distinguishing was used as part of its "railroad and terminal between right and wrong or unconscious of the facilities," the value of which would be less-nature of the act he is committing, or so comened by laying out the street, then the company could recover for the depreciation in value as damages to part of its land not taken or crossed,-is properly refused for the reason, if no other, that it is too general. Chicago, B. & Q. R. Co. v. Chicago, As to negligence. 979 plete a destruction of the will or governing power of the mind that one's actions are not subject to it, but are beyond his control,-is sufficiently favorable to the defendant. Dais v. United States, 750 27. Instructions that all the force that need be exercised is the force incident to the commission of the act if there is no consent, in a rape case, are erroneous unless they are limited to a case in which the will or resistance of the victim has been overcome by threats or fright or she has become helpless or unconscious. Mills v. United States, 584 18. A further instruction as to the duty of a traveler to look and listen at a railroad crossing may be refused where the court has charged that the jury must determine whether he looked out, as he should have done, for coming trains, or listened, and added that he must use such care as was proportionate to the dan- 28. A charge that obscene publications must ger in crossing the track. Rio Grande West- be calculated with the ordinary reader to deern R. Co. v. Leak, 160 prave his morals or lead to impure purposes is 19. A charge to the jury that the single not objectionable as amounting to a statement question is whether or not a frog was blocked that a publication which tends to deprave the at the time a railroad employee was injured by morals in any way whatever comes within that catching his foot in it is not improper, when class, as there can be no misapprehension as to the pleading and evidence have narrowed the in- what is meant. Dunlop v. United States, 799 quiry to this single matter. Union P. R Co. v. James, 236 29. Failure to say that manslaughter must be done unlawfully and wilfully does not ren. der erroneous an instruction distinguishing be- | Verdict. 30. An instruction as to manslaughter is unnecessary when there is no testimony to reduce the offense, if any, below the grade of murder. Davis v. United States, 750 31. An instruction that the intent to commit an assault may be found in the act itself is not erroneous when it is said, in connection with repeated declarations, that the intent is to be deduced from all the circumstances of the case, without any where stating that the assault of itself necessarily proves the intent. Acers v. United States, 481 32. An instruction that an apparent danger to justify self-defense is danger to life or of deadly violence to person is not erroneous as implying that there must be an intention of the assailant to take life, especially when other parts of the charge show that this was not meant. ld. and essential features of trial by jury at the 39. Unanimity being one of the peculiar common law, a constitutional guaranty of the right to a jury trial is violated by a statute attempting to authorize a verdict by the concur rence of nine or more members of the jury. American Pub. Co. v. Fisher, 1079 40. A provision for a verdict in a civil case on concurrence of nine or more members of the jury, made by Utah act March 10, 1892, is invalid, either by force of the 7th Amendment of the Constitution of the United States, or, if that does not apply in and of itself, by the act of Congress establishing a territorial government for Utah (9 Stat. at L. 458, § 17), extending the Constitution and laws of the United States over the territory, and by 18 Stat. at L. p. 27, chap. 80, confirming various territorial statutes regulating procedure, with a proviso that no party shall be deprived of the right of trial by jury in cases cognizable at common law. Id. because the jury were in charge of a deputy 41. A verdict of conviction is not invalid marshal who had taken no oath except his oath of office, where no special oath was at any 33. An instruction that a real danger, to jus-time requested or any objection made during tify self-defense, cannot be a past danger or a the trial that it was not taken. Ball v danger of a future injury, but must be a pres- United States, ent danger and one of great injury to the person, that would maim him or be permanent in its character or that might produce death,is not erroneous. Id. stated in an instruction that a man may kill 34. The right of self-defense is sufficiently his assailant if the circumstances are such as to produce upon his mind, or that of a reasonably prudent man, the impression that by so doing only could he save his own life or protect himself from serious bodily harm. Addington v. United States, 679 35. An instruction that a deadly weapon is anything with which death can be easily and readily produced, with a reference to the manner in which it was used and the part of the body upon which a blow was struck with it, is not improper. Acers v. United States, Findings by the court. 481 300 42. A statute authorizing special findings of fact by the jury, and providing for judgment upon them if they are inconsistent with the general verdict, does not violate the right of R. Co. trial by jury. Walker v. New Mexico & 8. P 837 43. Special findings that an injury was done by surface water caused by rainfall and cloud burst are not materially contradicted by the answer, "It did run," given to a question whether any of the water did "flow or run over the plaintiff's land except the water which Id. fell from the clouds as rain.” TRUSTS. See ACTION OR SUIT, 5; EQUITY, 2; JUDGMENT, 2; PERPETUITIES, 2; REAL PROPERTY, 4, 5. TURNPIKES. See CONSTITUTIONAL LAW, 8, 28; CORPORATIONS, 2; TOLLS. UNITED STATES. See ACTION OR SUIT, 1; CORPORATIONS, 8; TAXES, 26, 27. 36. A variance between an allegation that cattle communicated Texas fever on plaintiff's range, and a finding by the court that it could not be determined whether it was on that range or on defendant's range or in the road, is immaterial where the cattle were indiscriminately VARIANCE. See EVIDENCE, 48; TRIAL, mixed on both ranges, which were unfenced. Grayson v. Lynch, 230 36-38. VENDOR AND PURCHASER. See VERDICT. See TRIAL, 39-41. WAR CLAIMS. See CLAIMS, 24. WARRANT. WATERS. See also BRIDGES; COURTS, 26, 27; EMINENT DOMAIN, 1, 2, 4; IRRIGATION DISTRICT; RAILROADS, 7. 1. Riparian ownership is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the government in that regard. Gibson v. United States, 996 2. Obstruction to the use of the landing of a riparian owner, which is merely incidental to the lawful and proper exercise of governmental power in improving navigation, and which is done without coming into physical contact with the land of the person injured, or throwing back water upon it, or being the cause of contact with it in any way,-does not give any right to claim damages from the United States. Id. 3. An exclusive right to supply water to a town is not acquired by a water company organized under a statute which simply provides for the organization of such companies, when its contract with the town gives simply a privilege of laying its mains in the street, with a covenant for the payment of hydrant rentals, without any words of exclusion. Long Island Water Supply Co. v. Brooklyn, 1165 WHARVES. See also ADMIRALTY, 1. The owner of a pier is not liable for injury to a vessel while entering a berth at the pier, by a spindle of a sunken dredge the location of which was not known, where he merely assented to the occupation of the berth, and the agent of the vessel, who was acquainted with the danger or put upon inquiry respecting it, assumed the responsibility of providing the vessel with a safe berth. Panama R. Co. v. Napier Shipping Co. 1004 WILLS. See also CONFLICT OF LAWS, 1; COURTS, 28, 29; EVIDENCE, 5, 25, 34; REAL PROPERTY, 3. A devise to the "heirs" of a living person named in the will describes the persons intended with sufficient certainty, although strictly speaking no one is the heir of a living person. Barber v. Pittsburg, Ft. W. & C. R. Co. 925 WITNESSES. See also APPEAL AND ERROR, 103; CONGRESS, 3; TRIAL, 16. 1. A subpoena duces tecum may be refused MAR 3- 1916 1235 |