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performance of an antenuptial contract filed sions of a statute or to qualify the operation of fifteen years after the marriage, and the testi- the statute. But the word provided” is often mony of complainant and her mother, are flatly used as a conjunction to an independent paradenied by the husband; and their evidence re- graph. Georgia R. & Bkg. Co. 7. Smith, 377 lating to the interview in which the alleged 7. After a statute has been settled by judi. agreement was made shows that the words cial construction, the construction becomes, so

agreement,” “promises,” etc., were not used far as contract rights acquired under it are conby the witnesses in their technical legal sense ; cerned, as much a part of the statute as the and their evidence as to all the circumstances text itself. German Sao. Bank v. Franklin of the case must be regarded as establishing County,

519 only an honest belief that the husband intended at some time after the marriage to provide his

8. A regulation of a department of the gov. wife with a permanent home out of the pro- an Act of Congress, when its meaning is plain.

ernment does not control the construction of ceeds of certain property then owned by him,

269 --no such agreement is shown as can be speci.

Robertson v. Downing, fically enforced. Nickerson v. Nickerson, 314 9. But a regulation of a department of the

3. Where it is alleged that an antenuptial government, acquiesced in for a long time, and agreement was made for the purchase of a by which the rights of parties bave been dehome out of the proceeds of property then termined and adjudged for many years, is not owned by the husband, property subsequently disregarded without the most cogent reasons. acquired by him cannot be reached on a bill

Id. for specific performance, unless it was pur 10. by U. S. Rev. Stat. § 13, the repeal of chased out of the proceeds of the former prop- any statute does not repeal or extinguish any erty.

Ia. penalty, forfeiture, or liability incurred under 4. A court of chancery cannot decree specific such statute, unless the repealing Act shall so performance of an agreement to convey prop- expressly provide. United States v. Reisinger, erty which has no existence, or to which the

480 defendant has no title, although the want of STOCK AND STOCKHOLDERS. See title is caused by the defendant's own act, as

CORPORATIONS. by his conveyance to a bona fide purchaser. Kennedy v. Hazelton,

576 SUBROGATION. See INSURANCE, 12. 5. In a suit for specific performance of a contract for the exchange of land, the defend. SUPREME COURT OF THE UNITED ant cannot repudiate the contract on the ground STATES. See also APPEAL that the plaintiff is willing to accept the deed ERROR; PENSIONS, 1. for less land than was originally agreed upon. Union Puc, R. Co. v. Mc Alpine,

673

1. The Supreme Court of the United States

cannot entertain an original action to compel an STATUTE OF FRAUDS. See Con. insurance corporation of one State to pay to TRACTS, 9, 11, 12; LIMITATION OF ACTIONS. another State the amount of a judgment recov.

ered by the latter for a penalty imposed by its STATUTES. See also APPEAL AND ERROR, statute upon such insurance corporation for

43; CONSTITUTIONAL LAW; PENSIONS; doing business in such State without having Taxes, 4.

first deposited with the proper officer of the 1. A legislative Act may be valid as to some State the statement of its property and business classes of cases and void as to others. Jaehne as required by such statute. Wisconsin v. PelV. New York, 398 ican Ins. Co.

239 2. The invalidity, as to previous acts, of a

2. The United States Supreme Court has no general law for the punishment of offenses, original jurisdiction of an action by a State does not make it invalid as to its operation against a citizen or corporation of another State upon future acts.

Id. to recover a penalty for a breach of its munici3. Where there are two Acts relating to the

pal law.

Id. same subject, effect is to be given to both, if

3. The United States Supreme Court bas practicable. Chicago, M. & St. P. R. Co. v, original jurisdiction of suits brought by a State United States, 180 against citizens of another State and of contro

Id. 4. A statute will not repeal a prior statute versies between two States. merely because it repeals some of its provisions

4. That a State is the plaintiff is not a conand admits others or adds new provisions; the clusive test that the controversy is one in which later Act operates as a repeal only when it the United States Supreme Court is authorized plainly appears that it was intended as a sub- to grant relief against another State or her citstitute for the first Act.

Id.
izens.

Id. 5. Where a law is expressed in plain and 5. The grant of judicial power was not in. unambiguous terms, whether those terms are tended to confer upon the courts of the United general or limited, the Legislature should be States jurisdiction of a suit by one State of such intended to mean what it bas plainly ex- a nature that it could not, on the settled prinpressed. There is even stronger reason for ad- ciples of public and international law, be enter. hering to this rule in the case of a constitution tained by the judiciary of another State. Id. than in that of a statute. Lake County v. Rollins,

1060 TAXES. See also COMMERCE, 5-15; Cox6. The general purpose of a proviso is to ex

TRACTS, 34; MUNICIPAL CORPORATIONS, 6. cept the clause covered by it from the provi. 1. Immunity from taxation is not in itself

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transferable. It must be considered as a per- statute of the State for the assessment of propsonal privilege not extending beyond the im-erty for taxation, draws out such moneys on a mediate grantee, unless otherwise expressly de- check, receiving the amount thereof in legal clared. Pickard v. East Tennessee, V. & G. R. tender notes of the United States, which he enCo.

1051 closes in an envelope and places with the bank 2. Immunity from taxation is not a franchise as a special deposit, writing his name thereon, of a railroad company, which may be trans- and requesting the bank to put in its safe for ferred, but is incapable of transfer without ex. him; and, within a week after the assessment, press statutory direction.

Id. he takes the same greenbacks which he had 3. There is no element of private property in placed on special deposit and immediately rethe right of taxation conferred upon a munici- stores them to the bank as a general deposit, pal corporation. Williamson v. Nero Jersey, 915 subject to his order; and all this was done for

the purpose of avoiding payment of taxes on 4. Section 2 of the New Jersey Act of 1862 the moneys,- Held, that this was an attempted for the taxation of the poor farm and personal evasion of the taxing laws of the State. * ld. property thereon by the township of North Brunswick was repealed by the Act of 1866

14. The rolling stock of the Baltpore &

Olio Railroad Company—a Maryland corpoexempting from taxation property used exclusively for charitable purposes.

Id.

ration employed in the operation of other rail

roads in Virginia—is not taxable under Va. 5. The determination of taxing districts and Laws 1881-82, chap. 119, which apply only to the manner of apportionment are all within the Virginia corporations. Marye v. Baltimore & legislative power. Walston v. Nevin, 544 | 0. R. Co.

94 6. A lien created by the terms of a statute 15. The situs of the personal property of a authorizing the assessment and collection of a railroad company, for taxation, may be fixed, in tax exists and attaches only according to such whatever locality it is brought and used by its terms and conditions as are prescribed by the owner, by the law of the place where it is statute creating it. Lyon v. Alley, 7. Equity will not interpose to arrest the

16. A tax deed in Michigan is void where proceedings for the collection of a tax upon the part of the tax for wbich it was given was in. sole ground of its illegality; there must be some valid. Culbertson v. Witbeck Co.

134 equitable ground for relief besides the mere il

17. Where legality of the tax.

county auditor assessed

moneyed capital and personal property, includ. 8. Provisions of statutes as to the form and ing national bank shares, at 60 per cent of its mode of assessments and the place where the cash value, an increase of 5 per cent in the astax lists are to be deposited are designed for the sessment of the bank shares, made by the State benefit of the taxpayers, and the protection of board of equalization, is such a discrimination their property from sacrifice.

Id.

as is forbidden by U. 8. Rev. Stat. § 5219. 9. When the requisitions prescribed for the Whitbeck v. Mercantile Nat. Bank, 118 assessment and collection of taxes are intended

18. The right of an owner of national bank for the protection of the citizen and to prevent a shares to have a deduction of his indebtedness sacrifice of his property, and by the disregard of made from their assessed value is not lost by his which his rights might be and generally would failure to demand it before the completion of be injuriously affected, they are not directory, the assessment, when the state laws make no but mandatory, and must be followed. Id. provision for such deduction.

Id. 10. In the District of Columbia, where a special improvement tax bas been imposed, the TELEGRAPH COMPANIES. See failure of the commissioner of improvements to COMMERCE, 7 - 14. deposit with the register a statement of the taxes, the failure of the register to place, with. TENDER AND PAYMENT INTO out delay, in the hands of the collector a list of COURT. See RECEIVERS, 2. the persons taxed, and the failure of the collector to give the required notice to such persons, TERRITORY. See INDIANS, 2. constitute such a nonobservance of the requirement of the statute as to render invalid the tax TOWN. See Bonds, 12; Taxes, 4. sale and the certificates thereof.

Id. 11. The erasure and interlineation in an as

TRADEMARK. See also COURTS, 18; IN. sessment roll, made nearly twelve months after

JUNCTION, 2. it was completed and deposited in the register's 1. A trademark must, either by itself or by office, and after the lots not assessed had passed association, point distinctively to the origin or into the ownership of a bona fide purchaser, is ownership of the article to which it is applied. an unauthorized and improper alteration, and Goodyear's India Rubber Glove Mfg. Co.v. Goodnot a reassessment. Id. year Rubber Co.

535 12. The statute of Ohio which provides for 2. Names which are descriptive of a class of the ascertainment of the monthly average goods cannot be adopted as trademarks, and amount or value of the property or goods held be thereby appropriated to the exclusive right by persons during the preceding year, and for of anyone. The addition of the word the assessment for taxation on that basis, is pany” to the name does not create any excluvalid. Shotwell v. Moore,

827 sive right to the use of such name. ld. 13. Where a person has in bank, on general 3. The designation "Goodyear Rubber Comdeposit, subject his order, moneys, and, a pany," not being subject to exclusive appropriday or two previous to the day fixed by the lation, any use of terms of similar import, or

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any abbreviation of them, must be alike free from bis knowledge and silence merely, it to all persons. Goodyear's India Rubber Glove lasts no longer than the silence from which it Mfg. Co. v. Goodyear Rubber Co. 535 springs; it is, in realty, no more than a rero

Id. 4. The words “Goodyear Rubber,” being de cable license. scriptive of well-known classes of goods produced by the process known as Goodyear's TREATIES. See also COURTS, 52-54. invention, the name of Goodyear Rubber Company is not one capable of exclusive appropria

Treaties are of no greater legal obligation tion.

Id. than an Act of Congress, and are subject to 5. The adoption by plaintiff of the words such Acts as Congress may pass for their en“La Normandi” as a trademark, in his busi- forcement, modification, or repeal. Chae Chan

Ping v. United States,

1068 ness of manufacturing and selling cigars of a certain kind, cannot take away the right pre- TRIAL. See also APPEAL AND ERROR, 80; viously acquired by the public in the use of the

EVIDENCE; PLEADING; WITNESSES. words “La Normanda” as indicating a particular kind of cigars. Stachelberg v. Ponce, 569 1. The right of trial by jury is secured to 6. Where it appears that, for several years United States Constitution. Callan v. Wilson,

the people of the District of Columbia by the before the adoption of the words “La Normandi” as a trademark by plaintiff in manufacturing and selling cigars, the words “ La

2. One charged with the crime of conspiracy Normanda” had been used by defendants in in the District of Columbia is entitled to a trial their business for a particular brand of cigars, by jury.

Id. the plaintiff is not entitled to an injunction. 3. The guaranty of an impartial jury to one

ld. accused of crime, except in petty offenses 7. A person who was not the first to use the wbich may at common law be proceeded design of a star upon plug tobacco, but who against summarily, secures to him the right to was the first to use a star made of tin, who a jury trial the first time and in whatever court used a star only a little over half an inch in di- he is put on trial.

Id. ameter, with a hole in the center, cannot pre- 4. A trial by jury in an appellate court, after vent the use by another of a round paper label conviction and sentence in the court of origiover three quarters of an inch in diameter, with nal jurisdiction without a jury, does not satisa red star between the words “trade” and fy the Constitution.

Id. mark,” in gilded letters on a red background, 5. The remission by plaintiff of a part of having beneath the star the word “light,” thus the verdict, followed by a judgment for the reforming by the figure and the letters the word maining sum, as a condition of the denial of a “starlight,” which is the name given to the new trial, does not deprive the defendant of tobacco, instead of “star.” Liggeti & M. To: his constitutional right to have the question bacco Co. v. Finzer,

395

of damages tried by a jury, or constitute a re8. The fact that flour marked with a cer- examination of the facts tried by a jury, in tain brand acquired an extensive sale, because violation of the Seventh Amendment of the the public had discovered that it might be re- Constitution of the United States. Arkansıs lied on as of a uniformly meritorious quality, Valley Land & Cattle Co. v. Mann, 854 demonstrates that the brand deser ves protec

6. The Act of Congress of June 30, 1879, tion. Menendez v. Holt,

526

chap. 52 S 2 (21 Stat. at L. 43), as to drawing 9. Plaintiffs having acquired the exclusive of jurors, does not touch the power of the right to the words “La Favorita,” as applied court, whenever the panel of jurors is exhaustto flour, it is no answer to their action to sayed, to call in talesmen from the bystanders to that there was no invasion of that right be supply the deficiency, and does not, either excause the name accompanying these words, pressly or by implication, repeal U. S. Rev. upon flour sold by defendants, varied from Stat. $ 804, relating to that subject. Lovejoy that used by the plaintiffs. Id. v. United States,

389 10. In an action for an injunction to restrain 7. The absence of counsel while the court is defendants from using a certain trademark for in session, at any time between the impanelflour, which consisted of the words “La Fa- ing of the jury and the return of the verdict, vorita,” the fact that plaintiffs were not the cannot limit the power and duty of the judge actual manufacturers of the flour upon which to instruct the jury in open court on the law they placed such words does not deprive them of the case as occasion may require, or disof the right to be protected in the use of that pense with the necessity of excepting to his brand as a trademark.

Id. rulings and instructions, or give jurisdiction to 11. When a partner retires from a firm, as- a court of error to decide questions not appear. senting to or acquiescing in the retention by ing of record. Stewart v. Wyoming Cattle the other partners of possession of the old Ranche Co.

439 place of business and the future conduct of

8. A court of the United States, in submitthe business by them under the old name, the ting a case to the jury, may express its opingoodwill remains with the latter, including the ion upon the facts, if no rule is incorrectly tirm's trademarks.

Id. stated and all matters of fact are ultimately 12. The intentional use of another's trade- submitted to the determination of the jury. mark is a fraud.

Id. Lovejoy v. United States, 389; Rucker v. Wheels 13. Where consent by the owner to the use er,

102 of his trademark by another is to be inferred 9. The judge may properly explain to the

jury the effect of different portions of the evi- 1 timony to show that he ran from the depot caredence; and if the jury find a verdict against lessly,--the question of his contributory negliplain evidence, their verdict will be set aside. gence is for the jury. Jones v. East Tennessee, Pinkerton v, Ledoux, 706 V. & G. R. Co.

478 10. Where it is conceded that defendant 19. In an action to recover an excess of du. railroad company is in fault on account of ties on the importation of goods, the similitude running its trains at a high rate of speed, and of the goods to other goods in the market on of the imperfect condition of brakes, the court which a specific duty was laid should have is not justified in refusing to submit to the been submitted to the jury under proper injury an action for damages by reason of plain-structions. Herrman v. Miller,

186 iiff's acts, which show in some degree that he 20. Where the amount of coupons has been was not as careful as the most cautious and paid, the question whether it was intended as prudent man would have been. Jones v. East a payment or a purchase of the coupons is one Tennessee, V. & G. R. Co.

478 of fact, rather than of law, to be settled by the 11. It is error to give instructions to the jury evidence. Wood v. Guarantee Trust & Safe applicable to evidence not admitted. New York Deposit Co.

472 & C. Min. Syndicate & Co. v. Fraser, 1031

21. Where defendant pleaded the bar of the 12. On a conviction for murder in the first Wisconsin ien years' Statute of Limitations, degree, in Utah, the court erred in not directing the questions whether a box in the clerk's ofthe attention of the jury to the provision of the fice had been duly designated by the marshal Penal Code as to their

right to recommend im- as a place where processes to be served by him prisonment for life at hard labor in the peniten- should be deposited, and whether the summons tiary, in place of the punishment of death. was either deposited by the clerk in that box, or By such action of the court the prisoner was delivered by him to the marshal, within ten deprived of a substantial right. Calton v. Utah, years after May 13, 1862, when the cause of

870 action accrued,

,-were not questions of law for 13. Where, on account of an amendment of the court, but questions of fact which should the declaration, it remains without an answer, have been submitted to the jury. Michigan the plaintiff may move for a judgment for Ins. Bank v. Eldred,

1080 want of an answer; but a jury cannot be called

22. A paper handed to a witness, and read and verdict entered where no issue is joined, and used by him as a memorandum with which unless for assessment of damages merely. to refresh his recollection, is not thereby ad. Chapman v. Barney,

800 | mitted in evidence. New York & C. Min. Syn14. In order to locate a grant of land, there dicate & Co. v. Fraser,

1031 must be evidence to show that the place of location agrees with the description in the grant; TROVER. See DAMAGES, 5, 6. and that evidence is for the jury. Pinkerton v. Ledoux,

706 TRUSTS. See also EXECUTORS AND AD15. The question of contributory negligence

MINISTRATORS, 3-5; PATENTS, 47. should be submitted to the jury where the con- 1. A trustee cannot become a purchaser at clusion does not follow, as matter of law, that his own sale, without special permission from a no recovery can be bad upon any view which court of competent jurisdiction. Allen v. Gilcan be properly taken of the facts which the lette,

271 evidence tends to establish. Dunlap v. Northeastern R. Co.

1058

2. In Texas a trustee may purchase the trust 16. Whether a brakeman was guilty of con- third person, which he had no part in procur

property at a judicial sale brought about by a tributory negligence in forgetting or not recalling and over which he could not have had coning the fact that a step was missing from a car trol.

ld. over which he attempted to let himself down, when he was hastening to his duty through a

3. A creditor secured by a deed of trust to a severe storm, is a question for the jury. Kane stranger as trustee may become a purchaser at V. Northern Cent, R. Co.

a sale by the trustee. Easton v. German-Amer339 ican Bank,

210 17. In an action for damages for death caused, in a collision, by the negligence of the veyed by a debtor directly to a creditor, as se

4. It is otherwise where real estate is conowner of a vessel on which it was claimed the curity for his debt, with power of sale in case deceased was a passenger, where there is no evidence that he was drowned as a consequence

of default.

Id. of the collision, or as to what caused his death,

5. Where a creditor becomes the purchaser submitting the question as to-wbether he lost at a sale under a deed of trust made to a third his life in consequence of the collision to the person as trustee, and credits the debtor on the jury is at most all the plaintiff can ask. Prov- overdue obligation with the amount of the puridence & S. Steamship Co. v. Clare, 199

chase money, it is in fact and law a payment

to the use and benefit of the debtor. Id. 18. Where a person baving business in a railroad depot passed out in the usual way and

6. Whenever property charged with a trust was struck, between the walls of the depot and is conveyed to a third party with notice, he will a passenger platform on the other side of the bold it subject to that trust, which he may be tracks, by a train which was shut from his compelled to perform equally with the former view by a car on the side track, and which he owner. Union Pac. R. Co. v. McAlpine, 673 did not hear although he listened for it, and 7. Where one defendant obtained a conveythere was evidence that the noise was great ance of the plaintiff's dower interest by fraud, about the place of exit, while there is other tes. I and held that interest in trust for her, a code

fendant taking the property with full notice is Congress is held, to fail to safely keep and deequally affected by the fraud and bound by the liver to the board of canvassers the poll book, trust. ` Jones v. Van Doren,

1077 tally sheet, and the certificate of the votes. Ex 8. One who by fraudulent misrepresentations parle Coy,

274 obtains a conveyance from the owner of any interest in property, real or personal, is in equity WILLS. a trustee ex maleficio for the person defrauded; 1. The construction of a will is governed by and anyone taking the property from such the intention of the testator, when not inconsisttrustee with notice of the fraud and of the con- ent with the rules of law. Colton v. Colton, 138 sequent trust is affected by the trust. Id.

2. No technical language is necessary to the 9. Whenever the legal title to property is ob- creation of a trust; and a devise accompanied tained through means or under circumstances by words imperative, expressing a wish or recwhich render it unconscientious for the holder ommendation that devisee will apply it to the of the legal title to retain and enjoy the bene- benefit of others, may create a trust. Id. ficial interest, equity impresses a constructive

3. A clause in a will giving the widow all of trust on the property thus acquired, in favor of the one who is truly and equitably entitled testator's estate, and recommending to her the to the same. Moore v. Crawford,

878

care and protection of his mother and sister, 10. Where a person has received a convey vision for them as in her judgment will be best,

and requesting her to make such gift and proance of land, and conveys the same to another gives the mother and sister a beneficial interest with covenant of warranty, and subsequently out of the estate given to the widow, to the exinduces his grantors to convey the same lands tent of a permanent provision during life, suitto his wife, on the destruction or loss of his able and sufficient for their care and protection, own deed, for the avowed purpose of avoiding having regard to their condition and necessities the deed he has given to such other person, the and to the amount of the fund; and it is the wife, being fully advised of the purpose and duty of the court to determine what provision paying no consideration for the conveyance, is would be suitable and best under the circumto be treated as a party to the fraud, and held stances, and the details for securing and pay, as trustee er maleficio; and she may be coming it.

Id. pelled to convey to her husband's grantee. Id.

4. The provision is not void for uncertainty, 11. A court of equity has jurisdiction to or as involving discretionary power on the part reach property fraudulently acquired, either in of the trustee.

Id. the hands of the original wrongdoer, or in the hands of any subsequent bolder, until a pur- WITNESSES. See also EVIDENCE. chaser of it in good faith and without notice acquires a higher right and takes the property 1. Whether a witness called to testify to a relieved from the trust.

Id. matter of opinion has such qualifications and 12. When a trustee dealing with the trust knowledge as to make his testimony admissi. property, together with property of his own, as ble is a preliminary question for the judge preone mass, conveys part of the whole to a pur- siding at the trial; and his decision of it is conchaser who takes it for value, in good faith, clusive, unless clearly shown to be erroneous without notice of the fraud or of the trust, and in matter of law. Stillwell & B. Mfg.Co. . who therefore acquires a good title, the ques. Phelps,

1035 tion how far the rest of the property shall be 2. In U. S. Rev. Stat. $ 858, in regard to the charged with the trust so as fully to indem- competency of witnesses, the words "in all pify the person defrauded can only be deter- other respects” mean “in all other respects” miñed in a court of equity. Jones v. Van than those provided for in so much of the secDoren,

1077 tion as precedes the word "provided," and do

not qualify the clause which forms the proviso. UNITED STATES. See LIMITATION OF Goodwin v. Fox,

805 ACTIONS, 18.

WRIT AND PROCESS. VENDOR AND PURCHASER. See also COVENANTS; FRAUD AND FRAUDU.

1. Where a particular method of serving LENT CONVEYANCES, 2, 3; Lis PENDENS; process is pointed out by statute, that method TRUSTS, 6-12.

must be followed; and this rule is especially

exacting in reference to corporations; and The law does not afford relief to one who when the statute designates a particular officer suffers by not using the ordinary means of in- upon whom process may be served, no other of. formation, whether his neglect be attributable ficer or person can be substituted. Amy v. to indifference or credulity: Andrus v. St. Watertown,

946 Louis Smelting & Refining Co.

1054 2. Where the charter of a city requires service

of a summons to be on the mayor of the city, VENUE. See COURTS, 3.

and there is no mayor in office, service on the

last mayor, where he has resigned and his resig. VOTERS AND ELECTIONS. See also nation has taken effect, is not sufficient. Id. COURTS, 40.

3. Depositing a process in a place provided Under the Acts of Congress and Indiana, it or designated by the officer is equivalent to a is a criminal offense for an inspector of elec: manual delivery to him. Michigan Ins. Bank tions at which an election for a member of v. Eldred,

1080

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