9. The Statute of Montana, declaring "that an
issue of fact shall be tried by a jury unless a jury
trial is waived," does not require the court, in an
equity case, to regard the findings of a jury called
in the case as conclusive, although no application
to vacate the findings be made by the parties, if, in
its judgments, they are not supported by the evi-
dence.
Idem,
452
10. A recovery in an equitable action must be
had upon the case made by the pleadings or not
at all.
471
11. When two or more persons have a common
interest in a security, equity will not allow one to
appropriate it exclusively to himself, or to impair
its worth to the others.
12. A court of equity will not give relief by
charging the executor of a will or a legatee, or a
devisee of real estate with a trust, in favor of a
third person alleged to be defrauded by the forged
or fraudulent will, nor will it give relief to parties
who are in laches.
599
13. Ignorance of a fraud, is no excuse for laches
where the circumstances of the fraud were pub-
licly and generally known.
SEE APPEAL AND ERROR, passim.
ESTOPPEL.
SEE ATTORNEY, 2.
CONFISCATION, 13.
CORPORATIONS, 8.
1. Defendants are not estopped from claiming
under a deed to their grantor, because such grantor
had accepted mortgages on the land to secure his
debts, executed by his grantor.
2. Where one assigned all his interest in a patent
to S. and then executed another assignment to D.,
and then S. re-assigned to his assignor, the latter
is estopped as against D. and his assignee from
claiming any interest in the patent.
3. Where a party accepts the amount awarded by
commissioners for his claim, he acquiesces in the
decision of the tribunal by which a part of the
claim is rejected, as well as in the finding in his
favor.
2. Where the writ of mandamus is unavailing for, tiller, when sued for it, can set up the defense that
such purpose, this court has no authority to ap- the tax was illegally assessed.
point its own officer to levy and collect the tax.
3. The Internal Revenue Act of July 13, 1866,
authorizes the levy and collection of a tax upon the
accumulated earnings of a savings bank, carried to
the contingent fund.
80
4. An action of debt is maintainable in the cir-
cuit court by the United States for the recovery of
the taxes.
Idem,
Savings Bank v. United States.
80
5. No other assessment than that made by the
statute was necessary to determine the extent of
the bank's liability.
SO
6. The Legislature of a State can provide for the
taxation of the owners of shares of the capital
stock of a national bank, at the place within the
State, where the bank was located, without regard
to their places of residence.
Tappan v. Merchant's National Bank, 189
7. The power of taxation by any State is limited
to persons, property or business within its jurisdic
tion.
189
8. Personal property, in the absence of a statute
to the contrary, follows the person of the owner,
and has its situs at his domicil. But, for the pur-
poses of taxation, it may be separated from him,
and he may be taxed on its account at the place
where it is actually located.
Idem,
21. Where the State has power to impose a tax,
the extent and the proportion to which it is im-
posed belongs to the judgment and discretion of
the State only. It is beyond the examination of
this court.
22. The Erie Railway Co. is liable to the tax im-
posed by the Pennsylvania Act of May, 1868.
idem,
595
23. The term "capital," employed by a banker in
the business of banking, in the 110th section of the
Revenue Act of July 13, 1866, does not include
moneys borrowed by him from time to time tem-
porarily, in the ordinary course of his business, and
such moneys are not liable to taxation as capital.
Bailey v. Clark,
651
24. The contingent right of pre-emption in lands
granted to the Pacific Railroad Company, does not
constitute an exemption of those lands from state
taxation.
747
Union & P. R. R. Co. v. McShane,
25. But the lands on which the costs of survey
have not been paid, and for which the United
States has not issued a patent to the company, are
exempt from state taxation.
26. But where the government has issued the
patent, the lands are taxable, whether payment of
these costs have been made to the United States or
not.
747
27. The Secretary of the Treasury. in paying a
judgment of the Court of Claims, cannot deduct
from it the amount due to the government for an
internal revenue tax on the property for which
such judgment was rendered.
28. Where the depositors in a savings bank con-
tracted not for a rate of interest upon their de-
posits, but for a share of the profits, although the
profits were derived from interest, yet the portion
divided to each was a dividend, and liable to a
tax, under the Act of 1864, as amended in 1866.
Cary v. Savings Union,
779
29. Where the United States granted lands to a
State to aid in the construction of railroads and
the State accepted the grant, it cannot tax the land
while the title remained in the United States, nor
while it held them as the trustee of the United
States.
S05
30. But when the State proceeding in the execu-
tion of the trust, had transferred its entire title to
a railroad company, and the company had per-
fected their title and acquired the right to sell the
lands, they were subject to state taxation.
805
31. A state Act which imposes a tax with refer-
ence to the railroad itself, does not im ose a tax
upon the lands owned by the company not used nor
necessary in operating the road.
32. A provision in a state Act exempting the
lands specified from local taxation for three years,
where there was no consideration, was the promise
of a gratuity spontaneously made, which might be
kept, changed or recalled at pleasure.
805
33. The taxing power may be restrained by con-
tract in special cases for the public good.
Idem,
805
34. Where the contract exists it is to be rigidly
scrutinized, and never permitted to extend, either
in scope or duration, beyond what the terms of
the concession clearly require.
805
35. Certificates issued by a railroad company to
its stockholders declaring that such stockholders
are entitled to 80 per cent. of the capital stock
held by them, with dividends thereon, are dividends
of scrip within the meaning of the Internal Revenue
Act levying a tax on dividends, and liable to such
tax.
36. It is too late to object that the n
assessment was irregular, after an app
Idem,
37. Where. by the charter of a ra
exemption from taxation was gir
was in operation two years,
such road was liable to count
tion.
Bailey v. Magwire,
38. An intention of th
31. Where the record shows jurisdiction, an ad-, set aside, the United States held the land as if no
judication of bankruptcy can only be assailed by a entry had been made, and could grant it again.
direct proceeding in a competent court.
McCarthy v. Mann,
832
32. Where the court has jurisdiction in per-
sonam, it has power to require the defendant to do
or to refrain from doing anything beyond the
limits of its territorial jurisdiction, which it might
require to be done or omitted within the limits
of such territory.
857
33. Whether a state court acted within its juris-
diction or not, is a question exclusively for the
state tribunals.
Mech. & Tr. Bank v. Union Bank,
SEE APPEAL AND ERROR, 15.
CONFISCATION, 10.
CONSTITUTIONAL LAW, 11.
EVIDENCE, 11.
PRACTICE, 23, 24.
1. Without a written agreement to waive a jury,
and in the absence of the defendant's counsel, the
court cannot try the case without a jury.
2. A request to charge the jury, which did not
correctly describe or erroneously construed the in-
vention of plaintiff, and which erroneously as-
sumed the law of the case, was properly refused.
Klein v. Russell,
3. Where the charge already given has fully
covered the ground, and is in accordance with the
request to charge, the request was properly refused.
Idem,
116
4. If there be no evidence to support the theory
of fact assumed in a prayer for instruction to a
jury, the court should reject it.
5. Where the instructions given to the jury cov-
ered the whole case it is not the duty of the judge
to give others suggested by either party.
6. Where the evidence is not sufficient to justify
a jury in finding a verdict for plaintiff, and the
court can see that if a verdict for plaintiff should
be rendered, it ought to be set aside as being un-
warranted by the testimony, the court may instruct
the jury to find for defendant.
Pleasants v. Fant,
LANDLORD AND TENANT.
6. Under the Act of the 3d of March, 1863, by
which the Solicitors of the Treasury is authorized
to sell, with the approval of the Secretary of the
Treasury, certain lands of the U. S., his approval
is a condition precedent without which the solicitor
has no authority whatever to sell.
U. S. v. Jonas,
177
7. The purchaser may require written evidence
of this approval or he may refuse to accept the
deed.
Idem,
177
8. The United States may maintain an action to
recover logs sold by Indians from their reservation
to a third person, where the logs were not cut for
the improvement of the land.
10. The Indians having only a right of occupancy
in the lands, the presumption is against their au-
thority to cut and sell the timber. Every pur-
chaser from them is charged with notice of this
presumption.
210
11. To maintain his title under his purchase
it is incumbent on the purchaser to show that the
timber was rightfully severed from the land.
Idem,
210
12. The issue of a patent upon the award of the
2. Where a tenant sold crops covered by a mort-register and receiver, sanctioned by the commis-
gage clause in the lease, to a vendee who had ful! sioner of the General Land Office, is final and con-
notice of such clause, the crops went into his hands
clusive as between the United States and several
impressed with the lien thereof, and when he sold claimants, and passes the title to the patentee.
them, he took the proceeds in trust for the pur-
Warren v. Van Brunt,
chaser of said premises at the sheriff's sale, and
became liable to him for the amount.
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15. An entry cannot be made under the pre-emd-
tion laws by one in trust for another, and a court
of equity can not decree that it was so made.
Idem,
219
16. The Act of June 3, 1856 and the Act of May
5, 1864, granting lands to Wisconsin to aid in
building railroads, are grants in presenti and pass
the title to the odd sections designated to be after-
wards located; when located the title acquires pre-
cision and becomes attached to the land,
Schulenberg v. Harriman,
Schow v. Harriman,
17. The lands granted do not revert to the United
States, although the road was not constructed with-
in the period prescribed, no action having been
taken, either by legislation or judicial proceeding
to enforce the forfeiture of the grants.
18. The provision in the Act of 1856, that all
lands remaining unsold after ten years shall revert
to the United States if the road be not then com-
pleted, is a condition subsequent.
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