TITLE. Of Statute, see STATUTES, 3, 4. TITLE GUARANTY COMPANY. TOLLS. On Ship Canal, Right of State to TOWN SITE. See PUBLIC LANDS, 22. TRADEMARK. 5. The reasonableness of a municipal license charge of $1 per telegraph pole and $2.50 for each mile of overhead telegraph wires within the city limits must be subSur-mitted to the jury, where there is testimony SHIP that the actual cost of maintenance, repairs, and supervision by the telegraph company, was less than one half the sum thus charged by the city for supervision alone, and that an additional charge of $1 per mile for underground wires had been removed as an inducement to the removal of all overhead Enjoining Imitation of, see INJUNC- wires. Atlantic & P. Teleg. Co. v. Phila- TRANSFER TAXES. See TAXES, 10-12. TREATY. Dismissal of Appeal in Action Affect ing, see APPEAL AND ERROR, 56. As to Extradition, see EXTRADITION, 9, With Indians, see INDIANS. Objections as to Peremptory Challenges, see APPEAL AND ERROR, 65. Refusal to Review Question Whether Officers in Charge of Jury Sworn, see CONSTITUTIONAL LAW, 20. 1. The fact that a white testator devised his entire estate to a negro who had been for years his business and household companion, to the exclusion of his cousins, does not require the submission of the issue of his mental soundness to the jury, where the only conclusion that can be drawn from the direct testimony is in favor of his mental soundness when the will was made. v. Burr, Leach 567 2. The parties to a suit may make a valid agreement to dispense with the taking of evidence, and to accept the evidence taken and abide by the decrees which shall be entered in certain other cases in which the allegations of fact and the contentions of law are identical with those in the suit in ques tion. Prout v. Starr, Right to jury trial. 584 In Philippines, see PHILIPPINE ISLANDS, 3. 3. The constitutional right of trial by jury is not denied by rule 73 of the supreme court of the District of Columbia, authorizing judgment for plaintiff for want of a suf ficient affidavit of defense in actions ex con tractu in which plaintiff has filed a supporting affidavit. Fidelity & D. Co. v. United States, Questions for jury. 194 4. A case which turns upon the proper conclusions to be drawn from a commercial correspondence, in connection with other facts and circumstances, is properly referred 7. The question of the negligence of the foreman of a railway bridge gang in failing to discover a spike maul upon or near the bridge, immediately prior to the passage of a train, is for the jury in an action to recover damages from the railroad company for personal injuries received by a member of such gang, for which there is no other cause assignable than that the train in passing struck the maul and threw it against the workman, although the foreman testified that he looked for and did not discover any obstruction to the approaching train, where there was nothing to prevent its discovery if it was there and the glance of the foreman was anything more than a casual or Texas & P. R. Co. v. Carlin, formal one. 849 Instructions. storing his cotton near a railroad assumed action to recover the value of such cotton claimed to have been destroyed by a fire set by a passing locomotive, where the jury railroad company was not negligent in reare told that no recovery could be had if the spect to the equipment and operation of the engine, and were fully instructed as to contributory negligence and its effect. Texas 1057 & P. R. Co. v. Watson, 9. A requested instruction, though expressing the law correctly, is properly refused where there are no facts in the case to justify it. Bird v. United States, 100 10. An instruction that, in determining the issue of self-defense, the jury must, under the evidence, consider the situation of the parties and the surrounding circumstances, "together with the testimony of witnesses for the prosecution as well as the evidence of the defendant," is not open to the objection that it authorized the consideration of the testimony of the witnesses for the prosecution even if untrue, and withdrew from the jury in passing on that issue all of the evidence for the defendant except his own testimony, when considered with other instructions giving the rule as to the credibility of witnesses, and enjoining the jury to consider the whole evidence and render a verdict in accordance with the facts proved, and to determine from the evidence the respective situations of the several par ties. Id. 11. A requested instruction that an affidavit produced by defendant on cross-examination, to impeach the credibility of the witness who made it, may be considered, in connection with the affiant's deposition, as evidence against the plaintiff of the facts therein stated under oath, with like effect as his deposition,-should be gin where such affidavit is introduced in evidence by plaintiff on the cross-examination of another witness. Connecticut Mut. L. Ins. Co. v. Hilmon, 446 able to comprehend and understand the consequences of such act. Queenan v. Okahoma, 1175 15. An instruction that an attempt to es cape, made after many months of contine ment, and comparatively without danger. tended, though only slightly, to prove guilt, was as favorable to the accused as he could demand where the only testimony on that subject related to an escape made in October following an arrest in June, and was ob jected to solely on the ground that the escape was too remote from the commission of the offense and the arrest and imprisonment to be entitled to go to the jury. Bird v. United States, Verdict. 100 Assessing Trust Property to Trustee, 12. An instruction that a railroad company was not liable for a loss from a fire set by a passing locomotive, if it used "the 1. The adoption by the members of a commost approved spark arrester, at the time in munistic society of a plan by which all prop good condition," and the engine was then erty contributed to the use and benefit of and there operated with ordinary care and the community was to be "joint and indiprudence; but that it was so liable if it visible stock," and all contributions were to failed "to use the most approved spark ar- be irrevocable, was not the creation by the rester and apparatus connected with the en-members of a trust in the property for the gine as in ordinary use by properly conducted railways to prevent the escape of fire," so far as it could consistently be done in its business,—is not open to the objection that it left the jury to consider the original construction of the spark arrester irrespective of its condition at the time of the fire. Texas & P. R. Co. v. Watson, 1057 13. An instruction that it was the duty of an injured employee to submit to all treatment that a reasonably prudent person would have submitted to, in order to im prove his condition, and that his employer was liable for no damages which might have been prevented by reasonable care, is not objectionable as authorizing the inference that as a prudent man the employee might have postponed recovery from his injury to recovery of damages. Texas & P. R. Co. v. Behymer, 905 14. An instruction to find defendant not guilty of murder if it should be found that he was not able to know that the act of killing was wrongful, and was not able to comprehend and understand the consequences of such act, is not open to the objection that it made it necessary for the jury to find that both conditions existed in order to acquit, where the condition of a verdict of guilty was made by the same instruction to be a finding beyond a reasonable doubt that the prisoner knew and understood that it was wrong to take the life, and was benefit of the society, as such, which, on the doctrine of resulting trusts, conferred on the descendants of members who contributed no property to the society any such proprietary right or interest as entitled them on the dissolution of the society to share in its property or assets, or to have an accounting. Schwartz v. Duss, 53 2. A valid lease of real property containing a covenant to renew cannot be made by one of the trustees in whom the title to the property is vested, as such an act is of a nature to require the deliberate discretion and judgment of all the trustees. Winslow V. Baltimore & O. R. Co. 633 lease for five years of a portion of the realty 3. Recognition by all the trustees of a included in the trust estate, executed by one of their number, even assuming that it could cure the invalidity of such lease under the statute of frauds, must have been founded upon full knowledge of all the facts, in or der to have that effect. ULTRA VIRES. Id. Contract by Building and Loan Asso ciation, see BUILDING AND LOAN ASSOCIATIONS, 2. UNIFORMITY. In Taxation, see TAXES, 2. UNITED STATES. As Party, Effect on Jurisdiction, see Right to prevent Taxation of Lands Al- TATION OF ACTIONS. Liability of, on Restitution of Vessels Captured, see PRIZE, 10-12. The liability of the United States, under the 5th Amendment to the Federal Constitution, to make just compensation for an appropriation of land for public use, is not defeated because such land was taken by the government in the exercise of its power to improve navigation. United States Lynah, VOTERS AND ELECTIONS. Act as to Bribery of Voters, see STAT- 1. The provision which is made by U. S. Rev. Stat. § 5507 (U. S. Comp. Stat. 1901, p. 3712), for the punishment of individuals who, by means of bribery, prevent persons to whom the right of suffrage is guaranteed by U. S. Const. 15th Amend. from exercising that right, cannot be sustained as an exercise of the power granted to Congress by such Amendment, to prevent the denial of such right by state action. James v. Bowman, 979 2. Equity will not compel a county board of registrars to enroll a negro on the voting lists as a duly qualified voter, under the registration provisions of Ala. Const. art. 8, where the main object of the bill is to have these registration provisions, upon which the Vright to register is founded, declared void as a fraud upon the Federal Constitution because of discrimination against negroes, since, if that is the character of these provisions, the court will not require officials to proceed to act under them. Giles v. Harris, 909 539 UNITED STATES COMMISSIONER. Repeal of Statutes as to, see STATUTES, 9. Jurisdiction over Extradition Proceed. ings, see EXTRADITION, 4. VESTED RIGHTS. Under Entry in Public Land, see PUB WARRANTY. No vested rights of owners of land adja. cent to a tidal stream were disturbed by the Alabama act of January 31, 1867, granting to the city of Mobile so much of the shore and soil under such stream as is within the city boundaries, since such act amounts to no more than a declaration that the rights possessed by the state in such shore and soil were granted to such city. Mobile Transp. Co. v. Mobile, VICE PRINCIPAL. See MASTER AND SETVANT, 3. 266 By Insured, see INSURANCE, 2. WAR VESSELS. Capture of, see PRIZE. WATERS. Appellate Jurisdiction of Suit Relating as to Meandered Lakes, see APPEAL AND ERROR, 35, 36. Federal Question as to Riparian Rights, see APPEAL AND ERROR, 41. Conflict of Laws as to, see CONFLICT OF | rates may take into consideration in esti 1. The state of Alabama when admitted into the Union became entitled to the soil below high-water mark, under the navigable waters within the limits of the state, where it had not been previously granted. Mobile Transp. Co. v. Mobile, 266 2. The authority of a state to prohibit the erection, without its permission, of a structure in a navigable river wholly within its limits, was not superseded by the provision of the river and harbor act of March 3, 1899, chap. 425, § 10 (30 Stat. at L. 1121, 1151, U. S. Comp. Stat. 1901, p. 3541), that it shall not be lawful to erect any structure in a navigable river except on plans recommended by the chief of engineers and authorized by the Secretary of War. Cummings v. Chicago, Irrigation. 525 3. Territorial as well as state legislation with respect to the regulation of the use of public waters was authorized by the pro visions of the acts of Congress of March 3, 1891 (26 Stat. at L. 1095, chap. 561, U. S. Comp. Stat. 1901, p. 1570), and of July 26, 1866 (14 Stat. at L. 253, chap. 262, § 9, Rev. Stat. § 2339, U. S. Comp. Stat. 1901, p. 1437), recognizing, so far as the United States is concerned, the validity of local customs and decisions in respect to the ap. propriation of water, and those of the desert Îand act of March 3, 1877 (19 Stat. at L. 377, chap. 107, U. S. Comp. Stat. 1901, p. 1549), permitting the appropriation of water for irrigation and the reclamation of desert land. Gutierres v. Albuquerque Land & Irrig. Co. 588 4. Power to authorize irrigation_corporations organized under N. M. act February 24, 1887, to take and divert surplus public waters over and above the needs of prior appropriators, was not denied to the legislature of that territory by the proviso in the desert land act of March 3, 1877 (19 Stat. at L. 377, chap. 107, U. S. Comp. Stat. 1901, p. 1549), that surplus water on the public domain shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights. Rates for water. Id. Parties in Action to Have Rates Declared 5. The price which a waterworks plant brought on foreclosure is evidence which a board of supervisors when regulating water 6. The valuation of a waterworks plant for purposes of taxation may be considered by the courts in determining the reasonableness of water rates as fixed by a board of supervisors, especially where such valuation was sworn to by officers of the water company. Id 7. The depreciation in value of a waterworks plant, and in the value of the services rendered to consumers, due to a diminution in the water supply from a long-continued drought from which the surrounding country has suffered since the passage of an ordinance regulating water rates, may be considered in determining the reasonableness of such rates. Id. 8. Irrigation rates established by a board of supervisors are not necessarily unres sonable because they will only yield a full return on the total value of the plant when the water company shall serve the entire area which its system will supply. WEEK. Definition of, see PUBLICATION. WHARVES. Id. Federal Jurisdiction as to Dock, see The extension of wharves beyond harbor lines established by local law, in navigable waters of the United States wholly within the limits of a state, cannot be justified by the relocation of such harbor lines by the Secretary of War acting under the authority of the river and harbor act of September 19, 1890, § 12 (25 Stat. at L. 400, 425, chap. 860), which forbids the construction or extension of any such structures beyond the harbor lines established under his direction, except under such regulations as he may prescribe, since Congress has not, by such act, indicated any purpose wholly to ignore the use of navigable waters entirely within their original power of the states to regulate the respective limits. Montgomery v. Portland, WILLS. as 963 Waiver of Objections to Proceedings to Submitting to Jury Issue as to Testa tor's Capacity, see TRIAL, 1. The intention of a testatrix that, failing husband or son surviving, her estate should go to a designated charity, is so manifest from the terms of her will, by which she devised her entire estate to her son, subject to a provision for her husband's support, and provided that in case she survived both husband and son it should go to such charity, which was also to receive the estate at the husband's death in case he alone sur- | WRIT AND PROCESS. Setting aside Judgment for Insufficiency 233 1. Service of summons within the state on is insufficient to give the court jurisdiction resident directors of a foreign corporation of such corporation, where, at the time of Reasonableness of License Fee on, see within the state, and had designated no such service, it had ceased to do business TRIAL, 5. WIRES. agent upon whom service could be made. Conley v. Mathieson Alkali Works, 1113 2. Service of summons within the state on resident directors of a foreign corporation of such corporation, where at the time tion is insufficient to give the court jurisdicof such service it had ceased to do business within the state, and had designated no agent on whom service could be made. Geer v. Mathieson Alkali Works, 1122 missioner of Kentucky, of the license to do 3. The cancelation, by the insurance combusiness in that state, granted to an insurant to Ky. Stat. 1899, § 631, that service ance company which had consented, pursuof process upon such commissioner in any action brought in the state should be a valid service upon the company, does not render such service insufficient to bring that company into a court of the state as a party defendant to a suit brought by a citizen of such state upon a cause of action which arose out of transactions between the parties while the insurance company was carrying on business in Kentucky under the license. Mutual Reserve Fund Life Asso. v. Phelps, MAR 3- 1916 |