See Carriers; Criminal Law, 304; Indict-
ment and Information, 63; Nuisance, that the purpose for which taxes are raised be
65; Trial, 121; Witnesses, 387.

See Executors and Administrators, 56; Mu- having corporate powers conferred to lend
nicipal Corporations, 592.

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

A taxpayer having a remedy by appeal, or petition for abatement, under Pub. St. 1901, c. 59, § 11, where assessed for more taxes than he is legally required to pay, he cannot question validity of an assessment in any collateral pro

great pond, without raising the natural highwater level thereof, it may subsequently impose a franchise tax, but not a property tax, upon such corporation, based upon increased amount and use of water from said lake or pond, which the corporation enjoys by reason of having ceeding.-Id. erected such dam.-In re Opinions of the Jus-463 (N.H.) Individual taxpayers, who were tices, 106 A. 865.

Where the Legislature has granted a private corporation the right to erect a dam to control and also to raise the natural level of water of a public lake or great pond, in order to impound additional waters to be used for purposes of such corporation, it may subsequently impose a franchise tax, but not a property tax, upon such corporation, based upon increased amount and use of water from said lake or pond which the corporation enjoys by reason of having erected such dam.-Id.

(D) Exemptions.

204(2) (Md.) A claim for a particular exemption from taxation cannot be sustained, unless it is shown to be within the spirit as well as the letter of the law, and the party asserting the exemption must show that the power to tax in the particular case has been clearly relinquished.-Felippe A. Broadbent Mantel Co. of Baltimore City v. City of Baltimore, 106 A. 250.

245 (N.J.) Act March 21, 1916 (P. L. p. 479) § 6, providing that all mausoleums, vaults, crypts, or structures intended to hold or contain bodies of the dead are to be exempt from taxation in like manner as such cemeteries are now exempt by law, does not apply to lands purchased by a corporation not a cemetery association.-Borough of Totowa v. State Board of Taxes and Assessments, 106 A. 18.

V. LEVY AND ASSESSMENT. (D) Mode of Assessment of Corporate Stock, Property, or Receipts. 386 (1) (Md.) Under Code Pub. Civ. Laws, art. 81, § 187, and Acts 1916, c. 508, interest covenanted to be paid on mortgages, and interest received on judgments, both held by a savings bank whose stock was taxed under Code Pub. Civ. Laws, art. 81, § 162, was not taxable to the bank.-Hess v. Westminster Sav. Bank, 106 A. 263.

wronged by being assessed more county taxes than they were legally required to pay, could waive the injury by remaining inactive.-City of Keene v. Cheshire County, 106 A. 486. Where individual taxpayers have by inaction waived their right to complain of an assessment of county taxes in excess of the proportion which they were legally required to pay, no assignees, voluntary or corporate, can in their name or behalf enforce the rights which they have waived.-Id.

494 (1) (N.H.) In view of fact that taxpayer has a remedy, under Pub. St. 1901, e. 59, § 11, by appeal where assessed for more county taxes than he was legally required to pay, supervisory power of the court, if it can be invoked in some other form of procedure, by analogy, must ordinarily be invoked within time limited for appeal.-City of Keene v. Cheshire County, 106 A. 486.

Extraordinary relief will not be granted a taxpayer assessed for more taxes than he should legally be required to pay, unless applied for within a reasonable time.-Id.

Extraordinary relief will not be granted in such case when the effect would be, not to cure a wrong, but merely to transfer the injury to other parties.-Id.

495 (Md.) On appeal to the courts under 3 Code Pub. Gen. Laws, art. 81, §§ 239, 245, from a decision of the state tax commission, the courts can only review questions of law, and cannot take evidence or make assessments.Fidelity Trust Co. v. Gorman, 106 A. 847.

495 (Md.) On appeal from assessment of state tax commission to city court, appellant by making its charter a part of it, and contenwas properly granted leave to amend petition tion that charter is not properly before Court of Appeals, as it was not made a part of the commission, cannot be sustained.-Industrial record transmitted on appeal from state tax Corporation of Baltimore City v. State Tax Commission of Maryland, 106 Å. 852.

VIII. COLLECTION AND ENFORCE-
MENT AGAINST PERSONS OR
PERSONAL PROPERTY.

(A) Collectors and Proceedings for Col-
lection in General.

(F) Equalization of Assessments. 449(5) (N.H.) The only persons injured by an improper apportionment of county taxes as among towns were the individual taxpayers in the several towns who paid more in county546 (N.J.Sup.) A tax collector whose term taxes than they were legally required to pay.City of Keene v. Cheshire County, 106 A. 486.

Under Pub. St. 1901, c. 59, § 11, court has no jurisdiction to entertain an appeal filed more than nine months after notice of an improperly apportioned tax.-Id.

had expired by his re-election was constituted new officer.-Potter v. Union Tp., 106 A. 215.

a

4, 17, 32, P. L. 1899, p. 373, § 4, and Tax 549(4) (N.J.Sup.) In view of Township Act, Act, § 64, a new township committee which could not organize until noon January 1, 1916, might fix salary of a tax collector whose term began at that time by resolution at 2:30 p. m. on that day, in view of time required for organization, etc., which was prior to hour on that day when re-elected collector qualified for a new term.-Potter v. Union Tp., 106 A. 215. XIII. LEGACY, INHERITANCE, AND TRANSFER TAXES.

In action by towns against county and other towns for relief. alleging that plaintiffs were required in certain years to collect and pay to county more taxes than they were legally required to pay, resulting in defendant towns paying a less amount than they should have paid, correction by ordering a reassessment will not be made, unless relief is applied for so promptly as to be effective before substantial change occurs in the proportions of taxes assigned to the towns; nor will an assessment according to the proportions in effect when 859(7) (N.J.) A transfer tax can be legitithe tax was laid be ordered, where the valuations in some of the towns are less than when proportion was established.-Id.

mately imposed by the Legislature upon property which has already been made the subject of a deed of trust, when such deed does not operate to transfer the title to such property

(G) Review, Correction, or Setting Aside until after the tax act comes into being, and Act of Assessment.

453 (N.H.) Ordinarily, the appeal or petition for abatement of tax allowed by Pub. St. 1901, c. 59, § 11, is the only remedy of a taxpayer called upon to pay more county taxes than he was legally required to pay.-City of Keene v. Cheshire County, 106 A. 486.

April 9, 1914 (P. L. p. 267), which imposes a transfer tax upon such property, is not unconstitutional as diminishing the value of vested estates, impairing the obligation of contract, or as taking private property for public use without compensation.-Carter v. Bugbee, 106 A. 412.

Real estate of a resident decedent located in a foreign jurisdiction is not liable to an inheritance tax, under Code Pub. Civ. Laws, art. 81, See Account, 15; Adverse Possession,

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

Laws 1909, c. 283, § 13, applying only to pend-
ing suits.-Richmond v. Kettelle, 106 A. 292.
A judgment against a town treasurer in his
official capacity binds his successor.-Id.

lodges, although it was necessary to secure such indorsements when submitting to the membership amendments to the constitution.-Id.

TREASON.

82 (R.I.) In view of the history of legislation governing liability of town treasurers for judgments for town debts and under Gen. Laws See Constitutional Law, 1909, c. 46, §§ 12-14, a treasurer is not per793, 822, 1050; War, sonally responsible or primarily liable to pay such a judgment in the first instance out of his own pocket, but he may pay and be reimbursed, not being a volunteer.-Richmond v. Kettelle, See Contracts, 232. 106 A. 292.

A judgment against a town treasurer cannot be collected by execution; there being no provision in the law for the issue or service of execution in such case.-Id.

TRADE-MARKS AND TRADE-NAMES.

IV. INFRINGEMENT AND UNFAIR

COMPETITION.

(B) What Competition Unlawful.

70(3) (N.J.Ch.) The naming of stores, "Jos. Hilton & Co.," can be enjoined by a system of stores named "The Hilton Company," although the name of the proprietor of the former system of stores is Joseph Hilton.-Hilton v. Hilton, 106 A. 139.

To constitute unfair competition in the use of a name for a system of stores, the rule is that the similitude must be sufficient to confuse an ordinarily prudent man, but the test as to the care or prudence is not precautions which a reasonably prudent man would take when investing money or what not, but the precautions which he would take ordinarily in determining, in buying a suit of clothes or such, that he was in the store he thought he was in.-Id.

Plaintiff, who has been in business under a certain name, is entitled to have the public know, not only that defendant's company is not the same company, but also that defendant's company is not the business known under the name of plaintiff's company before defendant entered the business field.-Id.

(C) Actions.

95(5) (Del.Ch.) Delay in seeking relief against a continuance of the use of a proprietary name, such as a trade-mark, is not ordinarily a defense recognized in equity courts, however much it may affect the rights to an accounting for profits.-Oklahoma Producing & Refining Co. v. Oklahoma Consol. Producing & Refining Co., 106 A. 38.

TRADE UNIONS.

TREES.

90; Criminal Law, 4.

TRESPASS.

See Party Walls, 8; Railroads,
359; Trial, 194, 238; Waste,
Wharves, 21.

II. ACTIONS.

348, 1;

(A) Right of Action and Defenses. 23 (Vt.) The owner of land is entitled to just compensation for the injuries done to the land by a trespassing wrongdoer, although the injury was committed in good faith and through mistake as to ownership.-Powers v. Trustees of Caledonia County Grammar School, 106 A.

836.

(D) Damages.

52 (Vt.) The owner of land is entitled to just compensation for the injuries done to the land by a trespassing wrongdoer, although the injury was committed in good faith and through mistake as to ownership, and the owner is entitled to recover according to the actual stumpage value of timber cut, with interest.-Powers v. Trustees of Caledonia County Grammar School, 106 A. 836.

57 (Vt.) In an accounting for mesne profits and loss from cutting timber from the land by persons not lawfully in possession, where it was established in prior ejectment action that one of plaintiffs was in unlawful possession of land, but there was no finding that such plaintiffs did or caused anything to be done in the way of cutting timber or otherwise resulting in damage to the land or the owner, her liability was for nominal damages only.-Powers v. Trustees of Caledonia County Grammar School, 106 A. 836.

TRIAL.

See Continuance; Costs; Criminal Law,
636-885; New Trial; Reference.

For trial of particular actions or proceedings,
see also the various specific topics.
For review of rulings at trial, see Appeal and
Error.

III. COURSE AND CONDUCT OF
TRIAL IN GENERAL.

7 (Md.) A suspended subordinate lodge was not entitled to appeal by referendum to the membership from a decision of the general executive board and the international presidenting is a legal right, not a mere matter of judi25(2) (Me.) The right of opening and closof the organization, unless it complied with an order of the president and general executive cial discretion.-Appeal of Rawley, 106 A. 120. board directing that its supplies, papers, and 25(5) (Me.) The right to open and close beproperty be turned over to the grand lodge, longs to the party against whom judgment where the constitution of the grand lodge pro-ed on either side.-Appeal of Rawley, 106 A. would be rendered if no evidence were introducvided that all decisions rendered by the inter120. national president and the general executive board should be complied with in full by the parties concerned in order to entitle them to enter an appeal to the membership.-Baltimore Lodge, No. 405, International Ass'n of Machinists, v. Grand Lodge of International Ass'n of Machinists, 106 A. 692.

IV. RECEPTION OF EVIDENCE. (B) Order of Proof, Rebuttal, and opening Case.

Re

59(2) (Pa.) The order of proof is in the discretion of the court.-Aland v. Pyle, 106 A, 349.

59(2) (Pa.) The order of the admission of evidence is a matter for the trial court.-Kress House Moving Co. v. George Hogg Co., 106 A. 351.

Under a grand lodge constitution providing that all decisions rendered by the international president and the general executive board should be complied with in full by all parties concerned, in order to entitle them to enter an appeal to a convention or through the referendum 62(2) (Vt.) In an action on a fire policy to a membership, the president and the general which was the last of a series of renewal poliexecutive board could not require, as a prece- cies, where the insurer claimed that original dent to appeal, that a subordinate lodge, seeking policy did not include the building destroyed, an appeal through referendum to the member- evidence that such building was substantially ship, secure the indorsement of 40 subordinate completed at the time the original policy was

written held admissible as rebuttal.-Williams breach of the peace occurring at another place Mfg. Co. v. Insurance Co. of North America, a few minutes before.-Calliguiri v. Marro, 106 106 A. 657. A. 780.

66 (R.I.) Where plaintiff, seeking to recov-121(2), (N.H.) In a slander action where a er on a claim against a decedent's estate, had witness who heard defendant make the slanderbeen allowed all the latitude he could ask in ous statements wrote to a man in the town explaining the relations between himself and about it and about that time plaintiff's friends decedent to show he had a lawful claim, the living there began to avoid her, there being no trial judge acted within his discretion in refus- other shown reason therefor, warranted couning to reopen case for further testimony.-Ar- sel in asking the jury to find that defendant nold v. Draper, 106 A. 581. was responsible for the slander being "peddled" over the town.-McDonald v. Smith, 106 A. 558.

(C) Objections, Motions to Strike Out, and Exceptions.

~~79 (Md.) Testimony objected to having been admitted upon defendant's offer to follow it up by showing certain facts, if in plaintiff's opinion defendant failed to prove such facts, plaintiff should have asked the court to exclude the objectionable testimony from the consideration of the jury, if he wished to avail himself of the objection previously made.-Engel v. Schloss, 106 A. 169.

87 (Vt.) A defendant cannot object to evidence not received as against him.-Smith V. Martin, 106 A. 666.

89 (Vt.) Where testimony given was material. the fact that it did not fully come up to the offer of proof afforded no basis for motion to strike it out.-Smith v. Martin, 106 A. 666. 91 (Vt.) In an action for personal injuries, where much of the evidence connecting the injuries with the accident was made without objection, a motion to strike out all the evidence relating to the specified troubles could not have been sustained if seasonably made.- Clair v. Montpelier & W. R. R. Co., 106 A. 587.

91 (Vt.) Where a question has been answered responsively by witness, an exception to the overruling of a motion to strike out the answer is not well taken. In re Clogston's Estate, 106 A. 594.

91 (Vt.) Where evidence came in without objection and without any attempt to stop the witness, a motion to strike out was addressed to the court's discretion.-Thayer v. Glynn, 106 A. 834.

92 (Vt.) Defendant's motion to strike out evidence made after the arguments were closed came too late.-Le Clair v. Montpelier & W. R. R. Co., 106 A. 587.

121(4) (N.H.) In a personal injury action by one thrown off a motorcycle when the machine struck an iron bar used by trackmen of defendant railway company, a remark by counsel for plaintiff that the testimony of some of defendant's witnesses was the result of an imagination cultivated under railroad influence held unobjectionable.-Berry v. Massachusetts North Eastern Street Ry. Co., 106 A. 603.

In action against a street railway company, a remark by counsel for plaintiff that a witness for defendant who had been a master mechanic in manufacturing plants which defendant's counsel termed "great big factories" was under "corporate influence tarred with the corporate brush" held not objectionable.-Id.

122 (N.H.) Where it did not appear that one who could have given material evidence in favor of defendant was without the jurisdiction, or that defendant had attempted to locate him, plaintiff's counsel was justified in arguing that the missing witness would not support defendant's contention.-Brito v. Newmarket Mfg. Co., 106 A. 224.

133(2) (N.H.) Argument by plaintiff's counsel in an action against an executor, based on Pub. St. 1901, c. 224, § 16, that plaintiff could not testify because the executor had not. and that it would have been better if the jury could have heard his story directly, but without drawing any inference from the executor's failure to testify, does not require reversal, where the jury was properly instructed not to draw any inference from such failure.-Butler v. Webster, 106 A. 283.

133(2) (Vt.) In an action against a railroad company for injuries received by a blacksmith who was in his own shop when it was destroyed by defendant's car, an erroneous statement of counsel that physicians attending

101 (Vt.) An exception taken after a responsive answer to question had been given is plaintiff were paid by defendant held not error, too late.-Tyrrell v. Goslant, 106 A. 585.

V. ARGUMENTS AND CONDUCT OF
COUNSEL.

in view of the court's corrective instruction.Le Clair v. Montpelier & W. R. R. Co., 106 A. 587.

VI. TAKING CASE OR QUESTION
FROM JURY.

(A) Questions of Law or of Fact in Gen-
eral.

109 (Vt.) In an action on a fire policy, it was not improper for plaintiff's counsel to tell the jury in his opening statement that others were interested as mortgagees and to outline the situation, where the policy when admitted show-138 (N.H.) Whether evidence should be exed that it was for the benefit of such mortgagee cluded because of lack of good faith in offeras its interest might appear.-Williams Mfg. Co. ing it was necessarily for the trial court, as v. Insurance Co. of North America, 106 A. 657. it depended upon the determination of a ques120(1) (N.H.) That a modern locomotive tion of fact.-Boulanger v. McQuestin & Lewis running 25 miles an hour on a downgrade of 106 A. 492. one-fifth to one-half per cent. can be stopped 139(1) (N.H.) A scintilla of evidence will in less than 30 rods is not such a matter of not justify leaving a case to the jury, as there common knowledge that counsel can argue or must be evidence from which they might reathe jury decide it without any evidence.-Chel- sonably and properly find the fact in issue lis Realty Co. v. Boston & M. R. R., 106 A. proved.-Ingerson v. Grand Trunk Ry., 106 A. 742.

488.

120(2) (N.H.) In an action for damage to 139(2) (Pa.) Where defendant is impropan automobile in a crossing collision, state- erly allowed to cross-examine a witness for ment of plaintiffs' counsel in argument that it plaintiff and shows matters constituting a dedid not take the engineer of a modern locomo-fense to the action, the jury should consider tive 30 rods in which to stop, if he tried, held testimony as if witness had been called and eximproper, as not justified by evidence.-Chellis amined in chief by defendant, and evidence so Realty Co. v. Boston & M. R. R., 106 A. 742. elicited cannot be made the basis of a nonsuit. 120(2) (Vt.) In an action for assault and -Smith v. Standard Steel Car Co., 106 A. 102. battery, statement of plaintiff's counsel in closing argument that defendant had pleaded guilty to the assault upon which the suit was based held unwarranted though the evidence showed that plaintiff had pleaded guilty to a

141 (N.H.) Although the burden of proof rested with plaintiff, a verdict should have been ordered for her if such verdict was the legal result of facts conceded or established as the only conclusion which could reasonably be