Stock.

Live-stock shipments, see "Carriers," 2-5. Of corporations, see "Corporations," 21-23.

Stockholders.

See "Corporations," 25-33.

Street.

acts were revived by the repeal of Laws 1875, c. 371, which repealed them.-People v. Cole man, (N. Y. App.) 31 N. E. 1022.

4. The surplus of a foreign savings bank, invested in the capital stock of domestic banks, state and national, is taxable in this state, under Laws 1882, c. 409, § 312, which provides that the stockholders in every bank, state or national, shall be assessed or taxed on the value of their shares of stock at the place where the bank is located, and that such shares of stock

Subpoena.

Waiver of defects, see "Taxation," 19.

SUBROGATION.

Of insurance company, see "Insurance," 30.
To lien of mortgage.

Where a person purchases land subject to a mortgage, pending proceedings to establish a ditch, and afterwards pays the mortgage, he pays it as owner, and presumptively as part of the purchase money, and thereby extinguishes it; and he is not entitled to be subrogated to the lien of the mortgage, so as to defeat the lien of the assessment for constructing the ditch.-Shirk T. Whitten, (Ind. Sup.) 31 N. E. 87.

owned by individuals, and with like deductions. 18 N. Y. S. 675, affirmed.-People v. Coleman, (N. Y. App.) 31 N. E. 1022.

5. A foreign corporation which does some of its manufacturing in New York, though the greater portion is done in another state, is within the exception of Laws 1880, c. 542, § 3, as amended by Laws 1855, c. 359, providing that any foreign corporation doing business in New York shall be taxable there, except manufacturing corporations "carrying on manufacture * within this state." 16 N. Y. S. 602, reversed.— People v. Wemple, (N. Y. App.) 31 N. E. 238.

6. Under Laws 1880, c. 542, which provides that the basis of the taxation of foreign corporations not within any of the exceptions "shall be state," the value of all goods on hand, and propthe amount of capital stock employed in this erty and money on deposit and used in business, in New York, may be considered in estimating the amount, but not sales made by sample at its business offices in New York, to persons without the state, with delivery from its factory in another state. 16 N. Y. S. 602, reversed.-People v. Wemple, (N. Y. App.) 31 N. E. 238.

7. A joint-stock association, formed by private agreement between individuals is not taxable under 1 Rev. St. pt. 1, c. 13, tit. 4, § 1, providing that all moneyed or stock corporations, deriving an income or profit from their capital, or otherwise, shall be liable to taxation on their capital in the manner therein prescribed. 13 N. Y. S. 833, affirmed.-People v. Coleman, (N. Y. App.) 31 N. E. 96.

8. Even if the city of Brooklyn extends

Action by taxpayer, see "Towns," 2.

By towns, see "Towns," 4-8.

flict of Laws."

Of costs, see "Costs," 2-8.

Of lunatic's property, see "Insanity," 5.

Of railroad companies, see "Railroad Companies," 6.

Payment of taxes by cotenant, see "Tenancy in Common and Joint Tenancy."

The power.

1. The board of trustees of a civil town having no authority to levy a tax for a special school fund, such unauthorized levy cannot be legalized by ratification by the board of trustees of the school town.-Shepardson v. Gillett, (Ind. Sup.) 31 N. E. 788.

Taxable persons and property.

2. Even if land below low-water mark of Gowanus bay, not made an accretion by alluvion or the erection of piers, is not in the city of Brooklyn, but in the city of New York, such land, where it is part of an occupied lot, and the other part is above low-water mark, and in the city of Brooklyn, is properly assessed in such city, under 1 Rev. St. c. 13, tit. 2, art. 1, § 4, as amended May 11, 1886, providing that, when the line between two counties divides a farm or lot, the same shall be taxed, if occupied in the county where the occupant resides. Tebo v. City of Brooklyn, (N. Y. App.) 31 N.

E. 984.

3. Acts 1866, c. 761, § 7, and Acts 1867, c. 861, which provided for the taxation of the "privileges and franchises" of savings banks, manifestly have no application to foreign savings banks, even if it be conceded that these

Place of taxation.

9. 1 Rev. St. p. 389, § 5, as amended by Laws 1851, c. 176, provides that every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, etc., and in no case shall property so held under either of those trusts be assessed against any other person. The charter of the village of Bath (Laws 1851, p. 514 et seq.) gives the village assessors within the village all the powers of town assessors. Held, that land contracts owned by nonresidents of the United States on land within the state, and held by an agent residing in the village of Bath, were taxable in the village of Bath, whether the land was within the village or not. 12 N. Y. S. 385, reversed.-People v. Willis, (N. Y. App.) 31 N. E.

225.

Property previously omitted.

10. Act March 29, 1881, (3 Rev. St. 1888, § 6269 et seq.,) relating to assessment and taxation, being prospective only, gives the auditor no authority to make assessments under it for property omitted for any year prior to 1881, and an assessment so made is void. Lang v. Clapp, 3 N. E. 197, 103 Ind. 17, followed.-Hennel v. Board E. 462. Com'rs Vanderburgh County, (Ind. Sup.) 81 N.

Exemptions.

11. Laws 1857, c. 456, § 4, which provides that deposits in any bank for savings which are

due to depositors shall not be liable to taxation other than the real estate and stocks which may be owned by, such bank or company, was intended to exempt savings banks from taxation only to the extent of deposits due depositors, leaving the surplus held by such banks still liable to taxation.-People v. Coleman, (N. Y. App.) 31 N. E. 1022.

12. 1 Rev. St. p. 388, § 4, subd. 7, which exempts from taxation the personal property of every incorporated company not made liable to taxation on its "capital," applies only to corporations having a capital stock, and hence a saving bank having no capital stock is not within the statute. Catlin v. Trustees, etc., 20 N. E. 864, 113 N. Y. 133, followed.-People v. Coleman, (N. Y. App.) 31 N. E. 1022.

13. Where the tax commissioners have de ducted from the assets of a foreign savings bank all its liabilities, and also all its property exempt from taxation, and all its property subject to taxation elsewhere, and have thus ascertained its surplus, and have assessed its investments in the stock of domestic corporations on that basis, such foreign bank is not entitled to a further deduction of all its liabilities from the assessment thus made. 18 N. Y. S. 675, affirmed.-People v. Coleman, (N. Y. App.) 31 N. E. 1022.

Assessment and levy.

14. Tax law 1891, § 51, provides that, where any person shall neglect or refuse to make out and deliver a sworn statement of his property to the assessor, or if the assessor shall be in doubt whether such statement is correct, he shall examine on oath any other person whom he believes to have knowledge of the amount or value of any property owned or held by the person so neglecting or refusing. Held, that under it the assessor has authority to call before him arbitrarily any one whom he chooses to call because of such doubt.-Burns v. State, (Ind. App.) 31 N.

E. 547.

15. Though, under sections 51 and 56 of the act, the power to examine witnesses is conferred on township assessors only, yet county assessors have the same authority, by section 113 of the act. -Burns v. State, (Ind. App.) 31 N. E. 517.

Prosecution for refusal to testify

before assessor.

16. An affidavit and information charged that defendant unlawfully refused to be sworn or affirmed to testify on request of the county assessor as to the existence of personal property in listing the property of certain named persons for taxation; that such assessor doubted the correctness of the lists returned by such persons, and caused a subpoena to be served on defendant, and that defendant appeared in answer to the subpoena, but unlawfully refused to be sworn or affirmed. Held, that an offense was stated under the tax law of 1891, $ 57, which provides that, if any person requested by the assessor to give evidence "in any case," when interrogated by the assessor as to any property of himself or others, shall refuse to be sworn or affirmed, he shall be subject to fine and imprisonment. Burns v State, (Ind. App.) 31 N. E. 547.

17 It was not necessary that the information allege that such persons were residents of any particular township in the county, since under the act a person may be a resident of one township, yet be required to list personal property in another township.-Burns v. State, (Ind. App.) 81 N. E. 547.

18. Defendant was asked by the assessor to take the following oath: "Do you solemnly swear that you will truly answer such questions that may be asked you by the county assessor touching the persons whose property is affected by this examination, to wit;" then followed the names. Held, that the form of the oath implied that the questions to be answered were to be only such as the law required him to answer.-Burns v. State, (Ind. App.) 31 N. E. 547.

19. The appearance of defendant in obedience to the subpoena waived any question as to its form. -Burns v. State, (Ind. App.) 31 N. E. 547. Sale for nonpayment.

20. Under Rev. St. 1874, c. 120, § 216, which provided that notice of the time in which to redeem land from tax sale must be served " upon the person in whose name the same was taxed or specially assessed,” proof of service of such notice on the person in whose name the land was taxed is insufficient to sustain a sale for a special assessment, even where it does not appear whether the land was specially assessed in the name of any person or not.-Gage v. Webb, (Ill. Sup.) 31 N. E. 130.

Remedies for erroneous taxation.

21. The enforcement of taxes will not be enjoined as illegally assessed, where any part of the same is legal.-Shepardson v. Gillett, (Ind. Sup.) 31 N. E. 788.

23. Since Rev. St. § 5848, provides for enjoining the assessment or collection of illegal taxes and for the recovery of such taxes paid, to entitle one to recover such taxes after payment it must appear that the treasurer was about to levy on his property: payment with a simple protest against the validity of the assessment, and notice to the treasurer that action would be brought to recover it back, not being sufficient.-Whitbeck v. Minch, (Ohio Sup.) 31 N. E.

743.

recover

assessment, and the taxes are collected by levy 23. Where a county auditor makes an illegal and execution, the person injured can from the county the amount so illegally collected. (Ind. Sup.) 31 N. E. 462. -Hennel v. Board Com'rs Vanderburgh County,

Tax titles-Action to set aside.

24. A bill to set aside a tax deed, which alleges in substance that the affidavit on which the deed was issued did not show service on the person in whose name the property was specially assessed, or that he could not be found in the county, that no notice was served on such person, and that the defendant did not deliver to the county clerk any affidavit entitling him to said deed, is sufficient, when not demurred to, to ad

mit proof that notice of the time to redeem had not been served on the proper person.-Gage v. Webb, (Ill. Sup.) 31 N. E. 130.

Rights of defeated purchasers at tax

sales.

25. Land on which the owner has given a mortgage to the state to secure school funds is as much liable to taxation as any land, so that one buying it at a tax sale, within the year for redemption from a sale on foreclosure of the mortgage, cannot, by reason of such mortgage and foreclosure, recover the amount paid, under the provisions of Rev. St. 1881, § 6487, and Acts 1883, p. 95, § 1, allowing such recovery where the land sold was not subject to taxation, and the sale was "without authority of law. "-McWhinney v. City of Logansport, (Ind. Sup.) 31 N. E. 449.

26. A payment of taxes by the purchaser at tax sale, after the expiration of the year for revoluntary, a recovery thereof cannot be had.demption from the mortgage foreclosure, being McWhinney v. City of Logansport, (Ind. Sup.) 31 N. E. 449.

TENANCY IN COMMON AND JOINT TENANCY.

Ouster and adverse possession.

Exclusive possession by one tenant in common is not adverse to his cotenant where he does nothing to apprise his cotenant that he claims the entire fee, except to receive the rents and pay the taxes, even though he acquires during that time title from another source.-Sontag v. Bigelow, (II. Sup.) 31 N. E. 674.

TENDER.

Necessity to make, see "Specific ance," 5.

Rescission of sale-Return of like property.

Plaintiff ordered defendant, as a broker, to buy for him a number of shares in a mining company, and the shares were delivered to him by defendant. Afterwards the property of the company was bought by another company, and the stock of the former made convertible into stock of the latter, and plaintiff had his stock so converted. Subsequently plaintiff discovered that defendant did not buy the shares for him, but only turned over some which he himself owned, and thereupon plaintiff sought to rescind the purchase, and for that purpose borrowed the requisite number of shares in the original company, and tendered them to defendant. Held, that the tender was good, since, the shares being of like value, plaintiff was not bound to return the same shares he received, and, having borrowed them for that purpose, had the right to transfer title to defendant, thus restoring him to all the rights parted_with. 10 N. Y. S. 230, reversed.-Mayo v. Knowlton, (N. Y. App.) 31 N. E. 985.

Testamentary Powers.

See, also, "Bridges;" "Drainage:" "Highways;" "Municipal Corporations:" "Poor and Poor Laws;" "Schools and School Districts." Liability for sheep killed, see "Animals," 2. Issuance of bonds-Power.

1. Under Const. art. 13, § 1, a town cannot issue bonds to procure funds with which to rebuild a schoolhouse, where the bonds, if issued, will create an indebtedness in excess of 2 per cent. of the taxable value of the property within the town limits.-Town of Winamac v. Huddle ston, (Ind. Sup.) 31 N. E. 561.

Taxation.

4. Rev. St. 1891, c. 139, art. 4, § 3, authorizes the electors present at the annual town meeting to levy a tax for all township purposes. Article 13, § 7, of said chapter, directs the board of town auditors to make and file with the town clerk a certificate of claims, audited by them, and provides that "the aggregate amount thereof shall be certified to the county clerk at the same time, and in the same manner, as other amounts required to be raised for town purposes, which shall be levied and collected as other town taxes." Held, that the board of town auditors have no power to levy town taxes.-Peoria, D. & E. Ry. Co. v. People, (Ill. Sup.) 31 N. E. 113.

5. Rev. St. 1891, c. 139, art. 12, § 4, requires the town clerk to certify to the county clerk the amount of taxes required to be raised for town purposes. Held, that a statement signed by the board of town auditors, and merely authenticated by the clerk, was not such a certificate as would justify extending the amount stated therein as town taxes. -Peoria, D. & E. Ry. Co. v. People, (III. Sup.) 31 N. E. 113.

6. A statement signed by the board of town auditors, and authenticated by the clerk, which merely says "that 25 per cent. of tax shall be levied on the real estate and personal property of said town, including railroad track and rolling stock for town purposes, and for the payment of outstanding orders," is too indefinite to justify extending any tax.-Peoria, D. & E. Ry. Co. v. People, (Ill. Sup.) 31 N. E. 113.

7. Where, pending an appeal to the supreme court involving the validity of a certain tax levied on all taxable property in a township for the purpose of meeting an appropriation voted by it, the boundaries of such township are changed, and thereby certain real estate in another township is attached to the township whose property is sought to be taxed, and the supreme court deis subject to such tax.-Lake Shore & M. S. Ry. clares the tax valid, the real estate so attached & O. & C. R. Co. v. Same, Id. 199. Co. v. Smith, (Ind. Sup.) 31 N. E. 196; Baltimore

8. Rev. St. 1891, c. 120, § 191, which declares that no error or informality in assessing, levying, or collecting taxes, "not affecting the substantial justice of the tax itself," shall vitiate a tax, does not prevent a taxpayer from_contestcounty clerk, without having been levied by the ing the validity of a town tax extended by the Peoria, D. & E. Ry. Co. v. People, (Ill. Sup.) 31 town electors or certified by the town clerk.— N. E. 113.

TRADE-MARKS AND TRADE

NAMES.

Enjoining infringement - Turpitude of complainant.

1. An injunction will not be granted to restrain the fraudulent use by defendant of a trade-mark claimed by plaintiff as its exclusive property, where plaintiff itself uses the trademark in part in violation of its established meaning, as a means of selling another product than that to which it can rightfully be applied, and to which the public have been and are led to believe it is alone applied.-Prince Manuf'g Co. v. Prince's Metallic Paint Co., (N. Y. App.) 31 N. E. 990.

2. The fact that the misrepresentation does not appear on the face of the trade-mark, or in advertisements or circulars, is immaterial where the trade-mark has a particular meaning with the trade, as being applicable only to a certain product, since there is an implied representation that it will only be applied to such product. -Prince Manuf'g Co. v. Prince's Metallic Paint Co., (N. Y. App.) 31 N. E. 990.

8. Nor is it material that the product to which the trade-mark is attached by plaintiff

Held, that the latter objection was was not waived by the former. Connell, (N. Y. App.) 31 N. E. 22. Arguments of counsel.

11. The argument of counsel being within the evidence, mere exaggerated language, if permitted by the court, will not work a reversal.-Kain v. Bare, (Ind. App.) 31 N. E. 205.

Right to open and close.

12. Where plaintiff is not entitled to his entire demand on his pleadings without evidence as to the amount, he is entitled to open and close, though defendant pleads a recoupment.-Stames v. Schofield, (Ind. App.) 31 N. E. 480.

E. 74.

15. In an action for personal injuries alleged to have been caused by defendant's negligence, the instructions as to the law of negligence and contributory negligence, if applicable to the facts as shown by the evidence, are not erroneous because they do not state any of the facts.Pennsylvania Co. v. Horton, (Ind. Sup.) 31 N. E. 45.

16. It is not the duty of the court to give an instruction asked, unless it is correct and accurate in the form in which it is asked. -Goodwine v. State, (Ind. App.) 31 N. E. 554.

17. In an action against a railroad company by an employe for injuries received while coupling cars, where the complaint alleged that the engine used was defective, instructions as to the master's duty in regard to providing a safe machino and keeping it in repair, favorable alike to both parties, although too lengthy, and containing repetitions of legal principles favorable to plaintiff, given by the court on its own motion and by plaintiff's request, but which, as a whole, fairly state the law, are not harmful.-Wabash W. Ry. Co. v. Morgan, (Ind. Sup.) 31 N. E. 661. 18. In an action against a city for personal injuries occasioned by a defective sidewalk, the omission in one of a series of instructions referring to the defect in the sidewalk to designate the defect as that alleged in the declaration is not error where the whole series is so drawn that the jury could not have understood them to refer to any other defect.-City of Sandwich v. Dolan, (Ill. Sup.) 31 N. E. 416.

19. An instruction that the jury are to be guided by their own "judgment" in determining whether, from all the facts and circumstances in a case, a party is guilty of the charge against him, is not erroneous as telling them that they may disregard the rules of law in coming to such determination. Densmore v. State, 67 Ind. 306, and Wright v. State, 69 Ind. 163, distinguished. Timmis v. Wade, (Ind. App.) 31 N. E. 827.

Invading province of jury.

20. Where, in an action to recover damages for personal injuries, defendant pleaded a release, there was no error in a statement of the judge to the jury that there was no suggestion that plaintiff was incapable of acting for himself, and that consequently a release was binding upon him if read to him when plaintiff had not alleged incapacity, and it was uncontroverted that he had such capacity.--McGuire v. Lawrence Manuf'g Co., (Mass.) 31 N. E. 3.

21. Where the issue in an action for the price of yarn was whether the sale, which was "net" weight, was of yarn simply, or included tubes on which it was wound, rulings based on the bypothesis that the sale was one of yarn only were rightly refused. -Nonantum Worsted Co. v. North Adams Manuf'g Co., (Mass.) 81 N. E. 293.

22. It is proper to instruct the jury that they are the sole judges of the credibility of the witnesses and of the weight to be given to the evidence of each and all of them.-Chicago & A. R Co. v. Fisher, (Ill. Sup.) 31 N. E. 406.

Variance with pleading.

23. A complaint for personal injuries alleged that defendant negligently overloaded a baggage truck, and placed it so as to obstruct a public sidewalk; that the truck could not be passed without taking hold of it; and that, the truck fell on her without her fault. Held, while plaintiff was passing along the sidewalk, that there was not a variance between the complaint and the instructions sufficient to justify a reversal, though the court charged that if the truck was carelessly loaded by another company. and placed across the sidewalk, and was received by defendant's employes in that condition, and suffered to remain, and plaintiff in passing touched the truck, which caused it to fall, then defendant was liable.-Louisville, N. A. & C. Ry. Co. v. Shanks, (Ind. Sup.) 31 N. E. 1111.

Waiver of objections.

24. Objection that the court assumed a fact in

his charge was waived where, upon an exception, the court replied that such portion of the charge would be withdrawn if there was any evidence to the contrary, and no response was made to the offer.-McGuire v. Lawrence Manuf'g Co., (Mass.) 31 N. E. 3.

Objections to.

25. An exception to the "giving of the third and fourth instructions" asked by defendant, assigned as error in similar language on a mo tion for a new trial, is a joint exception, and does not bring up for review the correctness of each separate instruction; and, one of such instructions being concededly correct, the other will not be examined by the supreme court.State v. Gregory, (Ind. Sup.) 31 N. E. 952. Directing verdict.

26. In an action for breach of a contract to buy land the court properly refused to direct a verdict for plaintiff where there was evidence suficient to support a decree for defendants, who alleged that they had only agreed to purchase at their option, and that the terms of the contract had been omitted by mistake, and prayed that it be reformed. -Southard v. Curley, (N. Y. App.) 31 N. E. 330.

Verdict.

27. Where there are several defendants, and the evidence is susceptible of two theories, one of which is inconsistent with the liability of one of such defendants, which theory is adopted by the jury, such defendant cannot be held liable.-Fike v. Davis, (Ind. App.) 31 N. E. 553.

Special findings.

28. In an action against a railroad company by an employe for injuries received while coupling cars, where the complaint alleged that the engine used was defective, an interrogatory by plaintiff to the jury, asking if the foreman of de fendant's engine shops was not notified, prior to the injury, by an engineer of the engine, of its unfitness for use, was properly allowed. - Wabash W. Ry. Co. v. Morgan, (Ind. Sup.) 31 N. E. 661.

29. Where facts necessary for a recovery are not stated in a special verdict, they cannot be presumed as so found, but must be regarded as found against such recovery. - Davis V. Schmidt, (Ind. App.) 31 N. E. 840.

30. A venire de novo will not be awarded be cause the special verdict does not find all the facts; but the ultimate facts establishing the cause of action must appear, or the court cannot apply the law, and mere evidentiary matters are out of place and valueless in a special verdict.-Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956.