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1. ENJOINING TAXATION OF NATIONAL BANK BANK A PROPER PARTY.

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A bank is a proper party complainant to a bill in equity, to enjoin the collection of a tax upon its shares, assessed against its stockholders, if it be shown that the bank would be subjected to a multiplicity of suits, whereby its business will be interfered with, its credit impaired, and its stock depreciated. City National Bank of Paducah v. City of Paducah, C. C. U. S. Ky., Čent. L. J., October 19,

1877.

SUITS.

2. INJUNCTION TO STAY TAX. GROUNDS OF. MULTIPLICITY OF The remedy by injunction to stay the collection of a tax upon personal property may be invoked where the enforcement of the tax would lead to the multiplicity of suits, or where the law authorizing the tax is itself invalid.

Ib.

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3. TAXATION OF NATIONAL BANK SHARES. -RATE OF TAXATION. -Where, by the laws of a state or municipality, different rates of taxation are imposed upon different classes of moneyed capital, such state or municipality may not tax the shares of national banks at the highest rate imposed upon any class, regardless of the proportion which that class bears to other classes; nor, upon the other hand, is it confined to the lowest rate imposed upon any class. Where different rates of taxation are prescribed for different classes of "other moneyed capital," the rate imposed upon shares in national banks should not, as a general rule, exceed that imposed upon other moneyed capital of the same class, viz.: shares in state banks. Where practically the entire banking capital of the State of Kentucky was exempted from taxation, beyond fifty cents per share, and included in this enumeration was a state bank in Paducah, the capital stock of which exceeded that of all the national banks located there, it was held that an ordinance imposing a tax of $1.05, nominally upon all banks in the city, but from which the state banks had been adjudged exempt, was an unlawful discrimination against the national banks, and therefore invalid. 1b.

4. IBID. DEDUCTION OF SHAREHOLDER'S INDEBTEDNESS. Where other moneyed capital than bank stocks was also taxed at $1.05, but with a proviso that, from the amount of this capital, the entire indebtedness. of the owner should be deducted before the assessment was made, and no such deduction was allowed where such capital consisted of shares in national banks, the tax upon such shares was held invalid. Ib.

5. IBID. DEDUCTING REAL ESTATE OWNED BY BANK. DOUBLE ΤΑΧΑΤΙΟΝ. - The tax was also held invalid for the reason that no provision was made for deducting the value of real estate owned by the bank, which was thereby subjected to double taxation. 1b.

Vol. IV.]

DIGEST OF CASES.

[No. 12.

EJECTION OF PASSENGER.

ETC.

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NEGLIGENCE.

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RETENTION OF PASSENGER'S MONEY BY CONDUCTOR. CONTRIBUTORY NEGLIGENCE. -DUTY OF CONDUCTOR, The plaintiff took a seat in a railroad car to be carried to the next station on defendant's road, but not having the usual fare for that point, twenty-five cents, handed the conductor a five dollar bill out of which to take the fare. The conductor was unable to make change, but promised to do so at the next station. On arriving there, which was the end of his journey, the plaintiff seeing the conductor getting on the train and starting it without giving him his change, ran after the train and got onto the car as it was moving from the station, for the sole purpose of getting his money. The conductor, on demand for his change, handed him back the same bill, and, as plaintiff claimed, told him to get off the train as quickly as possible, which he did, and was thereby injured. It did not appear that the remark of the conductor caused the plaintiff to act differently from what he otherwise would have done, nor that he requested that the train should be stopped or slackened up to enable him to get off in safety. Held, (1) that at the time of the accident the relation of passenger and carrier did not subsist between the plaintiff and defendant; (2) that at the time of the accident the duties and obligations of the company towards the plaintiff were such as existed in his favor as one of the general public growing out of the failure of the conductor to return him his money; (3) the nature and effect of the remark of the conductor and the action of defendant in leaving the train were questions for the jury. It was error for the court to charge the jury that if the conductor ordered or directed the plaintiff to get off the train, or told him to get off as quick as he could, while the same was moving, without stopping it or slackening its speed, then the defendant would be liable for injuries resulting from jumping off, provided in so jumping he exercised due care and prudence. 1st. Because such charge assumed as a matter of law for the court, and not of fact for the jury, that such an order or remark caused the plaintiff to leap from the train while in motion; and 2d. Because it took from the jury not only the question of liability of the defendant, but also the question of contributory negligence of the plaintiff as to the act of jumping off, and, as matter of law, made the company liable for all consequences, however imprudent the act might have been, although voluntary, if the mode and manner of jumping were prudent.-Krouse v. Pittsburg, Cin., & St. L. R. R. Co., S. C. Ohio, Cent. L. J., October 19, 1877.

See BILLS AND NOTES, 1; MASTER AND SERVANT.

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whether a given state of undisputed facts will rebut such a presumption

as that of payment from lapse of time.

To a scire facias sur recogni

Vol. IV.]

DIGEST OF CASES.

[No. 12.

zance issued in 1874 by K., the administrator of the obligee, B., pleaded payment, and testified that he had entered into the instrument sued on in 1839, and in 1840 paid the full amount of the debt to the clerk of the court in which the recognizance was given. He further testified that from 1840 to the beginning of the action he had frequently met the obligee, who had never mentioned the debt. There was no contradictory evidence, and no evidence of B.'s insolvency at any time. Held, that the original presumption of payment from lapse of time was not rebutted through B.'s admission of payment to an unauthorized person, but that, under the evidence, it was to be presumed that the money paid to the clerk had been received by the obligee. Beale's Ex. v. Kirk, S. C. Pa., W. N. C., October 11, 1877.

PRACTICE.

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GENERAL AND SPECIFIC INSTRUCTIONS. Where the court in its general charge to the jury correctly states the general principles applicable to cases of the kind on trial, but follows it by an erroneous specific instruction on a controlling point, as to the legal effect of the case made by the evidence before the jury, which, if followed, misleads the jury, such erroneous specific charge is not cured by the general charge. Krouse v. Pittsburg, Cin., & St. L. R. R. Co., S. Č. Ohio, Cent. L. J., October 19, 1877.

See NATIONAL BANK, 1, 2; NEGLIGENCE.

RECEIVER.

See INJUNCTION.

REMOVAL OF CAUSES.

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POWER OF STATE COURT IN VACATION. A cause was referred to a referee under the statute of Iowa for trial, in vacation. A petition, affidavit and bond were filed in the office of the clerk of the state court, under the Rev. Stats. sec. 539, subdivision 3, for the removal of the cause to the federal court. Held, not to have the effect to divest the jurisdiction of the state court, or of the referee to proceed to a trial pursuant to the order of reference. Under section 639 of the Revised Statutes, a removal of a cause cannot be effected in vacation, without any action of the state court. Scott v. Otis, C. C. U. S. Iowa, Chicago L. N., October 27, 1877.

TORT.

See JUDGMENT.

VOLUNTARY PAYMENT.

COERCION IN FACT AND BY LAW DEFINED.

Money involuntarily paid on an illegal assessment may be recovered back. If the assessment is regular on its face, so that its collection can be enforced by seizure or sale, and evidence aliunde is necessary to show its invalidity, money paid thereon is paid involuntarily or by coercion by law. Peyser v. The Mayor, Ct. App. N. Y., Albany L. J., October 29, 1877.

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NOTE. In place of the Annual Digest of the twelve numbers of THE AMERICAN LAW TIMES published during the year, which has usually been prepared for the bound volume of the REPORTS, the following Index to the numbers for 1877 is given, in the belief that it will practically serve the same purpose. In binding the REPORTS for 1877, the TIMES with this Index will be included at the back of the volume, in place of the Annual Digest.

ADMINISTRATOR. Place of appointment. Trusts, etc..

ADMIRALTY. Revised Statutes, sections 1956 and 4337.

Who are mariners.....

Stoppage of voyage. Rights of seamen...

Rule" Freight is the mother of wages.".

Mortgage where local law gives lien upon the vessel for supplies..

Domestic vessel. Material-man has no lien for repairs...

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Seamen's wages. Remedy given to seamen by section 4546 and 4547..
Appeal from district to circuit court.

Within what time may be taken...

ALIMONY. Imprisonment for failure to comply with decree for payment.

ASSIGNMENT. Equitable assignment. Power of attorney. Death of attorney.

Assignment does not carry with it right of action in tort...

ATTACHMENT. The United States, when a plaintiff in civil action.

ATTORNEY. Employment to examine title. Foreclosure of mortgage. Payment........87 ATTORNEY AND CLIENT. Compensation of attorney..

20

8

9

9

9

.9

.20

..20

..39

...39

.39, 40

.70

..130

130

.29

.52

.52

..145

.143

BANKRUPTCY. Number and value of creditors. Attaching creditors..

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Signature to resolution. Meeting to vary original proposition. When must be held....23

.23

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Separate business and accounts..

Attachment. Bill of sale. Preference.

If there is an omission to enter an order refusing a discharge...
Second petition....

Goods on commission. Fiduciary debt.

The cost of an attachment...

.40

.40

.40

.40

.41

.41

If the bankrupt being trustee, deposited the trust funds in bank..

Marshal's fees. Commissions for disbursements...

The meaning of the word "tradesman "

Composition. Secured creditor. Levy of execution on personal property.

If an assignment is fraudulent...

If there are several judgments...

A creditor who is precluded from assailing an assignment as fraudulent..

A creditor who concurs in fraud with full knowledge of facts.

A party who takes a colorable transfer of a claim..

A creditor who has assented to an assignment..

A judgment against a partner....

A creditor who purchases property from the trustee.

A party who purchases a judgment...

The lien acquired by filing a creditor's bill..

Receiver. Creditor's action. Lien...

The limitation of section 2057..

If the bankrupt gave a deed with warranty of title when he had merely a bond.
The register may designate the newspapers...

An affidavit of defence which sets up adjudication...

Suspension of payment by banks. Special deposit, &c..

A joint creditor may prove against separate estate of bankrupt..

The partners of bankrupt bound by discharge.

Bankruptcy of one partner.

Dissolution..

The claim of an attorney for services...

When defendant in suit by assignee under state law cannot plead bankrupt act.
Transfer of property by insolvent....

.41

.41

41

41

52

.52

53

53

53

53

53

53

53

53

53

53

53

53

53

53

54

54

54

54

54

54

An action by assignee in bankruptcy to recover value of goods..

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Chattel mortgage. Possession by mortgagee before commencement of proceedings.
Proof by assignee, to recover against party who has obtained a preference...

When trader is insolvent..

Reasonable cause to believe debtor to be insolvent.

Disposition of property by an insolvent...

Corporation. Bank. Insolvency. Deposits. Check. The Portsmouth Savings Fund
Society case.

Dividend. Power of register..

Oral testimony to prove assignment..

Creditor may prosecute action against surety..

Agreement between creditors who have received preferences

70

70

70

70

70

71

71

71

71

72

72

72

.72

Promise to pay debt discharged by proceedings.

72

The federal courts have exclusive jurisdiction in actions brought by assignee.
Where sale by insolvent debtor has been avoided.......

87

.87

Where property which has been transferred by debtor to his creditor by sale valid under
state law...

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Mortgage upon real estate executed immediately before proceedings.
Agreement with guardian to execute mortgage..

88

88

Agreement by guardian to discharge one mortgage and take new one.
Omission by creditor in making proof of claim...
Bankrupt who makes wilful and fraudulent omission.

88

88

.88

Where claim originated in contract although fraudulently induced..

Joint estate of partnership first liable for partnership debts...

88

88

Debt of firm which has advanced money to individual member..

Where assignment for benefit of creditors is set aside. Priority..

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Judgment lien. Where judgment creditor of bankrupt proves his debt.
Injunction. When execution creditors of bankrupt petition...
Pleadings, &c. Under section 13 of Revised Statutes...

103

103

103

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