The Toledo and Wabash R. R. Co. v. Daniels. the Court as to the law governing the case, but we say to you that you can not do that. The Court may err, but it is not the province of the jury to determine whether the law as delivered to them by the Court be correct or incorrect. If wrong, the party feeling agrieved by it, has his remedy by appeal to the Supreme Court." To the giving of this charge the defendant at the time excepted, on the ground that it was not in writing. The code says: "When the argument of the cause is concluded, the Court shall give general instructions to the jury, which shall be in writing, and be numbered and signed by the judge, if required by either party." 2 R. S. (G. & H.) page 198, sec. 324. This provision seems to be imperative. Indeed we have often decided that when the Court has had timely notice of the desire of one of the parties that a written charge only shall be given to the jury, it is error to give a verbal charge, or if written to accompany it with verbal modifications or explanations. Laselle v. Wells, 17 Ind. 33; Kenworthy v. Williams, 5 Ind. 375; Rising Sun Turnpike Co. v. Conway, 7 id. 187. But the appellees argue that the spirit of the law has been complied with; that its purpose was to give the party, requiring instructions to be in writing, the benefit of a record containing the words used by the Court; that, in this instance, the judge, at the very time the objection was made, set out, in a bill of exceptions, the exact words used by him in his verbal charge, and hence the plaintiff has no right to complain. We are not inclined to adopt that argument. The statute, as we understand it, requires the Court, when asked for written instructions, to reduce them to writing, and then give them, as written, to the jury. This construction of the statute, in its strictness, as a rule of practice, imposes no hardship, and were the rule once relaxed it is easy to see that the object of it would be defeated. The Turnpike Co. v. Conway, supra. The City of Madison et al. v. Whitney, President, &c. We think that the Court, in charging verbally when requested to charge in writing, committed an error for which there should be a reversal. Per Curiam.-The judgment is reversed, with costs. Cause remanded. William Z. Stuart, for the appellant. THE CITY OF MADISON et al. v. WHITNEY, President, &c. BANK STOCK-TAXATION.-Under the charter of the city of Madison, bank stocks should be assessed, for municipal taxation, in the names of the individual stockholders, and not in the name of the bank. SAME-STATUTES CONSTRUED.-The act of 1861, providing for the taxation of bank stocks against the banks, and not the stockholders, only applies to the taxation for State and county purposes, and not to taxation for municipal purposes. 1 G. & H. 17. SAME.-Semble, that municipal corporations can not tax bank stock owned by non-residents of the city, because such stock can have no location or situs other than the domicil of the owner. SAME-UNITED STATES STOCKS.-Semble, also, that the bonds and stocks of the United States can not be taxed under State authority. SAME.-But, quære, whether a bank, organized under the general banking law of Indiana, can legally divert her capital from the business for which the corporation was created, and invest it in United States stocks, and thus deprive the State of any revenue therefrom. APPEAL from the Jefferson Circuit Court. WORDEN, J.-The Indiana Bank is a stock bank, organized under the general banking law of Indiana, doing business The City of Madison et al. v. Whitney, President, &c. and having its banking house in the city of Madison. The paid-in capital of the bank, at the time of the assessment of the taxes hereinafter mentioned, was 103,500 dollars. A part of the stock, viz: 90,000 dollars thereof, had been invested in the bonds of the United States, issued and purchased by the bank after the passage of the act of Congress of February 25, 1862. "The said bank having loaned that much of her capital to the United States and taken said bonds therefor." The city of Madison for the year 1862 assessed a tax against the bank on her capital stock for municipal purposes. This action was brought to restrain the collection of said taxes, and a perpetual injunction was granted below. The city appeals. There were two grounds on which it is claimed that the taxes were not collectable: First, that the stock should have been assessed to the individual stockholders and not against the bank; and, Second, that the amount thus invested in the bonds of the United States was not taxable. of opinion that the first position was well taken. We are The city of Madison is governed by a special charter. Under that charter the proper mode of taxing bank stock is to assess it against the individual stockholder, and not against the corporation. King v. The City of Madison, 17 Ind. 48. An act was passed in 1861 (1 G. & H. p. 17,) providing for the taxation of bank stock against the banks, and not the stockholders, but this act, as we construe it, only applies to taxation for State and county purposes, and not to taxes to be collected by municipal corporations. Whether or not cities, existing under the general law for the incorporation of cities, might not assess and collect taxes against the stock banks in the manner prescribed by the act of 1861, we have not inquired; but we think it clear that the city of Madison can only assess the tax upon the stockholders. It appears in the case that a portion of the stock was owned by persons who were not inhabitants of the city, and it is The City of Madison et al. v. Whitney, President, &c. proper to remark that it would seem, from the general tenor of the decisions, that such stock can not be taxed by the city; such stock having no location or situs other than the domicil of the owner. Hoyt v. The Commissioners of Taxes, 23 N. Y. 224; The City of Evansville v. Hall, 14 Ind. 27; Powell v. The City of Madison, at the present term. The judgment below will have to be affirmed, on the ground that the taxes could not be assessed against the bank, whatever might be our views on the second ground on which it was sought to restrain the collection. We shall express no opinion on the latter question, as the result must be the same whatever might be our conclusion in respect to it. But for convenience of reference, we note the following authorities as bearing upon the question of the taxation, by or under State authority, of the stocks of the United States: The People ex rel. The Bank of the Commonwealth v. The Commissioners of Assessments, &c., 32 Barb. 509; reported in Bankers Magazine for December, 1860. In this case it was held that such stocks were taxable by State authority. This judgment was affirmed by the Court of Appeals. 23 N. Y. 192. But was reversed by the Supreme Court of the United States. Am. Law Reg. vol. 11, p. 614. See also id. p. 31, for a case originating since the act of Congress exempting such stocks from State taxation. The above cases we believe contain a reference to all the previous adjudications that bear upon the question. Admitting that the stocks and bonds of the United States can not be taxed by State authority, still it might be a question worthy of examination whether a bank, organized under our general banking law, could divert her capital from the business for which the corporation was created, and invest it in United States stocks, thereby depriving the State of a revenue which she might have contemplated receiving when the law was passed, by virtue of which the bank was brought into. existence. But of this we determine nothing. Reagan v. Long's Administratrix. Per Curiam.-The judgment below is affirmed, with costs. REAGAN V. LONG's Administratix. ADMINISTRATOR de son tort.-A person sued as an administrator de son tort, to recover the value of assets of the estate, which he had converted to his own use, or disposed of, is entitled to be allowed, in reduction of damages, the amount of such assets applied by him to the proper uses of the estate, in the payment of debts, or otherwise. SAME PRACTICE.-In such an action, the defendant, under the general denial of the complaint, may give evidence generally tending to disprove the plaintiff's right to recover, or to damages. APPEAL from the Hendricks Common Pleas. PERKINS, J.-Terrissa Long, administratrix of the estate of Henry Long, deceased, sued William I. Reagan in an action in the nature of trespass, to recover of him the damages Long's estate had sustained through his intermeddling with the property of the deceased. Reagan answered in general denial, and by setting up several matters of defence specially, some going in bar, and some in mitigation of damages. His special answers were held bad on demurrer. On the trial upon the general issue, the plaintiff had judgment. The facts are shortly these: After the death of Long, his widow, Terrissa, before taking out letters of administration, disposed of certain property of the deceased to Reagan, and also placed in his hands accounts which he was to collect, and, with the proceeds, pay debts owed by the deceased. |