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9. Contributory negligence of a person killed on a railroad crossing is so conclusively shown that there is no question for the jury, where the undisputed facts are that he was familiar with the crossing and could not have failed to see the train if he had looked for it while 40 feet distant from the track, but drove slowly upon the track without appearing to see or look for the train until just as it struck him. Northern P. B. Co. v. Freeman, Instructions.
1. Trial by jury under the Constitution means a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (ex-given his testimony is a question for the jury, does not improperly discriminate against him. Davis v. Coblens,
10. The modification of a requested instruction which assumes the credibility of a witness, by stating that the weight to be
cept on acquittal of a criminal charge) to
in a prosecution under U. S. Rev. Stat.
Traction Co. v. Hof,
5208, for unlawful certification of a check, when they come in after consultation and ask for the law as to certification when no money appears to the credit of the drawer and the court assumes to answer it by reference to that section, its failure to explain the meaning of "wilful violation" as used in § 13 of the act of Congress of 1882 when defendant's counsel requests it is error which is not cured by mere reference to the original charge. Spurr v. United States,
Bee CONFISCATION, 3, 4; CONSTITUTION-
Question for Jury, see also ADVERSE
See also APPEAL AND ERROR, 2; CONSTITUTIONAL LAW, 10, 27; CRIMINAL LAW, 1; JUDGMENT, 10.
2. A trial by a jury of twelve men before justice of the peace, having been unknown in England or America before the Declaration of Independence, is not a trial by jury, within the meaning of U. S. Const. 7th Amend.
3. A common-law trial by jury in a court of record upon appeal from a judgment of a justce of the peace in a civil action after giving bond with surety to prosecute the appeal and to abide the judgment of the appellate court, is sufficient to satisfy the constitu-TROVER. tional right of trial by jury. Id.
4. The right of trial by jury is not unduly obstructed by enlarging the civil jurisdiction of justices of the peace to $300, and requiring every appellant to give security to pay and satisfy the judgment of the appellate court in order to obtain a trial by a common-law jury on appeal.
5. A statutory proceeding before a special tribunal, to determine claims against a city which has no legal obligation, is not a suit at common law, within the meaning of U. S. Const. 7th Amend. Guthrie Nat. Bank v. Guthrie, 796
7. The knowledge of local creditors who have accepted a deed of trust, that it is fraudulent, may be left to the jury, where the debtors are shown to have remained in practical control of the business, obtained credit on false representations to commercial agencies, and made large purchases of goods on credit just before an assignment, while the rumors of their insolvency could hardly have escaped the ears of such creditors. Id.
See also BANKS, 1; PUBLIC LANDS, 11.
defeat the right of the plaintiff in trover The rule that a mere trespasser cannot by showing a superior title in a third person, without showing himself in privity or connecting himself with such third person, has no application to cases wherein the plaintiff has shown no prima facie right to bring the action. United States v. Loughrey,
Questions for court or jury.
6. The question of the acceptance of a trust by creditors may be left to the jury, notwithstanding their positive oral testimony to the acceptance, where this question is closely connected with a question of their participation with the debtor in defrauding other creditors. Sonnentheil v. Christian UNSEAWORTHINESS. Moerlein Brew. Co. 492
See SHIPPING, 4.
See CORPORATIONS, 4; EQUITY, 2, 3;
Claim against, see CLAIMS.
See CANALS; DAMS; WATERS, 2, 10.
See also BILLS AND NOTES, 2; COURTS, 13.
1. One seeking the affirmative aid of equity for relief against an alleged usurious agreement must himself do equity by tendering or offering payment of what is justly due. Hubbard v. Tod,
8. The authority to act for another party is a question for the court to decide, if only one inference can be drawn from the evidence, and that is want of authority. Washington Gaslight Co. v. Lansden, 543
2. An offer to repay the money loaned is not necessary in order to obtain the cancelation of a contract for usury under Minn. Gen. Stat. 1894, § 2217, providing that such contracts shall be canceled and given up. Missouri, K. & T. Trust Co. v. Krumseig, 474
3. A contract under which $1,970 is actually received by a borrower who gives ten notes of $360 each, payable in monthly instalments of $30 each, with a proviso that in case of his death all the debt remaining unpaid shall be released if he is not then in default,—is a scheme or colorable device to cover usury.
See MINES, 4.
Rights of public.
6. The dominion and propriety in the Potomac river and the soil under it passed to Lord Baltimore by grant from Charles I. in
See CRIMINAL LAW, 2; JUDGMENT, 10. 1632 as part of the prerogative rights an
nexed to the political powers conferred on him, and were intended to be held by him in trust for the common use of the community about to be established for navigation and fishery, and not as his private property to be parceled out and sold for his individual emolument. Morris v. United States, 946 Land under water.
See APPEAL And Error, 3.
See CONSTITUTIONAL LAW, 14, 22.
See ACTION or Suit, 3.
See BLOCKADE; GUARDIAN AND WARD. WAREHOUSEMEN.
See CARRIERS, 1; CLOUD ON TITLE, 2.
See EQUITY, 4.
See INTERNAL REVENUE, 2.
See also APPEAL AND ERROR, 4; BOUN-
Grande Dam & I. Co.
1. The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river. United States v. Rio 1136 2. A state cannot by its legislation destroy the right of the United States as the owner of lands bordering on a stream, to the continued flow of its waters, in the absence of specific authority from Congress. Id.
of waters in respect to which the United States has jurisdiction, within the meaning of the prohibition of the act of Congress of September 19, 1890, does not mean simply an obstruction in the navigable portion of the stream, but includes anything, wherever done or however done, which tends to destroy the navigable capacity of one of the navigable waters of the United States. Id.
3. The power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States is within the jurisdiction of the general government over interstate commerce and its natural water highways. Id. 4. An appropriation of the entire unappropriated flow of a river above the point of navigability so as seriously to affect its nav igability further down is not authorized by the acts of Congress which permit appropriation of water in aid of mining industries and for the reclamation of arid lands. Id. 5. Obstructions to the navigable capacity
7. Lands lying beneath the waters of the Potomac and within the limits of the District of Columbia were not subject to sale by the Land Department under the general resolution of Congress of February 16, 1839, authorizing patents for vacant lands, but providing that this should not affect land ceded to or acquired by the United Id. States for public purposes.
8. Subsequent recession of the waters of the Potomac from land under water at the time of the passage of the general resolution of Congress of February 16, 1839, providing for patents for vacant lands, will not bring such lands within the scope of the statute. Id.
9. Riparian rights do not attach to lands acquired by the Chesapeake & Ohio Canal Company under acts of Congress authorizing the location of the canal along the bank of the Potomac river within the District of Columbia. Id. Water power.
10. The right of the state to lease such portion of the water power reserved as it does not require for the use of a penitentiary is included in the rights reserved to the state under S. C. act December 24, 1887, authorizing the transfer of a canal, but providing that the state shall be furnished, free of charge, 500 horse-power of water power "for the use of the penitentiary and for other purposes," and declaring that "the right of the state to the free use of the said 500 horse power shall be absolute." Columbia Water Power Co. v. Columbia Electric Street R. Co. 521
Water supply and rates.
11. The inadequacy of the supply of water which renders a contract by a city with a water company voidable does not justify the city in erecting waterworks of its own in violation of the express terms of the contract, without first having the contract annulled. Walla Walla v. Walla Walla Water Co. 341 12. An ordinance granting a right to a water company for twenty-five years to lay
See also CRIMINAL LAW, 1.
and maintain water pipes for the purpose | WITNESSES. of furnishing the inhabitants of a city with water does not create a monopoly, or prevent the granting of a similar franchise to another company, especially when there is an express stipulation that the city shall not erect waterworks of its own, but no stipulation against granting another franchise.
13. An opportunity to be heard upon the question of water rates fixed by ordinance is not denied where they are conferences between the officers of the corporation whose rates are fixed and the municipal authorities, although these officers are not allowed to be present at the final meeting when the ordinance is passed. San Diego Land & T. Co. v. National City, 1154 14. The losses from distribution of water to consumers outside of the city are not to be considered in fixing the rates for consumers within the city by ordinance. Id.
See also CARRIERS, 1, 2; CLOUD ON
1. A wharfinger is bound to exercise reasonable diligence in ascertaining the condition of the berths at his wharves, and, if there is any dangerous obstruction therein, to remove it or give due notice of its existence to vessels about to use the berths. Smith v. Burnett, 756
2. The right to erect and maintain permanent wharves could not be acquired under Md. act December 19, 1791, authorizing_licenses for wharves in the waters of the Potomac and the eastern branch to be given by commissioners "until Congress shall exercise jurisdiction and government within said territory." Morris v. United States,
2. A codicil revoking a "bequest" to a home for incurables, and bequeathing to a friend "the $5,000 (heretofore in my will bequeated to said Home for Incurables)," does not revoke the provision in the will by which all the residue and remainder of the estate, of whatever kind, is given (using the words "devise and bequeath") to the Home for Incurables, but does revoke a bequest of $5,000 to a certain hospital, which is the only bequest of that amount in the will, both these gifts being declared to be for the establishment of beds in memory of a son of the testatrix.
The extent and manner of the crossexamination of a witness outside of the matter connected with his examination in chief is within the discretion of the court. Davis v. Coblens,
WRIT AND PROCESS.
See also GARNISHMENT, 1.
3. A nonresident agent of a foreign insurance company who comes into a state to compromise it within stated terms, leaving investigate a claim for a loss, with power to him a certain discretion as to the amount, when he is not a mere special agent for that particular case but is employed generally, on a salary, to act in all cases of that kind, service of process in an action on the claim sufficiently represents the company for the he is investigating, where the company is doing business within the state.
5. Service of summons upon the general manager of a foreign corporation is sufficient service upon the company, under Ariz. Code Civ. Proc. § 704, as the provisions of §§ 348, 712, 713, providing specially for service on such corporations when they have ceased to do business in the state, or have no local or official agent appointed, are not intended to be exclusive. Henrietta Min. & M. Co. v. Johnson,